सं Samvidhan

Bharatiya Sakshya Adhiniyam, 2023

Section 60

Cases in which secondary evidence relating to documents may be given

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:—

(a) when the original is shown or appears to be in the possession or power—

(i) of the person against whom the document is sought to be proved; or

(ii) of any person out of reach of, or not subject to, the process of the Court; or

(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. Explanation.—For the purposes of—

(i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;

(ii) clause (b), the written admission is admissible;

(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

(iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.

Why this exists

Courts generally insist on the 'best evidence' — the original document — because copies or descriptions can be altered, mistaken, or incomplete. But real life often makes producing the original impossible: it may be lost, destroyed, held by an uncooperative third party, too bulky to bring to court, or it may be one of thousands of ledger entries. This provision (continuing the approach of section 65 of the old Indian Evidence Act, 1872) lists narrow, defined exceptions so that justice isn't blocked just because an original is unavailable, while still requiring the party to first justify why the original can't be produced.

How courts read it

Under the predecessor provision (section 65 of the Evidence Act, 1872), courts consistently held that a party must first lay a proper foundation — proving the original existed, was validly executed, and is genuinely unavailable for one of the listed reasons — before secondary evidence can be admitted. In J. Yashoda v. K. Shobha Rani (2007), the Supreme Court held that these foundational facts must be established as a condition precedent. In H. Siddiqui v. A. Ramalingam (2011), the Court held that merely marking a document as an exhibit does not by itself prove its contents; the mandatory procedure for secondary evidence must still be followed. These principles are expected to guide interpretation of section 60 of the Bharatiya Sakshya Adhiniyam as well, since its structure closely mirrors the earlier provision.

Common misconceptions
  • Myth: You can use a photocopy or mention a document's contents anytime the original is inconvenient to bring.
    Fact: Secondary evidence is allowed only in the specific situations listed in this section, and courts require the party to first prove why the original genuinely can't be produced.
  • Myth: Any type of secondary evidence works for every situation listed.
    Fact: For public documents and documents where certified copies are legally permitted, only a certified copy is acceptable — other forms like oral testimony or photocopies are not allowed.
  • Myth: Simply marking a document as an exhibit in court proves its contents.
    Fact: Courts have held that marking an exhibit is not enough; the proper foundational steps for admitting secondary evidence must still be satisfied.