Certified Copies as Secondary Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Sections 58, 60, 76, 77 and 78

A certified copy is secondary evidence, and yet it is treated with a confidence extended to no other copy. It requires no proof of how it was made, it carries a statutory presumption of genuineness, it dispenses with proof of execution, and for public documents it is the only secondary evidence the law will receive. Understanding why it occupies this position, and where the privilege stops, disposes of a great deal of routine documentary practice.

1. The Chain of Provisions

Five sections operate together, and they are best seen as a chain.

The chain produces a self-contained scheme. Section 74 identifies the class; Section 75 gives the right to a copy; Section 76 makes the copy admissible; Section 78 makes it presumptively genuine; and Section 60 makes it the only route available.

2. What Makes a Copy 'Certified'

The expression has a technical meaning and does not cover every copy somebody has attested.

Four elements are required and each is checked when the copy is tendered.

1. A public officer having custody of the document must issue it. A copy issued by somebody without custody is not a certified copy.
2. A certificate at the foot of the copy that it is a true copy of the document or of the part copied.
3. Dated and subscribed by the officer with his name and official title.
4. Sealed, where the officer is authorised by law to use a seal.

3. What Is a Public Document

The first limb covers what one would expect: judgments, decrees and orders, the records of courts and tribunals, legislative proceedings, notifications, official reports, and the records of public officers acting in their official capacity.

The second limb is the one that matters most in practice and is regularly overlooked. Public records kept in any State of private documents are themselves public documents. A sale deed executed between two individuals is a private document; the record of it maintained in the registration office is a public record of a private document, and a certified copy of that record is admissible as a public document.

The consequence is considerable. Registered documents, revenue records recording private transactions, and records of private instruments kept in official registries all fall within Section 74 even though the underlying instrument is private. This is why a certified copy from the registration office is the standard method of proving a registered sale deed, and why a photocopy of the same deed is inadmissible.

4. Why Certified Copies Are Privileged

Four features distinguish a certified copy from every other kind of secondary evidence, and together they explain the treatment it receives.

It is made under a statutory duty. The officer issuing it is bound by Section 75 to give a true copy, and issuing a false one exposes him to consequences. The guarantee is institutional rather than personal.

It carries a presumption. Section 78 permits the court to presume genuineness, which no other copy enjoys. The party tendering it need not call the officer who made it or prove the comparison.

It substitutes for an original that cannot be produced. Public records are not released from official custody. The original is not merely inconvenient to obtain; it is unobtainable, and a rule requiring its production would make public documents unprovable.

It dispenses with proof of execution. Where a document is public, its execution need not be proved in the way Sections 65 to 71 require for private documents. The certified copy establishes the record, and the record establishes the act.

5. Certified Copies Under Other Laws

Ground (f) of Section 60 refers to a document of which a certified copy is permitted by the Adhiniyam or by any other law in force in India. Several statutes make their own provision, and the copies they authorise are within the ground.

The Registration Act, 1908 provides for copies of registered documents from the registers, and such copies are receivable for the purpose of proving the contents of the original document. This is the route by which the great majority of property transactions are proved in Indian courts, and it is why the loss of an original sale deed is far less serious than the loss of an unregistered agreement.

The Companies Act, 2013 provides for certified copies of documents filed with the Registrar. The Code of Civil Procedure, 1908 and the criminal procedure legislation provide for certified copies of the records of courts. Banking and evidence legislation makes provision for certified copies of bankers' books, subject to their own conditions. Each of these brings the copy within ground (f) and within clause (i) of Section 58.

6. What a Certified Copy Does Not Establish

The privileges attaching to certified copies are considerable, and they are easily over-read. Four limits should be kept in view.

6.1 It does not prove the truth of the contents

A certified copy of a document establishes what the document says. It does not establish that what the document says is true. A certified copy of a statement recorded in some proceeding proves that the statement was made and recorded; whether the statement was accurate is a separate question, and the statement remains hearsay unless a provision makes it evidence of its truth.

This is the same limitation that attaches to any document, but it is easily forgotten with certified copies because the presumption of genuineness lends them an air of authority they do not deserve on this point.

6.2 The presumption is of genuineness, not of correctness

Section 78 permits the court to presume that the certified copy is what it purports to be — a true copy issued by the officer who purports to have issued it. It says nothing about whether the entry copied is correct. A certified copy of a revenue record is presumed to be a true copy of the record; whether the record correctly states who owns the land is an entirely different question, and revenue entries confer no title.

6.3 It is still secondary evidence

A certified copy is classified as secondary evidence under Section 58(i), and its admissibility still depends on a ground under Section 60. In practice grounds (e) and (f) are almost always available where a certified copy is in question, so the requirement is satisfied automatically — but the classification matters where a party seeks to use a certified copy of a private document that is not a public record, in which case grounds (e) and (f) do not apply and some other ground must be established.

6.4 The presumption is rebuttable

Section 78 raises a 'shall presume' presumption, which under Section 2(1)(l) stands unless and until it is disproved. A party may show that the copy was not issued by the officer named, that it does not correspond to the record, that the record itself has been tampered with, or that the copy is not substantially in the prescribed form. What he cannot do is simply deny it and put the other party to proof.

7. Certified Copies in Electronic Form

Public records are increasingly maintained and issued electronically, and two questions arise.

The first is whether an electronically issued certified copy is a certified copy at all. It is, provided it satisfies the requirements of Section 75 or of the special law under which it is issued — the certificate, the date, the officer's name and title, and the seal or its electronic equivalent. The Information Technology Act, 2000 provides for electronic signatures and for the legal recognition of electronic records, and a copy authenticated by the electronic signature of the issuing officer answers the description.

The second is whether the certificate under Section 63(4) and the Schedule is required in addition. Where the copy is tendered as a printout of an electronic record and does not fall within an Explanation to Section 57, it is secondary evidence of an electronic record and the certificate applies on its own terms. Where it falls within an Explanation — most obviously Explanation 4, a record produced from proper custody and not disputed — it is primary evidence and the question does not arise.

Section 78 and Section 63 are addressed to different things, and a party should be clear which he is invoking. Section 78 presumes the genuineness of the certification; Section 63 governs the admissibility of an electronic output. A certified copy issued electronically may need both.

8. Practical Points

1. Obtain certified copies early. They take time to issue, and a party who discovers at the trial that his photocopy of a registered deed is inadmissible has left it too late.
2. Check the form. The presumption under Section 78 is conditional on the copy being substantially in the prescribed form. A copy without the certificate at the foot, without the officer's title, or without the seal where one is required does not attract it.
3. Establish that the document is public, and where it is a private document use the second limb of Section 74 — the public record of it — rather than the instrument itself.
4. Do not confuse genuineness with correctness. A certified copy of a revenue entry proves the entry; the entry proves possession and assertion, not title.
5. Where the copy is of part of a document, Section 75 expressly permits certification of a part, but Section 33 requires enough to be produced for the meaning to be understood.
6. Where a certified copy is challenged, the burden lies on the challenger to disprove genuineness, and he must lead material rather than merely deny.

9. The Position Stated Shortly

1. A certified copy is secondary evidence under Section 58(i), but it is the strongest kind.
2. For public documents it is the only kind permitted, under grounds (e) and (f) of Section 60. A photocopy of a judgment or a registered deed is inadmissible.
3. Four elements are required — issue by an officer having custody, a certificate at the foot, date and subscription with name and official title, and a seal where authorised.
4. An attested copy is not a certified copy, and attracts none of the privileges.
5. The second limb of Section 74 is the important one. Public records of private documents are public documents, which is how registered instruments are proved.
6. Section 78 raises a 'shall presume' presumption of genuineness, conditional on the copy being substantially in the prescribed form, and rebuttable only by disproof.
7. Genuineness is not correctness. The presumption goes to the copy, not to the truth of what the record states.
8. A certified copy does not prove the truth of the contents, which remains a question of hearsay and its exceptions.

10. Related Topics and Provisions