Primary evidence

Primary evidence means the documents itself produced for the inspection of the Court.

According to Section 62, primary evidence is considered to be the topmost class of evidence. Such evidence is an original document that needs to be submitted before the court for inspection. Moreover, it is admissible without any prior notice. Such evidence must be presented before the court before the secondary evidence. Moreover, secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence. Primary evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item. It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must offer it as evidence. When, however, primary evidence is unavailable—for example, through loss or destruction—through no fault of the party, he or she may present a reliable substitute for it, once its unavailability is sufficiently established.

Secondary evidence

On bare reading, secondary evidence means and includes:

(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 some person who has himself seen it.

According to Section 63, secondary evidence is considered to be an inferior type of evidence. It implies, that even after producing secondary evidence one needs to produce primary evidence in order to fill in the gaps. Such evidence can be presented in the absence of the primary evidence, however, the notice of the same is to be given. However, if the secondary evidence is accepted without any objection within a reasonable time then the parties do not have the right to argue that the point was proved with the help of secondary evidence and not primary evidence.

TYPES OF SECONDARY EVIDENCE AND JUDICIAL DECISIONS Certified copies

Under section 76 the certified copies are defined. The correctness of certified copies will be presumed under section 79, but that of other copies will have to be proved. This proof may be afforded by calling a witness who can swear that he had compared the copy tendered in evidence with the original, or with some other person read as the contents of the original and that such is correct. Copies prepared by mechanical process

The copies prepared by mechanical process and copies compared with such copies is mentioned in clause 2 of this section. In the former case, as the copy is made from the original it ensures accuracy. To this category belong copies by photography, lithography, cyclostyle, and carbon copies. Section 62 (2) states that, where a number of document are made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original, they are not primary evidence of the content of the original. Counter foils

The counter foils of rent receipts being an admissible in favor of the landlord are not admissible against the tenant. Photographs

HALSBURY states “ Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or of the configuration of land as it existed at a particular moment, or the contents of a lost document”  Xerox copy

A Xerox copy of the forensic report sent by FSL after certifying the same as true copy, was held to be admissible in evidence as officer of the FSL had no interest in concocting report against the accused.

Photostat copy

A Photostat copy of a letter is a piece of secondary evidence, and it can be admitted in case original is proved to have been lost or not immediately available, for given reason, it is not conclusive proof in itself of the truthfulness of the contents contained therein. Photostat copies of documents should be accepted in evidence after examining the original records as genuineness of a document was a fundamental question. The witness can be shown and questioned as regards the Xerox copy of the document on records and the same will not amount to admission of the said document in evidence. If the witness admits the signature thereon, an objection can be raised at that time before the court that the document, being a copy, could not be exhibited. In a case where the Photostat copy of the original was produced, and there was no proof of its accuracy or of its having been compared with, or its being true reproduction of the original it was held that the Photostat copy cannot be considered as secondary evidence, as necessary foundation for its reception was not laid. A Photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or the signatory accepts his signature. Carbon copy

A carbon copy of a signature is a piece of secondary evidence within the meaning of section 63 (2) of this Act, being a copy made by a mechanical process which ensures its correctness. In a claim petition, the original insurance policy was not filed by the owner of the vehicle. He did not object to the geniuses of the printed copy of the policy giving particulars filed by the insurance company. He could not be allowed to raise objection that the same could not be read as evidence. Typed copy

A typed copy of an alleged partition deed without alleging that the document falls under one of categories enumerated in section 63 of this Act, could not be held to be a secondary evidence. Tape record

In the case of tape recording, which was referred to by the petitioner in support of his assertions as regards the substance of what passed between him and the chief minister of Punjab on several matters, there was no denial of the genuineness of the tape-record; and there was no assertion that the voices of the persons were not those which they purported to be. Copies made from or compared with original Copies made from the original or copies compared with the original are admissible as secondary evidence. A copy of a copy then compared with the original, would be received as secondary evidence of the original.

Counterparts

Execution of a document in counterparts has already been explained while dealing with explanation 1 to section 62. Counterpart of document is primary evidence as against the parties executing them under section 62 whereas under this clause they are secondary evidence as against the parties who did not execute them Oral accounts

This is last clause enable oral account of the content of a document being as secondary evidence. The oral account of the content of a document given by a person who has merely seen it with his own eyes, but not able to read it is not admissible as secondary evidence. The word seen in clause 5 of this section means something more than the mere sight of the document, and this contemplates evidence of a person who having seen and examined the document is in a position to give direct evidence of the content thereof. An illiterate person cannot be one who has seen the document within the meaning of the section. In Pudai Singh v. Brij Mangai, Allahbad HC held that as regards the letting in of secondary evidence the word seen in this section includes read over in the case of a witness who is illiterate and as such cannot himself read it, if it is read over to him, it will satisfy the requirement of the section. But this ruling was not accepted by HC oral account of the content of a document by some person who has himself sent it. Oral account given by an illiterate person will be hearsay evidence and excluded by section 60. Registration copy

Where the plaintiff took step to produce original will but it was not produced by the parties in whose possession it was, it was held that the registration copy of the will which she filed, was admissible in evidence as secondary evidence. Unprobated will

Unprobated will can be admitted in evidence for collateral purpose in any other proceeding apart from probate proceedings.

Age certificate The age certificate issued by headmaster of a school on the basis of admission from was held to be not a primary but a secondary evidence. Voters list A voters list is not a primary evidence of date of birth but a secondary evidence which was held in Mustafa v. Khurshida  Newspaper report A news item published in a newspaper is at best a second-hand secondary evidence. A fact has to be alleged and proved and then newspaper reports can be taken in support of it but not independently.

Tabular Representation of Primary and Secondary Evidence

No 

Primary Evidence

Secondary Evidence

1)

Primary Evidence is original document which is presented to the court for its inspection.

Secondary Evidence is the document which is not original document but those documents which are mentioned in Section.63. 

2)

It is the main source of Evidence.

It is an alternative source of Evidence.

3)

Section 62 of the Evidence Act defines Primary Evidence

Section 63 of the Indian Evidence Act defines Secondary Evidence 

4)

Primary Evidence is the best Evidence

Secondary Evidence is not best evidence but is evidence of secondary nature and is admitted in exceptional circumstances mentioned in Section 65. 

5)

Giving Primary Evidence is general rule. 

Giving Secondary Evidence is exception to the general rule. 

6)

Primary Evidence itself is admissible.

Secondary Evidence is admissible in the absence of the Primary Evidence.

7)

No notice required before giving Primary Evidence. 

Notice is required to be given before giving Secondary Evidence.  

8)

The value of Primary Evidence is highest.

The value of Secondary Evidence is not that of Primary Evidence

CURRENT JUDICIAL STANDING

Arjun Khotkar vs Kailash Kushanrao Gorantyal- Case Analysis

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B (4) is unnecessary if the original document itself is produced.

The Court was hearing the reference from the July 26, 2019 order where, after quoting Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength. The Division bench, in the Shafhi Mohammad judgment, had “clarified” that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.

The 3-judge bench in the present case, holding the Shafhi Mohammad judgment to be incorrect said, “the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B (4) in cases in which such person refuses to give it.”

Clarification on Anvar P.V. case:

“… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.”

The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V. Case and held that the last sentence in Anvar P.V. case which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act,…”

It said, The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”

Stage of furnishing the certificate to the Court:

The Court also took note of the fact that Section 65B does not speak of the stage at which such certificate must be furnished to the Court, and said that in cases where such certificate could be procured by the person seeking to rely upon an electronic record, such certificate must accompany the electronic record when the same is produced in evidence. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case.

“When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.”

General Directions to Cellular companies and internet service providers:

The bench issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act.

The Court directed that the aforementioned general directions shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

Framing of rules and directions under Section 67C of Informational Technology Act:

The Court directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April 2016.

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC Online SC 571  , decided on 14.07.2020]

To settle the two different interpretations between Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 and Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, the mater was referred to larger Bench of Hon’ble Supreme Court of India. We all were waiting for the verdict to come which would rest in peace the two completely different approaches of interpretation of “may be” clause in section 65A that is whether statement u/s 65B of Indian Evidence Act is mandatory or not and this Judgement (Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors) solves many controversies regarding presentation, relevancy and admissibility of electronics evidence in Court room. In the following paragraphs I have tried to understand the gist of this recent landmark judgement which are as follows:  

(i). The judgement in Tomaso Bruno being per incuriam does not lay down the law correctly and the judgement reported as (2018) 5 SCC 311 and Shafhi Mohammad do not lay down the law correctly and are hereby overruled.

(ii).    The certificate under Section 65B (4) is unnecessary if the original document itself is produced. If the owner proves a laptop, computer, computer tablet or a mobile phone owned or operated by him, bringing the same in the witness-box, on which the original information is first stored, the requirement of the statement or the certificate u/s 65B(4) is unnecessary.

(iii).  On the other hand, where the computer is part of a computer system or computer network and bringing the said system or network before the court is impossible then providing the information contained in such electronic record can only be in accordance with section 65B(1) along with requisite certificate u/s 65B(4) of Evidence Act. Hence, in that situation the clarification made in Paragraph 24 of Anvar P.V. v. P.K. Basheer does not require to be revisited.

(iv). the direction issue in Paragraph 62 of Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors. Judgement shall hereafter be followed by the court dealing with electronics evidence till rules and directions u/s 67C of I.T. Act and data retention conditions are formulated for compliance by telecom and internet service providers. In Paragraph 62, general directions are issued to cellular and internet service providing companies to maintain CDRs and other relevant records for the concerned periods in tune with section 39 of evidence act in a segregated and secure manner if a particular CDR or other records is seized during investigation in the said period. Concerned parties can then summons such records at the stage of defense evidence or if such data is required to cross examine a witness. The above direction in criminal trials be applicable till appropriate directions are issued under various relevant terms of the applicable license or u/s 67C of I.T. Act.

(v).     Appropriate rules and directions should be framed by exercising powers such as 67C of I.T. Act and framing suitable rules for retention of data involved in trial of offences, there segregation, rules of chain of custody, stamping and record maintenance. for the entire duration of trials and appeals and in case of preservation of meta-data to avoid any corruption of data.

(vi).  Lastly, “appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April 2016.”

Finally, Hon’ble Supreme Court of Indian, concludes in the following celebrated way: It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations. Therefore, it is the need of the hour that there is a relock at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu31 to Anvar P.V.32 to Tomaso Bruno33 to Sonu34 to Shafhi Mohammad.35

Now on analysis some issues are coming up which are as follows:

i) Not all the time the people will come before Court with clean hand and there may be cases where the litigant will come with devises with evidence already modified and what will be their point of reliability, especially when the Central Forensic Laboratories are not willing to accept the request for extraction of data or providing expert report with the suspected devices with a plea that they are over-burden.

ii) Will the ISP or MSP will make necessary arrangements to preserve their data in their original form till the completion of trail or appeal what is applicable?

iii) This judgement will help compel the stake-holders to come with appropriate rules under 67C of IT Act and materialist a draft rule in dealing with electronic evidence as  it is high time to have a comprehensive rule for us to dispel all types of confusion in dealing with electronic evidence in Court room.  

iv) A comprehensive rule in the wake of the provision of section 79A of IT Act(making arrangement for Examiner of Electronic Evidence) is highly required for assistance of various learned Courts throughout the country. 

The judgment reads, "In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC."

Supreme Court- It was further held that once such application is made, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, "the party asking for the certificate" would be deemed to have done all that he can possibly do to obtain the requisite certificate.

The Aurangabad Bench of the Bombay High Court asked the Election Commission to produce the entire record of the election, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates’. Though the Commission did not produce a certificate in writing, the Returning Officer in her cross-examination stated that there was no complaint with regard to the working of video cameras at her office. Based on this “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence. Thus, based on this evidence, the Bench of Justice TV Nalawde on November 24, 2017, ruled the election of Khotkar as void. 

Khotkar thus approached the Supreme Court in appeal, contending, among other things, that without the necessary certificate in writing under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence.

Conclusion

Evidence is an imperative part of every case, whether it is a criminal case or a civil suit as it validates a fact. The facts can be used in evidence for deciding as well as proving the disputed facts. Evidence attaches weight to the facts quoted as evidence. Thus, various types of evidence can be used for proving and disproving facts. Moreover, evidence helps in curbing down the time dedicated to a particular case. Thus, it can be concluded that the evidence is for judicial behaviour like the reasoning for logic.