Secondary Evidence: Section 63 of the Evidence Act and Section 58 BSA

Current law: Section 58 of the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) came into force on 1 July 2024, replacing the Indian Evidence Act, 1872 for proceedings governed by the new enactment. The corresponding provision defining secondary evidence is Section 58 BSA, not Section 63 BSA (which deals with admissibility of electronic records).

Section 58 provides that secondary evidence includes:

1. Certified copies given under the provisions of the Act.
2. Copies made from the original by mechanical processes ensuring accuracy, and copies compared with such copies.
3. Copies made from or compared with the original.
4. Counterparts of documents against parties who did not execute them.
5. Oral accounts of a document's contents by a person who has personally seen it.
6. Oral admissions.
7. Written admissions.
8. Evidence of a person who has examined a document whose original consists of numerous accounts or other documents that cannot conveniently be examined in court, where that person is skilled in examining such documents.

The last three categories are express additions in the BSA definition compared with the five categories in the former Section 63.

Section 63 of the Indian Evidence Act, 1872: Secondary evidence

Under the former Act, Section 63 defined secondary evidence as including:

1. Certified copies given under the provisions hereinafter contained.
2. Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.
3. Copies made from or compared with the original.
4. Counterparts of documents as against the parties who did not execute them.
5. Oral accounts of the contents of a document given by a person who has personally seen it.

Illustrations under the former provision

1. A photograph of an original is secondary evidence if it is proved that the photographed item was the original, even without a direct comparison.
2. A copy compared with a machine-made copy of a letter is secondary evidence if the machine-made copy is shown to have been made from the original.
3. A transcript made from a copy and subsequently compared with the original is secondary evidence; an unverified transcript is not made secondary evidence merely because its source copy was compared with the original.
4. An oral account of a copy, photograph or machine-copy, rather than of the original document personally seen, does not qualify as secondary evidence of the original under this illustration.

When can secondary evidence be admitted?

Definition is not automatic admissibility. Under the BSA, Section 56 permits documentary contents to be proved by primary or secondary evidence; Section 57 defines primary evidence; Section 59 generally requires primary evidence; and Section 60 specifies the circumstances in which secondary evidence relating to documents may be given. These include, subject to statutory conditions, documents in another person's possession, loss or destruction of the original, an original not easily movable, public documents and other specified situations.

Where required, the party must establish the factual basis for relying on secondary evidence. The court must still consider authenticity, relevance, applicable proof requirements and objections.

Electronic and digital records

The BSA expressly addresses electronic and digital records. Section 61 concerns their legal effect, Section 62 addresses proof of their contents and Section 63 sets out special admissibility conditions, including the prescribed certificate requirements where applicable. A screenshot, email printout or digital copy should not be assumed admissible merely because it is a copy.

Practical examples

• Lost agreement: a photocopy may be considered when the loss of the original and the statutory basis for secondary evidence are properly established.
• Certified public record: a certified copy may be used where the law permits proof by that form of copy.
• Oral account: a witness who actually read an original document may, in an appropriate case, give an account of its contents; merely repeating what another person said about a copy is different.
• Electronic message: a printout or extracted record must be assessed under the special electronic-record provisions as well as other applicable rules.

Which law applies to pending cases?

Section 170 of the BSA contains repeal and savings provisions. Proceedings that were pending immediately before the BSA commenced may continue under the Indian Evidence Act, 1872 as provided by the savings clause. Accordingly, the former Section 63 remains relevant to those proceedings, while Section 58 BSA supplies the current definition for proceedings governed by the new law.

Official legislation and further reading

Consult the authoritative statutory texts and commencement information through India Code and the Gazette of India. Search for the Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) and the Indian Evidence Act, 1872 (Act 1 of 1872). The precise wording of the legislation governs over this explanatory summary.