Secondary Evidence under Bharatiya Sakshya Adhiniyam is mentioned under section 60. Secondary evidence plays a crucial role when the original document is unavailable in legal proceedings.The Bharatiya Sakshya Adhiniyam, 2023 (BSA) outlines the circumstances under which secondary evidence can be presented and specifies the types of acceptable secondary evidence. This article explains the key provisions governing secondary evidence under the BSA and highlights relevant judicial interpretations, along with frequently asked questions.
What is Secondary Evidence?
Secondary evidence refers to evidence that is not the original document but is used to establish the contents of that document. This is permissible only when primary evidence, which is the original document itself, cannot be produced in court. Section 59 of the BSA mandates that primary evidence must be provided to prove a document, but it allows secondary evidence in specific situations as stated under Section 60.
When Secondary Evidence may be given? : Section 60 BSA
Circumstances When Secondary Evidence is Admissible
The BSA provides detailed conditions under which secondary evidence may be admitted. These circumstances are as follows:
1. Original Document is in Possession of Opposing Party or Others:
If the original document is held by the opposing party or a person outside the court’s jurisdiction, and they fail to produce it despite receiving a notice to do so under Section 64, secondary evidence may be admitted. This applies when the person legally obligated to produce the original fails to do so.
2. Original Admitted by the Opposing Party:
If the opposing party or their representative has admitted in writing the existence, condition, or contents of the original document, secondary evidence becomes admissible.
3. Destruction or Loss of the Original Document :
If the original document has been destroyed or lost, or cannot be produced within a reasonable time due to circumstances beyond the control of the party presenting the evidence, secondary evidence can be submitted. The party must establish that the destruction or loss was not due to their fault or negligence.
4. Document is Impractical to Move :
Secondary evidence is also admissible when the original document is physically difficult to present in court due to its nature, such as when it is bulky or unwieldy.
5. Public Documents :
Public documents, as defined under Section 74, can be proven through certified copies, which are considered secondary evidence. Public records and other official documents may not require the original in court.
6. Certified Copies Permitted by Law :
In cases where the law expressly allows the use of certified copies instead of the original, such copies can be used as secondary evidence.
7. Numerous Documents :
When the original documents consist of numerous accounts or records, and it would be impractical to examine them individually in court, secondary evidence may be given to prove the general result of the entire collection.
READ MORE: Sections 61, 62, and 63 of the Bharatiya Sakshya Adhiniyam(BSA): Admissibility of electronic records
Section 117 Voluntarily causing grievous hurt of the BNS
Types of Secondary Evidence : Section 58 BSA
Section 58 of the BSA defines the types of secondary evidence that are admissible in court. These include:
- Certified Copies : Official copies provided under the BSA’s provisions.
- Mechanically Produced Copies : Copies made by machines, such as photocopies, which ensure accuracy, and copies compared with these mechanically produced versions.
- Copies Compared with the Original : These may include handwritten or transcribed copies that have been verified against the original.
- Counterparts of Documents : In cases where a document is executed in counterparts, one counterpart may be used as secondary evidence against a party who did not sign it.
- Oral Accounts : A person who has seen the original document can provide an oral account of its contents.
- Admissions : Both oral and written admissions by the opposing party about the document’s contents can be admitted as secondary evidence.
Burden of Proof in Presenting Secondary Evidence
The party seeking to introduce secondary evidence must prove that the original document is unavailable for valid reasons. This burden of proof is critical and must be supported by strong evidence, such as:
- Testimony of witnesses
- Evidence of destruction (e.g., in cases of fire, flood, or theft)
- Proof of loss or misplacement
Once the destruction or unavailability of the original is established, the court will assess the admissibility and weight of the secondary evidence. The court considers the reliability and accuracy of the evidence to ensure it represents the original document correctly.
Admissibility of Electronic Records as Secondary Evidence: Section 61 BSA
Section 61 of the BSA extends the admissibility of secondary evidence to electronic or digital records, subject to specific conditions.
Section 63 outlines that digital records are admissible as documents, provided they meet certain criteria, such as regular use of the computer system for the relevant activity and proper functioning of the system during the time period in question.
A certificate in the prescribed format must be submitted, verifying the authenticity of the electronic record.
Important Case Laws on Secondary Evidence
1. Kaliya vs State of Madhya Pradesh (2013): In this case, the Supreme Court held that secondary evidence is admissible only when the non-production of the original is sufficiently explained. The court emphasized the importance of proving the loss or destruction of the original before accepting secondary evidence.
2. M. Chandra vs M. Thangamuthu (2010): The Supreme Court clarified that before secondary evidence is accepted, the party must lay a proper foundation explaining the non-availability of the original document. The case also highlighted that mechanically produced copies, such as photocopies, must be proven to be accurate before they can be admitted as secondary evidence.
3. H. Siddiqui vs A. Ramalingam (2011): The court ruled that the mere production of secondary evidence does not make it admissible unless it is established that the original document was lost or destroyed without the party’s fault.
FAQs on Secondary Evidence
1. What is secondary evidence?
Secondary evidence is any evidence that is not the original document but is used to prove the content of the original when it cannot be produced in court.
2. When can secondary evidence be presented?
Secondary evidence can be presented when the original document is lost, destroyed, in the possession of the opposing party, or if it is a public document, or otherwise impractical to produce in court.
3. What are some examples of secondary evidence?
Examples include certified copies of public documents, photocopies, oral admissions, and written statements acknowledging the contents of the original.
4. How is secondary evidence of electronic records handled?
Electronic records are admissible as secondary evidence if they meet certain conditions regarding the regular use of the computer system, accuracy of the record, and the provision of a certificate confirming these aspects.
5. Who has the burden of proof when presenting secondary evidence?
The party seeking to present secondary evidence must prove that the original document cannot be produced due to valid reasons such as destruction, loss, or possession by the opposing party.
READ MORE : Section 23 Admissibility of Confessions to Police Officers Under the Bharatiya Sakshya Adhiniyam (BSA)
Disclaimer
The content of this article is for informational purposes only and does not constitute legal advice. While efforts are made to ensure accuracy, laws may change, and the information may not be current. Consult a qualified legal professional for advice specific to your situation. Legallyin.com and its contributors are not liable for any actions taken based on this article.