Secondary evidence is the evidence that is produced from the original document or substituted for an original. The Hon’ble Supreme Court of India, in M. Chandra v. M. Thangamuthu (2010) 9 SCC 712 vide Paragraph 30, while discussing the admissibility of Secondary Evidence, held that:
“…It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible…”
The apex Court further held that “…The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. The exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party…”
In that background, this article seeks to analyse the admissibility and the procedure necessary for adducing Secondary Evidence within the matrix of the Indian legal system in general and the Indian Evidence Act in particular. Evidence as defined in the Indian Evidence Act 1872, includes oral and documentary evidence.
The documentary evidence includes primary and secondary evidence. Primary evidence is the document itself and is the best evidence. But at times, the document itself, i.e., the original document, is unavailable for various reasons. To address such absence of the original document the concept of secondary has been introduced in the Act. This absence of the original document before the court prepares the logical context in which secondary evidence may be admitted as evidence to serve the interest of justice.
Simply put, according to Section 63 Indian Evidence Act, 1872, secondary evidence is either a copy, oral account, counterpart of the original. The test for any document sought to be admitted as Secondary Evidence is that it needs to be proved that the copy is made from the original. And it must also be remembered that the list of documents mentioned explicitly as secondary evidence under Section 63 is held not to be exhaustive. The documents expressly stated to be secondary evidence under section 63 are:
The Principle
Hon’ble Supreme Court, in Tukaram S. Dighole 2010 (4) SCC 329, has held that:“…The general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved…”. Therefore, the governing principle of a party seeking to give secondary evidence before being allowed to do so must prove to the court that he cannot produce the original for no fault of his.
Section 65 of the Evidence Act describes the circumstances in which a particular kind of Secondary Evidence may be given in particular circumstances and the same are presented below;
Scheme u/s 66 of the Evidence Act to enable adducing of Secondary Evidence
Section 66 of the Evidence Act deals explicitly with the issue of the need to give Notice to the adverse party to produce a document as evidence because proving the contents of the document is of critical importance within the Scheme of adducing secondary evidence. The Section distinguishes between three scenarios regarding the need to give Notice to produce documents.
The first scenario is when a previous notice under any law, including provisions of CPC, is already given, then there is no need to give Notice.
The second scenario is when no notice is prescribed under any law then discretion is conferred on the court to require a reasonable notice to be given to the adverse party.
And the third scenario is when the court exempts the party from the need to give Notice to produce documents When the document to be proved is itself a notice; when the nature of the case is such that the adverse party must know that it will be required to produce it; when it appears or is proved that the adverse party has obtained the possession of the original by fraud or force; when the adverse party or his agent has the original in the court; when loss of the document has been admitted by adverse party or his agent and finally when the person in possession of the document is out of reach of or not subject to the process of the court.
The fundamental procedural rule for the presentation of documentary evidence is laid down in Order VII rule 14 CPC which makes it obligatory upon the Plaintiff to produce documents upon which he sues or relies. Rule 2 of Order VII requires the Plaintiff to state in whose power and possession a particular document is relied upon by him.
The principle as to the admissibility of a document was succinctly put by Hon’ble Supreme Court, in its judgment dated 07.08.09 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, as to the admissibility of documentary evidence, held that: “…It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to crossexamination in a court of law…”.
The most important procedural aspect of secondary evidence is that once a document is admitted without objection at the trial, its admissibility cannot be challenged at the appellate stage. So it must be borne in mind that whenever a party seeks to introduce secondary evidence the opposite party must object to its admission promptly by way of any defence available to it otherwise an opportunity lost at that stage may prove fatal later on. As was held in P.C Pushottamdas v. S. Perumal (AIR 1972 SC 608) that ‘the omission to object, at trial stage as to the admissibility of the document, is fatal because once a document is properly admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence’
Admissibility of Certified Copies
Three types of copies are mentioned in clauses 1-3 of section 63. The first types of copies are certified copies and their correctness is presumed under section 79 of the Act but a certified copy is not proof of the execution of the document admitted in evidence. But the two other types of copies are those made from original through mechanical process and copies compared with such copies; and those made from or compared with the original.
The certified copies which are held to admissible in evidence are as follows: Certified copy of registered will AIR 1970 P&H 182 (186), Certified copies of lenders licenses AIR 1993 kant. 29 (37), Certified copies of hundreds of loose sheets of accounts said to be the copies of the cash book prepared by the auditor at the time of his audit AIR 1966 Orissa 189, Certified copy of deed of Wakfnama AIR 1969 Mysore (103). The copies which are held to be not admissible are where the document is a copy of copy and the person who made that copy is not produced the document is inadmissible in evidence AIR 157 Raj. 89 (91) D.B, statement recorded by police officer u/s 161 CrPC as its not a public document AIR 1984 Guj. 69, certified as to date of birth on basis of entry in register of certain church AIR 1989 Cal. 120. (S.P Tyagi’s Law of evidence Vol. 2 pp. 2073-2074)
True copies, unless shown to be made and compared with the original, shall not be deemed to be secondary evidence AIR 1968 Cal. 532. Photocopies can be admissible only after examining the original record, AIR 1994 SC 591, Photocopy of original attested by notary then no need to produce notary as witness when his attestation shows that he has compared the document with the original then it is admissible in evidence, AIR 1992 P&H 145 therefore as far as photocopies are concerned they are not admissible till their genuineness is confirmed, AIR 1976 Orissa 236 (238). Regarding admissibility of newspaper report, advertisement and messages it was held that newspaper reports by themselves are not evidence of the contents thereof.
Such reports are only hearsay evidence, AIR 1994 SC 1733 (1750). A news item in a newspaper containing an interview by the press is not admissible, (1988) 1 SCC 668. Tape recorded conversation can be admissible only as corroborative evidence of such conversation deposed to by any of the parties to the conversation 2000 CriLJ 1125 (Delhi). A document required to be compulsorily registered under the registration act and not registered cannot be received in evidence to prove transaction, however under the provisions of registration act it can be received for collateral purposes 2004 (3) ALD 66. (S.P Tyagi’s Law of evidence Vol. 2 pp. 2077- 2078)
Now having seen what Secondary Evidence is, under what circumstances a particular type of Secondary Evidence may be adduced and the admissibility and inadmissibility of the different types of secondary evidence. In conclusion, it can be said that secondary evidence will be admissible only in exceptional cases, which is also the judicial mandate. Therefore the parties that seek to admit secondary evidence in place of original must keep the things discussed in this article in mind, otherwise it may cause great hardship to a party, which is genuinely not able to produce the original, for no fault of his in adducing the Secondary Evidence. And the adversary must promptly object to any such move because no objection would prove fatal.
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