What is the fate of private document kept in public file? This question has often stimulated and challenged judicial minds. This question becomes quite relevant as different modes of proof and varied presumptions are provided for public and private documents under the Indian Evidence Act, 1872 ("Evidence Act"). An endeavor is made to ascertain the fate and nature of such documents, which may comprise of pleadings, Affidavits, documents, etc., filed before various Courts, Tribunals, Authorities, etc., including the documents which are registered in terms of the provisions of the Registration Act, 1908 ("Registration Act").
Section 3 of the Evidence Act defines 'document' as any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Similar definition of 'document' is also provided under Section 29 of the Indian Penal Code, 1860 ("IPC") and Section 3(18) of the General Clauses Act, 1897 ("GC Act"). As per the Evidence Act, 'evidence' means and includes, inter alia, "all documents including electronic records produced for the inspection of the Court" (documentary evidence).
Documents, as per the Evidence Act, can broadly be divided into two categories; public and private. According to Section 74 of the Evidence Act, public documents are the documents forming the acts or records of the acts of the sovereign authority, official bodies and tribunals, and of public offices, legislative, judicial and executive of any part of India or of the commonwealth, or of a foreign country. Furthermore, the public record kept in any State of private documents, are also included under the definition of public documents under this section. Per contra, all other documents (except those provided under Section 74 of the Evidence Act) are defined as private documents under Section 75 of the Evidence Act. It is pertinent to note here that law permits the proof of public documents by production of mere certified copies of such documents in terms of Section 77 or in the manner as provided under Section 78 of the Evidence Act. In contrast, private documents may be proved either by primary or secondary evidence (where permitted), in terms of Section 61 till Section 65 of the Evidence Act. Equally important is the presumption as to the genuineness of the certified copies of the documents as provided under Section 79 of the Evidence Act. In simple terms, public documents are the ones which are prepared by a public servant in the discharge of his official duties. Further, such documents are characterized by the fact that they are kept in special custody and are provable by means of a copy, without production of the original.
The Hon'ble Madras High Court, in Rangaraju v. Kannayal and Ors., 2012 SCC Online Mad. 138, considering various case laws on the subject, enumerated the characteristics of public document. It was, inter alia, noted by the Hon'ble Court that such documents must be prepared by a public servant in discharge of his official duty. As per the Hon'ble Court, public documents are the ones made by public officer for the purpose of the public making use of it and being able to refer it. The Hon'ble Court further held that the test of test of publicity is that the public are interested in such documents and are entitled to see it so that if there is anything wrong in it, they are entitled to protest. Furthermore, it was held by the Hon'ble Court, that when a public has a right to inspect an official document, it becomes a public document and certified copy of the same will be given to the person who has applied for it and that a certified copy of a public document need not be proved by calling a witness.
Coming back to the issue at hand, it is important to note that the definition of public documents, provided under Section 74 of the Evidence Act, clearly provides that only the acts, records of acts of authorities mentioned therein and the public record kept in any State of any private document constitute such documents (public documents). The Hon'ble Gujarat High Court (in The State of Gujarat v. Ambalal Maganlal Shah, 1966 CriLJ 967(1), 1965 SCCOnline Guj. 197), as early as the year 1965 noted the distinction between record of the Court and the record of the acts of the Court in the following terms, "A private document does not become a public document simply because it is filed in the Court. To be a public document, it should be a record of the act of a public officer or Court. There is a distinction between the record of the act of the Court and the record of the Court. A document which forms part of the record of the Court does not necessarily form record of the act of the Court. It may be that upon a private document, which is a record of the act of private parties a second act is done by the public officer or by the Court, namely filing the document or putting a number on the document. Only that portion of the document, which records the act of the Court in filing the document would be a public document. Therefore, that part of the document, namely the original part would be a private document forming the record of the act of the private parties and what is subsequently added to that document by the Court would be a public document." Therefore, it can clearly be deduced that simply because a document is filed before any Court/ Tribunal/ Authority in any form, the same would not acquire a 'public' character. In fact, it is not the record of the Court, rather, the record of acts of the Court which is considered as public document. Clearly, the pleadings or even private documents filed before the various Courts/ Tribunals/ Authorities would not make such documents 'public'. However, orders or decrees passed by the Courts/ Tribunals/ Authorities are public document, as they are the record of the acts of such Courts/ Tribunals/ Authorities.
Similarly, registration of document under the provision of the Registration Act would not make such a document 'public' (K.K. Thankappan And Ors. v. K.S. Jayan And Ors., AIR 2003 Ker. 114). It was eloquently noted by the Hon'ble High Court of Gauhati (Agartala Bench) in Bidhan Paul v. Paresh Chandra Ghosh, (2001) 3 Gauhati LR 594, "Only those public records which keep the private documents and not the copies of private documents are treated as "public document" within the meaning of Section 74(2) of the Indian Evidence Act." Even recently, a similar issue was considered by the Hon'ble High Court of Madhya Pradesh in Smt. Rekha Rana and Ors. v. Smt. Ratnashree Jain, 2006 (1) MPLJ 103, particularly, "Whether a sale deed (duly registered) is a public document?" The Hon'ble High Court, after a thorough review of the provisions of the Registration Act, held that, though, various books maintained in the Registration Offices are public record kept in a State of private documents and therefore public document. However, a deed of sale or other registered document would not fall under either of the two classes of documents described in Section 74, as 'public document'. It was observed by the Hon'ble Court, "A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration but is returned to the person who presented such document for registration, on completion of the process of registration. An original registered document Is not therefore a public record kept in a state of a private document. Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as 'public documents'."
Therefore, in the light of the above discussion it can be concluded that solely because a private document is filed or placed before Court/ Tribunal/ Authority or the same is registered under the provisions of the Registration Act, it would not transform the nature of such document to 'public'. A private document does not lose its character for the reason of it being filed before such authorities. Accordingly, unless and until some actions are performed by the public officer on such documents in his usual course of duties, it continues to be a private document. Similarly, registered private documents do not attain public character solely on their registration under the provisions of law. In fact, it is only the public record of private documents, kept in any State, which attributes 'public' character to such private documents in terms of Section 74(2) of the Evidence Act. Conclusively, a private document continues to retain its character even if it is kept in public file. It is neither by such filing or registration that a 'private' character of a such document is lost.