Photocopies as Secondary Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Admissibility, Foundation and Weight

A photocopy is the commonest document tendered in Indian courts and the one most often refused. It is refused not because a photocopy is a poor kind of secondary evidence — it is in fact a good one — but because the party tendering it has not established his right to give secondary evidence at all. Three separate questions arise, and a party who satisfies one and ignores the others will find his document rejected.

1. The Three Questions

Every photocopy raises the same three questions in the same order, and confusing them is the source of most of the difficulty.

1. Is secondary evidence permissible at all? This depends on Section 60 and requires a ground to be proved. It has nothing to do with the quality of the copy.
2. Is a photocopy the kind of secondary evidence permitted? This depends on Section 58 and on which ground under Section 60 is relied upon, because two grounds admit only a certified copy.
3. What is the photocopy worth? This is a question of weight, and it arises only after the first two are answered favourably.

2. A Photocopy as a Kind of Secondary Evidence

A photocopy falls squarely within clause (ii). Photocopying is a mechanical process which in itself ensures the accuracy of the copy, in the sense that no human transcription intervenes and no error of reading or writing can creep in. The same applies to a scan, a photograph of a document, and a printed reproduction.

But the clause contains a condition that is regularly overlooked. The copy must have been made from the original.

2.1 A copy of a copy

A photocopy of a photocopy is not a copy made from the original, and it is not within clause (ii). Where a party produces a copy several generations removed, the first limb of clause (ii) does not assist him.

Two routes remain. The second limb of clause (ii) admits 'copies compared with such copies', so a second-generation copy is secondary evidence if it has been compared with a mechanical copy made from the original and the comparison is proved. And clause (iii) admits copies compared with the original, so a copy of a copy which has itself been checked against the original qualifies.

Both routes require the comparison to be proved by the person who made it. A party who says his copy 'appears to be a true copy' has proved nothing; the person who compared it must depose that he did so and that it corresponds.

In practice the point arises constantly with documents that have passed through several hands — a copy taken from a file, itself copied from a copy furnished by a bank or an office. The party should establish where his copy came from, and if the answer is that nobody knows, the copy is not shown to be within either clause.

3. When a Photocopy May Be Given

Section 60 lists seven grounds, and the kind of secondary evidence permitted differs between them. A photocopy is admissible under some and not under others.

4. The Foundation

Where the ground relied upon is (a), (c) or (d), the party must establish it by evidence before the photocopy is received.

4.1 What the foundation consists of

It differs with the ground, and a party should be clear which he is relying on.

Under ground (a) — that the original is with the opposite party or a person beyond the court's process; that a notice to produce under Section 64 was served in the manner prescribed; and that the person did not produce it. All three must be proved, and Ashok Dulichand shows what happens when the first is merely asserted.

Under ground (c) — that the original was destroyed, or that it is lost. Loss requires evidence of where the document was kept, when it was last seen, what search was made, by whom, and what enquiries followed, deposed to by the person who conducted the search.

Under ground (d) — that the original is not easily movable. This is the ground for inscriptions on walls, plaques and fixed installations, and it requires evidence of the nature and situation of the thing on which the writing appears.

5. Proving the Photocopy Itself

Even after the ground is established, the photocopy must be shown to be what it purports to be. Two matters arise and both are frequently skipped.

That it was made from the original. Somebody must depose that he made the copy, or saw it made, from the original document, and when and where. A copy produced from a file with no account of its origin has not been shown to be within clause (ii).

That it is complete. 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.

Where the photocopy is of an attested document, the ordinary requirements of Sections 67 to 71 continue to apply. The fact that only a copy is available does not dispense with the need to call an attesting witness where one is available, and a copy of a will is in a particularly difficult position for that reason.

6. Weight — What a Photocopy Loses

A photocopy admitted after a proper foundation is not to be discounted merely because it is a copy. But where the genuineness of the document is contested rather than merely its terms, a photocopy is markedly weaker than the original, and the reasons are worth setting out because they decide such cases.

• Pen pressure and line quality are not reproduced, and these are the features by which a forged or traced signature is ordinarily detected.
• Ink differences vanish. A photocopy renders every ink as black, so an interpolation made in a different pen at a different time becomes invisible.
• Erasures, chemical removal and overwriting leave traces on paper — disturbance of the fibres, a change in surface texture — none of which survives copying.
• The sequence of strokes, which shows 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, quality and whether pages match — is not available.
• Alterations to the copy are undetectable. A photocopy can be assembled from parts of different documents, and the join does not show.

7. Objections and Timing

An objection that a photocopy has been received without a foundation goes to the mode of proof, and the timing of the objection is decisive.

The consequences cut both ways and are worth being clear about.

For the party tendering the photocopy: if the objection is not taken, the defect is cured by waiver and the copy stands on the record. But this is not a strategy to rely upon, because a competent opponent will take the objection, and the party will then have no answer.

For the party objecting: the objection must be taken when the document is tendered and marked. Allowing a photocopy to go on the record without objection and attacking it in final arguments will not succeed, because the other side could have produced the original or led the foundational evidence had the point been raised.

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, and the trial proceeds without interruption.

8. Photocopies in Practice

Five practical points recur, and attending to them before the trial disposes of most difficulties.

1. Identify the ground before the trial begins, and prepare the evidence to establish it. A party who decides at the stage of evidence that his document is 'lost' has usually lost it too late.
2. Serve a notice to produce under Section 64 wherever the original may be with the opponent. It costs nothing, and it converts a difficult case under ground (c) into a straightforward one under ground (a).
3. Obtain certified copies of anything that is a public document. A photocopy of a registered deed or a decree is inadmissible, and the certified copy is available on application.
4. Establish who made the copy and from what. The witness who can say he copied it from the original should be identified in advance and examined on the point.
5. Check that the copy is complete, including reverse sides, schedules and endorsements, before it is tendered rather than after the objection is taken.

9. Electronic Records and Printouts

A printout of an electronic record is not in the same position as a photocopy of a paper document, and the difference is easy to miss.

The first question is whether the output is primary evidence at all. Under the Explanations to Section 57, an electronic record stored in multiple files, produced from proper custody unless disputed, simultaneously stored as a video recording, or held in automated storage including temporary files is primary evidence. Where an Explanation applies, no question of secondary evidence arises and no foundation under Section 60 is needed.

Where no Explanation applies — or where Explanation 4 has been displaced because the record is disputed — the printout is secondary evidence. It qualifies as a mechanical copy under clause (ii) of Section 58, so the kind presents no difficulty. What is required in addition is the certificate under Section 63(4) and the Schedule, with the hash value in Part A and the expert declaration in Part B.

The practical rule follows: 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, because the classification depends on the opponent's pleading and cannot be settled in advance.

10. The Position Stated Shortly

1. A photocopy is a good kind of secondary evidence under clause (ii) of Section 58, provided it was made from the original.
2. A copy of a copy is not within clause (ii), and must be brought within the second limb or clause (iii) by proof of comparison.
3. Photocopies fail on the foundation, not on the kind. Mere production does not entitle a party to rely on one — J. Yashoda.
4. Grounds (e) and (f) exclude photocopies altogether. Public documents and documents of which certified copies are permitted require a certified copy.
5. The ground must be established by material, and a bare assertion that the original lies with the opponent will not do — Ashok Dulichand.
6. The court should record its satisfaction before permitting secondary evidence — H. Siddiqui.
7. A photocopy loses everything by which tampering is detected, and an expert opinion founded on one is correspondingly weaker.
8. The objection is to mode of proof and must be taken at tender, failing which it is waived — R.V.E. Venkatachala Gounder.

11. Related Topics and Provisions