Public & Private Documents in Evidence

What is a document?

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

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

What is a public document?

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

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

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

Private documents

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

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

Legal provisions on documentary evidence

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

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

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

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

What is meant by proving a document?

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

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

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

Proving different kinds of document

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

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

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

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

Proving the contents by primary or secondary evidence

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

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

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

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

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

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

Providing oral accounts of document contents

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

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

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

When one can give secondary evidence

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

• When the original is in the possession or power of the opposite party (or any other person) and he is not producing it after giving due notice to him for its production. Sufficient notice, as prescribed in law or as reasonable, must be given to the possessor of the document.
• When the original is in the possession of a person, who is either out of reach of the court or not subject to the process of the court, secondary evidence can be produced.
• When the adverse party or his representative had admitted in writing the existence, condition or contents of the original. The admission must be a written one.
• When the original has been lost or destroyed, or when the original cannot be obtainable within a reasonable time due to the laxity of the other party.
• When the original is a public document. Producing a certified copy is the only way to prove a public document.
• When any statute prescribes that a certified copy can be produced in evidence. For example, the Section 57 (5) of the Registration Act states that a certified copy of the sale deed issued from the Registration Office can be produced in evidence. Producing a certified copy is the only mode of proving such a document.
• When the original is of such a nature that it cannot be easily moveable, such as inscription on a wall, or a large monument.
• When the original consists of numerous accounts or other documents which cannot be conveniently examined in court and the fact to be proved is the general result of the whole collection. An expert can give such a general opinion.

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

Issuing certified copies of public documents

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

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

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

Mode of proving documents like laws, orders, etc

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

Court presumes certified copy to be true

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

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

Reason for treating public documents specially

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

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

Public document is a rebuttable proof

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

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

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

Examples of some public documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court presumes some documents as genuine

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

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

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

Oral evidence inadmissible in proving documents

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

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

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

Oral evidence to interpret ambiguous documents

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

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

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

NB: The author of this article, now with Thrissur Bar, can also be reached at rajankila@gmail.com