Report No. 185

Section 65(a)

One of the important aspects concerning section 65(a) which requires a close examination is the third clause therein which refers to non-production of a document by "any person legally bound to produce it". In such a case, the section permits secondary evidence of its contents.

The clause is applicable obviously to 'any person' which may mean 'the opposite party' or even a 'third person non-party' who is a witness or who may, by compulsion of the Court's orders, be called upon to "produce the document in court."

The controversy concerning section 65 (a) is whether indeed it was intended to cover a situation where the original document is in the possession of a person 'not bound to produce it', in which event, the party relying on it may be entitled to produce secondary evidence. It has been pointed out that under English Law, the provision is referable to a person 'not compellable by law to produce', on the ground of some privilege, e.g., as it goes against him, or he has a lien on the title deed or the document may incriminate him. (Mills v. Oddy, (1834) 6 C&P 728), Hibberd v. Knight (1848) 2 Exch 11: Newton v. Chaplin: (1850) 10 C.B. 356.

He has to be compelled by subpoena duces tecum and must expressly claim privilege (Lloyd v. Mostyn) (1842) 10 M&W 476. See also Halsburry's 3rd Edn., Vol. 15, para 647; Wigmore (para 1212) says 'if after service of subpoena, the possessor is recalcitrant and refuses to obey, the proponent should be excused'. Under English Law in the case of a person 'bound to produce', but if he does not, he can be sued for damages. But, this according to Indian law was not just. The proponent must, in such a case, be entitled to produce secondary evidence under section 65 (a) (see Sarkar, 15th Edn., 1999, p.1089).

The question was debated whether section 65 (a) meant or should have also provided for permitting secondary evidence if the person in possession thereof is not bound to produce it but refuses court orders to produce it. These views are recorded in Sarkar's commentary as also in the 69th Report. Several jurists like Markbhy, Cunningham, Field, Norton and Sarkar have all stated that the section must also permit secondary evidence in a case where the refusal is by a person not bound to produce it. Otherwise, grave injustice would be caused to the proponent if he is not permitted to bring in secondary evidence.

The 69th Report after referring to this aspect (see para 30.10 to 30.13) accepted that section 65 (a) should have provided for the above situation. It said:

"It must be noted that the remedy which the English law allows in such a case (case of a person bound to produce.- action for damage.- is not speedy, and may even not be adequate, because the person concerned, having custody of the document, may be a man of straw. We are of the opinion that the latter is the correct view. We do not, therefore, suggest any amendment of clause (a) on this point. As to persons not legally bound, we are adding them separately."

[and] in para 30.17 to 30.20, they recommended that provision should be made in section 65 (c) by an amendment adding necessary words after 'for any reason not arising from his default or neglect.' The actual string of words to be added in section 65(c) was not spelled out.

We would, however, think that the addition must be in section 65 (a) itself and not section 65 (c). We would think that in section 65 (a) at the end, after the words "such person does not produce it", another clause is added, or, "of any person not legally bound to produce it, where after notice by court at the instance of any party, to produce it, such person does not produce it". (This is proposed under clause (aa)).

In this context, Order X Rule 16 of the CPC may not be helpful because it contemplates notice to a 'party' and not notice to a witness, other than a party, who, not being bound to produce, does not produce the document.

To avoid confusion, we propose, clause (a) to be sub-divided as follows:

"(a) when the original is shown or appears to be in the possession or powe.-

(i) of the person against whom the document is sought to be proved; or of any person out of reach of, or not subject to, 361 the process of the Court and such person does not produce the original; or

(ii) of any person legally bound to produce it, and such person, after receiving the notice mentioned in section 66, does not produce it; or

(aa) when the original is shown or appears to be in the possession or power of any person not legally bound to produce it, and such person, after receiving notice from the Court at the instance of any party to produce the original, does not produce it."

In para 30.11, the 69th Report suggested that the words "and when, after notice mentioned in Section 66, such person does not produce it", do not apply to "any person out of reach of, or not subject to, the process of the Court". We agree and have incorporated a change in Section 65(a) accordingly.

In the 69th Report, it was also suggested (see para 30.12) that the word 'after the notice mentioned in section 66' may be replaced by the words 'when any person in whose possession or power the original may be, does not, after receiving the notice (if any) required by section 66, produce such originals" and that after the figure "66", the words "when such notice is necessary" are added.

We do not think that this is necessary.

The above format has to be further changed, in as much as we have agreed for the proposal in para 30.11 as follows:

We finally recommend that Clause (a) of section 65, with all these above amendments should read as follows:

"(a) when the original is shown or appears to be in the possession or powe.-

(i) of the person against whom the document is sought to be proved; or of any person out of reach of, or not subject to, the process of the Court and such person does not produce the original; or

(ii) of any person legally bound to produce it, and such person, after receiving the notice in section 66, does not produce it; or

(aa) when the original is shown or appears to be in the possession of any person not legally bound to produce it, and such person, after receiving notice from the Court at the instance of any party to produce the original, does not produce it."

Section 65(b):

In the 69th Report, it was stated (see para 30.15) that no changes are required in Section 65(b). (see also below Section 65(d) to (g)). We agree.

Section 65(c):

This clause need not be amended. In fact, in the 69th Report, no amendment was suggested in the context of clause (c) of Section 65. However, the situation arising under Section 65(a), if a person not obliged to produce a document was sought to be brought into clause (c) by addition of words. We have already stated while dealing with Section 65(a) that it will be appropriate to bring this aspect in Section 65(a) itself. We have, in fact, formulated the subclauses (i) and (ii) also while dealing with Section 65(a).

Therefore, no words need be added in Section 65(c).

Sections 65(d) to (g):

No changes are needed. While dealing with Section 63, we referred to a controversy as to whether Section 65(b) and (g) should be brought into Section 63. We have said it is not necessary. Hence, Section 65(d) to (g) require no change.

As already stated, we agree with the suggestion in the 69th Report that the words "unless some other clause of this section applies" be added in the penultimate para after the words "is admissible".

Sections 65A & B:

These sections have been added to cover electronic record, by Act 21/2000.

Section 65A says special provisions are made for proof of electronic record. Section 65B deals with that procedure. Sub-section (1) of Section 65B says that notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a 'document', if the conditions mentioned in the section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings without proof of original or of any fact stated therein of which direct evidence would be admissible.

Sub-section (2) of Section 65B refers to the conditions in respect of the computer output. Subsection (3) of Section 65B refers to combination of computers. Subsection (4) requires a certificate to be given by the person occupying a responsible official position in relation to the computer operation or management, shall be evidence of any matter stated on the certificate. Subsection (5) clarified certain aspect and there is also a further Explanation below the section.

We do not think that any amendment is necessary in these sections.

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