Primary Evidence: Section 62 of the Indian Evidence Act and Section 57 of the Bharatiya Sakshya Adhiniyam
Primary evidence generally means the original document produced for the court's inspection. The current Indian law is contained in Section 57 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which also addresses electronic and digital records.
Section 62 of the Indian Evidence Act, 1872: Meaning of primary evidence
The former Section 62 defined primary evidence as the document itself produced for the inspection of the Court. It included the following explanations:
Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart is primary evidence against the parties who executed that counterpart.
Explanation 2. Where several documents are produced by one uniform process, such as printing, lithography or photography, each is primary evidence of the contents of the others. If they are copies made from one common original, however, they are not primary evidence of that original's contents.
Illustration from the former provision
A person possesses several placards printed at the same time from one original. One placard is primary evidence of the contents of another placard, but not of the contents of the original from which they were printed.
Section 57 of the Bharatiya Sakshya Adhiniyam, 2023
Section 57 (Primary evidence) retains the basic definition that primary evidence is the document itself produced for the inspection of the court. It carries forward the rules concerning documents executed in parts, counterparts and documents made by a uniform process.
It additionally recognises electronic or digital records in specified situations. In particular, where an electronic or digital record is created or stored and multiple files are created, each such file may be primary evidence; where an electronic or digital record is produced from proper custody, it is primary evidence unless disputed; and where a video recording is simultaneously stored in electronic form and transmitted, the stored recordings may each be primary evidence. The provision also addresses automated storage in multiple storage spaces, including temporary files.
These statutory explanations do not mean that every screenshot, forwarded message or printout is automatically proved as authentic. Relevance, authenticity, applicable electronic-record requirements and the circumstances of the case remain important.
Examples of primary evidence
- Original signed agreement: The signed original presented to the court for inspection.
- Executed counterparts: A counterpart is primary evidence against the party or parties who executed it.
- Uniformly printed documents: Each independently produced original in a uniform printing run can prove the contents of the others, subject to the statutory distinction concerning copies from a common original.
- Electronic records: Original digital files and qualifying records from proper custody may constitute primary evidence under Section 57, subject to the applicable rules of proof.
Primary evidence and secondary evidence
| Primary evidence | Secondary evidence |
|---|---|
| The document itself, or a record treated as primary under Section 57 BSA. | Evidence falling within Section 58 BSA, including specified copies and other recognised forms. |
| Ordinarily the preferred way to prove documentary contents. | Its use is subject to the statutory conditions governing when secondary evidence may be given. |
| Example: an original executed deed. | Example: an admissible certified copy in an appropriate case. |
Other relevant provisions
- Section 56 BSA: Proof of contents of documents by primary or secondary evidence (corresponding to former Section 61).
- Section 58 BSA: Secondary evidence (corresponding broadly to former Section 63).
- Section 59 BSA: Proof of documents by primary evidence, except where otherwise provided (corresponding to former Section 64).
- Section 60 BSA: Cases in which secondary evidence relating to documents may be given (corresponding to former Section 65).
- Sections 61 to 63 BSA: Provisions concerning electronic or digital records and their admissibility, including statutory certificate requirements where applicable.
- Section 170 BSA: Repeal and savings, including the treatment of certain pending proceedings.
How are electronic records proved?
The BSA expressly recognises electronic and digital records. Section 57 determines what may constitute primary evidence; Sections 61 to 63 must also be considered when relying on electronic records. In particular, Section 63 prescribes conditions and a certificate mechanism for computer outputs covered by that section. Parties should preserve original files, relevant devices, metadata and information about custody and extraction wherever practicable.
Frequently asked questions
Is the original document always required?
Primary evidence is ordinarily required, but the BSA permits secondary evidence in specified circumstances. The relevant exceptions and conditions must be satisfied.
Are photocopies primary evidence?
A photocopy of an original is ordinarily secondary evidence. A document made as an original through a uniform process may be treated differently under the statutory explanations.
Does Section 62 of the Indian Evidence Act still apply?
The 1872 Act was repealed with effect from 1 July 2024. The BSA's repeal-and-savings provision preserves the former law for proceedings within its scope that were pending immediately before commencement.
Official legal sources
Consult the official India Code legislation database for the Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), especially Sections 56 to 63 and 170, and for the historical Indian Evidence Act, 1872. The Ministry of Home Affairs publishes notifications concerning commencement of the new criminal laws.
This article provides general legal information. The applicable rules depend on the proceeding, the nature of the record and the relevant statutory provisions.