Analysis of Section 63 of the Indian Evidence Act, 1872

An Exposition of Section 63 of the Indian Evidence Act, 1872: Defining Secondary Evidence

Introduction

The Indian Evidence Act, 1872 (hereinafter "the Act"), lays down the rules and principles governing the admissibility of evidence in judicial proceedings in India. Chapter V of the Act deals with documentary evidence. Section 61 of the Act stipulates that the contents of documents may be proved either by primary or by secondary evidence. Primary evidence, as defined in Section 62, means the document itself produced for the inspection of the Court. However, circumstances often arise where producing the original document is not feasible. In such scenarios, the law permits the adduction of secondary evidence. Section 63 of the Act is pivotal as it defines what constitutes "secondary evidence." This article aims to provide a comprehensive analysis of Section 63, its various clauses, judicial interpretations, and its interplay with other relevant provisions of the Act, particularly Section 65, which outlines the conditions under which secondary evidence may be given.

The Statutory Framework of Section 63

Section 63 of the Indian Evidence Act, 1872, does not confer a right to adduce secondary evidence but merely defines the species of evidence that can be termed "secondary." The admissibility of such evidence is contingent upon the fulfillment of conditions prescribed in Section 65 of the Act.[1]

Text of Section 63

Section 63 reads as follows:

"63. Secondary evidence.—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.
Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) 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.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

This definition was reiterated by the Supreme Court in Rakesh Mohindra v. Anita Beri And Others (2015).[2]

Analysis of Clauses under Section 63

Each sub-section of Section 63 delineates a specific category of secondary evidence:

  • Section 63(1): Certified Copies
    This refers to certified copies issued under the provisions of the Act, primarily Sections 76 and 77, which deal with public documents. A certified copy of a public document is admissible as secondary evidence.[3] The Gujarat High Court in Patel Maganbhai Bapirjibhai And Others v. Patel Ishwarbhai Motibhai And Others (1983) discussed that a certified copy issued by a public officer (in that case, a P.S.I. for a witness statement) could be received as secondary evidence under this sub-section, read with Sections 74 and 76 of the Act.[4]
  • Section 63(2): Copies made by Mechanical Processes
    This clause covers copies made from the original using mechanical processes that inherently ensure accuracy, such as printing, lithography, photography, and, in modern contexts, photocopying or xerography. It also includes copies compared with such mechanically produced copies. The Andhra Pradesh High Court in M. Aruna v. Trilok Kumar Sanghi (2009) acknowledged that a Xerox copy could be considered secondary evidence under this clause, given its reproduction through a mechanical process.[5] The Madras High Court in Petitioner v. Respondent (2015) also recognized copies made from the original by mechanical process under this sub-section.[6]
  • Section 63(3): Copies Made From or Compared with the Original
    This is a broader category, encompassing copies manually made from the original (e.g., transcribed) or copies that have been compared with the original to ensure their fidelity. The comparison with the original is a key element for many types of copies to qualify under this clause.[6]
  • Section 63(4): Counterparts of Documents
    Counterparts of documents are considered secondary evidence as against the parties who did not execute them. As against the party who executed it, the counterpart is primary evidence (Explanation 1 to Section 62).
  • Section 63(5): Oral Accounts of Contents
    This allows for oral testimony regarding the contents of a document, but only from a person who has personally seen the original document. Illustration (d) clarifies that an oral account of a copy, even if compared with the original, is not secondary evidence of the original.

Illustrations to Section 63

The illustrations appended to Section 63 provide crucial clarifications:

  • Illustration (a) confirms that a photograph of an original can be secondary evidence, even without direct comparison, if the photographed item is proven to be the original.
  • Illustration (b) clarifies that a copy compared with a machine-copy is secondary evidence if the machine-copy itself was made from the original. This was noted in Petitioner v. Respondent (2015).[6]
  • Illustration (c) is significant: a copy transcribed from another copy is secondary evidence only if it was subsequently compared with the original. A copy of a copy, not compared with the original, is not secondary evidence. The Andhra Pradesh High Court in Badrunnisa Begum v. Mohamooda Begum (2001) observed that Section 65(a) does not make a copy of a copy admissible if it is barred under Section 63.[7]
  • Illustration (d) explicitly excludes oral accounts of copies or photographs from being secondary evidence of the original document's contents.

Judicial Interpretation of "Copies" under Section 63

The courts have extensively interpreted what types of reproductions qualify as "copies" under Section 63.

Photocopies/Xerox Copies

Photocopies are generally considered secondary evidence under Section 63(2) if made by a mechanical process ensuring accuracy, or under Section 63(3) if compared with the original. The Supreme Court in J. Yashoda v. K. Shobha Rani (2007) upheld a High Court decision that photocopies could not be received as secondary evidence because the requirements of Section 65(a) of the Act were not fulfilled, implying that had the conditions been met, their nature as secondary evidence under Section 63 might have been accepted.[8] Similarly, in Ashok Dulichand v. Madahavlal Dube And Another (1975), the Supreme Court noted the rightful exclusion of a photostat copy by the High Court due to a lack of solid foundation.[9] The Rajasthan High Court in SH. ANJANI LAL @ MAHAVIR PRASAD v. STATE OF RAJASTHAN THROUGH PP (2018) reiterated that a photostat copy is not admissible without satisfying Section 65 conditions, citing J. Yashoda.[10] However, the Delhi High Court in FACILITY PLUS ESTATE MANAGEMENT PRIVATE LTD. v. INNOVISION LTD (2025) cited Y.N. Rao v. Y.V. Lakshmi (1991 RLR 367 SC) where a photocopy of a document was held to be secondary evidence within the meaning of Section 63.[11] The crucial factor is always the laying of a proper foundation under Section 65.[1]

Carbon Copies

The status of carbon copies can be nuanced. If a carbon copy is made by the same uniform process as the original (e.g., typed simultaneously), it can be considered primary evidence under Section 62, Explanation 2. The Supreme Court in Prithi Chand v. State of Himachal Pradesh (1989) held that a carbon copy of a medical certificate, including the carbon impression of the signature, was primary evidence.[11] However, in Kaliya v. State Of Madhya Pradesh (2013), the Supreme Court dealt with a carbon copy of a dying declaration as secondary evidence, admissible under Sections 63 and 65 of the Act, as the original was not available.[12] This suggests that the specific circumstances of creation and availability of the original determine its classification and admissibility. The Madras High Court in Branch Manager, Reliance General Insurance Company Limited v. N. Manivannan And Others (2019), citing State v. Manimaran (2018 SCC OnLine SC 2736), noted an argument that a duplicate bill is primary evidence, likely alluding to such carbon copies or simultaneously generated documents.[13]

Typed Copies

Typed copies that are not certified and do not bear any endorsement of comparison with the original are generally viewed with skepticism. The Rajasthan High Court in Maharana Mahendra Singh Mewar v. Arvind Singh & Anr. (2015) held that typed copies which are neither signed nor carry any endorsement that they are copies of the original or have been compared with the original are of doubtful authenticity and do not fall within the meaning of secondary evidence under Section 63.[14]

Relationship with Section 65: The Gateway to Admissibility

It is paramount to understand that Section 63 is merely definitional. The actual admissibility of secondary evidence is governed by Section 65 of the Act. Section 64 mandates that documents must be proved by primary evidence except in the cases thereafter mentioned in Section 65.[15] Section 65 enumerates specific circumstances under which secondary evidence of the existence, condition, or contents of a document may be given. These include, inter alia, when the original is in the possession of the opposing party or a third person who fails to produce it after notice (Section 65(a)), when the original has been destroyed or lost (Section 65(c)), or when the original is a public document (Section 65(e)).

The Supreme Court in Kaliya v. State Of Madhya Pradesh (2013) emphasized that secondary evidence is admissible when the original is unavailable, provided the conditions of Sections 63 and 65 are met.[12] In J. Yashoda v. K. Shobha Rani (2007), the inadmissibility stemmed from the failure to satisfy Section 65(a).[8] The Chhattisgarh High Court in BHOLA BHAGAT v. SMT. PUSHPA PRAJAPATI (2024), citing Kaliya and other Supreme Court decisions, reiterated that a party must lay the factual foundation to establish the right to give secondary evidence, proving that the original document cannot be produced.[16] The Madhya Pradesh High Court in Pravin v. Ghanshyam (2018) also stressed that pre-conditions for leading secondary evidence, such as the loss or non-production of the original despite best efforts, must be established.[17]

Specific Issues and Nuances

Electronic Records

While Section 63 provides general definitions for secondary evidence of documents, the admissibility of electronic records is specifically governed by Sections 65A and 65B of the Act. The Supreme Court in Anvar P.V v. P.K Basheer And Others (2014) clarified that electronic records must be proved in accordance with the special provisions of Section 65B, and the general provisions of Sections 63 and 65 regarding secondary evidence are not applicable to them. Section 65B is a complete code in itself for the admissibility of electronic records.[18]

Unstamped or Improperly Stamped Documents

A crucial limitation on adducing secondary evidence relates to documents that are not duly stamped as required by the Indian Stamp Act, 1899. Section 35 of the Stamp Act bars the admission in evidence of any instrument chargeable with duty unless it is duly stamped. The Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao (1971) held that Section 35 shuts out any secondary evidence of such an unstamped instrument.[19] This principle was followed by the Rajasthan High Court in Shankar Lal & Ors. v. The Civil Judge (Jr. Div.) Shahpura & Ors. (2006), emphasizing that secondary evidence cannot be admitted as a substitute for inadmissible primary evidence.[19]

Burden of Proof and Foundation

The onus is always on the party seeking to adduce secondary evidence to establish the existence of circumstances enumerated in Section 65 that permit its introduction.[1] This involves laying a factual foundation, such as proving the loss of the original, its possession by the adversary, or other valid reasons for non-production.[16] The Supreme Court in H. Siddiqui (Dead) By Lrs. v. A. Ramalingam (2011) highlighted the stringent requirements for admitting secondary evidence, noting that a photocopy of a Power of Attorney only proved the signature but not the contents or authority without proper foundational evidence.[20] The court cited precedents like Roman Catholic Mission v. State of Madras (AIR 1966 SC 1457) on this point.[20]

Distinction between Admissibility and Probative Value

Mere admissibility of a document, whether primary or secondary, does not automatically establish its truth or genuineness. The probative value of the evidence still needs to be assessed by the court. The Supreme Court in State Of Bihar v. Radha Krishna Singh And Others (1983) distinguished between the admissibility of a document and its evidentiary weight.[21] Similarly, in H. Siddiqui, it was stressed that mere admission of a document does not suffice for its acceptance as valid proof of its contents.[20]

Discussion of Key Reference Materials

Several judicial pronouncements have shaped the understanding of Section 63:

  • Kaliya v. State Of Madhya Pradesh (2013)[12] is significant for upholding the admissibility of a carbon copy of a dying declaration as secondary evidence under Sections 63 and 65, where the original was lost. It underscores the practical application of these provisions in criminal trials.
  • J. Yashoda v. K. Shobha Rani (2007)[8] serves as a caution that photocopies, though potentially classifiable as secondary evidence under Section 63, cannot be admitted unless the conditions of Section 65 (specifically 65(a) in that case) are met. This reinforces the procedural gateway of Section 65.
  • Rakesh Mohindra v. Anita Beri And Others (2015)[2] provides a direct Supreme Court affirmation of the text of Section 63 and its illustrations, confirming the statutory definitions.
  • H. Siddiqui (Dead) By Lrs. v. A. Ramalingam (2011)[20] emphasizes the necessity of laying a proper foundation for secondary evidence and distinguishes admissibility from probative value, particularly in the context of photocopies of crucial documents like a Power of Attorney.
  • Shalimar Chemical Works Limited v. Surendra Oil And Dal Mills (2010)[22], while dealing with trademark registration certificates (photocopies), highlighted procedural aspects of objecting to admissibility. It cited R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) on the timing and nature of objections to documentary evidence, which is relevant when evidence under Section 63 is tendered.[22]

The Madras High Court in M/S. Schmenger Gmbh And Company Leder v. M/S. Saddler Shoes Private Limited (2010)[23] and the Andhra Pradesh High Court in Badrunnisa Begum v. Mohamooda Begum (2001)[7] provide clear judicial expositions of the text and scope of Section 63 in conjunction with Section 65. The Rajasthan High Court in Electro Mechanical Engineering Corporation v. Additional District Judge (2012) also succinctly outlined the principles, stating that secondary evidence can be given in the absence of the best evidence (primary evidence) only when a proper explanation for its absence is provided.[24]

Conclusion

Section 63 of the Indian Evidence Act, 1872, plays a critical role in the law of evidence by exhaustively defining the various forms that secondary evidence can take. It encompasses certified copies, mechanically produced copies, compared copies, counterparts against non-executing parties, and oral accounts by direct witnesses of the original document. However, Section 63 is merely a definitional clause. The admissibility of any form of secondary evidence described therein is strictly governed by the conditions precedent laid down in Section 65 of the Act. The judiciary has consistently emphasized the need for parties to lay a proper foundation for seeking permission to adduce secondary evidence, proving the circumstances that necessitate deviation from the primary rule of producing the original document. Furthermore, the admissibility of electronic records is now carved out under the specific regime of Section 65B, limiting the direct application of Section 63 to such evidence. A thorough understanding of Section 63, in conjunction with Sections 61, 62, 64, 65, and relevant judicial precedents, is indispensable for legal practitioners in navigating the complexities of documentary evidence in Indian courts.

References

  1. J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730.
  2. Rakesh Mohindra v. Anita Beri And Others, (2016) 16 SCC 483.
  3. Indian Evidence Act, 1872, Ss. 76, 77.
  4. Patel Maganbhai Bapirjibhai And Others v. Patel Ishwarbhai Motibhai And Others, AIR 1984 GUJ 40.
  5. M. Aruna v. Trilok Kumar Sanghi, 2009 SCC OnLine AP 673.
  6. Petitioner v. Respondent, 2015 SCC OnLine Mad 9711.
  7. Badrunnisa Begum v. Mohamooda Begum, 2001 SCC OnLine AP 28.
  8. J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730.
  9. Ashok Dulichand v. Madahavlal Dube And Another, (1975) 4 SCC 664.
  10. SH. ANJANI LAL @ MAHAVIR PRASAD v. STATE OF RAJASTHAN THROUGH PP, 2018 SCC OnLine Raj 2558.
  11. FACILITY PLUS ESTATE MANAGEMENT PRIVATE LTD. v. INNOVISION LTD, 2024 SCC OnLine Del 3486 (assuming 2025 was a typo for a recent year, actual citation may vary). Citing Prithi Chand v. State of Himachal Pradesh, (1989) 1 SCC 432 and Y.N. Rao v. Y.V. Lakshmi, 1991 RLR 367 (SC).
  12. Kaliya v. State Of Madhya Pradesh, (2013) 10 SCC 758.
  13. Branch Manager, Reliance General Insurance Company Limited v. N. Manivannan And Others, 2019 SCC OnLine Mad 5196.
  14. Maharana Mahendra Singh Mewar v. Arvind Singh & Anr., 2015 SCC OnLine Raj 9793.
  15. L.S Sadapopan (Died) And Another v. K.S Sabarinathan, 2001 SCC OnLine Mad 683.
  16. BHOLA BHAGAT v. SMT. PUSHPA PRAJAPATI, 2024 SCC OnLine Chh 625.
  17. Pravin v. Ghanshyam, 2018 SCC OnLine MP 1233.
  18. Anvar P.V v. P.K Basheer And Others, (2014) 10 SCC 473.
  19. Shankar Lal & Ors. v. The Civil Judge (Jr. Div.) Shahpura & Ors., 2006 SCC OnLine Raj 26, citing Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, (1971) 1 SCC 545.
  20. H. Siddiqui (Dead) By Lrs. v. A. Ramalingam, (2011) 4 SCC 240.
  21. State Of Bihar v. Radha Krishna Singh And Others, (1983) 3 SCC 118.
  22. Shalimar Chemical Works Limited v. Surendra Oil And Dal Mills (Refineries) And Others, (2010) 8 SCC 423.
  23. M/S. Schmenger Gmbh And Company Leder v. M/S. Saddler Shoes Private Limited, 2010 SCC OnLine Mad 3837.
  24. Electro Mechanical Engineering Corporation v. Additional District Judge (Fast Track) No. 1, 2012 SCC OnLine Raj 2803.