INDEX

SERIAL TOPIC NAME PAGE NO.

NO.
1. INTRODUCTION 2-3
2. LITERATURE REVIEW 3-4
i. Relevancy and Admissibility: Two sides of a coin
ii. A critical study on admissibility of evidence
3. VALIDATION OF THE TOPIC 5-7
i. Admissibility and relevance under the Indian
evidence act
ii. Facts in issue in Civil Procedure Code, 1908
III. Facts in issue in Criminal Procedure Code, 1973
4. CONCLUSION AND SUGGESTIONS 8
5. REFERENCES 9-10

1
INTRODUCTION

Section 3 (Interpretation clause) of the Evidence Act, 1872 (hereinafter referred as “Act”)
gives the definition of facts and “facts in issue”. According to Bentham1 facts are of two
types;

1. Physical facts
2. Psychological facts.

Physical facts are the external facts subject to the perception by the five senses basically
something which have a seat in an inanimate being or one which is animate but not by the
virtue of the qualities which constitute the being as animate. On the other hand, the second set
of facts are psychological or internal facts which is subject of consciousness. As rightly said
in the case of Sabhapathi2; “The state of man’s mind is as much a fact as the state of his
digestion”. The classification done by the Bentham has been incorporated under the Section 3
of the Act. It should also be noted that only the past and present events are covered under the
definition of facts and the future events which are likely to occur in future will not fall under
the definition.

Facts and proof are two cardinal things around which the law of evidence revolves. Facts in
issue are the contentions on which the dispute is centered. Facts in issue are sometimes called
“principal facts” as they help in establishing the rights and liabilities. In a judicial enquiry,
two types of facts are proved; facts in issue and facts relevant to the issue. In a proceeding,
the matters which are accepted by one party and denied by the other is considered to be a fact
in issue, the fact out of which a claim, liability, right, defence can arise. However, it should
also be noted that primarily the determination of what facts are in issue is through substantive
law and then through the branch of law of procedure which regulates the law of pleadings,
civil or criminal.3

The expression “facts in issue” appears at multiple places in the Act; some of the relevant
sections are 5, 6, 7, 8, 9 and 11. In Civil Procedure Code, 1908 Order XIV, Rules 1-7 4 deals
with facts in issue whereas under the Criminal Procedure Code, 1973 charge includes and
constitutes the “fact in issue” which is given under Chapter XVII5. In civil cases, facts in

1
J. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 45 (6TH ed. 1843).
2
Sabhapathi v. Huntley, AIR 1938 PC 91.
3
S. AHMAD KHAN, LAW OF EVIDENCE 16 (21ST ed. 2020).
4
The Civil Procedure Code, No. 5 of 1908, INDIA CODE (1908).
5
The Criminal Procedure Code, No. 2 of 1973, INDIA CODE (1973).

2
issue are the pleading made by the parties that is the assertion of facts by one party and the
denial by the other. On the other hand, in criminal cases facts in issue are those which the
prosecution gives in order to create a charge on the accused person.

No matter what the dispute is, civil or criminal; facts in issue fundamentally affects the
dispute. Both civil and criminal disputes involve pleadings wherein one party is claiming
certain things and the other is denying it and therefore the same has to be proved in front of
the court.

LITERATURE REVIEW

1. RELEVANCY AND ADMISSIBILITY: TWO SIDES OF A COIN 6

The authors of this article have talked about the relevant facts and how not every relevant fact
is admissible in the court of law. The combined perusal of section 3 and 5 of the Act provides
that evidence can be given of; firstly, for every fact in issue and secondly for such other
relevant facts. The first part of the definition of Section 5 of the Act deals with the evidence
which directly goes on to approve/disapprove the existence/nonexistence of facts in issue
whereas the second part refers to the facts which are collaterally connected with the facts in
issue. It has to be noted that relevancy of a fact is based on logic but the admissibility is based
on legal pertinence and the court decides the questions of relevancy and admissibility under
Section 136 of the Act. It of no doubt that relevancy has to come first in order to check which
facts will be admissible.

Through the case of Lakshmandas Chaganlal Bhatia v. State7 it was laid down that which
facts will be considered as relevant facts. The court gave five criteria of relevant facts;

1. The facts which are necessary to explain/introduce the facts in issue/relevant facts.
2. The facts which help in supporting/rebutting any inference which is suggested by a
relevant fact or facts in issue.
3. The facts which help in establishing the identing of animate or inanimate things.
4. The facts which help in showing the relation of parties through whom the fact in
issue/relevant facts was transacted.

6
Venancio D’ Costa, Astha Ojha, Gauri goel, “Relevancy and Admissibility: Two sides of a Coin” MONDAQ,
https://www.mondaq.com/india/trials-appeals-compensation/924542/relevancy-and-admissibility-two-sides-of-
a-coin (accessed at 13.02.2021 4:13 P.M.).
7
Lakshmandas Chaganlal Bhatia v. State, 1968 (69) AIR 807 (Bom).

3
 5. The facts which help in fixing the place and time wherein the fact in issue/relevant
fact happened.

Now, in a landmark case of Ram Bihari Yadav v. State of Bihar 8, the Supreme Court said
that the terms “relevancy and admissibility” are used interchangeably and as synonyms but it
has to be noted that the legal implications of these words are different; as the facts which are
relevant are not admissible and also there might be some admissible facts which are not
relevant. So, it cannot be said that both are synonyms.

Through the case of Sris Chandra Nandy v. Rakhalananda9, it was said that admissibility of
evidence has to be accepted on the basis of written laws ad not from the deduction of the facts
itself. A judge cannot exercise his dispensing power to admit an evidence which otherwise
cannot be admitted because of the specified provision.

2. A CRITICAL STUDY ON ADMISSIBILITY OF EVIDENCE10

The author starts the paper by saying that through section 136 of the Act, the judge has been
given ample power to check whether the fact is admissible and relevant or not. But since
admissibility of an evidence is subject to question of law so the judge is also bounded with
the provisions and the written laws for concluding what is admissible and what is not. There
are multiple powers given to the judge in order to check whether the evidence being given by
the parties would be relevant or not, if the judge thinks the facts are substantial for the
determination of the case, he will admit it. The author has tried to enlighten the fact that the
power given to a judge under Section 136 of the Act can be misused at times and it is
pertinent that certain guidelines are made to stop this arbitrary use of power by the judge.

Section 11 of the Act also deals with admissibility. In the case of Bibi Khaver v. Bibi
Rukha11, the court opined that collateral facts can be admitted as evidence only when it has
established itself as a conclusive evidence. Hence, all the facts that are considered to be
evidence may not be evidences. The burden of proof is on the opposite party to prove that the
evidence is inadmissible.

8
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1859.
9
Sris Chandra Nandy v. Rakhalananda, AIR 1941 PC 16.
10
Paridhi Selvan & Ms. Roja, “A Critical Study on Admissibility of evidence”, 120 IJPAM 1169, 1169-1181
(2018).
11
Bibi Khaver v. Bibi Rukha, [1904] 6 AIR 983 (BLR).

4
VALIDATION OF THE TOPIC

1. ADMISSIBILITY AND RELEVANCE UNDER THE INDIAN EVIDENCE ACT

The section 5-11 of the Act talks about relevancy of facts. Section 5 talks about the right to
produce evidence in a suit/proceeding. The evidence can be produced only in relation to the
existence/non-existence of facts in issue or the for relevant facts. Section 3 of the Act defines
relevant as;

“One fact is said to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of the act relating to the relevance of
facts.”

Sections 6-11 of the Act fully explains the Relevancy of facts. Section 5 strictly prohibits the
presentation of evidence besides for the relevant fact and fact in issue. These sections give the
picture of cause and effect which happens in all the proceedings. In civil cases, the fact in
issue arises when one party asserts something and the same is controverted by the opposite
party thereby pointing the needle towards the court to determine the issue by placing the
evidence for the same. In the case of Bishwanath Rai v. Sachidanand Singh 12, it was held
that these are the disputed facts which are taken up by the court in order to determine the suit.
On the other hand, in criminal cases fact in issue arise while formulating a charge upon the
accused that is when the prosecution is drawing up certain facts which constitutes an offence
against the accused. Moreover, the disputed facts cannot be decided without allowing the
parties to lead their respective evidence.

The categorical requirement to see whether something can be taken as an evidence is the
relevancy of the same. The admissibility of the evidence is always tested on the basis of the
truth value of the relevant facts.13 However, it can be probable that certain relevant facts are
also not admissible so in order to check the admissibility; firstly, the facts have to be relevant
and secondly, they should not be excluded by any law. On “Relevancy and Admissibility”,
Phipson14 clearly stated that Relevancy and Admissibility are not synonyms and it can be said
that all the admissible evidence is relevant but not all the relevant facts are admissible in the

12
Bishwanath Rai v. Sachidanand Singh, AIR 1971 SC 1949.
13
Graham B Roberts, “Methodology in evidence – Facts in Issue, Relevance and Purpose Australasian Legal
Information Institute” (1993).
14
PHIPSON ON EVIDENCE, 106 (15TH ed. 2000).

5
court of law. As given in the Ram Bihari Yadav’s15 case, the court was of the opinion that the
terms relevancy and admissibility have different legal implications so they can’t be confused
as synonyms. The basic difference between relevancy and admissibility is that admissibility
is based on law whereas the relevancy derives its root from probability and logic. Further,
another difference can be that it shows the cause whereas admissibility shows the effect. So,
it can be said relevant facts is a genus and admissibility a specie.16

2. FACTS IN ISSUE IN CIVIL PROCEDURE CODE, 1908 (Hereinafter referred to as

Section 5 of the Act, gives an explanation clause wherein it prohibits “any person to give
evidence of a fact which he is disentitled to prove by any provision of the law for the time
being in force relating to Civil Procedure”. In the civil cases the facts in issue are decided
under Order XIV (Framing of issues) of CPC. 17 The trial of a civil suit falls into two
categories, the first one is framing of issues and secondly hearing evidences advanced on
those issues. The CPC defines issues in Order XIV Rule 1 of CPC as material proposition of
fact or law which arises because of the affirmation of one party and denial by the other. The
meaning of material proposition is also provided in the same Order Rule 1 (2) which says that
material propositions are the propositions of law/fact which the plaintiff gives for suing the
other party and the defendant gives for his defense.

Now the question that arises here is that when will the issue be framed in a civil suit? Order
14 gives an answer to this as well and goes on to say that “At the first hearing of the suit the
Court shall, after reading the plaint and the written statements, if any, and 71[after
examination under rule 2 of Order X and after hearing the parties or their pleaders],
ascertain upon what material propositions of fact or of law the parties are at variance, and
shall thereupon proceed to frame and record the issues on which the right decision of the
case appears to depend”18. In the case of Sayeda Akhtar v. Abdul Ahad19, the Supreme Court
said that if the issue hasn’t been framed then the proceedings will not be vitiated if pleadings
of the parties shows that the issue exists and the parties have advanced evidence for the same.
The main foundation of the issues are the plaint and the written statement and the court can
still rule on an issue even when the same hasn’t been framed but the issue is relevant for the

15
Supra 8.
16
Supra 6.
17
Supra 3.
18
Order XIV Rule 1 (5) of Civil Procedure Code, No. 5 of 1908, INDIA CODE (1908).
19
Sayeda Akhtar v. Abdul Ahad, AIR 2003 SC 2985.

6
determination of suit. At times, it happens that the due to the fault of the parties various facts
are either stated incorrectly or ambiguously in the pleadings and therefore ample power has
been given to the court to elucidate the pleadings by different methods given under Orders X,
XI and XII of the CPC.

Does the court take a position on the contentions of the parties when it frames the issue? No,
the court is merely engraving the contours of the trial so that it is not held up by a challenge
on immaterial issues.20 a combined reading of Section 60, 64 and the first prviso of Section
165 of the CPC gives that only the admissible evidence has to be taken into account.21

3. FACTS IN ISSUE IN CRIMINAL PROCEDURE CODE, 1973 (Hereinafter referred to as

The court has the primary duty to exclude the irrelevant facts whether the party objectify to
the admissibility of the evidence or not. Now, in the old Criminal Procedure Code which has
been substituted by the new Code of 1973, the section 298 laid down a duty on the judge to
exclude all the inadmissible evidence even when the question of the admissibility was not
raised. As discussed earlier as well the charge constitutes the fact in issue and the necessity
of confining the evidence is stronger in criminal cases than civil.

The framing of charge under CrPC is important to regulate the criminal trial. Section 211 to
228 of CrPC deals with creation of charge. For the trial to be fair, a statement of accusation
should be given to the accused that is the accused must know about the accusations he is
being place under. If the information is not conveyed then the natural justice will be vitiated
and the trial will not be fair. In the case of SS Rout v. State of Orissa22, the court said that the
object of charge is the provide the accused with a notice which state what are the accusations
upon him.

The sections 211 to 214 of CrPC lay down what the charge must contain and then in Section
218 it goes on to say that every distinct offence must have a distinct charge. Section 211 and
212 states the content of the charge and the time and place where the alleged offence has
been committed. Section 213 of CrPC says that the manner in which offence has been
committed is to be there in the notice. Then in Section 215 and 464 of CrPC read together it
talks about the prevention of failure of justice when there is certain breach of rule and
consecutively the charge is formulated.
20
Makhanlal Bangal v. Manas Bhunia, AIR 2011 SC 5932.
21
R. & DHIRAJLAL, THE LAW OF EVIDENCE (24TH ed. 2020).
22
SS Rout v. State of Orissa, (1991) CriLJ 1595 (India).

7
CONCLUSION AND SUGGESTION

The fact in issue is therefore an important element when it comes to proceedings whether
criminal or civil. The rights and liabilities emanate from the facts when a material proposition
is affirmed by one party and denied by the other. there is no specific difference between facts
in issue under CPC and CrPC. Under both the proceedings, the only thing that differs is the
gravity of evidence. Where in criminal cases the degree of evidence is more, in the civil cases
it is less. Moreover, in criminal cases, the accused has to be notified about his alleged
offences before the trial so that the fair trial is not defeated.

The law of evidence has evolved over the years however the idea of giving the discretion to
the judge in order to decided whether the evidence is relevant and admissible is wrong. The
judge should give his decision based on the discretion that he has but he should rely on the
written laws and provisions given under the acts. The relevance of a fact as an evidence
should be on the basis of how important it is for the determination of the suit or proceeding
and should not be based on the mere discretion of the judge.

8
REFERENCES

1. ARTICLES
I. Graham B Roberts, “Methodology in evidence – Facts in Issue, Relevance and
Purpose Australasian Legal Information Institute” (1993).
II. Paridhi Selvan & Ms. Roja, “A Critical Study on Admissibility of evidence”, 120
IJPAM 1169, 1169-1181 (2018).
iii. Venancio D’ Costa, Astha Ojha, Gauri goel, “Relevancy and Admissibility: Two
sides of a Coin” MONDAQ, https://www.mondaq.com/india/trials-appeals-
compensation/924542/relevancy-and-admissibility-two-sides-of-a-coin (accessed
at 13.02.2021 4:13 P.M.).
2. BOOKS

i. R. & Dhirajlal, the law of Evidence (24th ed. 2020).

3. CASES
i. Makhanlal Bangal v. Manas Bhunia, AIR 2011 SC 5932.
ii. SS Rout v. State of Orissa, (1991) CriLJ 1595 (India).
iii. Sayeda Akhtar v. Abdul Ahad, AIR 2003 SC 2985.
iv. Bishwanath Rai v. Sachidanand Singh, AIR 1971 SC 1949.
v. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1859.
vi. Sris Chandra Nandy v. Rakhalananda, AIR 1941 PC 16.
vii. Bibi Khaver v. Bibi Rukha, [1904] 6 AIR 983 (BLR).
viii. Lakshmandas Chaganlal Bhatia v. State, 1968 (69) AIR 807 (Bom).
ix. Sabhapathi v. Huntley, AIR 1938 PC 91.