Explain what is meant by 'public documents' and 'private documents'. What are the presumptions as to electronic records and digital signature? What are Public Documents? How can they be proved in a court of law?

The Distinction Between Public and Private Documents: Proof, Presumptions, and the New Digital Landscape

The Foundational Divide

Every document that can be produced in a court of law in India belongs to one of two categories — public or private. This classification is not merely academic; it has far-reaching consequences for how the document must be proved, what presumptions the law raises in its favour, and how secondary evidence of it can be given. Section 74 of the Indian Evidence Act, 1872, and its modern counterpart Section 74 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), draw this dividing line with considerable precision. Section 75 of the Indian Evidence Act and Section 74(2) of the BSA declare, by way of residual definition, that all documents not falling within the definition of public documents are private.

What the Law Means by Public Documents

A public document, under Section 74 of the Evidence Act (and Section 74(1) of the BSA), is a document that belongs to one of two distinct categories.

The first category comprises documents forming the acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers — whether legislative, judicial, or executive — of India or of a foreign country. The second category comprises public records kept in any State or Union Territory of private documents. It is important to understand what this second category means. A sale deed or a Will is a private document, but once it is registered and its contents are entered in Book-I of the Registering Officer's office, that register itself becomes a public document. As the Gauhati High Court explained in Narattam Das v. Md. Masadharali Haribhuiyan (1991 1 Gau LR 197), a public record is one required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done. The private document itself does not become a public document by being registered; it is the public record of it — the entry in the Registrar's volume book — that acquires the character of a public document.

The distinction matters enormously. The word "acts" in the first category refers, as the Full Bench of the Madras High Court explained in Queen-Empress v. Arumugam (ILR 20 Mad 189), to final, completed acts of public officers, not to mere preliminary inquiries or investigative processes. This is why statements recorded under Section 161 of the CrPC during investigation are not public documents, while a confessional statement recorded by a Magistrate under Section 164 CrPC is, because the Magistrate performs a judicial act when recording it.

Examples That Courts Have Settled

The case law on the subject is voluminous, and it is instructive to know which documents have been held to be public and which have not:

Held to be public documents:

• Electoral rolls prepared under the Representation of the People Act, 1951 (Naladhar Mahapatra v. Seva Dibya, AIR 1991 Ori 166)

• Certified copies of orders of civil courts and FIRs (Md. Akbar v. State of AP, 2002 Cr LJ 3167)

• Charge sheets under Section 120B IPC (Kitab Singh v. Deputy Commissioner, AIR 2008 Raj)

• Records of nationalised banks (Gorantla Venkateshwarlu v. B. Demudu, AIR 2003 AP 251)

• Hindu Marriage Registers (Manjula v. Mani, 1998 Cr LJ 1476 Mad)

• School leaving certificates (Prem Chand Sao v. State of Jharkhand, 2003 Cr LJ NOC 66)

• Memorandum of Association of a company (Binani Properties v. M. Gulamali Abdul Hossein Co., AIR 1967 Cal 390)

• Wakf deeds registered with the sub-registrar (Fazal Sheikh v. Abdul Rahman Mea, AIR 1991 Gau 17)

• MLC reports prepared by medical officers in medico-legal cases (Dalip Kumar v. State, 1995 Cr LJ 1742 Del)

Held not to be public documents:

• Income tax returns (Devidatt v. Shriram, AIR 1932 Bom 291)

• Plaints and written statements filed in court (Gulab Chand v. Sheo Karan Lall, AIR 1964 Pat 45)

• Post-mortem reports (State v. Bhola Pal, 1995 Cr LJ 3717 Cal)

• Insurance policies (New India Assurance Co. Ltd. v. Krishna Sharma, AIR 1998 Del 386)

• A registered power of attorney — being not the original document itself but only a copy of it that is registered (Narattam Das, Gau DB, supra)

Private Documents: The Residual Category

Every document that does not fall within Section 74(1) of the BSA or Section 74 of the Evidence Act is a private document. Contracts, leases, mortgage deeds, sale deeds in their original unregistered form, Wills in their original form, promissory notes, receipts, letters — all are private documents. Their proof is governed by the general rules under Sections 65–72 of the Evidence Act (Sections 60–71 of the BSA), which require compliance with the best evidence rule, and in the case of documents required by law to be attested (such as Wills), by the mandate of Section 68 of the Evidence Act (Section 67 of the BSA).

How Public Documents Are Proved in Court

Here lies the most significant practical advantage that the classification as a "public document" confers. The originals of public documents are not required to be produced in court. The law recognizes a practical wisdom here, articulated by Best in his celebrated Law of Evidence: public documents are not liable to corruption, alteration, or misrepresentation — the whole community is interested in their preservation. If originals were to be constantly produced in court, they would be exposed to the risk of loss, mutilation, and destruction. Besides, the same document may be required at different places at the same time. The law, therefore, permits public documents to be proved by certified copies alone, without the production of the original.

The procedure for certified copies is prescribed under Section 76 of the Evidence Act (Section 75 of the BSA). Every public officer having custody of a public document which any person has a right to inspect shall, on demand and on payment of legal fees, give that person a copy of it, together with a certificate at the foot of the copy stating that it is a true copy, dated and subscribed by that officer with his name and official title, and sealed whenever the officer is authorized by law to make use of a seal. These copies are called "certified copies," and under Section 77 of the Evidence Act (Section 76 of the BSA), such certified copies may be produced in proof of the contents of the public document.

The all-important presumption in favour of certified copies is raised under Section 79 of the Evidence Act (Section 78 of the BSA). The court shall presume to be genuine every document purporting to be a certified copy duly certified by an officer of the Central or State Government, provided such document is substantially in the form and executed in the manner directed by law. The court shall also presume that any officer by whom such document purports to be signed or certified, held, at the time of signing, the official character which he claimed. This presumption is based on the ancient maxim omnia praesumuntur rite esse acta — all acts are presumed to have been done rightly. The Supreme Court in Binka v. Charan Singh (AIR 1959 SC 960) confirmed that under this section, a court is bound to draw the presumption that a certified copy is genuine and that the officer who issued it held the stated official character. This presumption is, of course, rebuttable.

A certified copy of a public document is thus admissible in evidence without being proved by calling any witness. This was affirmed by the Supreme Court in Jaswant Singh v. Gurdev Singh (2012 1 SCC 425) and again when the Court observed that a certified copy of even a compromise decree — which becomes part of the court's record — is admissible as a public document without further proof.

The Special Modes of Proof Under Section 78 (Now Section 77 of BSA)

Beyond certified copies, Section 78 of the Evidence Act (Section 77 of the BSA) prescribes specific additional modes of proof for certain classes of public documents. These modes are not exhaustive and do not override the general rule that a public document may be proved by its certified copy. In brief:

• Acts, orders, or notifications of the Central or State Government may be proved by departmental records certified by the heads of departments, or by documents purporting to be printed by order of such Government.

• Proceedings of Parliament or State Legislatures may be proved by the Journals of those bodies or by published Acts.

• Proclamations, orders, or regulations issued by the President or Governors may be proved by copies or extracts in the Official Gazette.

• Acts of foreign legislatures may be proved by journals published by their authority, or by a copy certified under the seal of the foreign country, or by recognition in a Central Act.

• Proceedings of a municipal or local body may be proved by a certified copy or by a printed book published by the authority of such body.

• Public documents of any other class in a foreign country may be proved by the original or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public or Indian Consul.

A Critical Distinction: The Registered Document

A word of caution is necessary on a frequently misunderstood point. A registered sale deed is not a public document in itself. The sale deed remains a private document. What is a public document is the entry made in the volume book (Book-I) of the Registering Officer's office. The Gujarat High Court in Jagdishchandra Chandulal Shah v. State of Gujarat (1989 Cr LJ 1724 Guj) held that a copy of a registered sale deed certified by the registration officer is a public document within the meaning of Section 74 and is admissible for proving the contents of the original. Similarly, the Supreme Court in State of Haryana v. Ram Singh (AIR 2001 SC 2532) held that a certified copy of a registered sale deed is admissible in evidence for proving comparative land value without examining the vendor or vendee as witnesses. However, a certified copy of a Will has been held to not be a public document within the meaning of Section 74, and the Will cannot be accepted as primary evidence on the strength of a certified copy alone.

Presumptions as to Electronic Records

The Indian Evidence Act, as amended by the Information Technology Act, 2000, and now the Bharatiya Sakshya Adhiniyam, 2023, deals with the evidential treatment of electronic records and digital signatures through a set of carefully crafted provisions.

Admissibility of Electronic Records — The Section 65B Mandate: Under Section 65B of the Evidence Act (now substantially incorporated in the BSA), electronic records produced by a computer are admissible as evidence if the conditions in that section are fulfilled. The computer output must have been produced during a period over which the computer was regularly used for the activities in question, information of the relevant kind must have been regularly fed into the computer in the ordinary course of those activities, the computer must have been operating properly throughout the material part of the period, and the information in the electronic record must reproduce or be derived from information fed into the computer in the ordinary course of activities.

Presumptions as to Digital Signatures: Section 73A of the Evidence Act (Section 73 of the BSA) provides the court with the power to ascertain whether a digital signature is genuine. The court may, for this purpose, direct the person who allegedly affixed the signature, or the Controller, or the Certifying Authority, to produce the Digital Signature Certificate. The court may also direct any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature. The mechanism here is based on the dual-key cryptographic system introduced by the Information Technology Act, 2000 — a private key is used to create the digital signature and a public key, mathematically related to it, is used to verify it. Section 2(f) of the IT Act defines an asymmetric crypto system as a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature.

Presumptions in the Evidentiary Scheme: The law raises certain presumptions to ease the burden of proof in the context of electronic records. Section 85A of the Evidence Act raises a mandatory presumption — the court shall presume that every electronic agreement, if it bears the digital signatures of the parties, was concluded by affixing those digital signatures. Section 85B raises the presumption that secure electronic records and secure digital signatures are as asserted. Section 85C raises the presumption that a Digital Signature Certificate is genuine. Section 88A raises the presumption that an electronic message forwarded by the originator through an electronic mail server was forwarded by the message's originator. These are all rebuttable presumptions but they significantly ease the burden on the party relying on electronic documents. The BSA carries forward these presumptions and builds upon them in its provisions relating to electronic records and digital signatures, recognizing that in the modern age the court must be equipped to deal with contracts, communications, and official acts performed entirely in the electronic medium.

The Rationale Behind the Classification

The philosophy underlying the distinction between public and private documents is elegant. Public documents come with a built-in guarantee of trustworthiness that private documents do not. They are made by officers who act in the discharge of a public duty, they are available for public inspection, they are preserved under official custody, and the entire community has an interest in their accuracy and preservation. Private documents, by contrast, serve the interests of private individuals, are not subject to public scrutiny, and are more susceptible to misrepresentation. This is why the law permits public documents to be proved by certified copies while insisting, in the case of private documents, on primary evidence or on the strict conditions under Section 65 of the Evidence Act (Section 60 of the BSA) before secondary evidence is admitted.