Supreme Court Clarifies Principles Regarding Admissibility of Secondary Evidence


LI Network

Published on: November 30, 2023 at 11:59 IST

The Supreme Court elucidated the essential principles governing the admissibility of secondary evidence under the Indian Evidence Act, 1872.

The court, presided over by Justice Abhay S Oka and Justice Sanjay Karol, underscored the established legal position that when a document requiring stamping lacks sufficient stamping, the use of a copy of such document as secondary evidence is legally impermissible.

In a comprehensive review of precedent, the court stated the following key principles:

  1. The primary evidence, or the best evidence, must be presented first as mandated by law.
  2. Section 63 of the Evidence Act specifies the types of documents acceptable as secondary evidence, which is admissible only in the absence of primary evidence.
  3. If the original document is accessible, it must be produced and proven in accordance with the prescribed methods for primary evidence.
  4. Primary evidence of content should be endeavored, and secondary evidence is permissible only in exceptional cases.
  5. Non-availability of a document must be properly explained for secondary evidence to be admissible.
  6. Secondary evidence is admissible when the party cannot produce the original document for reasons beyond their default or neglect.
  7. Copies become acceptable secondary evidence in the absence of the original, but foundational evidence of authenticity must be established.
  8. The non-production of the original document must be accounted for in a manner consistent with the exceptions provided in Section 63 of the Evidence Act.
  9. Mere production and marking of a document as an exhibit by the court do not constitute sufficient proof of its contents; it must be substantiated in accordance with the law.

The court’s findings were applied to a specific case involving an agreement to sell executed in 1998. The plaintiff sought to introduce a copy of the agreement as secondary evidence, which was initially denied by the lower courts due to insufficient stamping.

The Supreme Court, after analyzing the applicability of Section 35 of the Stamp Act, concluded that the agreement was not chargeable with duty at the time of execution, thus making it admissible as secondary evidence.

The court also addressed the issue of presenting a copy of a document as secondary evidence when the original is not in the possession of the party.

Referring to Section 65(a) of the Evidence Act, the court held that secondary evidence can be admitted when the original is held by the opposing party or a third party who refuses to produce it.

In the specific case, the court allowed the plaintiff’s request for secondary evidence, emphasizing that the admissibility of such evidence would be independently decided by the court.

Case Title: Vijay v. Union of India

Related Post