The power of appreciation of evidence is vested in court alone, and it can never be relegated to an Advocate Commission, held the High Court of Kerala while dismissing an original petition filed against an order passed by a Family Court.
The Family Court had dismissed an application filed seeking the appointment of an Advocate Commission to examine the contents of a CD and report the same to the Court. The Court held that Advocate Commission cannot appreciate evidence.
Challenging this, original petition under Article 227 of the Constitution of India was filed in the High Court. This was considered by a bench comprising Justices K Harilal and Annie John.
The question considered by the High Court in this case Nishad and anothers v Najma was:
"Whether an Advocate Commission can be appointed to play a CD, evaluate the contents and report to the Court?"
The bench, relying on Section (3) of the Indian Evidence Act, said that the power of appreciation is vested with the Court alone, and it can never be relegated to an Advocate Commission and the Court itself must evaluate the contents of the CD.
"According to Section (3) of the Indian Evidence Act, a fact is said to be proved when after considering the matters before the court, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the particular circumstances of the case, to act upon the supposition that it exists. In other words, the court must make an opinion as to 'proved or not proved', after considering the matters before it. In short, the power of appreciation is vested with the court alone, and it can never be relegated to an Advocate Commission and the court itself must evaluate the contents of a CD"(emphasis supplied)
The court also relied on Section 75 of the CPC, which specifies the purpose for which the court can issue a Commission. The purpose includes:
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.
Relying on the above section, the court said that the credibility and reliability for reporting to the Court is not specifically included in the said provision and that at any stretch of imagination, can be made to include the credibility and reliability for reporting to the Court, within the purposes, for which a Commission can be issued, under the said provision.
"We are of the opinion that no interpretation, at any stretch of imagination, can be made to include the act of appreciation of evidence for reporting to the court, within the purposes, for which a Commission can be issued, under the said provision", observed the judgment authored by Justice Harilal.
The Court concluded the judgement by saying that,
"the respondent herself admitted her participation in the programme in the CD and it would amount to an admission by the party to the extent of participation only and nothing could be proved beyond it. According to Section 58 of the Indian Evidence Act, facts admitted need to be proved. There is no illegality and impropriety in the impugned order."
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