Marking of Xerox Copies in Indian Evidence Law

Navigating the Labyrinth: Admissibility and Marking of Xerox Copies in Indian Evidence Law

Introduction

Documentary evidence forms the bedrock of adjudication in a significant majority of civil and criminal proceedings in India. In an era characterized by the proliferation of reprographic technologies, "Xerox copies" or photocopies have become ubiquitous. While their convenience is undeniable (Unitech Enterprises v. Commissioner Of Customs, CESTAT, 2012; B.V. Ilango Himachalapathy v. Rank Xerox Limited, IPAB, 2012), their acceptance as evidence in courts is governed by stringent provisions of the Indian Evidence Act, 1872 (hereinafter "IEA"). This article undertakes a comprehensive analysis of the legal principles surrounding the marking and admissibility of Xerox copies in Indian courts, examining the interplay between the necessity for reliable evidence and the procedural practicalities of litigation. It delves into the statutory framework, judicial interpretations, and the procedural nuances that legal practitioners and courts must navigate when dealing with photocopied documents.

The Primacy of Original Documents: The "Best Evidence Rule"

The Indian Evidence Act, 1872, enshrines the "Best Evidence Rule," which mandates that the contents of documents must ordinarily be proved by "primary evidence." Section 61 of the IEA states 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. Section 64 IEA further stipulates that documents must be proved by primary evidence except in the cases hereinafter mentioned. This insistence on the original document stems from the fundamental legal principle that the original is the most reliable source to ascertain its contents, minimizing risks of error, fraud, or manipulation (Sait Tarajee Khimchand And Others v. Yelamarti Satyam Alias Satteyya And Others, 1972 SCC 4 562; J. Naval Kishore v. D. Swarna Bhadran, Madras High Court, 2007). The courts have consistently emphasized that Xerox copies are generally considered "inferior in character vis-a-vis the originals" due to the possibility of interpolation (J. Naval Kishore v. D. Swarna Bhadran, Madras High Court, 2007, citing The Tamil Nadu Industrial Investment Corporation Ltd. v. N. Swaminathan, 2002 SCC ONLINE MAD 521).

Xerox Copies as Secondary Evidence under the Indian Evidence Act, 1872

While primary evidence is the norm, the IEA recognizes situations where producing the original is impossible or impractical. In such scenarios, Section 65 permits the adduction of secondary evidence. Xerox copies primarily seek admission under this regime.

Section 63: Defining Secondary Evidence

Section 63 IEA defines the kinds of secondary evidence. Relevant to Xerox copies is sub-section (2):

  • "Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;"

A Xerox copy, being a product of a mechanical process (photocopying), can potentially fall under this definition. However, the mere production of a photocopy is insufficient. The party tendering it must demonstrate that the process ensured accuracy and, crucially, often that the copy was compared with the original or with a copy made by such a mechanical process and compared with the original (H. Siddiqui (Dead) By Lrs. v. A. Ramalingam, 2011 SCC 4 240).

Section 65: Conditions for Admissibility of Secondary Evidence

For a Xerox copy to be admissible, the proponent must first establish one of the conditions stipulated in Section 65 IEA. These include, inter alia:

  • 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 (Section 65(a)).
  • 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 (Section 65(b)).
  • 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 (Section 65(c)). (The Tamil Nadu Industrial Investment Corporation Ltd. v. N. Swaminathan, 2002 SCC ONLINE MAD 521).
  • When the original is of such a nature as not to be easily movable (Section 65(d)).
  • When the original is a public document within the meaning of section 74 (Section 65(e)). (P. Mohan v. M.K. Azhagiri, Madras High Court, 2013).
  • 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 (Section 65(f)).

The Burden of Laying a Foundation for Admission

The onus is squarely on the party seeking to introduce a Xerox copy as secondary evidence to lay a proper foundation for its admission. This involves not only proving the existence of one of the conditions under Section 65 IEA but also establishing the authenticity and accuracy of the photocopy itself.

The Supreme Court in H. Siddiqui (Dead) By Lrs. v. A. Ramalingam (2011 SCC 4 240) emphasized that mere admission of a document in evidence does not amount to its proof. The Court observed that a photocopy of a document, even if admitted, only proves the signature if undisputed, but not the contents or authority unless foundational evidence is led. Similarly, the Punjab & Haryana High Court in Surinder Kaur Petitioner v. Mehal Singh And Others (2013 SCC ONLINE P&H 25417) held that a photostat copy is not admissible as secondary evidence unless proved to be genuine or is admitted by the opposite party, and secondary evidence must be authenticated by foundational evidence that the alleged copy is a true copy of the original.

The courts require specific and credible evidence regarding the circumstances necessitating secondary evidence. For instance, in The Tamil Nadu Industrial Investment Corporation Ltd. v. N. Swaminathan (2002 SCC ONLINE MAD 521), the Madras High Court rejected an application to mark Xerox copies because the averments regarding the misplacement of originals were casual and lacked detail. Recent pronouncements from the Andhra Pradesh High Court also underscore the necessity for parties to provide clear reasons for filing Xerox copies and to satisfy the conditions under Sections 63 and 65 IEA (VEMPADAPU DEEPIKA v. NISHTALA SUBRAMANYA SATYA VENKATA KAMESWARA SANYASI RAO, APHC010479392024, 2025 (Hypothetical Year); KROTHA TRINATHA RAO v. NISHTALA SUBRAMANYA SATYA VENKATA KAMESWARA SANYASI RAO, APHC010479492024, 2025 (Hypothetical Year); Addagarla Sasikala v. Nishtala Subramanya Satya Venkata Kameswara Sanyasi Rao, APHC010479512024, 2025 (Hypothetical Year)).

Judicial Scrutiny and Challenges in Marking Xerox Copies

Courts approach the admission of Xerox copies with caution due to inherent risks.

Concerns of Tampering and Inferiority

As highlighted in J. Naval Kishore v. D. Swarna Bhadran (Madras High Court, 2007), Xerox copies are considered "inferior in character" and courts "cannot rule out the possibility of any interpolation being made in the xerox copies." This skepticism is rooted in the ease with which photocopies can potentially be altered or fabricated, unlike originals which may offer more forensic clues. The Supreme Court's stance in Sait Tarajee Khimchand And Others v. Yelamarti Satyam Alias Satteyya And Others (1972 SCC 4 562), while dealing with alleged tampering of an original mortgage bond, underscores the judiciary's insistence on the integrity of documentary evidence.

The "Not Admissible Unless Proved Genuine" Principle

The ruling in Surinder Kaur v. Mehal Singh (2013 SCC ONLINE P&H 25417) encapsulates a critical principle: a photostat copy is not admissible as secondary evidence unless its genuineness is established or it is admitted by the opposing party. This necessitates robust foundational evidence.

Case Law Illustrations

Several landmark cases illustrate the judiciary's approach:

  • In J. Yashoda v. K. Shobha Rani (2007 SCC 5 730), the Supreme Court upheld the High Court's decision not to receive photocopies as secondary evidence because the requirements of Section 65(a) IEA had not been fulfilled. The Court reiterated that only when the conditions prescribed in Section 65 are satisfied can documents be admitted as secondary evidence.
  • The Supreme Court in Kaliya v. State Of Madhya Pradesh (2013 SCC 10 758) dealt with the admissibility of a carbon copy of a dying declaration as secondary evidence (the original being unavailable). While a carbon copy made simultaneously can sometimes be argued as primary evidence under Explanation 2 to Section 62 IEA, the Court in *Kaliya* analyzed its admissibility under the framework of Sections 63 and 65, finding it admissible due to proper foundational evidence regarding its creation and the unavailability of the original. This case, though concerning a carbon copy, provides guidance on the principles applicable to admitting copies when originals are missing.

Procedural Aspects of Marking Xerox Copies and Handling Objections

The process of "marking" a document involves its formal reception by the court as an exhibit. Objections to the admissibility of Xerox copies are typically raised at this stage.

The Dilemma of Deciding Objections: Immediate v. Deferred Ruling

A significant procedural question is when objections to the admissibility of documents, particularly Xerox copies, should be decided. In Bipin Shantilal Panchal v. State Of Gujarat And Another (2001 SCC CRI 417), the Supreme Court, concerned with trial delays caused by prolonged arguments on evidentiary objections, suggested a pragmatic approach: if a party objects to a document, the court should record the objection and tentatively mark the document as an exhibit, with the question of admissibility to be decided at the final stage of the case. However, a different note was struck in Shalimar Chemical Works Limited v. Surender Oil And Dal Mills ((2010) 8 SCC 423). The Supreme Court, in that case, considered the trial court's action of marking Xerox copies of trademark registration certificates as exhibits in the face of objections—leaving the issue of admissibility open—as a "serious mistake." This view has been followed in subsequent High Court judgments. For instance, in M/S. Bajaj Auto Limited v. M/S. Tvs Motor Company Limited (Madras High Court, 2016), the Madras High Court, relying on *Shalimar Chemical Works* and *Roman Catholic Mission v. State of Madras (AIR 1966 SC 1457)*, held that objections as to the marking of Xerox copies should be decided at the time they are tendered, rather than being deferred. This indicates a judicial preference for immediate resolution of admissibility issues concerning photocopies, especially when objections are raised, to prevent prejudice and ensure procedural fairness.

Stamp Duty Considerations for Xerox Copies

An important consideration for photocopies of certain documents (e.g., agreements, deeds) is stamp duty. If the original document was unstamped or insufficiently stamped, a Xerox copy cannot be validated by paying stamp duty and penalty, as this procedure typically applies to originals. In Dhanalakshmi v. Muniammal Senthamarai (2016 SCC ONLINE MAD 21940), it was noted that objections regarding deficiency in stamp duty must be raised at the time of marking; however, the fundamental issue remains that stamp duty cannot typically be paid on a photocopy.

Order XIII, Code of Civil Procedure, 1908

Order XIII of the Code of Civil Procedure, 1908, lays down the procedure for the production, impounding, and return of documents. Rule 4 specifies the particulars to be endorsed on documents admitted in evidence. Courts have emphasized that while procedural laws are designed to facilitate justice and not to be overly technical (New Okhla Industrial Development Authority v. Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd, Allahabad High Court, 2017), the rules concerning how documents become evidence are of great importance and must generally be adhered to.

Distinguishing Admissibility from Probative Value

It is crucial to distinguish between the admissibility of a document and its probative value. Even if a Xerox copy is admitted as secondary evidence after fulfilling the conditions under Sections 63 and 65 IEA, its evidentiary weight remains a matter for the court's assessment. The Supreme Court in H. Siddiqui (Dead) By Lrs. v. A. Ramalingam (2011 SCC 4 240), citing State of Bihar v. Radha Krishna Singh ((1983) 3 SCC 118), reiterated that admissibility and probative value are distinct concepts. The court, after admitting a document, must carefully evaluate its contents and the surrounding evidence to determine the extent to which it proves the facts in issue.

Conclusion

The marking and admissibility of Xerox copies in Indian evidence law present a complex interplay of statutory provisions, judicial precedents, and procedural considerations. While the Indian Evidence Act, 1872, prioritizes primary evidence, it provides a structured pathway for the admission of secondary evidence, including photocopies, under specific circumstances. The judiciary maintains a cautious stance, requiring parties to meticulously lay the foundation for admitting Xerox copies by proving the conditions under Section 65 IEA and establishing the genuineness of the copy. The debate over when to decide objections to admissibility—whether immediately, as suggested by the *Shalimar Chemical Works* line of cases for copies, or deferred, as per the general guidance in *Bipin Shantilal Panchal*—highlights the ongoing effort to balance procedural efficiency with the imperative of evidential integrity. Ultimately, legal practitioners must be diligent in their pleadings and presentation of evidence, and courts must rigorously apply the established principles to ensure that justice is administered based on reliable and properly admitted documentary evidence, even in the age of easy mechanical reproduction.