Section 136 IEA: Judge to decide as to admissibility of evidence

Indian Evidence Act, 1872

Section 136 IEA at a Glance

Section 136 IEA deals with judge to decide as to admissibility of evidence. From 1 July 2024 it is replaced by Section 141 BSA.

Now BSA

Section 141 →

Section 136 IEA Bare Act Text

136. Judge to decide as to admissibility of evidence

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Source: Section 136, Indian Evidence Act, 1872

Section 136 IEA in Simple Words

Section 136 of the Indian Evidence Act, 1872 lets the Judge control what evidence enters the record and the order of proof. When a party wants to prove a fact, the Judge may ask how it would be relevant (legally connected to the case under the Act). The Judge must admit the evidence if the Judge thinks the fact would be relevant once proved, and must reject it otherwise.

Sometimes evidence of a fact is admissible (allowed in court) only after another fact is proved first. That other fact must be proved first, such as proving an original document is lost before producing a copy. Similarly, death must be proved before proving a statement under Section 32 IEA (covering statements of relevant facts by persons who are dead or cannot be found). The party can change that order only by giving an undertaking (promise) to prove the other fact that satisfies the Court.

Sometimes one alleged fact becomes relevant only if another alleged fact is proved first. The Judge then has discretion (freedom to choose) over the order of proof. The Judge may allow the first fact to be proved before the second fact, or require proof of the second fact first.

When Section 136 IEA Applies

  • When either party in a case wants to place any fact in evidence, the Judge may ask that party how the alleged fact would be relevant if proved.
  • The Judge must admit the proposed evidence if the Judge thinks that the fact would be relevant once proved, and must not admit it otherwise.
  • When a proposed fact is admissible only after some other fact is proved, the party must prove that other fact first, unless the party gives an undertaking to prove it that satisfies the Court.
  • When one alleged fact is relevant only if another alleged fact is proved first, the Judge has discretion to allow proof of the first fact before proof of the second fact, or to require proof of the second fact first.

Example of Section 136 IEA

In a 2022 trial in Pune, Ramesh wants to give evidence that Anita visited a warehouse on a certain evening. Under Section 136 IEA, the Judge asks Ramesh how that warehouse visit would be relevant if proved. Ramesh explains that the visit is relevant only if another alleged fact is proved first, namely that disputed goods were stored inside that warehouse. Using the discretion under Section 136 IEA, the Judge may either require proof that the goods were stored there first, or let Ramesh prove the warehouse visit by Anita before proving that the goods were inside.

When Section 136 IEA Does Not Apply

  • The Judge cannot admit proposed evidence of an alleged fact if the Judge does not think that the fact would be relevant once proved.
  • A party does not have to prove a prerequisite fact first if the party gives an undertaking to prove that fact later and the Court accepts the undertaking.

Section 136 IEA in the BSA

Section 136 IEA is now covered under Section 141 BSA.

Section 136 of the Indian Evidence Act, 1872 became Section 141 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. The three paragraphs are now sub-sections (1) to (3), and Illustration (a) now refers to section 26 in place of section 32.

View detailed comparison (IEA 136 vs BSA 141) →

FAQs on Section 136 IEA

What is Section 136 IEA?▼

Section 136 of the Indian Evidence Act, 1872 gives the Judge the power to decide whether proposed evidence is admissible and sets the order for proving connected facts. The Judge admits evidence of a fact only if the Judge thinks it would be relevant once proved.

Can a party produce a copy of a lost document under Section 136 IEA before proving that the original is lost?▼

No, not unless the party gives an undertaking to prove the loss and the Court accepts that undertaking. Under Illustration (b) to Section 136 IEA, the person proposing to produce the copy must prove that the original is lost before producing the copy.

Must a party prove that a person is dead before proving a statement by that person under Section 32 IEA?▼

Yes. Under Illustration (a) to Section 136 IEA, when a statement is relevant under Section 32 IEA (covering cases where a statement of a relevant fact by a person who is dead or cannot be found is relevant), the party proposing to prove the statement must first prove the death, unless the Court accepts an undertaking.

What is Section 136 IEA in BSA?▼

Section 141 BSA is the corresponding provision from 1 July 2024. It keeps the same rule with no substantive change. The paragraphs are numbered as sub-sections (1) to (3), and Illustration (a) carries the new section number.

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Sources: Bare Act Text, Indian Evidence Act, 1872 ·