Secondary Evidence: Refusal to Produce & Photostat Copies

Problem I — The Dilemma of Refusing to Produce the Document

The Governing Rule

A sues B on an agreement. A gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A then leads secondary evidence of its contents. Now, B seeks to produce the very original document — either to contradict the secondary evidence tendered by A, or to show that the agreement is not stamped. The question is: can B do so?

The answer is an emphatic no — and both the Indian Evidence Act, 1872 and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) are unequivocal on this point. Section 164 of the Indian Evidence Act (Section 59 of the BSA, 2023) provides in terms that when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. The illustration appended to Section 164 is, in fact, the very situation posed in this problem — and it declares that B cannot produce the document to contradict A's secondary evidence or to show that the agreement is not stamped. The legislature inserted this illustration precisely to answer this question, making the position unmistakably clear.

The Rationale

The reason behind this rule is rooted in a principle of fair play and the doctrine against "blowing hot and cold." A party who has refused to comply with a lawful notice to produce a document cannot, in the same breath, turn around and use that very document when it suits his purpose. As the English Court of Common Pleas put it sharply in Doe v Cockell (1834) 6 CP 527 — "You must either produce a document when it is called for, or never." The law does not permit a party to use a document as both a sword and a shield at his convenience. B's refusal is treated as a forfeiture of his right to use the document.

This rule also has an important relationship with Section 114, Illustration (g) of the Evidence Act (Section 119, Illustration (g) of the BSA, 2023), which permits the court to draw a presumption that evidence which could be but is not produced would, if produced, be unfavourable to the person who withholds it. Thus, not only does B lose the right to produce the document, the court may also presume that the original, had it been produced, would have gone against B's case. Together, these provisions impose a heavy penalty on a party who plays games with documentary evidence.

The Two-Sided Coin: Section 163

Section 164 must always be read alongside Section 163 of the Evidence Act (Section 58 of the BSA, 2023), which addresses the converse situation. If B had produced the document in response to A's notice, and A had inspected it, then A would be bound to tender it as evidence if B required him to do so — A cannot cherry-pick what he looks at and then suppress inconvenient material. Together, Sections 163 and 164 form what may be called the complete charter of fairness in the production of documents — if you produce when called upon, you protect yourself; if you refuse, you are penalised by disqualification.

Can the Court Permit B to Produce the Original?

Section 164 itself carves out two exceptions: B may still produce the original with (i) the consent of the other party (A), or (ii) the order of the Court. The court retains a residual discretion here, but it is a discretion to be exercised with extreme caution. In ordinary circumstances, courts do not exercise this discretion in favour of a party who has deliberately refused to produce the document, as that would defeat the entire purpose of the provision. Judicial intervention under Section 165 of the Evidence Act (Section 165 of BSA, 2023) may, of course, allow the Judge to order production of any document in the interest of discovering the truth, but that power is hedged by the caveat that the judgment must be based only on facts that are relevant and duly proved.

BSA Corresponding Provision

Under the BSA, 2023, the position is the same. The corresponding provision is Section 59, which uses identical language: a party who refuses to produce a document after notice cannot use it as evidence except with the consent of the other party or the order of the Court. The illustration is likewise retained verbatim.

Problem II — Unattested Photostat Copy of a Lost Document

Framing the Legal Question

Here, a complainant seeks to prove his title. He produces an unattested Photostat copy of a document and grounds his application for its admission as secondary evidence on the plea that the original has been lost. The question is whether this unattested Photostat copy can be received as secondary evidence.

This question requires the court to navigate two distinct but equally important inquiries: first, whether the conditions for receiving secondary evidence have been made out; and second, whether an unattested Photostat copy qualifies as a permissible form of secondary evidence.

Step One — Laying the Foundation

Before any secondary evidence can be admitted, the proponent must first lay a proper foundation. As the Supreme Court held in H Siddiqui v A Ramalingam (2011) 4 SCC 240, secondary evidence cannot be admitted unless the non-production of the original is accounted for in a manner that brings the case within one of the specified clauses of Section 65 (Section 60 of BSA). Specifically, two things must be established: (i) that the original document existed, and (ii) that it has been lost or cannot be produced through no fault of the party.

The plea of loss of document is governed by Section 65, Clause (c) of the Evidence Act (Section 60, Clause (c) of BSA, 2023). This clause permits secondary evidence when the original has been destroyed or lost, or when the party offering evidence of its contents cannot produce it for a reason not arising from his own default or neglect. It is not sufficient to simply assert that the original is lost — the court requires some foundational evidence to show that the document existed and that a diligent search has been conducted. A mere assertion on affidavit will suffice in straightforward cases, as held in Sanatan Mohanty v Baidhar Rout (AIR 1986 Ori 66), but there must be evidence on record to support the loss. In Ashok Dulichand v Madhavlal Dube (AIR 1975 SC 1748), the Supreme Court held that there must be some explanation as to where the original is — a mere production of a photocopy without any account of the original is not permissible.

Step Two — Does an Unattested Photostat Copy Qualify?

Once the foundational requirement is satisfied, the next question is whether a Photostat copy — that too unattested — falls within any of the permissible forms of secondary evidence defined in Section 63 of the Evidence Act (Section 58 of the BSA, 2023).

Section 63 defines secondary evidence as including five species. The one most relevant here is Clause (2): copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy. A Photostat or xerographic copy is produced by a mechanical process — specifically, the process of photography or reprography — which by its very nature ensures accuracy in reproduction. As Illustration (a) to Section 63 explicitly states: "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."

This is a critical point. Unlike a handwritten or typed copy under Clause (3), a mechanically produced copy does not require comparison with the original to qualify as secondary evidence. The mechanical accuracy of the process itself substitutes for the comparison. A Photostat copy, being produced by the same mechanical principle as photography, falls under this clause. Attestation — in the ordinary sense of a human certifying it — is therefore not an independent prerequisite for admissibility under Clause (2).

The Supreme Court in M Chandra v M Thangamuthu (2010) 9 SCC 712 settled this point by holding that if secondary evidence is admissible, it may be adduced in any form in which it may be available — whether by production of a copy, duplicate copy of a copy, oral evidence of the contents, or in any other form. This reaffirms that there is no hierarchy of merit among the five species of secondary evidence.

The Crucial Qualification — Authentication

However — and this is where the unattested Photostat copy faces its real legal hurdle — the courts have consistently held that a Photostat copy by itself does not automatically become secondary evidence. The party producing it must authenticate it with foundational evidence that the alleged copy is in fact an accurate copy of the original. As observed in Kaliya v State of MP (2013 STPL Web 602 SC), the secondary evidence must be authenticated by foundational evidence that the alleged copy is indeed a true copy. The mere filing and marking of a document as an exhibit does not mean it is proved.

In Himatsingka Seide Ltd v Shambappa Basappa (2010 Cr LJ 1057), the court held that a Photostat or xerox copy by itself will not become secondary evidence unless it is shown that it is an accurate copy of the original. In the present case, since the document is unattested and no certificate or endorsement authenticates its accuracy, the complainant must produce oral evidence — perhaps through the person who made the copy, or through someone who has seen the original — to establish that the copy is a faithful reproduction.

The Stamp Duty Dimension

An important additional consideration arises in title documents: if the original was required to be stamped or registered and was not, no secondary evidence of its contents can be given. Section 35 of the Stamp Act and the Indian Registration Act create a bar that secondary evidence cannot overcome. As the courts have repeatedly held, secondary evidence cannot be a substitute for inadmissible primary evidence — where the original document would itself have been inadmissible for want of registration or stamp, the secondary copy is equally inadmissible. This is a threshold question the court must address even before examining the quality of the Photostat copy.

The Verdict

Pulling these threads together: an unattested Photostat copy of a lost document can be admitted as secondary evidence provided the party:

Establishes that the original existed and has been duly accounted for as lost through no fault of his own;
Provides foundational evidence authenticating the copy as an accurate reproduction of the original;
Satisfies the court that the original document, had it been produced, would have been admissible (i.e., that there is no bar under the Stamp Act or Registration Act).

If the complainant meets these three conditions, the unattested character of the copy is not fatal to its admissibility — attestation by a notary or officer is not a mandatory requirement under Clause (2) of Section 63, as long as authenticity is otherwise established. The absence of attestation goes to the weight of the copy, not its admissibility, provided the court is otherwise satisfied of its accuracy.

The Punjab and Haryana High Court in Hari Singh v Shish Ram (AIR 2003 PH 150) illustratively held that it is a sine qua non for the party producing a Photostat copy to show that the original was in existence and could not be produced, and that photographic evidence was allowable under one or the other exceptions of Section 65. Summary dismissal of such an application, without giving the party an opportunity to lay the proper foundation, was held to be improper.