Section 65 of the Indian Evidence Act: When Secondary Evidence May Be Given
Section 65 of the Indian Evidence Act, 1872 sets out the circumstances in which a party may prove the existence, condition or contents of a document without producing the original. The corresponding provision under the current evidence law is Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
What is secondary evidence?
Primary evidence generally means the document itself produced for the Court's inspection (Section 57 BSA; formerly Section 62 of the Evidence Act). Secondary evidence means substitute proof of a document, including legally recognised copies, certain admissions and accounts of contents, as described in Section 58 BSA (formerly Section 63). Section 59 BSA (formerly Section 64) states the general rule that documents must be proved by primary evidence except in recognised cases.
Section 60 BSA and the former Section 65 identify when secondary evidence can be tendered. Permission to tender a copy does not automatically establish the authenticity, execution or truth of the document; these matters remain subject to the applicable rules of proof.
Seven situations where secondary evidence may be given
The following grounds preserve the substance of clauses (a) to (g) of former Section 65 and correspond to clauses (a) to (g) of Section 60 BSA.
(a) Original held by another person and not produced
The original is or appears to be in the possession or power of the opposing party, a person beyond the Court's process, or someone legally bound to produce it, and that person fails to produce it after the required notice. The relevant notice provision is Section 64 BSA (formerly Section 66 of the Evidence Act), subject to its exceptions.
(b) Written admission of the original
The person against whom the document is sought to be proved, or that person's representative in interest, has admitted in writing the existence, condition or contents of the original. The written admission itself is the admissible secondary evidence for this ground.
(c) Original lost, destroyed or otherwise unavailable
The original has been lost or destroyed, or cannot be produced within a reasonable time for a reason that does not arise from the offering party's own default or neglect. The party should establish the factual basis of the loss or unavailability.
(d) Original not easily movable
The original is of a nature that makes it impracticable to move into Court. Suitable secondary proof may then be tendered, subject to the applicable evidentiary requirements.
(e) Original is a public document
Where the original is a public document within Section 74 BSA (also Section 74 under the former Act), the permitted form of secondary evidence under this ground is a certified copy.
(f) Law permits a certified copy
Where the BSA or another applicable law permits a certified copy to be given in evidence, that certified copy, rather than another form of secondary evidence, is admissible under this ground.
(g) Numerous accounts or documents
Where originals consist of numerous accounts or other documents that cannot conveniently be examined in Court, and the fact to be proved is their general result, a person skilled in examining them who has examined the documents may give evidence of that general result.
Which form of secondary evidence is admissible?
| Ground | Form allowed by Section 60 BSA / former Section 65 |
|---|---|
| (a), (c), (d) | Any legally recognised secondary evidence of the document's contents. |
| (b) | The written admission. |
| (e), (f) | A certified copy, and no other form of secondary evidence under these grounds. |
| (g) | Evidence of the general result by a person who examined the documents and is skilled in doing so. |
Practical requirements and electronic evidence
- Identify the governing Act. Check the commencement date and the saving rule in Section 170 BSA before citing Section 65 of the repealed Act.
- Establish a statutory ground. Explain why the original cannot or need not be produced, with supporting facts where necessary.
- Give notice when required. For documents in another person's possession, examine Section 64 BSA or former Section 66 and the statutory exceptions to notice.
- Use the prescribed form. A photocopy is not automatically admissible merely because the original is unavailable; its status and foundation must be proved.
- Apply electronic-record rules separately. Sections 61 to 63 BSA govern electronic and digital records, including the conditions and certificate requirements of Section 63. In saved proceedings, the corresponding former provisions include Sections 65A and 65B.
Illustrative examples
Lost agreement: A party seeking to rely on a copy of an agreement must first establish an applicable ground such as loss without its own default, and then prove the copy as required by law.
Government record: Where a record is a public document, the relevant certified copy may be used under the statutory provisions governing public documents and certified copies.
Large set of accounts: An appropriately skilled person who examined voluminous records may testify about their overall result where examining each original in Court would be inconvenient.
Frequently asked questions
Is Section 65 of the Indian Evidence Act still in force?
The Indian Evidence Act was repealed from 1 July 2024. Its provisions nevertheless continue to govern proceedings saved by Section 170(2) BSA. For proceedings governed by the new law, the corresponding provision is Section 60 BSA.
Can a photocopy be admitted as secondary evidence?
Potentially, if it qualifies as secondary evidence and the party proves an applicable statutory ground and the necessary foundation. A photocopy is not admissible merely because it has been filed.
Does Section 60 BSA apply to electronic records?
Electronic and digital records also require attention to Sections 61, 62 and 63 BSA. The applicable special rules cannot be bypassed merely by invoking the general rule on secondary documentary evidence.
Official legislation and further reading
Consult the official text of the Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF), especially Sections 57 to 64, 74 and 170. For an official section-specific reference, see Section 60 BSA on the Government of India portal.