Report No. 69
Presumptions as to Certain Official Documents
We now address ourselves to certain presumptions which are of importance in connection with official documents. This discussion will cover sections 81 to 84. The common thread connecting these sections is the fact that most of the documents covered by these sections derive their source from official authority. The only exception to this general position is section 81, in so far as it deals with newspapers or journals. Otherwise, the rationale of these sections is the principle that official acts are presumed to be performed regularly.
Section 81 requires the Court to presume the genuineness of certain documents. First the section mentions
(i) the London Gazette,
(ii) the Government Gazette of any colony, dependency or possession of the British Crown,
(iii) Copy of a private Act of Parliament of the United Kingdom printed by the Queen's printer,
(iv) Newspapers or journals. These are published documents.
The last portion of the section is not confined to published documents, but applies to "every document purporting to be a document directed by any law to be kept by any person: if such document is kept substantially in the form required by law and is produced from proper custody."
39.3. Recommendation regarding London Gazette etc.-
In so far as the section deals with the London Gazette, the Government Gazette of any Colony etc. and a private Act of the U.K. Parliament it should, in view of the constitutional changes that have taken place in the country, be confined to the period before the 15th day of August, 1947, and we recommend1 accordingly.
1. Compare recommendation as to section 37.
It is needless to state that in relation to newspapers or journals,-as in relation to other documents mentioned in the section-the presumption under the section is only as regards their genuineness, and not as regards the truth of their contents.1 Therefore, even if the newspapers are admissible in evidence without formal proof by virtue of this section, the matter printed therein is not proof of the truth of its contents. As the High Court of Lahore observed;2
"[The paper] would merely amount to an anonymous statement.......
This type of hearsay evidence is obviously inadmissible in a court of law......."
1. Bawa Sarup Singh v. Crown, AIR 1925 Lah 299 (303).
2. Dawn Sarup Singh v. Crown, AIR 1925 Lah 299 (303).
39.5. Proper custody.-
The expression "proper custody" use in this section is defined in section 90, Explanation, which expressly provides that the Explanation (contained in section 90) applies to section 81 also.
Section 81a (New) (Registration of Births Etc.)
We may, at this stage, deal with the need for a new section as to registration of births etc.
39.6. In a previous Report.1 of the Law Commission dealing with British Statutes applicable to India, the Commission examined certain British statues relevant to evidence. The commission referred to the provision contained in the Registration of Births, Deaths and Marriages (Scotland) Act, 1854 and the Amendment Act of 1910, and suggested that if this provision is to be retained, it may be incorporated in the Evidence Act. These statutes, in effect, provide that an extract of an entry in a register of births etc. in Scotland shall be admissible in all parts of Her Majesty's dominions without further proof.
1. 5th Report (British Statutes Applicable to India), entry 48.
39.7. Incidentally, it was also suggested in that Report that it may be examined whether such privileges should be confined to England, Scotland and Ireland or whether the privilege should extend elsewhere. The two British statutes cited above have since been repealed.1 But the suggestion referred to above awaits further consideration. Incidentally, it may be stated that the Central Act on registration of births and deaths2 does not provide for the matter.
1. The British Statutes (Applicable to India) Repeal Act, 1960 (57 of 1960).
2. Registration of Births and Deaths Act (18 of 1969).
39.8. We have now considered the question, and are of the view that a provision should be enacted giving this facility1 for all the countries. We are not giving a draft of the section, but we may state that it can be conveniently inserted as section 81A and we recommend accordingly.
1. Draft not attached.
39.9. Section 82 raises certain presumptions as to a document which is admissible in England or Ireland without proof of seal or signature, and provides that the document shall be admissible for the same purpose for which it would be admissible in England or Ireland. The use of the section necessarily involves a reference to the law for the time being in force in England and Ireland.
39.10. The documents of which the Court will take judicial notice, or which the court will take as proved without proof of authentication, in England, fall in a very long list. Most of them are public and judicial documents. The matter is dealt with mostly by statutory provisions too numerous to be mentioned here, the principal of these being the Documentary Evidence Act, 1868, the Documentary Evidence Act, 1882, the Public Records Act, 1958 and other Special Acts. Some of the provisions are concerned not with the proof of authenticity but with the proof by copies, and some of them are concerned with authenticity of the copies themselves. On a study of the subject as dealt with in some of the English books on Evidence,1 it would appear that the various categories of documents in respect of which English Courts do not insist on proof of signature or seal are, in the vast majority of cases, documents executed in England, Scotland, or Ireland.
1. Phipson on Evidence, (1963), Chapter 44, para. 1718, et seq.
39.11. Having regard to this position we recommend that the present provision should be deleted.
Under section 83, the court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government, were so made and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
39.13. Relevance of maps and mode of proof.-
It is not, for the present purpose, necessary to discuss again the law relating to relevancy of statements made in maps, charts and plans-a topic specifically dealt with in section 36. The section now under discussion mainly deals with the mode of proof of the accuracy of certain maps or plans made by the Government. It is also needless to add that maps or plans which do not fall within section 83, though they may be relevant, must be proved like any other document,1-2 unless of course, their accuracy is expressly or impliedly admitted by the parties,3 or covered by any other specific provision.
1. Damodaran v. Karamba Plantations, AIR 1959 Ker 358: 1959 Ker LJ 372 (377), para. 8.
2. See also Kanto Prasad v. fagot Chandra, 1897 ILR 23 Cal 335 (338).
3. Muhammad Sulaiman v. Badru-ud-din, AIR 1940 Lab 309 (310), following Madhabi v. Ganganendra, (1905) 9 CWN 111 (113).
39.14. A case of implied admission of the accuracy of a map arose long ago in Calcutta.1 In that case, a civil amin made a local inquiry as to the situation of certain disputed lands with reference to the Collectorate map put in by the plaintiffs. Admission of the map was objected to by the defendants, who were present and recognised the boundary indicated as the boundary where on an inquiry was to be made. It was held that the map must be taken to be one which the parties recognised as correct and trustworthy, irrespective of the question whether it was or was not prepared with the authority of the Government.
1. G.N. Chaudhri, 21 WR 115 (Cal).
39.15. Presumption rebuttable.-
The presumption in section 83 (as in the other sections in this group), is based on the maxim that official acts are performed regularly. It will be presumed that Government, in the preparation of maps and plans for public purposes, will appoint competent officers to execute the work entrusted to them, and that such officers will do their duty. Thus, survey maps are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence as to the state of things at the time when they were prepared. They are not, however, conclusive, and may be shown to be wrong; but, in the absence of evidence to the country, they are judicially receivable as correct when made. Maps made for a particular purpose are not so presumed, as they are made post-litem motam.
39.16. Charts to be added-Recommendation.-
This section does not mention charts. However, for the reasons which we have stated while discussing an earlier section1 we recommend that charts should also be added in this section.
1. See discussion relating to section 36.
Section 84, which is derived from a similar provision in the previous Act in force in India on the law of Evidence,1 deals with certain books relating to the law of "any country"-the books mentioned are-
(a) a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and
(b) any report of a ruling of the courts of such country contained in a book purporting to be report of such ruling.
The provision is that the court shall presume the genuineness of such books. The presumption under the section is rebuttable. It is also to be noted that this section does not deal with relevance. It merely dispenses with the proof of the genuineness of official collections of laws and official or unofficial law reports. How far they are relevant is dealt with in section 38.
1. Evidence Act, 1855 (2 of 1855).
39.18. In this section, the words "any country" are wide enough to cover India, and it is not proposed to disturb the section by excluding India. We are mentioning this because, under an earlier section.1 We have made a recommendation to exclude 'India'. That section deals with the relevancy of statements as to law, and since relevancy is a question of fact, that section, in so far as it covers Indian law, is out of harmony with the mandatory provisions2 under which the court shall take judicial notice of Indian law. In the result, section 84 may be retained as it is.
1. Section 38.
2. Section 57.