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Parties Have Option To Submit Documents Or Not: A Study Under Indian Evidence Act 1872

The term "document" is defined in the Indian Evidence Act's interpretation clause. A "document" is defined in Section 3 of the Indian Evidence Act as "any matter expressed or described upon any substance," and it can be in any combination of letters, figures, or marks intended to be used or which may be used to record specific information.[1]

The production of documents for use as evidence is a requirement of both the civil procedure code and the criminal procedure code, which are procedural laws. The act provides numerous examples of documents, including letters, a map, a plan, and a caricature. According to the Indian Evidence Act, any words that are printed and lithographed are considered documents. Before proceeding, it is necessary to comprehend that there are two categories of facts:
  • Facto probanda, or the facts that make up a party's case.
  • Facto probantia' means the facts that, if proven, will be used as evidence.
The term "public document" is defined in Section 74 of the Indian Evidence Act. [2]

The following documents are considered public documents in this section:
  • The records or documents that form the acts of sovereign authority;
  • The records or documents forming the acts of official bodies and tribunals;
The records of various officers' actions, such as public officials, legislative and judicial officials, and executive officers, working anywhere in India;

This category also encompasses private documents containing public records.

According to Section 75 of the Indian Evidence Act, any other document that does not fall into the above category is considered private [3]. According to Section 76 of the Indian Evidence Act, public officers have the authority to provide certified copies of public documents when required and when a person has the right to request copies.[4]

Is there a choice for the party or not?
Let us examine the Indian Evidence Act's provisions regarding the judge's authority for this purpose.

Section 165 has given judges a lot of authority over the administration of justice. It says that the judge can ask a witness or a party a question at any time if he thinks it's necessary to find out the truth about the case or make it clearer.[5]

The following powers are granted to the judge by this section:
  1. To ask any witness or party to the case any question, in any form, about any fact, whether or not it is relevant.
  2. To be able to request the production of a case-related document or object.
The Judge can ask questions and request documents under Section 165's broad authority, but he or she cannot force the witness to answer or produce.

The court can only ask the questions, but it cannot ask the witness to answer them if they are uncomfortable doing so.

A person cannot be compelled to produce any electronic record in the Judge's possession unless they agree to do so, and the Judge has the right to refuse the production of any electronic document. The Judge has limited authority to compel a person to produce documents or electronic records.

According to Section 130, no witness who is not a party to the suit shall be required to produce either: [6]
  1. his title deeds to any property or
  2. any document under which he holds any property as a pledge or mortgagee.
In the case of Dolagovinda Pradhan v. Bhartruhari Mahatab, it is observed (obiter) that, subject to the court's lawful objections, it would be permissible for the court to require the party to the suit to produce such documents about any matter in question in the suit. The High Court used the opposite analogy to support the negative claim in Section 130 of the Evidence Act, which states that no witness who is not a party to a suit should be required to produce his title deeds to any property.

Although the High Court merely referred to the "lawful" authority of the court to require a party to produce the document, the proposition that the court has the "power" to order production is clear because the proposition was placed in opposition to the direction in the Evidence Act, Section 130.[7]

The Evidence Act's Section 163 reads as follows:
"As evidence of the document requested and produced on notice, giving: If a party calls for a document that he has given notice to the other party to produce, and the document is produced and inspected by the party calling for its production, he is obligated to give it as evidence if the party producing it requires it.

It was noted in Government of Bengal v. Santiram Mondal[8] that Section 163 of the Evidence Act also applies to criminal proceedings as it was observed about a document used under Sec.163, as follows:

"The additional contention is that they cannot be used or put in without proof if they are to be admitted. However, the section itself states that the party asking for it is obligated to provide it as evidence if required to do so. This indicates that it enters the particular proceeding as a record and can be examined to determine what it includes or excludes.[9]

Provision Under Cpc
Order 21 Rule 21 says that the court's order is final and binding, and parties who don't follow it will have to pay the penalty. As a result, we can comprehend the legislature's intention to make such a provision as follows[10]:
  • To compel the parties to reveal all relevant documents and information under oath.
  • To prevent the parties from introducing new documents that they already own or control during the trial.
A party can compel other parties to produce documents about any question related to the suit without filing an affidavit to apply to the court, as stated in Rule 12 of the code. However, unless they reveal some connection to a contentious issue, such documents are not required to be admissible in court.

To facilitate cross-examination or to enable the plaintiff to comprehend the genuineness of the documents relied upon by the defendants for proving his case, no defendant can be compelled to produce any documents or provide an inspection of them. Additionally, there are certain objections against which no party may request the Discovery of Documents, such as:
  1. disclosing the evidence of another party;
  2. the legal professional privilege doctrine;
  3. detrimental to the public interest
Simply put, it is possible to explain that a document may be inadmissible as evidence even though it may contain information that directly or indirectly enables the party seeking discovery to either advance his case or damage the case of his adversary, or may result in a trial of inquiry with either of these outcomes.

O. 11 R. 14: Document production: Any party to a lawsuit may be required to produce, under oath, any documents in the Court's possession or control about the subject of the lawsuit if the Court deems it appropriate at any time during the case and the Court may deal with these documents fairly when they are presented.[11]

Referring to Or.11 Rule 14, SC saw in Basanagouda v. SB Amarkhed, as under:
The Court, therefore, is empowered and shall be lawful to Order the production, by any party to the suit, of such documents in his possession or power relating to any matter in question in the suit provided the Court shall think right that the production of the documents is necessary to decide the matter in question," reads the court's ruling.[12]

Provisions Under Crpc
A compulsion to produce the items is required by the court. It adheres to the natural justice principle that every accused person should have an equal opportunity to be heard and defended. In sections 91 to 105 of the CrPC, 1973, the law governing procedures to compel the production of documents or things is outlined. When the court determines or believes that the production of such a thing is required, it may issue a summons to produce it.

According to Chapter VI of the Criminal Procedure Code, which deals with summonses, the appearance of the accused is the fundamental requirement for the progress of the criminal trial. The summons, which can be issued to make a document or thing appear, is the simplest and mildest form of the process.

The summons must be personally delivered to someone by the court's police officer or any other public servant and is issued in duplicate under the seal of the court. When a search appearance of a person or object is required, the summons includes the clear and specific title of the suit, the location, and the date and time. The summons includes a brief description of the alleged offenses.

The procedure of comparing the production of documents or something is necessary for investigation and prosecution. The reason for this is that the trial may be postponed until the document or other item that needs to be presented to the court is presented.

A written order from an officer may be issued to a person in whose position the document writing lies and require him to be present with the document or produced it in any way whenever a requirement is thereby the court or any officer in charge of the police station to produce any document or thing that is necessary for the investigation, trial, or other proceedings of the quote.

The offense and the subject matter need to be near one another. In the case of Lloyds Bank, there were accusations of forging checks to get money. As a result, the accused deposited the money that was obtained into the bank, and a warrant was issued for the illegal seizure of bank funds. The money belonged to the bank, and only the accused had a legally enforceable claim against the bank that could not be presented in court.[13]

In its 37th report, the Indian Law Commission recommended that the Bankers Book Evidence Act of 1891's provisions not be overridden by sections requiring the production of things or documents. According to two sections of this Act, the officer of the bank cannot be summoned to produce the bank's books or accounts unless ordered by the court in any legal proceeding to which the bank is not a party.[14]

Additionally, the section denies the court the authority to direct the banker to pay the money. In the case of Jagdish Prasad Sharma in 1988, a banker was found to have stolen rupees a million, which led to the filing of a case against him under Section 406 of the Indian penal code. As a result, the suspect was taken into custody, and his passbook was seized. On the request of the proprietor, the magistrate issued an order directing the accused to convert the cash in his account into a draft and present it to the court; It was determined that this order was out of the jurisdiction.[15]

The search warrant is another important tool in the Criminal Procedure Code for obtaining things or documents. The court will only issue this warrant if it has good reason to believe that the person to whom it is being issued will not or may not produce a specific document or object. These warrants specify a specific location or section to be searched.

It is permissible and possible to grant permission to issue a warrant before an investigation. The court is required to record the reasons for issuing such orders, and search powers to issue warrants cannot be granted. Additionally, the search warrant cannot be exercised mechanically.

Without proper written representation and production of authorization from the director of enforcement, search warrants cannot be issued for economic offenses like the Foreign Exchange Regulation Act (FERA). Otherwise, it will be deemed illegal.

By Section 97 of the Criminal Procedure Code, the court has the authority to direct the search of locations where forged documents and stolen property are present and to demonstrate that process. If any individuals are discovered to be improperly seizing documents, the court may call upon them.[16]

The police officer also has the authority to seize property. The property must be on a list, be suspected of being stolen, or be suspected of certain crimes. The relevant magistrate must be informed of this seizure.

Mere Non-Production Of Documents Would Not Result In Adverse Inference
In the case of Mahendra L. Jain v. Indore Development Authority, the Supreme Court ruled that the mere non-production of documents would not lead to adverse inference. In the absence of any pleadings, the same was irrelevant if a document was requested. It is not necessary to draw an adverse inference solely because it would be legal.[17]

The Industrial Tribunal ordered the employer to produce the attendance register in Manager, R.B.I., Bangalore v. S. Mani. The reason for this was that the attendance registers were too old to be made. The Tribunal arrived at a negative conclusion. There was no evidence presented by the respondents. The Supreme Court reversed the verdict.[18]

In Union of India v. Ibrahim Uddin, it is held as follows:
16. In light of the foregoing, the law on the matter can be summarized as follows: the court must decide whether any withheld document or evidence has any relevance at all or omission of its production would directly establish the other side's case, taking into account the parties' pleadings. The fact that the party making a factual assertion bears the burden of proof cannot be overlooked by the court.

The court must consider whether the opposing side can ask questions or request inspection and production of the documents, among other things. as stipulated by Order XI CPC. The other party's conduct and diligence are also of the utmost importance. Any negative inference or presumption based on the absence of evidence is always optional and should be taken into account in light of the case's context.

On some reasonable grounds, the non-production of such documents may be justified by the existence of additional circumstances. On the off chance that one party has requested that the court direct the opposite side to create the archive and the opposite side neglected to agree with the court's structure, the court might be legitimate in drawing the unfavorable derivation. [19]

It can be concluded that parties cannot be compelled to submit documents by the Indian Evidence Act. The power to do so is given to the judge by section 165 of the Act, but it is discretionary and not mandatory.

In a similar vein, the Civil Procedure Code contains numerous cases, the majority of which address Order 11 Rule 14's discussion of the court's authority to request document production.

Additionally, in the Criminal procedure code, a summon to produce and a search warrant is the two methods used to compel the production of documents and other items. A search warrant cannot be issued based on mere suspicion. The court must exercise caution when issuing the search warrant for the production of items. In other words, the court must take such action with due care.

Therefore, parties cannot withhold the documents required to meet the ends of natural justice when there is a mandate under a statute. *

  1. Indian Evidence Act, 1872, No. 01, � 3.
  2. Indian Evidence Act, 1872, No. 01, � 74.
  3. Indian Evidence Act, 1872, No. 01, � 75.
  4. Indian Evidence Act, 1872, No. 01, � 76.
  5. Indian Evidence Act, 1872, No. 01, � 165.
  6. Indian Evidence Act, 1872, No. 01, � 130.
  7. MANU/OR/0230/1991.
  8. MANU/WB/0043/1930.
  9. Ibid.
  10. Code of Civil Procedure, 1908, No. 05, Order 21 Rule 21.
  11. Code of Civil Procedure, 1908, No. 05, Order 11 Rule 14.
  12. MANU/SC/0495/1992.
  13. 1930 Cal 22-121 I C 625=56 Cal 868.
  14. 37th Law Commission Report, 1967 on Crpc 1889.
  15. MANU/RH/0783/1999.
  16. Code of Criminal Procedure, 1974, No. 02, � 97.
  17. MANU/SC/0993/2004.
  18. MANU/SC/0204/2005.
  19. MANU/SC/0561/2012.
Written By:
  1. Divyansh Bhatnagar, students at Damodaram Sanjivayya National Law University, Visakhapatnam and
  2. Pragati Pragi, students at Damodaram Sanjivayya National Law University, Visakhapatnam

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