Are RTI Documents Admissible in Evidence as ‘Public Documents’?

Saji Koduvath, Advocate, Kottayam.

Abstract

  1. RTI replies or information (other than certified copies) are not substantive evidence in law. Therefore, they are not admissible in evidence as public documents, or as secondary evidence.
  2. Where copy of a Public Document is issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence (to prove the contents of the public documents) under Sec. 77of the Evidence Act.
  3. Where the copy of a document, which is not a Public Document, is issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence, only with further evidence as to the non-production of the original (as required under Sec. 65, Evidence Act).
  4. Notwithstanding anything stated above, in a proper case, the court can invoke presumptions as regards official acts, under Sec. 114, Evd. Act (The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
    • Illustration (e) of Sec. 114, Evd. Act specifically states that ‘regularity’ can be presumed on Judicial and official acts. Presumptions may include genuineness or truth also.

Law on this Point

Evidence Act 

Section 65 of Evidence Act reads as under:

  • ““65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases –
  • (a) … (e) …
  • (f). when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence**;
  • (g) …
  • …. …
  • In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
    • **“to be given in evidence ” denotes – giving copy in evidence without reference to “original”.

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

  • (1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
  • (2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).

Note: Sec. 57 of the Registration Act reads as under:

  • “57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
  • (1)… (2) … (3) … (4) …
  • (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (Because, the words in Sec. 57 do not authorise to give (certified) copy in evidence without reference to “original”).

Therefore, it appears that any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy alone can be given – as secondary evidence.)

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence; but, they did not ponder on the point whether “a certified copy alone can be filed”.

  • Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206
  • Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
  • Om Parkash v. Ram Gopal, 2011-4 PLR 364;
  • Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
  • Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
  • Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
  • Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706,

Sec. 74. reads as under:

  • 74. ‘Public documents‘: The following documents are public documents :-
  • (1) documents forming the acts, or records of the acts
    • (i) of the sovereign authority,
    • (ii) of official bodies and tribunals, and
    • (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country;
  • (2) Public records kept in any State of private documents.

Read Blog: Secondary Evidence of Documents & Objections to Admissibility – How & When?

Section 77 of Evidence Act reads as under:

  • 77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

RTI – Act

  • Section 2 (j) of the Right to Information Act, 2005 defines “Right to Information” as under:
  • “(j). “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to –
  • (i) …. ……
  • (ii) taking notes, extracts, or certified copies of documents or records.

Import of “To be Given in Evidence” in Sec. 65(f)

Sec. 65 Evidence Act deals with “Cases in which secondary evidence relating to documents may be given”. Sec. 65 (f) lays down two conditions:

  1. When the original is a document of which a certified copy is permitted, by the Evidence Act, to be given in evidence.
  2. If certified copy is permitted, by any other law in force in India, to be given in evidence.

RTI-Certified-Copy, other than Public Document, Can be received in evidence only on showing reason for non production of Original

The RTI Act, though allows certified copy, it does not permit the same “to be given in evidence“. Therefore, the ‘certified copy’ obtained under the RTI Act can be received in evidence either (i) it is a public document (of which a certified copy is permitted by the Evidence Act) or (ii) it is permitted to be produced on showing reason for non production of original etc. (under Sec. 65 Evidence Act).

In Narayan Singh v. Kallaram, AIR 2015 MP 186, it was observed that RTI documents can be admitted as secondary evidence. The MP High Court held as under:

  • “Clause (f) of Section 65 of Evidence Act makes it crystal clear that a certified copy permitted under the Evidence Act or by any other law in force can be treated as secondary evidence. Right to Information Act, in my view, falls within the ambit of “by any other law in force in India”. The definition of “right to information” makes it clear that certified copies of documents are given to the citizens under their right to obtain information. In my view, the court below has rightly opined that the documents can be admitted as secondary evidence. I do not see any merit in the contention that the documents obtained under the Act of 2005 are either true copies or attested copies. The definition aforesaid shows that the same are certified copies.”

It appears that the High Court did not give effect to the words “permitted … to be given in evidence”.

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act lays down that ‘an entry in any public or other official book, register or record or an electronic record‘ will be a relevant fact.

Sec. 35 of the Evidence Act reads as under:

  • “35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
    • Note: Relevancy engrafted to Sec. 35 Evd. Act is “entry in” any public or official book, register etc.; it is not attached to the certificates or information given under the RTI Act.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases.  ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

  • “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

  • “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

Read Blog: Presumptions on Documents and Truth of its Contents

RTI Replies are not a Substantive Evidence

As shown above, relevancy attached to Sec. 35 Evidence Act is “entry in” any public or official book made by a public servant in the discharge of his official duty; it is not engrafted to the certificates or information given under the RTI Act.

The usual method to prove documents (both, existence and truth of contents) is giving oral evidence or furnishing affidavit. A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), especially in the light of ‘best evidence rule’, no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

Our Apex Court observed in State of Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280, as regards expert opinion that falls under Sec. 45 Evidence Act, as under as under:

  • “An expert is a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”

The information collected from the records of an office by an RTI Officer, or that furnished in RTI Reply, cannot be placed in a higher pedestal than the ‘opinion’ of an expert under Sec. 45 of the Evidence Act. In short, the RTI Reply, by itself, will not be a substantive evidence.

Note:

Following Decisions State the Views of our Courts

  • Kumarpal N. Shah v. Universal Mechanical Works, AIR 2019 Bom 290.
  • Under RTI, usually the applicant gets Photostat copies of the documents which are certified as true copies. They cannot be equated with certified copies mentioned in the Evidence Act. In other words, if the official under RTI certifies and supplies a private document, it still remains a private document. Thus, the RTI Act does not affect the nature of a document (Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112 referred to).
  • Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112.
  • The Xerox copy certified by the designated Public Information Officer under Right to Information Act of the private documents are not certified copies within the meaning of the provisions of Section 65 of the Evidence Act. They are merely true copies of the private documents available in the records of the particular Department. The production and marking of such copies is permissible only after laying a foundation for acceptance of secondary evidence under clauses (a) (b) or (c) of Section 65 of the Act. The condition prescribed under the above cases (a), (b) or (c) of Section 65 of the Act have to be fulfilled before marking the true copies obtained under the Right to Information Act. However, the true copies of public documents certified by the designated Information Officer can be taken as certified copies of the public documents.

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1 Comment

  1. Bobby John K A's avatar Bobby John K A says:
    July 5, 2023 at 2:30 am

    Excellent Article on admissibility of RTI documents

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