(a) meaning of Section 74; if) when

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

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(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

if) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and id), any secondary evidence of the contents of the document is admissible.

In case (6), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

Comments:

Principle:

Section 65 mentions seven cases in which secondary evidence is admissible. This section relates to exceptions to the rule laid down in Section 64. The principle underlying the section is that when original document is not available or is destructed or is in the custody of opposite party or under the control of third person who does not produce after notice secondary evidence is admissible.

Application for production of secondary evidence must give full details and must be supported by a proper affidavit. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the case. A document in terms of Section 65 of the Evidence Act is to be proved by a person who is acquainted with the handwriting of the author thereof.

Cases in which secondary evidence is admissible:

Clause 1: When the original document is in possession of,—

(a) A person against whom it is to be proved, or

(b) Any person out of the reach of, or not subject to the process of the court, or

(c) Any person who is legally bound to produce it, does not produce it even due notice has been given.

Clause 2: When the existence, condition or contents of the original has been proved to be admitted in writing.

Clause 3: When the original has been destroyed or lost.

Clause 4: When the original is of such a nature as not to be easily movable.

Clause 5: When the original is a public document within the meaning-of Section 74.

Clause 6: When the original is a document of which certified copy is permissible.

Clause 7: When the originals consist of numerous accounts of other documents.

Clause 1. When original is in possession of opposite party or third person:

According to Clause 1 secondary evidence may be given when the original document is in possession or under the control of opposite party; the original is in possession or power of any person who is out of reach of or not subjected to the process of court; or any person legally bound to produce but did not produce it, or where the original manuscript of a leaflet was not shown to be in possession of the successful candidate in a election, when the Photostat copy was prepared, secondary evidence of Photostat copy is not permissible.

The document relating to a payment by cheque was in possession of the defendant and he did not produce it saying that it was filed with the Income Tax Office, the court granted permission for production of secondary evidence.

The original rent receipt was not in the possession of the defendant who did not produce it despite several notices and the plaintiff’s application for producing secondary evidence was rejected by the trial court, it was held that the trial court could not form such opinion without affording the plaintiff an opportunity of adducing secondary evidence. Where only Xerox copies and not original cheques are filed provisions of Section 65(a) cannot be invoked.

Clause 2. When the existence, condition or contents of documents have been admitted:

When the existence or contents of the original document has been proved to be admitted in writing by the person or his representative-in-interest, the production of secondary evidence is admissible. It is well settled that clauses

(a) And (c) are independent of clause (c) and even ordinary copy would be admissible.

When the existence and contents of a document are admitted in a letter, secondary evidence is admissible.

Clause 3. When the original has been destroyed or lost:

When the original document is destroyed or lost and evidence to that effect was given that it was not arising from person’s neglect or default then secondary evidence of its contents of the document may be given. Where the original document was lost, bare statement of person required to file document on affidavit that document was lost would be sufficient. In such situation secondary evidence may be permitted on proof of loss that “the original once existed.” Where the original postmortem report is lost in transit, the evidence of doctor who conducted the postmortem and who deposes the same before the court is admissible as secondary evidence.

Clause 4. When the original is of such a nature as not to be easily movable:

In such type of cases the secondary evidence of its contents is admissible. For example. Legislative Proceedings, Bank Ledger, Public Record, inscription on wall, etc. These may be treated as secondary evidence.

Clause 5. When the original is a public document:

When the original document is a public record under section 74 of the Evidence Act, a secondary evidence of its contents is admissible. In case of public documents except certified copy no other secondary evidence can be given. The certified copy of public document issued by Registering Office can be produce in proof of contents of public document or part of public document of which it purports to be a copy.

Clause 6. When the original is a document of which certified copy is permissible:

In such cases the certified copy of the original document is admissible as a secondary evidence to prove the contents of the original document. Certified copy of registered mortgage deed cannot be held to be public document, certified copy of which can be produced in evidence, a secondary evidence in terms of Section 65(6) of the Evidence Act. Certified copy of the sale deed can be filed to prove ownership and to session over the disputed land or property.

Clause 7. When the original consists of numerous accounts or voluminous documents:

This provision is used to save public time when the original document consist of number of documents of ponderous look or of accounts involving great inconvenience of production, secondary evidence of the relevant facts examined by the experts can be allowed to be admitted.

Secondary evidence is not permissible unless non-production of the originals is proved:

Where the originals were not produced at any time nor was any foundation laid for giving secondary evidence certified copies were not admissible.

Newspapers:

Newspaper is admissible without proof, but paper itself is not proof of its contents. The Supreme Court said that without further proof it is at best second hand secondary evidence. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently.

65A. Special provisions as to evidence relating to electronic record:

The contents of electronic records may be proved in accordance with the provisions of Section 65B.

65B. Admissibility of electronic records:

(1) Notwith­standing anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) By a combination of computers operating over that period; or

(b) By different computers operating in succession over that period; or

(c) By different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) Identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate; and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(6) Whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation:

For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.

Comments:

The computer generated electronic records in evidence is admissible at a trial if proved in the manner specified by Section 65B. Compliance with Section 65B (4) (2) is enough to make admissible and prove electronic records.

When unlawful acts of illegal mining operation encroaching into forest area take place the satellite sketches based on support of allegations are admissible. But same has to be substantiated by respondents in trial before the competent court and the petitioner is also entitled to rebut the same so that the rule of law would prevail.

Where the High Court granted two months period for recording evidence by video conferencing, rejection of application for expiry of two months by the trial court is not proper.

Recording of evidence through the process of video conferencing was permitted such facility was accorded in criminal cases, but there cannot be any plausible objection for adopting same procedure in civil cases.