Report No. 185

Section 35

Section 35 refers to the relevancy of entry in Public record made in the performance of duty. As amended by Act 21/2000, it reads as follows:

"Section 35: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact."

There are no illustrations below the section.

In the 69th Report, this section is referred to in Chapter 14. Part I thereof is introductory, Part II refers to English law, Part III to 'two classes of entries', Part IV to 'illustrations' with reference to case law, Part V to 'other provisions' and Part VI to 'Recommendations'. The recommendation is only one of form, namely, that the entry which must be made in performance of a statutory duty is applicable only to the latter-half of the section. Under the earlier part of section 35, the emphasis is only on "public or official character" of the entry and not to its statutory character. The section is split up into clause (a) and clause (b) as stated below (see para 14.20 of that Report). In other words, the clause 'specially enjoined' does not qualify public servants.

'Public servant' is defined in section 21 of the Indian Penal Code. Entries must have been made by a public servant or by a person so enjoined by a law. The acts or records of 'public functionaries' are dealt with in section 74 as 'public documents'. The entry under section 34 may be regarding a fact in issue or a relevant fact.

The section is based upon the assumption that public officials must have performed an official duty correctly and that the entries made by persons statutorily enjoined also do it correctly and after lapse of several years, they may not be available to give evidence. Section 35 refers to book, register or record.

Public register or record kept outside India or under foreign law are within section 35 as decided by case law. The duty may be enjoined by Act or Rules.

First information taken under section 154 Code of Criminal Procedure, 1973 amounts to an entry by a public servant in the discharge of his official duty and falls within section 35 but it is not substantive evidence and is not evidence of facts it mentions. It can be used merely by way of previous statement for corroboration (section 157 of Evidence Act) or contradiction (Section 145 of Evidence Act) (Hasib v. State: AIR 1972 SC 283).

Absence of an entry does not fall within Section 35 but may fall under Section 9 or Section 11.

There are a large number of decisions of the Privy Council under Section 35. There are also a large number of a decisions of the Supreme Court rendered before 1977 when the 69th Report was submitted and between 1997 248 to 2002. We are not referring to them in as much as some of them apply the provisions of Section 35 to make certain record, register relevant and some not.

See in this connection Section 7 of the English Civil Evidence Act, 1968 (Phipson, 15th Ed, 2000 Chapter 36 and para 44.85 at p. 1321-1322).

Suffice it to say that we agree with the recommendation in the 69th Report (see para 14.20) that Section 35 be revised with slight modification as follows:

"35. Relevancy of entry in public record or in electronic record made in performance of public duty .- An entry in any public or other official book, register, record or electronic record stating a fact in issue or relevant fact, and made by:

"(a) a public servant in the discharge of his official duty, or

(b) any other person in performance of a duty specially enjoined by the law of the country in which such book, register, record or electronic record is kept, is itself a relevant fact."