Admission As A Secondary Evidence- Critical Analysis

Sections 15 to 21 of the Bharatiya Sakshya Adhiniyam (BSA) deal with the term “Admission”. Section 15 of BSA defines "admission" as a statement in oral, documentary or contained in electronic form that suggests any inference as to any fact in issue or a relevant fact which is made by any of the persons, and under the circumstances, mentioned in Sections 16 to 21 of the Adhiniyam. So the definition of “Admission” provided in section 15 of BSA is not independently exhaustive and it depends on the circumstances mention in Sections 16 to 21 of BSA. However, long back in a case between Roosevelt v. Smith^[1] an admission has been defined as a voluntary acknowledgment, confession or concession of the existence of a fact or the truth of an allegation made by a party to the suit.

Admission as a substantive piece of evidence:

Generally a dispute comes to an end when one of the parties to the dispute admits the pleas or allegations of another party of that dispute. So, when there is an admission of allegations, proving or disproving of existence of those allegations may not be required as said admission becomes an evidence against the maker of the same. In this respect an admission is a substantive piece of evidence as ruled in a case between Natesan Agencies (Plantation) Vs. State^[2].

Section 53 of BSA speaks that facts admitted need not be proved which means if there is any voluntary admission of one fact pleaded by one party and admitted by other party to the suit no evidence is required to be adduced to prove that fact until and unless court calls for evidence.

In a civil suit under Order XII Rule 6 of CPC a judgment can be delivered simply on the basis of an admission of fact made by the either side of the suit without asking for any further evidence.

Likewise, in a criminal case on the basis of voluntary plea of guilt i.e. on admission of charges framed against the accused he may be convicted and sentenced without trial.

So, when it is proved that the admission is voluntary, the court may deliver judgment without asking for any evidence or further evidence to prove or disprove the fact in issue considering the “admission” as the best evidence.^[3]

Admission as a secondary evidence:

As per Section 58 of the BSA secondary evidence includes oral admissions and written admissions. No proviso or explanation is added in this provision excluding or explaining the kind(s) of admission which is/are to be considered as secondary evidence. So, in absence of any explanation or exception we must consider all kinds of admissions as secondary evidence.

Section 20 of the BSA corresponding to Section 22 of The Indian Evidence Act speaks that oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document. This provision was required to maintain the authority of Chapter VI of the BSA which excludes oral evidence by documentary evidence. As per Section 94 of that chapter of the BSA corresponding to Section 91 of The Indian Evidence Act contents of a document must be proved on production of said document only and if any person proposes to produce any secondary evidence to prove the contents of said document that will be accepted only on the exceptional circumstances mentioned in that provision. Thus, as per Section 20 of the BSA oral admission will be treated as a secondary evidence if it is adduced as a proof of the contents of a document. But as mentioned earlier Section 58 of the BSA did not categorise which admissions will be considered as secondary evidence and which will not come under the purview of secondary evidence. This provision rather included written admissions also within the category of secondary evidence. So, question arises when law says that admission is a substantive piece of evidence considered as a best evidence and only on the basis of admission judgment can be pronounced in civil and criminal cases without asking for further evidence, then how it can be considered as a secondary evidence?

Primary form of Admission:

Section 60 of the BSA corresponding to Section 65 of The Indian Evidence Act speaks that secondary evidence is admissible if the party proposing to produce the same can prove that he is not in possession of the original or primary one.

In a case between J. Yoshoda Vs. K. Shobha Rani^[4] it is established that secondary evidence is only admissible in the absence of primary evidence. If the original document is deemed inadmissible because a party failed to prove its validity, that party cannot then introduce secondary evidence.

Similarly in the case of H.Siddiqui (dead) by Lrs Vs. A. Ramalingam^[5] Hon'ble Apex Court reiterated that secondary evidence cannot be allowed without a "rational reason and factual foundation" for the non-production of the original one.

So, it is the settled position of law that to introduce any secondary evidence for its admissibility, the person proposing to produce the same must lay down its basis by proving the valid reason for non production of the primary evidence. E.g. if a party to the suit produces a copy of a sale deed he must prove that the original sale deed is not lying with him to make the copy of the deed admissible in evidence. Thus, again question arises what is the primary evidence of an admission if admission is a secondary evidence and under what circumstances an admission will be admissible in evidence under Section 60 of the BSA? For argument sake if we consider an oral admission as the secondary evidence of written admission then what is the primary evidence of a written admission? If in a case the accused admits his guilt whether the prosecution will be asked to lay down the grounds of admissibility of such admission (as we know confession is also an admission) and will be asked to produce the primary evidence of such admission?

An admission of a fact in issue or relevant fact may act as a waiver of proof or trial or further proceeding of a case. Sometime an admission may act as an estoppel, sometime as a confession. Evidentiary value of an admission is very high as because generally a person tries to protect his interest, but in case of admission the person is making statement against his own interest which can be used against him. So, in a legal proceeding “an admission” is a vital feature. But its insertion as a secondary evidence in Section 58 of the BSA raised serious concern about its admissibility in evidence. Except the exception mentioned in section 20 of the BSA admission is an evidence of primary nature and that's why it is considered as a best evidence.

Author is Judge, Family Court, Udaipur, Gomati District. Views Are Personal.

1. . 17 Misc. Kep. 323, 40 N. Y. Supp. 381 ↑

2. . (2019) 15 SCC 70 ↑

3. . Divisional Manager, United India Insurance Co. LTD. Vs. Samir Chandra Chaudhary. ↑

4. . (2007) 5 SCC 730 ↑

5. . 2011 (2) ALL MR 938 (S.C.) ↑