Author: Mehrul Arora


INTRODUCTION

The contents of a document may have been admitted, not its truth. Truth of correctness is to be ascertained from the evidence. A party admitting a document has right to explain that though the document contains such a statement, it is not correct.[1]

Section 61 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘IEA,1872’), states that either primary or secondary evidence may be used to prove the contents of a document. And, Section 3 of the IEA, 1872 defines document as any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

SECONDARY EVIDENCE

Section 63 of the IEA, 1872 states that –

Secondary evidence means and includes—

  • Certified copies given under the provisions hereinafter contained;
  • Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
  • Copies made from or compared with the original;
  • Counterparts of documents as against the parties who did not execute them;
  • Oral accounts of the contents of a document given by some person who has himself seen it. 
  1. Certified copies given under the provisions hereinafter contained –

As per Section 76, every public officer having the custody of a public document as defined in Section 74,  which any person has a right to inspect, shall on demand of and on the payment of the legal fees, give that person a copy and shall also affix a certificate at the foot of such copy that it is a true copy of such document and will give the date of the copy, the name and official title of the officer who has subscribed such copy and the seal of the office will be affixed to the copy.

In the case of Kalyan Singh v. Smt. Chhoti and others[2] it was held by the Hon’ble Apex Court that correctness of certified copies referred to in clause (1) is presumed under Section 79 of the Indian Evidence Act, 1872, but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case the copy presented by the party is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of  the original sale deed. The copy presented by the party cannot, therefore, be considered as secondary evidence. The appellate court has a right and duty to exclude such evidence.

In the case of K. Shivalingaiah v. B.V. Chandrashekara Gowda[3], it was held that certified copies of money lender’s licences are admissible as evidence.

  1. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies –

In the case of Surinder Kaur v. Mehal Singh[4], it was held that –

  • Photostat copy of a document can be allowed to be produced only in absence of original document.
  • When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts.
  • The objections as to non-existence of such circumstances or non-existence of foundational facts must be taken at the earliest by the opposite party after the photostat copy is tendered in evidence.
  • When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
  • Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
  • In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
  • The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.

In the case of State of Gujarat v. Bharat[5], it was held that a photograph can be proved by examining the photographer and by proving the negative.

  1. Copies made from or compared with the original –

As stated by the Illustration of the present Section, that is, Section 63, ‘a copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.’

  1. Counterparts of documents as against the parties who did not execute them –

The counterparts of document are secondary evidence against the person who did not execute it.

  1. Oral accounts of the contents of a document given by some person who has himself seen it –

Where any report is based on information given by another person, non – examining the informant or non – production of report is fatal, and no reliance can be placed on version of person and report.[6]

Section 65 of the IEA, 1872, provides for the seven 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:—

  • When the original is shown or appears to be in the possession or power— 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, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
  • when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
  • when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • when the original is of such a nature as not to be easily movable;
  • when the original is a public document within the meaning of section 74;
  • 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; [India] to be given in evidence;
  • when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

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 document 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.[7]

a) When the original is shown or appears to be in the possession or power –

When the original document is in possession of –

  • The person against whom the document is sought to be proved.
  • Any person who is out of reach of, or subject to, the process of the court.
  • Any person legally bound to produce it.
  • Any person who does not produce it even after due notice has been served to him as per Section 66 of the IEA, 1872.

In the case of J. Yashoda v. K. Shobha Rani[8], it was held that where there was no possibility of documents being compared with originals as the originals were with another person, the documents could not be accepted as secondary evidence.

b) When the existence, condition or contents of the original have been proved to be admitted in writing –

In the case of Sharda Talkies (Firm) And Anr. vs Smt. Madhulata Vyas And Ors[9], it was held that where the defendant himself admitted the payment under the cheque, absence of cheque as primary evidence would not vitiate the suit.

c) When the original has been destroyed or lost –

The Halsbury Law deals with this provision in the following manner –

“Where a document has been lost or destroyed, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that reasonable explanation of this has been given. Thus, a bona fide and diligent search must have been made in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for the purpose of the cause.”

The same has also been observed in the case of Narsingh v. Shripat Singh[10].

d) when the original is of such a nature as not to be easily movable –

In cases where the nature of an original is as such that it is not easily movable, for example, in the case of a pucca well found on a land, then the secondary evidence of the contents of the document may be allowed.

e) When the original is a public document –

When the original is a public document under Section 74 of the IEA, 1872, which is as follows–

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; [of any part of India or of the Commonwealth], or of a foreign country;

(2) Public records kept [in any State] of private documents,

a secondary evidence of its contents is admissible under this clause.

f) When the original is a document of which a certified copy is permitted by this Act –

Secondary evidence is admissible when the certified copy of a document is permitted by the provisions of this Act or any other law which is in force in India.

g) When the original consists of numerous accounts or huge document –

Although a witness cannot be examined as to the contents of a written document not produced, yet he may, in some instances, be examined as to the general result from a great number of documents too voluminous to be read in court.[11]

In the case of Roberts v. Doxon[12], which involved the law of bankruptcy, it was held by Lord Kenyon that the witness, “could not state the particulars of the book without producing them, yet he might speak to the general amount, not by saying that one page was so much and another so much, but what from his general observation he perceived to be the general state of their accounts.”

DIFFERENCE BETWEEN PRIMARY EVIDENCE AND SECONDARY EVIDENCE

While the Black’s Law Dictionary defines the primary evidence as ‘the term that is applied to the best evidence that is available’, it defines secondary evidence as, ‘the evidence that is not the best evidence there is but it will be admitted to court if there is no primary evidence.’

S.NO. PRIMARY EVIDENCE SECONDARY EVIDENCE
1. Primary evidence has been defined in Section 62 of the IEA, 1872. Secondary evidence has been defined in Section63 of the IEA, 1872.
2. Primary evidence is the document itself, that is, the original document, which is produced for the inspection of the Court. Secondary evidence is not the original document, but a copy of or has been reproduced from, the original document that is presented in the court.
3. Primary evidence is the best evidence and it is a general rule to give this evidence. Secondary evidence is only admissible in the court when the provisions of Section 65 is applicable to the case.
4. Before presenting a primary evidence, no notice is required. A notice is required to be given before the secondary evidence is presented.

CONCLUSION

Even though primary evidence is considered to be the superior or the best evidence, yet, secondary evidence plays a very important role in the Court of law as there are various situations and circumstances occur in which primary evidence cannot be produced before the court and therefore, in those times, secondary evidence assists the court in securing justice.


[1] Life Insurance Corporation of India v. Narmada Agarwalla, AIR 1993 Ori 103.

[2] AIR 1990 SC 369.

[3] 1992 (2) KarLJ 536.

[4] CR No. 4646 of 2013 (Punjab & Haryana High Court at Chandigarh, 04/12/2013).

[5] 1991 CrLJ 978.

[6] Asa Ram v. M.C.D., AIR 1995 Del. 105.

[7] Pravin v. Ghanshyam, M.P.No.1144/2017 (Madhya Pradesh High Court, 23/03/2018).

[8] AIR 2007 SC 1721.

[9] AIR 1996 MP 68.

[10] W.P.4635/2011 (Madhya Pradesh High Court, 26/09/2014).

[11] Starkie, 175.

[12] Thomas Peake , Esq., cases determined at NISI PRIUS 116 (3rd ed., 1820).


About the Author: Mehrul is a fourth-year student at Law College Dehradun, Uttranchal University.


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