Lawwatch

Proving Public Documents in Indian Judicial Proceedings

What is a document?

A document is a material substance on which any matter or thought is
expressed by means of letters, figures or marks, either singly or in
combination, for the purpose of recording them.

Any writing, a printed material, a map, an inscription on a rock, a
caricature, a anything marked by notches etc are examples of a document.

What is a public document?

Public document is a category of document or record, made as part of an
official act enjoined upon a public officer, while acting as an officer
of the sovereign authority, official bodies and tribunals, in
legislature, judicial or executive branch of government in India, the
commonwealth or a foreign country.

The record produced after the final act of signing alone comes under the
public document, but the preparatory documents do not.

A private document would be a public record if the private document is
to be filed and the public official is required to keep it as a
permanent record of anything written, said or done. Therefore, a public
record kept by the state government of private documents is a public
document.

All others are private documents

All documents, which do not come under the definition of public
documents under Section 74 of the Indian Evidence Act, 1872 (IEA), are
private documents. In other words every document which cannot be treated
as a public document is a private document. Therefore a deed of
contract, sale deed, mortgage deed or such other document is a private
document.

The mode of proving a public document and a private document is quite
different because of the different nature of them. The former is less
rigorous than the latter.

Provisions on documents in the evidence act

The Sections 61 to 73 of the IEA deal with provisions of proving
documents, preferably private documents and the Sections 74 to 78 of the
Indian Evidence Act, 1872 deal with proving public documents
specifically.

The Sections 79 to 90 of the IEA speaks about the presumption a court
must take in regard to a public document such as Gazette, maps,
collection of laws published by government, duly attested power of
attorney, electronic signatures, certified foreign judicial records,
books, thirty year old documents etc.

The production of documents in a court of law is regulated by the
provisions of the Code of Civil Procedure and Code of Criminal
Procedure.

The admissibility and relevancy of such documents are provided for
in Part I of the Indian Evidence Act.

What proving a document means

Proving a document, which depicts some facts, means proving the
fact/facts it carries.

Again the term proving a document or fact means the fact has been
brought before the court in such way the court believes or considers its
existence so probable. The party in the case must convince the court of
the fact in dispute in a way a prudent man is convinced in such a
situation.

In order to prove any fact direct or circumstantial evidence can be
given. Direct evidence might be that of a person who saw it being
written or signed. The evidence of the handwriting or the signature of
the document can be produced in the court to prove the document. The
onus of proving the execution of a document is on the person who asserts
it. A document, when it is produced in the court, carries with it some
prima facie presumption or proof of its existence as prescribed in
law. This presumption obligates the other party to object it, if he
wants to disprove the presumption.

Proving different kinds of document

The IEA prescribes some procedures for proving different kinds of
document.

If the defendant admits the document, the plaintiff need not have to
prove it. If it is necessary to prove a document, the party must prove
the sign or handwriting of the document, if it is a private one. For
that purpose the author of the document should depose orally before the
court and admit his signature or writing.

If the law prescribes that a document is to be attested, the attestation
of at least one attesting witness should be proved, if anyone is alive.
If no witness could be found, the party in the case must prove the
handwriting of one attesting witness and the signature of the person
executed the document.

A document, which need not be attested by law, must be proved as if it
is a normal, unattested document.

Proving the contents by primary or secondary evidence

Either documentary evidence or oral evidence can prove the existence
of any fact. The contents of a document have to be proved by either
primary evidence or secondary evidence.

Providing primary evidence means producing the original document
itself in the court. Primary evidence is the best evidence. Oral
testimony cannot normally be employed to prove the contents of the
document, but in some exceptional situation it is possible as prescribed
in the evidence act.

Mere production of the document in the court is not enough to prove the
contents if it is a private document. The writer of the document must
depose before the court to prove the truth of the contents of a
document. However if genuineness of a document itself is admitted by the
other party its contents also stand admitted and it needs no further
proof.

Mere marking of a document does not dispense with the duty of proving
the document. The document produced will have to be proved. When you
produce a document before the court you are bringing its contents before
it but you will have to prove the truth of the contents of the
document as well.

Proving secondary evidence, in regard to documentary evidence,
mainly means producing certified copies before the court (See Section 63
of the evidence act). A certified copy is a copy signed and certified as
true by the officer to whose custody the original is entrusted. It shall
bear the seal of the officer (see Section 76 of the IEA). The court
shall presume a certified copy as a genuine document but the other party
can rebut its genuineness.

But secondary evidence include the accurate copies made from the
original by mechanical process, copies made from or compared with such a
copy, counterparts of documents and oral accounts of the contents of the
documents by persons who has seen the contents.

Proving contents of documents orally

The documents must be normally proved by primary evidence (See Section
64 of IEA).

Oral accounts of the contents of a document by a person, who has seen
it, could be used as secondary evidence for proving a fact in issue (See
Section 63 of IEA). Normally contents of documents cannot be proved by
oral evidence (See section 59 of IEA).

Oral admissions as to the contents of a document are relevant when the
party proposing to prove them shows he is entitled to give secondary
evidence as to the contents of the document (See Section 22 of IEA).

When one can give secondary evidence

The circumstances justifying production of secondary evidence are listed
under Section 65 of the IEA. They are as follows:

  • When the original is in the possession or power of the opposite
    party (or any other person) and he is not producing it after giving
    due notice to him for its production. Sufficient notice, as
    prescribed in law or as reasonable, must be given to the possessor
    of the document.

  • When the original is in the possession of a person, who is either
    out of reach of the court or not subject to the process of the
    court, secondary evidence can be produced.

  • When the adverse party or his representative had admitted in writing
    the existence, condition or contents of the original. The
    admission must be a written one.

  • When the original has been lost or destroyed, or when the original
    cannot be obtainable within a reasonable time due to the laxity of
    the other party.

  • When the original is a public document. Producing a certified copy
    is the only way to prove a public document.

  • When any statute prescribes that a certified copy can be produced in
    evidence. For example, the Section 57 (5) of the Registration Act
    states that a certified copy of the sale deed issued from the
    Registration Office can be produced in evidence. Producing a
    certified copy is the only mode of proving such a document.

  • When the original is of such a nature that it cannot be easily
    moveable, such as inscription on a wall, or a large monument.

  • When the original consists of numerous accounts or other documents
    which cannot be conveniently examined in court and the fact to be
    proved is the general result of the whole collection. An expert can
    give such a general opinion.

Secondary evidence is slightly inferior kind of evidence. Each class of
secondary evidence listed above has equal status. In the absence of
primary evidence it is better to give secondary evidence.

Way to Issue certified copies of public documents

The Section 76 of the IEA deals with the manner of issuing certified
copies of public documents.

Under this Section a copy of a document can be issued by the legal
keeper of the document as a certified copy and that is regarded as good
evidence. But a certificate issued by marking as “true copy” cannot be
treated as a certified copy. The maker of the certificate must declare
his authority on the document by marking his designation and official
seal. The Section 76 is not an exclusive section in regard to how to
prove a public document.

A public document requires no rigorous proving whereas a private
document requires rigorous proving by production of primary evidence.
Calling a witness to the court is not necessary to prove a public
document. Mere production of it is enough for considering it in
evidence.

Mode of proving documents like laws, orders, etc

Other public documents like acts, government orders, notifications,
legislative proceedings, regulations proceedings of the Municipal bodies
etc can be proved by producing the certified copy of the head of the
department of the concerned government or body, or by producing the
records of the concerned department purporting to be printed by such
body or department.

Court presumes certified copy to be prima facie true

The court while considering the certified copies of any public document
must presume every certified copy issued by an officer of the government
as true when it is issued with due sign and seal but the certificate can
be rebutted with proper evidence if it is a fraudulent one.

The court is bound to draw a presumption that a certified copy is a
genuine document and the officer signed in the document has the official
character as claimed in the document.

Reason for treating public documents specially

The main reason is that public document is not easily liable to
corruption, alteration or misrepresentation. The whole community is
interested in its preservation. They are entitled to inspect them.

There are some practical difficulties also there in presenting them in
the court. The same document would be required for evidence in different
places at the same time and its continual movement from place to place
may lead to their destruction.

Public document is a rebuttable proof

Public document is statutorily declared as a proof of a fact or legal
right by itself. The court/tribunal is forbidden from entertaining any
further evidence on such an issue at the moment the document is produced
but its genuineness can be challenged by the adverse party.

Every certificate and certified copy of a public document, which is by
law prescribed as admissible in evidence and signed duly by the officer,
should be presumed to be genuine one by the court. However the
presumption is liable to be rebutted by the other party.

There is definitely a risk of errors in the document arising from
inaccurate transcription, either intentional or casual. But that can be
corrected only by rebuttal evidence.

Examples of some public documents

An electoral roll is a public document. It requires no formal proof.
Certified copies are enough proof.

A document which is brought into existence as a result of a survey,
inquiry or inquisition carried out by a judicial or quasi-judicial
authority is admissible as a public document, but by other kind of
authority is not.

If the document carries some fact recorded by a public officer whose
duty is to inquire into and report on that particular fact it is a
public document.

Records of revenue department maintained by revenue officer relating to
land revenue, survey and settlement are public documents.

The document issued by the concerned officer indicating salary and
allowances of an employ does not require corroboration or evidence to
prove them.

The records of development authorities are public documents which are
admissible in evidence. The annual report of a company filed as per the
companies act is a public document.

Police charge sheet is a public document. Certified copies of the order
of the civil court, FIR, charge sheet etc are public documents. A
statement under Section 164 CrPC is also a public document but the one
under Section 161 of the Criminal Procedure Code is not.

An order of sanction for prosecution by the Secretary to government is a
public document.

A copy of the certificate issued by a school headmaster is a public
document as he is an executive officer.

Hindu marriage register is a public document. Its contents can be proved
by producing certified copies. Similarly a death certificate is a public
document.

A registered power of attorney is not a public document as the
registration office keeps only a copy of the document but not the
original in its volume book. However a registered document has enough
sanctity which can be demolished only by resorting to proper procedure
prescribed in the evidence act.

The medical report prepared by the medical officer as discharge of his
duties in a Medico-Legal case, is a public document. The contents of
such documents are admissible in evidence. But neither the post-mortem
report nor any certificate issued by the doctor regarding the date of
death is a public document. They must be proved by the doctor concerned.

A school leaving certificate is a public document which falls within the
ambit of Section 74 of the Indian evidence act. It is admissible in
evidence without any formal proof.

Records of national banks are public documents. They are admissible
without further proof. The examination of the person who prepared the
document is not necessary.

Court presumes some documents as genuine

The court is mandated to take definite presumption as regards
genuineness of some documents under Sections 79 to 90A of the IEA.

The certified copies admissible in evidence, testimonies in courts,
government gazette, acts of legislature, maps or plans made and issued
by the government, a document executed as power of attorney, electronic
agreements signed by electronic signatures, certified copy of foreign
judicial records, published books, etc would be considered by the court
as genuine documents unless proved otherwise.

When a thirty year old instrument produced from a proper custody where
such deeds ought to be kept, then there is no need to prove the
signature, execution and attestation of that document, so as to
prove its genuineness. But it does not however ensure the correctness of
every statement contained in it. Whether its contents are true or not,
have to be proved like any other fact. If such a document or its copy
seems to be a fraudulent one, the other party can rebut its genuineness
by producing evidence. The court must take further action against the
fraud.

Oral evidence inadmissible in proving documents

The document is exclusive evidence as to contents of a document
normally. Oral evidence is normally inadmissible in order to explain the
contents of some documents such as contracts, grants or deeds for
dispossession of property which as per the law must be in writing. That
means oral evidence for constructing intention of such a document is
inadmissible, as per Sections 91 and 92 of the IEA.

In such cases the document itself would be the conclusive proof of the
contents of the document. No oral evidence can be given to contradict,
vary, add to or subtract from the terms and conditions of a transaction
which has been reduced to writing. This is called Parole Evidence.

There are some exceptions to the sections 91 and 92 as well.

Oral evidence to interpret ambiguous documents

Admissibility of oral evidence to interpret an ambiguous document comes
under Sections 93 to 98 of the IEA.

The general rule regarding interpretation of ambiguous document is that
a document with patent ambiguities (ambiguous, unintelligible or
uncertain on the face of it) cannot be cannot be proved by oral
evidence. For example, a legatee is left blank in a Will. It is a defect
that cannot be cured by any other means.

But a document with latent ambiguities (not uncertain or
unintelligible on the face of it, but ambiguous) can be proved by
additional oral evidence. In such a document the author had definite
intention but it was not expressed clearly. In case of equivocal or
imperfect description (such as the words would equally apply to any one
of several persons) extrinsic evidence is admissible to explain latent
ambiguities. Therefore additional evidence is admissible in cases of
documents with latent ambiguities in order to discover the writer’s
latent but definite intention.

Conclusion

These are the legal provisions relating to public documents provided in
the Indian Evidence Act.

Proving a public document is an easy task when compared to proving an
equivalent private document. This is mainly because the former is kept
by the public offices and for public purposes without much possibility
of manipulation as in the case of a private document ordinarily kept in
private domain.

References

Indian Evidence Act, 1872

The Law of Evidence by Ratanlal & Dhirajlal: The Law of Evidence, 25^th^
ed. Gurgaon, LexisNexis, 2015

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