Madras High Court
K.Tharush Moideen vs Hasan Ambalam on 2 February, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 2.2.2010. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL C.R.P.(PD)No.2398 of 2009 and M.P.No.1 of 2009 K.Tharush Moideen Petitioner vs. Hasan Ambalam Respondent Civil Revision Petition against the order dated 29.11.2008 in O.S.No.230 of 2002 passed by the Additional District Munsif, Poonamallee. For petitioner : Mr.R.Hariharan for Mr.M.Vijayakumar For respondent : Mr.V.Manohar ORDER
The defendant produced Ex.B7 which is a certified copy of the report of the Scientific Officer attached to Forensic Sciences Department, Government of Tamilnadu during the course of evidence and the same was marked with objections by the Trial Court. Such an order passed in the docket sheet by the Trial Court is challenged by the plaintiff in the present revision.
2. Ex.B7 is found to be a certified copy of the report of the Scientific Officer attached to Forensic Sciences Department, Government of Tamilnadu. The same was marked during the course of trial in a case relating to Crime No.25 of 2002 on the file of the learned Judicial Magistrate I, Poonamallee, having been collected by the investigating officer in that case. The defendant, having obtained a certified copy of the said report of the Scientific Officer, produced it before the court and the same was marked as Ex.B7 overruling the objections raised by the plaintiff. The Trial Court observed that the defendant was entitled to mark the said document as the same was found to be a public document and that the contention that the said report was tainted with mala fides would have to be established by the plaintiff by summoning the expert concerned.
3. Learned counsel appearing for the plaintiff would vehemently submit that the report of the Scientific Officer, which contains only the opinion, cannot be construed as a document forming the act of the Public Officer or a record of the act performed by the Public Officer. The Trial Court, having marked the said document as a public document, shifted the entire burden on the plaintiff to establish the document which was produced by the plaintiff. Therefore, he would submit that the order passed by the Trial Court is revisable.
4. Learned counsel appearing for the respondent/defendant would submit that the report submitted by the Scientific Officer falls very much within the category of public document as defined under section 74 of the Indian Evidence Act inasmuch as the said document forms part of the act performed by the Scientific Officer, who is admittedly a Public Officer. Therefore, he would submit that the observations made by the Trial Court and the decision taken by it is correct and proper.
5. Before adverting to section 74 of the Indian Evidence Act, 1872, it would be relevant to refer to section 35 of the said Act. Section 35 speaks about the relevancy of entry in public record made by the public servant in discharge of his official duty. As per section 35 of the Indian Evidence Act, the entry relied upon must be one in any public or official book, register or record. Secondly, it must relate to a fact in issue or relevant fact. Thirdly, it must be made by a public servant in discharge of his official duty or any person in performance of a duty substantially enjoined upon him by law. The presumption is that a public servant, who makes such entry in the relevant public record has made it truly and correctly in the discharge of his official duty.
6. Under section 35 of the Indian Evidence Act, all the records of the acts of public officers are classified as public documents.
7. Therefore, it is found that section 35 speaks about the relevancy of the entry made in the public record in discharge of his official duty by a public servant. A document which forms part of the official act or the records reflecting the acts performed by the public servant would fall under the classification enumerated in section 74 of the Indian Evidence Act. The nature of the document referred to under section 35 and the operation of the aforesaid provision of law are found to be different from the nature of documents defined under section 74 of the Indian Evidence Act.
8. In ABDUL HALIM v. RAJA SAADAT ALI (AIR 1928 OUDH 155), it has been held by the Single Judge of the court as follows:-
"Mr.Jinnah, the learned counsel on behalf of defendant 1, however, contended that the document was not admissible without proof, it being merely an opinion of the Civil Surgeon as an expert and not an act of a public officer within the meaning of S.74. In my opinion this contention is correct and the memo cannot be considered to be a public document. There is no doubt that a Civil Surgeon, who happens to be the Superintendent of a District Jail, is a public officer, but I do not think that a memo written by him can be considered to be an act or a record of his act as a public officer. I think it merely embodies his opinion as an expert. Under S.74, Evidence Act (I of 1872), only such documents are considered to be public documents as form the act or record of the act of a public officer. Mr.Woodroffe and Ameer Ali, in their learned work on the Law of Evidence, define such acts as follows:
The acts of public functionaries, in the Executive, Legislative and Judicial Departments of Government including the transactions, which official persons are required to enter in books of registers in the course of their public duties and which occur within the circle of their own personal knowledge and observation: vide, Woodroffe and Ameer Ali's Law of Evidence (8th edn. p.542).
In Queen Empress v. Arumugam (16) the Full Bench of the Madras High Court held that reports made by a police officer, in compliance with the provisions of the Criminal Procedure Code, were not public documents within the meaning of S.74, Indian Evidence Act.
Shephard, J., remarked on p.197 that the word "acts" used at two places in the phrase "documents forming the acts or records of the acts" in S.74 is used in one and the same sense, and the act of which the record made is a public document, must be similar in kind to the act, which takes shape and form in a public document. In short, the kind of acts which S.74 has in view is indicated by S.78 of the same Act.
Benson, J., remarked on p.204 that it may well be doubted whether the word "acts" in S.74 is used in its ordinary and popular sense, and not rather in the restricted and technical sense in which it is used in S.78 of the Act.
It, therefore, appears to me that when a Civil Surgeon reports to a Magistrate he is merely giving his expert opinion and is not making a record of his "act" in official capacity for the use of the public. It is only his act of making a record in such a capacity that would be considered to be an "act" within the meaning of S.74. I am, therefore, of opinion that the memo referred to in this case cannot be held to be proved without any proof to that effect."
9. In that decision, an opinion given by the Civil Surgeon in his capacity as expert was classified as a private document, rejecting the plea that it was a public document. The learned Judge, drew inspiration from the remarks made by Shephard, J., and concluded that the phrase "documents forming the acts" and "records of the acts" would mean only the very same act of the pubic servant. Therefore, the learned Judge in that case arrived at a decision that an expert opinion given by a Civil Surgeon, without making a record of his act would fall beyond the category of a public document. What the learned Judge meant was that if at all the Civil Surgeon had made a record of his act of giving his expert opinion, that record would fall under the category of a public document.
10. With due respect, I differ from the observation made by the learned Judge in that case for the following reasons. The phrase "documents forming the acts" implies a different meaning from that of the phrase "records of the acts" found under section 74 of the Evidence Act. In my considered opinion, not only the records reflecting the acts of a public servant but also all the documents which form part of such acts would be classified as public documents. In the aforesaid decision, a narrow meaning has been assigned to the phrase "documents forming the acts" or "records of the acts" when actually those two phrases give different meanings.
11. There is no dispute to the fact that the Scientific Officer attached to the Forensic Sciences Department is a Public Officer. An opinion was sought for by the investigating officer in a criminal case. The Scientific Officer had expressed his opinion in discharge of his official function and the same was communicated to the investigating officer concerned. The opinion given by him cannot be separated from the official act he performed. Such a function of a Scientific Officer would definitely fall under the category of a public document.
12. The Full Bench of this court in NARASIMHA RAMA RAO v. VENKATARAMAYYA (AIR 1940 MADRAS 768) has held that a profit and loss statement and a statement showing the details of the net income filed by an assessee in support of his return of income furnished under section 22 of the Income Tax Act are public documents as defined under section 74 of the Indian Evidence Act, rejecting the plea that the documents submitted by the assessee would not fall under the category of public documents. It has been further held therein that the statement of net income filed by an assessee would fall under the definition "documents forming the acts" found under section 74 of the Indian Evidence Act.
13. The Kerala High Court in V.J.THOMAS v. STATE (AIR 1970 KERALA 273) addressed the question as to whether a charge sheet would fall under the category of documents forming the acts. The Kerala High Court has held that the charge sheet filed by the investigating officer is a public document as it is a document forming part of the official function of the investigation.
14. Even the statements recorded by the police officer under section 161 of the Code of Criminal Procedure are public documents inasmuch as they are forming part of the official act performed by the police officer, it has been ruled in RAM JETHMALANI v. DIRECTOR, CBI, SPE, CIA-I, NEW DELHI (1987 CRI. L.J. 570).
15. A Division Bench of this court, in SAKTHI DEVI v. COLLECTOR OF SALEM (1985-I MLJR 182), while holding that the caste certificate is a public document, has observed that what is paramount is to find whether in the course of discharge of public duties, the public authority concerned is enjoined to discharge the public duty, and if so, then the document which comes into existence consequent to such public duties issued with seal and authority of his office would be a public document.
16. Any document which is the outcome of the public duty discharged by the public authority could be classified as a public document, it has been ruled in the aforesaid ratio by this court.
17. The injury report prepared by a Medical Officer is a public document, it has been ruled by Orissa High Court in BALGOPAL PANDA AND OTHERS v. THE STATE (1990 CRI.L.J. 1848).
18. The Medico Legal Case report prepared by a Medical Officer, who is a public servant in discharge of his duties, is a public document, it has been held by the Delhi High Court in DALIP KUMAR ALIASPINKI v. STATE (1995 CRI. L.J. 1742).
19. In view of the above well settled position that a document which forms part of the official act of a public servant would consequently fall under the category of a public document, I find that the observations made by the Trial Court that Ex.B7 which is a certified copy of the opinion given by the Scientific Officer attached to Forensic Sciences Department, Government of Tamilnadu is a public document and that the burden of disproving such a document lies on the shoulders of the plaintiff are proper and correct. As there is no infirmity in the order passed by the Trial Court, the revision fails and it stands dismissed. There is no order as to costs. The connected Miscellaneous Petition also stands dismissed.
ssk.
To
1. The Additional District Munsif, Poonamallee.
2. The Record Keeper, V.R. Section, High Court, Chennai