Concept of Public document under the Indian evidence act, 1872

CONCEPT OF PUBLIC DOCUMENTS UNDER THE INDIAN EVIDENCE ACT, 1872.

INTRODUCTION

Author: Akanksh Deekonda, NLIU-Bhopal

Meaning of “document”

Section 3 of the Evidence Act, “text” refers to any question that is recorded or represented through methods for documents, estimates, or tests of some material, or by more than one of such methods suggested to be used or that may be used to record the question. “Paper, written words, lithographs, photos, a diagram or design, gravure on a metal plate or stone are recorded.[1]

Evidence is classified into two kinds. The first one is the primary evidence and the second one is secondary evidence.

The “Primary Evidence”

Primary evidence is specified in section 62 of the Indian Evidence Act which states that the primary evidence is the best available evidence of the presence of an item or fact since it is the original record or the true source of evidence. Primary testimony varies from secondary testimony and is a duplication or a substitute for it. If an individual has the primary evidence, then that person will present it in court as evidence. The group can consequently offer a credible alternative if primary evidence is not available due to the lack or failure of the same.[2]

The “Secondary Evidence”

Secondary evidence is the facts duplicated from a single study or removed from the first item. For example, it would find a photocopy of a document or picture as secondary evidence. The court, however, favours original or primary evidence. The courts generally seek to avoid using supplementary testimony whenever possible, and this approach is considered the better form of proof, as there are versions of the original record and not the original.

Definition of Document

“According to section 3 of the Indian Evidence Act, 1872, evidence which is given to the court in the text form is called Documentary Evidence. There are two forms of documentary evidence, public and private.”[3]

The Public Document:

Public documents are those records that are checked by an elected official and then made available for comparison and access to the public at large. Public records also include statements of the official ability of the public officer and serve as admissible proof of the truth in civil matters. Such papers are also regarded as public records because they are written or released for general information.[4]

The Private document:

Private documents are those records that are intended for their normal commercial dealings and correspondence between people. These records are kept in private possession only and are not made officially accessible to the general public. Certified copies of the private records are not usually regarded as evidence until there is evidence of the original edition.[5]

The documents  which are said to be as “Public Documents”

Section 74 of the Indian Evidence Act, 1872 entails the following documents in the category of public documents:[6]

  1. Documents forming the records of the acts and the acts of sovereign authority.
  2. Documents forming the records of the acts and the acts of tribunals and official bodies.
  3. Documents forming the records of the acts and the acts of legislative, public officers, executive, and judiciary of any part of India or the commonwealth, or a foreign country.
  4. Documents forming the records of the acts and the acts of the public record which is kept in any State of Private document.

Documents which form the records of acts or acts.

  1. The Statements under section 161 of Cr.P.C. which are recorded by police officers.[7]
  2. The Records which are dealt with by the revenue officers who are related to land revenue, settlement of land disputes and survey, etc. are public documents. ‘Faisal patties’ and ‘Pahanies’ are the public documents which are stated by the High Court of Andhra Pradesh in the ruling of “K. Pedda Jangaiah v. Mandal Revenue officer, Moinabad”.[8]
  3. The Records as stated in the case of S L Sharma vs Delhi Development Authority which are of the developmental authorities of the regions.[9]

Documents which are published Under the Statute

Schemes that appear in the Official Gazette. The sampling scheme reported according to the 1948 Electricity Supply Act. The scheme thus published discussed installing overhead transmission lines, thereby making it a public paper.

Documents in the forms of FIR, Orders of a civil court, Charge-sheet

  1. The authorized copies of the civil court and FIR orders are Public Records as described in “Royal Sundaram Alliance vs D.Gunasekaran”.[10]
  2. An indictment filed in compliance with Section 120-B of the Indian Penal Code, 1860 against any person shall be considered to be a public record as stated in “Royal Sundaram Alliance vs. D.Gunasekaran” and shall be admissible as proof without trial.

Documents concerning Marriage register

The Hindu Marriage Register is also authorized to be a Public Document which is as held by the judges of the Supreme Court in “Smt. Seema v. Ashwani Kumar [2006 2 SCC 578]”.[11]

SECTION 74 OF THE INDIAN EVIDENCE ACT[12]

Section 74(2) of the Indian Evidence Act, 1872 states that the private papers while made by a person but held as records in public offices are treated as a public document as specified by the Guwahati High Court in “Masadharali (1991) 1 Gau LR 197 (DB)” which states that “Public Records are records needed to be maintained in government units and to perform their duties as specified by law. A public record is one needed by statute or specified by statute to act as a memory and evidence of something written, said or done.[13]

A Private Record would then be considered a ‘Public Paper’ under the purview of section 74(2) because the Private Record is registered and the public agent is allowed to hold it as a memorial or permanent record of something written, said or done.’ An example of section 74(s) is where a company’s presentation is a secret paper under this provision.

Documents of the “Medico-legal report”

The medical officer is to be prepared with the MLC report to discharge his duties as a  public servant. Therefore, the MLC report is considered as a “public document” and its contents are admissible as evidence. This was held in “Dalip Kumar Alias Pinki vs State [ 1995 CriLJ 1742]”.[14]

Documents of the “Records of nationalized banks”

The Records of nationalized banks are considered as Public Documents as this was held in the “Shri Keshava Gupta vs Coal India Limited”.[15]

Other Scenarios

These other documents which are considered as the public documents are:

  1. The Register of the Birth and the Death.
  2. The report of the Census of India.
  3. The Charge Sheet
  4. The Confessions are made under section 164 of Cr.P.C. and are recorded by a magistrate.[16]
  5. The Electoral Roll of the districts.[17]
  6. The Notice is given under section 106 of Cr.P.C.[18]
  7. The Public records which keep original private documents.
  8. The Records of Information which are made under section 145 of Cr.P.C.
  9. The Records of the National Bank.
  10. The Records of Sanction to prosecute.
  11. The Reports of Town Planning by the Department of State Development.
  12. The Records of the villages.

What are the Exceptional Cases?

A private record is a public record because there is large public interest involved and the civil servant plans it. Example: the share allocation certificates to the members of the Adarsh Housing Society, Mumbai which would ordinarily be a private document because the parties to the documentation are the society and the individual members, but as the society as a whole was engaged in the dishonest act of taking the government protection these records were public and were freely available.

The Madhya Pradesh High Court subsequently held that the Panchnama prepared by a police officer cannot be considered as to be prepared by the police officer in the course of his/her public duty and therefore, it is not a public record.[19]

SECTION 75 OF THE INDIAN EVIDENCE ACT, 1872.[20]

Paragraph 75 of the Indian Proof Act specifies that all records other than those referred to in section 74 of the Act are private. Private Records are those records that an individual renders under his / her legal right, for his / her gain.

Such papers remain in the possession of the person to which the public record belongs, and are not made available for review by the general public. Certified copies of private records are not admissible in court until the original record is provided as evidence. Example: person-to-person correspondence; newspaper articles, books; contract deed; memorandum; sale act.

SECTION 76 OF THE INDIAN EVIDENCE ACT[21]

Section 76 of the Indian Proof Act, 1872, provides one with the procedure of receiving authorized copies from the public officer of public records. It says that if a public record is available to review, it can be given as a copy to anyone who requests it. The copy of the official record shall be released on payment of legal costs and a certificate bearing the following particulars shall be added to it:

  1. A true copy.
  2. The copy containing the date of the issue.
  3. It should contain the name of the officer along with his official title.
  4. It should also contain the seal of the office. (If any)

The copy containing these particulars is only considered as a Certified Copy.

The central question that emerges here is that a citizen should have the right to a copy of a public document? Well, if a person has the right to inspect the document then he will have the right to obtain a copy of the public record, and if he does not have the right to inspect the public document he cannot obtain a copy of the public document.[22]

Upon obtaining the authorized copy of the public ledger, he is entitled to review the requested copy order and not the right to access the whole report. If a person has no right to inspect and then obtains the certified copy of the public record, then the certified copy so obtained is unlawful and inadmissible as proof in court.[23]

THE “SECTION 77 OF THE INDIAN EVIDENCE ACT”.[24]

Section 77 of the Indian Evidence Act, 1872 states that “these authenticated copies can be made as proof of the contents of the public documents or portions of the public documents which they appear to be copies of.” Simply put, it states that, where the contents of the public records need to be checked as the court, the original copy of the public record may not need to be brought before the court according to the provisions of Section 76 of the Indian Evidence Act.

The fundamental premise behind this theory is that court documents cannot be transferred from their place behind custody to court, suggesting that whether official information or historical records are called to court, it will be impossible for us to access public information for the time being.

Suppose a single public record or historical record is submitted in one trial in 1940 and the case is delayed until 1950, in this time frame even more people who wish to or intend to show such public records or documents are disabled. Thus, if copies of these public documents or records are not allowed and the originals are retained in cases, people will be stripped of the use of such public documents or records for 10 years and then there will be a persistent risk of destruction and potential wear and tear of the documentation being transferred from one location to another.

It is open to the court to accept the approved copy as solid proof even without the parties to the records being checked. Nevertheless, this does not preclude the court from rejecting the agreement itself as being mala fide so that some appeal is put before the court. The Supreme Court ruled the marriage certificate is sufficient evidence of union.[25]

As concluded by the judges of the Supreme Court of India in the case of Madameanchi Ramappa & Anr vs Muthalur Bojjjappa [1963 AIR 1633][26], a verified copy of the public paper or public record can be submitted and obtained as evidence before the court and without confirmation. Furthermore, if the authenticated copy of the public document or record is faulty then the complaint must be put before the trial court as stated by the Punjab High Court in Harichand And Ors’ case. Vs Kaur Bachan.[27]

“SECTION 78 OF THE INDIAN EVIDENCE ACT”.[28]

The following public documents may be proved as follows as per Section 78 of the Indian Evidence Act, 1872:

  1. Acts, orders or notices issued by the Federal Government in either of its departments, or by the Crown Representative or any State Government or any agency of any State Government; reports of departments approved by the heads of such departments, respectively, or any paper expected to be printed by any such Government or; as the case may be, Crown Representatives;
  2. Legislatures ‘proceedings; by certain bodies’ papers, respectively, or by written laws or abstracts, or by copies purporting to be printed by the government concerned decree.
  3. The Actions of the Executive or the proceedings of a foreign country’s Legislature; by papers issued under their jurisdiction, or generally obtained as such in that nation, whether by a copy authorized under the country’s seal whether sovereign or by approval thereof in any Central Statute.
  4. The trials of a local body in a State; by a copy of those trials, approved by its legal guardian, or by a written book purporting to be issued by that body’s authority.
  5. Proclamations, orders or legislation issued by Her Majesty or the Privy Council, or by any branch of Her Majesty’s Government; copies of quotations found in the London Gazette, or intended to be printed by the Queen’s Printer;
  6. Printed documents of any other form in a foreign country; by the original, or by a copy authenticated by the legal guardian of the original, with a certificate under the seal of a notary public, or by an Indian Council or diplomatic representative that the copy is properly authenticated by an officer having the lawful custody of the original, and by confirmation of the existence of the record under the rule of a foreign co-officer

SECTION 78 AND THE KINDS OF PUBLIC DOCUMENTS.[29]

There are 6 kinds of Public Documents which are given under Section 78 of the Indian Evidence Act, 1872:

  1. The Central Acts, orders and notifications which are certified by the concerned departmental heads.
  2. The Proceedings of the Legislatures and  Journals of those bodies or the copies which are required to be printed by the Govt.
  3. The orders, Proclamations and the Regulations are issued by Her Majesty or Privy Council which are done by the copies of the extracts of the Gazette.
  4. The acts of the proceedings or the executives of the legislatures of foreign countries.
  5. The proceedings of Municipal bodies and the publications of such bodies which are certified by the legal keeper.
  6. The initial or authorized copy given by the lawful attendant of the document with a certificate and seal of a notary public, or by the Indian attorney or diplomatic representative, may prove official records of any other sort in a foreign country.

The few features appropriate to label a paper a public record. In the service of his / her official duties, the public records are written by the civil servant. This further claimed that public records are those created by the elected official to make them available to the general public.[30]

CONCLUSION

Upon going through this, one can conclude that all records written by the public officer in the performance of his / her official service are public documents. According to the case laws mentioned above, we recognize that the records written by the private person held in public office are regarded as public documents and not as private.

So where the issue of admissibility of such records occurs in court, then the certified copies of the public documents are admissible and they do not require any witnesses to prove that while, in the case of certified copies of private documents, they are admissible only when the original private record is presented in court as proof.


[1] https://www.mondaq.com/india/trials-appeals-compensation/737408/fate-of-private-document-kept-in-public-file

[2] section 62 of the Indian Evidence Act, 1872

[3] section 3 of the Indian Evidence Act, 1872.

[4] https://blog.ipleaders.in/public-private-documents/

[5] https://www.lawnn.com/law-of-evidence-public-and-private-documents/

[6] Section 74 of the Indian Evidence Act, 1872.

[7] section 161 of Cr.P.C., 1973.

[8] K. Pedda Jangaiah v. Mandal Revenue officer, Moinabad.

[9] S L Sharma vs Delhi Development Authority.

[10] Royal Sundaram Alliance vs D.Gunasekaran.

[11] Smt. Seema v. Ashwani Kumar [2006 2 SCC 578].

[12] Section 74 of the Indian Evidence Act, 1872.

[13] Masadharali (1991) 1 Gau LR 197 (DB)

[14] Dalip Kumar Alias Pinki vs State [ 1995 CriLJ 1742]

[15] Shri Keshava Gupta vs Coal India Limited

[16] Section 164 of Cr.P.C.,1973.

[17] https://www.academia.edu/17108983/PUBLIC_AND_PRIVATE_DOCUMENT_UNDER_INDIAN_EVIDENCEACT

[18] Section 106 of Cr.P.C.,1973.

[19] Hardayal vs Aram Singh And Ors [ AIR 2001 MP 203].

[20] Section 75 of the Indian Evidence Act, 1872.

[21] Section 76 of the Indian Evidence Act, 1872.

[22] Rasipuram Union Motor Service vs Commissioner Of Income-Tax [(1956) 2 MLJ 604]

[23] https://www.srdlawnotes.com/2016/04/public-documents.html

[24] Section 77 of the Indian Evidence Act, 1872.

[25] Smt. Seema v. Ashwani Kumar [2006 2 SCC 578].

[26] Madameanchi Ramappa & Anr vs Muthalur Bojjjappa [1963 AIR 1633].

[27] Harichand And Ors. vs Bachan Kaur

[28] Section 78 of the Indian Evidence Act, 1872.

[29] http://www.aaptaxlaw.com/Evidence-Act-1872/section-74-75-76-evidence-act-public-documents-private-documents-certified-copies-of-public-documents-sec-74-75-76-of-indian-evidence-act-1872.html

[30] Rangataju v. Kannayal and ors by the Madras high court [2012 SCC Online Mad. 138].

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