Report No. 185
This section deals with 'Presumption as to documents produced as record of evidence'. It reads as follows:
"80. Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the persons signing it, are true, and that such evidence, statement or confession was duly taken."
It will be noticed that this section is primarily intended to raise a presumption in favour of genuineness of evidence given by a witness in a 'judicial proceeding or before any officer authorized by law to take such evidence', or is a "statement or confession" by a "prisoner or accused person", if the same was taken in accordance with law and signed as stated in the section. The presumption is extended to the circumstances under which it was taken.
The word 'evidence' is defined in Section 3. The mode of recording evidence in civil cases is found in Order 18 Rules 5-13, CPC, 1908 and in criminal cases in Ch. XXIII sections 272-283 of Cr.P.C., 1973. Section 80 of the Evidence Act cannot apply to Section 162 Cr.P.C. Statements recorded by police. Statements recorded by Magistrates in Judicial proceedings are admissible and the Magistrate need not be called a witness (Modi Ganga v. State AIR 1981 SC 1165). Section 80 does not guarantee voluntariness of a confession under Section 24. Irregularities in recording confession under Section 164 Cr.P.C. may be cured by Section 533 (now Section 463 of the 1973 Act) (Shanti v. State AIR 1978 Orissa 19 (FB).
In the 69th Report, it was pointed out (see para 38.5) that the expression 'judicial proceeding' does not cover statements recorded by a Magistrate under Section 164 Cr.P.C. The statements are also not evidence and hence do not perhaps come within the words "before any officer authorized by law to record evidence", unless we broadly construe the above words by merely referring to the qualification of the officer. The 69th Report recommended that Section 80 be amended to include a presumption of genuineness of Section 164 statements recorded by Magistrates.
It was pointed out further after referring to conflicting views of High Courts (see para 38.13) that if the above amendment is made, it will also cover the cases of dying declarations recorded by Magistrates under Section 164. As at present, such dying declarations are not covered by Section 80 because they are not always made by prisoners or accused persons but by victims of criminal offences. Further at that stage, the Magistrate can not be said to acting in a judicial capacity.
We agree with the above recommendation that in Section 80, after the words 'taken in accordance with law', and before the words "and purporting to be signed by any Judge", the following words be added: (para 38.16)
"or to be a statement recorded by a Magistrate under section 164 of the Code of Criminal Procedure, 1973".