This article is written by Anvita Datla, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

When there is a case going on, the court abides by certain rules and principles for providing proof. Generally, it is both the parties who offer proof within the said rules recommended by law. These said rules are mentioned under the Indian Evidence Act, 1872 which guides the court of law in terms of submitting proof in Court of law or of different types with the exception of wherein it has been avoided by law for now. Section 61 of the act says that either primary or secondary evidence can be used to prove an argument in court. Section 3 of the same act also says that any document for that matter elaborated on the lines of any letters or figures may be used for recording purposes.

Secondary evidence in the Evidence Act

Secondary evidence refers to the evidence which either has been replicated or replaced in place of the primary document. For example, a photocopy or picture of a primary document would still be acceptable in court in the form of secondary proof. The court usually prefers original evidence and discourages the use of secondary evidence at all times. This is known as the Best Evidence Rule. However, in certain situations, the court does allow the use of such evidence.

This can be divided into;

• Verified duplicates as covered by the provisions.
• Duplicates reproduced from the primary document by a mechanical process.
• Duplicates made from or compared with the original.
• Counterparts of documents as against the parties who did not execute them.
• Oral statements of the contents of a document given by some person who has himself seen it.

Section 76 entails the provisions for certified copies. Further classification has placed copies under photography, lithography, cyclostyle, and carbon copies under the same domain

A photograph is a photograph of something. In other words, if a photograph is a photograph of a subject, it follows that the subject exists .”Digital images, such as digital photographs, are pictures recorded by a digital camera. The images recorded by a digital camera are stored on a memory card. The images on this card can be loaded and stored on a computer to be printed out for later use.

• A Photostat duplicate of a letter is a piece of auxiliary proof, and it will, in general, be surrendered in the event that the first is exhibited to have been lost or not quickly available, for a given explanation, it isn’t persuading verification in itself of the genuineness of the substance contained in that. 
• A duplicate of a mark is a piece of auxiliary proof inside the significance of Section 63 (2) of this Act, being a duplicate made by a mechanical interaction that guarantees its rightness. 
• A composed duplicate of an alleged bundle deed without charging that the file falls under one of the classes recognized in Section 63 of this Act, couldn’t be held to be optional proof.

When can secondary evidence related to documents be given?

Secondary proof of the presence, condition, or substance of a record might be presented in the accompanying examples, as indicated by Section 65 of the Indian Evidence Act: 

• When the first is shown or gives off an impression of being in the belonging or force of the individual against whom the record is tried to be demonstrated, or of any individual past the compass of, or not exposed to, the Court’s cycle, or of any individual legitimately bound to create it, and such individual neglects to do as such in the wake of getting the notification presented in Section 66. 
• When the individual against whom the evidence is made or his agent in interest concedes recorded as a hard copy the presence, condition, or substance of the first.
• At the point when the first has been annihilated or lost, or when the party giving proof of its substance can’t convey it in a reasonable period for any purpose other than his own default or disregard. 
• At the point when the first is of a nature that makes it hard to move. 
• At the point when the first archive is a public report as characterized by Section 74. 
• At the point when the first is a report for which a confirmed duplicate is allowed to be given in proof under this Act or some other enactment in India. 
• At the point when the firsts are composed of countless records or different papers that are hard to examine in court, and the reality to be demonstrated is the amount of the relative multitude of assortments.

Circumstances when notice is not be required in order to render secondary evidence

Secondary proof of the substance of the records alluded to in Section 65 (a), will not be given except when the party proposing to give such optional proof has recently given to the party in whose belonging or force the report is, or to his lawyer or pleader, such notification to deliver it as is recommended by law; and if no notification is endorsed by law, such notification as the Court cobbles together. 

Considering that such notification won’t be needed to convey secondary confirmation in any of the first examples, or in any other situation where the Court considers it fitting to do as such:

• When the archive to be demonstrated is itself a notification. 
• When from the idea of the case, the unfriendly party should realize that he will be needed to create it. 
• When it shows up or is demonstrated that the unfavourable party has gotten ownership of the first by misrepresentation or power. 
• When the unfavourable party or his representative has the first in Court. 
• When the unfavourable party or his representative has conceded to the deficiency of the record; 
• When the individual possessing the report is far off, or not exposed to, the course of the Court.

Admissibility of electronic evidence

There is a major challenge that is faced by the traditional rules for authentication of documentary evidence when it is electronic evidence that is presented. The general rules that are applicable with regard to the presentation of primary and secondary evidence for hard copy paper documents pose a difficulty in application towards electronic evidence. Thus, there was an addition by way of amendment to the Indian Evidence Act, 1872, to include the mechanism of providing a certificate under Section 65(b)(4) for authentication of digital evidence. It was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal that there is a mandate to provide 65(b) (4) certificates for admission of electronic documents if the original document is not provided through documents/ device owner’s personal authentication as a witness.

Latest judgment allowing evidence to be produced without application

In the latest case of Dhanpat v Sheo Ram (Deceased) through Lrs. & Ors., the Supreme Court held that there was no necessity as per the condition of Section 65(c) of the Indian Evidence Act to file an application while adducing secondary evidence. It was also held that there can be no denial by the court to consider secondary evidence on the premise that the application for authorization to lead secondary evidence had not been filed. 

Usually, as per general practice, lawyers file an application when they have to adduce any evidence to lead on record. However, in the present case, the original will had been lost and a copy of the same was filed as secondary evidence. This was objected to by the opposite party since it had not been filed with the application for authorization for producing the document as secondary evidence. 

No case is made when failed to prove the execution of an original document

The High Court followed the ratio in the case of J. Yashoda vs. Smt. K. Shobha Rani and H. Siddiqui (dead) by lrs. vs. A. Ramalingam and came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he had ever handed over the original of the disclaimer letter to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence.

Conclusion

Providing primary evidence in all cases is the general principle of law. However, secondary evidence is also admissible. It is that evidence that can be given in a few instances wherein there is an absence of better evidence. The general principle and law are that secondary evidence cannot be adduced till the time primary evidence is not produced. Secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory. However, an application for leading secondary evidence by a party is not precluded.

References

1. https://indiankanoon.org/doc/1915814/#:~:text=61.,primary%20or%20by%20secondary%20evidence
2. https://indiankanoon.org/doc/1031309/
3. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3534022
4. https://indiankanoon.org/doc/186146/
5. https://indiankanoon.org/doc/1728975/
6. https://indiankanoon.org/doc/487818/
7. https://indiankanoon.org/doc/112805442/
8. https://indiankanoon.org/doc/172105947/
9. https://indiankanoon.org/doc/9381542/
10. https://indiankanoon.org/doc/1462464/
11. https://indiankanoon.org/doc/953942/

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