Report No. 185
Section 81A as proposed in the 69th Report
The 69th Report recommended Section 81A in relation to Registration of Births. It was pointed out that (para 39.6) the 5th Report (British Statutes applicable to India, page 44. Entry 48) of the Law Commission dealing with British statutes applicable to India, examines the British statute.- 'Registration and Births, Deaths and Marriages (Scotland) Act, 1854 and the Amendment Act 1910, which made an entry in the birth register referred to therein, admissible without further proof and that as there was no such provision in the Central Act, namely, the Registration of Births and Deaths Act (18 of 1969), a similar provision be made in the Evidence Act (para 39.9).
We may point out that according to Phipson (15th Ed., 1999), para 36.13, 36.14 and 36.23, entries in similar registers under the UK Act of 1836 and 1953 (U.K.) (Section 15) are prima facie entries but not conclusive evidence (Brierley v. Brierley (1918) p. 253).
While the above English Acts and the 5th Report required a provision to make the entries 'admissible' and even the recommendation in para 39.8 of the 69th Report is only to make the entries admissible or relevant without proof, we do not see why the 69th Report wanted Section 81A in a chapter which deals with 'presumption'. In fact, there is no recommendation that Section 81A must be introduced for purpose of raising a presumption of genuineness.
We, therefore, feel that Section 81A as proposed does not fit into the scheme of the Act between Section 81 and 82.
The next question is whether there is any need to have a provision elsewhere in the Act making such entries admissible as recommended in the 5th Report and the 69th Report. We find that no special provision is necessary to make entries in Birth register admissible in as much as such entries are admissible under Section 35 of the Act and that section has been consistently applied by courts to such registers, as stated below.
Now Section 35 refers to 'relevancy of entry in public record made in performance of duty'. In fact, Sarkar (15th Ed., 1999(p. 780) refers to relevancy of these entries and refers to Brierley v. Brierley 1918 p 257, State of Gujarat v. Inayathusen Mohmadiya : 1996 Cr. LJ 3225 (Guj), Anita v. Atal Bihari: 1993 Crl LJ 549. It is not conclusive: P.C. Purushothama v. S. Perumal: AIR 1972 SC 608.
In Bishwanath v. Dulhin: AIR 1968 P 481, it was held that a presumption of correctness also arises. See also Prakash Chandra v. Smt. Parmeshwar: AIR 1987 P&H 37.
It is significant that in Muhammad v. Sulekha 1981 Crl J (NOC) (Ker), it was held that the certified copy of the entry itself is not sufficient to establish the reliability of the contents of the register in all cases. In Dalim v. Nandarani : AIR 1970 Cal 292, the register was also treated as a public document under Section 77.
Extract under Madras Act 3/1899 was held admissible in Ramalinga v. Kotayya AIR 1913 Mad. 451.
It is not necessary to multiply cases under other State Acts. Suffice it to say that if the entries are admissible under Section 35, it is not necessary to have another Section 81A specifically concerning such registers.
Having regard to the fact that the 69th Report has not suggested that initially the Court 'shall' draw a presumption of genuineness of entries from such Birth Register and having regard to the case law, we do not think it is necessary to have a provision like Section 81A. We do not, therefore, accept the recommendation.
Section 81A (as incorporated by Act 21/2000)
The section 81A as incorporated by the Information and Technology Act (Act 21/2000) deals with 'presumption' as to gazettes in electronic forms. It reads as follows:
"81A: The Court presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody."
This section is newly introduced in the year 2000 and does not require any modification.