The Evidentiary Status of Photostat Copies: A Critical Analysis of Secondary Evidence under the Indian Evidence Act, 1872

Introduction

The law of evidence is fundamentally governed by the "Best Evidence Rule," a tenet which mandates that the best or primary evidence of which a case in its nature is susceptible must be produced. In the context of documentary evidence, this rule, encapsulated in Section 64 of the Indian Evidence Act, 1872 ("the Act"), requires that documents must be proved by primary evidence, i.e., the original document itself. However, the Act provides for exceptional circumstances where secondary evidence may be adduced. A recurring and contentious issue before Indian courts has been the classification and admissibility of photostat copies as secondary evidence. This article seeks to critically analyze the legal position of photostat copies under the Indian evidentiary framework. It argues that the proposition "photostat copies are not secondary evidence" is an oversimplification. The more accurate legal position, fortified by a consistent line of judicial pronouncements, is that while photostats can qualify as secondary evidence under Section 63(2) of the Act, their admissibility is not automatic and is strictly contingent upon the fulfillment of foundational pre-requisites under Section 65 and rigorous proof of their authenticity.

The Statutory Framework: Primary v. Secondary Evidence

The Primacy of Primary Evidence

The Indian Evidence Act, 1872, creates a clear hierarchy between primary and secondary evidence. Section 62 defines primary evidence as the document itself produced for the inspection of the court. Section 64 establishes its primacy by stating, "Documents must be proved by primary evidence except in the cases hereinafter mentioned." This principle ensures that the court has access to the most reliable and unaltered form of a document, minimizing the risks of error, fraud, or misinterpretation. As noted by the Punjab & Haryana High Court, this is an application of the "Best Evidence Rule" which is a universal principle of evidence law (Surinder Kaur Petitioner v. Mehal Singh And Others, 2013).

Defining Secondary Evidence: Section 63

Section 63 of the Act provides an exhaustive definition of secondary evidence, listing five categories. For the purpose of photostat copies, the most relevant provision is Section 63(2), which includes: "Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". A photostat is undeniably a copy made through a mechanical process. However, the crucial qualifying phrase is "which in themselves insure the accuracy of the copy." The judiciary has consistently held that while a photostat machine is a mechanical process, it does not *per se* guarantee accuracy, as manipulation is possible. The Punjab & Haryana High Court in Surinder Kaur (2013) observed that while every photostat is prepared by a mechanical process, its accuracy is not a given, and therefore its admissibility is subject to proof that it is a correct copy of the original.

Conditions for Admissibility: Section 65

Section 63 merely defines what constitutes secondary evidence; it does not confer a right to adduce it. The gateway for the admission of secondary evidence is Section 65, which enumerates the specific circumstances under which it may be given. The most frequently invoked grounds are clause (a), where the original is shown to be lost or destroyed, and clause (c), where the original is in the possession of the adverse party who has failed to produce it after notice. The Supreme Court in J. Yashoda v. K. Shobha Rani (2007) unequivocally held that the conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted. If the pre-conditions are not met, the question of whether a photostat copy qualifies under Section 63 becomes moot. Furthermore, certain clauses of Section 65, such as (e) and (f), explicitly restrict secondary evidence to "a certified copy of the document, but no other kind of secondary evidence," thereby precluding the admission of a photostat copy in those specific situations (Smt. Rekha Rani Petitioner v. Vineet Kumar And Others, 2013).

Judicial Scrutiny of Photostat Copies

The Imperative of Foundational Evidence

The most significant hurdle for a party seeking to introduce a photostat copy is the requirement to lay a proper foundation. This is not a mere procedural formality but a substantive requirement to ensure the integrity of the evidence. Based on a catena of judgments, this foundation consists of two essential pillars:

1. Fulfilling a Condition under Section 65: The party must first prove the existence of circumstances enumerated in Section 65. For instance, under clause (a), a mere assertion of loss is insufficient; cogent evidence must be led to prove the existence of the original and its subsequent loss or destruction (Surinder Kaur, 2013).
2. Authenticating the Copy: The party must then prove that the photostat is a true and accurate reproduction of the original. The Supreme Court in M. Chandra v. M. Thangamuthu (2010) held, "The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original." This often requires explaining the circumstances under which the copy was made, who made it, and from where the original was obtained for copying (Ashok Dulichand v. Madhavlal Dube, as cited in Smt. Rekha Rani, 2013).

The Supreme Court in J. Yashoda (2007) further clarified that if the original document itself is inadmissible, its secondary evidence cannot be introduced. This prevents parties from circumventing evidentiary rules by tendering copies of otherwise invalid documents.

Inherent Suspicion and the Risk of Manipulation

Courts have consistently approached photostat copies with a degree of caution, recognizing their susceptibility to manipulation. The Punjab & Haryana High Court, in a widely cited observation, stated:

"Photostat copies of documents can be prepared by manipulation and presented as original. Therefore, it would normally be unsafe on the mere asking to allow production of photostat copies as secondary evidence. These are admittedly not certified copies of the original and it is not clear as to whether these are copies of the original." (Mukesh Kumar Alias Motta v. State Of Haryana, 2010; Jawahar Lal v. Surinder Singh And Others, 2013)

This judicial skepticism stems from the practical reality that modern technology can be used to fabricate documents that appear authentic. Arguments have been raised in court that photostats can be created through "cut, copy and paste" methods, making it imperative to demand strict proof of their genuineness (Balwant Kumar v. Nirmal Devi And Another, 2012). This suspicion is heightened when the party seeking to produce the copy cannot explain its provenance or the circumstances of its creation (Ashok Dulichand, 1975).

Distinguishing Admissibility from Probative Value

A critical distinction in the law of evidence is between the admissibility of a document and its probative value. Admissibility is a question of law decided by the judge when the evidence is tendered. Probative value, on the other hand, refers to the weight or credibility the court attaches to the evidence once it is admitted. Even if a court grants permission to lead a photostat copy as secondary evidence, its evidentiary worth is not automatically established. The opposing party retains the right to challenge its authenticity and reliability during the trial. As held in Surinder Kaur (2013), "even when the permission to produce photostat copy of a document as secondary evidence is granted, it is open for the parties to argue about the probative value attached to it." The court will ultimately assess the copy's worth based on all the evidence on record, and if it is found to be a suspicious document, no probative value will be attached to it.

Conclusion

The legal position under the Indian Evidence Act, 1872, is clear and consistent: photostat copies are not inherently inadmissible, but they are not automatically admissible either. To treat them as secondary evidence, a party must navigate a rigorous two-stage process. First, a case must be made out under one of the clauses of Section 65 of the Act, explaining why the primary evidence cannot be produced. Second, and equally important, a strong foundational basis must be established to prove the authenticity of the photostat copy and to demonstrate that it is an accurate reproduction of the original. The judiciary's cautious approach, rooted in the potential for manipulation, serves as a vital safeguard for the "Best Evidence Rule" and the integrity of the judicial process. Therefore, the statement that photostat copies are not secondary evidence should be understood not as an absolute bar, but as a reflection of the high evidentiary threshold they must surmount before being accepted by a court of law.