Section 35 of the Indian Evidence Act, 1872

Comments:

Scope:

This section is based on principle that public records, viz., public or other official book, register or record, maintained in performance of official duties by an officer are admissible. Such public records or documents have got evidentiary value. Following conditions have to be satisfied before any document is made admissible:

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1. An entry must be contained in public or official record.

2. It must be made by a public servant.

3. It must be made by public servant in discharging of his official duties.

4. It must be an entry stating a fact in issue or a relevant fact.

Principle:

The principle upon which the entries in a register are received as evidence is that it is public duty of the person who keeps the register for making such entries after satisfying of their truth. The persons who are discharging such public duties have been vested with extraordinary degree of confidence, because the public records are kept only for public benefit. When there is a question of proving such entries, these are generally proved by the production of a certified copy of them. It is not necessary that the person who made the entries have to be called for before the court and have to be examined on oath or to be put in cross-examination. All documents and records are to be presumed to be correct and genuine.

Entries in public records:

To prove the genuineness of entries made in public records it is necessary that the entries have been prepared by the public servant in discharge of his official duties. For the purpose of the section same standard has to be applied both in civil as well as in criminal proceedings. An entry in a birth register made by the officer-in-charge in performance of his official duty is relevant. But, the evidence of school certificate for proof of a juvenile offenders age was not acceptable, because the register was not prepared in the discharge of a statutory duty. Similarly in case of school leaving certificate Head Master of School stated that he had no personal knowledge as to date of birth, it cannot be allowed. Where the session judge relied upon the entries in the school register for fixing the age of an accused which the High Court reversed, was accepted by the Supreme Court observing that the High Court should not have done so without giving proper consideration to the probative value of the evidence in question. Entries in School Register, School Leaving Certificate have to be proved in same manner as required in civil and criminal cases.

The presumption is that when an entry purports to be made by a public servant,-the court must assume that the public servant did his duty to the best of his ability and based on the entry on material of accuracy of which he was satisfied; but the presumption of truth created by a public record is also rebuttable. Where there is challenge to the validity of record of a village the Supreme Court held that the entries in annual village papers (Khasra) was rebuttable presumption in favour of the person whose name is borne out by the record. Under section 35 it has been held that ossification test is sure test for ascertaining age. The birth certificate producing on the basis of baptism certificate legally recognized legitimacy.

Record of Rights is admissible under section 35, however, ordinarily records of right not to be treated to have any evidentiary value on question of title in as much as such records are prepared mainly based on possession.

Evidentiary value of survey record:

Survey record prepared after decree was passed in suit. Unless the decree is set aside or declared as nullity no one can look into that document purporting to be a partition by ignoring decree.

Admissibility of electronic records:

According to Section 92 of the Information Technology Act 2000, the records maintained in electronic form are admissible along with paper based documents.