Distinguish Between Primary and Secondary Evidence of Documents

 

Distinguish Between Primary and Secondary Evidence of Documents. Under What Circumstances Can Secondary Evidence of Documents Be Given?

In judicial proceedings, evidence plays a crucial role. When a document is presented in court, it needs to be proved through either primary evidence or secondary evidence. Under the Indian Evidence Act, 1872, documentary evidence is classified into Primary Evidence and Secondary Evidence.

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What is Primary Evidence?

According to Section 62 of the Indian Evidence Act, 1872, primary evidence is the original document that is presented directly before the court. If a document is executed in multiple identical copies, all those copies are considered primary evidence.

Examples of Primary Evidence:

1. Original Contract Paper – If a written agreement is made between two parties, the original document is considered primary evidence.
2. Original Will – If a person has created a will, its original document is considered primary evidence.
3. Original Sale Deed – A sale deed related to the transfer of property is primary evidence.
4. Original Computer-Generated Records – Such as emails, digital contracts, etc.

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What is Secondary Evidence?

According to Section 63 of the Indian Evidence Act, 1872, when the original document (primary evidence) is not available in court, its certified copy, photocopy, typed copy, or any other reliable form of reproduction is considered secondary evidence.

Types of Secondary Evidence (As per Section 63):

1. Certified Copy of the Original Document – Commonly used in government-related records.
2. Photocopy or Carbon Copy – If the original document is unavailable, a photocopy or carbon copy can be used.
3. Typed or Handwritten Copy – If obtained from a reliable source.
4. Oral Evidence – If a person testifies that they have seen the original document and can provide information about it.
5. Electronic Record – A computer printout or digital document may be considered secondary evidence if properly authenticated.

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Difference Between Primary and Secondary Evidence

Basis	Primary Evidence	Secondary Evidence
Definition	The original document that is directly presented in court.	When the original document is unavailable, its certified copy, photocopy, or other reproductions are presented.
Strength	Considered the strongest and most reliable form of evidence.	Used only when primary evidence is unavailable.
Acceptability	Accepted in court without additional conditions.	Accepted only under circumstances specified in Section 65.
Examples	Original contract, original will, original sale deed, etc.	Certified copy, photocopy, oral evidence, electronic record, etc.

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Under What Circumstances Can Secondary Evidence Be Given?

Section 65 of the Indian Evidence Act, 1872 outlines the situations in which secondary evidence can be presented in court:

1. When the Original Document is Lost, Stolen, or Destroyed

If the original document is lost, stolen, or destroyed and cannot be recovered, its certified copy or duplicate can be submitted.

Example:

• If old property records are lost, but a certified copy is available in the municipal office, it can be submitted.
• If a company's records were destroyed in a fire, a digital copy can be used as evidence.

2. When the Original Document is Beyond the Court's Jurisdiction

If a document is located in a place where it is not possible to bring it before the court, its certified copy is acceptable.

Example:

• If a person's property record is stored in the U.S., its certified digital copy can be submitted in an Indian court.

3. When the Opposing Party is Deliberately Withholding the Original Document

If the party in possession of the original document refuses to present it, the other party can submit secondary evidence.

Example:

• If a company holds the original contract document but does not present it in court, a certified copy can be used as evidence.

4. When the Document is a Public Record

If the original document is stored in a government office, a certified copy can be submitted instead.

Example:

• Certified copies of birth certificates, death certificates, and land records are considered valid secondary evidence.

5. When the Document is in the Possession of a Third Party Who is Unable to Produce It

If a third party in possession of the document is unable to present it in court, its certified copy can be submitted.

Example:

• If a bank holds the original loan agreement but cannot produce it, a certified copy can be presented.

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Conclusion

Primary evidence is the strongest and most reliable form of documentary evidence in a court of law. However, in certain circumstances, secondary evidence can also be admissible if the original document is unavailable. Courts evaluate the reliability of secondary evidence before accepting it. Therefore, primary evidence is always preferred, and secondary evidence is allowed only as an exception under specific legal conditions.