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Report No. 69

Chapter 34

Public Documents and Private Documents

Sections 74 and 75

I. Public Documents-Importance

34.1. Introductory.-

Documents are of two kinds, public and private. Section 74 gives a definition of the term "public document", and section 75 declares 311 documents other than those particularly specified to be private documents. Section 74 to 78 deal with-

(a) the nature of the former class of documents, and

(b) the proof which is to be given of them, including the grant of certified copies.

Section 74 defines their nature; and sections 76 to 78 deal with the exceptional mode of proof applicable in their case. The proof of private documents, as defined by section 75, remains subject to the general provisions of the Act relating to the proof of documentary evidence, contained in sections 61-73.

34.2. Two clauses of public documents.-

The list of public documents is found in section 74. There are two main classes of public documents, as provided in the section. In the first class are included documents forming the records or the acts of certain authorities and officers. In the second class are included public records of private documents. The first important difference between the two classes, then, consists in the nature of the act dealt with in the documents. The first class is confined to what may be called public acts or records thereof, while the second class is confined to private acts recorded by a public authority.

Another important difference between the two classes of public documents is that while the first class covers documents of any part of the world (if the other condition regarding the nature of the act or record is satisfied), the second class of public documents is confined to India, because the words used ar.- "public records kept in any State of private documents". As originally enacted, the Act used the words "in British India", but subsequent adaptations have resulted in the phraseology quoted above.

34.3. The most important substantive provisions as to public documents are contained in sections 76 to 78. These deal with the mode of proof of public documents; but section 76 also confers a right. We shall discuss this aspect later.

34.4. Modes of Proof.-

As regards proof, there are two special modes of proof permitted by the provisions for public documents, namely, (i) by production of certified copies, and (ii) by production of certain records, journals. gazettes and the like. In regard to the first mode of proo.- certified copie.- it is pertinent to observe that where the original is a public document, a certified copy can be given in evidence thereof without proof of destruction or loss of the original1, and without notice to produce2 In addition, in respect of certain special classes of public documents, there are several provisions elsewhere in the Act3 Certified copies and other materials used as evidence of public documents, such as, gazettes. etc..- themselves carry certain presumptions4

1. Section 65(e). 2. Section 66. 3. E.g. section 35.

4. Sections 79 to 86.

II. Concept

34.5. English case as to meaning of "public document".-

It may be useful to say a few words about the concept of public documents. In the leading English case of Sturla v. Freccia, (1880) 5 AC 623 (643) (HL), Lord Blackburn state.- "I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial, or quasi-judicial duty to inquiry, as might be said to be the case with the bishop acting under the writs issued by the Crown. That may be said to be quasi-judicial. He is acting for the public when that is done; but I think the very object of it must be that it should be made for the purpose of being kept public1, so that the persons concerned in it may have access to it afterwards.".

1. Emphasis supplied.

34.6. In the leading English case1, referred to above, the question related to the admissibility of a statement containing the age and place of birth of an individual in a report of Committee appointed by a foreign Government about his fitness to hold a post under it. The House of Lords rejected the evidence afforded by the report, on the substantial ground that it was not (1) made under a duty to enquire into the circumstances recorded, (2) concerned with a public matter, (3) intended to be retained permanently, and (4) meant for public inspection.

1. Sturla v. Freccia, (1880) 5 AC 623 (HL).

34.7. Importance of definition of "public document"-Right to inspect.-The definition of "public document" is the section 74 is important, inter alia because of the substantive right which section 76 confers. That section, so far as material, provides that 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 certificate, etc.

34.8. The theory of the English law is that every person has a right to inspect a public document, subject to certain exceptions, provided he shows his individul interest in the particular document1. We shall consider, in detail, the scope of the right later2. We are mentioning it here to show the importance of section 76, are the consequential importance of section 74.

1. Queen Empress v. Arumugam, 1896 ILR 29 Mad 189 (191) (Order of reference to the Full Bench; proposition approved in the Full Bench decision at p. 196, Shephard, J.).

2. See discussion as to section 76.

34.9. Certified copies of public documents.-

Reverting to section 74, we may state that the objection to requiring production of public documents in the original rests on the ground of, what is public often described as, "moral inconvenience". One of the exceptions to the rule requiring primary evidence to be given which exception rests on grounds of physical impossibility or inconvenience,1-may be compared. Public documents are. comparatively speaking, little liable to corruption, alteration or misrepresentation,-the whole community being interested in their preservation, and, in most instances, entitled to inspect them.

The number of persons interested in public documents also renders them much more frequently required for evidentiary purposes; and if the production of the originals were insisted on, not only would great inconvenience result from the same documents being wanted in different places at the same time, but the continual change of place would expose them to be lost, and the handling from frequent use would soon ensure destruction.

1. Section 65, clause (d)-where character are traced on a rock or engraved on a tombstone or the like.

34.10. A proceeding in a court of justice is provable by an examined copy. This rule has arisen from the convenience of the thing, that the originals may not be required to be removed from place to place.1

1. Lady Dartmouth v. Roberts, 16 East, 341 (per Bayley J.).

34.11. For these and other reasons, the contents of public documents arc allowed to be proved by derivative evidence.

34.12. After these introductory remarks, we may address ourselves to certain specific questions arising on the wording of section '74.



Indian Evidence Act, 1872 Back




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