Documentary evidence: primary and secondary evidence, and electronic and digital records (sections 56 to 63)

1. Primary evidence: sections 56, 57 and 59

The contents of documents may be proved by primary or secondary evidence (section 56), and must be proved by primary evidence except in the cases provided (section 59). This is the best evidence rule. Primary evidence means the document itself produced for the inspection of the Court (section 57). The Explanations:

• 1. A document executed in several parts: each part is primary evidence.
• 2. A document executed in counterpart, each signed by one party: each counterpart is primary evidence against the party who signed it.
• 3. Documents made by one uniform process (printing, lithography, photography): each is primary evidence of the contents of the rest, but not of a common original. Placards printed at one time are primary evidence of each other, not of the manuscript.
• 4. (new) An electronic or digital record stored simultaneously or sequentially in multiple files: each file is primary evidence.
• 5. (new) An electronic or digital record produced from proper custody is primary evidence unless it is disputed.
• 6. (new) A video recording simultaneously stored and transmitted or broadcast: each stored recording is primary evidence.
• 7. (new) A record stored in multiple storage spaces in a computer resource: each automated storage, including temporary files, is primary evidence.

2. Secondary evidence: section 58

• (i) certified copies;
• (ii) copies made by mechanical processes which ensure accuracy, and copies compared with them;
• (iii) copies made from or compared with the original;
• (iv) counterparts as against the parties who did not execute them;
• (v) oral accounts of the contents by someone who has seen the document;
• (vi) oral admissions, (vii) written admissions, and (viii) evidence of a skilled person who has examined numerous accounts that cannot conveniently be examined in Court (all three new).

A photograph of the original is secondary evidence if the thing photographed is proved to be the original. An oral account of a copy is not secondary evidence of the original (illustration (d)): a copy of a copy, not compared with the original, is too remote.

3. When secondary evidence may be given: section 60

• (a) the original is in the possession of the opposite party, or of a person out of reach of the Court's process, or legally bound to produce it, and after notice under section 64 it is not produced;
• (b) its existence, condition or contents are admitted in writing by the person against whom it is proved;
• (c) the original is destroyed or lost, or cannot be produced in reasonable time for a reason not arising from the party's own default;
• (d) the original is not easily movable (an inscription on a wall);
• (e) the original is a public document under section 74;
• (f) a certified copy is permitted by law; and
• (g) the originals are numerous accounts and the fact to be proved is the general result.

The Explanation controls the kind of secondary evidence: for (a), (c) and (d) any secondary evidence; for (b) the written admission; for (e) and (f) only a certified copy; for (g) a skilled person's evidence of the general result.

The party must first lay a foundation by proving the existence of the original and the circumstances that permit secondary evidence. Mere marking of a photocopy as an exhibit does not prove its contents: J. Yashoda v. K. Shobha Rani, 2007 INSC 441, (2007) 5 SCC 730. When the foundation is laid, the Court should allow it: Rakesh Mohindra v. Anita Beri, 2015 INSC 836, upheld a trial court's order permitting secondary evidence where the photocopy came from official custody and the party had made all efforts to produce the original.

4. Electronic and digital records: sections 61 to 63

Section 61 (new): nothing in the Adhiniyam shall deny the admissibility of an electronic or digital record on the ground that it is electronic; subject to section 63 it has the same legal effect, validity and enforceability as other documents. Section 62: the contents of electronic records may be proved in accordance with section 63.

Section 63(1): information in an electronic record printed, stored, recorded or copied (the "computer output"), produced by a computer or any communication device, is deemed a document and admissible without further proof or production of the original, if the conditions in section 63(2) are satisfied: the device was used regularly in the period by the person in lawful control; information of the kind was regularly fed in; the device was operating properly (or any malfunction did not affect the record); and the output reproduces the information fed in. Section 63(3) treats networks, cloud resources and intermediaries as a single device.

Section 63(4), the certificate. A certificate identifying the record, describing how it was produced, giving particulars of the device, and dealing with the section 63(2) conditions, must be submitted along with the electronic record at each instance it is submitted for admission. It is signed by the person in charge of the device or the relevant activities and an expert, in the form in the Schedule. Part A is filled by the party and Part B by the expert; both record the device, its identifiers and the hash value of the record (SHA1, SHA256, MD5 or another accepted standard).

5. The case law on the certificate

• Anvar P.V. v. P.K. Basheer, 2014 INSC 645, (2014) 10 SCC 473. Section 65B is a complete code. A secondary copy of an electronic record (a CD, a printout) is admissible only with the certificate under section 65B(4). It overruled Navjot Sandhu (2005) on the point that such evidence could be given under ss.63 and 65 without a certificate. If the original device itself is produced, the certificate is not needed.
• Shafhi Mohammad v. State of Himachal Pradesh, 2018 INSC 75, (2018) 2 SCC 801 (two judges), relaxed the requirement where the party was not in possession of the device.
• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 INSC 453, (2020) 7 SCC 1 (three judges). Reaffirmed Anvar and held Shafhi Mohammad wrongly decided. The certificate is a condition precedent to admissibility of secondary electronic evidence. Where the party cannot obtain it from the person in control, it may apply to the Court to direct its production. It may be produced at any stage before the trial is over, subject to fairness to the accused.

How far these cases survive the new text is not yet settled. Explanation 5 to section 57 makes a record from proper custody primary evidence unless disputed, which may reduce the occasions on which a certificate is needed; section 63(4) requires the certificate at each instance of submission. An answer should state both provisions and the 2020 position, and say that the interaction awaits authoritative decision.

6. Tape-recorded conversations

A tape or digital audio recording is a document under section 2(1)(d) and is relevant as a contemporaneous record of what was said, like a photograph of a relevant incident. Yusufalli Esmail Nagree v. State of Maharashtra, 1967 INSC 118, AIR 1968 SC 147, and R.M. Malkani v. State of Maharashtra, 1972 INSC 234, (1973) 1 SCC 471, laid down the conditions: the voice must be identified, the accuracy of the recording proved and the possibility of tampering ruled out, the statement must be relevant, and the tape kept in safe custody. Malkani also held that a recording of a conversation made without the speaker's knowledge, but without compulsion, is not inadmissible for that reason. Today the recording, if offered as a copy, also needs the section 63 certificate.

7. Problem

In a bribery prosecution, the complainant produces a pen drive containing a copy of a call he recorded on his phone. The phone has since been lost. No certificate is filed. Admissible?

Conclusion. The pen drive is a copy, so it is not primary evidence under Explanation 4 or 5 to section 57 unless shown to be one of the stored files from proper custody. As a copy, section 63(4) requires a certificate in the Schedule form, signed by the person in charge and an expert with the hash value. Under Arjun Panditrao the absence of a certificate is fatal, but the prosecution may seek leave to produce one before the trial ends. Voice identification and the absence of tampering must also be proved (Malkani).

How this is examined

"Define primary and secondary evidence and state the framework for admissibility of electronic and digital records" (June 2025), "State the cases in which secondary evidence may be given" (Jan 2026), "Secondary evidence" (Law of Evidence, June 2025) and "Evidentiary value of tape recorded conversation" (Jan 2026, set in Unit II). Lead with the definitions, then section 60 with its Explanation, then sections 61 to 63 and the cases.