Private Documents
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Private Documents
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Public and Private Documents - The Law Study
private document — с английского на русский
Documents of Public and Private Nature under Indian Evidence Act
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This article is written by Arpit Goyal , a third-year law student of Maharashtra National Law University, Aurangabad. In this article he has tried to explain about public documents, private documents and the difference between them under the Indian Evidence Act, 1872.
According to section 3 of the Evidence Act, “document” alludes to any issue communicated or portrayed upon any substance by methods for letters, figures or checks, or by more than one of those methods proposed to be utilized, or which might be utilized, to record that issue.” Writing, words printed, lithographs, photos, a guide or an arrangement, an engraving on a metal plate or a stone are reports.
There are two types of evidence, i.e. primary evidence and secondary evidence.
Primary evidence is defined in section 62 of the Indian Evidence Act which states that the primary evidence is the best available proof of the existence of an object or a fact because it is the actual document or the authentic source of evidence. Primary evidence is different from secondary evidence, which is a copy or a substitute for it. If primary evidence is available to a party, then that person must offer it as evidence in the court. Subsequently, if primary evidence is not available due to the loss or destruction of the same, then the party may present a reliable substitute of it.
Secondary evidence is the evidence that has been duplicated from a unique report or has been substituted from the first thing. For instance, a photocopy of a record or photo would be viewed as secondary evidence. However, the court prefers original or primary evidence. The courts usually try to avoid using secondary evidence wherever it is possible, and this approach is called the best evidence rule because these are copies of the original one and not the original document.
Evidence which is provided to the court in the written form is called Documentary Evidence as per section 3 of the Indian Evidence Act, 1872. There are two types of documentary evidence, namely, public documents and private documents.
Public Documents: Public Documents are those documents which are authenticated by a public officer and subsequently which is made available to the public at large for reference and use. Public documents also contain statements made by the public officer in their official capacity, which acts as admissible evidence of the fact in civil matters. These documents are also known as public records as these are issued or published for public knowledge.
Private documents: Private documents are those documents which are prepared between persons for their usual business transactions and communications. These documents are kept in the custody of the private persons only and are not made available to the public at large. Certified copies of the private documents are generally not considered as evidence unless there is proof of the original copy is provided.
Section 74 of the Indian Evidence Act, 1872 states that the following documents are considered public documents:
Documents forming the acts or records of the acts:
Schemes which are published in the Official Gazette. Example scheme published under the Electricity Supply Act, 1948. The scheme so published talked about the installation of overhead transmission lines, thereby, making it a public document.
Hindu Marriage Register is considered to be a Public Document as considered by the judges of the Supreme Court in the case of Smt. Seema v. Ashwani Kumar [2006 2 SCC 578]
To get the document within the purview of section 74 of the Indian Evidence Act, 1872, it should be shown that the document is prepared by a public servant in the discharge of his/her official duty, the fact that it is kept in public office does not make it a public document.
Section 74 (2) of the Indian Evidence Act, 1872 states that the private documents though made by an individual person but it is kept as records in the public offices are regarded as a public document as stated by the Guwahati High Court in the case of Narattam Das V. Md. Masadharali (1991) 1 Gau LR 197 (DB) which said that “Public Documents are those documents, which are required to be kept in the Governmental units and discharge their duty as prescribed by law. A Public record is one required by law or directed by law to serve as a memorial and evidence of something written, said or done.
Therefore, a Private Document would be called a ‘Public Document’ under the purview of section 74(2) if the Private Document is filed and Public official is required to keep it for a memorial or permanent evidence of something written, said or done.”
An Example of section 74(s): Memorandum of Association of a company is a public document under the purview of this Section.
In the case of Dalip Kumar Alias Pinki vs State [ 1995 CriLJ 1742] the Delhi High Court stated that the medical officer prepared the MLC report as a public servant in discharge of his duties and therefore, the MLC report is a public document and the contents of which are admissible as evidence.
Records of nationalized banks maintained have been considered as Public Documents as considered by the court in the case of Shri Keshava Gupta vs Coal India Limited
These documents are considered to be public documents which are open to the public at large:
Section 75 of the Indian Evidence Act states that all documents other than the documents mentioned in section 74 of the act are private documents. Private Documents are those documents which are made by an individual for his/her personal interest under his/her individual right.
These documents are in the hands of the individual to whom the public document belongs to and is not made open to the general public for inspection. Certified copies of the private documents are not admissible in court unless the proof of original document is submitted. Example: Correspondence between persons; matter published in newspapers, books; deed of the contract; memorandum; sale deed.
Public Documents are made by a public servant in discharge of his/her public duties.
Private Documents are made by an individual for his/her personal interest under his/her individual right.
Public Document is available for inspection to the public in public office during the appointed time after payment of fixed fees.
Private Document is in the hands of the individual to whom the document belongs to and is not available for inspection to the general public.
Public Documents are proved by Secondary Evidence.
Private Documents are proved by original i.e. Primary Evidence.
The certified copy of a public document is to be admitted in judicial proceedings.
The secondary evidence of the original document is not to be admitted in judicial proceedings.
The court is bound to presume the genuineness of a public document from the duly certified secondary copy.
No presumption is made about the genuineness of the original document from secondary evidence of private document except in some exceptional circumstances.
Certified copies of public documents may be issued to a person requiring them.
Certified copies of the private document can be issued.
Section 76 of the Indian Evidence Act, 1872 gives us the method of getting certified copies of public documents from the public officer. It states that if a public document is open to inspection, it’s copy may be issued to any person who is demanding it. The copy of the public document is issued on payment of legal fees and a certificate shall be attached thereof, containing the following particulars:
When these particulars are mentioned in the copy, then only it is considered as a Certified Copy.
The basic question that arises here is whether a person will be entitled to a copy of a public document? Well the answer to this is if a person has the right to inspect the document then, he would be entitled to get a copy of the public document and if he has no right to inspect the public document he cannot get a copy of the public document, as mentioned in the case of Rasipuram Union Motor Service vs Commissioner Of Income-Tax [(1956) 2 MLJ 604] .
On receiving the certified copy of the public document he has the right to look into the order of the copy which is sought and not the right to inspect the whole record as stated by the High Court of Judicature of Allahabad in SURAJ NARAIN VERSUS SETH JHABHU LAL AND OTHERS . If a person has no right to inspect the certified copy of the public document and still he obtains it then, the certified copy so obtained is illegal and inadmissible as evidence in court
Section 77 of the Indian Evidence Act, 1872 states that “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.”
In simple words it states that, when the contents of the public documents are to be verified in court of law, the original copy of the public document need not be presented before the court, instead the certified copy of the public document taken from the public officer in accordance with section 76 of the Indian Evidence Act, 1872 may be presented before the court which would be accepted by the court.
The basic idea of this principle is that the record of the court should not be taken away from its place of custody into courts meaning if public documents or public records are summoned in courts it would be difficult for the time being for others to use the public records.
Suppose a particular public record or public document is presented in one court in 1940 and the case is dragged till 1950, in this time period many other individuals who want to or needs to present those public records or documents are crippled. So, if copies of these public documents or records are not allowed and the originals are filed in cases, the individuals would be deprived of the use of those public documents or records for 10 years and plus there would be a constant risk of loss and additional wear and tear of the documents if they are moved from place to place.
In State Of Haryana vs Ram Singh , the Supreme Court held that it is not the law that the certified copy of a registered agreement for sale is inadmissible in court if it can be shown that the parties to the certified copy are asked to examine and prove the same. This would be contrary to section 77 read with section 74 (2) and section 76 of the Indian Evidence Act, 1872 more especially Section 51-A of Land Acquisition Act. A certified copy of the document registered under the Registration Act including a copy under section 57 of the Land Acquisition Act may be accepted as evidence of transactions recorded in such documents.
It is available to the court to acknowledge the certified copy as solid proof and without inspecting parties to the documents. This, however, does not preclude the court from rejecting the transaction itself being mala fide provided such challenge is laid before the court.
In the case of Smt. Seema v. Ashwani Kumar [2006 2 SCC 578] , the Supreme Court came to the conclusion that Marriage certificate is a good evidentiary proof of marriage.
A certified copy of the public document or public record can be presented and received as evidence in the court and without proof, as concluded by the judges of the Supreme Court of India in the case of Madamanchi Ramappa & Anr vs Muthalur Bojjappa [1963 AIR 1633] . Further, if the certified copy of the public document or public record is defective then the objection has to be taken to the trial court as stated by the Punjab High Court in the case of Harichand And Ors. vs Bachan Kaur .
Section 78 of the Indian Evidence Act, 1872 states that the following public documents may be proved as follows:
Section 78 of the Indian Evidence Act, 1872 gives us six kinds of Public Documents:
The High Court of Madras in this case after considering various other cases laid down a few characteristics which are required in order to call a document as a public document. The High Court stated that the public documents are prepared by the public servant in discharge of his/her official duty. It also stated that public documents are those which are made by the public officer in order to make it available to the public at large so that they could use and refer to it as well.
If the public is interested in seeing such documents and refer it and if there is anything wrong with it they could protest. The High Court further stated that when the public has the right to inspect an official document it is considered as a public document and a certified copy of the same shall be given to the person who has applied for it and also that the certified copy of the public document so provided in court need not be proved by calling a witness, it is admissible as evidence.
The most basic question that should arise in the minds of people as to which documents should one rely on?
Well, in the case of State Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S. Husain [AIR 2008 SC 155] , the judges of the Supreme Court concluded when a public document such as a birth certificate is brought forth by the prosecution which demonstrates the age of the injured individual beneath 16 years of age then, it will be superior over the date given in the FIR and also enhanced by the affidavit. In this case, the accused injured individual was compelled to flesh trade.
In the FIR and the valuable affidavit, the age of the individual was provided to be 18 years of age, but, based on the radiological test the age was resolved to be between 14 to 16 years. And also, in order to prove the radiological test correct the prosecution produced before the court the birth certificate which demonstrated the date of birth to be 16 years of age.
Again In the case of Shah Nawaz vs State Of U.P.& Anr Shahnawaz was arrested on an FIR lodged against him by one Katizan, wife of Mr Nawab. In the FIR she alleged that shahnawaz had murdered her husband Mr Nawab. On his arrest, Shahnawaz’s mother filed an application stating that his date of birth was 18.06.1989 and at the commission of crime i.e. on 04.06.2007, he was a minor under the Juvenile Act.
The Juvenile Board after the examination of the date of birth mentioned in the mark sheet and other witnesses held that Shahnawaz was indeed a minor and therefore, Juvenile Act is applicable to him. The wife subsequently filed an application to the additional session judge against the board’s decision. The additional judge set aside the boards order and declared him as major. Subsequently, an appeal was filed in the High Court which quashed the decision of the additional judge and declared Shahnawaz as minor.
The High Court in reaching this decision referred to the reports of the Juvenile Board which took into consideration the date of birth of Shahnawaz as mentioned in the mark sheet. The Supreme Court too stated that Shahnawaz was a minor when an appeal was filed in it.
In the case of The Cpio, Supreme Court Of India vs. Subhash Chandra Agarwal & Anr. in which an application was filed before the Supreme Court to be aware of the fact that are the judges of the Supreme Court of India and the judges of the High Court are filing their assets declarations in accordance to the 1997 Full Court resolution of the Supreme Court of India.
The court in its decision held that all information available with the public authority is covered by the RTI act being public documents. This decision of the Supreme Court helps in clarifying various issues and also further widens the right to information understanding by the citizens of India.
So, it can be inferred from the above-cited case laws that the answer to the above-mentioned question is that between the private and public documents, the latter is to rely on.
After going through this, one can easily infer that the public documents are those documents prepared by the public officer in the discharge of his/her official duty. According to the case laws cited above, we know that the documents prepared by the private individual kept in public office are considered as public documents and not a private document.
But when the question of admissibility of these documents arises in the court, then, the certified copies of the public documents are admissible and they need not any witnesses to prove it whereas, in case, of private documents certified copy is admissible only when the original private document is shown as proof in the court.
To know more about the evidentiary nature of documents, please click here.
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