1

THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

AN ANALYSIS OF SIR JAMES FITZJAMES STEPHEN’S CONTRIBUTION WITH

REFERENCE TO THE INDIAN EVIDENCE ACT, 1872

Subject: Law of Evidence

Student: Hari Keshav Manohar
Roll Number: 1872
Semester: V
Professor: Mr. Hari S. Nayar
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INDEX
HEADING PAGE NUMBER
Cover Page 1
Index 2
Acknowledgements 3
Introduction 4
An Analysis of Sir James Fitzjames 5
Stephen’s Contribution with reference to
The Indian Evidence Act, 1872
Alternative Approaches to the Law of 8
Evidence
Who is a police officer under Section 25 of 10
the Act?
Colonialism and the Act 12
Summaries and Secondary Evidence 14
Conclusion 16
Bibliography 18
 3

ACKNOWLEDGEMENTS
I express my sincere gratitude to The National University of Advanced Legal Studies for
enabling me to perform research work on this project, providing the necessary facilities, and
giving me the opportunity to complete it satisfactorily. I especially thank the Vice-Chancellor
of the University, Justice (Retd.) S. Siri Jagan, and the Registrar, Smt. Lina Acca Mathew. I
thank my teacher, mentor, and guide, Professor Hari S. Nayar Sir, for providing me with the
essential guidance I required to work on the project in the right direction. I also take this
opportunity to thank my beloved friends. They extended their helping hand at various stages
of the research work and provided me with their valuable love and support.
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INTRODUCTION

What Lord Macaulay was to the Indian Penal Code,1 Sir James Fitzjames Stephen (‘Stephen’)
was to the Indian Evidence Act (‘the Act’), except to a greater degree. 2 The crucial
differences between the two were that Stephen could draw inspiration and learn from
Macaulay’s efforts, and also that Stephen wrote 3 extensively and eruditely regarding his work
on the law of evidence.4

This project will analyse Stephen’s work on the Act by examining the sections of the statute
and their associated common law doctrines and case laws, juxtaposed with Stephen’s
commentary on the same. The great luxury we have with the Act is that Stephen lived for
over two decades following the enactment of the Act, and produced extensive commentaries
and analyses of his work. These are benefits which we do not possess when it comes to the
vast majority of Indian statutes, especially those which were enacted pre-independence.

The question may well arise as to what use such an analysis of Stephen’s contribution is,
especially considering that it has been 77 years since the lifting of the colonial yoke, and just
last year the Act was repealed and replaced. Well, it is clear that the Bharatiya Sakshya
Adhiniyam (‘BSA’)5 has largely retained the structure and content of the Act, and the old
common law doctrines and case laws from which Stephen derived the substance for the Act
remain as relevant as ever. My project will include some of the most famous case laws and
sections, many of which will be fondly (or not so fondly) remembered by students of law
across the world. I will avoid getting bogged down in history and stick mainly to the legal
influences and effects of Stephen’s work, appreciating several aspects of the Act as I go
along.

Hopefully, this project proves to be interesting.

1
The Indian Penal Code, 1860, No. 45, Acts of the Imperial Legislative Council, 1860 (India).
2
The Indian Evidence Act, 1872, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
3
JF STEPHEN, A DIGEST OF THE LAW OF EVIDENCE (Macmillan and Co. 5th ed. 1887).
4
JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT (Thacker, Spink & Company 2nd Impression
1904).
5
The Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).
 5

AN ANALYSIS OF SIR JAMES FITZJAMES STEPHEN’S CONTRIBUTION WITH

REFERENCE TO THE INDIAN EVIDENCE ACT, 1872

I will begin by looking at Section 7 of the Act. 6 This section famously explains that “Facts
which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in
issue, or which constitute the state of things under which they happened, or which afforded
an opportunity for their occurrence or transaction, are relevant.”

The key case law when it comes to this section is that of R v. Richardson,7 a rather gruesome
case concerning the murder of a young woman in Scotland, which helped illustrate when
facts which are the occasion and effect of relevant facts or facts in issue, or which afforded an
opportunity for their occurrence or transaction, are relevant.

Stephen devotes no less than ten full pages of his book “Introduction to The Indian Evidence
Act” to discussing this most-important judgement. While analysing this case law, Stephen
remarks that “This case illustrates the application of … the method of agreement upon a
scale which excludes the supposition of chance, thus … The murderer had a motive … The
murderer had an opportunity at a certain hour of a certain day in a certain place”.

Stephen goes on to state that multiple facts discovered in the case made Richardson’s
situation very grim. Owing to Richardson’s left-handedness, the distinctive nature of his
boots, the blood on his clothes, and multiple other facts, it was quite easy to build up enough
evidence to convict him. Stephen wryly commented that “It is hardly imaginable that two
left-handed men, wearing precisely similar shoes and closely resembling each other, should
have put the same leg into the same hole of the same marsh at the same time, that one of
them should have committed a murder, and that the other should have causelessly hidden the
stockings which had got soiled in the marsh. Yet this would be the only possible supposition
consistent with Richardson’s innocence”.

I have started with Stephen’s analysis of R v. Richardson because I feel that Stephen’s
writing is quite useful for understanding the theory of relevancy of facts. Stephen himself
writes that “These sections are by far the most important, as they are the most original part
of the Evidence Act, as they affirm positively what facts may be proved, whereas the English
law assumes this to be known, and merely declares negatively that certain facts shall not be
proved”. At the same time, Stephen noted that “Important as these sections are for purposes
6
The Indian Evidence Act, 1872, § 7, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
7
JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT 93-102 (Thacker, Spink & Company 2nd
Impression 1904).
 6

of study, and in order to make the whole body of law to which they belong easily intelligible
to students and practitioners not trained in English courts, they are not likely to give rise to
litigation or to nice distinctions. The reason is that s. 167 of the Evidence Act … renders it
practically a matter of little importance whether evidence of a particular fact is admitted or
not … The improper admission or rejection of evidence in India has no effect at all unless the
court thinks that the evidence improperly dealt with either turned or ought to have turned the
scale. A judge, moreover, if he doubts as to the relevancy of a fact suggested, can, if he thinks
it will lead to anything relevant, ask about it himself under s. 165”.8, 9, 10

In Stephen’s remarkable Digest on the Law of Evidence, written shortly following the
enactment of the Act, Stephen analyses the provisions at great length. In his introduction to
the Digest, Stephen dryly remarks that “The expression “hearsay is not evidence” seemed to
assume that I knew by the light of nature what evidence was, but I perceived at last that that
was just what I did not know.” The struggle to define evidence was a real one, and of course
now in the BSA we do have a concrete definition for the term. However, speaking further on
the problems with trying to define evidence, Stephen adroitly explained that “I was in the
position of a person who, having never seen a cat, is instructed about them in this fashion:
“Lions are not cats, nor are tigers nor leopards, though you might be inclined to think they
were.””

Stephen, in his Introduction to the Indian Evidence Act, explains three fundamental rules of
the English law of evidence, which to a large extent have been retained in the evidence law
framework of independent India. These rules are that evidence must be confined to the
matters in issue, hearsay evidence is not to be admitted, and in all cases the best evidence
must be given. We can see the presence of these rules in the Act in the form of sections 6-15
(relevant facts and facts in issue), sections 62-63 (which demarcate the boundaries between
primary and secondary evidence and emphasis the general superiority of primary evidence),
and the explicit exceptions which have been written into the Act with the understanding that
hearsay evidence is generally not to be admitted.

Stephen understands and points out the ambiguities surrounding the hearsay rule, and he
expertly notes that “As the rule is nowhere laid down in an authoritative manner, its meaning
has to be collected from the exceptions to it, and these exceptions, of which there are as
8
The Indian Evidence Act, 1872, § 165, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
9
The Indian Evidence Act, 1872, § 167, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
10
JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT 76-77 (Thacker, Spink & Company 2nd
Impression 1904).
 7

many as twelve or thirteen, imply at least three different meanings of the word ‘hearsay.’”.
Stephen also bemoans the lack of consensus in English law on an exact definition for the term
“evidence”. Stephen explains that “The use of the one name ‘evidence’ for the fact to be
proved, and the means by which it is to be proved, has given a double meaning to every
phrase in which the word occurs.”

ALTERNATIVE APPROACHES TO THE LAW OF EVIDENCE

Another important thing to keep in mind is that as Stephen was drafting his own
interpretation for the law of evidence for India, there were legal minds in Britain who thought
 8

very differently on the topic as compared to Stephen. This is evidenced by the fact that
Stephen’s attempt to promote an Evidence Bill through the British Parliament, mere months
following the enactment of the Indian Evidence Act, failed miserably, and one of Stephen’s
staunchest critics was the American legal theorist James Bradley Thayer. 11 Mr. Anurag
Tiwari, a recent graduate from National Law School Bangalore, has pointed out how Indian
courts have not been entirely consistent when it comes to following either Stephen’s or
Thayer’s approach to evidence law; this issue is magnified by the fact that our evidence
statute is still largely structured as per Stephen’s wishes.

In 1999, the Hon’ble Supreme Court of India (‘SC’) followed Thayer’s approach in the
decision of Sukhar v. State of U.P.,12 where the statement by an injured person that a certain
person had shot him was admitted as a relevant fact, despite the fact that the witnesses had
not seen the certain person on the scene. Mr. Tiwari explains that Section 6 of the Act entails
that facts may be relevant or irrelevant, while evidence may be admissible or inadmissible,
and that the SC in its decision in Sukhar had mixed up these various factors. Stephen’s
definition of “evidence” in the Act (as it largely remains in the BSA) is that evidence is
limited to oral and documentary evidence, either of which may be admissible or inadmissible.
Another important fact to note is that at the same time that Thayer and Stephen were
constructing their own interpretations of the law of evidence, British courts were themselves
developing the law in their own particular fashion. Notably, Lord Cockburn thoroughly
restricted the concept of res gestae in his 1879 decision in R v. Bedingfield.13 Thus, Stephen
and Thayer were in effect building a plane that was already airborne as they were building it.
Indian courts have followed Cockburn’s lead in notable cases such as G.V. Rao v. State of
A.P.,14 but have taken the courses adopted by Stephen and Thayer in other decisions.
According to Thayer, the whole theory of relevant facts and facts in issue was flawed. He
strongly believed that the court could logically work out what facts were relevant, without the
aid of any theories or statutory provisions; however, what the court did need as a guide or aid
was some form of rule regarding admissibility. Thayer criticised Stephen’s theory of
relevancy of facts by contending that hearsay evidence may be relevant but inadmissible, thus
highlighting a flaw in the theory of relevancy of facts.
11
Anurag Tiwari, Rethinking Sukhar v. State of U.P.: How the Interpretation of Section 6 of Evidence Act
Adopted a Thayerite Approach Rather than Stephen’s, SCC ONLINE TIMES (Sep. 14, 2022),
https://www.scconline.com/blog/post/2022/09/14/rethinking-sukhar-v-state-of-u-p-how-the-interpretation-of-
section-6-of-evidence-act-adopted-a-thayerite-approach-rather-than-stephens/.
12
Sukhar v. State of U.P., (1999) 9 SCC 507.
13
R. v. Bedingfield, (1879) 14 Cox CC 341 (Norwich Winter Assizes, 1879).
14
G.V. Rao v. State of A.P., (1996) 6 SCC 241.
 9

In Sukhar, the SC stated that res gestae was nothing but an exception to the rule that hearsay
evidence is inadmissible, which reflects a more Thayerite rather than Stephenite approach.
Stephen has comprehensively explained that his intention behind Section 6 was to explain
what facts are relevant, not to constitute an exception to the so-called hearsay rule. In Sukhar,
the SC relied on J.H. Wigmore’s ideas regarding evidence law, which is telling as Wigmore
was Thayer’s student and his theory of evidence law was opposed to Stephen’s views. The
decision in Sukhar has now become an oft-relied upon judgement which has led to Thayer’s
approach to evidence law gaining prominence in Indian jurisprudence. All of this is not to
criticise the SC for relying on Thayer’s approach to evidence law, but rather to highlight the
fact that there is no one way to approach the law of evidence.

It is interesting to note that the Australian Law Reform Commission, in 1985, broadly agreed
with Thayer’s views on the theory of relevancy of facts. The Commission claimed that “The
attempt by Stephen to elucidate in detail particular types of relevant evidence, while
providing a useful guide, tends to be misleading. Since relevance is largely a matter of logic
and experience, and since the variety of relevance problems is co-extensive with the
ingenuity of counsel in using circumstantial evidence as a means of proof, it is suggested that
any attempt to detail the kinds of relevant evidence is doomed to failure”.15

WHO IS A POLICE OFFICER UNDER SECTION 25 OF THE ACT?

Another engrossing portion of the Act is that which deals with the subject of confessions.
Spanning from Sections 24 to 30, this part of the Act has been much-discussed, not just in

15
AUSTRALASIAN LEGAL INFORMATION INSTITUTE,
https://classic.austlii.edu.au/au/journals/NSWBarAssocNews/2011/12.pdf (last visited Nov. 30, 2024, 2:57 PM).
 10

India, but in many other common-law jurisdictions. 16 Section 25,17 in particular, is famous for
deviating from the common law, as Stephen made sure that confessions to police officers
would be inadmissible. This was owing to the fact that, as an Indian policeman drolly
acknowledged to Stephen, “It is far pleasanter to sit comfortably in the shade rubbing red
pepper in some poor devil's eyes, than to go about in the sun hunting up evidence.”18

While the motive behind the creation of Section 25 was certainly admirable, its diversion
from the common law threw up a number of difficult legal questions. After all, what then
amounts to a confession, who is an accused person, and who qualifies as a police officer?
Indian courts have been grappling with these questions, particularly the last one, ever since
1872.

The archaic nature of the Indian police system is mirrored by the ancient quality of its
governing statute, the 1861 Police Act, certainly one of the very oldest statutes still in force in
India.19 Unfortunately, the Police Act declines to provide a definitive definition for the term
“police”, only saying that the term refers to all persons enrolled under the Police Act. Thus,
this is a lacuna which very much continues to exist in Indian statutory law.

Considering the context in which Stephen framed Section 25, it is quite clear that he was
mainly concerned with “Opportunities to inflict torturous harm to extort confessions …
rather than the specific department an officer belongs to”. A key decision in this context is
that of the Hon’ble Calcutta High Court in R v. Hurribole.20 In this decision, Chief Justice
Richard Garth held that for the purposes of Section 25, “the term “police officer” should be
read not in any strict technical sense, but according to its more comprehensive and popular
meaning”.

These words used by Chief Justice Garth form the test using which multiple Indian courts
have attempted to interpret and apply Section 25. The Hon’ble Bombay High Court took a
stab at the problem in N.S. Ahmed v. Emperor.21 In N.S. Ahmed, the Hon’ble Bombay High
Court held that excise officers were also police officers as they possessed similar powers of
investigation as possessed by a police officer in charge of a police-station.

16
Abhinav Sekhri, Confessions, Police Officers and § 25 of The Indian Evidence Act, 1872, 7(1) NUJS L. REV.
55, 55-72 (2014).
17
The Indian Evidence Act, 1872, § 25, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
18
J.H. Langbein, Torture and Plea Bargaining, 46(1) U. CHI. L. REV. 19 (1978).
19
The Police Act, 1861, No. 5, Acts of the Imperial Legislative Council, 1861 (India).
20
R v. Hurribole, (1876) ILR 1 Cal 207.
21
N.S. Ahmed v. Emperor, AIR 1927 Bom 4.
 11

Chief Justice Terrell of the Patna High Court, in R.K. Marwari v. Emperor,22 believed that
Garth’s test had been misinterpreted. He felt that the popular meaning would have to include
all kinds of police officers. Justice Fazl Ali, in a separate opinion, said that one who is
primarily not a police officer but merely invested with the powers of a police officer should
not be brought within the scope of Section 25.

In stark contrast, in Amin Shariff v. Emperor,23 the Hon’ble Calcutta High Court held that
excise officers are also police officers. Thus, it is clear that from 1872 to 1949, multiple High
Courts interpreted Chief Justice Garth’s test in multiple different ways, and no clear answers
were brought forth. The establishment of the Hon’ble Supreme Court of India in 1950
presented an opportunity to settle the matter once and for all. In State of Punjab v. Barkat
Ram,24 the SC held that for someone to be considered a police officer, investigative powers
must be conferred with the purpose of detecting and preventing crime in society. In R.R.
Jaiswal v. State of Bihar,25 the SC stressed that the crucial question was whether the powers
conferred upon the officer in question facilitate in obtaining a confession from the suspect.
The SC thus derived that confessions made before excise officers were inadmissible.

However, in B.J. Savant v. State of Mysore,26 a constitution bench of the SC held that central
excise officers are not police officers. The basis of this decision was the SC’s reasoning that
only such an officer who had the power to file a charge-sheet on which a Magistrate could
take cognizance could be considered a police officer for the purposes of Section 25.

COLONIALISM AND THE ACT

It is no secret that the Act, much like its many nineteenth-century counterparts enacted in
British India, was steeped in a messy and bloody intersection between colonialism and the
22
R.K. Marwari v. Emperor, AIR 1932 Pat 293.
23
Amin Shariff v. Emperor, AIR 1934 Cal 580.
24
State of Punjab v. Barkat Ram, [1962] 3 SCR 338.
25
R.R. Jaiswal v. State of Bihar, [1964] 2 SCR 752.
26
B.J. Savant v. State of Mysore, [1966] 3 SCR 698.
 12

native peoples. Stephen himself was an arch-conservative and a staunch supporter of British
rule in India. If we compare the two great colonial statutes of the nineteenth-century, it is
notable that The Indian Penal Code (‘IPC’) was prepared by Lord Macaulay in the optimistic
and benevolent spirit of the 1830s, when the British genuinely felt they were improving the
lot of the Indians day by day and that colonial statutes were signposts pointing the way
towards progress for the natives. In stark contrast, Stephen drafted the Act with the Mutiny of
1857 fixed firmly in his memory, and the post-1857 Indian codes were as concerned with the
security of the British regime in India as they were with the prosperity and happiness of the
Indian people.

It is easy to draw unflattering comparisons between India and England when it comes to the
drafting and enactment of laws of evidence in both jurisdictions. Whereas Stephen was given
free rein to draft and enact an Evidence Act as he wished in India, Parliament wasted no time
in shattering his pretensions to draft such a statute for England. Early on, the Indian juror was
considered to be illiterate and corruptible, and so statutes were enacted in India which
differed from the jury-friendly approach taken by the common law.

Furthermore, the lack of a consolidated Bar in India allowed the Law Commissions to enact
laws as they wished regarding almost any area of law, while the lawyers and judges in
England hawkishly defended the common law from what they perceived to be the great evil
of codification (of course, over the last century England has trended more and more towards
codification and in recent years has even set up a Supreme Court on the model of the
American and Indian legal systems).

Section 1527 of the Act explains that facts can be relevant when they belong to “a series of
similar occurrences”.28 The very vagueness of this phrase allowed Indian courts to borrow
from the common law when interpreting and applying the provision. This shows one of the
great problems with the nineteenth-century Indian codes, in that they prematurely
endeavoured to codify large sections of common law, while judges and lawyers 29 were all too
eager to rely upon and propagate the common law when in court.30

27
The Indian Evidence Act, 1872, § 15, No. 1, Acts of the Imperial Legislative Council, 1872 (India).
28
Anmol Kohli, Colonialism, Critical Legal Studies, and the Indian Evidence Act, NLSIR ONLINE (Oct. 30,
2022), https://www.nlsir.com/post/colonialism-critical-legal-studies-and-the-indian-evidence-act.
29
S. Chen, Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames Stephen’s Indian
Evidence Act of 1872: The Singapore Experiment and Lessons for Other Indian Evidence Act Jurisdictions,
10(1) ICE 1, 1-53 (2012).
30
R.A. Posner, The Romance of Force: James Fitzjames Stephen on Criminal Law, 10 OSJCL 263, 263-275
(2012).
 13

SUMMARIES AND SECONDARY EVIDENCE

Let us now turn our attention 31 to Section 65(g) of the Act. 32 Under the Act, documentary
evidence must ordinarily be proved via primary evidence, and this principle is commonly

31
Abhinav Chandrachud, Summaries and Secondary Evidence: Transnational Legislative Borrowing in
Colonial India, 10 NUJS L. REV. 83, 83-107 (2017).
32
The Indian Evidence Act, 1872, § 65(g), No. 1, Acts of the Imperial Legislative Council, 1872 (India).
 14

known as the rule of best evidence. Section 65(g) of the Act allows a party to get away with
not producing original documents, if they are so unwieldy or voluminous that they cannot be
conveniently examined in court. It should be noted that the wording of this particular sub-
section has been retained in the BSA. The Act permits parties, in such a case, to present a
summary of documents as evidence. This rule does not exist in the common law and it is
interesting to see exactly wherefrom Stephen derived it.

It is not surprising to learn that Section 65(g) was directly inspired from the work of D.D.
Field on the draft New York Code of Civil Procedure (‘Field Code’), which also provided the
broad framework which was copied by The Indian Contract Act (‘Contract Act’) - which,
incidentally, Stephen had a hand in drafting. 33 Section 1688 of the Field Code said that where
original documents consisted of numerous accounts, or other documents which may not be
examined by the court without great loss of time, a summary of such documents could be
submitted before the court.

Though Field had drafted this provision in 1850, it was not to be found in the various Indian
bills that the Law Commissions drafted between 1850 and 1868. Stephen arrived in India in
1869 and disapproved greatly of the Law Commission’s existing draft bills, particularly their
attempt at drawing up an Evidence Act. When Stephen revised and resubmitted the Evidence
Bill for consideration, the wording of Section 65(g) as we know it today was present in the
Bill – thus, it is clear that Stephen had pulled this provision directly from the Field Code.

Stephen failed to give credit to Field for the wording of Section 65(g), even in the numerous
books and speeches Stephen made regarding the Act. Stephen claimed to have drawn the
wording from certain English commentaries and case laws, but an inspection of these
commentaries and case laws by Dr. Abhinav Chandrachud showed that the exact wording
could not have come from the authorities cited by Stephen.

It is interesting that Sir Frederick Pollock, writing in 1905, greatly criticised the Contract Act
for relying so heavily upon the Field Code; Pollock lambasted the Field Code for its
supposedly poor drafting, going so far as to claim that it was the “worst piece of codification
ever produced”. Ironically, when Field himself visited India in 1874, he was greatly flattered
to see his wordings employed in the Act and Contract Act.

Several High Courts have made rulings regarding Section 65(g), mainly attempting to restrict
the provision so that it may not be misused to make a mockery of documentary evidence.
33
The Indian Contract Act, 1872, No. 9, Acts of the Imperial Legislative Council, 1872 (India).
 15

Furthermore, the Hon’ble Rajasthan High Court made it clear (as was Stephen’s intention)
that the courts may ask for the underlying documents at any stage in the proceedings and that
parties would not be able to rely on Section 65(g) to deny the court’s request.34

However, the Hon’ble Lahore High Court disagreed with this view in Muhammad Sher v.
Court of Wards,35 where the Hon’ble Court held that a summary of documents “is a very
valuable piece of evidence”. Courts have also been eager to ensure that the summary is
prepared by the person who carried out the investigation, and that such person should be
available for cross-examination by the opposite side. The Hon’ble Calcutta High Court, 36 in
Sancheti Food Products Ltd. v. Registrar of Ships, held that it is permissible for a summary to
be prepared with the aid of a team of persons.

CONCLUSION

This has been a lengthy and often unwieldy paper which has leisurely analysed different
aspects of Stephen’s contributions to the Act, in an unstructured and free-flowing manner.
This lack of structure and strange approach are no doubt great flaws in this paper. However, I
do hope that I have been able to shine light on many curious and wondrous facets of the
nature of the Act. As I have previously mentioned, the Evidence Act is a wonderful oddity in
the Indian statutory framework, because not only was it almost entirely the product of one
man’s singlehanded work (a phenomenon we can also observe in the drafting of the IPC), but
34
Kishan Lal v. Sohanlal, 1954 SCC OnLine Raj 47.
35
Muhammad Sher v. Court of Wards, 1931 SCC OnLine Lah 325.
36
Sancheti Food Products Ltd. v. Registrar of Ships, (1995) 100 CWN 760.
 16

that man wrote extensively regarding the process of drawing up and creating the Act. Also,
with due respect to Lord Macaulay, Stephen was a great thinker whose contribution to the
Indian legal system formed only a small part of his extensive and wide-ranging life and
career. He is mostly ignored in modern Indian and English discourse, no doubt because he
was a conservative imperialist whose philosophy has gone out of fashion in almost all
common-law jurisdictions. Yet, his work on the Act is so impressive that the Act really has
not undergone many substantive changes in its 151 years of existence, not even when it was
repealed and replaced by the BSA in 2023. Aside from the necessary incorporation of
provisions relating to electronic evidence in the twenty-first century (which Stephen could
not possibly have foreseen), there have been pretty much no significant changes to the Act;
this is in stark contrast to the other two significant criminal laws, the IPC and CrPC, the
former constantly being amended even before it was repealed in 2023, and the latter being
repealed and replaced at least two or three times since the enactment of the original.

The first part of this paper delved into Stephen’s theory of relevant facts and his commentary
on the same. The second part of this paper discussed alternative approaches to the theory of
relevant facts, mainly promoted by Thayer. The third part of this paper discussed Section 25
of the Act and the headache the Indian courts faced in outlining the definition of the term
“police officer” for the purposes of the section. The fourth part of this paper discussed some
of the implications of the colonial nature of the Act. The final part of this paper examined
Stephen’s action of borrowing the wording of a section from the Field Code, without
crediting Field.

This has been a deeply interesting paper to conduct research for and to write. I have read
numerous journal articles and case laws, skimmed through books, digests, and commentaries,
and checked out a number of online sources. I have also thumbed through the Act itself.

Questions may be asked as to why I have been referring to the 1872 Act throughout this
paper instead of the BSA. Well, considering that most of the literature and authorities I have
been referring to were published or enacted or ruled prior to 2023, I saw no reason to create
confusion by referring to the BSA, which in most cases has merely changed the section
numbers of the Act, when all the existing literature and authorities refer to the Act. This is not
to criticise or downplay the impact of the BSA; it was certainly much-needed that the chinks
in the Act be flattened out, electronic evidence incorporated to a fuller extent, and the name
 17

of the Act written in the nation’s official language. However, for the purposes of this paper, I
decided to refer to the Act.

With that, this paper comes to a conclusion, and I thank my readers for sticking with me
through this lengthy and sometimes monotonous paper.

BIBLIOGRAPHY

1) The Indian Penal Code, 1860, No. 45, Acts of the Imperial Legislative Council, 1860
(India).
2) The Indian Evidence Act, 1872, No. 1, Acts of the Imperial Legislative Council, 1872
(India).
3) JF STEPHEN, A DIGEST OF THE LAW OF EVIDENCE (Macmillan and Co. 5th ed. 1887).
 18

4) JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT (Thacker, Spink &

Company 2nd Impression 1904).
5) The Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).
6) The Indian Evidence Act, 1872, § 7, No. 1, Acts of the Imperial Legislative Council,
1872 (India).
7) JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT 93-102 (Thacker,
Spink & Company 2nd Impression 1904).

8) The Indian Evidence Act, 1872, § 165, No. 1, Acts of the Imperial Legislative Council,
1872 (India).
9) The Indian Evidence Act, 1872, § 167, No. 1, Acts of the Imperial Legislative Council,
1872 (India).
10) JF STEPHEN, AN INTRODUCTION TO THE INDIAN EVIDENCE ACT 76-77 (Thacker,
Spink & Company 2nd Impression 1904).

11) Anurag Tiwari, Rethinking Sukhar v. State of U.P.: How the Interpretation of Section
6 of Evidence Act Adopted a Thayerite Approach Rather than Stephen’s, SCC ONLINE

TIMES (Sep. 14, 2022), https://www.scconline.com/blog/post/2022/09/14/rethinking-

sukhar-v-state-of-u-p-how-the-interpretation-of-section-6-of-evidence-act-adopted-a-
thayerite-approach-rather-than-stephens/.
12) Sukhar v. State of U.P., (1999) 9 SCC 507.
13) R. v. Bedingfield, (1879) 14 Cox CC 341 (Norwich Winter Assizes, 1879).
14) G.V. Rao v. State of A.P., (1996) 6 SCC 241.
15) AUSTRALASIAN LEGAL INFORMATION INSTITUTE,
https://classic.austlii.edu.au/au/journals/NSWBarAssocNews/2011/12.pdf (last visited Nov.
30, 2024, 2:57 PM).

16) Abhinav Sekhri, Confessions, Police Officers and § 25 of The Indian Evidence Act,
1872, 7(1) NUJS L. REV. 55, 55-72 (2014).
17) The Indian Evidence Act, 1872, § 25, No. 1, Acts of the Imperial Legislative Council,
1872 (India).
18) J.H. Langbein, Torture and Plea Bargaining, 46(1) U. CHI. L. REV. 19 (1978).
19) The Police Act, 1861, No. 5, Acts of the Imperial Legislative Council, 1861 (India).
20) R v. Hurribole, (1876) ILR 1 Cal 207.
21) N.S. Ahmed v. Emperor, AIR 1927 Bom 4.
22) R.K. Marwari v. Emperor, AIR 1932 Pat 293.
23) Amin Shariff v. Emperor, AIR 1934 Cal 580.
24) State of Punjab v. Barkat Ram, [1962] 3 SCR 338.
25) R.R. Jaiswal v. State of Bihar, [1964] 2 SCR 752.
26) B.J. Savant v. State of Mysore, [1966] 3 SCR 698.
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27) The Indian Evidence Act, 1872, § 15, No. 1, Acts of the Imperial Legislative Council,
1872 (India).
28) Anmol Kohli, Colonialism, Critical Legal Studies, and the Indian Evidence Act, NLSIR
ONLINE (Oct. 30, 2022), https://www.nlsir.com/post/colonialism-critical-legal-studies-and-
the-indian-evidence-act.
29) S. Chen, Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames
Stephen’s Indian Evidence Act of 1872: The Singapore Experiment and Lessons for Other
Indian Evidence Act Jurisdictions, 10(1) ICE 1, 1-53 (2012).
30) R.A. Posner, The Romance of Force: James Fitzjames Stephen on Criminal Law, 10
OSJCL 263, 263-275 (2012).
31) Abhinav Chandrachud, Summaries and Secondary Evidence: Transnational Legislative
Borrowing in Colonial India, 10 NUJS L. REV. 83, 83-107 (2017).
32) The Indian Evidence Act, 1872, § 65(g), No. 1, Acts of the Imperial Legislative Council,
1872 (India).
33) The Indian Contract Act, 1872, No. 9, Acts of the Imperial Legislative Council, 1872
(India).
34) Kishan Lal v. Sohanlal, 1954 SCC OnLine Raj 47.
35) Muhammad Sher v. Court of Wards, 1931 SCC OnLine Lah 325.
36) Sancheti Food Products Ltd. v. Registrar of Ships, (1995) 100 CWN 760.
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