Section 138 — Power of High Court to require evidence to be recorded in English
The companion to § 137(3). A High Court may, by notification in the Official Gazette, direct that named Judges (or a class of them) shall take down evidence in English in appealable cases (1) — so the appellate court has a clear record. If a Judge is prevented by sufficient reason, he records the reason and dictates the evidence in open Court instead (2).
How to read Section 138
The power (1)
A High Court, by Gazette notification, may direct a named Judge — or any Judge of a stated description — to record evidence in English.
Only appealable cases
It bites in cases in which an appeal is allowed — an English record helps the appellate court read the evidence faithfully.
The fallback (2)
If a Judge is prevented by sufficient reason, he records the reason and has the evidence taken down from his dictation in open Court.
The bare Act
(1) The High Court2 may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.
(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.
1 For § 138, as applicable to Assam, see the Civil Procedure (Assam Amendment) Act, 1941 (Assam 1 of 1941), s. 2.
2 “High Court” subs. by Act 4 of 1914, s. 2 and Schedule, Pt. I, for “L.G.” (Local Government).
In short: a High Court can require certain Judges to record evidence in English in appealable cases, so the record reads clearly on appeal — and a Judge who genuinely cannot must instead note why and dictate the evidence aloud in open Court.
→ § 138 complements § 137(3): where § 137 allows court writing in English, § 138 lets the High Court require the evidence itself in English — but only for specified Judges and appealable cases, with a practical open-Court dictation fallback. (The reference to “L.G.” was changed to “High Court” in 1914; Assam has its own version.)
Key terms decoded
The formal mode by which the High Court gives this direction — published, so it is public and binding.
The High Court may name particular Judges, or identify them by a class / description (e.g. all Judges of a certain grade or place).
Appealable cases. A faithful English record serves the appellate court, which may not share the trial court’s language.
The evidence is taken down in English as the rules prescribe — not in any informal way.
A genuine obstacle to the Judge personally recording in English — e.g. unfamiliarity or practical difficulty.
The fallback: the Judge dictates the evidence, taken down in writing, in open Court — transparency is preserved, and he records the reason for the course taken.
The picture — an English record for the appellate court
§ 138 looks ahead to the appeal: by putting the evidence of designated Judges into English in appealable cases, it gives the appellate court a record it can rely on — while the open-Court dictation fallback keeps the process workable and transparent.
Part by part — the two sub-sections
Sub-section (1) is a targeted power: not every court, not every case — the High Court picks the Judges and the cases (appealable ones) where an English record matters most.
The High Court may, by notification in the Official Gazette, direct…
The direction is the High Court’s, given formally by Gazette notification — not an informal instruction.
…with respect to any Judge specified in the notification, or falling under a description set forth therein…
It may target a named Judge or any Judge answering a stated description — flexible, but specific.
…that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.
Confined to appealable cases, the evidence is recorded in English, in the prescribed manner — a reliable record for any appeal.
Sub-section (2) is the safety valve: the duty in (1) is not absolute. A Judge who genuinely cannot comply must be open about it — recording the reason and dictating the evidence in open Court.
Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1)…
The (1) duty yields only to a sufficient reason — a genuine obstacle, not mere preference.
…he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.
He must note why, and then dictate the evidence — taken down in writing — in open Court, keeping the record honest and public.
How the two sub-sections flow
The direction — and the honest exception
Connected provisions
Section 138 is the evidence-side companion of § 137: where § 137(3) allows court writing in English, § 138 lets the High Court require the recorded evidence in English for appealable cases — both serving clarity, especially on appeal.