Report No. 185
Section 76
The section speaks of 'Certified copies of public documents' and contains an Explanation.
It reads as follows:
"76: 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 therefor, 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 authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation.- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."
The section starts with "right to inspect". In para 35.3 of the 69th Report, it was pointed out that such a right could be found in various Central and State laws but that the right was, as in England, available apart from statute.
It was pointed out in para 35.9 that right to inspection and right to copies are provided by three types of statutes:
(a) The statute may give a right of inspection, and also provide a penalty and a remedy in case of refusal to allow inspection. This is rare, or
(b) The statute may merely give a right of inspection, without making any provision for any remedy, or
(c) The statute may give a right to certified copies, without an express right for inspection.
After referring to the provision of various Indian statutes and some English statutes, the 69th Report observed in paras 35.14 to 35.17 that it is necessary to clarify that:
"whenever copies are required to be given to a person under a statutory provision, or non-statutory-rule or order made by the governmen.- even if it be non-statutory, the document should be regarded as one which that person has a 'right to inspect'."
Reference in that connection was made to the Bombay judgment in Devi Ram v. Sri Ram: AIR 1932 Bom 291 where it was held that an assessee cannot get a copy of his own income tax return or order as the Act of 1922 gave no right to inspect the return or order. But the Allahabad High Court held in Suraj Narain v. Jhebu Lal: AIR 1944 Allahabad 114 held that because an assessee has right to a copy of the order under the Income Tax Manual, he has a right to inspect the order.
It was then stated that the above clarification was suggested that if copies are required to be issued under a statute, rule or even a manual, a right to inspect must be implied. We find that in K. Pedda Jangaiah v. Mandal Rev Officer 1996 APHC 1006, (A.P.) 390 the Andhra Pradesh High Court also held that right to certified copy is dependent on right to inspect.
We may also refer to Order 11 Rule 15, Order 20 Rule 20, Order 41 Rule 36 of the Code of Civil Procedure. See also Section 363(1), (2), (6) of the Code of Criminal Procedure. We agree with the recommendation in para 35.17.
The 69th Report then refers to 'confidential documents' and after referring to the conflicting views of the Bombay, Calcutta and Allahabad High Courts, it observed that to deny copy of a document for inspection on the ground of confidential nature of the document is not correct. In para 35.22 it was rightly pointed out that keeping a document confidential from others is different from keeping it confidential from the persons whom it concerns or affects. The Commission, in para 32.25 also referred to documents relating to affairs of the State which, in any event, the Court can peruse. (Of course, the position is different under Section 162 of the Code of Criminal Procedure, 1973, as specifically provided in that Code.)
Thus there may be public documents (say) like a birth register in a Municipality which every person can inspect; an income tax return or order which only the assessee concerned can inspect; and documents relating to affairs of State which no one can be allowed to inspect.
The 69th Report, in para 35.28, referred to the 14th Report of the Law Commission, on the question of delay in obtaining secondary evidence of public documents but felt that there is no other immediate solution possible.
The 69th Report then recommended, in para 35.30 that the Explanation now contained in Section 76 be numbered as Explanation 1 and that new Explanations 2 and 3 be added as follows:
"Explanation 2.- For the purposes of this section, it is not necessary that the public should have a right to inspect the document and it is sufficient if the person demanding a copy has a right to inspect the document of which the copy is demanded.
Explanation 3.- Where a person has by law a right to inspect a document or to a copy thereof, or where a rule or order made by the Government allows a copy to be given, this section applies notwithstanding any provision of law requiring that the document shall be treated as confidential in regard to other persons."
Explanation 3 refers to the clarification referred to above that a person who has a right to a copy has a right to inspect but the idea is not clearly brought out. The common law rule is also to be reflected. Instead, Explanation 3 should read as follows:
"Explanation 3.- If a person has a right to obtain a copy of a document, he shall be deemed to have a right to inspect; and where a person has been conferred by any law , a right to inspect or a right to obtain a copy thereof or where a rule or order made by the Government allows a copy to be given, this section applies notwithstanding any provision of law requiring that the document shall be treated as confidential as regards other persons."
We recommend insertion of Explanation 2 as per the 69th Report and Explanation 3 as formulated by us in this section.
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