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Annexure-I

UPES
SCHOOL OF LAW

SEMESTER V

SESSION:JULY- DEC 2018

PROJECT
FOR
INDIAN EVIDENCE AC T
Under the Supervision of: Mr Ashish Jain
NAME: KAPIL JOSHI

SAP NO: 500054626

ROLL NO: R15521620
 TABLE OF CONTENTS
 INTRODUCTION
 DEFINATION OF PUBLIC DOCUMENT
 PUBLIC RECORDS KEPT IN STATE
 EXAMPLES OF PUBLIC DOCUMENTS
 MODES OF PROVING PUBLIC DOCUMENT
 PROCEDURE FOR IMPOUNDING OF PUBLIC
DOCUMENT
 PROOF OF OFFICIAL DOCUMENTS
 PROVISIONS UNDER SECTION 90
 CONCLUSION
 PROOF OF PUBLIC DOCUMENTS

INTRODUCTION
All the documents may be classified into two categories either ' Public documents' or ' Private
documents' . S. 74 of Indian evidence Act deals with definition of Public document whereas S.76
to S.78 deals with the modes or the proof for the purpose of proving the contents of a public
document. The public documents are admitted in evidence and as an exception to hearsay rule as
the fact contained in them are of public interest and they are the statements made by the
authorised and competent agent of public in the course of their official duties.

DEFINITION OF PUBLIC DOCUMENT

S.74 Public documents

The following documents are public documents :—

(1) 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 any part of India or of the
Commonwealth, or of a foreign country;

PUBLIC RECORDS KEPT IN STATE OF PRIVATE

DOCUMENTS
In order to bring documents within the definition of "public document" as laid down in
S.74, it must be shown to gave been prepared by any public servant in the discharge of his
official duty. The mere fact that it is kept in a public office does not make it a public document.

According to the definition given u/s. 74, only those documents are said to be public
documents as form of the act and records of public officer. It also includes the act of parliament
and state legislatures, proclamation, ordinance, state papers and gazettes.

The acts and record of acts of the proceedings of the municipal board would come under the
category of acts or records of acts of official bodies. Municipal register of birth and death kept by
municipal board is a public document. The acts and record of election tribunals are the
documents which would come within the meaning of public document. The record of court of
justice and other judicial writings are public documents.
 S.74 (2) refers to private document through made by private individuals but kept as record in
public offices in order to facilitate public to have an access to it. Such private documents are kept
in Public offices are regarded as public documents . for example , S.51 of the Indian registration
Act , 1908 provides for the maintenance of certain records of the documents registered and S.57
of the same Act , enables the registration officer to give certified copies of all such documents .

3) Examples of Public documents

1) Birth and death registers of municipalities .
2) Charge sheet
3) confessions recorded by magistrate u/s . 164 of Cr.P.C.
4) Deposition of witnesses recorded by an officer of the Court.
5) Entry in the register of power of attorney kept in the registration office .
6) sanction to prosecute.
7) Notice u/s 106 of Cr.P.C.
8) Record of information u/s.145 Cr.P.C

AN ORDINANCE TO PROVIDE FOR THE PRODUCTION IN EVIDENCE OF COPIES,

INSTEAD OF ORIGINALS, OF PUBLIC DOCUMENTS.
1.This Ordinance may be cited as the Proof of Public Documents Ordinance.
2. Whenever it shall be necessary for any person to adduce proof in any Court of Justice, or before
any person now or hereafter having, by law or consent of parties, authority to hear, receive, and
examine evidence of the contents of any book or document in any public office or in charge of any
public officer, he shall only produce a copy or extract therefrom, signed and certified by the
officer to whose custody the original is intrusted and such copy or extract shall be admissible
in evidence in such court, or before such person, in place of the

The following public documents may be proved as follows:

1. Acts, orders or notifications of the Central Government in any of its documents, or of the
Crown Representative or 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 or any such Government
or, as the case may be, of the Crown Representative.

2. The proceeding 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 to the Government
concerned.
3. Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by
any department of Her Majesty 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 recognition thereof in some
Central Act.

Mode of proving a document :

Contents of private documents are proved either by primary ,secondary evidence in view of S
ections 61 to 66, the genuineness is establishedby adducing evidence as per Sections 67 to 73
; and the truth of their contents is ordinarily established by means of independent,
direct or circumstantial, evidence.
A duly proved document can only be considered at the finalhearing of a proceeding. Onus to
prove a document is upon the party intendingto rely on it. The genuineness or the truthfulness
of the contents of a document are to be proved by the oral evidence and the contents thereof
are to be provedeither by adducing primary evidence or the secondary evidence. A document
is said to be proved if following three criteria are satisfied:

(a) firstly, the execution of a document, i.e., the handwriting

or signature on the document,if any, is proved. (genuineness of a document)
(b) secondly, contents of a document, and
(c) thirdly, truthfulness of the contents of a document.

In Sudhir Engg. v. Nitco Roadways Ltd. Delhi High Court held that, themere admission of a
document in evidence does not aamounts to its prove. Itwas held that a document filed by a p
arty goes through three stages before it is held proved or disproved: Firstly, the stage in whic
h the document is filed.Secondly, the stage in which the party tenders or produces the docum
entin evidence and the court admits the document; and Thirdly, the stage inthe court applies it
judicial mind and the document is held proved, disproved and not proved. Once, the
above mentioned three criteria are fulfilled a
document is said to be 'proved' as defined under Sec.3 of the Evidence Act. If
not, then document is said to be 'disproved' or 'not proved' as the case may be.

PROCEDURE FOR IMPOUNDING OF PUBLIC DOCUMETS

As per Sec.33 of The Bombay Stamp Act provides that if anydocument is produced in evidence whic
h is not SSufficiently stamped in such case the Court may impound that document. Section
33A provides
forimpounding after registration. As per Sec.34 of Stamp Act such document cbe admitted in eviden
ce on Payment of chargeable duty. In addition to that it is 19 Summary on civil subject for workshop
dt. 20/11/16
necessary to recover 2% penalty of the deficient portion of the stamp duty forevery month or part the
reof from the date of execution of document. However,it is provided that this penalty shall not excee
d double of the deficient portion of the stamp duty.

Section 78 (Proof of official documents)

The following public documents may be proved as follows-

(1) Acts, orders or notifications of the General 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 The Orient Tavern 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 of 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.
 PROVISIONS UNDER SECTION 90

Section 90 provides that when any Document:

1.) Purporting and proved to be 30 years old,

2.) Is produced in the court

3.) From custody which in the opinion of the court is proper.

Then the court may presume, that the signature and every other part of the document
which Purports to be in the hand writing of any particular person is in that person’s Hand
writing:

That it was deadly executed and attested and affecxted by the person by whom it purports
to be executed and attested.

As a general rule if the document is produced before the court, its execution must be
proved by a witness and if the document is required by law to be attested, its attested
must also be provided by some witness. Circumstances may arise when the document are
produced un the court long after they have executed and the time lapsed netween the
execution and the production of the document in the court may also be that all persons in
whose presence the document was executed might have died. If a method of prood
according to the above general rule is strictly followed documents will remain
unapproved, section 90 of the Indian Evidence Act is a provision for this kind of
emergency.

NOT TREATING PUBLIC DOCUMENT AS

PRIMARY EVIDENCE

1. When the original is in the possession or power

(a) Of the person against whom the document is sought to be proved; or

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

(c) Of any person legally bound to produce it, and when, after notice, such person does not
produce it.
2. 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.
3. When the original has been destroyed or lost.
To prove the loss of a document, some evidence of diligent search is required. Therefore, if a
person cannot show proof of the search of the original, he will not be allowed to produce copies
as evidence. However, in a case decided by the Privy Council, when a promissory note filed
along with a plaint disappeared from the files of the Court, it was held that the plaintiff was
entitled to give secondary evidence of the document. He was not bound to show how the loss or
disappearance arose or who removed it from the file. (Tulsi Ram v. Ram Saran, 27 B.L.R. 777
PC.)

4. When the party offering evidence of the contents cannot (for no fault or neglect of his)
produce the original in reasonable time.
5. When the original is of such a nature as not to be easily movable (e.g. a writing on a wall,
inscription on tombstones, trees, etc.). Secondary evidence is admissible in such cases because of
the gross inconvenience and impracticability of producing the original.
[In cases, 1, 3, 4 and 5, any secondary evidence of the contents of the document is admissible.

In case 2, the written admission of such a document is admissible.]

6. When the original is a public document.

This clause protects the originals of public records from the danger of constant production in
Court.

7. When the original is a document of which a certified copy is permitted to be given in

evidence.
Where, however, an original document cannot be given in evidence due to a statutory prohibition
(as for instance, an income-tax return), its certified copy also cannot be admitted in evidence.

8. When the fact to be proved is the general result or numerous accounts or other documents
which cannot conveniently be examined in Court. In such a case, the evidence of any person
skilled in the examination of such documents, and who has examined them, is admissible.
This clause is meant for saving public time. Where the fact to be proved is the general result of
the examination of numerous documents, and not the contents of each particular document, and
the documents are such as cannot be conveniently examined in the Court, evidence may be given
as to the general result of the documents by a person who has examined them and who is skilled
in the examination of such documents, although such documents may not be public documents
within the meaning of this section.

It will thus be seen that S. 65 enumerates the eight exceptional cases in which secondary
evidence is admissible.

It may be noted that, under S. 65, the word ‘document’ means a document admissible in
evidence. If a document is inadmissible in consequence of not being registered, or not being
properly stamped, or for any other reason, secondary evidence cannot be given of its existence.
S. 65 presupposes that but for one or other of the barriers stated therein, the document would
have been capable of proving its contents under Ss. 62 and 64.

Secondary evidence can only be given when the primary evidence or the document itself is
admissible. When certain evidence is inadmissible, no secondary evidence is admissible. An
unstamped or an insufficiently stamped pronote is not admissible in evidence; see S. 35 of the
Indian Stamp Act. Therefore, a copy of such a document is also inadmissible. (Raja of Bobbili v.
Inuganti, 26 I. A. 262; Hiralal v. Shankar, 45 Bom. 1170)

In other words, secondary evidence can only be given when the primary evidence or the
document itself is admissible. Secondary evidence cannot be given of a document when the
original is found to be inadmissible. If a deed of gift is inadmissible in evidence for want of
registration, no secondary evidence of the deed can be given in a suit to recover the gifted
property.

Several cases have laid down that if a copy of a document is admitted in evidence in the Court of
the first instance without any objection, no objection as to its admissibility can be taken in the
Appeal Court. The question of proof of a document is a question of procedure, and cannot be
waived. However, a question of relevancy of a document is a question of law and can be raised at
the appellate stage also.
 CONCLUSION
To conclude the above project dealt with how the public document as a representation of
public interest is vital as being used as evidence. It not only states the areas where Public
document is to be used primary or secondry evidence, but also states the modes of
proving it, which fulfills the objective of the concerned project.