Improper Admission or Rejection of Evidence under Section 169 of the Bharatiya Sakshya Adhiniyam, 2023

Every trial produces evidentiary errors. Something is received that should have been shut out; something is shut out that should have been received. If each such error required a new trial, no judgment would ever be safe and litigation would never end. Section 169 is the Adhiniyam's answer: an evidentiary error matters only if it made a difference, and the whole chapter consists of one section supplying the test.

1. The Provision

Section 169, BSA — Improper admission or rejection of evidence

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that —

independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision; or

that, if the rejected evidence had been received, it ought not to have varied the decision.

Section 169 corresponds to Section 167 of the Indian Evidence Act and is carried forward unchanged. It occupies a chapter of its own — Chapter XI of Part IV — which is a measure of its importance rather than of its length.

The section covers two distinct errors and supplies a distinct test for each.

	Improper admission	Improper rejection
The error	Evidence was received which ought to have been excluded	Evidence was shut out which ought to have been received
The test	Was there, independently of that evidence, sufficient evidence to justify the decision?	If the rejected evidence had been received, ought it to have varied the decision?
How it is applied	Subtract the inadmissible material and ask whether the decision still stands	Add the excluded material and ask whether the decision would have changed
If the answer is yes	No new trial or reversal on that ground	No new trial or reversal on that ground

⚠ Two opposite operations

The two limbs require the appellate court to do opposite things, and confusing them is the commonest error in argument. For an improper admission, the court takes the material away and asks whether enough remains. For an improper rejection, the court puts the material in and asks whether the outcome changes. A submission that simply asserts that evidence was wrongly admitted or excluded, without performing the relevant operation, has not engaged the section at all.

2. The Principle Behind the Section

Section 169 is an expression of a principle that runs through Indian procedural law: a party must show prejudice. An irregularity that made no difference to the result is not a ground for setting aside a decision.

Three considerations support it.

Finality. Litigation must end. A rule under which any evidentiary misstep required a retrial would make every judgment provisional, and would reward the party with the greater capacity to find errors rather than the party with the better case.

Proportion. The cost of a retrial — in delay, in expense, in the strain on witnesses and parties — is substantial, and it is not a proportionate response to an error that changed nothing.

Substance over form. The object of a trial is to decide the dispute correctly. Where the decision is correct on the material properly before the court, an error in the reception of other material has not defeated that object.

The same principle appears elsewhere in the procedural codes, which provide in substance that no decree shall be reversed or varied on account of any error, defect or irregularity not affecting the merits of the case or the jurisdiction of the court, and that findings and sentences are not to be reversed for error, omission or irregularity unless a failure of justice has in fact been occasioned.

3. Improper Admission — The Subtraction Test

The first limb asks whether, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision.

The exercise is mechanical in form and demanding in substance.

Identify the material said to have been wrongly admitted, precisely. A general complaint that inadmissible evidence was received does not permit the exercise.
Remove it from consideration entirely, together with anything that depends on it.
Examine what remains, and ask whether it is sufficient to justify the decision actually reached.
If it is, the error is immaterial. If it is not, the decision cannot stand on that footing.

⚠ The difficulty is inadmissible evidence that has coloured the findings

The subtraction test assumes that the inadmissible material can be cleanly separated from the rest. Often it cannot. Where a court has believed a witness partly because of a confession that ought to have been excluded, or has assessed a document in the light of material that should never have been received, the remaining evidence has not been assessed independently at all. In such a case the correct approach is not to ask whether the residue could have supported the finding, but whether it was in fact assessed on its own — and where it was not, Section 169 does not save the decision.

3.1 The objection must ordinarily have been taken

Section 169 is engaged where an objection is raised, and this connects with the settled rule about the timing of objections.

📖 R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752

Held: Objections as to admissibility of documents are of two classes. The first is where the document is inherently inadmissible. The second is where the objection goes not to admissibility but to the mode of proof.

An objection of the second kind must be taken when the document is tendered, so that the party tendering it has an opportunity to cure the defect; if not taken then, it cannot be raised at a later stage, including in appeal. An objection of the first kind may be raised at any stage.

Ratio: An objection to the mode of proof is waived if not taken at the time; an objection to inherent inadmissibility survives.

The practical consequence is that a party complaining on appeal of improper admission must first establish that the objection was available to him at that stage — either because it goes to inherent inadmissibility, or because he took it when the evidence was tendered.

Under the practice recommended in Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1, a document objected to is ordinarily marked subject to the objection and the objection is decided in the judgment. The objection must therefore be taken at tender, but need not be decided then.

4. Improper Rejection — The Addition Test

The second limb asks whether, if the rejected evidence had been received, it ought not to have varied the decision.

The double negative is awkward and is worth unpacking. The decision stands where the rejected evidence would not have changed the result. It is liable to be set aside where the rejected evidence would or might have changed it.

The exercise requires four things.

Identify what was excluded, and establish that it was admissible.
Establish what it would have shown. An appellate court cannot assess the effect of evidence whose content is unknown, and this is where such complaints most often fail.
Add it to the material that was before the trial court.
Ask whether the decision ought to have been different.

⚠ The record must show what was rejected

A complaint of improper rejection is unarguable unless the appellate court can see what would have been proved. Where a question was disallowed, the answer is unknown. The practice that protects the position is to have the substance of the intended evidence recorded — the question disallowed, the document tendered and marked for identification, or a statement of what the witness would have deposed to. A party who accepts a ruling excluding evidence without getting anything on the record has, in practical terms, lost the point for good.

5. What the Section Does Not Cover

Section 169 is confined to errors about evidence. Four categories of defect are outside it and are not saved by it.

Defect	Why Section 169 does not apply
Want of jurisdiction	A decision by a court without jurisdiction is a nullity, not an error in the reception of evidence. No amount of sufficient evidence cures it
Breach of a mandatory provision going to the trial itself	Where the law prohibits the use of evidence altogether — as Section 67 prohibits an attested document being used until an attesting witness is called — the defect is not merely one of admission
Denial of a fair hearing	Where a party was denied the opportunity to cross-examine, or to lead evidence at all, the complaint is of the procedure and not of a ruling on admissibility
Findings unsupported by any evidence	A finding resting on nothing is not an improper admission; it is a finding without evidence, which is an error of law

The distinction in the second row repays attention. Section 67 provides that an attested document shall not be used as evidence until an attesting witness has been called. That is a prohibition on use rather than a rule about admissibility, and a decree founded on a will proved in breach of it is not saved merely because other material existed. The same reasoning applies to the certificate requirement in Section 63(4) for secondary electronic evidence, which Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 held to be a condition precedent to admissibility.

6. How the Section Operates on Appeal

Section 169 is addressed to 'the Court before which such objection is raised' — ordinarily an appellate or revisional court, though it may equally be the trial court itself deciding an objection reserved under the Bipin Panchal practice.

The appellant must show	The respondent answers
That the evidence was improperly admitted or rejected	That it was properly admitted or rejected
That the objection was available — inherent inadmissibility, or taken at tender	That an objection to the mode of proof was not taken and is waived — R.V.E. Venkatachala Gounder
On improper admission — that the residue is insufficient	That, independently of the material, sufficient evidence justified the decision
On improper rejection — what the evidence would have shown, and that it would have varied the decision	That it ought not to have varied the decision

Two observations follow. The section does not prevent an appellate court from correcting the error — it prevents the error from being, of itself, a ground for a new trial or reversal. An appellate court may well hold that evidence was wrongly admitted and go on to decide the appeal on the remaining material.

And the section speaks of a new trial or reversal of any decision, so it operates in civil appeals as in criminal ones.

7. Practical Points

Take the objection when the evidence is tendered. An objection to the mode of proof not then taken is waived.
Identify which class the objection belongs to. Inherent inadmissibility survives; mode of proof does not.
Where evidence is excluded, get the substance on the record — the question disallowed, the document marked for identification, or what the witness would have said.
On appeal against improper admission, perform the subtraction and show that the residue is insufficient.
On appeal against improper rejection, show what the evidence would have established and how it would have altered the result.
Where the inadmissible material has coloured the findings, say so. The subtraction test assumes clean separation, and where there is none the section does not save the decision.
Do not rely on Section 169 where the defect is jurisdictional or goes to the fairness of the trial. The section is confined to evidentiary error.

8. The Position Stated Shortly

An evidentiary error is not of itself a ground for a new trial or reversal.
Two tests — for improper admission, whether the residue was sufficient; for improper rejection, whether the excluded material ought to have varied the decision.
The two operations are opposite — subtract for admission, add for rejection.
The section requires prejudice, and is an expression of the wider principle that irregularities not affecting the merits do not vitiate a decision.
An objection to the mode of proof must be taken at tender or it is waived — R.V.E. Venkatachala Gounder.
A complaint of improper rejection fails unless the record shows what was excluded.
The subtraction test assumes the inadmissible material can be separated, and where it has coloured the findings it cannot.
The section does not cover want of jurisdiction, denial of a fair hearing, or a finding resting on no evidence at all.

9. Related Topics and Provisions

Topic or provision	Connection
Documentary Evidence — General Principles	The two classes of objection and the timing rule
Examination of Witnesses — Sections 140 to 168	The rulings that generate the errors this section addresses
Certified Copy vs Photocopy	Inherent inadmissibility contrasted with mode of proof
Anvar P.V. v. P.K. Basheer — Electronic Evidence	The certificate as a condition precedent to admissibility
Proof of Attested Documents — Sections 67 to 71	A prohibition on use rather than a rule of admissibility
Repeal and Savings — Section 170	The provision that closes the Adhiniyam
Section 141, BSA	The judge's decision on admissibility, where the error originates