Law of Evidence

By Nizam Azeez Sait,

MODULE No. 19

DOCUMENTARY EVIDENCE

This is the 19th Module of the subject ‘Law of Evidence’, covering different facets/aspects of Documentary Evidence in Chapter V in part III comprising of the Sections 56 to 93 of the Bharatiya Sakshya Adhiniyam (Sections 61 to 90 of the Evidence Act).

Sections 61,62 and 63 of the Bharatiya Sakshya Adhiniyam (Section 65 A and 65 B of the Evidence) on Electronic Record will be dealt with in a separate module (See Module 20).

Sections 67 to 71 (Sections 68 to 72 of the Evidence Act) on the mode of proof of execution of document required by law to be attested will be dealt with in a separate module (See Module 21).

Sections 78 to 93 (Sections 79 to 90 A of the Evidence Act) deal with presumptions as to documents, which would be covered in the module dealing with presumptions (See Module 22).

MODULE INDEX

1. Introduction

2. Document, Contents of a Document and Documentary Evidence

2.1. Document

2.2. Specific Inclusion of “Electronic Record” in the Definition Document

2.3. Contents of a Document

2.4. Documentary Evidence

3. Proof of Disputed Facts in A Document

4. Mere production of document is not proof of contents of document

5. Proof of Contents of A Document – Primary And Secondary Evidence

5.1. Primary Evidence
5.2. Secondary Evidence
5.3. When Secondary Evidence is admissible
5.4. Non-Production of The Original Should Be Accounted For
5.5. Formal Application for Adducing Secondary Evidence Is Not Mandatory
5.6. Secondary Evidence Not Admissible of Insufficiently or Unstamped Original
5.7. Secondary Evidence of Public Document – Certified Copy is Admissible
5.8. Notice to Produce under Section 64

6. Proof of Contents & Proof of Genuineness

7. Methods of Proving the Handwriting
8. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved.
9. Taking the Document on Record as Evidence, Otherwise Than Through A Witness, Is Unknown To Law Except With Consent

10. Mere Marking May Not Amount to Proof

11. Registration Is Not Proof of Execution

12. Presumption of Genuineness of Registered Documents

13. The Registration of Documents Does Not Per se or Ipso Facto Absolve Proof of Execution of Will

14. Comparison of signature, writing etc. by the Court and Taking of Specimen Writing – Section 72

15. Analysis of Section 72

16. Consequence of Non-Adherence of Direction under Section 72 and Failure to Provide Specimen Writing

17. The Court Has Power to Compare Handwriting but Such Power Should Be Exercised with Caution
18. Constitutionality of Section 73 of the Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam)

19. Expert Opinion on Handwriting

20. Proof as to digital signature

21. Private And Public Document

21.1. Section 74 (b) Public Records Kept in Any State of Private Documents

21.2. Registered Sale Deed is not Public Record Kept of Private Document

21.3. Parliamentary Standing Committee Report Is Public Document – Court Can Take Judicial Notice

21.4. A Document Issued by The Election Commission Is Public Document

21.5. Pleadings Filed in Court Are Not Public Documents

21.6. The Record of The Court and The Record Of The Acts Of The Court – Statement U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (U/S.164 of Cr.P.C) Is Public Document
21.7. Whether An Accused is Entitled to Copy of the Statement Recorded Under Section U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 164 CrPC) Before the Final Report is Filed
21.8. Third Party/Stranger’s Right to Obtain Copy of the Statement Recorded Under Section 164 CrPC (U/S 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
21.9. The Court Bailiff’s Report of Delivery of Property or Service of Summons – Whether is Public Document and Its Evidentiary Value
21.10. Certified copies of public documents

21.11. Proof of documents by production of certified copies – Section 76

21.12. Certified Copies Of Public Document Prove Contents Of Document With Out Calling Its Maker As A Witness

21.13. Proof of Official Documents

21.14. Mode of Proof of Statutory Notifications

21.15. Judicial Notice of Notifiication under Telegraph Act as Law under Section 52(1)

21.16. Probative Value of Entries in Public Record

22. Admissibility of Audio and Video Tape Records

1. Introduction

Document is defined in Section 2 (d) of the Bharatiya Sakshya Adhiniyam (Section 3 of the Evidence Act). Section 2(e) (ii) defines Documentary Evidence. Chapter V in part III of deals with Documentary Evidence. Chapter V comprises of 56 to 93 (Sections 61 to 90A of the Evidence Act).

Sections 56, 57, 58, 59, 60 and 64 (Sections 61 to 66 of the Evidence Act) deal with proof of contents of documents and Primary and Secondary Evidence.

Sections 61,62, and 63 (Section 65 A and 65 B of the Evidence Act) deal with Electronic Record. (See Module 20)

Section 64 (Section 67 of the Evidence Act) deals with mode of proof of signature and handwriting.

Sections 67 to 70 (Sections 68 to 71 of the Evidence Act) deal with mode of proof of execution of document required by law to be attested. (See Module 21)

Section 71 (Section 72 of the Evidence Act) deals with Proof of attested document not required by law to be attested. (See Module 21)

Section 72 (Section 73 of the Evidence Act) deals with comparison of signature by the Court and of taking specimen signature.

Section 73 (Section 73 A of the Evidence Act) Proof as to verification of digital signature.

Sections 74 to 77 (Sections 74 to 78 of the Evidence Act) deal with public documents.

Sections 78 to 93 (Sections 79 to 90 A of the Evidence Act) deal with presumptions as to documents. (See Module 22)

2. Document, Contents of a Document and Documentary Evidence

In law of Evidence, the contextual meanings of ‘the Document’, ‘Contents of a Document’ and ‘Documentary Evidence’, assumes great significance.

a. Document

Now let us see what exactly a document is.

“Document”, as per Section 2(d) of the Bharatiya Sakshya Adhiniyam (Section 3 of Evidence Act), means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic record.

As per the illustrations annexed to the definition, a writing is a document; words printed, lithographed or photographed are documents; a map or plan is a document; an inscription on a metal plate or stone is a document; a caricature is a document; An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.

b. Specific Inclusion of “Electronic Record” in the Definition Document

In the Evidence Act “Electronic Record” was not specifically included in the definition of ‘Document’ in S.3. Now in the definition of ‘Document’ in the Section 2(d) of the Bharatiya Sakshya Adhiniyam, ‘electronic record’ is specifically included. Illustration (vi) provides that, an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

c. Contents of a Document

In Suresh C V v. Tobin (Minor) and another 2013 (1) KLT 293, High Court of Kerala explained the meaning of ‘contents of a document’ for the purpose of Sections 59, 61 and 62 of the Evidence Act (Sections 54, 56, 57 of the Bharatiya Sakshya Adhiniyam). The Court observed:

The expression, “contents of documents” is not defined in Evidence Act. “Contents” as per ‘Oxford Advanced Learner’s Dictionary’ (7th Edition) means, “the things that are contained in something; for example, contents of a box, contents of a book, stomach etc. The word, “content”, usually is used in plural. If a box contains chocolates, books and pencils, those are its contents”. Hence, contents of a document means all the things which are contained in the document.

A document may, thus, contain several “things”, such as writing, figures, marks, print, inscription, etc. It may also contain various other things than mere writing. Therefore, all the things as may be contained in the “document”, as defined under S.3 of Evidence Act (Sections 2(d) of the Bharatiya Sakshya Adhiniyam), constitute “contents of a document”. That a document contains a particular writing; that it contains a type – written matter or a particular handwriting, a writing in ink, an erasure, interpolation, painting, fold, etc. constitute “contents of documents.”

d. Documentary Evidence

As per Section 2(e)(ii) (Section 3 of the Evidence Act), all documents produced for the inspection of the Court are called documentary evidence.

A letter, a map, an agreement, a sale deed, a mortgage deed etc produced in evidence before the court are instances of documentary evidence.

3. Proof of Disputed Facts in A Document

In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, 1981 (1) SCC 80: AIR 1981 SC 2085 reference is made to proof of facts stated in a document. The Court observed:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”   

In Suresh C V v. Tobin (Minor) and another 2013 (1) KLT 293, High Court of Kerala following the above judgment of the Supreme Court in Ramji Dayawala & Sons. Held as under:

If “facts” as defined under S.3 (Section 2(f) of the Bharatiya Sakshya Adhiniyam) are stated or narrated in a document, production of document may prove that the document contains a “statement of facts” relating to such “facts”. But, it will not prove whether the “facts” stated or narrated therein exist or are true. Such “facts” will not stand proved by mere production of the document, since they do not constitute “contents of document”. By virtue of S.59 of Evidence Act, (Section 54 of the Bharatiya Sakshya Adhiniyam) such facts have to be proved by oral evidence itself.

There is no presumption that all “facts” stated in a document are true or that they exist. Even if execution of the document is admitted by the executant, if he disputes the correctness, truth or existence of facts stated in the document and those are in issue, such facts will have to be proved, as per evidence which is admissible, in accordance with law. The mere admission of execution of a document may prove that such a document is executed but that will not further prove that the facts stated in the document exist or that those are true, especially if such facts are disputed and are in issue.

See also State of Bihar v. Radhaa Krishna Singh, AIR 1983 SC 684, Narbada Devi Gupta v. Birendra Kumar Jaiswal and Another, AIR 2004 SC 175, Oriental Insurance Co. Ltd. v. Premlata Shukla and Others, 2007 (13) SCC 476, Dharmarajan and Others v. Valliammal and Others, AIR 2008 SC 850, Madan Mohan Singh and Others v. Rajni Kant and Another, AIR 2010 SC 2933 : 2010 (9) SCC 209 and Joseph John Peter Sandy v. Veronica Thomas Rajkumar and Another, AIR 2013 SC 2028.

4. Mere production of document is not proof of contents of document

Mere production will not prove a document. Generally, Witness must be examined to mark and prove the document and its contents. Document must be duly proved in the manner known to law.

In LIC of India and Another v Ram Pal Singh Bisen 2010 (4) SCC 49, Supreme Court, observed:

“Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.

5. Proof of Contents of A Document – Primary And Secondary Evidence

By virtue of Section 54, All facts, except “contents of documents” may be proved by oral evidence. Thus, “contents of documents” cannot generally be proved by oral evidence.

As per Section 56, “contents of documents” can be proved either by primary or by secondary evidence.

As per Section 57, “primary evidence” means the document itself produced for the inspection of the Court.

Therefore, a joint reading of Sections 54, 56 and 57 of the Bharatiya Sakshya Adhiniyam (Sections 59, 61 and 62 of Evidence Act) reveals that “contents of documents” can be proved by production of the document itself for the inspection of the Court or by secondary evidence, when it is permitted.

In P. C Purushothama Reddiar v.  S. Perumal AIR 1972 SC 608 it was held:

“Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.”

5.1 Primary Evidence

Section 57 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 62 of the Evidence Act) along with explanations reads as under:

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. —Where a document is executed in several parts, each part is primary evidence of the document.

Explanation 2. —Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 3. —Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Explanation 4. —Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 5. —Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 6. —Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 7. —Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Illustration.

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Corresponding Section 62 in the Indian Evidence Act 1872, contained only 2 explanations. Explanation 1 in the Indian Evidence Act 1872 is split up and made into 2 explanations as Explanations 1 and 2 in Section 57 of the Bharatiya Sakshya Adhiniyam. Explanations 4 to 7 are also added and they relate to Electronic Records.

In Navas P.H v Abdul Lathief K.M and another, 2018 (1) KLT 661, High Court of Kerala, with respect to the first Explanation in section 62 of the Evidence Act observed as under:

“The first part of Explanation 1 to S.62 (Explanation 1 of Section 57 of the Bharatiya Sakshya Adhiniyam) refers to what is known as duplicate, triplicate or the like. The expressions “executed in parts” refer to the method in which documents are executed. It is convenient sometimes that each party to a transaction should have a complete document in his own possession. To effect this, the document is written as many times as there are parties and each document is executed, signed or sealed by all the parties. Then any one of them may be produced as primary evidence of the contents of the document. When an instrument is executed in duplicate or triplicate or the like and each party keeps one, each instrument is treated as original and hence each is primary evidence of all the others.

Sometimes an agreement is prepared in two parts, of which one is the original and the other one is the photocopy. If both the parties sign the original as well as the photo copy of the agreement after comparing the photocopy with the original, then the photocopy of the agreement signed by the parties is primary evidence of the original agreement. Thus, it is clear that if any document is executed in two or more parts and the executants sign in all the parts, then, each part is primary evidence of the contents of the other part.”

In, Rajesh Rai v State of Sikkim, 2002 CriLJ 1385, High Court of Sikkim, considered the question whether the carbon copy of the General Diary entries prepared by the same process by which the first copy was prepared, is primary evidence or not. The court observed:

“The General Diary entries were proved by Shri S. K. Pradhan who was posted at Gyalzing Police Station as the second Officer – in – Charge at the relevant time. He has deposed that every Police Station diary contains two duplicate pages and while writing the diary, carbon is placed between the two pages and whereas the original is sent to the concerned Superintendent of Police, the carbon copy is retained at the Police Station for the purpose of record. He has further deposed that the original of the General Diary entry may be lying with the concerned Superintendent of Police. Thus, the carbon copy on the record was prepared by the same process by which the first copy was prepared and as such, each was primary evidence of the contents of the rest within the meaning of explanation 2 to S.62 of the Evidence Act (Explanation 3 to Section 57 of the Bharatiya Sakshya Adhiniyam). In this view, we get support from Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702: 1989 CriLJ 841. As such, we hold that the General Diary entries marked exhibit A – 1 are admissible in evidence.”

In Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702, Carbon copy of the medical certificate was admitted as primary evidence. it was held:

“…since the carbon copy was made by one uniform process the same was primary evidence within was the meaning, of Explanation 2 to S.62 of the Evidence Act (Explanation 3 to Section 57 of the Bharatiya Sakshya Adhiniyam)., Therefore the medical certificate Ex. PE was clearly, admissible in evidence.”

5.2 Secondary Evidence

The Best Evidence is the Primary Evidence that is the Original of the document itself.

Section 59 of the Bharatiya Sakshya Adhiniyam (Section 64 of the Evidence Act) states that Documents must be proved by primary evidence except in the cases where secondary evidence is admissible.

Section 60 of the Bharatiya Sakshya Adhiniyam (Section 65 of the Evidence Act), provides situations in which secondary evidence may be admitted.

Section 58 of the Bharatiya Sakshya Adhiniyam (Section 63 of the Evidence Act) specifies different categories/modes of Secondary Evidence.

Section 58 categorises 8 kinds of secondary evidence as follows:

Secondary evidence includes—

  • certified copies given under the provisions hereinafter contained;
  • copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
  • copies made from or compared with the original;
  • counterparts of documents as against the parties who did not execute them;
  • oral accounts of the contents of a document given by some person who has himself seen it;
  • oral admissions;
  • written admissions;
  • evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Illustrations(a) to (d) annexed to the provision reads as under:

Illustrations.

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

Section 58 of the Bharatiya Sakshya Adhiniyam (Section 63 of the Evidence Act) specifies different categories/modes of Secondary Evidence. Section 63 of the Evidence Act contained only 5 clauses. In the Bharatiya Sakshya Adhiniyam The provision is made more broader with the addition of the following 3 clause (vi), (vii), and (viii).

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Section 59 (Section 64 of the Evidence Act) lays down that documents must be proved by primary evidence which means the original itself except in the cases mentioned in the subsequent provisions.

5.3 When Secondary Evidence is admissible

Section 60 (Section 65 of the Evidence Act) categorises the various contingencies in which the reception of the secondary evidence with regard to a document is permissible instead of the primary evidence/original document.

Section 60 reads as follows:

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: —

(a)when the original is shown or appears to be in the possession or power—

(i) of the person against whom the document is sought to be proved; or

(ii) of any person out of reach of, or not subject to, the process of the Court; or

(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

The Section further provides in the Explanation the type of secondary evidence permissible with respect to each of the situations enumerated above as follows:

Explanation. —

For the purposes of— (i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;

(ii) clause (b), the written admission is admissible;

(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

(iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.

The best evidence is the original of the document itself produced for the inspection of the court but in exceptional circumstances as enumerated in S. 60 (S 65 of the Evidence Act) the court permits secondary evidence and such circumstances must be convincingly brought to the notice of the court before tendering secondary evidence.

5.4 Non-Production Of The Original Should Be Accounted For

For admission of the Secondary evidence the non – production of the original should be accounted for, so as to bring it within one or other of the cases provided for in Section 60 of the Bharatiya Sakshya Adhiniyam (section 65 of the Evidence Act). The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.

Supreme Court has in many cases reiterated, the general rule that secondary evidence is not admissible until the non – production of primary evidence is satisfactorily explained and foundational facts are proved.

Case Law

In J. Yashoda v. K. Shobha Rani, 2007 (5) SCC 730, after analyzing the language employed in S.63 and S.65 (a), the Supreme Court held as follows: –

“S.65 (Section 60 of the Bharatiya Sakshya Adhiniyam) however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non – production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section.”

In M. Chandra v. M. Thangamuthu and Other, 2010 (9) SCC 712, it has been held as follows: –

“It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”

In H. Siddiqui (Dead) by Lrs. v. A. Ramalingam, 2011 (4) SCC 240, while

dealing with S.65 of the Evidence Act (Section 60 of the Bharatiya Sakshya Adhiniyam), the Supreme Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non – production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.

In Kaliya Vs. State of Madhya Pradesh 2013 (10) SCC 758, Dr. B. S. Chauhan; S. A. Bobde, JJ, the Supreme Court observed:

Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal and Another v. M.S.S. Food Products, 2012 (2) SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.

5.5 Formal Application For Adducing Secondary Evidence Is Not Mandatory

In Dhanpat v. Sheo Ram (Deceased) Through Lrs. and Others AIR 2020 SC 2666: 2020 (16) SCC 209, a Supreme Court bench comprising Justices L. Nageswara Rao; Hemant Gupta, held:

“There is no requirement that an application is required to be filed in terms of S.65(c) of the Evidence Act (Section 60 (c) of the Bharatiya Sakshya Adhiniyam) before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”

5.6 Secondary Evidence Not Admissible of Insufficiently or Unstamped Original

In Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Others 1971 (1) SCC 545: AIR 1971 SC 1070, the Supreme Court observed:

“13. The first limb of S.35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by S.63 of the Indian Evidence Act (Section 58 of the Bharatiya Sakshya Adhiniyam) would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. S.35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of S.35. ‘Instrument’ is defined in S.2 (14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of

 the Stamp Act.

  1. If S.35 only deals with original instruments and not copies S.36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words “an instrument” in S.36 must have the same meaning as that in S.35. The legislature only relented from the strict provisions of S.35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of S.36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.”

In Hariom Agrawal v. Prakash Chand Malviya  AIR 2008 SC 166: 2007 (8) SCC 514, a three judges bench of the Supreme Court, reiterated that:

“It is clear from the decisions of this Court and a plain reading of S.33, S.35 and S.2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under S.35 of the Stamp Act. S.33 or S.35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of S.2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.”

5.7 Secondary Evidence of Public Documment – Certified Copy is Admissible

In, Tukaram S. Dinghole v. Manikrao Shivaji kokate, 2010 (4) SCC 329: AIR 2010 SC 965, the Supreme Court held:

“The general rule is that secondary evidence is not admissible until the non – production of primary evidence is satisfactorily proved. However, clause (e) of S.65 (Section 60 (e) of the Bharatiya Sakshya Adhiniyam), which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is “public document” secondary evidence is admissible even though the original document is still in existence and available. S.74 of the Evidence Act defines what are known as “public documents”.”.

5.8 Notice to Produce under Section 64

Section 64 of the Bharatiya Sakshya Adhiniyam (Section 66 of the Evidence Act), provides that the Secondary evidence of the contents of the documents referred to in Section 60 (a) of the Bharatiya Sakshya Adhiniyam (section 65, clause (a) of the Evidence Act), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:–

(a) when the document to be proved is itself a notice;

(b) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(d) when the adverse party or his agent has the original in Court;

(e) when the adverse party or his agent has admitted the loss of the document;

(f) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

6. Proof of Contents & Proof of Genuineness

Proof of contents of document is covered by Sections 56 to 64 of the Bharatiya Sakshya Adhiniyam (sections 61 to 66 of the Evidence Act).

Proof of genuineness is covered by covered by Sections 65 to 72 of the Bharatiya Sakshya Adhiniyam (sections 67 to 73 of the Evidence Act).

Documents required to be attested are to be proved in accordance with Section 67 of the Bharatiya Sakshya Adhiniyam (section 68 of the Evidence Act (See Module 21).

Proof of document is generally offered by the author of the document and when the person who wrote or signed is available and subject to the process of the court and not examined, the court may draw adverse inference (See, Biswanath Rai v Sachidanand, AIR 1971 SC 1949, Om Prakesh Berlia v Unit Trust of India, AIR 1993 Bom 1, Muddasani Sarojana v Muddasani Venkat Narasaiah, Air 2007 AP 50)

7. Methods of Proving the Handwriting

Section 65 of the Bharatiya Sakshya Adhiniyam (Section 67 of the Evidence Act) is an important provision and it prescribes that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

The section does not lay down as to how the handwriting/signature is to be proved. The general rule is that no writing can be admitted in evidence unless its execution is proved or admitted.

In The State (Delhi Administration) v. Pali Ram, 1979 (2) SCC 158: AIR 1979 SC 14: 1979 CriLJ 17, it was observed:

“Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person:

(1) By an admission of the person who wrote it.

(2) By the evidence of some witness who saw it written.

These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are:

(i) By the evidence of a handwriting expert. (S.45) (Section 39 of the Bharatiya Sakshya Adhiniyam)

(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (S.47) (Section 41 of the Bharatiya Sakshya Adhiniyam)

(iii) Opinion formed by the Court on comparison made by itself. (S.73) (Section 72 of the Bharatiya Sakshya Adhiniyam)

All these three cognate modes of proof involve a process of comparison.

In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document.

In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned.

In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned.” (see also S Gopal Reddy v State of Andhra Pradesh, AIR 1996 SC 2184)

On the basis of the various provisions of the Evidence Act and the case laws based on it, the following modes are generally recognized for proving the signature/handwriting:

i. By calling the person who signed or wrote the document – Section 67 of the Bharatiya Sakshya Adhiniyam (S.65 of the Evidence Act)

ii. By calling a person in whose presence the document was signed or written – Section 67 of the Bharatiya Sakshya Adhiniyam (S.65 of the Evidence Act).

iii. By calling a handwriting expert – Section 39 of the Bharatiya Sakshya Adhiniyam (S.45 of the Evidence Act).

iv. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written – Section 41 of the Bharatiya Sakshya Adhiniyam (S.47 of the Evidence Act).

v. By comparing in Court the disputed signature or writing with some admitted signature or writing – Section 72 of the Bharatiya Sakshya Adhiniyam (S.73 of the Evidence Act).

vi. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it- Section 19 of the Bharatiya Sakshya Adhiniyam (S.21 of the Evidence Act).

vii. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person – Section 26(b) of the Bharatiya Sakshya Adhiniyam (S. S.32(2) of the Evidence Act).

viii. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g. by the scribe who signed on behalf of the executant.

ix. By other circumstantial evidence.

In Chandrashekaran Nair v. M/s Olympic Credit Corporation and Another 2014 (2) KLT 242, a division bench of the High Court of Kerala Speaking through Justice Abraham Mathew, taking a stricter view found that though the promissory note was marked as exhibit through witness there was no proof of execution. The Court observed:

The other document allegedly executed by the appellant is Ext. A1 promissory note. Its execution is specifically denied by the appellant in his written statement as well as in his evidence. The burden is on the first respondent to prove its execution by the appellant. In his examination in chief the first respondent stated that it is the defendants who have signed Ext. A1 promissory note and they signed it at his office. This is only a repetition of the allegation in the plaint and is not evidence of execution of the document. Conscious of it, the learned counsel for the first respondent by asking a leading question brought out that they signed it before him. The presumption is that if the leading question had not been put, the witness would not have given that answer. The statement is not voluntary and it cannot be taken into account. Except this answer, which is only to be ignored, there is nothing in his evidence to prove execution of Ext. A1 promissory note by the appellant.

8. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved.

In Velayudhan v. Velayudhan AIR 2001 Ker. Velayudhan v. Velayudhan (Sankarasubban; A. Lekshmikutty, JJ.) AIR 2001 Ker. 123: 2001 (1) KLT 392)123: 2001 (1) KLT 392, a division bench of the Kerala High Court surveyed through various judgments of different High Courts and correctly held that mere admission of signature will not prove execution and shift the Onus of proof. Court inter alia observed:

We found three types of cases: (1) When defendants merely submitted that signed papers were entrusted to a person and those papers were made use of for the purpose of executing an agreement. (2) The signed papers were given on the understanding that a particular document will be made. But contrary to that assurance, a different document was fabricated. (3) There are third sets of cases where the defendants even though have signed the documents, never intended to bring it in force. The Patna High Court while taking the view that presumption cannot be in favour of the plaintiff held that presumption under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) and the illustrations given there “are based on long experience and have been drawn so often by Judges in England as well as in this country that many of them have come to be regarded almost as rules of law. The same however cannot be said with regard to the presumption, which we are asked to draw in this case considering that it is not too uncommon in this country for ignorant people to put their thumb impression on blank pieces of paper”. Further, it was held that S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) is a permissive and not a mandatory section and the court may, having regard to the circumstances of a particular case, refuse to raise a presumption in that cases such a presumption may be properly raised. On the other hand, the Nagpur High Court took the view that if nothing else is known then the mere fact that a document is proved to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. In our opinion, this inference arises in India directly from S.114 of the Evidence Act.

  1. To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person’s name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document.
  1. In Ramlakhan Singh v. Gog Singh, AIR 1931 Patna 219, a Division Bench of the Patna High Court held that the onus cannot be discharged merely proving the identity of the thumb impression. It must be further proved that the thumb impression was given on the document after it had been written out and completed. The fact that the defendant’s thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed or in other words, that the thumb impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly. Regarding the presumption under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), the Court held that although a certain presumption may arise in favour of the plaintiff, yet it may be rebutted at the same time by circumstances brought into light in the plaintiff’s own evidence by means of cross examination or otherwise and independently of the evidence adduced by the defendant. Thus, the Court held that the mere admission of the thumb impression or signature does not shift the burden from the plaintiff. In the same volume in Chulhai Lal Dass v. Kuldip Singh and Others, AIR 1931 Patna 266, another Division Bench took the view that where the defendant admits only that he had put a thumb mark or signature on a document which was not hand note sued upon, the admission does not amount to admission of the execution of the hand note and consequently the burden of proving that the particular hand note sued upon was duly executed by the defendant is upon the person issuing upon the same.

Person who signs the paper may not know what are the conditions, which will be imposed by the other side. Hence, in such circumstances, a general proposition cannot be laid down that the burden should be on the person, who has subscribed his signature to a blank paper. As it was stated in AIR 1931 Patna 219, the fact that the defendant’s thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. Thus, evidence that has to be adduced by the plaintiff in such case will be less onerous than in cases where there is complete denial of signature and execution. But if the plaintiff’s evidence is not sufficient or unreliable that onus cannot be said to be discharged. We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. The plaintiff may give evidence regarding the execution of the document. If the fact of thumb impression or signature is admitted, that will give more reliability to the plaintiff’s evidence. If such evidence adduced by the plaintiff is reliable and if the plaintiff is able to discharge his burden sufficiently, then onus will shift on the defendant to show that he had not executed the document. We only say that the plaintiff cannot succeed in the case without giving evidence. Because the defendant had admitted his signature, he had to give some evidence to show that the document has been properly executed. Further things depend upon the evidence adduced and on facts and circumstances of each case. When both sides have adduced evidence, the question of burden to proof vanishes into the air.

9. Taking the Document On Record As Evidence, Otherwise Than Through A Witness, Is Unknown To Law Except With Consent

In Kota Sreevalli and Others v Chinni Seetharamaiah and others, AIR 2005 AP 521, Andhra Pradesh High Court, speaking through L. Narasimha Reddy, observed:

The third and most important aspect is about the proof of the pro-notes, marked as Exs. A-1 to A-17. Here again, the effort is not to delve the extent of proof, but the very absence of it. The Evidence Act mandates that any document can be said to have been proved, only when the party to it, deposes orally. Section 67 (Section 65 of the Bharatiya Sakshya Adhiniyam) thereof prescribes the procedure in this regard. In certain cases, apart from the executants of the documents, the witnesses, or attestors, to the same, are required to be examined. The Evidence Act does not extend the facility of mere filing of the documents and drawing an inference, as to proof thereof, except where they fall into the category of documents referred to, in Section 79 to 90 (Sections 78 to 92 of the Bharatiya Sakshya Adhiniyam). There may be exceptional cases, where the defendant in a suit may admit the execution of the document. In such an event, the plaintiff does not have to undertake the exercise of proving it. Even in such cases, the documents are required to be introduced, through a witness. Taking the document on record, otherwise than through a witness, is almost unknown to law. The exception is where, both the parties agree for certain documents to be taken on record, with consent. The record in this case does not disclose that there was such a consent. In fact, there were serious disputes about the genuinity, binding nature, legality and enforceability of all these documents. That being the case, it was not at all proper on the part of the trial Court to have decreed the suit, though not a single person was examined as a witness.

10. Mere Marking May Not Amount To Proof

Marking of document is the process of numbering a document and admitting the same in evidence by the court.

Mere Marking does not generally dispense with proof of document. (See Sait Tarajee Khimchand v Yelamarti Satyam Satteyya AIR 1971 SC 1865),

In Sait Tarajee Khimchand v Yelamarti Satyam Satteyya, Supreme Court observed:

The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiff’s books would not have supported the plaintiffs.

In Kaliya Vs. State of Madhya Pradesh 2013 (10) SCC 758, Dr. B. S. Chauhan; S. A. Bobde, JJ, the Supreme Court observed:

Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar and Others v. Bhagwanpuri Guru Ganeshpuri and Another, AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India and Another v. Rampal Singh Bisen, 2010 (4) SCC 491).

In this regard, in Chandrashekaran Nair v. M/s Olympic Credit Corporation and Another 2014 (2) KLT 242, a division bench of the High Court of Kerala Speaking through Justice Abraham Mathew, rejected a document which was though mechanically marked by the court below as exhibit was not in fact duly tendered in evidence and proved. The Court observed:

In the minutes of the lower Court it is recorded that on 02/04/2001 PW 1 was examined and Exts. A1 to A7 marked. It is seen from its judgment that the ‘hire purchase agreement’ alleged to have been executed by the appellant and the second respondent was marked Ext. A7 in the evidence. The document bears the exhibit seal of the Court. But it is surprising to note that this document was not tendered in evidence through PW 1, the only witness examined by the 1st respondent. It is not known how it happened to be affixed with the exhibit seal. Mere affixing exhibit seal does not make document evidence in the case. Only when it is tendered in evidence and the Court receives it in evidence, it becomes part of the evidence. Marking of a document is only a ministerial act. So, Ext. A7 which has not been made part of the evidence cannot be acted upon merely because the exhibit seal has been affixed on it. In the evidence of PW 1, the first respondent, there is not even a suggestion that the appellant, or for that matter the second respondent, has executed the document.

Marking by consent dispenses proof (See A V S Perumal v Vadivelu Asari AIR 1986 Mad 341)

11. Registration Is Not Proof of Execution

Registration endorsement proves only admission of execution made by the executant to the Registrar, it is not direct proof of execution. Certificate of Registration is relevant (See Ramakrishna Ganpat Futane v Mohammed Kassim 1973 Bom 242, Irrudayam Ammal v Salayath Mary, AIR 1973 Mad 421).

12. Presumption of Genuineness of Registered Documents

There is a long line of decisions holding that registered document carries with it a presumption that it was validly executed and the burden shifts to the party who challenges the genuineness of the transaction. Such presumption is drawn by virtue of the following provisions of the Registration act:

Section 35 (1) and 35(2) of the Registration Act reads as follows:

(1)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or

          (b)     if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or

          (c)      if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution,

the registering officer shall register the document as directed in sections 58 to 61, inclusive.

          (2)     The Registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

Section 52 reads as:

Duties of registering officers when document presented

(1)(a) The day, hour and place of presentation, 1[the photographs and finger-prints affixed under section 32A,] and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

          (b)     a receipt for such document shall be given by the registering officer to the person presenting the same; and

          (c)      subject to the provisions contained in section 62, where a document is admitted to registration, a true copy thereof shall, without unnecessary delay, be filed in the appropriate book according to the order of its admission.

          (2)     All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

Section 58 reads as:

Particulars to be endorsed on documents admitted to Registration

(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely:–

          (a)     the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

          (b)     the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

          (c)      any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

          (2)     If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

Section 59 reads as:

Endorsements to be dated and signed by registering officer

The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.

Section 60 reads as:

Certificate of registration

(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the true copy of the document has been filed.

          (2)     Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.

Section 119 (e) and (f) of the Bharatiya Sakshya Adhiniyam (Section 114 (e) and (f) of the Evidence Act) provides that:

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume–

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

Case Law

Following are some of the Supreme Court decisions, which held that the registered document carries with it a presumption that it was validly executed:

In Prem Singh v Birbal, AIR 2006 SC 3608, the Supreme Court Observed:

“There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption”.

In Abdul Rahim v Abdul Zabar, AIR 2010 SC 211, the Supreme Court Observed:

Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed.

(See also Piara v Fatnu AIR 1929 Lah 711)

In Jamila Begum v Shami Mohd AIR 2019 SC 72 the Supreme Court Observed:

A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.

In Rattan Singh and Others v. Nirmal Gill and Others AIR 2021 SC 899, the Supreme Court relied on Prem Singh v Birbal and reiterated the above proposition.

Presumption of validity and correctness of registered document was again upheld in Majumder v Dipak Kumar Saha, AIR 2023 SC 506 and the judgment was authored by Justice B V Nagaratna.

13. The Registration Of Documents Does Not Per se or Ipso Facto Absolve Proof Of Execution of Will

In Bagat Ram and another v Suresh and others, 2003 (12) SCC 35: AIR 2004 SC 436, the Supreme Court inter alia considered the issue   Whether registration of a Will or codicil dispenses with the need of proving the execution and attestation of Will in the manner required by S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) ? The Court held:

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam). Under S.58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

(1)  the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

 Such particulars as are referred to in S.52 and 58 of the Registration Act are required to be endorsed by the Registrar along with his signature and date on the document under S.59 and then certified under S.60. A presumption by reference to S.114 [Illustration (e)] of the Evidence Act (Section 119 (illustration e) of the Bharatiya Sakshya Adhiniyam) shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation, within the meaning of S.63(c) of the Succession Act or S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (see Kunwar Surendra Bahadur Singh v. Thakur Behari Singh (AIR 1939 PC 117)). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

14. Comparison of signature, writing etc. by the Court and Taking of Specimen Writing – Section 72

Section 72 of the Bharatiya Sakshya Adhiniyam (Section 73 of the Evidence Act) reads as follows:

  1. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any necessary modifications, to finger impressions.

15. Analysis of Section 72

This section has two parts the first part relates to the comparison of admitted or proved signature or writing with the disputed signature or writing by the Court and the 2nd part relates to directing any person to give specimen writing for comparison.

In, the State (Delhi Administration) v. Pali Ram, 1979 (2) SCC 158: AIR 1979 SC 14: 1979 CriLJ 17, the main question for determination as stated in the Judgment was:

“Whether a Magistrate in the course of an enquiry or trial on being moved by the prosecution, is competent under S.73, Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam), to direct the accused person to give his specimen handwriting so that the same may be sent along with the disputed writing to the Government Expert of Questioned Documents for examination, “with a view to have the necessary comparison”?

There were divergent views of the various High Courts on the issue whether the court can direct for taking specimen writing for sending the same for comparison by a handwriting expert. The Supreme Court set at rest the conflict of views and held:

“Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seized of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, “is for the purpose of enabling the Court to compare” the writing so written with the writing alleged to have been written by such person, within the contemplation of S.73 (Section 72 of the Bharatiya Sakshya Adhiniyam). That is to say, the words “for the purpose of enabling the Court to compare” do not exclude the use of such ‘admitted’ or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion.”

So now it is very clearly laid down that the Court can ask a witness or an accused or a party to provide specimen writing for sending it for comparison by a handwriting expert.

16. Consequence of Non Adherence of Direction under Section 72 and Failure to Provide Specimen Writing

In case of failure of an accused or a Party to comply the direction of the Court to give specimen writing for the purpose of comparison the Court would be entitled to draw adverse inference against such party.

In the State (Delhi Administration) v. Pali Ram, it was observed:

“If the accused refuses to comply with the direction, it will be open to the Court concerned to draw under S.114, Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), such adverse presumption as may be appropriate in the circumstances.”

17. The Court Has Power To Compare Handwriting But Such Power Should Be Exercised With Caution

As we have seen that Section 72 in explicit terms conferred power upon the Court to compare signatures and handwritings.  But Supreme Court has cautioned in many judgments that the Court should not take upon itself the function of a handwriting expert.

In, the State (Delhi Administration) v. Pali Ram, 1979 (2) SCC 158: 1979 SCC (Cri) 389: AIR 1979 SC 14: 1979 CriLJ 17: 1979 MLJ (Cri) 250 the Supreme Court held that a Court does not exceed its power under S.73 (Section 72 of the Bharatiya Sakshya Adhiniyam) if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But the Supreme Court cautioned:

“Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”

Again in Ajit Savant Majagvai v. State of Karnataka, AIR 1997 SC 3255 : 1997 CriLJ 3964 referring to S.73 of the Evidence Act, The caution was reiterated and the Supreme Court held:

“The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under S.45 (Section 39 of the Bharatiya Sakshya Adhiniyam) or by anyone familiar with the handwriting of the person concerned as provided by S.47 (Section 41 of the Bharatiya Sakshya Adhiniyam) or by the Court itself.

As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the dispute signature with the admitted signature as this power is clearly available under S.73 of the Act (Section 72 of the Bharatiya Sakshya Adhiniyam).” (See also O. Bharathan v. K. Sudhakaran, AIR 1996 SC 1140.)

In, Murari Lal v. State of Madhya Pradesh, 1980 (1) SCC 704 : 1980 SCC (Cri) 330 : AIR 1980 SC 531 : 1980 CriLJ 396, the Supreme Court indicated the circumstances in which the Court may itself compare disputed and admitted writings, thus:

“The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. S.73 of the Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam) expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusions. The duty cannot be avoided by recourse to the statement that the Court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court’s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.”

The decision in Murari Lal (supra) was followed in Lalit Popli v. Canara Bank and Others, 2003 (3) SCC 583 : AIR 2003 SC 1796.

After a survey of various decisions the Supreme court in Thiruvangada Pillai v. Navaneethammal and Another  AIR 2008 SC 1541, laid down as follows:

S.45 of the Indian Evidence Act, 1872 (Section 39 of the Bharatiya Sakshya Adhiniyam) relates to ‘opinion of experts’. It provides inter alia that when the Court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in questions as to identity or handwriting or finger impressions are relevant facts. S.73 (Section 72 of the Bharatiya Sakshya Adhiniyam) provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved. These provisions have been the subject matter of several decisions of this Court.

While there is no doubt that Court can compare the disputed handwriting / signature / finger impression with the admitted handwriting / signature / finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of finger prints, the Court may record a finding on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

In this connection, the observations made by Hidayatulla J. (as he then was) in Fakharuddin v. State of Madhya Pradesh (AIR 1967 SC 1326) are apposite and may be extracted (at pages 1328, 1329):

“Both under S.45 and 47 (Sections 39 and 41 of the Bharatiya Sakshya Adhiniyam) the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Whether an expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion, whether of the expert or other witness.”

18. Constitutionality of Section 73 of the Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam)

In the State of Bombay v. Kathi Kalu Ogad  AIR 1961 SC 1808, the main questions before the constitution bench of 9 judges was as under:

Is a person compelled to be a witness against himself within the meaning of Art. 20 (3) of the Constitution when he is compelled to give his specimen handwriting or signature, or impressions of his fingers, palm or foot to the investigating officer?

Is he compelled to be a witness against himself within the meaning of the same constitutional provisions when he is compelled to give his specimen handwriting and signature for the purpose of comparison under the provisions of S.73 of the Indian Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam)?

The Constitutional bench answered the above questions in the negative. The Court among others held as under:

“Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness.”

19. Expert Opinion On Handwriting

In, State of Maharashtra Complainant v Sukhdev Singh and Another Accused, the Supreme Court after surveying through precedents, on the question of evidentiary value of expert’s opinion on handwriting, observed as under:

It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis, and (iii) by the Court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert P.W. 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since hand writing experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So Courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally Courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, Courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but Courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the Court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a. heavy responsibility on the Courts to exercise” extra care and caution before acting on such opinion. Before a Court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the Courts are wary to act solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the Court will not act on the expert’s evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case.

 In Ram Narain v. State of U.P., (1973 (2) SCC 86 : AIR 1973 SC 2200) the Supreme Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be sustained. The Court held (para 4 of AIR):

“It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert.”

A similar view was expressed in the case of Bhagwan Kaur v. Maharaj Krishan Sharma, 1973 (4) SCC 46: (AIR 1973 SC 1346) in the following words (para 27 of AIR):

“The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of a handwriting expert.”

In Murari Lal v. State of M.P., (1980) 1704 : (AIR 1980 SC 531) the Court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially corroborated before it can be acted upon to base a conviction. The Court pointed out (para 6 of AIR):

“Expert testimony is made relevant by S.45 of the Evidence Act Section (39 of the Bharatiya Sakshya Adhiniyam) and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person ‘specially skilled’ in questions as to identity of handwriting’ is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to S.114 ( Section 119 of the Bharatiya Sakshya Adhiniyam) which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert’s opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells us that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S.46 of the Evidence Act (Section 40 of the Bharatiya Sakshya Adhiniyam) makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”

“We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion – evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule, on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.”

What emerges from the case law referred to above is that a handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to, the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert.

(For more on Handwriting Expert’s Evidence refer module 15)

20. Proof as to digital signature

Section 66 of the Bharatiya Sakshya Adhiniyam (Section 67A of the Evidence Act reads as under:

Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record, the fact that such electronic signature is the electronic signature of the subscriber must be proved.

21. Private And Public Document

Section 74 of the Bharatiya Sakshya Adhiniyam (Sections 74 and 75 of the Evidence Act) defines Public and Private documents, Section 75 (Section 76 of the Evidence Act) deals with issue of certified copies of public documents which any person has right to inspect, Section 76 (Section 77 of the Evidence Act), allows certified copies to be produced in proof of the contents of the public documents or parts of the public documents. The proof of different categories of public documents is provided in Section 77 (S.78 of the Evidence Act); and Section 78 (S.79 of the Evidence Act) speaks of the presumption about the genuineness of certified copies.

As per Section 74: –

(1) The following documents are public documents: —

(a) documents forming the acts, or records of the acts—

(i) of the sovereign authority;

(ii) of official bodies and tribunals; and

(iii) of public officers, legislative, judicial and executive of India or of a foreign country; (b) public records kept in any State or Union territory of private documents.

(2) All other documents except the documents referred to in sub-section (1) are private.

In the Evidence Act Section 74 defined ‘Public document’ and Section 75 defined ‘Private document. Now in the Bharatiya Sakshya Adhiniyam, both are integrated into one section as section Section 74 of the Bharatiya Sakshya Adhiniyam

The public documents are the ones which are enumerated in Section 74 and as stated in clause (2) all other documents are private documents.

‘Public Officer” has been defined under S.2(17) of the Code of Civil Procedure as under:

“public officer” means a person falling under any of the following descriptions,

 namely:–

(a)     every Judge;

(b)     every member of an All-India Service;

(c)      every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government;

(d)     every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e)     every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f)      every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g)     every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h)     every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty:

Judgments, Orders, Decree, Depositions, Warrant, Remand Report, Injury Report, Medico Legal Case Report, Ballot Papers used by Voters, Electoral rolls, Death Register, Birth Register, Marriage Register, Certified Copy of a private sale deed, Admission Register of a Municipal School, Record maintained by Revenue Officer relating to Land Revenue, Survey Settlement, etc are examples of Public documents.

21.1 Section 74 (b) Public Records Kept In Any State Of Private Documents

Section 74 (b) specifically states that ‘Public Records Kept in any State of Private Documents’ are public document.

Memorandum of Association of a company filed with the Registrar of Companies is public record of private document.

A true copy of election expenses lodged with election officer is a public record of private document and hence a public document (See Kandur Maghi v Budnesher Mazhi, ILR 1972 (3) Cal 6)

21.2 Registered Sale Deed is not Public Record Kept of Private Document

Registered Sale Deed or other registered conveyances are not Public Record Kept of Private Document. This aspect and the admissibility of the certified copy issued under Section 57(5) of the Registration Act as secondary evidence under Section 65(f) of the Evidence Act (Section 60(f) of the Bharatiya Sakshya Adhiniyam), was dealt with, in detail, by the Madhya Pradesh High Court, in Rekha Rana and Others v Ratnashree Jain AIR 2006 MP 107 (R. V. Raveendran, C. J.; Shantanu Kemkar, J.). The Court addressed the following points:

“(i) Whether a sale deed (duly registered) is a public document?

(ii) Whether a certified copy of a sale-deed issued by the Registering Officer is a public document?

(iii) Whether a certified copy of a public document can be received in evidence without any further proof?

(iv) What is the effect and efficacy of producing and marking a certified copy of the sale deed?

The Court observed:

  1. A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration. An original registered document is not therefore a public record kept in a state of a private document. Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as ‘public documents’. Any document which is not a public document is a private document. We therefore have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document.
  2. This position is made abundantly clear in Gopal Das v. Shri Thakurji, AIR 1943 Privy Council 83, wherein the Privy Council considering the question whether a registered receipt is a public document observed thus:

“It was contended by Sir Thomas Strangman for the respondents that the receipt comes within para 2 of S. 74, Evidence Act, and was a “public document”; hence under S. 65(e) (Section 60(e) of the Bharatiya Sakshya Adhiniyam) no such foundation is required as in cases coming within cls. (a), (b) and (c) of that section. Their Lordships cannot accept this argument since the original receipt of 1881 is not “a public record of a private document”. The original has to be returned to the party. A similar argument would appear at one time to have had some acceptance in India but it involves a misconstruction of the Evidence Act and Registration Act and later decisions have abandoned it.”

We may also refer to the following passage from Ratanlal’s Law of Evidence’ (19th Edition page 237):

“Public document (clause (e)) – This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in S. 74. What S. 74 provides is that public records kept in any state of private documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered document, therefore, does not fall under either clause (e) or (f). The entry in the register book is a public document, but the original is a private document.”

The Court further observed:

Section 57 of the Registration Act requires the Registering Officers to allow inspection of Books No. 1 and 2 and indexes relating to Book No. 1 and to give certified copies thereof. The relevant portion of the said Section is extracted below :

“(1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.

(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

We therefore answer points (i) and (ii) as follows:

(i) A Registered document (Deed of sale etc.) is not a public document. It is a private document.

(ii) Book 1 kept in the Registration Offices under the Registration Act, where the Registered documents (private documents) are copied, entered or filed, is a public document.

(iii) A certified copy of a registered document, copied from Book 1 and issued by the Registering Officer, is neither a public document, nor a certified copy of a private document, but is a certified copy of a public document.

The Court further observed:

We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Section 65(e) read with Section 77 of the Act ((Section 60(e) read with 76 of the Bharatiya Sakshya Adhiniyam) without anything more. No foundation need be laid for production of certified copy of secondary evidence under Section 65(e) or (f). But then it will only prove the contents of the original document, and not be proof of execution of the original document. (Vide Section 57(5) of Registration Act read with Section 77 of Evidence Act ( Section 76 of the Bharatiya Sakshya Adhiniyam)). This is because registration of a document is proof that someone purporting to be ‘X’ the executant admitted execution, but is not proof that ‘X’ executed the document. We will elaborate on this aspect when dealing with Point No. (iv).

  1. Re : Question (iv)

The next question is whether producing and making of a certified copy of a sale deed, would amount to proving the sale-deed itself. If not, what is its effect. We will first refer to the decisions and Treatises, bearing on this aspect.

  1. In Karuppanna Gounder v. Kolandaswami Gounder, AIR 1954 Mad. 486, a Learned Single Judge of the Madras High Court (Govind Menon, J, as he then was) held as follows:

“Section 57 of the Indian Registration Act deals, among other things, with the grant of certified copies, and sub-section (5) lays down that all copies given under that section shall be signed and sealed by the registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of registration is admissible to prove the contents of the original document only when a case is made out for introduction of secondary evidence, i.e. by proof of the loss of the original or where a original is withheld by a party in whose possession it is or is presumed to be. In this case the plaintiffs have done all they could by giving notice to defendants 3 and 4 to produce the original which notice has not been complied with. Therefore, the requisite essentials for the adducing of secondary evidence have been properly complied with. When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar’s office can be admitted under S. 57, sub-section (5) of the Indian Registration Act without other proof than the Registrar’s certificate of the correctness of the copy and shall be taken as a true copy.

It seems to me that the plaintiffs have satisfied the Court that the necessary pre-requisites for the introduction of secondary evidence as contemplated under Sections 65 and 64 of the Evidence Act (Sections 60 and 61 of the Bharatiya Sakshya Adhiniyam) have been made out. When once it is proved that the party is entitled to adduce secondary evidence, then the question arises, “What is the mode of proof of the certified copy?” As stated already under Section 57(5) of the Indian Registration Act, a certified copy obtained from a Registrar’s office shall be admissible for the purpose of proving the contents of the original document. That means that the mere production of a certified copy without any further oral evidence to support it would be enough to show what the original document obtained. That a registration copy is the copy of a public document contemplated under Section 74, sub-section (2) of the Indian Evidence Act, is indisputable and the copy of such a document is a certified copy of a public document under Section 76 of the Indian Evidence Act (Section 75 of the Bharatiya Sakshya Adhiniyam).”

In Padmanabhachari v. Annamraju Silapathirao, 1954 (2) Madras Law Journal 75, the Andhra Pradesh High Court considered a certified copy of mortgage bond dated 18-11-1876 (marked Ex. P/1). In that case, before the trial commenced, the plaintiff had issued a notice requiring defendants to admit the aforesaid mortgage deed. On the said notice, the first defendant’s counsel had made an endorsement to the effect that the genuineness of the copy was admitted, it was subsequently argued by the first defendant that only the genuineness of the certified copy as a copy of the copy kept in the Registrar’s office was admitted, and that did not amount to an admission that it was a true copy of the original and therefore the plaintiff had to make out a case for the admission of the copy as secondary evidence of the original. It was also contended that the said admission did not absolve the plaintiff from proving the execution of the mortgage deed. Considering the said submission, K. Subba Rao, C. J. (as he then was) held as follows:

“In my view, secondary evidence of the contents of Exhibit P- 1 is admissible both under Section 65(b) as well under Section 65(e) (Section 60(b) as well as 60(e) of the Bharatiya Sakshya Adhiniyam). The first defendant admitted the genuineness of the certified copy. That is an admission-learned counsel for the appellant does not dispute this position of the existence, condition or contents of its original, i.e. the copy of the mortgage document maintained in the Registrar’s Office. If so much was granted, Section 57(5) of the Registration Act makes the said copy admissible for the purpose of proving the contents of the original document itself. A combined reading of the provisions of Section 65(b) of the Evidence Act (Section 60(b) of the Bharatiya Sakshya Adhiniyam) and Section 57(5) of the Registration Act may be put thus. By reasons of the admission made by the first defendant of genuineness of the certified copy within the meaning of Section 65(b) of the Evidence Act (Section 60(b) of the Bharatiya Sakshya Adhiniyam), the certified copy became admissible in evidence as secondary evidence under Section 65 (Section 60 of the Bharatiya Sakshya Adhiniyam). By reason of Section 58(5) of the Registration Act, the said copy becomes admissible for the purpose of proving the contents of the original document itself. I would also hold that the certified copy is also admissible under Section 65(e) and (f) of the Evidence Act.

Secondary evidence may be given, if the original is a public document within the meaning of Section 74. The definition of a public document under Section 74 takes in public records kept in any State of private documents. The Registrar’s Office certainly keeps a public record of all sale deeds registered in that office. Section 76 (Section 75 of the Bharatiya Sakshya Adhiniyam)enables an officer having the custody of a public document to give a certified copy. The certified copy is therefore admissible in evidence both under Section 65(e) and (f) of the Evidence Act(Section 60 (e) and 60(f) of the Bharatiya Sakshya Adhiniyam). The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in the Registrar’s Office. Again by invoking Section 57(5) the said copy becomes admissible, for the purpose of proving the contents of the original document itself. I would therefore hold that the certified copy is admissible in evidence. But this will not dispense with the proof of the execution of Exhibit P-I.”

The Court further observed:

  1. In Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, the Supreme Court held that –

“Where the originals were not produced at any time nor was any foundation laid for establishment of the right to give secondary evidence, copies of the original not admissible in evidence.”

  1. Woodroffe and Ameer Ali’s Law of Evidence (14th edition, Vol. 2) explains that matter thus :

“Under this clause (that is clause (2) of Section 74), entries of the copies of private documents in Book 1, 3 and Book 4 of the Registration Office being public records kept of private documents are public documents, and as such may be proved by certified copies, that is certified copies may be offered in proof of those entries. But neither these entries nor certified copies of these entries, are admissible in proof on the contents of the original documents so recorded unless secondary evidence is allowable under the provisions of this Act. (at page 1710)”

“a registered deed of sale is not a document of which a certified copy is permitted by law to be given in the first instance without having been introduced by other evidence. Section 57 of the Registration Act only shows that when secondary evidence has in any way been introduced, as by proof of the loss of the original document, a copy certified by the Registrar shall be admissible for the purpose of proving the contents of the original; that is, it shall be admitted without other proof than the Registrar’s certificate of the correctness of the copy, and shall be taken as a true copy, but that does not make such a copy of a document which may be given in evidence without other evidence to introduce it. ….. and although such a copy may be taken as a correct copy of some document registered in the office, this circumstance does not make that registered document evidence or render it operative against the persons who appear to be affected by its terms. A document registered in and brought from a public registry office, requires to be proved when it is desired that it should be used as evidence against any party who does not admit it quite as much as if it came out of private custody. (at page 1612)”.

  1. The position therefore is that a certified copy of a sale deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is Entries in Book 1 maintained under Section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document was thereafter registered in the Registration Office and entered (copied) in Book 1. It is not however proof of the fact that original sale deed was duly executed by the actual person described as Executant. Production of a certified copy of a public document under Section 65(e) (Section 60(e) of the Bharatiya Sakshya Adhiniyam) or production of a certified copy under Section 65(f) (Section 60(f) of the Bharatiya Sakshya Adhiniyam) is completely different from production of a certified copy as secondary evidence of a private document (for e.g., a sale deed under clauses (a), (b) and (c) of Section 65 (Section 60 of the Bharatiya Sakshya Adhiniyam).
  1. Proving execution of a registered sale deed (or any other registered document which is not required by law to be attested) has two steps. The first step is production of the original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of certified copy of the sale deed, by showing the existence of any of the circumstances mentioned in clauses (a), (b) and (c) of Section 65(Section 60 of the Bharatiya Sakshya Adhiniyam). In other words, a certified copy can be offered as secondary evidence of the original sale deed under clause (a) of Section 65(Section 60(a) of the Bharatiya Sakshya Adhiniyam), by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act (Section 64 of the Bharatiya Sakshya Adhiniyam). A certified copy of the sale deed can also be offered as secondary evidence under clause (c) of Section 65(Section 60(c) of the Bharatiya Sakshya Adhiniyam), by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as second evidence under clause (b) of Section 65 (Section 60(b) of the Bharatiya Sakshya Adhiniyam), where the existence, condition or contents of the (sic) has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved.

 The second step is to prove the execution of the deed (whether what is produced in the original or certified copy or other secondary evidence thereof given under clause (a), (b) or (c) of Section 65 (Section 60 of the Bharatiya Sakshya Adhiniyam) as required by Section 67 of the Act(Section 65 of the Bharatiya Sakshya Adhiniyam), where the document is not one which is required by law to be attested or as required by Section 68 of the Act (Section 67 of the Bharatiya Sakshya Adhiniyam)where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown as executant; or (vi) by proving admission by the person who is said to have signed the document, that he signed it.

  1. If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under clause (a), (b) or (c) of Section 65(Section 60 of the Bharatiya Sakshya Adhiniyam), seeks to mark the certified copy, then it will not be secondary evidence of the original sale deed, but only be secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office which issued the certified copy. Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
  2. Certain amount of confusion exists because a certified copy can be produced as secondary evidence either under clauses (e) and (f) of Section 65 or under clauses (a), (b) or (c) of Section 65 (Section 60 of the Bharatiya Sakshya Adhiniyam). But the difference is that a certified copy is the only mode of secondary evidence that is permissible in cases falling under clauses (e) or (f) of Section 65(Section 60 of the Bharatiya Sakshya Adhiniyam). But in the cases falling under clauses (a), (b) or (c), the secondary evidence can be a certified copy in the case of a registered instrument or by other modes described in Section 63 (Section 58 of the Bharatiya Sakshya Adhiniyam) in regard to unregistered documents. Be that as it may.
  3. We may summarize the position thus:

(i). Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) (Section 60(e) of the Bharatiya Sakshya Adhiniyam) need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein.

(ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under clause (a),(b) or (c) of Section 65 (Section 60 of the Bharatiya Sakshya Adhiniyam).

(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuing sections in chapter V of Evidence Act).

(Section 65 and 67 of the Bharatiya Sakshya Adhiniyam)

21.3 Parliamentary Standing Committee Report Is Public Document – Court Can Take Judicial Notice

In, Kalpana Mehta and Others v Union of India and Others AIR 2018 SC 2493: 2018 (7) SCC 1, a five judges constitution bench observed:

“There can be no dispute that parliamentary standing committee report being in the public domain is a public document. Therefore, it is admissible under S.74 of the Evidence Act and judicial notice can be taken of such a document as envisaged under S.57(4) of the Evidence Act (Section 52 of the Bharatiya Sakshya Adhiniyam). There can be no scintilla of doubt that the said document can be taken on record. As stated earlier, it can be taken aid of to understand and appreciate a statutory provision if it is unclear, ambiguous or incongruous. It can also be taken aid of to appreciate what mischief the legislative enactment intended to avoid. Additionally, it can be stated with certitude that there can be a fair comment on the report and a citizen in his own manner can advance a criticism in respect of what the report has stated.”

21.4 A Document Issued By The Election Commission Is Public Document

In, Tukaram S. Dinghole v. Manikrao Shivaji kokate, 2010 (4) SCC 329: AIR 2010 SC 965, the Supreme Court held:

“Chapter V of the Evidence Act deals with documentary evidence. S.61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per S.62 of the Evidence Act (Section 57 of the Bharatiya Sakshya Adhiniyam), primary evidence means the document itself produced for the inspection of the Court. S.63 (Section 68 of the Bharatiya Sakshya Adhiniyam)categorises five kinds ( 8 kinds) of secondary evidence. S.64 (Section 59 of the Bharatiya Sakshya Adhiniyam)lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non – production of primary evidence is satisfactorily proved. However, clause (e) of S.65(Section 60(e) of the Bharatiya Sakshya Adhiniyam), which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a “public document” secondary evidence is admissible even though the original document is still in existence and available. S.74 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam) defines what are known as “public documents”. As per S.75 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam), all documents other than those stated in S.74 are private documents. There is no dispute that certified copy of a document issued by the Election Commission would be a public document.”

21.5 Pleadings Filed In Court Are Not Public Documents

Pleadings and petitions signed and filed in court by private persons can only be the acts or records of the acts of the private persons who have signed and filed them and cannot in any sense be held to be the acts or records of the acts of any public tribunal or its officers. Such documents cannot therefore be treated as public documents, and when their genuineness is disputed, and the question is whether a particular person has signed the document or not, no presumption of genuineness can be drawn from the mere production of an attested copy. The fact that the particular person has signed the document must be affirmatively proved, as in the case of other private documents, by the party alleging the same. (See Narayana Iyer v Abraham 1954 KLT 506)

A similar view that a plaint is not a public document and that it should be proved like any other private document was taken in the case of Manbodh v. Hirasai, AIR 1926 Nag. 339. The learned Single Judge of Patna High Court made a reference to Lakshan Chandra Mandal v. Takim Dhali and Others, 39 Cal. LJ 90 : AIR 1924 Cal. 558 where the learned Celebrated Judge Sir Ashutosh Mukherjee observed that the distinction between the admissibility of a document as evidence of a transaction and admissibility of a document in proof of a statement contained therein is of a refined but of a fundamental character though frequently overlooked and for that the learned Judge has referred to several cases including the case of Seethapathi v. Venkanna, AIR 1922 Mad. 71 (FB) and held that a plaint may be admissible in proof of the fact that a particular suit was brought by a particular person against someone on a particular allegation; but it cannot be admissible to prove the correctness of a statement contained therein unless it is proved by direct evidence or by secondary evidence as provided in the Evidence Act. (See, Baijayanti Nanda v. Jagannath Mahaprabhu Marfat Adhikari Mahanta Bansidhar Das Goswami and Others AIR 2014 Ori. 128)

21.6 The Record Of The Court And The Record Of The Acts Of The Court – Statement U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (U/S.164 of Cr.P.C) Is Public Document

Documents which are records of acts of public officers, legislative, judicial, and executive are public documents going by S.74(1)(iii). ‘Public Officer” has been defined under S.2(17) of the Code of Civil Procedure which includes every judge and every officer of a court of justice. To be a public document, it should be a record of the act of the court. The record itself would not be a public document. There is a distinction between the record of the court and the record of the acts of the court. It is only the record of the acts of the court that is a public document. Thus, deposition of witnesses recorded by a judge / an officer of the court, judgment, and decree are public documents as they are records of acts of court. But pleadings, affidavits, and petitions filed in court, cannot be said to form such acts or records of acts, and are, therefore, not public documents.

Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 of Cr.P.C) confers power on Magistrates specified in Sub-section (1) thereto to record any statement or confession made to them during an investigation by the police before the commencement of the enquiry or trial. The statement may be made by an accused, or by one who may ultimately become an accused, or by a witness capable of giving useful information. Interests of justice require that such statements should be recorded in a manner which would be above cavil and not open to objection under Sections 23 and 18 of the Bharatiya Sakshya Adhiniyam (S.25 and S.20 of the Evidence Act). Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 Cr.P.C.) provides the machinery for the record of such confessions and statements. The section prescribes the mode in which the confession or statement of an accused / person is to be recorded. Precautions should be taken to see that it is voluntarily made and that what he says is carefully recorded and then read over to him to ensure accuracy. Recording of confession or statement is a solemn act and the Magistrate must see that the formalities prescribed in Sections 183 and 316 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 and S.281 CrPC) are strictly complied with. No doubt, the Magistrate recording it performs a duty imposed on him by statute, a public duty. It is a judicial act. The statement so recorded is the record of the act of a Magistrate discharging his judicial function. (See, Sarita S Nair v. Union Of India And Another 2022 (4) KLT 848: ILR 2022 (3 Ker. 1047), State of Madras v. G. Krishnan (AIR 1961 Mad 92), Miss ‘A’ v. State of Uttar Pradesh and Another AIR 2020 SC 4903 :2020 (10) SCC 505: 2021 CriLJ 1885, Murugasami v. State and Another (2017 CriLJ 5011) Shakkeer M. K. v. State of Kerala (2014 CriLJ 4430: 2014 (4) KLT 650), Varghese M. U. v. CBI, Cochin (2015 (3) KLT 54 : ILR 2015 (3) Ker. 398) and Athulya v. State of Kerala (ILR 2020 (1) Ker. 129)

21.7 Whether An Accused is Entitled to Copy of the Statement Recorded Under Section U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 164 CrPC) Before the Final Report is Filed

In, Raju Janaki Yadav v. State of Uttar Pradesh and Others (2013 Crl LJ 78) and in Guruvindapalli Anna Rao and Others V. State of A.P. (2003 KHC 2656), Allahabad High Court and Andhra Pradesh High Court held that the accused is entitled under Section 75 of the Bharatiya Sakshya Adhiniyam (Section 76 of the Evidence Act) to get copy of the Statement Recorded U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 164 CrPC), before the filing of the final report under section 173 CrPC.

Contra view was taken by the Full Bench of the Madras High Court in State of Madras v. G. Krishnan (AIR 1961 Mad 92), it was held that though the statement recorded U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 CrPC) of a witness is a public document, the accused would have no right to obtain copies of the same before a charge – sheet is filed, notwithstanding Section 75 (S.76 of the Indian Evidence Act). It has been observed that the accused will be entitled to copies of the statements under U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 Cr.P.C) as a person interested, but his right to obtain such copies, before the filing of the charge – sheet has been taken away by implication by the provisions of S.173(4) of Cr.P.C (S.207 of the present Code) (Section 230 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and he will be entitled to the copies only in accordance therewith.

A Division Bench of the High Court of Bombay in Maria Monica Susairaj v. State of Maharashtra (2009 KHC 5545) agreed with the view taken by the High Court of Madras in G. Krishnan (supra). It was held that an accused is not entitled to get a copy of even his own confession statement recorded under S.164 Cr.P.C (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) before the final report is filed. The Division Bench of the Madras High Court in Murugasami v. State and Another (2017 CriLJ 5011) reiterated the same view and held that the statement or confession recorded under S.164 of Cr.P.C, dying declaration, and test identification parade report are documents which cannot be shared with the accused until the final report is filed.

In, Miss ‘A’ v. State of Uttar Pradesh and Another AIR 2020 SC 4903 :2020 (10) SCC 505: 2021 CriLJ, Supreme Court observed and held as under:

The Scheme of the relevant provisions of the Code shows that after the conclusion of the investigation, an appropriate report under S.173 of the Code (Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is to be filed by the police giving information as required by S.173. In terms of S.190 of the Code (Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the concerned Magistrate may take cognizance of any offence inter alia upon a police report. At the stage of exercise of power under S.190 of the Code (Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023), as laid down by this Court in number of decisions, the notable being the decision in Bhagwant Singh v. Commissioner of Police (1985 KHC 610: 1985 (2) SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285 : 1985 CriLJ 1521) para 4., the Magistrate may deem fit that the matter requires further investigation on certain aspects / issues and may pass appropriate direction. It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of S.207 and S.208 of the Code (Sections 230 and 231of the Bharatiya Nagarik Suraksha Sanhita, 2023), to copies of the documents referred to in said provisions.

The filing of the charge – sheet by itself, does not entitle an accused to copies of any of the relevant documents including statement under S.164 of the Code (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023), unless the stages indicated above are undertaken.

As a logical extension of the directions passed by this Court in State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014 (8) SCC 913) no person is entitled to a copy of the statement recorded under S.164 of the Code (U/S 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) till the appropriate orders are passed by the Court after the charge – sheet is filed. The right to receive a copy of such a statement will arise only after cognizance is taken and at the stage contemplated by S.207 and S.208 of the Code (Sections 230 and 231of the Bharatiya Nagarik Suraksha Sanhita, 2023) and not before.

21,8 Third Party/Stranger’s Right to Obtain Copy of the Statement Recorded Under Section 164 CrPC (U/S 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

Generally, only a person interested in the proceeding would be entitled to a copy.

In, Sarita S Nair v. Union of India and Another 2022 (4) KLT 848: ILR 2022 (3 Ker. 1047), the High Court of Kerala considered the right of a third party or stranger to obtain copy of the Statement Recorded Under Section 164 CrPC (U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023). After a survey of Precedents, the Court observed:

“In the eye of the law, every person has a right to inspect public documents, provided he shows that he is individually interested in them. No doubt, an accused or a victim is a person interested in the statement recorded under S.164 of Cr. P.C (U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023) and as such, they would be entitled to inspect and have copies of the same. But so far as a third party / stranger is concerned, he would be entitled to inspect and have the certified copy of the statement under S.164 of Cr.P.C) (U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023) only if he has made out sufficient interest showing that such inspection is reasonable and necessary for the protection of his interests. Thus, applying the reasoning in G. Krishnan (supra) that the right of the accused to obtain copies of the statement under S.164) (U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023), before the filing of the charge – sheet has been taken away by implication by the provisions of S.173(4) Cr.P.C ) (S 193 Bharatiya Nagarik Suraksha Sanhita, 2023)and the dictum laid down in Miss ‘A’  (supra), it can safely be concluded that no person (be it accused, victim or a third party) is entitled to a copy of the statement recorded under S.164 of the Code) (S 183 Bharatiya Nagarik Suraksha Sanhita, 2023) till the final report is filed and cognizance is taken. In the case of a third party / stranger, he must additionally show that he has a genuine interest in the document. The said interest should be direct and tangible. An interest which is illusory, or imaginary is no interest whatsoever.”

21.9 The Court Bailiff’s Report of Delivery Of Property or Service of Summons – Whether is Public Document and Its Evidentiary Value

In, Sushilkumar Mandanlal Ganediwal v. Vijaykumar Mandanlal Ganediwal and Others AIR 2019 Bom. 201, the Bombay High Court considered the issue whether the Court Bailiff’s Report of Delivery of Property or report of Service of Summons is Public Document and whether it is conclusive as to the facts stated therein. The court noted conflict of judicial views and observed as under:

In the case of Jaswant Singh v. Gurudev Singh (supra),  .. it was held by the Hon’ble Supreme Court that a compromise that had merged into a decree of the Court had become part and parcel of the decree and hence it was a public document in terms of S.74 of the said Act and production of certified copy of the same amounted to proof of contents thereof under S.77 of the said Act (Section 76 of the Bharatiya Sakshya Adhiniyam). In the case of Sushil Kumar Sabharwal v. Gurpreet Singh (supra) relied upon by the learned counsel for the petitioner, on facts, the Hon’ble Supreme Court found that summons were not served and the process server when examined as a witness had deposed in contradiction to the contents of the reports prepared by him. In this situation, it was held by the Hon’ble Supreme Court that the Courts below were wrong in proceeding on the basis that the appellant had been served with process. The judgments relied upon by the learned counsel for the petitioner in the case of Prem Singh v. Bal Kishan, Manbodh v. Hirasai and Smt. Shamlata v. Vishweshwara (supra) have held that the bailiff must be produced before the Court in the witness box to prove the service of summons, that the plaint is not a public document and it must be proved in the ordinary way, that certified copy of a plaint could not be said to be proof of the contents thereof and that report of a Naib Tahsildar was not a public document under S.74 of the Act, because it was an expression of his own impression on the basis of spot inspection.

The Madhya Pradesh High Court in the case of Jagdish Prasad v. Daulatraam – (2011) 3 ML LJ 100 has held that endorsement and report of a bailiff (process server) on the reverse of a warrant of possession stating that order of the Court had been carried out by delivering possession to the plaintiff was undoubtedly a public document and production of certified copy thereof was sufficient proof of the contents of the document in terms of S.77 of the Evidence Act (Section 76 of the Bharatiya Sakshya Adhiniyam). Similarly, in the case of Balku .vs. King Emperor – AIR 1925 Oudh 183, the Court held that delivery of possession in execution of a decree was undoubtedly an act of a Court and report made to the Court by an Officer that its order had been carried out was undoubtedly a public document under S.74 of the said Act. On the other hand, the Jharkhand High Court in the case of Junul Surin .vs. Silas Munda – AIR 2008 Jha. 82, has held that there is a distinction between record of the Court and the record of the act of the Court. It has been further held that a report, even if prepared in discharging official duty with regard to possession, cannot be a public document so that report of possession is taken as conclusive. It has been held that the document issued under the seal of the Court is a public document but report of the process server cannot be said to be a public document.

In this context, this Court respectfully agrees with the view taken by the Jharkhand High Court in the case of Junul Surin v. Silas Munda (supra) and consequently the bailiff report in the present case cannot be treated as a public document under S.74 of the said Act. The relevant portion of the said judgment of the Jharkhand High Court in the case of Junul Surin v. Silas Munda (supra) reads as follows: –

“9. There is distinction between the record of the Court and the record of the act of the Court. It is only record of act of the Court which is a public document. A report even if prepared in discharging official duty with regard to possession cannot be a public document so as to report of possession is taken as conclusive. The report in relation to possession cannot be taken as statutory report. What is stated in the report however has to be proved if the same is not accepted by other side. For example, if a summon for settlement of issue or disposal of suits is issued under the seal of the Court directing the defendants to appear on a particular date this part of the summon, no doubt is a public document but the report of the process server with regard to service of summon made on the back of the report or on a separate sheet cannot take place of a public document. If the party disputes the report and the service of summons then the report has to be proved. Similarly, if a writ of attachment or writ for affecting delivery of possession is issued by the judicial or quasi – judicial authority directing the officer or bailiff to effect delivery of possession then the report of the officer or bailiff certifying the execution of writ for delivery of possession cannot be taken as a public document and therefore, report of the officer effecting delivery of possession has to be proved.”

This Court respectfully disagrees with the views of the Madhya Pradesh High Court in Jagdish Prasad v. Daulatram (supra) and the High Court of Oudh in Balku v. King Emperor (supra).

21.10 Certified copies of public documents

Section 75 of the Bharatiya Sakshya Adhiniyam (Section 76 of the Evidence Act) deals with issue of certified copies of public documents, and reads as under:

Section 75: Certified copies of public documents.-

Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation.  Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

Every person has the right of inspecting public documents in which he is interested in the protection of such interest. This is a common law right and a right recognised by the Evidence Act …. The extent of the right depends upon the interest which that person has in the document and on what is reasonably necessary for the protection of such interest vis-à-vis any larger public interest. (See Parasuram Detaram Shamduasami v Sir Hugh Golding Cocke, ILR 1942 Bom 171 and Sarita S Nair v. Union Of India And Another 2022 (4) KLT 848 : ILR 2022 (3 Ker. 1047).

The certified copy as defined in S.75 (S 76 of the Evidence Act) contemplates that it is to be issued on payment of legal fee thereof together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed.

Statutes like Right to Information Act also confer right to inspection and right to obtain copies.

In, Doddanarayana Reddy C. (Dead) By Lrs. and Others v . C. Jayarama Reddy (Dead) By Lrs. and Others 2020 (4) SCC 659 : AIR 2020 SC 1912  (S. Abdul Nazeer; Hemant Gupta, JJ), the Supreme Court observed:

The public document in terms of S.74 of the Indian Evidence Act, 1872 includes the documents forming records of official bodies or tribunals. S.76 of the said Act (Section 75 of the Bharatiya Sakshya Adhiniyam) gives a right to any person to demand a copy of a public document on payment of a fee together with the certificate written at the foot of such copy that it is a true copy of such document. Certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

The Court as per Section 57 of the Indian Evidence Act (Section 52 of the Bharatiya Sakshya Adhiniyam) is bound to take judicial notice of seals of a certified copy and the notations of the certified copy as regards the public record

Section 76 of the Bharatiya Sakshya Adhiniyam (Section 77 of the Evidence Act), allows certified copies to be produced in proof of the contents of the public documents or parts of the public documents and reads as under:

21.11 Proof of documents by production of certified copies – Section 76

Section 76 of the Bharatiya Sakshya Adhiniyam (Section 77 of the Evidence Act) Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

And S.78 ( Section 79 of the Evidence Act) speaks of the presumption about the genuineness of certified copies and reads as under:

Section 78: Presumption as to genuineness of certified copies. –
  • The Court shall presume to be genuine 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 Central Government or of a State Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

21.12 Certified Copies Of Public Document Prove Contents Of Document With Out Calling Its Maker As A Witness

There cannot be any doubt that once a document qualifies to be a public document under Section 74 of the Bharatiya Sakshya Adhiniyam, due production of certified copy thereof amounts to proof of contents of the said document under S.76 of the said Adhiniyam (Section 77 of the Evidence Act). Section 78 of the Bharatiya Sakshya Adhiniyam (S.79 of the Evidence Act) as to genuineness is also relevant.

Jaswant Singh v. Gurudev Singh, 2012 (1) SCC 425, the Supreme Court held:

judgment and decree were passed as per the terms and conditions of compromise placed on file. As rightly observed by the Courts below, the compromise has merged into a decree and has become part and parcel of it. To put it clear, the compromise had become a part of the decree which was passed by the Court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of S.74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under S.76 of the Act (Section 75 of the Bharatiya Sakshya Adhiniyam) is admissible in evidence under S.77 of the said Act (Section 76 of the Bharatiya Sakshya Adhiniyam) . A certified copy of a public document is admissible in evidence without being proved by calling witness. Inasmuch as the decree was passed and drafted in the light of the compromise entered into between the parties, viz., the plaintiff and the defendants, the certified copy of such document which was produced before the Court, there is presumption as to the genuineness of such certified copy under S.78 of the Act (Section 77 of the Bharatiya Sakshya Adhiniyam)..

In, Krishna Rani v Chunnilal Gulati, AIR 1981 P&H 119 Punjab and Haryana High Court, in the context of admission of certified copy of FIR,  observed:

Illustration (e) of S.114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) which is in the following terms, permits the raising of a presumption that the official acts had been regularly performed: –

“114 (e) (Section 119(e) of the Bharatiya Sakshya Adhiniyam That judicial and official acts have been regularly performed.”

S.79 of the Indian Evidence Act (Section 78 of the Bharatiya Sakshya Adhiniyam) too permits the raising of a presumption as to the genuineness of the certified copies. In view of this it would have to be taken that the police official who had recorded the F.I.R. had done so in a regular manner in due performance of his duty. Cl. (e) of S.65 of the Evidence Act (Section 60 of the Bharatiya Sakshya Adhiniyam), permits production of secondary evidence to prove the existence, condition or contents of an original document if the same is a public document within the meaning of S.74 of the Evidence Act. The secondary evidence envisaged of such document is a certified copy. S.77 of the Evidence Act (Section 76 of the Bharatiya Sakshya Adhiniyam) provides that certified copies can be produced in proof of the contents of the public document of which they purport to be copies.

In Madamanchi Ramappa v. Mathaluru Bojjappa, AIR 1963 SC 1633, their Lordships have put a seal of authority on the assertion that if a document is a certified copy of a public document, then the same need not have been proved by calling a witness.

Kurban Ansari v State of West Bengal and Others 2011 CriLJ 1375 Calcutta High Court, held:

If we look at S.74 of the Indian Evidence Act, 1872 we would find that the documents of official bodies or of public officers are called as public documents and the formal proof thereof is not necessary in terms of S.74 read with S.79 of the said Act of 1872 (Section 74 read with Section 78 of the Bharatiya Sakshya Adhiniyam). In the instant case, the chemical analyst as well as the arms expert both being public authority discharging public duty conducted necessary tests and / or examination and issued necessary certificate therefor. Such certificates were received by the Investigating Officer in usual course of business. During trial he produced those documents which were tendered in evidence subject to objection. We do not find any definite assertion on the part of the defence denying the veracity of those certificates. It was not the case of the defence that those certificates were fake or forged.

In absence of such definite assertion the learned Judge was right in relying upon the same discarding the objection raised by the defence mechanically.

21.13 Proof of Official Documents

The manner/mode of proof of different categories of public documents is provided under Section 77 of the Bharatiya Sakshya Adhiniyam (S.78 of the Evidence Act) and it reads as follows:

Section 77: Proof of other official documents. –

The following public documents may be proved as follows:—

(a) Acts, orders or notifications of the Central Government in any of its Ministries and Departments or of any State Government or any Department of any State Government or Union territory Administration—

(i) by the records of the Departments, certified by the head of those Departments respectively; or

(ii) by any document purporting to be printed by order of any such Government;

(b) the proceedings of Parliament or a State Legislature, by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;

(c) proclamations, orders or Regulations issued by the President of India or the Governor of a State or the Administrator or Lieutenant Governor of a Union territory, by copies or extracts contained in the Official Gazette;

(d) the Acts of the Executive or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in any Central Act;

(e) the proceedings of a municipal or local body in a State, by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;

(f) public documents of any other class in a foreign country, by the original or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

The following public documents may be proved as follows:-

(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government,-

by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or, as the case may be, of the Crown Representative;

(2) the proceedings of the Legislatures,-

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;

(3) proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty’s Government,-

by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer;

(4) the Acts of the Executive or the proceedings of the Legislature of a foreign country, –

by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act:

(5) the proceedings of a municipal body in a State, –

by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;       

(6) public documents of any other class in a foreign country,-

by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

Union of India v Nirmal Singh AIR 1987 All. 83, Allahabad High Court, on the question of mode of proof of document under Section 78(1), observed as under:

“Thus a specific mode for the proof of public document also has been laid down in S.78 (Section 77 of the Bharatiya Sakshya Adhiniyam) and according to it, any act, order or notification of the Government can be proved in any of the two alternative modes provided therefor i.e. when it is certified by the head of the department or when it is printed under the authority of such Government. If the Rules on which reliance is being placed had been published in the official gazette or in any other manner under the authority of the Government, the same would have been admissible in evidence without requiring any further proof thereof. Similarly, if these rules had been certified by the Head of the Department to be Rules framed by the Government in this behalf and such a certificate was appended to the document, the same would have been sufficient proof of the contents thereof. In the instant case both these things are lacking A mere cyclostyled covering letter accompanied by a similar copy of the Rules by itself is not enough and it was necessary that these Rules and the letter should have been certified as laid down in S.78 (Section 77 of the Bharatiya Sakshya Adhiniyam) by the Head of the Department. In this connection, reference may be made to the case Kothaplli Raghaviah v. The State, (1951) 2 Mad LJ 52: AIR 1953 Mad 780”

21.14 Mode of Proof of Statutory Notifications

The examination of the signatory to such document is not necessary for admitting certified copy of statutory Notifications in evidence.

In State of Kerala v Adichan Sasi 1975 KLT 839, Kerala High Court, observed:

“The acts attributed to the respondent, if proved, would constitute an offence under S.27(2)(c) and (d), only if it is established that the area trespassed or from which the trees were cut and removed came within the definition of a Reserved Forest. Ext. P3 is a true copy of a notification issued under the Travancore Forest Act, II of 1068 taken from the register of reserves maintained at the Office of the Chief Conservator of Forests. An objection has been raised that being a copy of the notification certified only by the Chief Conservator of Forests, it is not properly proved. The objection has no force. A notification issued under the Travancore Forest Act is a public document and under S.77 of the Evidence Act (Section 76 of the Bharatiya Sakshya Adhiniyam), a certified a copy may be produced in proof of it. The Chief Conservator of Forests as the Head of the Department is an officer competent to certify to the correctness of the copy in view of S.78 and 79 of the Evidence Act (Sections 77 and 78 of the Bharatiya Sakshya Adhiniyam). The decisions in Pyli v. State of Kerala (1966 KLT 102) and Chandrasekharan v. State (1966 KLT 638) relied upon by the respondent have no application to the present case.”

Certified copy of a Notification published in the Official Gazette is a copy of the public document and the examination of the signatory to it is unwarranted for the document to be admissible in evidence.

21.15 Judicial Notice of Notifiication under Telegraph Act as Law under Section 52(1)

State of M.P v Ramcharan 1977 CriLJ 597, a full bench of the Madhya Pradesh High Court, observed:

“…..under our legal order and jurisprudence based on the Constitution, “law” is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notifications made and issued under statutory powers and which are legislative in nature amount to law. A statutory order or notification will be legislative in nature if in substance it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.

 We now revert to Notification No. G.S.R. 1512 issued under S.7(1) of the Telegraph Wires Act which specially empowers the Station Officer Rehli and many other officers to make complaints in respect of offences under the Act. While enacting S.7(1), the Central Legislature could have enumerated in the section itself the officers who would be competent to make complaints for offences under the Act. Instead of doing that the legislature has authorised the Central Government to specially empower officers for that purpose. A notification issued by the Central Government in exercise of this power supplements S.7(1) and is legislative in nature. The notification read With S.7(1) is part of the law of procedure that only Central Government and the officers specified in the notification can make complaints for offences under the Act. A Criminal Court is bound to give effect to this law. It cannot refuse to take cognizance of a complaint made by an Officer mentioned in the notification and cannot take cognizance of a complaint made by an officer not mentioned in the notification. In our opinion, therefore, the notification amounts to law. The learned Government Advocate has produced before us a book published under the authority of the Central Government which contains the notification. He has also produced before us the relevant Gazette in which the notification is printed. We, therefore, find no difficulty in holding that judicial notice must be taken of the notification under S.57(1) of the Evidence Act (Section 52(1) of the Bharatiya Sakshya Adhiniyam).”

21.16 Probative Value of Entries in Public Record

Relevancy is one thing and probative value is another thing. Section 29 of the Bharatiya Sakshya Adhiniyam (Section 35 of the Evidence Act)deals with Relevancy of entry in public record made in performance of official duty.

Section 29 reads as follows:

An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact.

Section 35 of the Evidence Act (Section 29 of the Bharatiya Sakshya Adhiniyam) deals with relevancy and not probative value. Probative value depends on the facts and circumstances of each case. Generally, it must be taken along with other evidence. The Court generally presumes that the public officer did his duty duly and based the entries on materials the accuracy of which he was satisfied. Basis on which entry was made would be relevant in considering its probative value. (See Shyam Prathap Singh v Collector of Etawah, AIR 1946 PC 103)

The reason why entry made by a public servant in a public or other official book, register or record stating a fact in issue or a relevant fact has been made relevant, is that, when a public servant makes it himself, in the discharge of his official duty, the probability of its being truly and correctly recorded is high. It is the public duty of a person who keeps the register to make such entries after satisfying himself of the truth and that entries in register of birth, death or marriage are at least prima facie, though they may not always be conclusive evidence. It is not always necessary to prove who made the entries and what was the source of his information. [see Chellammal v. Angamuthu and others, 1978 CriLJ 752 (Mad)]

In Madan Mohan Singh and others v. Rajni Kant and another, AIR 2010 SC 2933: 2010 AIR SCW 4932, it has been held as under;

…..a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar, AIR 1970 SC 326; Ram Murti v. State of Haryana, AIR 1970 SC 1029; Dayaram and Ors. v. Dawalatshah and Anr., AIR 1971 SC 681; Harpal Singh and Anr. v. State of Himachal Pradesh, AIR 1981 SC 361; Ravinder Singh Gorkhi v. State of U.P. 2006 (5) SCC 584 : AIR 2006 SC 2157 : 2006 AIR SCW 2648; Babloo Pasi v. State of Jharkhand and Anr., 2008 (13) SCC 133 : AIR 2009 SC 314 : 2008 AIR SCW 7332; Desh Raj v. Bodh Raj, AIR 2008 SC 632 and Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and Anr., 2009 (6) SCC 681 : AIR 2009 SC 2805 : 2009 AIR SCW 4261. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.”

In Radha Krishna Singh v State of Bihar, AIR 1983 SC 684, while dealing with an old revenue document which was held admissible under Section 35 of the Evidence Act (corresponding to Section 29 of the Bharatiya Sakshya Adhiniyam), Justice S. Murtaza Fazal Ali, observed:

We may not be understood, while holding that Ex. J. is admissible, to mean that all its recitals are correct or that it has very great probative value merely because it happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.

Certified Copy does not absolutely establish the truth of the contents of the documents.

(For more on Section 29 refer module 13)

22. Admissibility of Audio and Video Tape – Records

In R. v. Maqsud Ali, reported in 1965 (2) All ER p. 464, English Court said that it would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

In India, the Courts have held that a contemporaneous tape record of a relevant conversation is relevant under section 7.

In Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 1967 (3) SCR 720, Supreme Court observed that since the tape – records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

In, Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Others, reported in 1976 (2) SCC 17, the Supreme Court , observed that tape – records of speeches are “documents” as defined in S.3 of the Evidence Act and stand on no different footing than photographs. The three judges bench in “Ziyauddin Burhanuddin” further held that the tape – records of speeches were admissible in evidence on satisfying the following conditions:

“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject – matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

Similar conditions for admissibility of a tape – recorded statement were reiterated in Ram Singh and Others v. Col. Ram Singh, reported in 1985 (Supp) SCC 611 and  in R. K. Anand v. Registrar, Delhi High Court, 2009 (8) SCC 106.

In, Tukaram S. Dinghole v. Manikrao Shivaji kokate, 2010 (4) SCC 329: AIR 2010 SC 965, the Supreme Court considered the issue of admissibility of tape record and observed as follows:

“There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes / cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.”

In, Vikram Singh alias Vickey Walia and another v. State of Punjab and another, reported in AIR 2017 SC 3227, the Supreme Court observed as follows:

“The tape recorded conversation was not secondary evidence which required certificate under S.65B (Section 77 of the Bharatiya Sakshya Adhiniyam), since it was the original cassette by which ransom call was tape – recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by S.65B is a mandatory condition. In Anvar P.V., AIR 2015 SC 180 (supra) this Court had laid down the above proposition in paragraph 22. However, in the same judgment this Court has observed that the situation would have been different, had the primary evidence was produced. The conversation recorded by the complainant contains ransom calls was relevant under S.7 (Section 5 of the Bharatiya Sakshya Adhiniyam) and was primary evidence which was relied on by the complainant. In paragraph 24 of the judgment of this Court in Anvar P.V. it is categorically held that if an electronic record is used as primary evidence the same is admissible in evidence, without compliance with the conditions in S.65 – B (Section 63 of the Bharatiya Sakshya Adhiniyam).”

We will deal with admissibility of electronic record and certificate as contemplated by Sections Sections 61,62 and 63 of the Bharatiya Sakshya Adhiniyam (S.65 A and 65 B of the Evidence Act) with special reference to 3 judges’ bench of the Supreme Court in Arjun Panditrao v Kailash Kushanroa separately in module 20.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. What is meant by contents of document. How is content of document proved?
  2. Define primary and secondary evidence. When and under what circumstances secondary evidence of a document may be produced in evidence?
  3. What are the general methods of proving the handwriting?
  4. Is there a presumption that a registered document is validly executed? Explain.
  5. Distinguish admissibility and probative value
  6. Discuss the mode of proof of public documents.