Whether original of public document can be admitted in evidence without proving its execution in accordance with law?

The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority , but in the judgment of the majority the Supreme Court has not referred tot he point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence it must be proved in the manner required by law. In the result I reject the bills-cum-receipts which have been marked X-1 by me for identification and do not admit them in evidence.

Bombay High Court

C.H. Shah vs S.S. Malpathak And Ors. on 5 August, 1971

Equivalent citations: AIR 1973 Bom 14, (1972) 74 BOMLR 505, 1972MhLJ816

Bench: Vimadalal

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Whether it is necessary to prove content and execution of a original public document by examining the witness?

In the decision of the Privy Council in the case of Easwaramurthi v. King Emperor, the original of a warrant of arrest or a certified copy thereof were stated to be admissible under Sections 62 and 65, respectively. The original even of a public document is the best evidence of that document and in my opinion it is therefore, always admissible the provisions in the Evidence Act relating to the admissibility of a certified copy as secondary evidence thereof being merely in the nature of an additional or alternative facility provided by law for the purpose of ensuring its preservation and safety. I have, therefore, no hesitation in holding that the original of a public document is admissible in evidence.
The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority , but in the judgment of the majority the Supreme Court has not referred tot he point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence it must be proved in the manner required by law.

Bombay High Court

C.H. Shah vs S.S. Malpathak And Ors. on 5 August, 1971

Equivalent citations: AIR 1973 Bom 14, (1972) 74 BOMLR 505

Bench: Vimadalal

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How to prove original of public document in evidence?

The question of proof of a public document came up before Bombay
High Court in C.H. Shah v. S.S. Malpathak & Ors., AIR 1973 Bom. 14,
where it was held as under:-
“4....... In all cases of secondary evidence under Section 65 read with
Section 63 of the Evidence Act when a copy or an oral account of a
document is admitted as secondary evidence, the execution of the original is
not required to be proved but if the original itself is sought to be tendered it
must be duly proved and there is no reason for applying a different rule to
public documents. Secondly, in the case of a certified copy, before a
presumption of its genuineness can be raised under Section 79, as laid down
by the Supreme Court in Bhinka's case already referred to above it must be
shown that the certified copy was executed substantially in the form and in
the manner provided by law. There would, therefore, be a check or safeguard
in so far as the officer certifying it in the manner required by law would have
to satisfy himself in regard to the authenticity of the original and in regard to
the accuracy of the copy which he certifies to be a true copy thereof. On the
other hand if the original of a public document is to be admitted in evidence
without proof of its genuineness, there would be no check whatever either by
way of scrutiny or examination of that document by an officer or by the
Court. The third and perhaps the most important reason, for not accepting
Mr.Shah's argument on the point which I am now considering is that neither
Section 67 nor Section 68 of the Evidence Act which lay down that the
signature and the handwriting on a document must be duly proved do not
make any exception in the case of public documents. In view of the
provisions of the said section all documents whatever be their nature must be
therefore be proved in the manner provided by Section 45, 47 or 73 of the
Evidence Act........
5. The only question which remains for consideration is whether a
presumption of the genuineness of the original of a public document should
be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to
the effect that official acts have been regularly performed. It is no doubt true
that it has been held by a Division Bench of this Court in the case of East
India Trading Co. v. Badat & Co., AIR 1959 Bom. 414 that Section 114 of
the Evidence Act is wide enough to permit the Court to raise a presumption
not only with regard to oral evidence, but also with regard to documentary
evidence. It may be mentioned that the decision of the Division Bench in the
said case was reversed on appeal by the Supreme Court by a majority AIR
1964 SC 538, but in the judgment of the majority the Supreme Court has not
referred to the point mentioned above. Apart from the undesirability of
taking a view which would let in any and every document tendered by
Government in suits to which it is a party without proof of genuineness, in
my opinion, no presumption under Section 114 can be drawn in view of the
mandatory and unqualified term of Sections 67 and 68 of the Evidence Act.
Section 114 which to put it in popular language, merely empowers the Court
to use its commonsense, cannot be used to contravene an express provision
of the Act itself. I, therefore, hold that if the original of a public document is
sought to be tendered in evidence, it must be proved in the manner required
by law.....
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : MOTOR ACCIDENT CLAIMS TRIBUNAL
Date of decision: 29th November, 2012
MAC.APP. 76/2012

RAJINDER KUMAR Vs  LAL BACHAN & ORS.


CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL

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