Report No. 69
II. English Law
14.8. English and Indian law-Difference.-
We may now refer to a few point of difference between English and Indian law on the subject.
(a) In England, it is essential to the admissibility of this evidence that the entries should have been made promptly, or at least without such long delay as to impair their credibility, and in the mode required by law, if any mode has been prescribed1.
The Evidence Act contains no such rule, although these points may be of importance in estimating the value of the evidence.
(b) In India, as well as in England, the entry must have been made by a person whose duty it was to make it. The entry will be none the less admissible, even though the person who made it, being alive and capable of giving evidence, is not called as a witness.
(c) The English law speaks only of "official" registers or books. To render any document admissible in evidence as an official register in England, it must be one which the law requires to be kept for public benefit. In India, the book or register might be either a public or an official one, under section 35.
1. Taylor's Evidence, 10th Edn., section 1594; Whitley Stokes Anglo-Indian Codes, Vol. : p. 829.
14.9. The Indian Act does not contain any definition of the "public or other official book". But reference may be made to section 74 of the Act, which states what are public documents1.
A "public document" has been defined in England2 to be a document that is made for the purpose of the public making use of i.- especially where there is a judicial or quasi-judicial duty to inquire. Its very object must be that the public or all persons concerned in it, may have access to it. Registers kept under private authority for the benefit or information of private individuals are therefore inadmissible3.
1. Starla v. Freccia, 5 App Cases 643.
2. See Baji Nath v. Sukhu Mahton, 1891 ILR 18 Cal 534.
3. Samar Dosadh v. fugal Kishore Singh, 1897 RR 23 Cal 366 (369).
III. Two Classes of Entries
14.10. Reverting to section 35, two classes of entries are contemplated by this section . (a) entries by public servants, (b) entries by persons other than public servants. In the case of the latter, the duty to make the entry must be specially enjoined by the law of the country in which the book, register, or record is kept (the section thus includes British, foreign or colonial registers1), in the case of entries by the former, it is sufficient for their admissibility that they have been made in the discharge of official duty. But, in either case, the entry must have been made by a person whose duty it was to make it.
1. With regard to the books recognised as official registers public documents in England, see Rateliffe v. Rateliffe, (1819) 1 Sw&Tr 467; Queen's Proctor v. Fry, 4 PD 230.
14.11. In England, it has been held1 that the entries should be made promptly, or at least without such long delay as to impair their credibility. Thus, an entry made more than a year after the event has been rejected. In India, such delays will go to the weight of the evidence.
1. Doe v. Bray, 8 B&C 813.