If any evidence put forth by any of the parties is not properly admitted or rejected on any ground, then in that case the party affected cannot ask for new trial or retrial.  However, when the court on being brought to notice finds that such rejection or improper admission can lead to injustice than in that case it can allow the appeal. This can be interpreted from the section which is discussed below:

“No new trial for improper admission or rejection of evidence. —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.”[1]


Under the English law where there was improper admission of evidence or rejection of evidence new trial would be allowed by the court unless it was clear that the result was not affected by the evidence, this is position has been reversed by the apex court. Now new trail or retrial is not allowed unless there is significant injustice to any of the parties involved in dispute.[2]  Section 167 is applicable to both criminal as well as civil proceedings. A single judge bench of Patna High Court has held that the section is applicable on second appeal in civil cases and on jury in criminal cases, it is not applicable to first appeals [3]


In Shyam Singh v Deputy Inspector- General of Police    the officer who was investigating the case gave an opportunity to the petitioner of cross examine witness to which he declined, the witness has given a documentary evidence   which also had a health report of the petitioner. The petitioner did not get the chance to cross examine the investigating officer.  The allegation on the petitioner was that he had remained there after the expiration of the leave which he has got from the, this point raised against the defendant was not denied by the defendant, therefore it was on the petitioner to show or give sufficient reasons for his absence from the duty. The petitioner did not do anything which has showed that he has done anything in that direction. He did not take any opportunity to call the investigation officer for the re -examination. Court held that in theses circumstance s retrial cannot be allowed as even if the petitioner was allowed to question the petitioner then also it would not have affected the result. [4]



 When the prosecution has mentioned an individual as a witness and it is not interested in examining the witness and later drops that witness from the list then in that it cannot be said that the evidence cited by the prosecution has been rejected, rather there was never presentation of any kind of evidence by the said witness.

 The test which is   laid down to examine the whether the witness is relevant or not his that whether the witness has knowledge or has seen something which is important for deciding the case. Whether he can provide   something on the basis of which justice can be dispensed by the court. If a party is unwilling to appear and does not have anything reasonable to provide to the court then in that case as witness then the improper admission and rejection cannot become ground for retrial.[5]


 The right time to question admissibility of evidence is the time when it is presented for the first time then in that case the party which has presented the evidence is provided with the opportunity to prove as to why their evidence should be accepted in the Court.[6] If a party falters in raising its point against erroneous omission of inadmissible evidence than in that case it would not be relevant. As it is clear that inadmissible evidence cannot be allowed to be binding.  In a case where there is objection regarding rejection of an evidence the party which has objected should be able to show as what prejudice can be caused it by such rejection or admission of evidence[7]


The word which are used in the section are ‘reversal of any decision’ depicts that the section is applicable in case of appeal as well. Order 41, r 23 CPC provides that the suit shall be remanded, the whole suit in that is reinitiated   on the basis of valid reason. ORDER 47 of CPC provides that court can review and judgment, under this situation the court can rehear the parties as to why they should review the judgement and once they are satisfied with the reason given by the parties then in that case it can review the judgment and decide accordingly.[8] Review differs from the concept of appeal significantly  under the former  the same judge reconsiders the same case on the   same  question while in   latter the   case is initiated before a newer  body which has the capacity to decide  upon the   case . There evidence produced should be cogent enough in order to avail the tool of review, a new trial in the cannot be allowed in the case.


In the case of   Mohur Singh v Ghuriba it was held that the it the duty of the court to which the appeal comes first to decide upon the question of fact and law which have been improperly admitted. The court should not admit those evidence without which there would not be any significant effect on the proceeding. The court can after the proceedings chuck out the evidence which it thinks is not relevant while deciding the case. After this the court has to consider whether there are any sufficient evidences on the basis of which   decree can be passed by the court.

The party which has lost the suit might go on to raise   argument that had it known that the evidence was not sufficient then it would have presented sufficient evidences. This objection was answered in Maharaja Koowar vs Nund Lal Singh   where they held that such thing cannot be allowed a party has to prove all the relevant evidence during the trial.

But there are cases where fact relevant in itself has been allowed, in a manner which cannot be allowed   under law for example in situation where contents of a document has been admitted without the original copy of the said document. The rule in England is that if the opposite party does not raise any objection at the first instance then it cannot raise objection at subsequent stage which is at the stage of appeal, this view has been affirmed by supreme court in many case where it has held that if the opposite part has not raised any objection about the evidence then in that case it cannot be allowed to raise at the appellate stage.

 In elections appeal supreme court cannot overlook the trial judge’s opinion as he has better opportunity of hearing the witnesses.


If the court of appeal is of the opinion that the evidence which has been rejected or improperly admitted has the tendency to vary the decision in the favor of the other part then under those circumstances the court can allow admission of the evidence which was once rejected by the   court at lower level. The court also has the power to proceed under O 41, r 27 in the case of production of additional evidence.[9] The superior court will not intervene even if the evidence has been rejected in the wrong way provided that other evidences were credible enough to render the decisioning the favor of the other party. Appellate court will not   allow evidences which has the tendency to affect the testimony of the witness without calling the witness to contradict it. Additional evidence should not be allowed until there is defect in it  When a party has not produced certain document before trial court then it cannot be allowed to produce before apex court. The discretion to accept additional evidence is not absolute, there are limitation imposed oon this power by the virtue of order 41, R 27. if the admission of additional evidence is wrongly admitted done against the law then in that case the decision can be overturned if the additional evidence.


Whenever there is wrongful admission or wrongful rejection of any evidence and this may become ground for second appeal. Whenever a court decides on a material then it could be partially affected or fully, no one can determine how the court was affected by the irrelevant material used by the court to come at a conclusion. On the second appeal the court has no power of   sufficient evidence. It can only deal with the question of law High Court cannot say that remaining evidence is sufficient to warrant finding of court at lower level.If the evidence is sufficient to satisfy the issue of fact then the court can go ahead with that. The Court on second appeal can give different opinion from the courts at lower level, in spite of the fact that proper issues have not been framed.

 Any document which has been used as an evidence against another party has to be mentioned in the judgement. Mere mention of the document in judgement does not mean that the judgement is completely based on that document.  Reliance on inadmissible evidence cannot be a ground for second appeal. The High Court on second appeal cannot accept findings of lower Court if there has been some kind of error by the lower court while relying on inadmissible evidence. It cannot be relied upon by the court. If the evidence is inadmissible and has been relied upon then the court can order to remand the case to appellate court with direction of remanding the case for discussion after chucking out the said document.

                                                PROCEDURE IN CRIMINAL CASES

It has been already discussed that this section is applicable in both civil and criminal cases. The wording of the section is such that it has included criminal trial as well. The section is applicable on the High Courts as well when the court exercises the power under Cl 26 of letter patent. The appellate court has the power to send the accused for retrial. High Court has the power to exercise any power which has been provided to it under the law. Section 465 is somehow similar to the section 167 as the principles are quite similar. Under section 465 it has been laid down that no finding, sentence, order can be altered until and unless there has been gross injustice. Whenever an evidence is rejected by court then the part aggrieved has to show that not accepting the said evidence would lead to gross injustice.

Improper admission of evidence cannot become a ground for reversal of a decision rendered by court provide that there are other evidences to justify the decision. In a case it was held that where it is difficult to differentiate between   the evidences produced, new trail was ordered in the said case.

It was contended that the accused did not raised any objection at the stage of trial, and such objections should not be allowed at the present stage. It was also contended that irrelevant fact cannot be made relevant. It was contended that under section 465 of the code the objection should have been raised at the initial stage, it should not be allowed. However, in a case where there has been gross injustice then such objection can be allowed by the court. A sentence or order passed under section 313 CrPC cannot be reversed or appealed in a court of appeal. It was also contending that under section 167 of IEA a rejection or improper admission of an evidence cannot be a ground for new trial or retrial.

The aggrieved party has to satisfy the court that there has been gross injustice to the party them only then a new trial can be allowed.

 Receipt of the evidence which is inadmissible under section 162 CrPC is not harmful for the party, when the said case comes before a court of appeal then that court has to look at the fact that whether such receipt of evidence has tendency to affect the mind of jury, so that they might arrive at different conclusion, the fact that prejudiced is caused or not has to be considered by the judge. In a case Supreme Court directed the case to high court for retrial and gave some directions as to how the decision of supreme court has to be looked into while deciding the case. If there is misdirection due to which there has been injustice. In that case the Court will take the matter in its hand and decide accordingly after considering the whole case from the beginning.

There is a great controversy regarding the power of the appellate court to review the decision give  by a jury , where the said jury has committed some error due to misdirection of the judge. On one hand it is contended that the accused sentence should be decided by the jury itself and  there should be no power in the hand o appellate court . However, on the other hand it is contended that the it is the duty of the court to ensure that there is no injustice due to such mechanism, therefore the court should   review the decision rendered by a jury

The court is entitled to review the decision of jury, if the court finds that some kind of erroneous decision has been made by a jury then in that case it can take the matter and decide the case from the scratch. The purpose behind this section is that person should be convicted for offence which he has not committed and in the same way a person who has committed should not be allowed to get away from the clutches of judiciary.

 The appellate court has the power to substitute the decision given by a jury on the account when the court finds on the basis of some credible evidence that the jury has given erroneous decision. After following all the procedural requirements for the same purpose, facts and evidence everything has to examined from a neutral perspective and such thing cannot be done without the presence of the witness. If the court is satisfied a new trial can also be ordered   by the judge. if there is wrongful exclusion of any witness then in that case there could be problem as to application of this case as the judge cannot be sure as to what could important things the witness could have said in the court, on the basis of which he could have reached at a particular decision in the said case


Appellate court has the power of appreciation of evidence under the section 107 CPC, these powers are similar to that of trial court. when aggrieved part appeal then the court has jurisdiction over whole facts of the case. Generally, there is tendency that appellate court does not interfere with finding of the trial court judge on the ground he has the better opportunity of examining the witness. While doing so there has to be a balance between the power of the court review the recorded facts and to draw an interference from it with the power of trial court judge to who has the opportunity of observing the witness closely.

The view of the trial judge should not be lightly taken by appellate court and therefore it should not be disregarded. But there could be circumstances where on face of the evidence it is evident that the   court of appeal need to analyze the evidence in the same way as the trial court judge does.

 Allahabad High Court stated in a case that in India not much importance should be given to the demeanors of witness as in India witnesses are not examined regularly. It is not open for the High Court to interfere with the findings until there is grave injustice to the party.

When appeal is raised then the duty is on the prosecution to prove that the judgment of the trial court is correct. On this stage also, it is presumed that the accused it not guilty and appellate court has to satisfied to acquit or held him guilty. The appellate court has to accept the findings of the   lower court until there is some grave error committed by the trial court judge. A court of fir appeal has to take into account the evidence on record along with the arguments of the both side after which it will apply its mind to the findings of the court. Before reversing any finding of the court, court has to be satisfied about that the finding of the trail court was erroneous.


In the case of acquittal, the power of High Court is similar to that in the case of conviction. But there are two point that has to be considered one is that presumption of the innocence of the accused is continued till the end and second one is that the value has to be given to the view point of the session judgement when he arrived at the particular judgment as he had the better opportunity to observe the witness. The high court as full power to asses all the evidences and reach on any particular conclusion after applying its mind. But there are certain things which has to be kept in mind while exercising the said power and these things are:

  1.  The view of the trial court about the credibility of the witness
  2. Presumption of innocence.
  3. Benefit of Doubt to accused

There should be solid reason to declare the findings of the trial court wrong there has to be presumption that the judicial officer has not committed any kind of error and he has exercised the power in a justified way. Suspicion about credibility of the witness cannot be a ground for the reversal of the judgment of the court. The High Court can reconsider the evidences against for arriving at any conclusion.

In a situation where there is another view the appellate court will not interfere in that situation. but there could be reversal off acquittal if the reasoning given by the trial court is not satisfactory and is full of errors.

The power of   appellate court in the context of acquittal is similar to that of conviction but it differs in the way it is approached.


When the appeal is admitted under the art. 136 of the constitution, the whole case is at large and the appellant can claim on all the facts and can raise any point that was unwarranted in the e trial court or apex court. The exercise of the jurisdiction of Supreme Court is not acceptable in Criminal cases but is accepted under special circumstances. The grant of special leave does not mean that parties will argue whole of the case. All the findings of the court cannot be contested by the parties, error of fact or law committed by high court is not allowed . But can be allowed in case of grave injustice.


The author in the research paper has researched on section 167 of IEA under which there   prohibition on initiation of trial or retrial on the ground rejection of evidence or improper admission of evidence. The section has been grafted in the act to protect the vexatious claims and save the time court which can be devolved into dispensing justice in other matters. The research question before the researcher in the question was that whether there is similarity in the section with the section 465 of CrPC and section 99 CPC, the researcher after the research has arrived on the conclusion the three is similarity among these provisions. Rejection of a evidence does not make a significant difference until there has been grave injustice to the aggrieved party.

The second question was whether objection can be raised at the appeal stage answer of this question was no, objection has to be raised at the first stage itself after which   party cannot  be raise any objection as to the admissibility of the  evidence. The appellate court cannot send back a case to retrial on the basis of rejection of evidence until there has been severe injustice to the party. Therefore, it can be concluded that retrial or new trial is allowed in the case where there has been grave injustice to the party.

[1] Sec 167 IEA

[2]Ilford v  Hancock AIR 1940 PC 128

[3]Bhabendra v Ajodhia AIR 1934 Pat 605

[4] AIR 1965 Raj  140

[5]  Narain v  State of Punjab  AIR 1958   SC 484

[6]Jahangir v Sheoraj Singh AIR 1915 All 334

[7]Kishan Lal v Sohan Lal  AIR  1955 Raj 45

[8]  CPC

[9] Daji  v Sukhram  AIR 1914 Bom 253

Aishwarya Says:

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