Section 63 of the Indian Evidence Act 1872 defines Secondary Evidence, according to Section 63 of the said Act, copies made and compared with the original or photostat copies may be treated as secondary evidence. Section 65 of the Indian Evidence Act, speaks about in which cases Secondary Evidence relating to documents may be given. Section 66 lays down the procedure to be followed in the admitting Secondary Evidence as allowed by Section 65 of the Indian Evidence Act 1872.
What is Secondary Evidence? (Section 65)
According to Section 63 of the said Act Secondary Evidence means and includes -
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.
Cases in which secondary evidence relating to documents may be given (Section 65) -
According to Section 65 of the Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1India to be given in evidence2;
(g) 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 collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
Rules as to notice to produce (Section 66) -
Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
1. When the document to be proved is itself a notice;
2. When from the nature of the case, the adverse party must know that he will be required to produce it;
3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
4. When the adverse party or his agent has the original in Court; 5. When the adverse party or his agent has admitted the loss of the document; 6. When the person in possession of the document is out of reach, or not subject to, the process of the Court.
Admissibility of Electronic Records
Examination of Witnesses | Indian Evidence Act 1872
When Secondary Evidence is Admissible?