Public and Private Documents under Sections 74 to 77 of the Bharatiya Sakshya Adhiniyam, 2023

A four-section chapter does something remarkable: it removes an entire class of documents from the ordinary requirements of proof. A judgment, a registered deed, a revenue entry or a Gazette notification is proved by producing a certified copy, and nobody need prove execution, call a witness, or account for the original — which is just as well, since public records are never released. Understanding why this class exists, and exactly how far it extends, disposes of a very large part of routine documentary practice.

1. The Chapter

2. Section 74 — The Classification

The classification is exhaustive and binary. Every document is either public or private, and the definition works by describing the public class and consigning everything else to the private one.

2.1 The first limb — acts and records of acts

What makes a document public under sub-section (1) is that it forms the act, or the record of the act, of a public authority acting in that capacity. Three categories are named — the sovereign authority, official bodies and tribunals, and public officers whether legislative, judicial or executive.

Two features of the drafting are worth noting. The phrase 'acts or records of the acts' covers both the instrument itself and the record kept of it — a judgment and the court's record of the judgment are each within it. And the reference to public officers of a foreign country brings foreign official records within the definition, which is what Section 77 later builds upon.

2.2 The second limb — public records of private documents

This is the limb that matters most in practice and is most often overlooked.

A public record kept of a private document is itself a public document. The underlying instrument remains private; the official record of it is public.

The consequence is considerable. A sale deed between two individuals is a private document. The record of it maintained in the registration office is a public record of a private document and is therefore public, and a certified copy of that record is admissible as a public document under Sections 75 and 76.

This is why property transactions are proved as they are in Indian courts. The party does not produce the original deed and prove its execution; he produces a certified copy from the sub-registrar and relies on the presumption in Section 78. The whole of the ordinary machinery for proving a private document is bypassed.

3. Public and Private Compared

4. Section 75 — The Right to a Certified Copy

The section does two things. It confers a right on a person entitled to inspect a public document to obtain a certified copy of it on payment of the prescribed fee. And it prescribes the form of certification, which is what distinguishes a certified copy from any other copy.

Four elements are required, and each is checked when the copy is tendered.

1. Issue by a public officer having custody of the document. The Explanation extends this to any officer authorised by the ordinary course of official duty to deliver such copies.
2. A certificate written at the foot of the copy that it is a true copy of the document or of the part copied.
3. Dated and subscribed by the officer with his name and his official title.
4. Sealed, wherever the officer is authorised by law to use a seal.

The right to a certified copy depends on a right to inspect. Where a person has no right of inspection, the officer is under no obligation, and this is the point at which applications for certified copies of records relating to third parties are refused.

5. Section 76 — Proof by Certified Copies

One sentence, and it does the whole work of the chapter. A certified copy proves the contents of the public document without the original being produced, without the custodian being called, and without execution being proved.

Two features of the section are worth noting. It extends to parts of a public document, so a certified copy of an extract is as good as a copy of the whole — subject to Section 33, which requires enough to be produced for the meaning to be understood. And it is confined to proving the contents; it says nothing about the truth of what the document states.

The relationship with the secondary-evidence provisions completes the picture. A certified copy is secondary evidence under clause (i) of Section 58, and under grounds (e) and (f) of Section 60 — where the original is a public document, or a document of which a certified copy is permitted by law — a certified copy is the only kind of secondary evidence admissible. A photocopy of a judgment or a registered deed is inadmissible however clear it is.

6. Section 77 — Other Official Documents

Section 77 supplies specific modes of proof for classes of public document whose nature makes the ordinary certified-copy route inconvenient or impossible. The pattern throughout is that an official publication or an officially certified copy is accepted.

Three features of the section are of practical importance.

A printed Government publication proves itself. Under clause (a), an Act, order or notification may be proved by a document purporting to be printed by order of the Government. Nothing further is required, and this — with the Gazette provisions in clause (c) — is why subordinate legislation is never formally proved in Indian courts.

The Gazette is the standard route for notifications. Clause (c) permits proclamations, orders and regulations to be proved by copies or extracts contained in the Official Gazette, and Section 80 supplies a presumption as to the genuineness of the Gazette itself. Section 81 extends the presumption to the Gazette in electronic form.

Clause (f) is the route for foreign public documents and is examined separately below.

7. Foreign Public Documents

Clause (f) of Section 77 addresses a real difficulty. A foreign public document is within the definition in Section 74(1), since that provision extends to public officers of a foreign country — but no Indian officer has custody of it, and the certification machinery in Section 75 cannot operate.

The clause supplies two routes. The original may be produced. Or a copy certified by the legal keeper of the document may be produced, accompanied by a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, stating that the copy is duly certified by the officer having legal custody of the original.

A further requirement attaches to the second route and is frequently missed: there must be proof of the character of the document according to the law of the foreign country. That is a question of foreign law, which under Indian law is a question of fact and must be pleaded and proved. The routes are Section 32, which makes relevant official publications of the foreign statute and authorised reports of that country's rulings, and Section 39(1), which admits the opinion of a person specially skilled in that foreign law.

Section 88 of the Adhiniyam supplies a related presumption for foreign judicial records, permitting the court to presume the genuineness and accuracy of a document purporting to be a certified copy of a judicial record of a country not part of India, where the copy is certified in the manner the section specifies.

8. The Presumption

The presumption is expressed in mandatory terms — 'shall presume'. Under Section 2(1)(l), where a fact is directed to be presumed, the court shall regard it as proved unless and until it is disproved. The burden therefore lies on the party challenging a certified copy, and raising a doubt is not enough.

Two matters are presumed and both matter. That the document is genuine; and that the officer signing it held the official character he claims, which relieves the party of proving the appointment of a functionary he may never have heard of.

The presumption is nevertheless conditional. It applies only where the document is substantially in the form and purports to be executed in the manner directed by law — which takes one back to the four elements of Section 75. A copy lacking the certificate at the foot, the date, the officer's title, or the seal where one is required does not attract it.

9. What a Certified Copy Does Not Establish

The privileges of this chapter are considerable and are easily over-read. Three limits should be kept in view.

It does not prove the truth of the contents. A certified copy establishes what the document says. Whether what it says is true is a separate question, and the statements in it remain hearsay unless a provision makes them evidence of their truth — Section 29, which makes relevant entries in public records made by a public servant in the discharge of official duty, being the principal route.

The presumption is of genuineness, not of correctness. Section 78 presumes that the copy is a true copy issued by the officer who purports to have issued it. It says nothing about whether the entry copied is right. A certified copy of a revenue record is presumed to be a true copy of the record; whether the record correctly states who owns the land is an entirely different question, and revenue entries confer no title.

It is still secondary evidence. A certified copy is classified under clause (i) of Section 58, and its admissibility still depends on a ground under Section 60. In practice grounds (e) and (f) are almost always available, so the requirement is satisfied automatically — but the classification matters where a certified copy of something that is not a public record is sought to be used.

10. Practical Points

1. Ask first whether the document is public. If it is, the whole apparatus of proving execution falls away.
2. Remember the second limb of Section 74. A registered deed is private; the registration record of it is public, and that is what should be obtained.
3. Obtain certified copies early, since they take time to issue and a photocopy will not do.
4. Check the form — certificate at the foot, date, name, official title, seal — because the presumption in Section 78 is conditional on it.
5. For notifications and subordinate legislation, use the Gazette route under Section 77(c) with the presumption in Section 80, or a Government publication under Section 77(a).
6. For foreign public documents, supply all three elements required by Section 77(f), including proof of the character of the document under the foreign law.
7. Do not confuse genuineness with correctness. A certified copy of a revenue entry proves the entry, not the title.
8. Where a certified copy is challenged, the burden lies on the challenger to disprove, and he must lead material rather than merely deny.

11. The Position Stated Shortly

1. Section 74 merges the two provisions of the earlier Act, defining public documents and providing that all others are private — so this chapter runs one number lower than the Indian Evidence Act throughout.
2. A public record of a private document is a public document, which is how registered instruments are proved.
3. Section 75 confers the right to a certified copy and prescribes four elements of certification.
4. Section 76 makes the certified copy proof of the contents without the original or any witness — Jaswant Singh.
5. Section 77 supplies specific modes for other official documents, including Government publications, Gazettes, legislative journals and municipal proceedings.
6. Foreign public documents require three things under clause (f) — a copy certified by the legal keeper, a notarial or consular certificate, and proof of the document's character under the foreign law.
7. Section 78 raises a mandatory presumption of genuineness and of the officer's official character, conditional on the prescribed form.
8. Genuineness is not correctness, and a certified copy does not prove the truth of the contents.

12. Related Topics and Provisions