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Whether Evidence Of Witness Is Admissible To Whom Oath Is Not Administered?


The oath, perhaps the oldest means for encouraging truthful testimony, forms a link between court proceedings and religious belief since, in its usual form, the witnesses swear by Almighty God that they are speaking the truth. Though the effectiveness of such an act has certainly diminished in secular societies, this appeal to God has for centuries been considered the surest means of obtaining truth.

There are two kinds of oaths, the preliminary and the subsequent. In Anglo-American practice the witness is sworn in before testimony. The role of the oath in the American legal system is an interesting one. Its function with respect to witnesses in the courtroom is several-fold. The oath is felt to be a deterrent to falsehood because the witness must commit himself/herself to truth-telling in advance of hi/her testimony.

This involves various types of internalized response in that the witness swears to his/her God that he/she will tell the truth as he/she sees it. The deterrent is solidified by the oath's second function: the provision of an occasion, whereby, a witness may be tried for perjury should it be demonstrated that he/she failed to tell the truth after promising to do so.

Thus administration of the oath serves not only to warn but also to hold over the head of the witness his/her own sacred assurance that he/she would speak only the truth. The third function of the oath lies with the credence it lends to what its bearer has to say. An individual is seldom allowed to testify in Court without first taking an oath (or affirmation), and it is doubtful that many jurors would credit any validity to the challenged testimony offered by a witness who had refused to do so.

A fourth characteristic of the institution of oath-taking lies in the varieties of respectability and self-satisfaction it provides the witness by furnishing an occasion for conformity. In this connection, the manner in which the oath is administered is thought by many to influence the extent to which people will feel that society desires the oath to be honoured.

Under German and other Continental procedures, the swearing-in may occur after testimony as well. The latter method allows the judge to use his own discretion in individual cases as to whether or not the witness should be ordered to swear. In current German practice, very few witnesses are sworn in for testimony in civil proceedings, whereas in criminal proceedings all witnesses have to swear.

Some continental European countries allow witnesses who object to oaths to substitute a solemn affirmation, and Denmark has abolished all oaths in legal procedures. The oath of a witness does not have the formal effect of binding the judge or the jury. They must evaluate it and the testimony freely.

History of Oath

  • In Mughal’s period, when a King used to act as a Judge to resolve any issue then witness was bound to take an oath by putting a hand on his/her religious book. For example, a Hindu used to place his/her hand on Gita or a Muslim places his/her hand on the Quran while stating anything in the proceedings, etc
  • Earlier, it was believed that society is extremely loyal towards God and their religion. So, they will only speak the truth while taking an oath of their religious book.
  • But, this custom was struck down by the British Government in 1873 with the introduction of the uniform system. (Indian Oath Act, 1873)
  • Notwithstanding, Indian Oath Act 1873, Bombay High Court continued this custom till 1957.
  • Now, an issue was raised by the 28th Law Commission Reports that people who do not believe in God can lie even after taking an oath to religious books.
  • By considering this issue, The Oath Act of 1969 came into existence.

The Oaths Act, 1969

This Act does not state anyone to take an oath by putting a hand on the religious book. After the introduction of this Act, the custom which was continuing from the past was completely stopped in the judicial proceedings. The Oaths Act, 1969 (Act No. 44 of 1969) dated 26th December 1969 is the Act of Parliament which was enacted to consolidate and amend the ‘Judicial Oath’ and for other relevant purposes. This Act extends to the whole of India.

According to Section 2 of this Act, it does not apply to proceedings before Courts Martial or to oaths, affirmations or declarations by the Central Government for members of the Armed Forces of the Union.

The relevant provisions as to the taking of oath by a witness and effect of its commission on the admissibility of evidence of a witness are provided in Sections 4 and 7 of the Oaths Act, 1969, which are re-produced as under:

4. Oaths or affirmations to be made by witnesses, interpreter and jurors.:
  1. Oaths or affirmations shall be made by the following persons, namely:

  1. all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
  2. interpreters of questions put to, and evidence given by, witnesses; and
  3. jurors:
    Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.
  • Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

  • According to Section 5 of the Oath Act, 1969, a witness, interpreter or juror may, instead of taking an oath, make a statement.

    Section 7 of the Oaths Act, 1969 reads as under;
    7. Proceedings and evidence not invalidated by omission of oath or irregularity. -No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.

    According to Section 7 of the Oath Act, 1969, no omission:

    1. To take an oath, or
    2. Make any claim, and
    3. Not to replace any with any of them, and
    4. Any irregularity in the administration of any oath or affirmation or in the form in which it is administered will invalidate any procedure or render any evidence inadmissible, with respect to which such omission, substitution or irregularity occurred, or that affects the obligation of a witness, to tell the truth.

    Persons giving evidence bound to state the truth

    According to Section 8 of the Oath Act, 1969, any person who presents evidence on any subject before any court or person authorized to administer oaths and statements shall be required to declare the truth on said subject. After taking an oath, the witnesses are bound to state only the truth, nothing but the truth.

    The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken. The proviso quoted above must be read along with Section 118 of the Indian Evidence Act, 1872 and Section 13 of the Oaths Act, 1969.

    Section 4 of the Oaths Act, 1969 is inoperative, however, Section 7 of Act provides that no omission to take any oath or make any affirmation and no irregularity whatsoever, in the form in which any of them is administered shall invalididate any proceeding or render inadmissible any evidence, whatsoever.

    The aforesaid provision is unqualified in its term [Mohd. Sugalesa Vs The King, AIR 1946 Privy Council 3] and applies to all cases of irregularity, whether accidental or otherwise. Accidental means absence of oath by the mistake of Judge.

    Chapter IXth of the Indian Evidence Act, 1872, consisting of seventeen sections spreading from Sections 118 to 134 deals with the (i) competency, (ii) compellability, (iii) privileges, and (iv) quality of witness required for the judicial decision.

    Distinction between the expression; Competency and compellability

    Competency of a witness may be distinguished from his compellability and from privilege. A witness is said to be competent when there is nothing in law to prevent from being sworn and examined he/she wishes to give evidence. Though the general rule is that a witness who is competent is all compellable, yet there are cases where a witness is competent but not compellable to give evidence as for example sovereigns and ambassadors of foreign states.

    It is also noteworthy that in case of [Rameshwar Vs State of Rajasthan, AIR 1952 SC 542], the Hon’ble Supreme Court of India held as under:
    "….An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of Indian Evidence Act, 1872. Every witness is competent unless the Court considers he/she is prevented from understanding the questions put to him/her, or from giving rational answers by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

    It will be observed that there is always competency in fact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act, 1969 adds additional grounds of incompetency it is evident that Section 118 must prevail.

    Now the Oaths Act, 1969 does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him/her the duty of speaking the truth, but in view of Section 118 of Indian Evidence Act, 1872 these matters only touch credibility and not admissibility.

    Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the Judge considers otherwise the witness is competent.

    Though it is desirable that Judges and Magistrates should always record their opinion, whether the Magistrate or Judge really was of that opinion can be gathered from the circumstances when there is no formal certificate.

    In [14 Beng. L.R. 294 F.N] & [(1907) 10 O.C. 337], their Lordships said:
    "It is not to be supposed that any Judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."

    Therefore, the evidence of a witness which was recorded without administering oath to him would not become inadmissible merely because of that fact, however, this may raise a question about the credibility of his/her evidence. But even the question of credibility of his/her evidence has to be decided by considering his/her evidence as a whole.

    Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
    Email: [email protected], [email protected] 

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