Primary and Secondary Evidence Under BSA

 Introduction

The legal system works on one basic idea: justice can only be done when the truth is clearly known. And to find that truth, courts depend on evidence. That’s why understanding the difference between primary and secondary evidence is so important.

The Indian Evidence Act, 1872 (IEA) divides evidence into two types—primary evidence, which is the original and most reliable, and secondary evidence, which includes copies or other substitutes. This same rule continues under Chapter V of the Bharat Sakshya Adhiniyam, 2023 (BSA).

In simple terms, both laws help the court decide what kind of proof can be used, how trustworthy it is, and when it should be accepted so that every decision is fair and just.

Section 56 of BSA

Section 56 of the BSA clearly states that the contents of a document may be proved in two ways: through primary evidence or secondary evidence.
This provision indicates that no alternative legal methods exist for establishing the contents of a document.

Primary Evidence

Section 57 of the BSA explains that primary evidence means the original document that is brought before the court for examination. This includes documents made in parts, documents with multiple counterparts, and documents produced through uniform methods like printing or photography. The law also treats electronic or digital records as primary evidence when they are stored together or in sequence across multiple files, and video recordings in electronic form are also considered primary evidence.

Illustration

-        If a deed is signed in three places, each signature part is primary evidence of the others.

-        The original handwritten letter is primary evidence; photocopies or typed versions are secondary, unless the original is lost.

Essentials

-        Original Document: Primary evidence simply means the actual original document that is shown to the court.

-        Documents Made in Multiple Parts: If a document is created in separate parts, each part is treated as primary evidence.

-        Counterpart Documents: When a document is executed in counterparts (different parties sign different copies), each signed counterpart is primary evidence against the person who signed it.

-        Uniformly Produced Documents: Documents made through the same printing or photographic process count as primary evidence of their own contents — but they cannot be treated as the original document they were copied from.

-        Electronic/Digital Records:

○      Digital files stored at the same time or one after another in multiple places are considered primary evidence.

○      If these records come from proper custody, they are assumed to be genuine unless challenged.

○      Video recordings stored and transmitted simultaneously in electronic form also qualify as primary evidence.

○      Even digital records stored across different folders, drives, or temporary files can count as primary evidence.

○      Proper custody increases their reliability and legal strength.

Secondary Evidence

Section 58 of the BSA state about secondary evidence — basically, the backup options when the original document can’t be shown in court.
 It includes things like certified copies, copies made through reliable mechanical processes, oral or written admissions, oral explanations of what the document contains, and even the testimony of someone who has personally examined the original.

This applies particularly when the original consists of many impractical accounts or documents to examine in court. 
Secondary evidence is deemed relevant when the original document cannot be presented for court inspection. 

Illustration

-        A lost birth certificate where a 10th-grade mark sheet or Aadhar card serves as proof. Essentially, it's proof about the original, not the original itself, such as tape recordings, photographs, or registers .

-        Pictures of the original document or even X-rays proving injuries.

Essentials of Secondary Evidence (Section 58, BSA)

-        Certified Copies: Officially certified duplicates of a document can be used when the original isn’t available.

-        Mechanical Copies: Photocopies, scanned copies, or other machine-made reproductions are acceptable as secondary evidence.

-        Oral/Written Admissions: If someone admits the contents of a document—either verbally or in writing—that admission counts as secondary evidence.

-        Oral Descriptions: A witness explaining what was written in a document can also serve as secondary evidence.

-        Examiner’s Testimony: When a document is too lengthy or complicated to bring to court, the testimony of a person who has examined the original is treated as secondary evidence.

Case laws

1.    J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730:
Secondary evidence is allowed only when primary evidence is unavailable. If the original document is inadmissible and the party fails to prove its validity, they cannot use secondary evidence to prove its contents.

2.    H. Siddiqui (Dead) by LRs vs. A. Ramalingam (2011) 4 SCC 240:
If the original is not produced, the party must give a valid reason and proper factual foundation for relying on secondary evidence. Without such justification, the court cannot allow secondary evidence.

3.    Rakesh Mohindra v. Anita Beri & Ors. (2016) 16 SCC 483:
Secondary evidence is allowed only when the party cannot produce the original despite making genuine, best efforts. The party must show a reasonable and believable explanation for not producing the primary evidence. Secondary evidence is admissible only if the original is lost, destroyed, or deliberately withheld by the opposite party.

4.    Chandra v. M. Thangamuthu (2010) 9 SCC 712:
Secondary evidence must be supported by foundational proof showing that the copy is a true and accurate reproduction of the original. Exceptions allowing secondary evidence exist only to help parties who are truly unable to produce the original through no fault of their own.

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