Judge to Decide as to Admissibility of Evidence under Section 141 of the Bharatiya Sakshya Adhiniyam, 2023

Relevancy is decided by the judge, and Section 141 is the provision that says so. It permits him to ask a party in what manner a proposed fact would be relevant, directs him to admit the evidence only if he thinks it would be, and then deals with a problem the rest of the statute creates: what happens when the relevance of one fact depends on another being proved first. The answer is the doctrine of conditional relevance, and it governs the order in which most contested evidence is led.

1. The Provision

Section 141 corresponds to Section 136 of the Indian Evidence Act and is carried forward unchanged. It contains three distinct rules, and they are best taken separately.

2. The First Limb — Relevance Is for the Judge

Two propositions are contained in the first paragraph.

The judge may ask how the fact would be relevant. A party proposing to lead evidence may be required to explain the connection between the fact and the issues. This is not a formality: where the connection cannot be stated, there is usually no connection.

He shall admit the evidence if he thinks the fact, if proved, would be relevant — and not otherwise. The direction is mandatory in both directions. Relevant evidence must be admitted; irrelevant evidence must not be.

The distinction between the two enquiries runs through the whole statute and is worth setting out.

3. The Second Limb — Foundational Facts

The second paragraph deals with evidence that is admissible only upon proof of some other fact. Here the statute lays down a rule rather than a discretion: the foundational fact must be proved first, unless the party undertakes to prove it and the court is satisfied with the undertaking.

The Adhiniyam is full of such provisions, and the second limb is what makes them work in practice.

Illustrations to the section make the same point. Where a statement of a person alleged to be dead is to be proved under the provision corresponding to Section 26, the fact that the person is dead must be proved first. Where the contents of a lost document are to be proved by a copy, the loss must be proved before the copy is produced.

3.1 The undertaking

The escape is a party's undertaking to prove the foundational fact, with which the court must be satisfied. This is a practical necessity: witnesses attend on particular days, and a rigid rule would require a party to keep a witness waiting while an unrelated foundational fact was established.

Two consequences follow and should be kept in mind.

The undertaking must be honoured. Where the foundational fact is never proved, the evidence admitted on the undertaking falls with it, and the court should so hold in the judgment. The commonest failure in practice is evidence let in provisionally and never made good, with the point overlooked at the end.

The court must be satisfied. The undertaking is not automatic, and a court is entitled to require the foundation first where it doubts that the undertaking will be met, or where admitting the evidence provisionally would prejudice the other side.

4. The Third Limb — Order of Proof

The third paragraph deals with a related but different situation: where the relevancy of one alleged fact depends on another alleged fact being proved. Here the judge has a discretion — he may permit the first to be proved before the second, or require the second first.

The illustrations to the section put the distinction well. Where a man accused of receiving stolen property is said to have denied possession, the relevance of the denial depends on the identity of the property; the court may require the property to be identified first, or may permit the denial to be proved first. Where a fact is said to have been the cause or effect of a fact in issue, and several intermediate facts must exist before it can be so regarded, the court may permit the first fact to be proved before the intermediate ones or require them first.

5. How the Section Operates in Practice

Section 141 is the textual authority for a practice that every trial court follows, and which was given its modern form in a decision about the disposal of objections.

The practice fits Section 141 rather than displacing it. The judge is still deciding admissibility and still deciding it himself; what has changed is when he announces the decision. The evidence is marked subject to objection, the trial proceeds, and the ruling is given in the judgment — where Section 169 then governs the consequence if it turns out to have been wrongly admitted or rejected.

Two qualifications are worth noting. The practice is not universal: where the objection goes to something that would make the whole exercise pointless — privilege, for instance, where the very disclosure defeats the right — the court must decide at once. And an objection to the mode of proof must still be taken when the evidence is tendered, or it is waived, on the reasoning in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752.

6. Where Section 141 Sits

Four provisions together define the judge's control over what comes before him, and Section 141 is the first of them.

The four form a sequence. Section 141 is the ruling; Section 165 is the ruling on a particular kind of objection; Section 168 is the power to go beyond what the parties offer; and Section 169 is what happens if the ruling was wrong.

The first proviso to Section 168 ties back directly: however wide the judge's power to enquire, the judgment must be based upon facts declared relevant by the Adhiniyam and duly proved. Section 141 is where that requirement is enforced in the course of the trial.

7. Practical Points

1. Be able to state how the fact is relevant. The judge may ask, and an answer that cannot identify a head of relevancy in Sections 3 to 50 usually means there is none.
2. Argue on the hypothesis that the fact is proved. Objections that the witness will not be believed are objections to weight and do not arise under Section 141.
3. Identify the foundational facts before leading the evidence, and lead them first where the second limb applies.
4. Where you take evidence out of order, give the undertaking expressly and record it, so that the position is clear.
5. Diarise the undertaking. Evidence let in provisionally and never made good should be pressed at the final stage by the other side.
6. Expect the objection to be reserved. Under Bipin Panchal the material is ordinarily marked subject to objection and decided in the judgment.
7. Take the objection nonetheless. An objection to the mode of proof not taken at tender is waived, whether or not it is decided then.
8. Press the objection again in final argument, since the ruling is made in the judgment.

8. The Position Stated Shortly

1. Relevancy is decided by the Judge, who may ask in what manner the proposed fact would be relevant.
2. The direction is mandatory both ways — relevant evidence shall be admitted, irrelevant evidence shall not.
3. The test is 'if proved', which separates admissibility from weight.
4. Where evidence is admissible only upon proof of another fact, that fact must be proved first — a rule, not a discretion.
5. The escape is a party's undertaking, with which the court must be satisfied, and which must be honoured.
6. Where the relevancy of one fact depends on another, the order is in the Judge's discretion.
7. Objections are ordinarily marked subject to objection and decided in the judgment — Bipin Panchal.
8. An objection to the mode of proof must still be taken at tender, or it is waived.

9. Related Topics and Provisions