“Foundation First”: Bombay High Court Mandates Specific Pleadings and Affidavit for Secondary Evidence under the Bharatiya Sakshya Adhiniyam, 2023

1. Introduction

In Hindustan Petroleum Corporation Ltd., Mumbai & Anr. v. Vinod s/o Anandrao Parate, W.P. No. 2546 of 2025, the Nagpur Bench of the Bombay High Court confronted a recurring but under-analysed procedural problem: when and how may a litigant rely on photocopies or other “secondary” documents where the originals are allegedly missing? The petition arose from an industrial dispute after HPCL dismissed its employee, Mr. Vinod Parate, for misconduct. During re-trial of misconduct before the Central Government Industrial Tribunal (CGIT), HPCL sought to rely on four photocopied documents. The CGIT refused leave to adduce secondary evidence. HPCL invoked Article 227 jurisdiction to challenge that refusal. Justice Prafulla S. Khubalkar dismissed the writ, crystallising a new procedural rule that—under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)—secondary evidence is impermissible unless:

(a) A clear factual foundation for non-production of the original is pleaded or deposed, and
(b) The plea is verified by affidavit or primary testimony.

The ruling therefore emphasises “foundation first”, signalling stricter documentary discipline for litigants across fora.

2. Summary of the Judgment

The Tribunal’s refusal to permit secondary evidence was upheld.
The Court held that merely averring “documents are not traceable” in an unsigned application—without affidavit, witness statement, or chain-of-custody explanation—fails to satisfy Sections 58 and 60(c) BSA 2023.
No exceptional circumstance existed: the documents originated in HPCL’s custody; hence a heightened duty lay on the employer to produce originals.
Consequently, the writ petition was dismissed; Rule discharged; no costs.

3. Analysis

3.1 Precedents Cited and Their Influence

Bipin Shantilal Panchal v. State Of Gujarat (2001) 3 SCC 1
– Established that objections to document admissibility may be deferred to final arguments. HPCL invoked this to argue that permission for secondary evidence should be liberal. The Court distinguished it: Bipin deals with timing of objections, not the substantive pre-conditions for secondary evidence.
Dhanpat v. Sheo Ram (2020) 16 SCC 209
– Clarified that absence of an application is not fatal where foundation exists in pleading/evidence. Justice Khubalkar observed that here both application and foundational facts were missing—hence Dhanpat unusable.
VIJAY v. UNION OF INDIA (2023) 17 SCC 455
– A recent exposition on Sections 63–65 Evidence Act (pari materia with Sections 58–60 BSA 2023). The Court extracted Paragraph 34’s nine guiding principles on secondary evidence, treating them as binding and applying them verbatim.
Bombay HC, W.P. No. 8442/2019 (22 Sep 2021)
– Permitted secondary evidence where the foundation existed. The present judgment mirrors its ratio but notes the converse factual scenario: lack of foundation.

3.2 Legal Reasoning

Justice Khubalkar’s reasoning progressed through four logical steps:

Identify the Statutory Gateway: Sections 58 (definition) and 60(c) (conditions) of the Bharatiya Sakshya Adhiniyam govern admissibility.
Locate the Burden: Because the documents emanated from HPCL’s own custody (leave applications, employee statements, JDE screenshots), HPCL bore a stricter onus to explain the loss.
Test for “Exceptional Circumstances”: The only plea—“not immediately available/traceable”—was unsupported by affidavit or evidence. The Court equated this to no explanation.
Apply Supreme Court Guidelines: Invoking Vijay, the Judge held that unless non-production is “properly explained” and a “true copy” foundation laid, secondary evidence is inadmissible.

3.3 Likely Impact of the Decision

Tribunals & Labour Courts: Parties often rely on photocopies due to informal HR record-keeping. After this ruling, employers must file affidavits detailing search efforts and attach inventory logs or risk exclusion.
Applicability to all fora: Though rendered in industrial jurisprudence, the judgment’s ratio is procedural and will influence civil, commercial, and criminal courts interpreting the new BSA.
Corporate Governance: Heightens emphasis on document preservation systems (DMS, audit trails) given that “custodian-generated” papers face stricter scrutiny.
Litigation Strategy: Encourages early-stage due diligence; litigants may prefer producing originals or certified copies rather than risk mid-trial rejection.
Evolution of BSA 2023 Jurisprudence: As one of the first High Court pronouncements under the new Act, it lays foundational precedent for future construction of Sections 58–60.

4. Complex Concepts Simplified

Primary vs. Secondary Evidence: Primary evidence is the original document; secondary evidence is a copy or oral account of its contents. Secondary evidence is admissible only where statute so allows.
Bharatiya Sakshya Adhiniyam, 2023: The successor to the Indian Evidence Act, 1872. Sections 58–60 mirror Sections 63–65 of the old Act but employ clearer language.
Section 60(c) BSA 2023: Permits secondary evidence where the original “has been destroyed or lost, or cannot be produced for a reason not arising from the party’s default or neglect.” Mere inconvenience is insufficient.
Article 227, Constitution of India: Gives High Courts power of superintendence over lower courts/tribunals, but intervention is discretionary and confined to jurisdictional or procedural errors.
Industrial Dispute Reference: Under Section 2-A Industrial Disputes Act, a terminated workman may directly refer the dispute of dismissal to the CGIT.
“Foundation” for Secondary Evidence: The factual basis—pleaded and proved—explaining why the original cannot be produced and why the copy is reliable.

5. Conclusion

Hindustan Petroleum Corp. Ltd. v. Vinod Parate serves as an early, authoritative compass on secondary evidence under the Bharatiya Sakshya Adhiniyam, 2023. By insisting on a sworn factual foundation and rejecting casual assertions of “non-traceability”, the Bombay High Court has:

Reaffirmed the “best evidence rule” in a digital-photocopy era;
Placed a heightened onus on custodians of original documents—especially employers and corporations;
Provided a clear procedural roadmap for tribunals evaluating secondary evidence applications.

The decision thus not only resolves the immediate industrial dispute but also charts a course for documentary integrity in Indian litigation after the arrival of the BSA 2023.