Secondary evidence ---- section 65(a) ---- admissibility ---- conditions ----- limitations.
In H. Siddiqui (Dead) by Lrs. v. A. Ramalingam (2011) 4 SCC 240, it was held though the said provision permits the parties to adduce secondary evidence , yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus,secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
Section 65 (a).-
“That according to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.”
Ashok Dulichand v. Madhavlal Dube (1975) 4 SCC 664.
After analyzing the language employed in Sections 63 and 65 (a) of the Indian Evidence Act, a two Judge Bench held as under:-
“Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section.”
J.Yashod v. K. Shobha Rani (2007) 5 SCC 730
“It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized the exceptions to the rule requiring primary evidence are designed to provide relief in case where a party is genuinely unable to produce the original through no fault of that party.”
M. Chandra v. M. Thangamuthu and other (2010) 9 SCC 712.