Write note on primary and secondary evidence. Explain 'Secondary evidence'. Under what circumstances is it admissible? What is Secondary evidence? Under what circumstances it can be given? Is uncertified copy of public document admissible if original has been destroyed?

Primary and Secondary Evidence — The Foundation

The Latin maxim vox audita perit, litera scripta manet — a spoken word perishes, but a written word endures — captures the ancient wisdom behind reducing important transactions to writing. The Indian Evidence Act, 1872, and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) together codify the logical consequence of this wisdom: when a matter has been reduced to writing, the writing itself is the best evidence of what it contains, and courts insist upon its production. Section 61 of the Evidence Act (Section 56 of the BSA) opens Chapter V on documentary evidence with a deceptively simple proposition — the contents of documents may be proved either by primary or by secondary evidence. This section merely establishes the portal; the architecture of what primary and secondary evidence are, and under what circumstances the latter may substitute for the former, is constructed by Sections 62 to 65 of the Evidence Act (Sections 57 to 60 of the BSA).

Primary Evidence — The Best Evidence

Section 62 of the Evidence Act (Section 57 of the BSA) defines primary evidence in the most straightforward terms: primary evidence means the document itself produced for the inspection of the Court. It is, as Lord Esher observed in Lucas v Williams (1892 2 QB 116), "evidence which the law requires to be given first." Primary evidence is the highest form of documentary proof because the document itself speaks its own contents without the risk of human error, misreading, or misrepresentation.

The section contains two Explanations that enlarge the meaning of primary evidence:

Explanation 1 deals with two situations. First, where a document is executed in several parts — meaning where parties to a contract each take a complete, duly signed copy — any one of those parts is primary evidence. If A, B, C and D enter into an agreement and each retains a signed original, any one of the four instruments is primary evidence of the document and the party producing one need not account for the non-production of the others. Second, where a document is executed in counterpart — meaning where A signs the copy that goes to B, and B signs the copy that goes to A — each counterpart is primary evidence against the party who executed it, and secondary evidence against the other.

Explanation 2 addresses documents made by a uniform process. Where a number of documents are all made by one uniform process — as in the case of printing, lithography or photography — each is primary evidence of the contents of the rest, but where they are all copies of a common original, they are not primary evidence of the contents of the original. The illustration to the section captures this precisely: a person shown to have been in possession of a number of placards, all printed at one time from one original — any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

The BSA, 2023, has significantly expanded Section 57 by adding four new Explanations dealing specifically with electronic records, reflecting the legislative recognition that primary evidence in the digital age demands a fresh framework. Explanation 4 provides that where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence. Explanation 5 says that an electronic or digital record produced from proper custody is primary evidence unless disputed. Explanation 6 deals with video recordings stored simultaneously in electronic form and transmitted or broadcast — each stored recording is primary evidence. Explanation 7 provides that where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

The governing principle is that documents must be proved by primary evidence. Section 64 of the Evidence Act (Section 59 of the BSA) makes this obligation express: documents must be proved by primary evidence except in the cases hereinafter mentioned. A written document can only be proved by the instrument itself. Lord Tenterden explained the rationale with characteristic plainness: "My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of the written instrument — they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule."

Secondary Evidence — Meaning and Nature

Section 63 of the Evidence Act (Section 58 of the BSA) defines secondary evidence. While the Evidence Act used the phrase "means and includes," indicating a partially exhaustive definition, the BSA, 2023 uses simply "includes," signalling a deliberately non-exhaustive definition that opens the concept to the needs of evolving circumstances. Secondary evidence, in its essence, is evidence which the law permits to be given in the absence of the better evidence — that is, the original — when a proper explanation is given for its unavailability.

Under Section 63 of the Evidence Act, secondary evidence consists of five kinds:

1. Certified Copies (Clause 1): These are copies issued under the provisions of the Act, primarily Sections 76 to 79 of the Evidence Act. Section 76 empowers any public officer having custody of a public document to give, on payment of legal fees, a copy thereof, certified with a certificate that it is a true copy, together with his signature, date, and official seal. The correctness of such a certified copy is presumed under Section 79. It is important to note that a "certified copy" as used in the Act has a technical meaning — it refers to copies issued by public officers under Section 76, not to what is popularly called an attested copy.

2. Copies Made by Mechanical Process (Clause 2): This clause recognises two sub-categories — copies made from the original by mechanical processes that in themselves insure accuracy of the copy, and copies compared with such copies. A photograph or a Xerox copy of the original is secondary evidence under the first part, as the mechanical process eliminates the possibility of human error. Illustration (a) to the section confirms that 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. Illustration (b) further shows that a copy compared with a letter made by a copying machine is secondary evidence if it is shown the machine-made copy was made from the original.

3. Copies Made From or Compared With the Original (Clause 3): This clause deals with manually transcribed copies. A copy transcribed directly from the original is secondary evidence; so is a copy not transcribed from the original but subsequently compared with it. However, as Illustration (c) makes clear, a copy transcribed from a copy and compared only with that intermediate copy — never with the original — is not secondary evidence. The concern is that human error in the first copy may be perpetuated in the second if the comparison never reaches the original.

4. Counterparts (Clause 4): As explained under primary evidence, a counterpart is primary evidence against the party who executed it and secondary evidence against the other parties who did not.

5. Oral Accounts of the Contents by a Person Who Has Seen the Document (Clause 5): A witness who has himself seen — which includes read — the original document may give an oral account of its contents as secondary evidence. The word "seen" and not "read" is deliberately chosen, since documents may include paintings, caricatures and other things that can be seen but not read in the conventional sense. An important limitation: a witness who was told about the contents of a document by someone else, without seeing it himself, cannot give oral account under this clause — such evidence would be mere hearsay. The Privy Council in Ma Mi v Kallander (54 IA 61) set this proposition at rest, holding that evidence that a witness saw the document and heard it read out by someone else was only hearsay as far as the contents were concerned.

The BSA, 2023 adds three new categories under Section 58:

• Clause (vi) — Oral Admissions: The Act explicitly recognises oral admissions as secondary evidence, a category implied by Section 22 of the old Evidence Act but not expressly listed in Section 63.

• Clause (vii) — Written Admissions: Written admissions as to the contents of a document are similarly explicitly recognised.

• Clause (viii) — Evidence of a skilled examiner of numerous documents: Where the original consists of numerous accounts that cannot conveniently be examined in court, the evidence of a person skilled in the examination of such documents is recognised as secondary evidence.

Are the five clauses in order of merit? This question has been addressed definitively. Parke B, in Doeral Gilbert v Ross (1840 19 LJ Ex 210) observed: "I have always understood the rule to be that when a party is entitled to give secondary evidence at all, he may give any species of secondary evidence within his power." The Supreme Court in M Chandra v M Thangamuthu (2010 9 SCC 712) affirmed 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, by oral evidence of the contents, or in another form. However, where the Act prescribes a specific and exclusive kind of secondary evidence — as under Clauses (e) and (f) of Section 65 — no other kind may be tendered.

Circumstances in Which Secondary Evidence May Be Given — Section 65

Section 65 of the Evidence Act (Section 60 of the BSA) is the pivot of the entire regime. It sets out seven specific and exclusive situations in which secondary evidence is admissible. The foundational principle is that a party cannot simply tender secondary evidence at will — the non-production of the original must be first accounted for, and must fall within one of these seven circumstances. The Supreme Court in Roman Catholic Mission v State of Madras (AIR 1966 SC 1457) affirmed, speaking through a Constitution Bench, that two things must be demonstrated: first, that the document was in existence which was capable of being proved by secondary evidence, and second, that a proper foundation has been laid to establish the right to adduce secondary evidence.

Clause (a) — Original in Possession of the Opposite Party

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 any person out of reach of the court's process, or any person legally bound to produce it — and when, after the notice under Section 66 (Section 64 of BSA), such person does not produce it — secondary evidence is admissible. The document need not be in the actual possession; it is enough if it is within the adverse party's power. In Nawab Singh v Inderjit Kaur (AIR 1999 SC 1668), the Supreme Court held that a summary dismissal of an application for secondary evidence was not proper when the plaintiff had alleged the original was in the defendant's custody.

Clause (b) — Existence or Contents Admitted in Writing

When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is to be proved, or by his representative in interest, the written admission is admissible as secondary evidence. This clause must be read with Section 22 of the Evidence Act.

Clause (c) — Original Lost or Destroyed

This is the most practically significant clause. Secondary evidence is admissible 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.

The party must show that the original was in existence, that it has been lost or destroyed, and that he has exhausted all reasonable means in search of it. In Muhammad Zafar v Zahur Husain (1926 49 All 78), the court affirmed that secondary evidence of contents cannot be admitted without the non-production of the original being first accounted for. Where a document containing a will was shown to be eaten by rats, secondary evidence was allowed. Where the original was stated on affidavit to be lost, secondary evidence was permitted. It is significant that the words "lost or not traceable" both enable invocation of secondary evidence — it is not necessary to plead destruction, mere unavailability sufficing.

In cases falling under clause (c), any secondary evidence of the contents is admissible — meaning the party may choose any of the five (or eight, under BSA) kinds of secondary evidence. This is a point of great practical significance, as shall be seen shortly in relation to public documents.

Clause (d) — Original Not Easily Movable

Where the original is of such a nature as not to be easily movable — such as notices painted on walls, tablets in buildings, tombstones, monuments, or marks on boundary stones — secondary evidence is admissible on account of the practical impossibility of producing the original in court. In such cases too, any secondary evidence is admissible.

Clause (e) — Original is a Public Document

This clause is intended to protect the originals of public records from the danger and inconvenience to which they would be exposed by constant production in evidence. When the original is a public document within the meaning of Section 74 of the Evidence Act, secondary evidence is admissible — but only in the form of a certified copy. No other kind of secondary evidence is permissible under this clause.

Clause (f) — Certified Copy Permitted by Law

When the original is a document of which a certified copy is permitted by the Act or any other law in force in India to be given in evidence, secondary evidence is admissible — again only by a certified copy. An instance of "any other law" mentioned in this clause is Section 57 of the Indian Registration Act, 1908, which authorises the Registering Officer to give copies of documents in their custody.

Clause (g) — Numerous Documents

When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection, evidence may be given as to the general result by any person who has examined them and who is skilled in the examination of such documents. This saves public time and is particularly relevant in commercial and banking litigation where thousands of account entries may need to be summarised.

Is an Uncertified Copy of a Public Document Admissible If the Original Has Been Destroyed?

This is the most refined and practically important question in this entire topic, and it has generated considerable judicial discussion.

The general rule under Clause (e) of Section 65 is that when the original is a public document, the only admissible secondary evidence is a certified copy. No uncertified copy, no private copy, no oral account is permissible. The purpose is obvious — public documents enjoy a degree of official reliability and authenticity, and their secondary evidence should be equally reliable, hence the insistence on a certified copy.

However, a critical exception arises when the original public document has been lost or destroyed. The rule that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed. In such a situation, the case simultaneously falls under Clause (c), which provides that when the original is destroyed or lost, any secondary evidence of the contents is admissible.

In Chandreshwar Prasad Narain Singh v Bisheshwar Pratap Narain Singh (1926 5 Pat 777), the courts clearly affirmed that where both the original and the certified copy of a public document were proved to have been lost, the court allowed secondary evidence in the form of an ordinary copy.

The same principle was affirmed in Marwari Kumhar v Bhagwanpuri Guru Ganeshpuri (AIR 2000 SC 2629, 2000 6 SCC 735) where the Supreme Court held that an ordinary copy, not necessarily a certified copy, would be admissible when the original has been lost and a certified copy is also unavailable. The Court cited with approval the position that Clauses (a) and (c) of Section 65 are independent of Clause (f) and that even an ordinary copy would be admissible if the foundational requirements of Clause (c) are satisfied.

However, an important qualification must be noted. The secondary evidence of a lost public document, other than a certified copy, is admissible only upon proof of two things: (1) the loss or destruction of the original, and (2) further proof that no certified copy of the original is available to the party seeking to prove the contents. The court in Syad Pir Shan v Gulab Shah (1878 PR No. 63 of 1878) established this position firmly — so long as the original is in existence, no secondary evidence other than a certified copy is admissible. It is only when both the original and the certified copy have become unavailable that an uncertified copy or other forms of secondary evidence step in.

The position can be stated precisely as follows: an uncertified copy of a public document is admissible as secondary evidence when the original has been destroyed, but only upon the party first establishing that the original is destroyed and that no certified copy is obtainable. The ground for admission is then Clause (c), not Clause (e). Clause (c) is independent of Clause (e), and when a case falls under both (as when a public document is lost), Clause (c) opens the door to any kind of secondary evidence.

Foundational Requirements Before Tendering Secondary Evidence

Throughout the judicial treatment of this subject, several non-negotiable preconditions emerge before secondary evidence can be tendered:

• The party must prove the existence of the original document — a court cannot permit secondary evidence of a document whose prior existence is not established. In Gurdial Kaur v Registrar of Co-op Societies (AIR 2000 PH 82), the Court rejected an application for secondary evidence because there was no evidence on record even of the existence of the original receipts.

• The non-production must be accounted for by bringing it within one of the seven specified clauses of Section 65. No circumstance outside those seven clauses can justify admission of secondary evidence.

• The secondary evidence must be authenticated — it must be shown that the alleged copy is in fact a true copy of the original.

• If secondary evidence is inadmissible because the original document was itself inadmissible for want of registration or stamp, no secondary evidence can rescue it. As the courts have consistently held, secondary evidence cannot be admitted as a substitute for inadmissible primary evidence.

• Objection to reception of secondary evidence must be taken at the time it is tendered, not belatedly. The Supreme Court in Kaliya v State of MP (2013 STPL Web 602 SC) held that if no objection is raised at the time of admission, the party is precluded from raising it at the appellate stage.

The object of the entire law on secondary evidence is not to defeat a party who is genuinely unable to produce a document through no fault of his own. The object of judicial investigation, as a Constitution Bench of the Supreme Court affirmed in Roman Catholic Mission v State of Madras, "is to fathom the truth," and the law, while insisting on the best evidence, permits with proper safeguards the production of secondary evidence when the best evidence is unavailable.