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Report No. 69

Chapter 36

Public Documents-Proof by other Modes

36.1. Proof by certified copies is not the only mode of proving public documents. There are other modes of proof, as to which section 78 contains an important provision.

Section 78

36.2. Introductory.-

Section 78 provides that the public documents enumerated in the six clauses of the section may be proved in the manner provided in the relevant clause. The section, by its very terms, is not exhaustive.1 The court is not confined exclusively to the modes of proof laid down in the section.2 Thus, for example, the section does not prohibit the original of the public document in question from being produced; nor does it affect the general provision in section 77, permitting proof of public documents by the production of certified copies. The section, in other words, provides for an additional mode of proof.

1. Kaltcharan Bhattacharya v. Emperor, AIR 1936 Cal 316 (321).

2. Seodlal Khemba v. Jabarmul, AIR 1924 Cal 74 (79).

36.3. Section 78(1)-Change recommended.-

The first clause of section 78 deals with acts, orders or notifications of three authorities-the Central Government, the Crown Representative and the State Government. So far as the Crown Representative is concerned, the operation of the section should be confined to the period before 15th day of August, 1947, and we recommend that the clause should be so amended.

36.4. Section 78(2)-Amendment recommended.-

The second clause of section 78 deals with the proof of the proceedings of the Legislatures. Before Independence, the expression "Legislatures" came up for consideration before the Federal Court in Niharendu's case1 The question at issue in that case was the proof of the proceedings of the U.K. Parliament. The Federal Court held that the proceedings of the U.K. Parliament came either under the second or under the fourth clause of section 78, and official Parliamentary Debates afforded adequate proof of the passing of the proceedings by the House of Parliament. In the course of the discussion, the Federal Court (Gwyer, C.J.)2 observed that it may be that in the second category, the words "the Legislatures" were intended to include all the Legislatures which have the power to make laws for British India or for any part thereof.

1. Ntharendu v. Emperor, AIR 1942 FC 22 (24), overruled on another point in AIR 1947 PC 8.

2. See also discussion by Harrington, J. in the Englishman Ltd. v. Lajpatrai, 1910 ILR 37 Cal 760 (775).

36.5. It may be pointed out that proceedings of foreign legislatures are specifically covered by the fourth clause of section 78. The fact that the fourth clause of the section provides for legislatures of foreign countries was noticed by the Federal Court also; but the Federal Court, without expressing any final opinion 3n the point, did say that it would be difficult to suppose, that the Parliament of the U.K. could have been described by the Indian Legislature in 1872 as the legislature "of a foreign country". This particular question is now of academic importance; but, in the interest of accuracy, it is desirable to substitute, for the words "the legislatures" in section 78(2), the words "Parliament or of the legislature of any State". We recommend accordingly.

36.6. Section 78(2)-Mistakes in printed Acts.-

With reference to this clause of the section, it may be noted that this clause does not deal with a question that sometimes arises where there is a mistake in the printed copy of an Act. Sometimes, the version of an Act as printed separately by official order differs from the version in the Official Gazette. In such cases, the court is free to correct the discrepancy-if necessary by comparison with the original. Such a power is implicit in the provision relating to judicial notice.1

1. Section 57, penultimate paragraph.

36.7. Accuracy of printed copies-Indian case law.-

It is not often that the question of the accuracy of the text of a Central Act as printed in the copies available to the public arises. However, this question did arise in the twenties, in regard to Article 177 of the Indian Limitation Act, 1908, as amended in 1920. The question related to the text of the original Act of 1908; the version as it appeared in the Gazette of India differed from the version as given in the copy of the Act as published by the Superintendent of Printing. This led to a conflict of views. According to one view, the version in the Gazette was to be taken as authoritative, and must be followed.1 Thus, if there is a discrepancy between the text as published in the Gazette of India and the text as published by the Superintendent of the Government Printing, the former must prevail.2

The Lahore High Court held3 that the version in the Gazette must prevail. The matter was considered at length in a Calcutta case,4 in which Page J., having regard to the intrinsic provisions of the Act, preferred the version as contained in the published Act to that contained in the Gazette. Apparently, section 78(2), in so far as it mentions all published Acts or "copies purporting to be printed by the Government", was not considered as literally applicable. It may be that the published Acts did not purport to be printed "by order of Government", but only by the Superintendent, Government Printing, India. However, the judgment does not say so.

1. Rai Brijnandan Prasad v. Mahavir Prasad, AIR 1927 Pat 142.

2. Subramanya lyer v. Sanmukh Chettiar, AIR 1926 Mad 65.

3. 26 Cal WN (Journal) 150: ILR 4 Lah 367.

4. Shiv Danu v. Johar Mal, 1923 ILR 50 Cal 549 (561) (Page, J.).

36.8. Sometimes two printed copies of an Act differ. Such an instance was brought to light in a Bombay case.1 The High Court had to consider. The amendment of section 104 of the Bombay Local Boards Act, 1923, by Act 23 of 1938. The relevant passage from the judgment is given below:

"Section 4 of the amending Act is as follows:-

"4. In clause (b) of sub-section (1) of section 104 of the said Ad, after the words, 'on account of', the words 'an octroi or' shall bE inserted."

But the words 'on account of twice appear in section 104(1), once in the exception and once in the substantive part of the section. Two copies of the amended statute were handed up to this Bench. In one of them, the words 'an octroi or' had been inserted after the words 'on account of where they first appear and in the other copy after the words 'on account of where they secondly appear in the section. In both cases the section as thus amended reads correctly in point of form and grammar, though the resultant sense is very different. Carelessness in legislative drafting of this character is liable to bring the law into great confusion and this case "clearly demonstrates how desirable it is when sections of a Provincial Act are subsequently amended, for the whole amended section to be re-enacted in its amended form or for prints of the Act in its amended form to be speedily available.

The great inconvenience attendant upon the present method of making legislative amendments by correction slips intended to be stuck into unamended copies is but too well-known in this Court. In this case in order to settle what was the intention of the Legislature we sent for the King's printer's copy of the Act as amended and from it, it appears, that the inserted words are to be placed after the words 'on account of where they first occur in the old section."

We are referring to this aspect not in order to suggest any amendment-the problem does not arise often but because the matter is of some interest.

1. District Local Board, Ratnagiri v. Shantaram Rajaram, AIR 1946 Born 117; Note in AIR 194( Journal 17.

36.9. Position in England as to proof of statutes.-

In England, no proof of public statutes is required. By statute,1 every Act passed after 1850 is a public Act, and is to be judicially noticed, unless the Act itself provides expressly to the contrary. Where judicial notice is excluded, the Act must be proved in the ordinary way by a copy. Apparently, the copy must be one compared with the Parliamentary roll2 (which was the previous method of recording the Act). Thus, in short, public statutes are judicially noticed, and no proof of them is required.

1. Section 9, Interpretation Act, 1899 (Eng).

2. Princes' case, (1660) 8 Coke Reports la, 20b.

36.10. Rolls of Parliament.-

Previously, after the Royal assent, the Clerk of Parliament transcribed every public Act on a roll which was delivered into Chancery1 and this was considered the only record.2

The practice of engrossing Acts on "rolls of Parliament" was discontinued after the Evidence Act, 1845, and now the recognised record is a copy printed by the Queen's Printer3-though there are still two prints of vellum made, signed by the Clerk of Parliaments or his Deputy, of which one is preserved in the House of Lords and the other in the Public Records Office. If any occasion arises for doubting the accuracy of the print of any statute, reference may be had to the Rolls of Parliament (as to statutes passed prior to 1849), and also, as to Acts between 1487 and 1849, to the original Acts.

1. (a) it v. Jefferies, (1721) 1 Stra 466. (b) Price v. Hellis, (1813) 1 M&S 135.

2. Wilties Claim, 1869 LR 4 House of Lords 126.

3. Claydan v. Green, 1862 LR 3 Common Pleas 511 (522).

36.11. Apparently, this comparison is to be done by the court itself with reference to public general Acts, or any local or private Act directed to be judicially noticed as a Public Act1 and it does not seem2 to be the duty of the parties to examine or to produce an examined copy of the entry on the Chancery Roll or of the vellum print (as the case may be).

1. Beaumont v. Mountain, (1834) 10 Brig 404 (406) (Tindal, C.J.).

2. Craies Statute Law, (1963), p. 39.

Indian Evidence Act, 1872 Back

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