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Section 73 and public documents

Supreme Court of India

The State Of Bombay vs Kathi Kalu Oghad And Others on 4 August, 1961

To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that-though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Further more it must be assumed that the Constitution-makers were aware of the existing law, for example, s.73 of the Evidence Act or ss. 5 and 6 of the Identification of prisoners Act (XXXIII of 1920).Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so Measurements' include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under s. 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by s. 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, s.73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.

The matter maybe looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not ",to be a witness". "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case (1) that the prohibition in cl.(3) of Art.20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document, which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the' Court to produce that document in accordance. with the provisions of s.139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, lie cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he his given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court in Sharma's case(,) that s.139 of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well- founded in law. It is well-established that cl.(3) of Art.20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a "personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness'.

In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition, of the constitutional provision, it must be of such a' character,that by itselfit- should have the tendency of incriminating the accused, if riot also of actually doing so. In other words,it should be a statement which makes the case against the accused person atleast probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'. Similarly,during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of s.-27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of s. 27 of the Evidence Act, in so far as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of el. (3) of Art. 20, such information would amount to furnishing evidence. This Court in Sharma's case (1) was not concerned with pronouncing upon the constitutionality of the provisions of s. 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether s. 27 of the Evidence Act was unconstitutional because it offended Art. 14 of the Constitution was considered by this court in the, case of State of U. P. v. Deomen Upadhyaya. It was held by this Court that s. 27 of the Evidence Act did not offend Art. 14 of the Constitution and was, therefore, intra vires.

But the question whether it was unconstitutional because it contravened the provisions of el. (3) of Art. 20 was not considered in that case. That question may, therefore be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to,, a police. officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self- incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of el. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.' In other words, the mere fact of being in police custody at the time when the statement in question was 'made would not., by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion'.

3) To be a witness' is not equivalent to garnishing evidence' in its widest significance ; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification were not included in the expression to be a witness.

(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Art. 20(3), the person accused must have stood in the character of an accused person At the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

The Judgment of S. K. Das, Sarkar and Das Gupta, JJ.was delivered by DAS GUPTA, J

The question then is :. Is an accused person furnishing evidence when he. is giving his specimen handwriting or impressions of his fingers, or palm or foot ? It appears to us that he is : For, these are relevant. facts, within the meaning of s. 9 and a. 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under s.10., or is, producing the plan of a house where a burglary has been committed or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Art. 20 (3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be, compelled to be a witness against himself. The question that arises therefore is : Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot The answer to this must, in our opinion, be in the negative. The matter becomes clear, when we contrast the giving of such handwriting or impressions, with say, the production of a letter admissible in evidence under s. 10, or the production of the plan of a burgled house. In either of these two latter cases, the evidence given tends by. itself to incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions., identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person., or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself, So when an accused person is compelled to give a specimen handwriting or impressions of his finger,pahm or foot, it may be said that he has been compelled to be a witness ; it cannot however be said that he has been compelled to be a witness against himself.

This view, it may be pointed out, does not in any way militate against the policy underlying the rule against "testimonial compulsion" we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.

We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art.20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s.73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that ,to be a witness" in Art.20(3) should be 'equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own hand- writing even though it may tend to prove facts in issue or relevant facts against him.

In a further question as regards the validity of s.27 of the Evidence Act was raised. It was said that the receipt of information from an accused person in the custody of a police officer which can be proved under s.27 is an infringement of Art.20(3). Section 27 provides that when any fact is deposed to as discovered in consequence of Information received from a person accused of any offence, in the custody, of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence and therefore is a "witness" during the investigation. Unless however he is "'compelled" to give the information he cannot be said to be "compelled" to be a witness; and so Art. 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s.27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that s. 27 necessarily infringes Art.20(3) cannot be accepted. A question was raised in the course of the discussion as to when a person can be said to have been "'compelled" within the meaning of Art.20(3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been "compelled". The other view is that in addition to cases where there has been such constraint or coercion an- accused should be said to have been ",compelled" to be a witness whenever there has been inducement or promise which persuaded the accused to be a witness, even though there has been no such coercion or constraints In Criminal Appeals Nos. 110 and 111 the information proved under s.27 of the Evidence Act was that Pokhar Singh had buried certain fire-arms in village Badesra under Toori and these were recovered when he pointed these out to the investigating police officer. This information was proved under s.27. But it does not appear to have been suggested that the accused was made to give this information by inducement or threat or promise. On the facts therefore there is no question of the information having been received by compulsion. The question whether any inducement or promise which leads an accused person to give information amounts to compulsion or not, does not therefor fall to be decided.

It may be pointed out that in the other appeals,, also, this question does not arise for consideration in view of our conclusion that in any case the accused does not become a "'witness against himself by giving his Specimen signatures or impressions of his fingers or Palms.

It appears to us to be equally unnecessary to decide another question which was mooted in the course of the hearing, viz., whether the prohibition of Art.20(3) operates only after a person has been accused of an offence or even before that stage. Admittedly, in all these cases the person on whose behalf the protection under Art. 20(3) is claimed gave the specimen signatures or impressions of fingers or palms after he had been actually accused of an offence.

We think it right therefore not to express any opinion on any of these questions.

Supreme Court of India

Murari Lal S/O Ram Singh vs State Of Madhya Pradesh on 21 November, 1979

The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.

Bombay High Court

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

Section 79 which raises a presumption of the genuineness of certified copies has no application to original documents and indeed that is apparent from the plain language of that section itself. As laid down by the Supreme Court in the case of Bhinka v. Charan Singh para 7, Section 79 only raises a rebuttable presumption with regard to the genuineness of certified copies and that too only if they are executed substantially in the form and in the manner provided by law. 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 reasons 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 caseit 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 (sic) make any make any exception in the case of public documents. In view of the provisions is said section all documents whatever be their nature must therefore be proved in the manner provided by Section 45, 47 or 73 of the Evidence Act or in the case of certain types of documents, by the intrinsic proof afforded by their own contents as laid down by the Supreme Court.

Supreme Court of India

Tukaram S.Dighole vs Manikrao Shivaji Kokate on 5 February, 2010

clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as "public documents". As per Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no dispute that certified copy of a document issued by the Election Commission would be a public document.

However, in the present case, the dispute is not whether a cassette is a public document but the issues are whether: (i) the finding by the Tribunal that in the absence of any evidence to show that the VHS Cassette was obtained by the appellant from the Election Commission, the cassette placed on record by the appellant could not be treated as a public document is perverse and (ii) a mere production of an audio cassette, assuming that the same is a certified copy issued by the Election Commission, is per se conclusive of the fact that what is contained in the cassette is the true and correct recording of the speech allegedly delivered by the respondent or his agent?

Observing that the appellant had failed to produce even the receipt stated to have been issued by the Election Commission's office, the Tribunal held that mere production of the cassette with the Election Petition would not lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved. Having perused the material on record, we are in complete agreement with the Tribunal that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document. No relevant material was brought to our notice which would impel us to hold that the finding by the Tribunal is perverse, warranting our interference.

The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are "documents" as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. here is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.

Illustrations :

Electoral Roll of all the districts

Census Report of India

Town Planning Reports by the Department of State Development

Village Records of the villages

Public records keeping the original private documents and not the copy

Records of National Bank

Birth and Death Register

Charge Sheet

Confessions recorded by a magistrate under section 164 of Cr.P.C.

Sanction to prosecute

Record of Information under section 145 of Cr.P.C.

Notice under section 106 of Cr.P.C.

Dalip Kumar Alias Pinki vs State (1995 CriLJ 1742) the Delhi High Court stated that the medical officer prepared the MLC report as a public servant in discharge of his duties and therefore, the MLC report is a public document and the contents of which are admissible as evidence.

Madras High Court

Rangaraju vs Kannayal on 10 January, 2012

1.It has to be pointed out that a document cannot be said to be a public document within Section 74 of the Indian Evidence Act, unless it is shown to have been prepared by a public servant in discharge of his official duty as per the decision rendered in S.V.Chimanlal's case reported in AIR 1942 Bombay 161.

2.Whenever there is a duty to record official doings, the record thus kept is admissible. As a general principle, it may be laid down that wherever there is a duty to do so, then there is also a duty to record the things done (Wigmore S 1639).

3.A public document is one made by a public officer for the purpose of the public making use of it and being able to refer it as per the decision made in Sturla vs. Ferriccia (1882) 5 App Cas 623 HL at 643 per Lord Blackburn.

4.The rule as to public document is that the publicity must be contemporaneous and publicity means such publicity as would afford an opportunity of correcting anything that is wrong.

5.The test of publicity is that the public are interested in it and entitled to see it so that if there is anything wrong in it, they are entitled to protest.

6.When a public has a right to inspect an official document, it becomes a public document and the certified copy of the same will be given to that person who has applied for it, provided his right of inspection is not taken away by any other provisions of the Indian Evidence Act or by any other law, as opined by this court.

7.As a matter of fact, a certified copy of a public document need not be proved by calling a witness as per the decision of the Honourable Supreme Court reported in AIR 1963 SC 1633 in the case of Madamanchi Ramappa and another vs. Muthalur Bojjappa.

8.Section 65(e) of the Indian Evidence Act allows secondary evidence such as certified copy to be given where the original is a public document within the meaning of Section 74 of the Indian Evidence Act. It is only for the convenience, the statutory provision has been made for proving a public document by tendering its certified copy, in the considered opinion of this court.

The basic question that arises here is whether a person will be entitled to a copy of a public document? Well the answer to this is if a person has the right to inspect the document then, he would be entitled to get a copy of the public document and if he has no right to inspect the public document he cannot get a copy of the public document, as mentioned in the case of Rasipuram Union Motor Service vs Commissioner Of Income-Tax [(1956) 2 MLJ 604].

018. Section 73 and public documents
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