Certified Copy vs Photocopy under the Bharatiya Sakshya Adhiniyam, 2023: Why Only One Will Do

Both are copies. Both are secondary evidence. Both reproduce the original accurately — a photocopy arguably more accurately, since it reproduces the appearance of the document and a certified copy reproduces only its text. Yet for a whole class of documents the photocopy is inadmissible and the certified copy is not merely admissible but presumed genuine. The reason has nothing to do with accuracy of reproduction, and understanding it explains a great deal about how documentary evidence actually works.

1. Both Are Secondary Evidence

A certified copy falls under clause (i). A photocopy falls under clause (ii), photocopying being a mechanical process which in itself ensures the accuracy of the copy.

So far the two are on the same footing. Both are enumerated kinds of secondary evidence, and neither is more accurate than the other as a matter of reproduction. The divergence comes at the next stage.

2. Where They Diverge — Section 60

Section 60 does not merely say when secondary evidence may be given; for these two grounds it says what kind. Under grounds (e) and (f), a certified copy and no other kind of secondary evidence is admissible.

The consequence is absolute. Where the original is a public document, a photocopy of it is inadmissible — not weak, not to be viewed with caution, but incapable of being received at all. This is not a question of weight and cannot be cured by evidence about the accuracy of the copy.

3. The Comparison

4. Why the Law Prefers the Certified Copy

The preference has nothing to do with fidelity of reproduction. Four reasons explain it, and each is independent.

4.1 The original cannot be produced

Public records are not released from official custody. A litigant cannot obtain the original judgment, the original register or the original Gazette, and a rule requiring production of the original would make public documents unprovable.

The certified copy is therefore not a second-best substitute for something the party could have produced; it is the only form in which the document can ever come before a court. The law that prefers it is not relaxing the best evidence rule but recognising a category where the rule cannot operate.

4.2 The copy is made under statutory duty

A certified copy is issued by an officer bound by Section 75 to give a true copy, in a prescribed form, on payment of a fee. He acts under a duty, his certification is an official act, and a false certification exposes him to consequences.

A photocopy is made by whoever operated the machine. Nobody vouches for it, nobody is answerable for it, and nothing distinguishes an honest copy from a manipulated one.

4.3 The provenance is established by the copy itself

This is the reason that matters most in practice and is least often stated.

A certified copy carries on its face the answer to the question where did this come from. The certificate identifies the office, the officer and the date, and the seal authenticates the source. The court knows it came from the official record.

A photocopy answers nothing. It shows what some document looked like at some time. Whether that document was the original, whether it was complete, whether the copy is of the whole, and who made it are all unanswered — and a party tendering a photocopy must supply each of these by evidence.

4.4 The presumption

The words are mandatory. Under Section 2(1)(l), a fact the court is directed to presume is regarded as proved unless and until it is disproved, so the burden of disproof lies on the party challenging the copy.

No such presumption attaches to a photocopy in any circumstances.

5. What a Photocopy Must Overcome

Where the original is private, a photocopy is admissible, and the divergence disappears at the level of admissibility. But three requirements attach that a certified copy escapes entirely.

5.1 A ground under Section 60 must be proved

5.2 It must be shown to have been made from the original

Clause (ii) of Section 58 admits copies made from the original by a mechanical process. A photocopy of a photocopy is not within it, and where a party produces a copy several generations removed he must bring it within the second limb of clause (ii) — a copy compared with a mechanical copy — or within clause (iii), by proving the comparison.

Somebody must therefore depose that he made the copy, or saw it made, from the original, and say when and where. A copy produced from a file with no account of its origin has not been shown to be within the clause at all.

5.3 Completeness

Section 33 requires enough of a document to be produced for its meaning to be understood. A photocopy that omits the reverse of a page, a schedule, an endorsement or an intermediate sheet may convey something quite different from the document it purports to reproduce, and the witness should be asked whether the copy reproduces the whole.

6. Weight, Where the Photocopy Is Admissible

A photocopy properly admitted is not discounted merely for being a copy. But where the genuineness of the document is contested rather than merely its terms, the photocopy is markedly weaker, and the reasons are worth setting out because they decide such cases.

• Pen pressure and line quality are not reproduced, and these are what reveal a traced or forged signature.
• Ink differences vanish. A photocopy renders every ink as black, so an interpolation made later in a different pen becomes invisible.
• Erasures and chemical removal disturb the paper fibres and change the surface texture; none of this survives copying.
• The sequence of strokes — whether a signature crosses a typed line or vice versa, and therefore whether text was added after signing — cannot be examined.
• The paper itself — its age, watermark and whether pages match — is not available.
• Alteration of the copy is undetectable. A photocopy can be assembled from parts of different documents and the join does not show.

None of this applies to a certified copy in the same way, for a reason worth noticing: a certified copy is not ordinarily tendered to prove the appearance of a document. It proves the contents of an official record, and the officer's certificate vouches for the correspondence.

7. Timing of the Objection

The two situations produce objections of different classes, and the difference decides when the point must be taken.

Under the practice recommended in Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1, the document is marked subject to the objection and the objection is decided in the judgment. The objection must therefore be taken at tender but need not be decided then.

8. Certified Copies Under Other Laws

Ground (f) of Section 60 refers to a document of which a certified copy is permitted by this Adhiniyam or by any other law in force in India, and several statutes make their own provision.

The Registration Act, 1908 provides for copies of registered documents from the registers, and such copies are receivable to prove the contents of the original. This is the route by which the great majority of property transactions are proved, and it is the reason 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 court records. Banking evidence legislation provides for certified copies of bankers' books, subject to its own conditions.

Each of these brings the copy within ground (f) and within clause (i) of Section 58, and a photocopy of any of them is correspondingly inadmissible.

9. The Electronic Position

Two developments are worth noting.

Certified copies issued electronically. Public records are increasingly maintained and issued in electronic form, and an electronically issued certified copy is a certified copy provided it satisfies Section 75 or 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 providing for legal recognition of electronic records and signatures.

The classification question shifts for electronic records. Where the record is electronic, the prior question is whether the output is primary evidence under the Explanations to Section 57 — a record stored in multiple files, produced from proper custody and undisputed, or held in automated storage. Where an Explanation applies, the primary-secondary distinction that governs this whole topic does not arise, and the certificate under Section 63(4) is what matters instead.

10. Practical Points

1. Ask first whether the original is a public document. If it is, obtain a certified copy and do not tender a photocopy at all.
2. Remember the second limb of Section 74. A registered deed is private, but the registration record of it is public — so a certified copy from the sub-registrar is the route, not a photocopy of the deed.
3. Apply early. Certified copies take time to issue, and discovering at trial that a photocopy is inadmissible leaves no remedy.
4. Check the form of the certified copy — certificate at the foot, date, name, official title, seal — because the presumption in Section 78 is conditional on it.
5. Where a photocopy is the only option, establish the ground under Section 60 by evidence, prove who made the copy and from what, and confirm that it reproduces the whole.
6. Take the objection at tender where a photocopy is produced without a foundation, since the objection is otherwise waived.
7. Where genuineness is contested, press for the original, and establish in cross-examination if an expert has worked only from a copy.

11. The Position Stated Shortly

1. Both are secondary evidence — a certified copy under clause (i) of Section 58, a photocopy under clause (ii).
2. Grounds (e) and (f) of Section 60 permit a certified copy and no other kind, so a photocopy of a public document is inadmissible.
3. The preference is not about accuracy of reproduction. It rests on the impossibility of producing the original, the statutory duty under which the copy is made, the provenance the certificate establishes, and the presumption in Section 78.
4. Section 78 is a mandatory presumption, conditional on the prescribed form, and displaced only by disproof.
5. A photocopy must clear three hurdles — a proved ground under Section 60, proof that it was made from the original, and completeness under Section 33.
6. A photocopy of a photocopy is not within clause (ii), and must be brought within clause (iii) by proof of comparison.
7. Where genuineness is contested, a photocopy loses everything by which tampering is detected, and an expert opinion founded on one is correspondingly weaker.
8. The objection to a photocopy of a private document must be taken at tender; where the original is public, the objection goes deeper and may be pressed at any stage.

12. Related Topics and Provisions