Admissibility of Secondary Evidence in Indian Law

The Admissibility of Secondary Evidence in Indian Law: Conditions and Judicial Scrutiny

Introduction

The law of evidence is fundamentally concerned with the proof of facts before a court of law. A cornerstone of this domain is the principle that the best evidence available must be produced. In the context of documentary evidence, this translates to a general insistence on primary evidence, i.e., the original document itself. However, the Indian Evidence Act, 1872 (hereinafter "the Act"), cognisant of practical exigencies where primary evidence may be unavailable, provides for the admissibility of secondary evidence under specific, circumscribed conditions. This article undertakes a comprehensive analysis of the provisions governing the circumstances under which secondary evidence is permissible in India, drawing upon statutory law and judicial pronouncements to elucidate the principles and prerequisites for its admission.

The Statutory Framework: Sections 63 and 65 of the Indian Evidence Act, 1872

The Indian Evidence Act, 1872, meticulously lays down the rules concerning the proof of contents of documents. Section 61 of the Act stipulates that the contents of documents may be proved either by primary or by secondary evidence. Section 62 defines primary evidence as the document itself produced for the inspection of the Court. The general rule, enshrined in Section 64, mandates that documents must be proved by primary evidence except in the cases thereafter mentioned.

Section 63 of the Act defines what constitutes secondary evidence. It states: "Secondary evidence means and includes—

  • (1) Certified copies given under the provisions hereinafter contained;
  • (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
  • (3) Copies made from or compared with the original;
  • (4) Counterparts of documents as against the parties who did not execute them;
  • (5) Oral accounts of the contents of a document given by some person who has himself seen it."[13, 15]

The pivotal provision detailing the exceptions to the primary evidence rule is Section 65 of the Act. It enumerates the specific circumstances under which secondary evidence relating to documents may be given. These are:[9, 15]

  • (a) 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;
  • (b) 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;
  • (c) 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;
  • (d) When the original is of such a nature as not to be easily movable;
  • (e) When the original is a public document within the meaning of Section 74;
  • (f) 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;
  • (g) When the originals consist 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.

Section 65 further clarifies the type of secondary evidence admissible in each scenario: "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."[9, 10]

Foundational Requirements for Admitting Secondary Evidence

The mere invocation of Section 65 is insufficient; a party seeking to adduce secondary evidence must first lay a proper foundation by satisfying the conditions prescribed therein. The Supreme Court in J. Yashoda v. K. Shobha Rani emphasized that only when the conditions prescribed in Section 65 are satisfied can documents be admitted as secondary evidence.[2] Similarly, in Rakesh Mohindra v. Anita Beri And Others, it was held that "The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying 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."[6]

Proof of Existence and Execution of Original

As a general principle, before secondary evidence of a document can be admitted, the existence and execution of the original document must be established. The Bombay High Court in Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh And Another, reiterated that one of the foundational facts to be fulfilled is that "the original document is in existence and has been executed by its executants".[11] The Gujarat High Court in State Of Gujarat v. Visheshbhai Kali Chhaganbhai Gangavane noted that allowing secondary evidence under Section 65 enables proof of contents, but "before the contents are allowed to be proved the execution of the document has got to be established according to law".[21]

Laying Foundation for Non-Production (Especially under Section 65(c))

When relying on Section 65(c) (original lost, destroyed, or unprocurable), the party must demonstrate that the non-production is not due to their own default or neglect. In Raj Kumari v. Lal Chand, the Punjab & Haryana High Court observed that secondary evidence is permissible when the original document has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time.[7] The court further clarified that a party is not required to prove the loss in absolute terms.[7] However, sincere efforts to locate the document must be demonstrated, as highlighted in Mahindeer Kaur & Ors. Petitioners v. State (Nct Delhi) & Anr. S, where vague averments about loss were deemed insufficient.[22]

Crucially, if a document is destroyed by the person in whom it created an enforceable legal right or obligation, secondary evidence is not normally allowed. The Punjab & Haryana High Court in Mukesh Kumar Alias Motta v. State Of Haryana, citing Chaudhuri Janardan Parida and others v. Prandhan Das, stated, "if the plaintiff who sues upon that document has made alternations, interpolations in it, he has not placed the original document before the Court... and as he himself has been responsible for destroying its identity, he cannot in justice and equity be allowed to adduce secondary evidence of its contents."[8]

Proof of True Copy

When secondary evidence is offered in the form of a copy, it must be authenticated as a true copy of the original. The Supreme Court in M. Chandra v. M. Thangamuthu (as cited in several High Court judgments like H. Siddiqui (Dead) By Lrs. v. A. Ramalingam[4], Karthik Gangadhar Bhat[11], and D. Munirathnam Reddy v. S. Gunabhushana Naidu[13]) clarified that "if secondary evidence is admissible, it may be adduced in any form in which it may be available... The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original."[13] The exceptions under Section 65 are "designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."[13]

Opportunity to Cross-Examine on Foundational Evidence

The opposing party has the right to challenge the foundational evidence laid for admitting secondary evidence. In Smt. Shanta Agnihotri Petitioner v. M/S. Aman Associates (P) Ltd., the Delhi High Court affirmed that when secondary evidence is allowed, foundational evidence explaining the non-availability of the original must be given, and "the other side... is always entitled to cross-examine the witness for confronting the witness with the questions that the original evidence is not being led in the court not for the reasons as stated by the witness but for other reasons as contended by the petitioner/defendant."[20]

Inadmissibility of Original Document: Impact on Secondary Evidence

A critical aspect is whether secondary evidence can be led if the original document itself was inadmissible in evidence. The predominant judicial view is that it cannot.

Unstamped or Insufficiently Stamped Documents

Section 35 of the Indian Stamp Act, 1899, bars the admission in evidence of instruments not duly stamped, for any purpose, unless the requisite stamp duty and penalty are paid. This bar extends to secondary evidence of such documents. The Supreme Court in VIJAY v. UNION OF INDIA (2023), affirming the principle laid down in Jupudi Kesava Rao v. Pulavarthi Venkata Subha Rao, held that secondary evidence of an agreement to sell could not be allowed as the original was not duly stamped.[17] The Punjab & Haryana High Court in Gurcharan Singh v. Harbhagwan And Others Respondens (1979) clearly stated, "The legal proposition that the secondary evidence of a document which is unstamped cannot be allowed has not been seriously disputed... Before secondary evidence of a document can be allowed to be led two things have to be satisfied: (1) that the original document was properly stamped and admissible in evidence and (2) that one of the conditions enumerated is section 65 of the Indian Evidence Act entitling the leading of secondary evidence has been established."[16] This objection regarding the original being unstamped is relevant at the stage when permission to lead secondary evidence is sought.[16] The Bombay High Court in Nilkanth And Another v. Hanumant And Others also reiterated that the "peremptory requirement for admitting secondary evidence of an instrument is that the instrument in original ought not have the taint of inadmissibility under any law."[14]

The issue of admissibility of secondary evidence for an insufficiently stamped and unregistered conveyance of sale was also noted as a question for consideration in Shankar Lal & Ors. v. The Civil Judge (Jr. Div.) Shahpura & Ors.[10]

Judicial Interpretation and Key Precedents

The judiciary has played a significant role in interpreting and applying these provisions.

In Kaliya v. State Of Madhya Pradesh, the Supreme Court upheld the admissibility of a carbon copy of a dying declaration as secondary evidence under Sections 63 and 65 of the Act, where the original was lost. The Court relied on the testimonies of witnesses who corroborated the recording and content of the declaration, emphasizing that "Sections 63 and 65 of the Evidence Act were pivotal in this determination."[1] This case reinforced that the absence of an original document does not impede justice if secondary evidence is robust and legally tendered.

The Supreme Court in H. Siddiqui (Dead) By Lrs. v. A. Ramalingam scrutinized the admission of a photocopy of a Power of Attorney. It stressed that "mere admission of a document does not suffice for its acceptance as valid evidence" and that stringent requirements for secondary evidence, including proof of authentication, must be met.[4] The Court cited precedents like Roman Catholic Mission v. State of Madras[5] for the stringent requirements and M. Chandra v. M. Thangamuthu for the necessity of authenticated secondary evidence.

In Ashok Dulichand v. Madahavlal Dube And Another, the Supreme Court affirmed the High Court's refusal to admit a photostat copy of a leaflet as secondary evidence because "the High Court rightfully excluded evidence lacking a solid foundation per the Indian Evidence Act."[3] This was reiterated in Maharana Mahendra Singh Mewar v. Arvind Singh & Anr., where an application for secondary evidence was dismissed for failure to explain if the copy was of the original and failure to account for the original under Section 65(a).[12]

Procedural Aspects

A party intending to lead secondary evidence must typically make an application to the court, setting out the grounds for its admissibility under Section 65. The court then exercises its discretion, judicially, to determine if the foundational requirements have been met. As established in Gurcharan Singh (1979), objections to the admissibility of secondary evidence, particularly on grounds like the original being unstamped, can and should be raised at the stage when permission to lead such evidence is sought, rather than waiting until the document is formally tendered.[16] The court must ensure that the conditions laid down in Section 65 are fulfilled before secondary evidence can be admitted.[13]

In Vardan Feed Mills v. S.S.Zombade, an application to lead secondary evidence of letters (carbon copies) was considered, where the party had summoned officials with receipt registers to establish the existence and dispatch of the originals.[19] In Vishwanath Ramji Karale v. Rahibai, a certified copy of an adoption deed was admitted as secondary evidence because the original was proved to be with the defendant (widow of the executant) who failed to produce it after summons, thus satisfying the conditions of Sections 65 and 66 of the Act.[18]

Conclusion

The provisions for admitting secondary evidence under the Indian Evidence Act, 1872, strike a balance between the "best evidence rule" and the practical realities of litigation where original documents may be genuinely unavailable. The Act, through Section 65, provides specific gateways for the introduction of secondary evidence, but these are not to be treated as open doors. The party seeking to rely on secondary evidence bears the onus of meticulously establishing the foundational prerequisites: the existence of one of the conditions enumerated in Section 65, due diligence in attempting to procure the original (especially under clause (c)), and, where applicable, authentication of the secondary evidence as a true representation of the original. Furthermore, the courts have consistently held that secondary evidence cannot be used to circumvent other statutory bars, such as the inadmissibility of unstamped documents under the Indian Stamp Act, 1899. The judicial emphasis on strict compliance with these conditions ensures that the exceptions to the primary evidence rule serve the cause of justice without compromising the integrity of the evidentiary process.

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