Know The Law | Principles On Secondary Evidence Production : Supreme Court Explains

The Supreme Court has reiterated the settled principles governing the admissibility of secondary evidence under Sections 64 and 65 of the Evidence Act, emphasising that primary evidence remains the rule and secondary evidence an exception.

A bench comprising Justice Pankaj Mithal and Justice SVN Bhatti summarised the principles in the case Tharamel Peethambaran And Another Versus T. Ushakrishnan And Another.

The principles are as follows :

1. Primary Evidence Is the Rule

"The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence. Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”. Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party's possession or reach, they cannot introduce inferior proof (secondary evidence)."

2. Foundational Facts Must Be Established

"Before secondary evidence can be admitted, the party relying on it must lay a factual foundation. This involves two steps: First, the party must prove that the original document actually existed and was executed. Secondly, the party must establish valid reasons as to why the original cannot be furnished."

3. Secondary evidence inadmissible if original document is inadmissible

Secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.

Importantly, if the original document is itself found inadmissible due to failure to prove its validity, the same party cannot then seek to rely on secondary evidence of its contents.

4. Section 65 is exhaustive

Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible. To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.

5. Admissibility Does Not Equal Proof

Further, admitting a document as secondary evidence does not automatically prove its contents. The secondary evidence must be authenticated by foundational evidence showing that the alleged copy is, in fact, a true copy of the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstances under which the copy was prepared and who possessed the original at the time the photograph was taken.

6. Marking a Document as Exhibit Is Not Proof

Mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence. If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.

7. No Mandatory Application Required

There is no requirement that an application must be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence.

8. Circumstances Under Section 65

 The judgment illustrated the conditions for secondary evidence in the following chart: 

9. Two-Step Conjunctive Test

The introduction of secondary evidence is a two-step process, wherein, first, the party must establish the legal right to lead secondary evidence, and second, they must prove the contents of the documents through that evidence. The twin requirements are conjunctive.

Also from the judgment - Photocopy Of Document No Evidence Unless Conditions To Produce Secondary Evidence Proved : Supreme Court