Trusting the Written Word
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) which replaced the Indian Evidence Act, 1872, has modernized and reorganized the law relating to the admissibility and proof of documents in judicial proceedings. Among its important provisions are those concerning public documents and presumptions as to documents which play a vital role in ensuring efficiency, authenticity and reliability in the evidentiary process.
What are considered public documents?
The following are public documents:
- a)
Documents forming the acts, or records of the acts of the sovereign authority; of official bodies and tribunals; and 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.
What are private documents?
All documents except public documents are private documents.
Are public records of private documents themselves public documents?
Public records kept in any State of private documents are public documents, but the private documents of which public records are kept are not themselves public documents.
What is the nature of a registered private document or conveyance?
Though the entry in the register book is a public document, the original registered private document is a private document. Hence, a registered private document or conveyance is not a public document.
Is a certified copy of a registered instrument a public record of a private document?
No. A certified copy of a registered instrument is not a public record of a private document because the original must be returned to the party.
Are Parliamentary Committee reports admissible in evidence?
Yes. They are admissible as public documents.
Is permission from the Speaker required to produce Parliamentary Committee reports in court?
No, because such reports are already in the public domain.
Who adjudicates on factual and legal issues involving such reports?
It is the court, not Parliament, which adjudicates on factual and legal issues.
Who can issue certified copies of public documents?
Every public officer having custody of a public document that any person has a right to inspect must issue a certified copy on demand, upon payment of the legal fee.
What must such a certified copy contain?
(a)
It must be certified as a true copy,
(b)
Be dated and signed by the officer,
(c)
Bear his name and official title,
(d)
Be sealed if the officer is authorised to use a seal.
Who is deemed to have custody of such documents?
Any officer who, by ordinary course of duty, is authorised to deliver such copies is deemed to have custody of such documents.
How can public documents be proved in court?
By producing certified copies of such documents or parts thereof.
How can certain public documents be proved?
The following public documents may be proved as follows:
(a)
Acts, orders or notifications of the Central or State Government or Union territory Administration by certified records of the Department, or by any document printed by order of the Government.
(b)
Proceedings of Parliament or State Legislature by journals of those bodies, or by published Acts or abstracts printed by Government order.
(c)
Proclamations, orders or Regulations by the President, Governor or Administrator by copies or extracts in the Official Gazette.
(d)
Acts or proceedings of foreign Governments by official journals, certified copies under seal, or recognition in any Central Act.
(e)
Proceedings of municipal/local bodies by certified copies of proceedings, or by printed books published under authority of such bodies.
(f)
Public documents of foreign countries by originals or certified copies with a Notary/Indian Consul’s certificate verifying the legal keeper and authenticity under foreign law.
What presumption does the court make about certified copies?
The court shall presume such documents to be genuine if duly certified by an authorised officer and executed in the prescribed form.
What about the officer’s authority?
The court shall presume that the certifying officer held the official position he claims at the time of certification.
What presumptions apply to documents recording judicial evidence or confessions?
The court shall presume:
(a) The document is genuine;
(b)
Statements about circumstances of recording are true;
(c)
Such evidence or confession was duly taken in accordance with law.
What presumption applies to Gazettes, newspapers, and similar documents?
The court shall presume their genuineness if produced from proper custody and kept substantially as required by law.
What is meant by proper custody?
It means custody with the person and in the place where it should lawfully be kept. Custody is not improper if it has a legitimate origin or is likely under the circumstances.
What presumption applies to travellers’ accounts and gazettes?
The genuineness of such documents is presumed but not the truth of their contents.
Are Gazetteer contents relevant in evidence?
Yes. Gazette entries are relevant as facts recorded in official duty and may serve as expert opinion. They aid discovery of historical facts but are not conclusive.
What presumption applies to electronic or digital Gazettes?
The court shall presume their genuineness if maintained and produced from proper custody in accordance with law.
What constitutes proper custody for electronic records?
Proper custody means they are kept where and by whom they are required to be kept or have a legitimate and probable origin.
What presumption applies to government maps or plans?
The court shall presume they were made by Government authority and are accurate, unless made for litigation purposes (which must be proved).
What presumption applies to law reports and collections of laws?
The court shall presume the genuineness of every book printed or published under government authority containing the laws or court decisions of that country.
What presumption applies to powers of attorney?
Every document purporting to be a power of attorney executed before and authenticated by a Notary, Court, Judge, Magistrate, or Indian Consul is presumed to be validly executed and authenticated.
What presumption applies to electronic agreements?
The court shall presume every electronic record purporting to be an agreement with electronic/digital signatures was concluded by affixing those signatures.
What presumption applies to secure electronic records?
The court shall presume they have not been altered since the time of certification.
What about secure electronic signatures?
The court shall presume such signatures were affixed intentionally by the subscriber for authentication.
Are non-secure electronic records covered by presumption?
No, the section applies only to secure electronic records and signatures.
What presumption applies to Electronic Signature Certificates?
Unless proved otherwise, the information listed in the certificate is correct except subscriber information not verified, if accepted by the subscriber.
What presumption applies to certified copies of foreign judicial records?
The court may presume them genuine and accurate if certified as per the practice of that country and confirmed by an authorised Indian representative.
What presumption applies to published books, maps, or charts?
The court may presume they were written or published by the person and at the time and place mentioned, if relevant to matters of public or general interest.
What presumption applies to electronic messages?
The court may presume that an email message corresponds with what was fed into the originator’s computer for transmission. However, it will not presume who actually sent it.
What presumption applies to documents called for but not produced?
The court shall presume that such documents were duly attested, stamped, and executed as required by law.
What presumption applies to documents thirty years old?
The court may presume such documents, if from proper custody, to be duly signed, written, executed, and attested by the persons it purports to be.
What is considered proper custody?
(a)
A possesses land long and produces deeds showing title - proper custody.
(b)
A is mortgagee and produces mortgage deeds while mortgagor is in possession - proper custody.
(c)
A holds deeds of B’s land given for safe custody - proper custody.
Does presumption extend to correctness of statements in the document?
No. The presumption does not apply to correctness of contents.
Does presumption apply to wills over 30 years old?
No. Wills must be proved under the Succession Act and BSA.
Can the 30-year period be relaxed even slightly?
No. Relaxation, even by a few months, is not permissible.
What presumption applies to electronic records five years old?
If produced from proper custody, the court may presume that the electronic signature was affixed by the person or authorised agent.
Therefore, the BSA strengthens the evidentiary regime by clearly defining the scope of public documents and codifying presumptions that courts may draw from specific classes of documents. These provisions strike a balance between procedural efficiency and evidentiary integrity ensuring that authentic documents produced from official or reliable sources are given due legal weight. By aligning with contemporary needs, including recognition of electronic and digital records, the BSA upholds the principle that the law of evidence must evolve with society while preserving its core purpose, i.e., discovering the truth through reliable and verifiable proof.
Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.
