Understanding Section 138 of the Code of Civil Procedure, 1908: The Power of the High Court to Mandate Recording Evidence in English

Section 138 of the Code of Civil Procedure, 1908 (CPC) bestows upon the High Court the power to prescribe the manner in which evidence is recorded in civil proceedings. This task can be quite intricate and demands thorough scrutiny. That’s why our team of legal experts at SimranLaw has set out to break down this complex issue. Our intent is to deepen your comprehension of this section and its implications, providing you with insights drawn from our extensive experience.

What Does Section 138 Entail?

Section 138 of the CPC primarily deals with the language in which evidence is recorded during court proceedings. This section empowers the High Court to determine that all evidence in its jurisdiction should be taken down in English. However, it’s noteworthy that the High Court may still authorize any Judge or officer of a Court subordinate to it to record evidence in a vernacular language under very particular circumstances which it deems suitable.

The Abstract Language of Law

Legal terminology is notoriously abstract, often described as its own unique dialect. The language used in legal proceedings is complex, encompassing not just legal terms and phrases but also incorporating a specific syntax and grammar. When testimony is translated from a vernacular language into English, there is a risk of losing nuances, particularly in Indian courts where English isn’t the first language for majority of litigants and witnesses.

The Power of High Courts as per Section 138

The High Courts hold significant power under Section 138 of the CPC, as these bodies are given liberty to dictate the language in which evidence is recorded. Courts can mandate that all evidence taken in their jurisdiction must be recorded in English.

Although, the High Court can still grant certain exceptions. For instance, it can permit a judge or officer of a court subordinate to it to record evidence in a vernacular language, provided that there are logical reasons for it and that it believes the best interests of justice would be served by doing so. This highlights the broad powers of discretion vested in the High Courts under Section 138 of the CPC.

Case Laws Interpreting Section 138

Case Law 1: Balbir Singh v. Presiding Officer

In the case of Balbir Singh v. Presiding Officer, the Punjab & Haryana High Court held that Section 138 of the CPC gave High Courts unlimited discretion to order that evidence be recorded in English in any given case. It further held that if a litigant was not conversant with English, then a translator could be provided to ensure justice was done.

Case Law 2: Panchanan Pal v. State of Jharkhand

In Panchanan Pal v. State of Jharkhand, the Jharkhand High Court reaffirmed the discretionary powers of the High Court under Section 138. It opined that in order to ensure justice, it is important that the records should be maintained in a language which is comprehensible by the highest appellate authority.

Case Law 3: Reghubir Saran v. State of Bihar

The landmark judgement of Reghubir Saran v. State of Bihar emphasized on the fact that if the trial is conducted in a language unfamiliar to the accused, it would be violative of the principles of natural justice. Therefore, it is imperative for the High Court to ensure that justice isn’t compromised due to language barriers.

Thus, Section 138 of the CPC is an essential provision that empowers the High Court to ensure that proceedings are carried out in a manner which is just, equitable and comprehensible to all the parties involved. It is a provision which ensures transparency and fairness in judicial proceedings.

In essence, Section 138 of the Code of Civil Procedure, 1908 underscores the inherent discretionary powers of the High Court to mandate recording of evidence in English, while adaptable to circumstances deemed fit by it. It forms an integral part of the constitutional duty of the judiciary, highlighting a key aspect of delivering justice.