Primary and Secondary Evidence under BSA

Introduction 

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. 

• The Indian Evidence Act, 1872 (IEA) delineates two categories of evidence: 
  • Primary Evidence  
  • Secondary Evidence  
• The same provision related to evidence is now provided under Chapter V the Bharat Sakshya Adhiniyam, 2023 (BSA). 

Section 56 of BSA 

• Section 56 of the BSA stipulates that the contents of a document may be substantiated through two methods: 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 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. 

Essentials of Primary Evidence 

• Section 57 of BSA outlines the essentials of primary evidence as follows: 
  • Original Document: Primary evidence refers to the document itself presented for court inspection. 
  • Multiple Parts Execution: Each part of a document executed in multiple parts is considered primary evidence. 
  • Counterparts Execution: Each counterpart of a document executed in counterparts is primary evidence against the parties who executed it. 
  • Uniform Process Documents: Documents produced by uniform processes like printing or photography are primary evidence of their contents, but copies of a common original are not. 
  • Electronic/Digital Records: 
    • Electronic or digital records stored simultaneously or sequentially in multiple files are primary evidence. 
    • Records from proper custody are primary evidence unless contested. 
    • Video recordings in electronic form are primary evidence when stored and transmitted simultaneously. 
    • Digital records stored in multiple spaces, including temporary files, are also primary evidence. 
    • Proper custody of electronic records strengthens their legal validity as primary evidence. 

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. 

Essential of Secondary Evidence  

• The essentials of secondary evidence under Section 58 of BSA are as follows: 
  • Certified Copies: Copies certified by authorized personnel are admissible as secondary evidence. 
  • Mechanical Process Copies: Copies produced by mechanical processes, such as photocopies or facsimiles, can serve as secondary evidence. 
  • Oral and Written Admissions: Statements made orally or in writing admitting the contents of a document are considered secondary evidence. 
  • Oral Accounts of Document Contents: Testimony provided orally regarding the contents of a document qualifies as secondary evidence. 
  • Evidence of Examination: Testimony from a person who has examined a document, when the original is complex or impractical to present in court, constitutes secondary evidence. 

Difference between Primary and Secondary Evidence 

Conclusion 

Primary and secondary evidence are 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. 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. Courts require compelling reasons and evidence for admitting secondary evidence.