Q. What is secondary evidence? In what cases and after compliance of which legal formality such evidence can be given? Discuss elaborately? [MPCJ 2012]

Ans. As to what constitutes the secondary evidence, it is answered under Sec. 63 of the Evidence Act which is relevant law on the point. The following list of secondary evidence has been provided:-

  • Certified copies as given under section 76 of the IEA.
  • Copies made from the original by mechanical process which in themselves ensure the accuracy of the copy. An illustration (a) appended to the section 63 of the act further clarifies that such copy necessarily has to be made from original document itself. A copying machine is considered as a contemplated nature of mechanical process. The Hon\\\’ble Apex Court has also held in Y. Narasimha Rao Vs Y. Venkata Lakshmi , 1991 SCC (3) 451 that photocopy of the document falls in the category of secondary evidence. But at the same time, it is relevant to mention that Hon\\\’ble Apex Court has also held in Smt. J. Yashoda vs Smt. K. Shobha Rani (2007) 5 SCC 730 that applicant seeking to produce photocopy as a secondary evidence has to file an affidavit to explain the circumstances under which the Photostat copy was prepared from the original document and as to who was in possession of such original document at the time its photograph was made.
  • Such copies which are compared with another copy if the later one was made from the original document itself and through mechanical process. An illustration (b) appended to the section 63 of the act further clarifies as what type of copies may be put to use for the purpose of  comparing.
  • All such copies which are made from the original document itself without proofing anything further.
  • All such copies which are although not made from original document yet are compared with the original document. An illustration (c) appended to the section 63 of the act further explains that as and when any copy is compared with original it acquires the status of secondary evidence.
  • Under section 63(5) of the act the most remarkable among the types of secondary evidence has been recognised. That is, the oral evidence of the content of the document by the witness who has himself seen the original document. The expression who has seen has to equated with who has read in the context of a writing.

Thus, when the question is whether evidence sought to be given in a particular case is or not the right kind of secondary evidence then the recourse of section 63 of the act has to be taken. The above definition of secondary evidence in section 63 of the act is exhaustive as the Section declares that secondary evidence \\\”means and includes\\\” and then specifically enumerates the kinds of secondary evidence. All such categories of secondary evidence are of equal ranking and do not constitute themselves the order of merit or degree. That is, once a person is entitled to give secondary evidence then he may lead any category of the secondary evidence without accounting for the preceding category. But, if it is shown that better secondary evidence was withheld then the court may depending upon the fact and circumstances of the case raise an adverse presumption.

Permitted circumstances for leading secondary evidence:- Section 64 of the Evidence Act incorporates principal of best evidence and insists that the content of document must be proved by primary evidence except to the extent as allowed under section 65 of the act. Such exceptional circumstances are specifically enumerated and strictly regulated under section 65 of the act. At the very first instance, it needs to be stated the party willing to produce the secondary evidence has to lay down factual foundation to establish the right to give secondary evidence. Such factual foundation includes proofing of the fact that an original admissible document of the proposed secondary evidence was in existence at any point of time, there is plausible reason for not producing original document, that the proposed copy is in fact a true copy of the original document etc. The Hon\\\’ble Apex court has held in Jagmail Singh Vs Karamjit Singh, 2020 (SC) 398 that unless such foundational evidence to account for the non-production of primary evidence given it is not permissible for the court to allow a party to adduce the secondary evidence. But, it is equally relevant to mention that Hon\\\’ble Apex court has held in Dhanpat Vs Sheo Ram, [Civil Appeal No. 1960 Of 2020, Judgment dated 19/03/2020] that an application for permission to lead secondary evidence is not always necessarily required because requisite foundational fact to lead secondary may be even proved in the plaint or in evidence.

Section 65 of Indian Evidence Act specifically mentions following Circumstances when secondary evidences are admissible:-

  • When the original document is in the possession of opposite party and he is not presenting the same despite of giving due notice as prescribed in section 66 of the act.
  • When the existence, condition or contents of the original have been proved to be admitted in writing by the opposite party.
  • When original is lost or destroyed or the party is not able to produce without his own fault.
  • When original is not movable.
  • When it is public document under section 74, then certified copy of the same.
  • When certified copy of the original documents is deliverable in evidence

(vi) 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 then such general result of the documents may be given by any person who has examined such document and skilled in the examination of such documents.