Permission for Secondary Evidence in India: A Procedural Analysis

Demystifying the 'Permission' Requirement for Adducing Secondary Evidence under the Indian Evidence Act, 1872

Introduction

The law of evidence is the bedrock upon which the edifice of judicial adjudication rests. Central to this framework is the principle that the best evidence must be produced before the court. This rule, embodied in the Indian Evidence Act, 1872 (hereinafter "the Act"), mandates the production of primary evidence, i.e., the original document itself. However, the Act pragmatically acknowledges circumstances where producing the original is impossible or impracticable. Section 65 of the Act carves out exceptions, permitting parties to adduce secondary evidence. While the substantive conditions for invoking these exceptions are statutorily defined, a significant procedural conundrum has emerged in Indian legal practice: whether a party must seek formal, prior "permission" from the court via a distinct application before leading secondary evidence.

This article critically examines this procedural dichotomy. It analyzes the statutory framework, traces the evolution of judicial thought through landmark pronouncements of the Supreme Court and various High Courts, and seeks to resolve the conflicting practices. It argues that the insistence on a formal application for permission is a procedural artifact, not a statutory mandate, and that the modern, more efficient judicial approach, supported by Supreme Court dicta, rightly focuses on the establishment of a foundational basis for admissibility rather than on a preliminary procedural formality.

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

The admissibility of secondary evidence is governed primarily by Sections 63 and 65 of the Act. Section 61 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.

Section 63 defines what constitutes "secondary evidence." It includes:

  • Certified copies given under the provisions of the Act.
  • Copies made from the original by mechanical processes which in themselves ensure accuracy, 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 a person who has himself seen it.

Section 65 is the pivotal provision that enumerates the specific circumstances under which secondary evidence relating to documents may be given. It is not an open-ended rule but provides seven exhaustive categories. The most frequently invoked clauses are:

  • Section 65(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.
  • Section 65(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.
  • Section 65(e): When the original is a public document within the meaning of Section 74.
  • Section 65(f): When the original is a document of which a certified copy is permitted by the Act, or by any other law in force in India, to be given in evidence.

A plain reading of Section 65 reveals that it lays down substantive conditions—a factual foundation that must be established—before secondary evidence becomes admissible. It does not, however, prescribe any specific procedural mechanism, such as the filing of a formal application, for obtaining the court's leave. This statutory silence is the genesis of the procedural divergence in practice.

Judicial Interpretation of Foundational Requirements

Indian courts have consistently held that the conditions precedent in Section 65 must be rigorously satisfied. The burden of establishing this foundation lies squarely on the party seeking to adduce secondary evidence. The Supreme Court in H. Siddiqui (Dead) By Lrs. v. A. Ramalingam (2011 SCC 4 240) clarified, "secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section."

Laying the Foundation: Existence, Execution, and Loss

The first step is to prove the existence and execution of the original document. As held in Kalyan Singh v. Smt. Chhoti And Others (1990 SCC 1 266), a party cannot be permitted to lead secondary evidence of a document whose very existence and execution are in doubt. The Bombay High Court in Suresh S/O Shrikrishna Pandharipande v. Parag S/O Padmakar Pandharipande (2015) rightly noted that proof of existence and loss are two essential prerequisites.

Secondly, the party must satisfactorily explain the non-production of the original document, fitting the explanation into one of the clauses of Section 65. For instance, under Section 65(c), the party must prove the loss or destruction of the original. The Supreme Court in Rakesh Mohindra v. Anita Beri And Others (2015) emphasized that the party must establish that despite best efforts, they are unable to produce the original for reasons beyond their control. However, the standard of proof for loss is not absolute; as the Punjab & Haryana High Court observed in Raj Kumari v. Lal Chand (1993), a party is not required to prove the loss in absolute terms, especially if those in possession of the document are deceased or deny its existence.

Thirdly, the secondary evidence tendered must be authenticated as a true representation of the original. The Supreme Court in H. Siddiqui stressed that "Mere admission of a document in evidence does not amount to its proof." In J. Yashoda v. K. Shobha Rani (2007 SCC 5 730), the Apex Court upheld the rejection of photocopies as secondary evidence because the foundational requirements of Section 65 were not met.

The Procedural Dichotomy: To Seek Permission or Not?

While the substantive law is clear, the procedural aspect of *how* to place this foundation before the court has led to two distinct schools of thought.

The "Permission-Mandatory" Practice

A long-standing, albeit increasingly questioned, practice in trial courts involves the filing of a formal application seeking "permission" or "leave" to lead secondary evidence. This approach treats the admissibility of secondary evidence as a preliminary issue to be decided before the evidence is formally tendered. Some judicial decisions have reinforced this practice. For instance, the Bombay High Court in Bank Of India v. Allibhoy Mohammed & Ors. (2008) explicitly stated that "The prior permission of the Court required to be taken for producing secondary evidence of the documents on the grounds that original documents were lost." Similarly, cases like Maharana Mahendra Singh Mewar v. Arvind Singh & Anr. (2015) have discussed the procedural nitty-gritty of such applications, suggesting they should be supported by an affidavit. This line of cases treats the grant of permission as a mandatory gateway to adducing secondary evidence.

The "Permission-Redundant" Jurisprudence

A more modern, pragmatic, and legally robust line of jurisprudence holds that a formal application for permission is not contemplated by the Act and is, therefore, redundant. This view distinguishes between the *substantive requirement* of laying a foundation and the *procedural formality* of a separate application.

Multiple High Courts have been unequivocal on this point. The Punjab & Haryana High Court in Darshan Lal v. Gurmail Singh And Others (2018 CIVCC 3 355) trenchantly observed:

"In the considered opinion of this Court, there is no provision for moving an application for seeking formal permission to lead the secondary evidence. Section 65 of the Evidence Act does not envisage filing of any application for leading secondary evidence. A wrong practice is being followed by the subordinate courts."

The Bombay High Court, in a series of judgments authored by Justice G.S. Patel, has forcefully articulated this position. In Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh And Another (2017), the court stated, "No 'leave' or 'permission' is required to do this... there is simply no question of 'leave' being required." This was reiterated in SHAIKH AFTAB SHMED... v. BHIMRAO SANDU WAGHMARE... (2021), where the court directed that no subordinate judge should insist on such an application.

This view finds strong support in the pronouncements of the Supreme Court. In Dhanpat (S) v. Sheo Ram (Deceased) Through Lrs. And Others (S) (2020 SCC ONLINE SC 606), the Court proceeded on the basis that secondary evidence was admissible without dwelling on any requirement for a prior application. Citing this judgment, the Allahabad High Court in Pradeep Kumar Jain v. State Of U.P. And 4 Others (2022) concluded that "there is no mandatory requirement for moving application seeking permission to lead secondary evidence." Furthermore, the procedural guidance from the Supreme Court in Bipin Shantilal Panchal v. State Of Gujarat And Another (2001 SCC CRI 417) is highly instructive. The Court recommended a procedure where, if an objection is raised to a piece of evidence, the court should mark the document tentatively and rule on its admissibility at the final stage of the trial. This approach obviates the need for mini-trials on admissibility through interlocutory applications, thereby accelerating proceedings and aligning perfectly with the "no prior permission" school of thought.

Resolving the Dichotomy: A Synthesized Procedural Approach

The resolution to this procedural conflict lies in focusing on the substance of Section 65 rather than the form of a preliminary application. The correct and efficient procedure, synthesized from the superior court judgments, should be as follows:

  1. Pleadings as Foundation: The party intending to rely on secondary evidence should lay a clear foundation in their pleadings, asserting the existence of the original document and the reason for its non-production, as noted in Darshan Lal v. Gurmail Singh.
  2. Evidence on Foundational Facts: During the stage of evidence, typically in the affidavit in lieu of examination-in-chief, the party must depose to the facts that satisfy the conditions of the relevant clause of Section 65.
  3. Tendering of Evidence and Objection: The party then tenders the secondary evidence. The opposite party has the right to object to its admissibility at this stage.
  4. Judicial Determination: The trial court, guided by the principles in Bipin Shantilal Panchal, should ideally record the objection and defer the decision on admissibility and probative value to the final judgment. This allows the veracity of the foundational claims (e.g., loss of the document) to be tested during cross-examination, as suggested in Suresh S/O Shrikrishna Pandharipande. This prevents the fragmentation of the trial and ensures a holistic appreciation of evidence.

This approach respects the statutory mandate of Section 65, promotes procedural efficiency, and aligns with the authoritative pronouncements of the Supreme Court and several High Courts.

Conclusion

The requirement of obtaining prior "permission" to lead secondary evidence through a formal application is a judicial convention that lacks a firm statutory basis in the Indian Evidence Act, 1872. While the substantive conditions precedent laid down in Section 65 for the admissibility of such evidence are mandatory and must be strictly proven, the insistence on a preliminary application is a procedural misstep that often leads to unnecessary delays.

The emergent and correct jurisprudence, championed by several High Courts and implicitly supported by the Supreme Court, clarifies that the focus must be on establishing the foundational facts for admissibility through pleadings and evidence. The question of admissibility is best decided at the final hearing after the evidence has been tested by cross-examination, in line with the procedural reforms advocated in Bipin Shantilal Panchal. By shedding this procedural artifact, the Indian judiciary can better ensure that the path to justice is not encumbered by legally unfounded and dilatory formalities, thereby upholding the core objective of the law of evidence: the swift and fair ascertainment of truth.