Secondary Evidence and its Admissibility under Indian Law: A Jurisprudential Analysis

Secondary Evidence and its Admissibility under Indian Law: A Jurisprudential Analysis

Introduction

The “best evidence” rule embedded in the Indian Evidence Act, 1872 (hereinafter “Evidence Act”) obliges a litigant to place primary evidence—the original document—before the court.[1] Yet litigation frequently confronts scenarios in which an original is unavailable, destroyed, or otherwise inaccessible. Sections 63 and 65 of the Act therefore carve out narrowly tailored exceptions permitting what the Act terms “secondary evidence.” Over one hundred and fifty years of precedent, the Supreme Court of India and various High Courts have progressively articulated—and at times recalibrated—the pre-conditions for invoking those exceptions. Recent digital-era cases (e.g., Anvar P.V. and Arjun Panditrao Khotkar) have further refined the doctrine in the context of electronic records. This article undertakes a critical examination of the admissibility of secondary evidence, synthesising statutory text with leading authorities, with particular focus on the ratio in J. Yashoda v. K. Shobha Rani[2] and the emerging principles consolidated in VIJAY v. Union of India.[3]

Statutory Framework

Sections 61–66: Textual Architecture

• Section 62 defines primary evidence.
• Section 63 enumerates the forms of secondary evidence (e.g., certified copies; mechanical copies; oral accounts).
• Section 65 prescribes seven situations (cls. (a)–(g)) in which secondary evidence “may” be given.
• Section 66 obliges the proponent—save in specified circumstances—to serve prior notice on the party possessing the original.

The cumulative scheme demands both (i) factual foundation proving the case falls within one of the seven clauses, and (ii) a form of copy that qualifies as “secondary evidence” under Section 63. Failure on either limb is fatal.

Jurisprudential Evolution

1. J. Yashoda v. K. Shobha Rani (2007)

In J. Yashoda the Supreme Court refused to admit photocopies of certain documents because the appellant had not satisfied Section 65(a): there was no proof that the originals were in the possession of the opposite party who, after notice, failed to produce them.[2] The Court reiterated that the “conditions prescribed in Section 65 are not empty formalities.” Where those conditions are unfulfilled, the court “cannot” receive the copies.

2. Consolidation of Principles in VIJAY v. Union of India (2023)

A seven-paragraph précis in VIJAY distils the essence of prior rulings:

  • Primary evidence is the rule; secondary evidence the exception.
  • Secondary evidence is admissible only where the original “is genuinely unavailable through no fault of the party.”
  • If the original can be procured, inferior proof is inadmissible.
  • A satisfactory explanation for non-production is a sine qua non.

3. Interface with Electoral Jurisprudence

Both Ashok Dulichand[4] and Anvar P.V.[5] arose from election petitions under the Representation of the People Act, 1951. In the former, a photostat leaflet was rejected for want of foundational proof; in the latter, compact discs were excluded for non-compliance with Section 65B. These cases underscore that evidentiary rigor is heightened where statutory causes of action resemble quasi-criminal accusations of “corrupt practice.”

4. Electronic Records: From Anvar P.V. to Arjun Panditrao

The digital turn prompted legislative augmentation via Sections 65A–65B (inserted by the Information Technology Act, 2000). In Anvar P.V. the Court overruled Navjot Sandhu, holding that only the special regime of Section 65B governs admissibility of electronic records; recourse to Sections 63–65 is impermissible.[5] Arjun Panditrao reaffirmed that stance but relaxed the timing of the Section 65B(4) certificate, permitting its production at any procedural stage where genuine difficulty is shown.[6]

5. High-Court Illustrations

  • Mukesh Kumar v. State of Haryana (2010): secondary evidence disallowed where the document had been deliberately destroyed by the claimant, offending equitable principles.[7]
  • Maharana Mahendra Singh Mewar v. Arvind Singh (2015): petition under Section 65 dismissed for absence of affidavit and failure to prove existence and execution of the original.[10]
  • Nilkanth v. Hanumant (2021): reiterated that Section 36 of the Stamp Act (curing unstamped documents once admitted) does not apply to secondary evidence; an insufficiently stamped original cannot be proved by producing an unstamped copy.[12]

Doctrinal Issues and Critical Analysis

1. “Factual Foundation” Requirement

A consistent leitmotif—from Pawan Kataria[13] to D. Munirathnam Reddy[16]—is that the proponent must first establish:

  1. Existence and execution of the original;
  2. Loss/destruction/unavailability without default;
  3. Authenticity of the tendered copy.

Courts insist that this foundation be laid through evidence, not merely by pleading or filing an interlocutory application.

2. Intentional Withholding and Equity

Where a party has itself impaired or concealed the original (e.g., by alteration: Chaudhuri Janardan Parida, cited in Mukesh Kumar), courts invoke equitable maxims to refuse secondary evidence. This promotes probative integrity and deters litigants from gaming procedural rules.

3. Public Documents and Certified Copies

Under Section 65(e)–(f), certified copies of public documents are admissible per se. Decisions such as State of Bihar v. Radha Krishna Singh[9] nonetheless require that the document truly be “public” and maintained under statutory duty; uncertified family genealogies were rejected despite their antiquity.

4. Stamp-Law Interplay

High-Court jurisprudence cautions that Section 35 of the Indian Stamp Act, 1899 (bar on admission of unstamped instruments) applies equally to copies. Thus, an unstamped or insufficiently stamped original cannot gain admittance via the “back-door” of secondary evidence.[11]

5. Standard of Proof and Burden

In civil cases, the burden lies on the party propounding secondary evidence; in criminal cases, the prosecution must fulfil it, barring limited shifts under Section 106 (special knowledge) as illustrated in State of Rajasthan v. Kashi Ram.[14] Election-law analogues demand proof “beyond reasonable doubt” for corrupt practice, magnifying the evidentiary threshold.[4]

Practical Consequences for the Bar and Bench

  • Affidavits and Notices: Applications under Section 65 must be affidavit-supported and, where relevant, accompany a Section 66 notice.
  • Preservation of Originals: Counsel should anticipate potential evidentiary objections and exert diligent effort to procure originals or, failing that, meticulously document the steps taken.
  • Electronic Records: Practitioners must obtain contemporaneous Section 65B certificates; post-litem attempts invite challenge unless justified under Arjun Panditrao.
  • Trial-Stage Objections: In light of Section 36 of the Stamp Act and Dayamathi Bai, objections to mode of proof must be taken when the document is first tendered; laissez-faire may amount to waiver.[19]

Conclusion

Indian courts have steadfastly guarded the sanctity of documentary proof by insisting that secondary evidence remain a narrowly confined exception to the best-evidence rule. From analogue photocopies in J. Yashoda to gigabytes of data in Anvar P.V., the judiciary’s touchstone has been authenticity, buttressed by procedural safeguards. Litigants seeking to rely on secondary evidence must therefore present a cogent narrative of loss or unavailability, authenticate the copy, and demonstrate scrupulous compliance with statutory prerequisites. In the absence of such rigor, the door to secondary evidence remains—by design—firmly shut.

Footnotes

  1. Indian Evidence Act, 1872, ss. 61–66.
  2. J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730.
  3. VIJAY v. Union of India, (2023) SCC OnLine SC *-*.
  4. Ashok Dulichand v. Madahavlal Dube, (1975) 4 SCC 664.
  5. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
  6. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
  7. Mukesh Kumar alias Motta v. State of Haryana, 2010 SCC OnLine P&H ****.
  8. Rakesh Mohindra v. Anita Beri, (2015) 4 SCC ****.
  9. State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118.
  10. Maharana Mahendra Singh Mewar v. Arvind Singh, 2015 SCC OnLine Raj ****.
  11. Shankar Lal v. Civil Judge (Jr. Div.) Shahpura, 2006 SCC OnLine Raj ****.
  12. Nilkanth v. Hanumant, 2021 SCC OnLine Bom ****.
  13. Pawan Kataria v. Ardeep Kumar Batta, 2016 SCC OnLine Del ****.
  14. State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254.
  15. Indian Stamp Act, 1899, s. 35.
  16. D. Munirathnam Reddy v. S. Gunabhushana Naidu, 2016 SCC OnLine Hyd ****.
  17. Information Technology Act, 2000, s. 65B.
  18. Sonu alias Amar v. State of Haryana, (2017) 8 SCC 570.
  19. Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107.