Introduction 

• Chapter V of Bhartiya Sakshya Adhiniyam, 2023 (BSA). states the provisions regarding documentary evidence.  
• The word document has been defined under Section 2(d) of BSA.  
  • Any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records  
• The legal system fundamentally depends on evidence to ascertain facts, support claims, and ensure fair and equitable outcomes in judicial proceedings. Within this framework, the distinction between primary and secondary evidence is critically important.

Categories of Documentary Evidence 

• Documentary evidence has been categorized in three parts (as per BSA):  
  • General rules concerning proving documentary evidence in various cases are dealt with under sections 56 to 73.  
  • Second is the public documents which are dealt with under sections 74 to 77 and  
  • Finally, it is Section 78 to 93 which deals with presumptions as to the documents.

What are the Important Legal Provisions relating to Documentary Evidence? 

Primary Evidence: 

• Section 57 of BSA defines primary evidence as the original document presented for the court's inspection.   
• This encompasses documents executed in parts or counterparts, as well as those produced through uniform processes such as printing or photography.   
• Importantly, electronic or digital records are recognized as primary evidence when stored concurrently or sequentially across multiple files, and video recordings in electronic form are also classified as primary evidence.  
• Illustration:  
  • If a person is found in possession of several placards, all printed from the same original at the same time, each placard can serve as primary evidence of the contents found on any other placard. However, none of these placards can serve as primary evidence of the original document's contents. 

Secondary Evidence: 

• Section 58 of BSA delineates secondary evidence, encompassing certified copies, copies produced by mechanical processes, oral and written admissions, oral accounts of document contents, and testimony from individuals who have examined documents.   
• 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 copy of a letter produced by a copying machine and compared with another copy is considered secondary evidence of the letter's contents, provided it is demonstrated that the copying machine originally copied from the original letter 
• Section 60 of BSA deals with the cases in which secondary evidence relating to documents may be given.

Electronic Evidence

• Section 62 of BSA provides that the contents of electronic records may be proved in accordance with the provisions of section 63.  
• Section 63 of BSA provides for admissibility of electronic records.  
  • Section 63(1) provides that notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.  
  • Section 63(2) provides that the conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:  
    • The computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device.  
    • During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities. 
    • Throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents.
    • The information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities. 
  • Section 63(3) provides that where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—  
    • In standalone mode; or   
    • On a computer system; or  
    • On a computer network; or   
    • On a computer resource enabling information creation or providing information processing and storage; or   
    • Through an intermediary,  

All the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.  

• • Section 63 (4) provides that in any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—  
    • Identifying the electronic record containing the statement and describing the manner in which it was produced. 
    • Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3). 
    • Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.

Secondary Evidence of the Contents of the Documents (Section 64) 

• Section 64 of BSA states that the secondary evidence of the contents of the documents referred to in clause (a) of section 60, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate or representative, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—  
  • When the document to be proved is itself a notice. 
  • When, from the nature of the case, the adverse party must know that he will be required to produce it. 
  • When it appears or is proved that the adverse party has obtained possession of the original by fraud or force 
  • When the adverse party or his agent has the original in Court. 
  • When the adverse party or his agent has admitted the loss of the document 
  • when the person in possession of the document is out of reach of, or not subject to, the process of the Court. 

Section 65 to Section 73 of BSA 

• Sections 65 to 73 of BSA deals with the documents to be attested. This means that whenever you go to court you also need to prove the genuine nature of the document you presented before it. Hence mere presentation of the document in the court is not enough but must be proved as well. 
• Section 65 deals with proof of signature and handwriting of a person alleged to have signed or written document produced.  
• Section 66 deals with proof as to electronic signature.  
• Section 67 deals with Proof of execution of document required by law to be attested.  
• Section 68 deals with proof where no attesting witness found 
• Section 69 deals with proving the authenticity of a document where no attesting witnesses are found. 
  • It states that if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 
• Section 71 deals with proof of documents not required by law to be attested. 
• Section 72 deals with the comparison of signature, writing or seal with others admitted or proved. 
  • Subsection (1) of Section 72 states that in order to ascertain whether a signature, writing or seal is that of the in order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may require- 
    • That person or the Controller or the Certifying Authority to produce the Digital Signature Certificate. 
    • Any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person. person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.  
  • Subsection (2) of Section 72 states that the Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.  
  • Subsection (3) of Section 72 states that this section applies also, with any necessary modifications, to finger impressions. 
• Section 73 deals with the proof as to verification of digital signature. 
  • It states that in order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct—  
    • That person or the Controller or the Certifying Authority to produce the Digital Signature Certificate. 
    • Any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person. 

Conclusion  

Documentary evidence is crucial in the legal system for proving facts and claims. Primary evidence, such as original documents directly presented in court, holds significant evidentiary value as the most reliable source of documentary evidence while Secondary evidence serves as a substitute when primary evidence is unavailable. It can be accepted if there's a valid reason for its use, backed by factual justification.