Section 58 BSA: Secondary Evidence

Section 58 BSA defines secondary evidence, its eight categories, examples, admissibility requirements and differences from primary evidence.

Introduction

Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) defines secondary evidence, an important concept in the law of documentary evidence. Secondary evidence is evidence used to establish the contents of a document through a legally recognised alternative to producing the original document itself.

The provision identifies eight categories of secondary evidence, including certified copies, mechanically produced copies, counterparts, oral accounts, oral and written admissions, and evidence given by a person skilled in examining numerous documents.

However, Section 58 primarily identifies what constitutes secondary evidence. It does not independently authorise the use of secondary evidence in every case. The circumstances in which such evidence may be given are governed by Section 60 BSA, while Section 59 establishes the general rule requiring primary evidence.

Bare Act: Section 58 of the Bharatiya Sakshya Adhiniyam, 2023

58. Secondary evidence.—

Secondary evidence includes—

(i) certified copies given under the provisions hereinafter contained;

(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(iii) copies made from or compared with the original;

(iv) counterparts of documents as against the parties who did not execute them;

(v) oral accounts of the contents of a document given by some person who has himself seen it;

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Illustrations.—

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

Meaning of Secondary Evidence Under Section 58 BSA

Secondary evidence refers to evidence of a document’s contents that falls within one of the categories recognised by Section 58.

For example, where an original agreement has been lost, a qualifying copy may be used to establish its contents if the party satisfies the applicable requirements for admitting secondary evidence.

The provision recognises that original documents may not always be available. They may have been lost, destroyed, retained by another person or become difficult to examine because of their volume.

However, the law does not permit secondary evidence merely because producing the original is inconvenient. A party must establish a legally recognised basis for relying on secondary evidence under the applicable provisions.

The distinction is important:

• Section 58: What constitutes secondary evidence?
• Section 60: When may secondary evidence be given?

Eight Types of Secondary Evidence Under Section 58 BSA

1. Certified copies — Section 58(i)

Certified copies issued in accordance with the relevant statutory provisions are recognised as secondary evidence.

A certified copy is a copy authenticated in the manner required by law.

Example: A party obtains a certified copy of a public record from the authority authorised to issue it.

Such a copy may be used to prove the relevant documentary contents where the applicable provisions permit its use.

2. Copies made by mechanical processes — Section 58(ii)

This category includes copies made from the original through mechanical processes that themselves ensure the accuracy of the copy, along with copies compared with such mechanically produced copies.

Example: A photocopy is made directly from an original document through a copying process that accurately reproduces its contents.

The party must still establish the necessary foundation for treating the copy as secondary evidence. Merely producing an unidentified photocopy does not automatically establish its admissibility or authenticity.

3. Copies made from or compared with the original — Section 58(iii)

A copy made directly from an original or compared with the original falls within this category.

Also Read: Section 56 BSA: Proof of Contents of Documents

Example: A person manually transcribes a letter and carefully compares the transcription with the original to confirm its accuracy.

The comparison with the original is important when the copy was not made directly from it.

4. Counterparts against parties who did not execute them — Section 58(iv)

A counterpart of a document is secondary evidence against a party who did not execute that counterpart.

Example: A contract is executed in counterparts, with A signing one counterpart and B signing another.

Under Section 57 BSA, each counterpart is primary evidence against the party who executed it. Under Section 58(iv), a counterpart is secondary evidence against a party who did not execute that counterpart.

This distinction is particularly important for examinations.

5. Oral accounts by persons who have seen the document — Section 58(v)

A person who personally saw a document may, in the circumstances permitted by law, give an oral account of its contents.

Example: A personally reads an original letter. The original is subsequently destroyed, and A is called to describe its contents.

A’s oral account may fall within Section 58(v), subject to the applicable requirements governing secondary evidence.

However, a person who merely heard another person describe the document does not thereby become someone who personally saw it.

6. Oral admissions — Section 58(vi)

Section 58 expressly recognises oral admissions as a category of secondary evidence.

Example: A party orally acknowledges that a written agreement contains a particular payment obligation.

Whether the admission may be relied upon to prove the document’s contents depends on the relevant provisions governing admissions and the admissibility of secondary evidence.

In particular, Section 20 BSA addresses when oral admissions concerning the contents of documents are relevant.

7. Written admissions — Section 58(vii)

Written admissions are also expressly included as secondary evidence.

Example: A party signs a written statement acknowledging the contents of an agreement.

The written admission may constitute secondary evidence under Section 58(vii), subject to the applicable requirements governing its use.

The distinction between oral and written admissions is important because the BSA expressly recognises both categories.

8. Evidence of a person skilled in examining numerous documents — Section 58(viii)

This category applies where the original consists of numerous accounts or other documents that cannot conveniently be examined in court.

The evidence may be given by a person who has examined those documents and is skilled in their examination.

Example: A dispute concerns several thousand accounting entries maintained over multiple years. A person skilled in examining accounting records reviews the relevant documents and provides evidence based on that examination.

This provision helps courts deal with extensive documentary material without requiring every individual account or document to be examined in court.

However, the witness must satisfy the statutory description, and the applicable conditions for admitting such evidence must be met.

Summary of the Eight Categories

Clause	Category	Example
(i)	Certified copies	Certified copy of a public record
(ii)	Mechanically produced copies	Copy made directly from an original using an accurate copying process
(iii)	Copies made from or compared with the original	Handwritten transcription verified against the original
(iv)	Counterparts against non-executing parties	Counterpart signed by A, relied upon against B
(v)	Oral accounts by persons who saw the document	Witness describes an original letter personally read
(vi)	Oral admissions	Party orally acknowledges documentary contents
(vii)	Written admissions	Party signs a written acknowledgment of documentary contents
(viii)	Evidence concerning numerous documents	Skilled examiner explains findings from extensive accounting records

Explanation of the Four Statutory Illustrations

Illustration (a): Photograph of an original

A photograph of an original document may be secondary evidence of its contents even if the photograph has not been compared with the original, provided it is proved that the photographed object was the original.

The important requirement is establishing that the photograph was actually taken of the original document.

Illustration (b): Copy compared with a mechanically produced copy

A copy compared with a mechanically produced copy of a letter may qualify as secondary evidence if it is shown that the mechanically produced copy was made from the original.

This illustration recognises a particular chain of copying where the necessary connection to the original is established.

Illustration (c): Copy transcribed from another copy

A transcription made from a copy becomes secondary evidence if it is subsequently compared with the original.

However, if it is not compared with the original, it does not qualify merely because the intermediate copy was compared with the original.

The distinction turns on whether the particular transcription has been verified against the original.

Illustration (d): Oral account of a copy

An oral account of a copy, photograph or machine-copy is not secondary evidence of the original merely because the copy itself was compared with the original.

This illustration distinguishes personal knowledge of an original document from knowledge obtained by examining a reproduction.

When Is Secondary Evidence Admissible Under the BSA?

Section 58 identifies the recognised categories of secondary evidence. Section 60 governs the circumstances in which secondary evidence relating to documents may be given.

Also Read: Section 54 BSA: Proof of Facts by Oral Evidence

Depending on the statutory clause and its conditions, secondary evidence may be permitted in situations involving:

1. An original held by a person who does not produce it despite the applicable requirements being satisfied.
2. A written admission of the original’s existence, condition or contents.
3. An original that has been destroyed or lost, or cannot be produced within a reasonable time for a reason not arising from the party’s own default or neglect.
4. An original that is not easily movable.
5. A public document within the meaning of the Act.
6. A document for which the law permits proof through a certified copy.
7. Numerous accounts or other documents that cannot conveniently be examined in court, where the fact to be proved is their general result.

The precise form of secondary evidence permitted depends on the applicable clause of Section 60.

Important: Establishing that a document is a photocopy, certified copy or written admission under Section 58 does not, by itself, establish that it is admissible. The party must also satisfy the relevant statutory conditions.

Important Case Laws on Secondary Evidence

The following Supreme Court judgments were decided under the Indian Evidence Act, 1872. They explain principles relevant to Sections 58 to 60 BSA but are not decisions directly interpreting Section 58 of the new Act.

1. J. Yashoda v. K. Shobha Rani (2007)

Citation: (2007) 5 SCC 730.

Court: Supreme Court of India.

Facts: The dispute concerned the use of photocopied documents as secondary evidence in civil proceedings.

Decision: The Supreme Court explained that secondary evidence cannot be admitted without establishing the conditions permitting its use. The party seeking to rely on secondary evidence must account for the non-production of the original in accordance with the law.

Legal principle: The existence and execution of the original document, together with the statutory basis for producing secondary evidence, must be established where required.

Relevance to Section 58 BSA: This decision demonstrates that identifying a copy as a form of secondary evidence is not enough. The requirements governing its admissibility must also be satisfied.

2. H. Siddiqui (Dead) by LRs v. A. Ramalingam (2011)

Citation: (2011) 4 SCC 240.

Court: Supreme Court of India.

Decision: The Supreme Court emphasised that secondary evidence cannot be accepted without the necessary factual foundation. The party relying on a copy must establish the circumstances permitting secondary evidence and provide foundational evidence that the alleged copy is a true copy of the original.

The Court also explained that merely admitting a document into evidence does not automatically amount to proving its contents.

Legal principle: Admissibility and proof are distinct questions. A document must be proved in accordance with law even when it has been marked as an exhibit.

Relevance to Section 58 BSA: The judgment is important for understanding the requirements that apply when a party seeks to prove documentary contents through a copy rather than the original.

3. M. Chandra v. M. Thangamuthu (2010)

Citation: (2010) 9 SCC 712.

Court: Supreme Court of India.

Legal principle: The Supreme Court discussed the importance of primary evidence and the circumstances in which secondary evidence may be admitted. It recognised that secondary evidence serves as an alternative where the statutory conditions justify departure from production of the original.

Relevance to Section 58 BSA: The decision reinforces the principle that secondary evidence is recognised by law but cannot be used without satisfying the applicable requirements.

Difference Between Primary Evidence and Secondary Evidence

Basis	Primary evidence	Secondary evidence
Relevant provision	Section 57 BSA	Section 58 BSA
General meaning	Document itself produced for court inspection, including forms recognised by the explanations	Evidence of documentary contents falling within the recognised statutory categories
Typical example	Original signed agreement	Qualifying photocopy or certified copy
General rule	Ordinarily required under Section 59	Permitted under the conditions specified by law
Electronic records	Section 57 contains specific explanations	Electronic evidence must be assessed under the applicable documentary and electronic evidence provisions
Proof requirements	Must satisfy applicable requirements of authenticity and proof	Must satisfy applicable requirements, including the statutory basis for secondary evidence

The principal distinction is not simply that primary evidence is always reliable and secondary evidence is always unreliable. Both must be evaluated according to the applicable rules. The difference concerns their legal classification and the conditions governing their use.

Difference Between Section 58 BSA and Section 63 of the Indian Evidence Act, 1872

Section 58 BSA corresponds to Section 63 of the Indian Evidence Act, 1872.

The former provision recognised five categories of secondary evidence. Section 58 BSA expressly includes three additional categories: oral admissions, written admissions and evidence from a person skilled in examining numerous accounts or documents.

Basis	Section 58 BSA	Section 63 Indian Evidence Act
Subject	Secondary evidence	Secondary evidence
Certified copies	Included	Included
Mechanically produced copies	Included	Included
Copies made from or compared with originals	Included	Included
Counterparts against non-executing parties	Included	Included
Oral accounts by persons who saw the document	Included	Included
Oral admissions	Expressly included in clause (vi)	Not separately listed in Section 63
Written admissions	Expressly included in clause (vii)	Not separately listed in Section 63
Evidence concerning numerous documents	Expressly included in clause (viii)	Not separately listed in Section 63

These additions do not mean that the underlying concepts were entirely absent from the former evidence law. The BSA expressly consolidates them within the definition of secondary evidence.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• Section 20: When oral admissions as to contents of documents are relevant.
• Section 25: Admissions not conclusive proof, but may estop.
• Section 56: Proof of contents of documents.
• Section 57: Primary evidence.
• Section 58: Secondary evidence.
• Section 59: Proof of documents by primary evidence.
• Section 60: Cases in which secondary evidence relating to documents may be given.
• Section 61: Electronic or digital record.
• Section 62: Special provisions as to evidence relating to electronic records.
• Section 63: Admissibility of electronic records.

Important Points for Law Students and Judiciary Aspirants

• Section 58 BSA defines secondary evidence.
• It corresponds to Section 63 of the Indian Evidence Act, 1872.
• Section 58 BSA recognises eight categories of secondary evidence.
• The provision includes certified copies, mechanically produced copies and copies made from or compared with originals.
• Counterparts may constitute secondary evidence against parties who did not execute them.
• Oral accounts must satisfy the requirement concerning personal examination of the document.
• Oral admissions and written admissions are expressly included in clauses (vi) and (vii).
• Clause (viii) concerns evidence from a person skilled in examining numerous accounts or documents.
• Section 58 contains four statutory illustrations.
• Section 60 governs the circumstances in which secondary evidence may be given.
• Merely producing a photocopy does not automatically establish its admissibility or authenticity.
• J. Yashoda v. K. Shobha Rani and H. Siddiqui v. A. Ramalingam are important decisions concerning the legal foundation required for secondary evidence.

Frequently Asked Questions (FAQs)

1. What is Section 58 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 58 defines secondary evidence and identifies eight recognised categories, including certified copies, copies made through specified processes, counterparts, oral accounts, admissions and evidence concerning numerous documents.

2. Which section of the Indian Evidence Act corresponds to Section 58 BSA?

Section 58 BSA corresponds to Section 63 of the Indian Evidence Act, 1872.

3. Is a photocopy secondary evidence under the BSA?

A photocopy may qualify as secondary evidence where it satisfies the relevant statutory category. However, its admissibility depends on establishing the applicable requirements, including the conditions for using secondary evidence.

4. How many types of secondary evidence are mentioned in Section 58 BSA?

Section 58 expressly identifies eight categories of secondary evidence.

5. What are the new categories expressly included in Section 58 BSA?

Compared with the list in Section 63 of the former Evidence Act, Section 58 BSA expressly adds oral admissions, written admissions and evidence of a person skilled in examining numerous accounts or documents.

6. Can secondary evidence be admitted when the original document is lost?

Yes, where the applicable conditions under Section 60 BSA are satisfied. The party must establish the relevant circumstances concerning the loss and the legal foundation for admitting secondary evidence.

7. Does marking a photocopy as an exhibit prove its contents?

No. Merely marking a document as an exhibit does not automatically establish its contents. The document must be proved in accordance with the applicable rules of evidence.

8. Which Supreme Court judgments are important for secondary evidence?

J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, and H. Siddiqui (Dead) by LRs v. A. Ramalingam, (2011) 4 SCC 240, are important authorities on the requirements for admitting and proving secondary evidence under the predecessor Evidence Act.

Conclusion

Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 defines secondary evidence through eight recognised categories. It includes traditional forms such as certified copies and mechanically produced copies, along with express recognition of oral admissions, written admissions and evidence concerning numerous documents. The section must be read with Sections 59 and 60 because identifying evidence as secondary evidence does not automatically make it admissible. For examinations, the most important points are the eight categories, the four illustrations, and the distinction between the definition of secondary evidence and the conditions governing its use.