Section 1 of the Indian Evidence Act, 1872

Comments:

The Indian Evidence Act applies to the whole of India except the State of Jammu and Kashmir and also applies to all judicial proceedings before any Court including Court martial which were in existence during, the British Rule. But it does not apply to any Court Martial established and regulated by (i) The Army Act, (ii) The Naval Discipline Act (iii) The Air Force Act. The Act does not apply to (a) Affidavits and (b) Proceedings before arbitrators.

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(a) Affidavits:

According to Section 1 affidavits are strictly related to the facts that the deponent has deposed what he is required to prove from his own knowledge and belief. Affidavit is not a legal evidence unless opposite party gets a right to cross-examine the deponent. No affidavit can be given in the form of evidence under the Evidence Act, but the Court may pass order that any fact can be proved by an affidavit.

It is not included in the definition of the Act unless law specifically permits that something may be forwarded by an affidavit. The Act does not apply to affidavit; but that does not mean that an affidavit by a living person can go in as evidence propsio vigore without necessity for him to enter the witness-box. In the civil proceedings affidavits are regulated by Order XIX, Rules 1, 2 and 3 and in criminal proceeding Sections 295, 296 and 297 deal with it.

(b) Arbitrator:

Section 1 has expressly provided that the provisions of the Evidence Act do not apply to any proceeding before an arbitrator. The arbitrators are only bound by the rules of natural justice. They are unfettered by technical rules of evidence. The reason is that the basic objective of arbitration is to avoid technical legal procedures. Besides, an arbitrator is not required to administer an oath as he need not require to examine the witness.

He decides the disputes according to justice, equity and good conscience. An arbitrator, though free from the fetters of the adjective law must nevertheless observe the fundamental principles of justice. “An arbitrator must receive affidavit instead of viva-voice evidence. When he is directed to examine the witness on oath, he must not make his award without having heard all the evidence or having allowed the party reasonable opportunity of proving his whole case.” The proceedings before arbitrators are regulated by the Arbitration and Conciliation Act, 1996.