Section 59: Proof of Documents by Primary or Secondary Evidence

Overview

Section 59 of the Bhartiya Sakshya Bill, 2023, deals with how documents are presented as proof in court. It says you can prove a document either by showing the original (primary evidence) or, if the original isn’t available, by using a copy or other evidence about its contents (secondary evidence), *as long as the law allows it*. This ensures a case isn’t thrown out simply because the original document is lost or unavailable.

Key Principles / Ingredients

• Type of Evidence: This section specifically covers documentary evidence – anything written or recorded. This includes traditional paper documents, as well as electronic records like emails, messages, and computer files.
• Conditions for Admissibility/Relevancy: The document must be relevant to the case (meaning it makes a fact more or less probable). Secondary evidence is only allowed if the court is satisfied that the original is unavailable due to legitimate reasons – not just carelessness.
• Burden of Proof: The party presenting the document (either primary or secondary) has the burden of proving its authenticity and relevance. If using secondary evidence, they *also* have the burden of proving why the original isn’t available.

How Courts Use this Provision

Judges will first look for primary evidence – the original document itself. If the original is produced, that’s generally the best proof. However, if the original is missing, the judge will consider whether to allow secondary evidence. They’ll ask questions like: Was a reasonable effort made to find the original? Is the explanation for its absence believable? Is the copy accurate? The judge has discretion to admit or reject secondary evidence based on these factors.

Illustrations and Examples

• Example 1 – Simple Situation: A shopkeeper wants to prove a sale. The original invoice is lost due to a flood. The shopkeeper can present a copy of the invoice (secondary evidence) along with evidence of the flood (to explain the original’s absence).
• Example 2 – More Complex: A company is suing for breach of contract. The original contract is missing, and the defendant claims it was never signed. The plaintiff presents a scanned copy of the contract found on a shared drive. The court will consider whether the plaintiff took reasonable steps to locate the original, and whether the scanned copy is a reliable representation of the original. The defendant might argue the scan could have been altered.

Important Provisos / Explanations

The section doesn’t have specific provisos or explanations attached. However, the Bill emphasizes that electronic records are treated as documents and are subject to the same rules of evidence. The court retains the power to determine the authenticity and reliability of any evidence presented.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the core principles of Section 65 of the Indian Evidence Act, 1872, regarding primary and secondary evidence. However, the new Bill provides greater clarity regarding the admissibility of electronic records, recognizing their increasing importance in modern litigation. The 2023 Bill explicitly includes electronic records within the definition of ‘documents’ removing ambiguity.

Key Takeaways

• Always present the original document (primary evidence) if possible.
• If the original is unavailable, be prepared to explain why and present reliable secondary evidence.
• The court has the final say on whether to admit secondary evidence.
• Electronic records are treated the same as paper documents under this section.