As per section 3 of the Indian Evidence Act, ‘all documents produced for the inspection of the court; such documents are called documentary evidence.’ These also include electronic records and Chapter V of the Indian Evidence act deals with documentary evidence and presumptions regarding them.
This section states that if a document is produced before a court, it may either be produced by primary evidence or by secondary evidence.
This section defines primary evidence whereas; section 63 deals with secondary evidence. Primary evidence means that the original document is itself presented before the court. If the document is executed in several parts, each part is primary evidence of the document and where a document is executed in counterparts, each counterpart is primary evidence against the party signing it. In the case of lithography or photography, or where a number of documents are made from one uniform process, each serves as primary evidence as to the contents of the document.
Secondary evidence includes:
- Certified copies of the original document.
- Copies made by mechanical processes.
- Copies made from or compared with the original.
- Counterpart of a document is secondary evidence against the party who did not sign it.
- Oral account of the contents of the document by a person who has himself seen it.
The list is not exhaustive and all the secondary evidence stand equal in ranking, i.e., it is not required that the evidence of succeeding category can only be given when the preceding category is not available; the rule is that if the original is not available, its certified copies can be produced.
How are Documents to be proved?
SECTION 64 provides that documents must be proved by primary evidence except in the cases hereinafter mentioned, i.e., the cases provided in section 65.
SECTION 65 provides when secondary evidence can be given [clauses (a) to (g)]:
- When the original is shown or appears to be in the possession of someone against whom it is to be produced or who is out of reach or not subject to the court or is not legally bound to produce it or if he is, does not produce it to the court even after being sent a notice.
- When the existence, conditions or content of the document have been proved to be admitted in writing by the party against whom it will be produced or by his representative.
- When the original is destroyed or loss or for some reason, other than party’s own neglect, it cannot be produced before the court in reasonable time.
- If the documents are bulky and cannot be moved.
- When the original is a public document.
- When the original’s certified copies can be given as evidence, as provided under evidence law or any other law of the country.
- When the original consists of a lot of accounts or documents which cannot be conveniently examined by the court and the fact to be provided is a general result of the whole collection.
After meeting the necessary circumstances, if secondary evidence has been admitted by the court without any objection by the other party, the other party cannot object over it at a later stage. In Ranvir Singh v UoI (AIR 2005 SC 3467), Xerox copies of sale deeds were marked as the exhibit without any objection, the Supreme Court did not permit any objections to it, at a later stage.
SECTION 65A says that the contents of electronic records may be proved in accordance with the provisions of SECTION 65B:
- The computer output containing the information is produced by the computer which was used to process or store the information in the regular course of action by a person having lawful control over the use of a computer.
- The information is of the kind which was regularly fed into the computer in the ordinary course of activities
- The computer must have been operating properly when the record in question was fed to it.
- The information in the record was derived or reproduced from the information fed into the computer in the ordinary course of activities.
Here, a computer output is anything that is printed on a paper, stored, recorded or copied to a computer. If the information was processed or fed to a number of inter-linked computers or to successive computers or a combination of both, they shall be treated as a single computer [Section 65B (3)]. The record has to be produced with a certificate explaining the contents and the manner in which it was produced and should be signed by a person occupying a position in relation to the management of the device [Section 65B (4)].
As per section 65 (a), if a person does not produce the required document, even on notice, secondary evidence regarding the document becomes admissible. There are, however, certain cases where secondary evidence can be given without notice:
- When the document is itself a notice.
- When the nature of the case is such that the party in possession is required to produce it.
- When it is clear that the party has obtained the original document with fraud or force.
- When the adverse party or his agent has the original in court.
- When the adverse party has admitted that the original is lost.
- When the person in possession is out of reach or not subject to the court.
In Doed Thomson v Hodgson (1860, 9 LJQB 327), the learned judge held that when demanded, the opposite party fails to produce the original and secondary evidence has been submitted, the opposite party cannot submit the original as evidence, later.
Proof of Signature
SECTION 67 says that if it is alleged that a document is signed or written, wholly or partly, by a person, the same has to be proved by the party alleging it.
SECTION 67A states that if it is alleged, that a subscriber’s electronic signature is affixed to an electronic record, the same shall be proved by the party alleging it.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness, at least, has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided, it shall not be necessary to call a witness in proof of execution of a document, not being a will, which has been registered as per the Indian registration act, unless, the executor specifically denies it.
SECTION 69 provides that if none of the witnesses is available or if the document was executed in the United Kingdom, it must be proved that the executor’s and one of the attesting witnesses’ sign is in their own handwriting. In Babu Singh v Ram Sahai (AIR 2008 SC 3485), only the counsel of the party stated that the witness had been won over by the other side and no other proof as to whether the party took steps to compel the witness for attendance was shown. The Supreme Court did not consider it to obtain the benefit of relaxation of Section69.
It says that when an executant himself admits the execution of the document, there is no need to call for an attesting witness.
If the attesting witness denies or does not remember execution of the document, the document can be proven by other methods.
It states that an attested document which was not required by law to be attested shall be proved as it was not attested.
In order to ascertain whether a sign, writing or seal was made by a person, the court may compare it with a sign, writing or seal proved to be made by that person. The court may also direct any person present in the court to write any words or figures for the purpose of this section and this section also applies to fingerprints.
To prove a digital signature, the court may direct the person, by whom it purports to be made, or the controller or the certifying authority to produce the digital signature certificate. It may also direct any other person to apply the public key listed in the certificate and verify the digital signature.
PUBLIC DOCUMENTS AND THEIR PROOF
This section defines public documents as documents forming the acts or record of the acts:
- Of the sovereign authority;
- Of official bodies and tribunal;
- Of public officers, legislative, judicial and executive, of India or of a commonwealth or of a foreign country.
- By clause (2), public records kept in any State of private documents, such as, memorandum of article of a company with the Registrar of companies.
This section defines private documents as those which are not public documents.
This section defines certified copies of a public document. When, on being asked by a competent person who has paid the legal fees, a public officer, in custody of the required public document, provides the person with a certified copy of it, such copies so certified will be called certified copies. If the law requires the officer to use his seal, the copy will have to be sealed.
This section states that the certified copies may be produced as proof of the contents of the public document or a part of them of which they purport to be copies.
This section provides for proof of other public documents. For acts, order or notifications by central or state government, it should be certified by the respective head of the department. For legislature proceedings, proof by their journal or by published acts or abstracts. For the municipalities, the copy should be certified by the legal keeper. In the case of public documents of foreign countries, by the original or it should either be signed by a legal keeper, or an Indian diplomatic agent or an officer having legal custody of the original document.
PRESUMPTIONS AS TO DOCUMENT
This section states that the court shall presume a document to be genuine if it is a certificate or a certified copy. Also, any document, which is by law, declared to be admissible as evidence and has been certified by an officer of the central or the state government or of Jammu and Kashmir and is authorized by the centre. Provided, that the document is executed in the form as prescribed by the law.
This section states that when a person has appeared before a court and has recorded a testimony or confession and his statement being relevant in another case, a certified copy is produced; the court shall presume it to be genuine.
Under this section, official gazettes, newspapers or journals and copies of the acts of parliament are presumed to be genuine. In State of Rajasthan v UoI (1977, 3 SCC 592), the Supreme Court held that news reports do not constitute admissible evidence of their truth.
The court presumes the genuineness of any electronic record purporting to be the official gazette or any other record directed by law to be kept by any person, in a prescribed form and which is produced from proper custody.
When any document is admissible by any court of England or Ireland for any particular purpose without proving the sign or stamp or seal authenticating it, the same is admissible for the same purpose, in India and is deemed to be genuine.
The Court presumes that map or plans purporting to be made by the Central or any State Government, are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
The court presumes every book published or printed under the authority of the government of any country to be genuine which lay down the laws of that country or the reports of the decisions of the court of such country.
A power of attorney, executed and authorized by a Notary, or any court, Judge Magistrate, Indian Consul or Vice Consul, or representative of the Central Government is presumed to be genuine.
The court shall presume that every electronic agreement concluded by affixing electronic signatures of the parties shall be genuine.
The court presumes electronic records to be genuine and electronic signatures to be made by the subscriber with the intention of approving electronic record until the contrary is provided.
The court presumes that the information listed in an electronic signature certificate is correct, except for the subscriber information, if the certificate was accepted by the subscriber.
In this section, the court is given a judicial discretion to presume that certified copies of foreign judicial records are genuine.
The court may presume that the information provided through books, or maps or charts to prove some fact in issue is genuine and is written or made by the author so named and published by the publication so mentioned.
This section is a presumption as to the telegraphic message. The court may presume that the message sent to the post office was the message forwarded through telegram and it was received by the person who was purported to receive it.
The court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee corresponds with the message as fed into his computer for transmission. In both, section 88 & 88A, the court cannot make a presumption as to the person by whom such message was delivered.
It is a compulsory presumption on behalf of the court that a document called for and not produced after a notice for production, was attested, stamped and executed in the manner required by the law.
The court may presume a document, which is thirty years old and is produced from custody which appears to be proper to be genuine. The date on the evidence is the prima facie evidence of its age and the parties are not required to prove the age of the evidence (Anderson v Weston, 1840 9 LJCP 194).
It is presumed that if a document is altered, it was made before its execution, whereas in case of a will, it is altered after its execution.
SECTION 90A provides that a court shall presume any electronic record, which is five years old and is produced from proper custody to be genuine.
By – Udit Dwivedi
Babu Banarasi Das University
- Dr Avtar Singh, Central Law Publications, Principles of the law of evidence
- SCC online
- The Indian Evidence Act, 1872
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