In this article, what is called a public document and private document under the Bhartiya Sakshay Adhiniyam and what are the major differences between them and the form of a public and private document along with how to obtain certified copies of a public document have been mentioned in simple words.

It is to be mentioned here that earlier provisions were made in sections 74 to 79 of the Evidence Act regarding public documents and private documents, which have been replaced by the Bhartiya Sakshay Adhiniyam, 2023.

The currently applicable Bhartiya Sakshay Adhiniyam, 2023, sections 74(1) to 78 provide for the definition of public and private documents, certified copies of public documents, proof of documents and presumption of genuineness of certified copies, which are explained in detail in this article.

Public document and a private document

Public documents and private documents Before knowing about public documents and private documents, it is important for us to know about documents, what are documents called.

According to section 2(g) of the Bhartiya Sakshay Adhiniyam –

“Document means any matter expressed or described by any means of letters, figures or marks or by more than one of those means which are intended to be used or may be used for the purpose of recording that matter.”

In this way, every article or writing, words which are printed or photographed, map or plan, any caricature etc. come under the definition of document.

Generally anything written on a page of paper in languages ​​like Hindi, English, Urdu etc. is called a document, but according to section 3 of the Sakshay Adhiniyam, anything whether it is on paper, on stone, on wood, or inscribed in pictures or other symbols shall be called a document.

Under the Bhartiya Sakshay Adhiniyam, for the purpose of evidence, there are two types of documents, namely

(i) public document and

(ii) private document.

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Public documents Section 74(1)

Documents which are records of the acts of a sovereign authority or of the acts of governmental bodies and tribunals or which describe the legislative, judicial or executive actions of any part of India or of the Commonwealth or of any foreign country are public documents.

Such documents are prepared by the public servant in the discharge of his official duty and are kept in special custody. If any document is not prepared by the public servant in the discharge of his official duty then it will not be called a public document.

Under Section 74(1), the following documents are public documents for the purpose of evidence:

(i) documents being the acts or records of the acts of –

(a) sovereign authorities

(b) governmental bodies and tribunals

(c) legislative, judicial and executive public authorities in India or in any foreign country, and

(ii) public records of private documents kept in a State or Union Territory.

The following characteristics of a public document appear from its definition 

(a) It is related to public interest

(b) It is prepared by a public servant in the discharge of his official duties

(c) It is kept in special custody

(d) Its certified copy is admissible in evidence as original evidence, and

(e) Such documents are conclusive evidence about their contents provided they are not contradicted.

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Some important public documents are –

(i) Government proclamations, Government Gazette, Act and Government Notification,

(ii) Document prescribing permission granted by the District Magistrate under Section 29 of the Arms Act,

(iii) Dakhalnama, Khasra-kapag, Decree of Courts, Arrest Warrant, Confessions, Court Judgment, Charge Sheet, Ballot Paper,

(iv) Documents made from records of the actions of Police Officers and Magistrates exercising their powers under the Code of Criminal Procedure.

Importent cases related to public documents –

(i) Voter list (Gopi Kishan vs Shankarlal Dakot, AIR 2005 Rajasthan 114)

(ii) Scheme prepared under Electricity Supply Act, 1948 (Deputy Managing Director, CESC vs Nava Kumar Mandal, AIR 2000 Calcutta 97)

(iii) Certificate issued by the Postal Department that the landlord refused to accept the money order for the rent amount sent by the tenant to the landlord (Shiv Narayan Chaudhary vs Nag & Company, AIR 1982 Allahabad 44)

(iv) A private Wakf deed which is on record in the office of the Sub-Registrar as a private document (Fazal Sheikh v. Abdul Rehman Miyan, AIR 1991 Guwahati 177)

(v) A deed of agreement between the trust and the Government stipulating that the Board constituted for Temples shall include the Gurudwara (Kabul Singh v. Ram Singh, AIR 1986 Allahabad 75)

(vi) A certified copy of the Hindu Marriage Register (V.D. Grihalakshmi v. T. Prashanth, AIR 2012 Madras 34)

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Private Documents Section 74 (2)

In simple terms, it can be defined as, all documents which are not public documents fall under the category of private documents.

According to Section 74 (2) of the Bhartiya Sakshay Adhiniyam – “Except the documents specified in sub-section (1), all other documents are private.”

The literal definition of private document has not been given in the Sakshay Adhiniyam, whereas it has been stated in it that, – All the documents which are not public documents are private documents i.e. all other types of documents except public documents come under the category of private documents,

such as – contract, donation deed, mortgage deed, adoption deed, lease etc. are all private documents.

In the case of P.Tangkhul vs. Ganguirang – a document which is not made in accordance with government rules was not considered a public document. (AIR 1992 Guwahati 66)

Some important private documents –

(i) plaint, written statement, affidavit,

(ii) registered copy of bill, diary, settlement map,

(iii) sale deed, partition deed prepared by Amin etc.

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Certified copies of public documents (Section 75)

Certified copy means a copy of any document whose authenticity can be certified.

Certified copy of public documents is obtained from the competent officer after depositing the prescribed amount. The competent officer who gives this copy has to mention some things in the copy –

(a) That it is a true copy of the original document

(b) The date of giving the copy should be mentioned on it

(c) The copy should be signed with the name and official title of the officer issuing it. (d) The copy should bear the seal of the officer signing it.

Section 75 of the Bhartiya Sakshay Adhiniyam provides the gist of certified copies of public documents as follows:-

“Every public officer who has in his custody any public document which any person has a right to inspect, shall, on demand, give to such person a copy thereof on payment of the legal fees therefor together with a certificate in writing attached thereto that it is a true copy of such document or part thereof, as the case may be; and

Such certificate shall be dated by such officer and shall be signed in his name and designation and shall be sealed whenever such officer is by law authorized to use any seal and such copies so certified shall be called certified copies.”

In the case of Shrimati Kaushalya Bai vs Radha – The pure copy of Khalsa Panchshala signed by the Patwari has not been considered as a certified copy under section 76 because there was no basis to presume that such document was genuine, due to which such document was not considered reliable. (AIR 2005 NOC 207 Madhya Pradesh)

What are the necessary conditions for the applicability of section 75 –

(a) The document is a public document

(b) Such document is in the custody of a public officer

(c) Every person has the right to inspect such document

(d) The prescribed fee for obtaining a certified copy is paid.

Admissibility in Evidence (Section 76)

Section 76 of the Bhartiya Sakshay Adhiniyam provides for the admissibility of certified copies in evidence, as follows: Such certified copies may be produced in proof of the contents of public documents or parts of public documents of which they purport to be copies.

That is, certified copies of public documents may be produced to prove their contents.

In the case of ‘Parvathy vs K. Sivalingam’ it has been said that – A certificate issued by the statutory authority in the prescribed format from the register maintained by the authority regarding the date of birth is admissible in evidence. (AIR 2009 NOC 222 Chennai)

Difference between public document and private document

(i) – Public documents are prepared by a public servant in the discharge of his official duty,

While private documents are prepared by a person for his private interest under his personal authority.

(ii) – Public documents are available for public inspection in a public office for a fixed time on payment of a prescribed fee,

While private documents are kept by the individual personally as evidence of his rights and liabilities and are not generally open to inspection by the public.

(iii) Public documents can be proved by secondary evidence by means of certified copies,

while private documents should generally be proved by means of originals produced in the court unless permission is obtained to produce secondary documents under Section 65.

(iv) – Usually certified copies of public documents are sufficient and competent evidence of the same,

while original copies of private documents are sufficient and competent evidence of the same i.e. it is proved by primary evidence.

(v) – On the basis of certified copies of public documents, the court is bound to presume about the authenticity or genuineness of the public document,

While on the basis of certified copies of personal documents, the authenticity or genuineness of the original document cannot be presumed, except for some exceptions.

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