Author: Anubhav Bijalwan


INTRODUCTION

Section 61 of the Indian Evidence Act (hereinafter Act), enlists two means of proving contents of a document in a court of law, primary evidence and secondary evidence. There is no third method of proving the contents of a document[1]. Primary evidence is considered to be the best form of evidence as per the scheme of Act and has been defined in section 62.

 Section 62. Primary evidence.—Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1- Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2 – Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Section 62 makes it very clear that any number of copies of the original document would be considered to be the primary evidence for the other copies so produced, but not for the contents of the original document, thereby underling the importance attached to original document by the Act.

ELEMENTS OF PRIMARY EVIDENCE

The section is based upon the principle that the “best evidence in the possession of power of the party must be produced. What the best evidence is, it must depend upon circumstances of the case. Generally speaking, the original document is the best evidence”. This is the ordinary rule that the contents can only be proved by the writing itself.[2] Following could be said to be the elements of primary evidence.

  1. The original document itself produced for the inspection of the court.[3]
  2. Where a document is executed in several parts, each part is primary evidence of the document.
  3. Where a document is executed in counterparts, each part is primary evidence against the party signing it. For example, in the case of a cheque, the main cheque is signed by the drawer so that it is primary evidence against him and the counterfoil may be signed by the payee of the cheque so that it will be primary evidence against the payee.
  4. Where a number of documents are all made by one uniform process, as, for example, by printing, lithography or photography, each is the primary evidence of the contents of document.[4]

SECONDARY EVIDENCE: AN EXCEPTION TO PRIMARY EVIDENCE

As already discussed, the general rule is that most of the times, primary evidence is to be produced before the court, but the conditions may so require that the secondary evidence is to be taken into account for adjudication of the matter. Section 63 of the Act deals with secondary evidence and enlists what may be categorized as secondary evidence. According to section 63, secondary evidence means and includes:

(1) Certified copies of the original document.[5] For instance, duplicate or a provisional document issued by an authority would be a certified copy.

(2) Copies that are made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.[6]Xerox of an original document would, therefore, be considered as secondary evidence.

(3) Copies made from or compared with the original;[7]

(4) Counterparts of documents as against the parties who did not sign them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

Further, Section 64 of the Act lays down that the documents must be proved by primary evidence except in certain cases provided in Section 65. Section 64 and 65 of the Act provide for a comprehensive scheme, enunciating admissibility of secondary evidence. Section 65 lays down such cases in which secondary evidence relating to documents may be given.

Such exceptions under Section 65 can be broadly classified under five heads.

  1. Where any secondary evidence of the contents of the document is admissible – Procuring any form of secondary evidence would suffice in following cases. i) When original is in possession of the opposite party or could not be legally produced before the court. ii) Lost or destroyed without any neglect or default by the party. iii) When the nature of document is such that it cannot be moved or produced before the court conveniently.
  2. Only written admission is admissible – When the existence, condition or content of the original have been proved to be admitted in writing by the person against whom it is to be produced or his representatives.
  • Only certified copy of the document is admissible – Certified copy is admissible as secondary evidence of the documents where the original is a public document under Section 74 of the Act and when the original is public document of which a certified copy is permitted by the Act or any other statute, to be given in evidence.
  1. Result of the document examined by a skilled person – When the original consists of numerous accounts which cannot be effectively examined by the court and the fact to be proved is the general result of the collection.

JUDICIAL OVERVIEW

Judicial pronouncements over the years have cleared the air regarding importance of primary evidence and admissibility of secondary evidence in its absence.

  1. J. Yashoda v. Smt. K. Shobha Rani[8]

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to, be valid, the same party is not entitled to introduce secondary evidence of its contents.

  1. RakeshMohindra v. Anita Beri and others[9]

The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

  1. Chandra vs. M. Thangamuthu[10]

The secondary evidence must be authenticated by foundational evidence that the alleged copy is, in fact, a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.

CONCLUSION

Essentially, primary evidence is the best form of evidence admissible in the court and there are limited circumstances wherein other form of documentary evidence is allowed in form of secondary evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given.


[1]Dr. Avtar Singh, Principles of The Law of Evidence (Central Law Publications) 307

[2] Jervis C.J., in Macdonnel v. Evans, (1852) 21 L.J.C.P. 141

[3] C.P. Agarwal v. P.O., Labour Court, (1996) 11 SCC 97

[4]KamlaRajamanikham v SushilaTakur Das, A.I.R. 1983 All. 90.

[5]Kalyan Singh v. Chhoti, A.I.R. 1990 S.C. 396.

[6]BanarsiDass v. Maman Chand, A.I.R. 1992 P.&H. 145.

[7] Ram Pal Singh v. Syndicate Bank, A.I.R. 2000 P.&H. 296.

[8] AIR (2007) SC 1721.

[9]CIVIL APPEAL NO. 13361 OF 2015 (Arising out of SLP (C) No. 29621 of 2014.

[10](2010) 9 SCC 712.


About the Author: Anubhav is a 3rd  Year B.A.LLB (Hons) student at Dr. Ram ManoharLohiya National Law University, Lucknow.


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