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Report No. 25

4. Judicial decisions.-

Apart from the suggestion made1 to the Law Commission by the Ministry of Finance, there are certain decided cases which have focused attention on the problem now under consideration. A brief reference may be made to those cases2.

In a Calcutta case3, the accused was on trial on a charge of giving false evidence by denying a statement that certain documents were forged. The prosecution case (that the documents were really false) was based upon the assertion that the cartridge papers bearing a particular water mark (on which they were written) were not in existence on the 20th April, 1909, the date on which the documents purported to have been executed. To prove this, the prosecution called an employee of the Office of the Controller of Stamps and Stationery who gave evidence to that effect.

He based his knowledge of the fact not on his experience at that time (because he was not employed in the particular office until 1925), nor on his subsequent experience, but on an entry in an unpublished record of the Government which, he stated, showed the date on which cartridge papers bearing the particular water mark were issued, and the period for which they were in use. The witness claimed privilege as to the particular date and the period, as being a State secret, and was not prepared to let the Judges or the lawyers see the entry. The court held that such evidence was inadmissible, because

(i) it was not expert evidence, the evidence merely consisting of a statement that if a certain proposition were true, then the document was not in existence in 1909;

(ii) the witness was making a very plain inference from an entry of which no evidence was to be taken.

The court did not consider it necessary to decide whether secondary evidence could in such a case be given of the entry. But the court made the following observations:-

"There is room for the view that in some cases where a witness is not compellable to produce a document, the party who can get other secondary evidence can give secondary evidence of it. On the other hand, it would seem only commonsense to say that section 123 would prevent any person from giving secondary evidence of a document in a case such as the present."

This case was followed in a later Calcutta case4 where the evidence of one S.K. Chatterjee, a Superintendent of the Office of the Deputy Controller, Stamp and Stationery, Calcutta, given in support of a written report of that office, to the effect that a certain demi-paper bearing the water mark M.D. constituting the second page of a Will was not in existence on a particular date, was held inadmissible. The reason was, that the evidence was given by reference to the "confidential register" which was not produced before the Court. The question whether such evidence could be treated as secondary evidence, and if so, whether secondary evidence of a State secret given by a Government witness was admissible, was only indirectly touched in this case. The Court made these observa tions:-

"As the evidence of Shri S.K. Chatterjee is based upon unpublished and privileged Government records, that evidence is not admissible, as has been laid down in the case reported5 in 36 CWN 514 and we respectfully agree with the decision".

The correctness of this view was assailed before the Supreme Court in re: John Francis Souza v. Ernest Ben to Souza, Civil Appeal No. 470 of 1960 decided 26-3-1962, but the Court did not decide this question and left it open.

1. Para. 1 and footnote thereto.

2. As to decisions on the value of reports of Chemical Examiner, see App II.

3. Emperor v. Jaffarul Hossain (Rankin C.J. C.C. Ghose J. agreeing), ILR 59 Cal 1046 (1050): (1931-32) 36 CWN 514 (517).

4. E.B. Souza v. J.F. Souza, AIR 1958 Cal 440 (443) (DB).

5. See para 4, supra-Emp. v. Jaffarul Hossam.

Evidence of Officers about Forged Stamps, Currency Notes, etc Back

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