Report No. 69
VI Other Points Concerning section 76
35.28. Discussion in previous Report of the Commission.-
We may now briefly dispose of other points concerning section 76. In a previous Report of the Law Commission,1 the question of secondary evidence of public documents was touched upon. Delays in the disposal of cases, it was noted, were frequently caused by the requirement relating to production of certified copies; at the same time, it was observed, it was difficult to conceive of any other manner of proof of public documents. If it is left open to the parties to adduce other proof of such documents, the Court would be compelled to go into conflicting evidence, which would be obviously undesirable when the contents can be proved by certified copies. The following observations were made: "The question may also receive the further consideration of the Commission at the time of the revision of the Evidence Act."
1. 14th Report, Vol. 1, para. 8, last sentence.
35.29. We have considered the matter further. But we do not regard it as prudent or feasible to make any change in the present provisions as to the mode of proof of public documents. We do not see how, apart from such proof as is permitted under the existing law, it would be possible to devise any fresh categories of secondary evidence for public documents. In fact, the facility of putting certified copies in evidence is itself a special facility devised for public documents; it is not available in respect of other documents. We respect fully agree with the observations made in the earlier Report.
VII. Recommendation as to section 76
In the light of the above discussion, we recommend that in section 76, amendments should be made to carry out the two points indicated above.1 This object can be achieved by adding two Explanations, as follows2:-
"Explanation 2.-For the purposes of this section, it is not necessary that the public should have a right to inspect the document and it is sufficient if the person demanding a copy has a right to inspect the document of which the copy is demanded.
Explanation 3.-Where a person has by a law a right to inspect a document or to a copy thereof, or where a rule or order made by the Government allows a copy to be given, this section applies notwithstanding any provision of law requiring that the document shall be treated as confidential in regard to other persons."
1. See supra
(i) Recommendation as to copy given under statutory provisions.
(ii) Recommendation as to confidential documents.
2. Present Explanation to section 76 to be re-numbered as Explanation 1.
VIII. Section 77
Section 77 provides that "such" certified copies may be produced in proof of the contents of the public document or parts of the public documents of which they purport to be copies.
35.32. Right to inspect how far essential.-
It may be noted, that by using the word "such", the section refers back to those certified copies which are mentioned in section 76. Section 76, in its turn, refers to public documents which a person has a right to inspect. An interesting question that has arisen is, if a public servant issues a certified copy to a party who has no right to inspect the original, is that certified copy one contemplated by section 76, and, accordingly, admissible under section 77.
35.33. Some High Courts-for example, Bombay1 and Calcutta2-seem to have answered the question in the negative, by taking a narrow view. In one Madras case3 Varadachariar, J was careful to record that he did not accept the reasoning.4 in the Bombay case.
1. Devi Dutt v. Sri Ram, ILR 56 Born 324: AIR 1932 Bon) 291.
2. Promoth Nath v. Nirode, AIR 1940 Cal 187 (189) (Panckridge, J.).
3. Venkataramana v. Varahalu, AIR 1940 Mad 308 (312).
4. See also Anwar AU v. Tafazal Ahmed, AIR 1925 Rang 84.
35.34. Recommendation as to situation where certified copy is given in fact.-
Though there is no direct conflict of views, the position on the above point appears to be obscure and a clarification is desirable. We recommend1 that the position should be made clear by providing that if a certified copy is, in fact, given, that will be admissible whether or not there was a right to inspect the original. This would be the only preferable course, from the practical point of view. Otherwise the time of the court would be wasted in an academic inquiry as to the existence of the right to inspection and needless summoning of the original.
1. This is not a draft.
35.35. Certified extracts.-
Another question which could be raised with reference to section 77 pertains to certified extracts. In a number of cases, extracts of public documents have been admitted in India.
35.36. In some of these cases,1 section 77 was referred to. But, in few others, the section was not referred to.
1. Vanajakshanzina v. Gopal Krishnan, AIR 1970 Mys 305 (309), para. 16 (Birth Registers-section 77 referred to).
35.37. In some of the cases only section 35 was referred to1In some, again only section 74 and 76 were referred to.2
1. Subba Rao v. Venkata Ramnza, AIR 1964 AP 54, para. 7 (section 35 referred to).
2. Dwarka Prasad v. Firm L.B.A.R., AIR 1974 Pat 103 (109), para. 18 (Entry in money lenders' Register-section 74 referred to).
35.38. In some of the cases,1 there were specific statutory provisions permitting the giving in evidence of extracts.
1. Bagiammal v. Kanralani, AIR 1965 Mad 205 (206), para. 7 (Extracts of birth registers-special provision in special Act).
35.39. It may be noted that in the English law,1mere extracts do not seem to be admissible in the absence of statutory provisions.
1. Finlay v. E., 31 14 M&P 149; Phipson Evidence, (1963), para. 1697.
35.40. Apparently, the matter does not seem to have led to any practical difficulty in India, and the section may, on this point, be left as it is. Finally, the question, whether only, certified copies can be secondary evidence, has been discussed already.1
1. See discussion relating to section 65(e).
In the result, the only change needed in section 77 (as indicated above) is with reference to the situation where a copy is in fact given.