Kinds of Secondary Evidence under Section 58 of the Bharatiya Sakshya Adhiniyam, 2023: The Eight Categories and the Conditions in Section 60

Secondary evidence is what a party offers when he cannot produce the document itself. Section 58 says what may be offered; Section 60 says when it may be offered; and the two must be satisfied together. A party who has the right kind of secondary evidence but no ground for using it is in no better position than one who has a ground and nothing to produce, and applications fail at both points with equal regularity.

1. The Two Requirements

Secondary evidence is admissible only where two conditions coincide.

1. The material must be secondary evidence within Section 58. The section enumerates eight kinds, and the definition is expressed as 'means and includes'.
2. The case must fall within one of the grounds in Section 60, and the ground must be proved and not merely asserted. This is the foundation.

A third requirement operates in some cases. Under grounds (e) and (f) of Section 60, only a certified copy is admissible, so the ground itself restricts which of the eight kinds may be used.

2. The Eight Kinds

Section 58 corresponds to Section 63 of the Indian Evidence Act. Two of the categories are new: oral admissions and written admissions were not enumerated as secondary evidence in the earlier Act, and their inclusion settles a question that had produced argument.

The words 'means and includes' indicate that the enumeration is not exhaustive, though in practice it covers nearly everything that arises.

3. Clause (i) — Certified Copies

A certified copy is the strongest form of secondary evidence, and it occupies a special position for three reasons.

It is issued under a statutory scheme. Section 75 entitles a person having a right to inspect a public document to a copy certified in the prescribed manner, with an endorsement that it is a true copy, dated and subscribed by the officer with his name and official title and sealed where the officer is authorised by law to use a seal.

It carries a presumption. 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, and to presume that the officer signing it held the official character he claims.

It is the only secondary evidence permitted for public documents. Under grounds (e) and (f) of Section 60, where the original is a public document or a document of which a certified copy is permitted by law, a certified copy and no other kind of secondary evidence is admissible. A photocopy of a judgment is inadmissible; a certified copy is both admissible and presumed genuine.

4. Clause (ii) — Mechanical Copies

Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.

The rationale is that where the copying is done by a machine rather than by a person, human error in transcription is eliminated. Photocopies, scans, photographs of a document and printed impressions all fall here, as do carbon copies made at the time of writing.

Two conditions are built into the clause and are regularly overlooked.

The copy must have been made from the original. A photocopy of a photocopy is not a copy made from the original, and it is not within clause (ii) at all. Where a party produces a copy several generations removed, he must either bring it within clause (iii) as a copy compared with the original, or accept that it is not secondary evidence of the enumerated kinds.

The process must be one that in itself ensures accuracy. This is satisfied by ordinary photographic and reprographic processes. It is not satisfied by a transcription, a retyping or a summary, however careful, because those depend on the accuracy of a person and not of a machine.

The second limb — copies compared with such copies — permits a second-generation copy where it has been compared with a mechanical copy, and it is the route by which a copy of a photocopy may be received where the comparison is proved.

5. Clause (iii) — Copies Made From or Compared With the Original

This is the residual copy category and covers manual copies. Two situations are within it: a copy made from the original, and a copy compared with the original.

Where a copy is tendered under this clause, the party must prove the making or the comparison. This means calling the person who made the copy or who compared it, and having him depose that he did so and that the copy corresponds. Without that evidence the copy is not shown to be within the clause, and it is not admissible merely because it looks like a copy.

The clause is of considerable practical importance for old records where no mechanical copy exists, and for office copies of correspondence, where the copy retained was written or checked against the original at the time.

6. Clause (iv) — Counterparts

Counterparts of documents as against the parties who did not execute them.

The clause must be read with Explanation 1 to Section 57, and the two together produce a symmetry that is easy to miss. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, that counterpart is primary evidence as against the parties who executed it, and secondary evidence as against those who did not.

The reasoning is straightforward. A party who signed a counterpart is bound by what he signed, and the counterpart bearing his signature is the document itself so far as he is concerned. A party who did not sign it never adopted it, and as against him it is merely a copy of what the other side signed.

The commonest application is a lease executed in counterparts, where the lessor signs one part and the lessee the other and the parts are exchanged. Each holds the part the other signed, and each part is primary evidence against its signatory.

7. Clause (v) — Oral Accounts

Oral accounts of the contents of a document given by some person who has himself seen it.

This is the weakest form of secondary evidence and the one on which the best evidence rule bears most heavily, but it is genuinely necessary. Where a document has been destroyed and no copy was made, an oral account by somebody who read it is the only evidence available, and the alternative is that the transaction cannot be proved at all.

Two limits are built into the clause. The witness must have himself seen the document — a person who was told what it said is giving hearsay about a document, not an oral account of it. And what he gives is an account of the contents, which means he must be able to say what it said, and not merely that a document of some description existed.

As to weight, an oral account of a document is worth what the witness's memory is worth, and courts assess it accordingly. It is markedly stronger where the witness read the document repeatedly, where he acted on it, where he can give its substance rather than its general effect, and where his account is corroborated by the conduct of the parties. It is very weak where he saw the document once, long ago, and gives only a general impression of what it contained.

8. Clauses (vi) and (vii) — Oral and Written Admissions

These two categories are new to the enumeration. The Indian Evidence Act did not list admissions as secondary evidence, and their inclusion in Section 58 settles a question that had been open.

Where a party has admitted the contents of a document, his admission may be proved as secondary evidence of those contents. This works together with ground (b) of Section 60, which permits secondary evidence where 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.

The relationship between clauses (vi) and (vii) and ground (b) of Section 60 deserves care. Ground (b) is confined to admissions in writing. An oral admission is a kind of secondary evidence under clause (vi), but it does not by itself supply a ground under Section 60; the party must establish some other ground — loss, non-production after notice, or one of the rest — before the oral admission may be used.

9. Clause (viii) — Numerous Accounts

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.

This clause pairs with ground (g) of Section 60, and the two operate together. Where the originals consist of numerous accounts or documents that cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection, evidence may be given of that general result by a person who has examined them and who is skilled in such examination.

The clause is used constantly in commercial litigation, in proceedings involving banks and financial institutions, and in prosecutions for economic offences, where the material may run to thousands of pages of ledgers and vouchers. What is produced is not the accounts but the conclusion of somebody who went through them.

Three limitations attach and are frequently the subject of objection. The witness must be skilled in the examination of such documents, and the foundation must be laid as for any expert. What he may depose to is the general result, not particular entries — a party who wants to prove a specific transaction must produce the document recording it. And the originals must be available for inspection by the other side, since it would be intolerable for a party to rely on a summary of material the opponent has never seen.

10. Matching the Kind to the Ground

Section 60 does not merely say when secondary evidence may be given; in several cases it says what kind. The matching is set out in the section and is worth having in one place.

11. The Foundation

Whichever kind of secondary evidence is offered, the ground must be established by evidence before the material is received.

What the foundation consists of depends on the ground. For loss, evidence of where the document was kept, when it was last seen, what search was made, by whom and where, and what enquiries were made. For non-production, proof that notice under Section 64 was given in the prescribed manner and was not complied with. For possession by a person out of reach, evidence of who holds the document and why he is beyond the process of the court. For a public document, proof that the document falls within Section 74.

12. Electronic Records

Section 58 applies to electronic records as it does to other documents, but the question of whether secondary evidence is required at all is answered first by the Explanations to Section 57.

Where the output falls within Explanation 3, 4, 5 or 6, it is primary evidence and Section 58 does not arise. Where it does not — or where Explanation 4 has been displaced because the record is disputed — the output is secondary evidence, and two things must then be satisfied: a ground under Section 60, and the certificate prescribed by the Schedule to Section 63(4), with the hash value in Part A and the expert declaration in Part B.

A printout of an electronic record is ordinarily a copy made by a mechanical process within clause (ii), so the kind of secondary evidence presents no difficulty. What presents difficulty is the certificate, and the practical rule is that a party relying on an electronic record which the other side may dispute should obtain the certificate whether or not he expects to need it.

13. The Position Stated Shortly

1. Two requirements must coincide — the material must be a kind of secondary evidence under Section 58, and the case must fall within a ground under Section 60.
2. Section 58 enumerates eight kinds, and oral and written admissions are new to the list.
3. A certified copy is the strongest kind and the only one permitted for public documents, and it carries a presumption of genuineness under Section 78.
4. A mechanical copy must have been made from the original. A copy of a copy is not within clause (ii).
5. A counterpart is primary evidence against those who executed it and secondary against those who did not.
6. An oral account requires a witness who himself saw the document and who can give its contents, not merely its general effect.
7. Section 20 continues to govern oral admissions as to contents, and the right to give secondary evidence must be established before they are used.
8. The ground determines the kind in several cases, and the foundation must be proved with the court recording its satisfaction.

14. Related Topics and Provisions