Section 167 of the Indian Evidence Act 1872: Doctrine, Jurisprudence and Contemporary Relevance

Section 167 of the Indian Evidence Act 1872: Doctrine, Jurisprudence and Contemporary Relevance

Introduction

Section 167 of the Indian Evidence Act, 1872 (hereinafter “IEA”) embodies an important curative principle: a judgment shall not be reversed or a new trial ordered merely because inadmissible evidence was received or admissible evidence was erroneously rejected, provided the remaining record is sufficient to sustain the decision, or the excluded evidence would not have altered the result[1]. By shifting the appellate focus from procedural niceties to real prejudice, the provision balances two competing values—accuracy in fact-finding and finality of litigation. Although drafted in broad terms applicable to “any case”, the provision operates in tandem with sector-specific correctives such as Section 99 of the Code of Civil Procedure, 1908 (“CPC”) and Section 537 of the Code of Criminal Procedure, 1898 (“old CrPC”; now Section 464 & 465 of the CrPC 1973), thereby permeating both civil and criminal adjudication.

Legislative Text and Conceptual Foundations

The text of Section 167 is deceptively concise:

“The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.”

Key elements emerge:

  • “Ground of itself” limitation – the error must be shown to have caused failure of justice before appellate interference is warranted.
  • Two-limb test – (a) sufficiency of remaining evidence; or (b) immateriality of excluded evidence.
  • Temporal locus – the assessment is undertaken by “the Court before which such objection is raised”, empowering appellate or revisional fora to conduct an independent re-appraisal.

The provision concretises the maxim de minimis non curat lex in evidentiary context and complements Section 165 IEA, which confers plenary fact-discovering powers upon the Judge. While Section 165 facilitates admission of even irrelevant questions for exploratory purposes, Section 167 prevents the appellate process from being derailed by the residual traces of such explorations—so long as the verdict is otherwise sustainable.

Early Jurisprudence: Extending the Section to Criminal Trials

Imperatrix v. Pitamber Jina (1877)

The Bombay Full Bench squarely held that Section 167 “is applicable to criminal as well as to civil cases” and that the expression “Court” embraces appellate courts[2]. This expansive reading equipped revisional courts to review the entire record and decide whether the error “ought to have varied the result”.

King-Emperor v. Tirumal Reddi (Madras, 1901)

Although the Madras High Court found Section 167 technically inapplicable to an assessor’s opinion (which is not “evidence”), it nevertheless treated the section as an analogical guide while invoking Section 537 CrPC to cure procedural irregularities[3]. The judgment thus forged a conceptual bridge between Section 167 IEA and the criminal procedure doctrine of “no failure of justice”.

Crown Prosecutor v. C. V. Ramanjulu Naidu (Madras, 1943)

In refusing to speculate on the impact of an unrecorded witness whose examination had been wrongly refused, the Court observed that Section 167 cannot be mechanically applied where the appellate court is “in no position to predict” the value of the excluded testimony[4]. This cautious stance underscores the fact-specific nature of the prejudice enquiry.

Doctrinal Consolidation by the Supreme Court

Ramkishan Mithanlal Sharma v. State (1954)

The Court read Section 167 IEA and Section 537 CrPC in pari materia, holding that appellate interference is justified only if the misdirection or evidentiary error has “occasioned a failure of justice”[5]. The judgment harmonised the civil-criminal divide by adopting a uniform “substance over form” approach.

Municipal Corporation of Bombay v. Motilal Javharmal Bafna (1988)

Quoting Lord Macmillan in Abdul Rahim v. Emperor, the Bombay High Court reiterated that the legislative intent of Section 167 is to prevent successful parties from being “harassed by new trials” on the basis of technical errors unless substantial injustice is demonstrated[6].

Section 167 in Civil Litigation: Decrees, Documents and Presumptions

The Patna High Court’s decision in Ram Lakhan Upadhya v. Jai Upadhya illustrates Section 167 in the domain of documentary admissibility. Even if a non-inter partes decree of 1877 had been inadmissible, the Court held that reversal was unwarranted because the finding of possession was independently supported by substantial evidence[7]. Similarly, the Madhya Pradesh High Court in Mehtar v. Collector, Durg excluded un-proved documents at the appellate stage by invoking Section 167 while nonetheless affirming the lower court’s conclusion based on properly admitted comparables[8].

These decisions confirm that Section 167 serves a dual purpose—(i) a shield against the consequences of inadvertently relying on inadmissible material, and (ii) a sword enabling appellate courts to excise tainted evidence and reassess the case de novo.

Interplay with Section 165: Judicial Fact-finding Powers

Delhi High Court jurisprudence (Hardip Kaur v. Kailash, Mayur Arora v. Amit Pange, Ved Prakash Kharbanda v. Vimal Bindal) repeatedly emphasises the judge’s “plenary powers” under Section 165 IEA to ask any question to unearth truth[9]. However, the proviso to Section 165 mandates that the ultimate judgment must rest only on “facts declared by this Act to be relevant, and duly proved”. Where a trial judge, in the heat of inquisitorial engagement, admits marginally irrelevant material, Section 167 operates as a post-hoc safety-valve at the appellate stage, provided that the residuary record suffices for the decision.

Failure-of-Justice Standard and Comparative Statutory Correctives

  • CPC s 99 – mirrors Section 167 by disallowing reversal of decrees for “any misjoinder, non-joinder or any error, defect or irregularity” not affecting the merits.
  • CrPC 1973, ss 464-465 – successor to Section 537 (old CrPC); employs nearly identical language of “failing justice”.
  • Constitutional Perspective – Article 136 jurisprudence (e.g., Ganduri Koteshwaramma) reflects a similar ethos: courts should mould relief to further substantive justice rather than be shackled by procedural rigidity.

Contemporary Challenges

Digital Evidence and Bulk Data

With the proliferation of electronic records, disputes over admissibility (Sections 65A & 65B IEA) have become frequent. Where certification defects occur, Section 167’s philosophy cautions against automatic reversals if uncontaminated evidence—such as primary oral testimony corroborated by metadata—independently sustains the verdict. Nevertheless, because digital footprints often form the sine qua non of prosecution, appellate courts must undertake a rigorous prejudice analysis before applying the proviso.

Reverse Onus Statutes

The Madras High Court in G. Raja v. M. Lakshmanan (2019) underscores that in offences with presumptive clauses (e.g., Negotiable Instruments Act, Prevention of Corruption Act), the standard of proof on the accused is “preponderance of probabilities”[10]. Where improper admission of evidence shifts this delicate balance, Section 167 must be applied with circumspection lest the statutory presumption be rendered illusory.

Critiques and Academic Commentary

Scholars have questioned whether Section 167 inadvertently dilutes evidentiary discipline by encouraging a “let-it-in first, scrutinise later” mindset. Yet empirical analysis of appellate decisions indicates that courts apply the provision sparingly, often ordering retrials where the excluded evidence is potentially exculpatory (Benoyendra Chandra Pandey v. Emperor, 1936) or where the admitted material bore heavily on credibility determinations (Surendra Dinda v. Emperor, 1945). The jurisprudence thus reveals a calibrated approach that respects both procedural safeguards and the overarching quest for truth.

Conclusion

Section 167 of the Indian Evidence Act anchors a pragmatic doctrine of benign neglect toward harmless errors in evidentiary rulings. Over nearly a century and a half, Indian courts—colonial, provincial and national—have consistently treated the provision as a curative tool rather than a carte blanche. By demanding a demonstrable “failure of justice”, the section reinforces the twin pillars of the legal system: procedural fairness and substantive accuracy. In an era of complex digital evidence and expanding judicial activism under Section 165, the measured application of Section 167 remains indispensable for maintaining equilibrium between meticulous adherence to evidentiary rules and the judicial imperative to decide cases on their real merits.

Footnotes

  1. Indian Evidence Act 1872, s 167.
  2. Imperatrix v. Pitamber Jina, (1877) Bom HC (Full Bench) (9 Bom H.C.R. 358).
  3. King-Emperor v. Tirumal Reddi & Ors., 1901 SCC OnLine Mad 76.
  4. Crown Prosecutor, Madras v. C. V. Ramanjulu Naidu & Ors., 1943 SCC OnLine Mad 260.
  5. Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104.
  6. Municipal Corporation of the City of Bombay v. Motilal Javharmal Bafna, 1988 SCC OnLine Bom 120.
  7. Ram Lakhan Upadhya v. Jai Upadhya, AIR 1929 Pat 749.
  8. Mehtar & Anr. v. Collector, Durg, 1974 MP LJ (NOTES) (quoting Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255).
  9. Hardip Kaur v. Kailash, (2012) Delhi HC; Mayur Arora v. Amit Pange, (2010) Delhi HC; Ved Prakash Kharbanda v. Vimal Bindal, (2013) Delhi HC.
  10. G. Raja & Ors. v. M. Lakshmanan, 2019 SCC OnLine Mad 8013.