What are Public Documents? (Section 35 BSA)

Section 35 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides a definition of public documents, which are generally considered relevant and are provable in specific ways due to their official nature.

Documents forming records of acts done or transactions effected by public servants

• Definition in BSA: Section 35(1) BSA defines public documents as documents forming the records of acts done or transactions effected by:

  • Public servants in the discharge of their official duties.

  • Any other person in the performance of a duty specially enjoined by the law of any country.

• Examples: Court records, government gazettes, police records (like FIRs, charge sheets), legislative enactments, public registers (like land records, birth/death certificates).

• Relevancy: These documents are generally relevant as they record official acts or transactions.

Public record kept in any State of private documents

• Definition in BSA: Section 35(2) BSA includes public records kept in any State of private documents within the definition of public documents.

• Examples: A registered sale deed kept in the Registrar's office, a will deposited in a court, or any other private document that is officially recorded and preserved in a public office.

• Purpose: While the original document might be private, its official registration and preservation in a public office lend it the character of a public document for the purpose of evidence.

Proof of Public Documents

Public documents can be proved in specific ways prescribed by the BSA, often involving certified copies or comparison with originals.

Section 37 BSA: Entries in public registers in course of business

• Relevancy: Entries in public registers, made in the performance of a duty specially enjoined by law, are relevant.

• Proof: These entries can be proved by producing the register or a certified copy thereof.

• Examples: Land revenue records, electoral rolls, registers of births, deaths, and marriages.

Section 38 BSA: Contents of documents referred to in the Evidence Act

• Relevancy: Statements of facts in issue or relevant facts, made in published maps or charts which are made and published under the authority of Government, or purporting to be recognised by public general usage, as relevant thereto, are themselves relevant facts.

• Proof: These documents (maps, charts) are proved by their publication under authority or by recognition of public usage.

• Examples: Government-published maps, geological charts.

Section 39 BSA: Production of Court Record

• Relevancy: The existence of any Court of Justice or the precise dates of its sittings, or of any judicial or official proceedings in the Court, or the dates, names and jurisdiction of the Judge, Magistrate, or other presiding officer of any such Court, affidavit or deposition of any witness filed therein, or the existence of any judicial or official notice of any fact or event, if the party proposing to give evidence of any such matter can show that the said matter is recorded in any Court of Justice, the said record shall be admissible in evidence.

• Proof: Proof is usually by certified copies of the court records.

Section 40 BSA: Production of Documents forming part of the record of evidence in other cases

• Relevancy: Documents forming part of the record of evidence in other cases are relevant and can be produced in court.

• Proof: These documents are typically proved by certified copies, ensuring authenticity.

In general, public documents can be proved by producing the original document or by producing a copy certified in the manner prescribed by law.

Proof of Private Documents

Private documents, which are not public documents, require specific modes of proof to establish their authenticity and contents.

Primary Evidence (Section 62 BSA)

• Definition: Primary evidence means the document itself produced for the inspection of the Court. If there are several originals of a document, each is primary evidence of the contents of the document.

• Best Evidence Rule: Generally, the original document must be produced. This is the best evidence of its contents.

• Examples: The original signed agreement, the original letter, the original published book.

Secondary Evidence (Section 63 BSA)

• Definition: Secondary evidence means and includes:

  • (a) Certified copies of public documents, mentioned in Section 76 of the Indian Evidence Act (likely retained in BSA).

  • (b) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with the original.

  • (c) Copies made from or compared with the original.

  • (d) Counterparts of documents as against the parties who did not execute them.

  • (e) Oral accounts of the contents of a document by some person who has either seen it or heard it.

• When Admissible: Secondary evidence is admissible only when the original document cannot be produced, subject to certain conditions outlined in Section 64 BSA (e.g., the original is in possession of the adverse party, or the original is lost or destroyed).

Proof of Handwriting and Signatures

Establishing the authenticity of handwriting and signatures on documents is crucial.

Section 67 BSA

• Requirement: If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in that person's handwriting.

• Methods of Proof: This can be done through:

  • The evidence of the person who wrote or signed it.

  • The evidence of any person acquainted with the handwriting or signature of the person by whom it is alleged to have been signed or written.

  • Expert evidence comparing it with admitted writings.

  • Evidence of a witness who saw the document being signed or written.

Proof of Execution of Document

For certain documents, the law requires more than just proving handwriting; it requires proving execution, especially for attested documents.

Section 68 BSA: Proof of execution of document required by law to be attested

• Attested Documents: If a document is required by law to be attested (e.g., Wills, certain deeds), its execution must be proved.

• Proof of Execution: Section 68 BSA states that if a document is required by law to be attested, it shall not be deemed to have been executed unless one attesting witness, if alive and subject to the process of the Court, calls for the purpose of proving its execution.

• Exception: If no such witness can be called, then execution may be proved by other evidence.

Proof of Will

Wills are special documents that require specific proof of execution.

Section 69 BSA

• Proof of Will: If a document is required by law to be attested, but no such attesting witness can be found or produced, it must be proved that the document was signed by the person purporting to have signed it; and that it was attested by the attesting witness.

• Method: This can be done by calling evidence to prove the signature of the person who purported to sign it, and the handwriting of the attesting witness.

• Purpose: This section provides a fallback mechanism for proving wills when the attesting witnesses are unavailable, ensuring that valid wills can still be admitted to probate.