Primary And Secondary Evidence
In order to prove a case in Court of Law, evidences are tendered by both the parties and certain codified rules are applicable to make sure that the evidence is tendered within the bounds prescribed by law. The Indian Evidence Act, 1872 is the law which governs the tendering of evidence in judicial proceeding whether Civil, Criminal or of any other nature except wherein it has been excluded by law for the time being.
As mentioned above, The Indian Evidence Act, 1872 (Hereinafter referred as the Act) is the law governing the evidence and Section 3 delineates the definition of “Evidence”.
“Evidence”- “Evidence” means and includes
1. all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2. all documents including electronic records produced for the inspection of the court, such documents are called documentary evidence.
Chapter V of the “Act” which comprises of Section 61 to 90A deals with the aspect of Documentary Evidence. As mentioned above all the documents including electronic records produced for the inspection of the court are called documentary evidence. The general rule is that the best evidence should be brought before the Court; however, there may be circumstances when because of many a reason best evidence cannot be brought before the court e.g. when the original document is lost or destroyed etc. Therefore, how a document is to be proved when it’s original is not in existence or in the possession of the party who wishes to rely upon it.
Section 61 of the Indian Evidence Act, 1872 mentions that the contents of the documents may be proved either by primary or by secondary evidence. Here, the obvious question arises what is primary and secondary evidence. Section 62 of the Act defines “Primary Evidence”. It posits that the document itself produced for the inspection of the court is called “Primary Evidence”. The two explanations appended with the section further elaborate the concept.1
Section 63 of the Act defines Secondary Evidence which in broad terms means Certified copies, photocopy made by mechanical process which in themselves ensures accuracy of the copy, copies made from or compared with the original, counter parts of documents as against the parties who did not execute them and lastly oral accounts of the contents of a document given by some person who has himself seen it.
Section 64 of the Act mentions the documents must be proved by primary evidence except in cases mentioned in Section 65 of the Act.
CIRCUMSTANCES UNDER WHICH SECONDARY EVIDENCE MAY BE TENDERED
Though the rule is that the best evidence is to be tendered. However, there are some circumstances under which secondary evidence can be given and these circumstances have been mentioned under Section 65 of the Indian Evidence Act, 1872. However, before tendering the secondary evidence of any document the court has to be satisfied regarding the conditions mentioned in Section 65 of the Act, before any secondary evidence is allowed to be tendered. The court has to see that the salutary provisions of Section 65 are not abused. The Hon’ble Supreme court of India has held to the effect that “the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that 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”.
Though discussion on Electronic Record is a distinct concept warranting an entire discussion; however on a parting note some reference to it becomes necessary. Special provisions were inserted in the Act in the year 2000 regarding admissibility of electronic records in the form of Sections 65A and 65B. Section 65A mentions that the contents of electronic records may be proved in accordance with the provisions of section 65B3. Section 65 B which is an exhaustive provision provides for the procedure and the formalities to prove the contents of an electronic record. Broadly, it mentions that a certificate complying the terms of Section 65 B (4) purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device is to be tendered. The provisions regarding the electronic records have filled in lacunae in today’s digital age where electronic records have become part of crucial evidences in court of law.