Documentary Evidence under Sections 56 to 60 of the Bharatiya Sakshya Adhiniyam, 2023: Primary and Secondary Evidence and the Best Evidence Rule

Five sections govern how the contents of a document are proved. Section 56 states the two modes, Section 57 defines primary evidence and extends it to electronic records, Section 58 enumerates secondary evidence, Section 59 lays down the rule that documents shall be proved by primary evidence, and Section 60 states the exceptions. Together they give effect to the best evidence rule, and the Adhiniyam has rewritten them substantially to accommodate records that exist in no single physical form.

1. The Scheme

Section	Subject	IEA
56	Proof of contents of documents — primary or secondary evidence	61
57	Primary evidence, with Explanations extending it to electronic and digital records	62
58	Secondary evidence, in eight enumerated categories	63
59	Documents to be proved by primary evidence	64
60	Cases in which secondary evidence relating to documents may be given	65

What is being proved throughout is the contents of a document. Facts about the document — that it exists, that it was executed, that it was delivered, that it was lost — are proved by oral evidence under Section 54, and Sections 56 to 60 have nothing to say about them.

2. Section 56 — The Two Modes

Section 56, BSA — Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

The section is a signpost. It establishes that there are two routes and no others, and Sections 57 to 60 fill in what each consists of and when each is available.

3. Section 57 — Primary Evidence

Section 57, BSA — Primary evidence

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. — Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. — Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

Explanation 3. — Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 4. — Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 5. — Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 6. — Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Section 57 corresponds to Section 62 of the Indian Evidence Act, and the first two Explanations are carried forward unchanged. Explanations 3 to 6 are new, and they are among the most significant additions the Adhiniyam has made.

Their effect is to solve a problem the earlier Act could not. An electronic record has no single physical original. A message exists on the sender's device, on the recipient's device, on one or more servers, and in cached and temporary copies. Under the old scheme every one of these was arguably a copy and therefore secondary evidence requiring a certificate. Explanations 3 to 6 declare that each such file, each simultaneous storage, each automated storage including temporary files, and each of several simultaneous recordings is itself primary evidence.

⚠ Explanation 4 is qualified and the qualification matters

An electronic record produced from proper custody is primary evidence unless it is disputed. The words at the end are the whole of the difficulty. Where the opposite party disputes the record, Explanation 4 ceases to operate and the record falls to be proved as secondary evidence under Section 63, with the certificate under the Schedule. The consequence is that a party relying on Explanation 4 cannot know in advance whether it will avail him, and prudent practice is to obtain the certificate in any event where the record matters.

4. Section 59 — The Rule

Section 59, BSA — Proof of documents by primary evidence

Documents shall be proved by primary evidence except in the cases hereinafter mentioned.

This is the best evidence rule in its statutory form. The document itself is the best proof of what it says, and a party is required to produce it unless he can bring himself within one of the exceptions.

The rationale is not ceremonial. A copy may be inaccurate, a recollection may be mistaken, and a summary may be selective. The original is fixed, complete and available for inspection, and it can be examined for alterations, interpolations and signs of forgery in a way no copy permits.

5. Section 58 — What Secondary Evidence Is

Section 58, BSA — Secondary evidence

Secondary evidence means and includes —

(i) certified copies given under the provisions hereinafter contained;

(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(iii) copies made from or compared with the original;

(iv) counterparts of documents as against the parties who did not execute them;

(v) oral accounts of the contents of a document given by some person who has himself seen it;

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Section 58 corresponds to Section 63 of the Indian Evidence Act. Two categories are new to the list as compared with the 1872 formulation — oral admissions and written admissions are now expressly enumerated as secondary evidence, which they were not before.

The words 'means and includes' are worth noting. The definition is not exhaustive, and material outside the eight categories may qualify, though in practice the enumeration covers almost everything that arises.

6. Section 60 — When Secondary Evidence May Be Given

Section 60, BSA — Cases in which secondary evidence relating to documents may be given

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 64, such person does not produce it;

(b) when the existence, condition or contents of the original have been 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 Adhiniyam or by any other law in force in India to be given in evidence;

(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 collection.

Each ground carries its own consequence as to what kind of secondary evidence may be given, and the section specifies this. Under grounds (a), (c) and (d) any secondary evidence of the contents is admissible. Under ground (b) the written admission is admissible. Under grounds (e) and (f) a certified copy, and no other kind of secondary evidence, is admissible. Under ground (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.

⚠ The foundation must be laid first

The grounds in Section 60 are not assertions to be made in argument; they are facts to be proved. A party relying on loss must prove the loss and the search made for the document. A party relying on non-production must prove that notice under Section 64 was given and not complied with. A party relying on the document being in the possession of a person out of reach must prove that fact. Only when the foundation is established does the secondary evidence become admissible, and a copy tendered without it is inadmissible however genuine it may be.

📖 J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730

Held: Secondary evidence is evidence which may be given in the absence of better evidence which the law requires to be given first, when a proper explanation of its absence has been given. Before secondary evidence of the contents of a document is admitted, the non-production of the original must be accounted for in a manner that brings the case within one of the situations provided for in the statute. Mere production of a photocopy does not entitle a party to rely upon it as secondary evidence.

Ratio: The foundational facts are a condition of admissibility.

📖 H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

Held: Where the original document is available, it has to be produced and proved in the manner prescribed, and secondary evidence cannot be led unless the party satisfies the court that the case falls within one of the statutory exceptions. The party must lay the factual foundation to establish the right to give secondary evidence, and the court must record its satisfaction before permitting it. Non-production of the original without explanation raises an adverse presumption.

Ratio: The court must be satisfied of the foundation and should record that satisfaction before secondary evidence is received.

7. Primary and Secondary Evidence Compared

	Primary evidence	Secondary evidence
Provision	Section 57	Section 58
What it is	The document itself produced for inspection, and the electronic records the Explanations deem primary	Certified copies, mechanical copies, compared copies, counterparts, oral accounts, oral and written admissions, and expert evidence of the general result of numerous accounts
When admissible	Always — it is the rule under Section 59	Only in the cases enumerated in Section 60, and only after the foundation is proved
Notice required?	No	Under ground (a), notice under Section 64 is required
Kind permitted	Not applicable	Depends on the ground — any kind under (a), (c) and (d); a certified copy only under (e) and (f)
Weight	The best proof of contents; alterations and interpolations can be examined	Depends on the kind — a certified copy is nearly as good as the original; an oral account is much weaker

8. Lost or Destroyed Documents

Ground (c) is the most frequently invoked and the one on which most applications turn. It covers three situations — destruction, loss, and inability to produce for any other reason not arising from the party's own default or neglect.

What must be proved is not merely that the document is unavailable but the circumstances of its unavailability. Where destruction is alleged, evidence of how and when it was destroyed is required. Where loss is alleged, the party must depose to where the document was last kept, what search was made, where and by whom, and what enquiries were made of persons who might have it.

The words 'not arising from his own default or neglect' operate as a real limitation. A party who destroyed the document himself, who parted with it carelessly, or who failed to take reasonable care of it cannot rely on the ground, and the court will examine the explanation with corresponding care where the loss is convenient.

Where the ground is established, any secondary evidence of the contents is admissible — a copy, a compared copy, or an oral account by a person who has seen the document. There is no hierarchy among them as a matter of admissibility, though there plainly is as a matter of weight.

9. Photocopies

A photocopy is the commonest form of secondary evidence tendered, and it presents two questions that must be kept apart.

The first is whether secondary evidence is permissible at all — that is, whether the case falls within Section 60 and the foundation has been laid. This is the question on which most photocopies fail. A copy tendered because the party finds it convenient, without any account of the original, is inadmissible.

The second is whether the photocopy qualifies as secondary evidence within Section 58. It does, under clause (ii), as a copy made from the original by a mechanical process which in itself ensures the accuracy of the copy. But this presupposes that it was made from the original, and where that is not established the copy is not within clause (ii) at all — a copy of a copy is not a copy made from the original.

A third question then arises as to weight. A photocopy loses the features on which examination of a disputed document depends — pen pressure, line quality, the sequence of strokes, the nature of the ink, and evidence of erasure or interpolation. Where the genuineness of the document is contested, an opinion founded on a photocopy is markedly weaker than one founded on the original, and this should always be established in cross-examination.

10. Certified Copies

Certified copies occupy a special position. They are secondary evidence under clause (i) of Section 58, but they are the only kind admissible under grounds (e) and (f) of Section 60, and they carry a presumption of genuineness that no other copy enjoys.

The scheme works as follows. Section 74 defines public documents and provides that all other documents are private. Section 75 entitles a person having a right to inspect a public document to a copy certified in the prescribed manner. Section 76 provides that such certified copies may be produced in proof of the contents of the public document or part of it. Section 77 prescribes the modes of proving other official documents, including foreign public documents. And Section 78 permits the court to presume every document purporting to be a certificate, certified copy or other document so certified to be genuine, provided it is substantially in the prescribed form and purports to be executed in the manner directed by law.

The practical consequence is considerable. Where a document is a public document, the party need not produce the original at all — indeed he ordinarily cannot, since public records are not released — and a certified copy is both admissible and presumed genuine. Judgments, decrees, registered documents, revenue records and Gazette notifications are all proved in this way, and the process is so routine that it is easy to forget that it rests on an exception to the best evidence rule.

11. Electronic Records

Electronic records fall within Sections 56 to 60 as documents, but two further provisions govern them and must be read alongside.

Section 61 provides that nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record merely on the ground that it is an electronic or digital record, and that such a record shall, subject to Section 63, have the same legal effect, validity and enforceability as any other document.

Section 63 deals with admissibility of electronic records, and sub-section (4) requires a certificate in the form of the Schedule where the record is tendered otherwise than as primary evidence. Part A discloses the hash value and is completed by the person in charge of the device; Part B carries an expert declaration.

The relationship is therefore three-cornered. If the output falls within an Explanation to Section 57, it is primary evidence and no certificate is needed. If it does not, it is secondary evidence, and both the conditions in Section 60 and the certificate under Section 63(4) must be satisfied. Section 61 stands behind both, preventing the objection that a record is inadmissible simply because it is electronic.

12. The Position Stated Shortly

Sections 56 to 60 govern the contents of documents only. Facts about a document are proved orally under Section 54.
Section 59 states the best evidence rule — documents shall be proved by primary evidence except in the cases mentioned.
Explanations 3 to 6 of Section 57 are new, and they deem multiple files, simultaneous storage, simultaneous video recordings and automated storage including temporary files to be primary evidence.
Explanation 4 is qualified. A record from proper custody is primary evidence only unless disputed, and a dispute throws it back to Section 63.
Section 58 enumerates eight kinds of secondary evidence, and oral and written admissions are now expressly included.
Section 60 lists seven grounds, and each determines what kind of secondary evidence is permitted.
The foundation must be proved, not asserted, and the court should record its satisfaction before receiving secondary evidence.
Certified copies are the only secondary evidence permitted for public documents, and they carry a presumption of genuineness under Section 78.

13. Related Topics and Provisions

Topic or provision	Connection
Oral Evidence vs Documentary Evidence	The three rules governing the relationship between the two
Kinds of Secondary Evidence	The eight categories in Section 58 examined in detail
Electronic or Digital Record as Primary Evidence	The Explanations to Section 57 examined in detail
Documentary Evidence — General Principles	Execution, contents and truth, and the modes of proof
Sections 61 and 63 and the Schedule, BSA	Admissibility of electronic records and the certificate
Sections 64 and 65, BSA	Notice to produce, and proof of signature and handwriting
Sections 74 to 78, BSA	Public documents, certified copies and the presumption of genuineness
Sections 94 to 103, BSA	Exclusion of oral evidence by documentary evidence