Report No. 69
Presumptions as to Record of Evidence
38.1. Introductory-Three presumptions.-
We propose to deal now with another presumption of a particular importance to judicial proceedings. When documents are produced as record of evidence or other statements or confessions, recorded by competent persons, certain presumptions are desirable, since it would be inconvenient to require proof of matters which may reasonably be presumed to be true in the case of such records. Section 80, in regard to documents to which it applies, provides for three such presumptions; first, that the document is genuine; secondly, that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and thirdly, that such evidence, statements or confessions were duly taken.
38.2. Like section 79, this section gives legal sanction to the presumption that official documents are executed regularly.1 The strength of these presumption dispenses with the necessity of proving, by direct evidence, what it would bE otherwise necessary to prove.2
1. R. v. Viran, 1886 ILR 9 Mad 224 (227).
2. R. v. Shivrey, 1876 ILR 1 Born 210 (222).
38.3. Three categories of documents.-
The documents to which section 80 applies are mainly of three categories:-
First, record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence; secondly; a statement by a prisoner or accused person; and thirdly, a confession by a prisoner or accused person. (We are, for the present, omitting statutory requirements applicable to error' category which are not material to the scheme of classification). Now, it may be noted that records of statements made by witnesses are not covered by section 80, unless those statements are "evidence" taken in a judicial proceeding or before any person authorised by law etc.-the first category referred to above. We shall have occasion to refer to this aspect later on,1 since statements recorded under section 164 of the Code of Criminal Procedure, 1973, are made by persons other than the accused, and are of considerable practical importance.
1. See discussion as to section 164, Criminal. Procedure Code, infra.
38.4. Other provisions.-
The practical application of section 80 would be better understood if it is borne in mind that the section is connected with certain other provisions of the Act and other laws. For example, the phrase "evidence given by a witness in a judicial proceeding", used in the section, recalls the provisions of section 33, under which such evidence is relevant in certain circumstances. Similarly, the mention of statements or confessions of accused persons takes us to the provisions of the Code of Criminal Procedure,1 relevant to the recording of statements and confessions made by accused persons in the course of investigation. Finally, the reference to evidence given by a witness before any officer authorised by law to take such evidence is intended primarily for cases where, under special laws, there is a power to take evidence on oath.
After this introductory discussion, we shall consider a few points arising out of the section.
1. Section 164, Code of Criminal Procedure, 1973.
II. Section 164, Code of Criminal Procedure
38.5. Statements under section 164, Cr. P.C.-
We have, while analysing the section, mentioned above,1 that the three categories of statements to which the section applies do not cover the statements of witnesses except in certain cases-briefly statements recorded in judicial proceedings in the form of evidence. The expression "judicial proceedings" would not cover statements recorded by a Magistrate under section 164 of the Code of Criminal Procedure from a person who is not the accused.2 Such statements would not also amount to "evidence" within the meaning of the Act. We are of the view that such statements should, by an express amendment, be brought within section 80, and we recommend accordingly.
1. Para. 38.3, supra.
2. See discussion under section 3, "Judicial Proceeding".