Report No. 69
I. Section 76-Introduction
Under section 76 wherever there is a right to inspect a public document, the officer having custody of the document must issue certified copies. The actual provision is much more elaborate, but we have stated above its gist, in order to keep in the forefront certain important points that require consideration.
35.2. Right to inspect a crucial ingredient.-
The most important aspect to which attention should be drawn is that the section applies only where there is a right to inspect a public document. The entire section hinges on it.
35.3. The right to inspect a public document is, thus, of crucial importance, and requires consideration in some detail. The Evidence Act itself is silent as to the right of inspection; but section 76 assumes that there is such a right. Apart from special provisions contained in various Central Acts, which we need not enumerate for the present purpose-the right would, in India, as in England, exist even apart from statute.
35.4. Section 76 (as already stated) assumes the right of inspection to exist; and its own positive provision is only to the extent of giving a right to certified copies in cases where the right to inspect exists. Thus, if there is a right to inspect a public document otherwise than under the section, then the effect of the section is to confer a right to certified copies. Conversely, if there is no right to inspect, the section does not apply.
II. Right to Inspect-Source of
35.5. Rule in India apart from statute.-
Apart from statutory provisions, a right to inspect exists under common law. In India, the rule recognised by the judicial decisions is that in general any person who can show that he has an interest, for the protection of which it is necessary that liberty to inspect the document should be given, has a right to inspect the public document1.
1. R. v. Arumugam, 1897 ILR 20 Mad 189.
35.6. Certified copies in England-Common law.-
In England, wherever an original document is of a public nature and would, of itself, be evidence if produced from proper custody, certain kinds of copies of the document are admissible in evidence at common law1 also.
1. Linch v. Clark, (1697) 3 Salk 154; Halsbury's, 3rd Edn., Vol. 16, p. 363, para. 651 am foot-note (e).
35.7. English case-law as to right to inspect.-
In Mutter v. The Eastern and Midlands Railway Company, 1888 LR 38 Ch Div 92 (106), Lindley, L.J. with the concurrence of Cotton, L.J. anc Bowen, L.J. laid down the rule thus:-
"When the right to inspect and take a copy is expressly conferred b) statute, the limit of the right depends on the true construction of the statute When the right to inspect and to take a copy is not expressly conferred, the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest. The common law right to inspect and take copies of public documents is limited by this principle, as is shown by the judgment in Rex. v. Justices of Staffordshire. In Rex. v. Justices of Staffordshire, (1837) 6 A&E 85 (99): 112 ER 33 (38), Lord Denman, Chief Justice observed that in regard to the persons interested, "Every officer appointed by law to keep records ought to deem himself for that purpose' (i.e. for the purpose of production of documents) 'a trustee'."
35.8. The case of Mortimer v. M'callan, (1840) 9 GJ Exch 73: 151 ER 320, is also of interest. That case related to the books of the Bank of England. But the decision is based on a wider ground, namely, the public inconvenience of bringing the original of a public record. In fact, the judgment of Lord Abinger C.B. refers to the already established practice of allowing copies of books of Customs and Excise to be received in evidence. Alerson B. developed the point of public inconvenience further by taking the analogy of inscriptions on tombstones or on a wall.
The books of the banks, which are not removable on the ground of "public inconvenience" were upon the same footing in point or principle nature of the thing itself. Alderson B. observed that the necessity of the case in the one instance (inscriptions) and the general public inconvenience in the other case (public books), that is the general public inconvenience which could follow from the books being removed, supplied the reason of the rule.