In the law of evidence, the authenticity and reliability of documents play a crucial role in ensuring fair adjudication. The Indian Evidence Act, 1872 lays down clear rules regarding the type of evidence that courts should rely upon. While primary evidence—the original document itself—is always preferred, there are situations where producing the original is impossible or impracticable. In such situations, the Act allows secondary evidence to be admitted under specific conditions.
Understanding what secondary evidence is, when it is admissible, and how courts treat such evidence is essential for every law student, advocate, and judicial aspirant.
Meaning of Secondary Evidence
Secondary evidence refers to copies, substitutes, or oral accounts of the contents of a document when the original document (primary evidence) is unavailable.
According to Section 63 of the Indian Evidence Act, secondary evidence includes the following:
- Certified copies of the document.
- Copies made from the original by mechanical processes (e.g., photocopies, carbon copies).
- Copies made by comparison with the original.
- Counterparts of documents when the original is executed in multiple parts.
- Oral accounts of the contents of a document given by a person who has seen it.
Thus, not all secondary evidence is admissible automatically. It must fall within the categories stated in Section 63 and must meet the conditions of Section 65.
Primary Evidence vs. Secondary Evidence
- Primary Evidence (Section 62):
The original document produced for inspection. It is the best evidence and has the highest evidentiary value. - Secondary Evidence (Section 63):
Evidence that attempts to prove the contents of a document when the original is unavailable due to legally valid reasons.
Courts prefer primary evidence unless there is a reasonable and justified cause for not producing the original.
When is Secondary Evidence Admissible? (Section 65)
Secondary evidence is admissible only under certain specific circumstances expressly laid down in Section 65 of the Evidence Act. These situations are:
1. When the Original is Lost or Destroyed (Section 65(c))
If a party proves that the original document has been:
- Lost
- Destroyed
- Cannot be found after a diligent search
…then secondary evidence becomes admissible.
Example:
A company’s old records were destroyed in a fire. Certified copies or photocopies may be admitted.
2. When the Original is in Possession of the Opposite Party (Section 65(a))
If the other party:
- Possesses the original document, and
- Fails or refuses to produce it despite notice under Section 66
…secondary evidence may be allowed.
Example:
If A gives B a notice to produce the original contract and B fails, A may produce a photocopy.
3. When the Original is in Possession of a Third Party (Section 65(a))
If the original is with someone outside the court’s jurisdiction and cannot be easily produced, secondary evidence can be admitted.
4. When the Original is a Public Document (Section 65(e))
Public documents include:
- Government records
- Court judgments
- Gazette notifications
In such cases, certified copies are admissible, and there is no need for originals.
5. When the Original is of Such a Nature that It Cannot Be Easily Moved (Section 65(d))
If a document is physically immovable or very bulky, secondary evidence (such as photographs or certified copies) is acceptable.
Example:
An inscription on a wall or a stone tablet.
6. When the Original Consists of Numerous Documents (Section 65(g))
When a large number of documents form part of a single transaction (e.g., entries in business records), secondary evidence in the form of general accounts prepared from them can be admitted.
7. When the Original is a Certified Copy (Section 65(f))
If the law permits certified copies, then such certified copies themselves become acceptable secondary evidence.
Types of Secondary Evidence Accepted by Courts
Courts may accept the following types of secondary evidence when conditions under Section 65 are satisfied:
- Photocopies and xerox copies
- Carbon copies
- Certified copies
- Computer printouts (Section 65B)
- Email and electronic records (with certificate)
- Oral evidence by someone who has personally seen the contents of the original
However, courts treat these with caution, especially uncertified photocopies, because they can be easily tampered with.
Evidentiary Value of Secondary Evidence
Secondary evidence does not carry the same weight as primary evidence. Courts admit it only when:
- Proper foundation is laid for its admission
- The absence of the original is satisfactorily explained
- It is authentic, reliable, and relevant
Key Principles Governing Evidentiary Value
1. Foundation Must Be Laid
The party must convincingly establish:
- Why the original cannot be produced
- What efforts were made to find the original
- That the secondary evidence truly represents the contents of the original
2. Proof of Authenticity
Secondary evidence must be supported with additional proof, such as:
- Affidavits
- Witness testimony
- Circumstantial evidence
Courts are cautious because secondary evidence can be manipulated.
3. Certified Copies Have Strong Evidentiary Value
Certified copies of public documents have high reliability and are admissible without further proof.
4. Xerox Copies Have Weak Evidentiary Value
Unless verified and proven genuine, photocopies are treated with suspicion.
The Supreme Court in H. Siddiqui v. A. Ramalingam (2011) held that:
Mere production of a photocopy is not enough; its execution and accuracy must be proved.
5. Electronic Records Require Section 65B Certificate
In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court held that electronic evidence without a 65B certificate is inadmissible, except in rare exceptions related to devices in court custody.
Importance of Secondary Evidence in Legal Proceedings
Secondary evidence ensures justice is not defeated because an original document:
- Is lost
- Is destroyed
- Is withheld
- Cannot be produced
The law balances the need for reliable evidence with the practical realities of record-keeping and document preservation.
Mnemonic to Remember the Grounds for Admitting Secondary Evidence: “L-P-M-P-N-V-C”
L – Lost or destroyed original
P – Possession of opposite party who fails to produce it
M – Massive or immovable documents
P – Public documents (certified copies allowed)
N – Not easily moveable (inscriptions, stones, walls)
V – Volume of documents too large (business records)
C – Certified copies permitted by law
Mnemonic phrase:
“Lost Papers Must Prompt New Valid Copies.”
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