Secondary Evidence is an important concept under the Indian Evidence Act, 1872, particularly when the original document—known as primary evidence—cannot be produced before the court. The Act primarily emphasizes the production of primary evidence under Section 64; however, Section 65 provides exceptions where secondary evidence may be submitted. In modern legal practice, this provision plays a vital role in ensuring justice even when originals are lost, destroyed, or cannot be accessed due to unavoidable circumstances. Understanding the scope, nature, and instances of admissibility of secondary evidence helps law students, advocates, and judicial officers in effectively handling documentary evidence.
Meaning and Nature of Secondary Evidence
According to Section 63 of the Indian Evidence Act, secondary evidence includes certified copies, copies made by mechanical processes, counterparts of documents, and oral accounts of the contents of a document given by someone who has seen it. Secondary evidence essentially acts as a substitute for primary evidence when the latter is unavailable. However, such evidence must meet strict legal requirements because it is considered less reliable than primary evidence.
Secondary evidence is not admitted as a matter of right; it requires the establishing of foundational facts such as loss, destruction, or custody with the adverse party. The courts thoroughly scrutinize secondary evidence to prevent fraud, tampering, and manipulation. For this reason, secondary evidence must be authentic, credible, and produced only after the conditions of Section 65 are satisfied. The purpose of permitting secondary evidence is to avoid injustice caused when an original document is beyond reach due to genuine reasons, ensuring that procedural requirements do not obstruct substantive justice.
Circumstances Under Which Secondary Evidence is Admissible
The Indian Evidence Act under Section 65 outlines specific circumstances where secondary evidence is legally admissible. The first circumstance is when the original is in possession of the opposite party who refuses to produce it despite a notice under Section 66. In such cases, secondary evidence becomes admissible to prevent any misuse by the opposite party. Secondly, if the original is lost or destroyed, and its absence is not due to the fault of the party seeking to produce secondary evidence, courts permit secondary proofs such as photocopies or oral accounts.
Another ground is when the original is not easily movable or is of such a nature that it cannot be physically produced, such as large records or public documents. Further, when the original consists of numerous accounts or entries, and producing all of them is inconvenient, summaries prepared in the usual course of business may be introduced as secondary evidence. For public documents, certified copies under Section 76 are treated as secondary evidence but hold strong admissibility. Additionally, documents such as electronic records may be produced through printouts or copies using the requirements of Section 65B, ensuring digital authenticity. These provisions collectively ensure that documentary evidence does not fail merely due to non-availability of the original.
Judicial Approach and Evidentiary Value of Secondary Evidence
Courts in India adopt a cautious and balanced approach while admitting secondary evidence. They require strict proof that the original is unavailable and that the party seeking to introduce secondary evidence has acted in good faith. Courts also emphasise that producing secondary evidence does not automatically prove the contents of a document; its authenticity must still be independently established. In cases such as H. Siddiqui v. A. Ramalingam, the Supreme Court stressed that secondary evidence must be reliable, accurate, and free from suspicion.
The evidentiary value of secondary evidence thus depends on the credibility of the document and the trustworthiness of the circumstances under which it is presented. If it appears fabricated or inconsistent with established facts, courts may reject it outright. However, if admitted and found credible, secondary evidence can carry significant weight and may even decisively influence the outcome of litigation. The judiciary, therefore, ensures a balance between legal procedure and equitable justice by allowing secondary evidence only when necessary and justified.
Illustration (Example)
Suppose A enters into a written contract with B, but later a dispute arises. When the case goes to court, A is expected to produce the original contract. However, A’s office suffers a fire accident, and the original document gets destroyed. A still possesses a photocopy of the contract, and email exchanges containing the scanned copy. In this case, A can present the photocopy as secondary evidence under Section 65(c) by proving that the original was destroyed without any fault on his part. Once the court is satisfied regarding the loss, the photocopy may be admitted to establish the terms of the contract.
Mnemonic to Remember the Circumstances of Secondary Evidence
Use the mnemonic “LIMPS-N-E”:
- L – Lost or destroyed original
- I – In possession of opposite party
- M – Massive documents not easily movable
- P – Public documents (certified copies)
- S – Summaries of voluminous records
- N – Notice to produce ignored (Section 66)
- E – Electronic records (Section 65B compliance)
This mnemonic helps quickly recall all the circumstances under Section 65 where secondary evidence becomes admissible.
About lawgnan
If you are a law student, judiciary aspirant, or legal practitioner seeking clarity on the admissibility of documents when originals are unavailable, understanding Secondary Evidence under the Indian Evidence Act is essential. Visit Lawgana.in to access expertly drafted legal notes, exam-oriented explanations, case laws, and simplified interpretations of complex legal principles. Our platform empowers you with high-quality learning materials designed to strengthen your conceptual foundation and improve your answer-writing skills. Stay ahead in your legal journey by exploring well-structured guides, updated legal content, and practical insights—all crafted to support your academic success and professional growth.
