Under Bharatiya Sakshya Adhiniyam,2023(BSA) proving the contents of documents in an accurate way is very important.Different types of evidence can be used to prove the documentary evidence,like primary and secondary evidence.Here it is explained the concepts of primary and secondary evidence, the rules for proving documents, and electronic records.( Earlier under Section 61 to 73A of IEA)
What is Proof of Documents?
Proof of documents means the process in which the authenticity and contents of a document is presented before court. This can be done by giving primary or secondary evidence.
Section 56 of BSA outlines that document contents can be proven through-
- Primary Evidence or
- Secondary Evidence
Section 59 of BSA establishes the best evidence rule, requiring Primary Evidence for document proof, except when Section 60 of BSA exceptions apply. In essence, documents are typically proven using Primary Evidence, with Secondary Evidence allowed under Section 60 of BSA circumstances.
Key Components
1.Primary Evidence
It is the original document which is itself produced for inspection of the court. It is the most direct form of evidence.
2.Secondary Evidence
It includes copies or other replacements or substitutes which can be given for the original document. It is used when the original document is not available at that moment .
Proving Documents
1.Primary Evidence (Section 57 of BSA)
- Section 57 of BSA defines Primary Evidence as the original documents presented in court for inspection.This is said to be the most reliable and trusted evidence, giving the highest certainty regarding the relevant fact.
- The original document must be presented unless it is executed in several parts or counterparts, where each part or counterpart can serve as primary evidence.
- For documents produced by processes like printing ,lithography or photography, each copy is primary evidence of the rest copies, but not of the original.
- Electronic and digital records are said to be primary evidence if they are stored properly and produced from proper custody.
- Secondary Evidence (Section 58 of BSA)
- Section 58 of BSA provides a comprehensive list of acceptable forms of Secondary Evidence, including:-Certified copies ,Copies made by mechanical process,Copies made from or compared with original,Counter parts of document,Oral accounts.
3.Proof of Documents (section 59 of BSA) – This section establishes that documents should be proven using Primary Evidence, unless specific conditions are provided under Section 60 of BSA which allows for the admissibility of Secondary Evidence. These conditions are as follows:
- Where the original is in possession of another party or person legally bound to produce it.
- Where there is an admission to the existence or contents of the original.
- Original destroyed or lost
- Original not easily movable
- Public document
- Certified copy
- Original consisting of numerous accounts
- Electronic Records (Sections 61- 63 of BSA)
- Section 62 and 63 of BSA establish precise regulations concerning the acceptance of Electronic Evidence. Section 62 permits the use of electronic record content as evidence, provided that the conditions given under Section 63 of BSA are met.
- Electronic records are treated similar to physical documents if they meet up with certain conditions,like being produced by a functioning computer or communication device and properly stored.
- A certificate with the electronic record is given to confirm its authenticity and how it was produced.
5.Rules for Notice to Produce (Section 64 of BSA)
- Before giving secondary evidence, the party must give notice to the party having the original document to produce it, unless exceptions apply.
6.Proof of Signature and Handwriting (Sections 65 – 72)
- When a document is signed or written by someone, the signature or handwriting of that person must be proved.
- Section 67 of BSA says that if a document necessitating attestation is presented in a legal proceeding, it cannot serve as evidence unless at least one attesting a witness is summoned to affirm its execution.Cases in which the requirement for attesting witnesses may be waived:-Registered document (Proviso to Section 67),No witness found (Section 68,Admission by party (Section 69 )
- Section 72 of BSA states that the court has the authority to instruct anyone present in the courtroom to write specific words or figures.This comparison aids the court evaluate the similarity between the written content and any alleged written content by that individual. This section also applies to fingerprint impressions.
- Verification of Digital Signature (Section 73 of BSA)
Digital Signature Certificate or use of public key verification is required by the court to verify a digital signature.
Exceptions
- When No Notice is Required (Section 64 of BSA):where the document is a notice itself, in such cases notice to produce is not required,when the opposing party must know they need to produce it, or if the document is in their possession through fraud or force.
- Unavailability of Attesting Witnesses (Sections 67-70 of BSA): If no attesting witness is available, proving of the document can be done by other evidence, or by handwriting and signature comparisons.
- Attested Documents (Section 71 of BSA): It will be considered as if they were not attested when the attested documents that are not legally required to be attested.
Examples
- An original rental agreement is given in court for proving a tenant’s lease.(Primary Evidence)
- A certified copy of a birth certificate is produced before the court when the original is lost.(Secondary Evidence)
- A printout of an email is given where the original email is not accessible.(Electronic Record)
Why is This Important?
Correctly showing the difference between primary and secondary evidence,and following the rules about electronic records and signatures, helps in maintaining the integrity of the judicial system.
Documentary Evidence offers a tangible and often objective record of facts, providing a valuable means to establish the truth.The sections of Bharatiya Sakshya Adhiniyam,2023(BSA) surrounding Documentary Evidence makes sure its proper usage and controls manipulation, for the fairness and integrity of the judicial process. Courts rely on them to untangle the complexities, make informed decisions, and uphold justice in a systematic manner.
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