Report No. 69
Presumptions as to Documents
I. Presumptions as to Documents-General
When a document, whether private or public, is offered in evidence, certain presumptions may arise in respect of it. These are enumerated in sections 70 to 90. Those presumptions, however, are not conclusive. An inference is drawn from certain facts in lieu of any other mode of proof. The inferences are of two kinds. The inference may be one which the court is bound to make, so that the fact is taken as proved until it is disproved; in this case, it is said that the court "shall presume;" or, the inference may be one which the court is at liberty to make-i.e. the court is at liberty either to accept the fact as proved until it is disproved, or to call for proof of it in the first instance; in this case, it is said that the Court "may presume".
37.2. None of these presumptions is conclusive. All that the law does is to allow the Court to dispense with evidence if it should think fit to do so, of in certain cases, to require it to do so. But proof to the contrary is not ruled out by the sections with which we are concerned-sections 79 to 90.
37.3. The two classes of inferences play an important part in the proof of documents. Sections 79-85, and section 89, provide for cases in which the Court shall presume certain facts about documents; sections 86-88 and 90 provide for cases in which the Court may presume certain things about them. Sometimes, two sets if presumptions will apply to the same document. For instance, what purports to be a certified copy of a record of evidence is produced. It must, by section 79, be presumed to be an accurate copy of the record of evidence. By section 80, the facts stated in the record itself as to the circumstances under which it was taken, i.e., that it was read over to the witness in a language which he understood, must be presumed to be true.
There is a rationale underlying these presumptions. Most of the presumptions as to documents are based on the principle that it may be presumed that solemn or official acts were done in the ordinary manner. Sometimes there are additional considerations also. For example, the presumption which is directed to be raised by section 90 in relation to ancient documents is of great importance in obviating the effects of the lapse of time as to the proof of documents. As years go on, the witnesses who can personally speak to the attestation or execution of a document, or to the handwriting of those who executed or attested it, gradually die out. If strict proof of execution of handwriting were necessary, it would, after a generation, become impossible to prove any document.
On the other hand, there is some reason to suppose that documents, of which people take care for a long series of years, are authentic. The law acts upon this probability, and provides the presumption that in the case of documents proved or purporting to be thirty years old, and produced from proper custody-that is the place in which, the care of the person with whom, it would naturally be, the court may presume that the signature and every other part of such a document is in the handwriting of the person by whom it purports to be written, and that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Other presumptions may, of course, be raised under the provisions of section 114, as is indeed indicated by illustration (i) to that section, according to which the Court may presume that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged, though, in considering whether such a maxim does or does not apply to the particular case before it, the Court will also have regard to such facts as the following. viz., that though the bond is in the possession of the obligor, the circumstances of the case are such that he has stolen it. There are many other presumptions as to documents known to English law, for which no express provision is made in the Act, and which, therefore, can be raised only under the general provision contained in section 114.
37.5. After this general discussion, we may deal with section 79. Under that section the court shall presume the genuineness of every document purporting to be a certificate, certified copy, or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Government duly authorised, provided the document is substantially in the form and purporting to be executed in the manner directed by law in that behalf.
37.6. Section 79-Certified copies of Parliamentary document Case law on the section does not raise serious problems. But reference should be made to a suggestion made by the Committee of Privileges of the Lok Sabha on a point which is relevant to this section.1 On a reference made by the Speaker of the Lok Sabha in three individual cases, the Committee of Privileges considered the question of the procedure for producing before courts of law documents connected with the proceedings of the House. We shall refer only to that recommendation of the Committee which touches on the law of evidence.
1. Report of the Committee of Privileges Law Commission, F. No. 3(1)/55-L.C. Part 1, S. No. 5: Notes in Ministry of Home Affairs F. No. 22/4/58-Judi. II, Ministry of Law, U.O. No. 20(1) 58-Leg. II, dated 21st July, 1959.
37.7. One of the recommendations by the committee of privileges was, that normally, when the documents are required to be produced in the Court of law and are connected with Parliament. certified copies should be considered sufficient evidence of such documents, and that, if necessary, the relevant provisions of the Evidence Act may be amended accordingly. (The then Law Minister was a Member of the Committee). The Lok Sabha discussed the re-port, and agreed with it in toto.
37.8. Relevant provisions.-
For appreciating this suggestion, it is desirable to have a look at certain provisions relevant to the subject. It may be noted at the outset that the Evidence Act is not entirely silent about documents with which Parliament is concerned. Under section 78(2). the proceedings of Legislatures can be proved by the Journals of the Legislatures, or published Acts or abstracts, or by copies purporting to be printed by the order of the Government concerned. Therefore, so far as published "proceedings" are concerned, no further provision appears to be necessary. This leaves documents which are not part of the published proceedings. These may, for the sake of convenience, be referred to as "unpublished" documents. Such unpublished documents can be classified into:
(a) documents which form "the acts and records of acts" of Parliament, and
(b) documents which do not form the acts or records of acts of Parliament.
Documents falling under category (a) are public documents under section 74(1) (iii), so that certified copies of such documents can be given under section 76, and such certified copies can, under section 77, be accepted in evidence without production of the original under section 77.
37.9. Recommendation as to Parliamentary proceedings.-
In regard to these documents-i.e. those falling under category (a) above-the only question that can be usefully considered is the extension of the beneficial provisions of section 79 (presumptions as to the genuineness of certified copies), to certified copies of such documents. In view of the suggestion made by the Committee on Privileges, which is sound in principle, we recommend that section 79 should be extended to such documents.
37.10. This leaves only the documents referred to in category (b) above-which can be described as unpublished private documents of Parliament. It does not appear to be desirable to extend the facilities of certified copies to such documents, and we may take it that it was not the intention of the Committee on Privileges to extend the facility of certified copies to unpublished and private documents of Parliament.
37.11. Leave necessary.-
It may be mentioned that leave of the House is necessary for giving evidence in a court of law in respect of the proceedings in that House or Committees thereof or for production of any document connected with the proceedings of that House or Committees thereof, or in the custody of the officers of that House. According to the first Report of the Committee of privileges of the Second Lok Sabha, "no member or officer of the House should give evidence in a court of law in respect of any proceedings of the House or any Committees of the House or any other document connected with the proceedings of the House or in the custody of the Secretary without the leave of the House being first obtained".1
1. Shakdher and Kaul Parliamentary Procedure in India, p. 177.
37.12. Procedure to be followed.-
It may also be stated that whenever any document relating to the proceedings of the House or any committee thereof is required to be produced in a court of law, the court or the parties to the legal proceedings have to request the House, stating precisely the documents required, the purpose for which they are required and the date by which they are required. It has also to be specifically stated in each case whether only a certified copy of the document should be sent or an officer of the House should produce it before the court.
37.13. When the House is not in session, the Speaker may in emergent cases allow the production of the relevant document in order to prevent delay in the administration of justice and inform the House accordingly of the fact when it reassembles or through the bulletin.
37.14. There are also instructions for adopting the proper form of address and emphasising that normally only the certified copies should be called for and that section 78(2) of the Act should be borne in mind.1
The form of request prescribed is as follows:-
The Speaker of the House of the People/The Chairman of the Council of States,
Sub: (Description of the case)
In the above proceedings, the plaintiff/defendant/complainant/ accused proposed to rely upon the documents, specified in the Annexure, which are in the custody of the House of the People/the Council of States. I have to request you to move the House if you have no objection to grant leave for the production of documents in my court and, if such leave is granted, to arrange to send the documents/certified copies of the documents so as to reach me on or before by registered post (A.D.) or through an officer in the Secretariat of the House.
(Where mere production of document is required)
In the above proceedings, the plaintiff/defendant/complainant/ accused proposes to examine an officer in the Secretariat of the House of the People/the Council of States (or any duly informed officer in the Secretariat of the House) as a witness in regard to matters specified in the Annexure. I have to request you to move the House, if you have no objection to grant leave for the examination of the said officer in my court, and, if such leave is granted, to direct the officer to appear in my court at 11 a.m. on........
(Where oral evidence of an officer in the Secretariat of the House is required.)
1. See also Lok Sabha Debates 13th September, 1957, pp. 13760 to 13763.