Section 58: Secondary Evidence

Overview

Section 58 of the Bhartiya Sakshya Bill, 2023, deals with ‘secondary evidence’. Imagine you need to prove a contract exists, but you don’t have the *original* signed document. Secondary evidence allows you to use things *about* the original – like a photocopy, a description from someone who read it, or a recording – to prove its contents. However, it’s generally less reliable than the original, so the law sets rules for when it can be used in court.

Key Principles / Ingredients

• What type of evidence is covered: This section covers documentary evidence (copies of documents), mechanical reproductions (photocopies, scans, recordings), and oral accounts (testimony about what a document said). It doesn’t deal with direct, firsthand evidence.
• Conditions for admissibility or relevancy: Secondary evidence is *not* automatically allowed. It’s only admissible if the court is satisfied that the original document:
  • Is lost or destroyed.
  • Is in the possession of someone who won’t produce it.
  • Is genuinely unavailable despite reasonable efforts to obtain it.
• Burden of proof implications: The party presenting secondary evidence has the burden of proving that the original is unavailable. They must convince the court why they can’t produce the original document. If they fail, the secondary evidence won’t be considered.

How Courts Use this Provision

Judges carefully scrutinize requests to use secondary evidence. They’ll ask questions like: “What happened to the original?” and “Why couldn’t you get it?” The court will assess whether a genuine attempt was made to find the original. If the court believes the original was deliberately hidden to avoid scrutiny, the secondary evidence will likely be rejected. The judge has discretion to allow or reject secondary evidence based on the specific facts of the case.

Illustrations and Examples

• Example 1 – a simple situation: A shopkeeper claims someone owes them money based on a bill. The original bill is lost in a fire. The shopkeeper can use a photocopy of the bill (secondary evidence) to prove the debt, *after* proving to the court that the original was indeed destroyed in the fire.
• Example 2 – a more complex situation: A company sues another for breach of contract. They submit a witness’s testimony about the contract’s terms because the original is allegedly with the defendant, who refuses to provide it. The court will consider if the plaintiff made reasonable efforts to obtain the original from the defendant before resorting to the witness’s testimony. If the court finds the plaintiff didn’t try hard enough, the testimony might be excluded.

Important Provisos / Explanations

The Bill doesn’t contain specific provisos or explanations attached directly to Section 58. However, the general principles of fairness and due process apply. The court must be satisfied that allowing secondary evidence won’t unfairly prejudice the other party.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the core principles of Section 33 of the Indian Evidence Act, 1872, regarding secondary evidence. However, the new Bill aims for greater clarity and simplification of language, making the application of these principles more straightforward. There are no significant substantive changes to the admissibility criteria.

Key Takeaways

• Secondary evidence is a substitute for the original document.
• It’s only admissible when the original is unavailable.
• The party using secondary evidence must prove the original’s unavailability.
• Courts have discretion to admit or reject secondary evidence.
• Always prioritize presenting the original document if possible.