Public and Private Documents Under Indian Evidence Act

Introduction

In common parlance, the term, ‘Evidence’ refers to something that either proves or disproves the existence of a particular disputed fact. This forms an imperative part of the study of law that revolves around resolving disputes based on the assertion of the existence or non-existence of certain facts provided by either or both the parties involved in the dispute eventually leading to the proving or disproving of the same. Thus, every country and its legal system has its own ascertainment as to what constitutes evidence and what does not. In India, the statutory body that governs evidence is the Indian Evidence Act, 1872.

As per Section 3 of the Indian Evidence Act, 1872 Evidence is defined as a term that means and includes ––

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.”

With reference to point (2) as mentioned above, documentary evidence as provided in section 3 of the Indian Evidence Act, 1872 refers to evidence which is given to the court in the text form is and there are broadly two forms of documentary evidence – public and private.

Public Documents

As per Section 74 of the Indian Evidence Act, 1872 the following constitute as public documents –

1. Documents forming the acts, or records of the acts—

(i) of the sovereign authority – An example for this would be Legislations that are made by both the Parliament and State Legislature

(ii) of official bodies and tribunals– This refers to other statutory bodies such as labour tribunals, Central Administrative tribunals etc.

(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country

2. Public records kept in any State of private documents- For instance, Electoral rolls are documents that consist of a list of people who are entitled to vote in a particular jurisdiction along with their personal information. However, such documents are kept with the State thereby making them public records. Similarly, Birth and Death registers etc.

In the case of Shri Keshav Gupta v Coal India Limited[1] the court held that originally registered deeds with regard to land, sales, medico-legal records with the exclusion of post mortem reports, school records, records of nationalized banks, etc. are considered public documents.

In another case of The Royal Sundaram Alliance v Gunasekaran[2] The court held that certified copies of the orders of the civil court and First Information reports are public reports.

Thus, it can be said that a public document is one such document which is prepared by a public servant in the capacity of his official duty and is made available to the public at large. However, in some exceptional cases, certain private documents can be considered as public documents when it involves the interests of the public and is prepared by a public servant. In Adarsh Cooperative Society v Union of Indian and Others[3] the share certificates of the members of the Adarsh housing society that would in normal circumstances be considered as a private document was regarded to be a public document as the members of the housing society were involved in illegal, fraudulent activities and such documents were considered to be in record of public interest.

Private Documents

Section 75 of the Indian Evidence Act states that all other documents that are not public are private documents. For example, Mortgage deeds, contracts etc. are private documents.

Private documents refer to those documents which are prepared between individuals for their own personal interest that do not concern the public at large. Such documents are kept in the custody of the individual concerned and certified copies of the private documents are usually not considered as evidence unless proof of the original copy is provided.

Certified Copies of Public Documents and Its Admissibility as Evidence

Section 76 of the Indian Evidence Act states the following –

“Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal;

and such copies so certified shall be called certified copies.”

Explanation –

Simply put, this section states that in the ordinary course of official duty if an officer is authorized to inspect a particular document and determine its truth on the demand of its copy by an individual who has paid the required legal fees, it will be deemed that such officer has custody to do so and thus, the certificate will have the name and official title of such officer and will be sealed and considered as certified copy.

Such requested documents must be public in nature and in the custody of a public officer. The public document is given to an individual who –

  1. Has the right to inspect such a document
  2. Has made a demand for a copy
  3. Has made the payment of the legal fee required

Once the above-mentioned criteria are met the public officer while providing the certificates has to mention that –

  1. Such document is a true copy
  2. The date of issue
  3. Name of the officer in charge and his official title
  4. Sign of such officer
  5. Seal of the office, if any.

In the case of Rasipuram Union Motor Service v Commissioner of Income Tax[4] the court held that the right to inspect a document is an important factor to consider. If such a right exists, then there is an entitlement to get a copy of the public document but when there is a lack of such right there also exists no entitlement to inspect public documents.

In the case of Madameanchi Ramappa & Anr v Muthalur Bojjjappa[5] the court held that any certified copy of a public document or record that is presented as evidence in court does not require any further proof.

Hence, as per section 76 the mere certification of a public document is enough to consider it as admissible evidence as the court presumes that every certified public document issued by an officer is done so in his official capacity when his sign and seal is present. However, the genuineness of such documents can be challenged by the opposing party to the dispute. Thus, certified copies of public documents are admissible as evidence in court and no further evidence needs to be entertained with regard to such matters once the documents are submitted, as certified copies of public documents are considered to be proof of facts.

Proof of Documents by Certified Copies

Section 77 deals with proof of documents by production of certified copies. This section states that “such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copied.”

In order to establish proof and provide validity of the same, original public documents cannot be taken away from the custody of the public officer every time there is a need, thus copies of such public documents or parts of the public documents that are to be used as evidence will be considered valid and sufficient. For example, in the case of Seema v Ashwani Kumar[6] the court held that a Marriage certificate is sufficient evidentiary proof of the marriage.

Proof of Other Official Documents

Section 78 of the Indian Evidence Act, 1872 mentions the various ways in which different public documents can be proved. They are as follows –

1. Central Acts, orders or notifications – Can be proved by records certified by the Heads of the departments concerned.

2. Proceedings of the Legislatures – Can be proved by proceedings, Journals or copies published by the Government.

3. Proclamations, orders or regulations issued by Her Majesty or Privy Council – Proved by copies of Gazette notification from London.

4. The acts of the executives or proceedings of the foreign legislatures – Can be proved by official journals published by concerned authorities.

5. Municipal bodies proceedings –Can be proved either by publications of such body certified by their legal keeper or through a published book by an authority.

6. Public documents of some other class in a foreign country – Can be proved by the original or certified copy issued by the legal keeper of the document with a certificate and seal of a notary public, Indian counsel or diplomatic agent based on the laws of the respective country.

Conclusion

The distinction between a private and public document is an important one to make. The former is used by an individual in a personal capacity and the latter is concerned with the larger public interest. Moreover, Public documents as secondary evidence are admissible as evidence in court and are presumed to be genuine based on the sign and seal of the official involved in inspecting such a document and no further proof is required. On the contrary, with private documents, there is no presumption of genuineness and such documents are subject to rigorous scrutiny. The division of public and private documents as provided by the Indian Evidence Act, 1872 ensures that there is no ambiguity and confusion in matters relating to documentary evidence.

[1] https://indiankanoon.org/doc/1568813/

[2] https://indiankanoon.org/doc/84920798/

[3] https://indiankanoon.org/doc/131217662/

[4] https://indiankanoon.org/doc/575415/

[5] https://indiankanoon.org/doc/1439781/

[6] https://indiankanoon.org/doc/1037437/

This article is authored by Shivani S, 3rd Year BA.LLB(Hons.) student at ICFAI Law School, Hyderabad. 

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