Section 60 BSA: When Secondary Evidence May Be Given

Section 60 BSA explains the seven circumstances in which secondary evidence of a document may be admitted, including loss of the original, refusal to produce it and public documents.

Introduction

Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) specifies the circumstances in which secondary evidence may be given to prove the existence, condition or contents of a document. It provides exceptions to the general rule under Section 59 BSA that documents must ordinarily be proved by primary evidence.

The provision identifies seven circumstances, including situations where the original document is withheld despite notice, its existence or contents are admitted in writing, it has been lost or destroyed, it is not easily movable, or it is a public document. It also addresses certified copies and cases involving numerous accounts or documents.

The key principle is that secondary evidence is not automatically admissible merely because the original is unavailable. The party must establish the relevant statutory ground and satisfy the conditions prescribed by law.

Bare Act: Section 60 of the Bharatiya Sakshya Adhiniyam, 2023

60. Cases in which secondary evidence relating to documents may be given.—

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:—

(a) when the original is shown or appears to be in the possession or power—

(i) of the person against whom the document is sought to be proved; or

(ii) of any person out of reach of, or not subject to, the process of the Court; or

(iii) of any person legally bound to produce it,

and when, after the notice mentioned in section 64 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;

(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;

(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, 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.

Explanation.— For the purposes of—

(i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;

(ii) clause (b), the written admission is admissible;

(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

(iv) clause (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 document.

Meaning of Section 60 BSA

Section 60 determines when a party may use secondary evidence instead of producing the original document. It operates alongside Section 58, which defines secondary evidence, and Section 59, which establishes the general requirement of primary evidence.

For example, if a person relies on a written agreement but the original has been lost despite reasonable care, the person may seek permission to prove its contents through secondary evidence. The court must consider whether the circumstances fall within Section 60(c) and whether the requirements for admitting the proposed evidence have been satisfied.

The provision also distinguishes between different situations. For instance, a certified copy may be the prescribed form of secondary evidence for a public document, while a skilled person may provide evidence of the general result of numerous accounts under clause (g).

The Explanation is particularly important because it specifies what form of secondary evidence may be used in each category.

Seven Circumstances Under Section 60 BSA

1. Original document withheld despite notice — Section 60(a)

Secondary evidence may be given when the original document is shown or appears to be in the possession or power of:

• The person against whom the document is sought to be proved.
• A person who is beyond the reach of, or not subject to, the court’s process.
• A person legally bound to produce the document.

The person must fail to produce the document after the notice required under Section 64 BSA, subject to the statutory exceptions to notice.

Also Read: Section 58 BSA: Secondary Evidence

Example: A files a suit against B and relies on a written agreement believed to be in B’s possession. A gives the legally required notice to produce the original, but B fails to produce it. If the statutory conditions are satisfied, A may seek to prove the agreement’s contents through secondary evidence.

Important point: A mere assertion that the opposing party possesses the original is insufficient. The party must establish the relevant circumstances and comply with the applicable notice requirements.

2. Written admission of the original’s existence or contents — Section 60(b)

Secondary evidence may be given when the existence, condition or contents of the original document have been proved to be admitted in writing by the person against whom it is sought to be proved or that person’s representative in interest.

Example: A claims that B entered into a written loan agreement. B signs a written statement acknowledging the existence and terms of that agreement. The written admission may be used as secondary evidence, subject to the applicable requirements.

The Explanation specifically states that, under clause (b), the written admission is admissible. It does not permit every form of secondary evidence merely because a written admission exists.

3. Original destroyed, lost or otherwise unavailable — Section 60(c)

Secondary evidence may be given when:

• The original has been destroyed.
• The original has been lost.
• The party cannot produce it within a reasonable time for another reason that does not arise from that party’s own default or neglect.

Example: A relies on an original agreement that was accidentally destroyed in a fire despite reasonable care. A seeks to produce a copy of the agreement.

The court must consider whether the loss has been sufficiently established and whether the circumstances satisfy Section 60(c). A copy is not automatically admissible simply because the party claims that the original is missing.

The provision also prevents a party from relying on circumstances arising from their own default or neglect to avoid the ordinary requirement of primary evidence.

4. Original document not easily movable — Section 60(d)

Secondary evidence may be given where the original document is of such a nature that it cannot easily be moved.

Example: A dispute concerns an inscription on a large stone monument that cannot conveniently be brought into court. The court may consider the appropriate form of secondary evidence, provided the statutory conditions are satisfied.

The Explanation permits any secondary evidence of the document’s contents for clauses (a), (c) and (d).

5. Original is a public document — Section 60(e)

Where the original is a public document within the meaning of Section 74 BSA, a certified copy may be used as secondary evidence.

Example: A party needs to establish the contents of an official public record maintained by a government authority. If the record qualifies as a public document, a certified copy may be produced in accordance with the applicable provisions.

Under the Explanation to Section 60, clause (e) permits a certified copy, but not another kind of secondary evidence under this clause.

Whether a document is public must be determined under the relevant statutory definition. Not every document held by a government office automatically qualifies as a public document.

6. Certified copy permitted by law — Section 60(f)

Secondary evidence may be given when the original is a document for which the BSA or another law in force in India permits a certified copy to be used as evidence.

Example: A party relies on a document for which the applicable law expressly permits proof through a certified copy. The party produces the certified copy in the legally prescribed form.

The Explanation specifies that a certified copy, and no other kind of secondary evidence, is admissible under clause (f).

7. Numerous accounts or documents — Section 60(g)

Secondary evidence may be given when the originals consist of numerous accounts or other documents that cannot conveniently be examined in court and the fact to be proved is the general result of the entire collection.

The provision permits evidence of the general result to be given by a person who has examined the documents and is skilled in examining that type of material.

Example: A commercial dispute involves thousands of accounting entries spread across several years. A qualified person examines the records and gives evidence about the overall result of the collection.

The provision is intended to make the examination of extensive documentary material manageable. It does not mean that a person may summarise documents without examining them or without having the required skill.

Summary of the Seven Grounds

Clause	Circumstance	Form of secondary evidence permitted
Section 60(a)	Original withheld after the required notice	Any secondary evidence of the contents
Section 60(b)	Written admission of the original’s existence, condition or contents	The written admission
Section 60(c)	Original destroyed, lost or otherwise unavailable for a qualifying reason	Any secondary evidence of the contents
Section 60(d)	Original not easily movable	Any secondary evidence of the contents
Section 60(e)	Original is a public document	Certified copy only
Section 60(f)	Law permits a certified copy of the original	Certified copy only
Section 60(g)	Numerous accounts or documents; general result is in issue	Evidence of the general result by a person who examined the records and is skilled in their examination

This table reflects the distinction drawn by the Explanation. The form of secondary evidence permitted depends on the particular clause invoked.

Section 60 BSA and Notice to Produce Under Section 64

Section 60(a) must be read with Section 64 BSA, which governs notice to produce documents.

As a general rule, secondary evidence under Section 60(a) cannot be given until the party proposing to use it has given the required notice to the person in whose possession or power the original document is believed to be.

Section 64 also recognises circumstances in which notice is unnecessary, including certain cases where the nature of the proceedings makes the need to produce the document apparent or where the court considers it appropriate to dispense with notice.

Therefore, a party relying on Section 60(a) should consider both the requirement of notice and any applicable statutory exception.

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

Important Case Laws on Secondary Evidence

The following Supreme Court decisions interpret Section 65 of the Indian Evidence Act, 1872, the predecessor of Section 60 BSA. They remain relevant to the established principles governing secondary evidence, but they are not judgments directly interpreting Section 60 BSA.

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

Citation: (2007) 5 SCC 730.

Court: Supreme Court of India.

Legal principle: The Supreme Court explained that secondary evidence may be admitted only when the conditions prescribed by the relevant statutory provision are fulfilled. A party seeking to rely on a photocopy must establish the appropriate basis for using secondary evidence and account for the non-production of the original in the manner required by law.

Relevance to Section 60 BSA: The decision illustrates why merely producing a copy is insufficient. The party must establish that the circumstances fall within a recognised statutory category and satisfy its conditions.

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

Citation: (2011) 4 SCC 240.

Court: Supreme Court of India.

Facts: The dispute concerned a suit for specific performance in which the plaintiff relied on a photocopy of a power of attorney. The defendant disputed having executed the power of attorney in favour of his brother.

Decision: The Supreme Court held that secondary evidence could not be accepted without a proper factual foundation for its admission. The non-production of the original had to be accounted for under the applicable provision, and the alleged copy had to be authenticated as a true copy of the original.

The Court also clarified that merely admitting a document into evidence does not automatically prove its contents.

Relevance to Section 60 BSA: This judgment is important when assessing whether a party has established the statutory grounds for producing secondary evidence and whether the copy has been properly authenticated.

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

Citation: (2010) 9 SCC 712.

Court: Supreme Court of India.

Legal principle: The Supreme Court discussed the requirements governing the use of secondary evidence and the need to satisfy the applicable provisions before relying on documentary substitutes.

Relevance to Section 60 BSA: The decision reinforces the principle that the statutory conditions governing secondary evidence must be fulfilled. The mere existence of a copy does not eliminate the need to establish a valid ground for using it.

Difference Between Section 59 and Section 60 BSA

Basis	Section 59 BSA	Section 60 BSA
Subject	Proof of documents by primary evidence	Cases in which secondary evidence may be given
General rule	Documents must ordinarily be proved by primary evidence	Secondary evidence may be used in specified circumstances
Function	Establishes the default rule	Provides statutory exceptions
Example	Produce an available original agreement	Seek to prove a qualifying copy of a lost original

Exam tip: Section 59 states the general rule; Section 60 specifies the exceptions and the permissible forms of secondary evidence.

Difference Between Section 60 BSA and Section 65 of the Indian Evidence Act, 1872

Section 60 BSA corresponds to Section 65 of the Indian Evidence Act, 1872.

Basis	Section 60 BSA	Section 65 Indian Evidence Act
Subject	Cases in which secondary evidence may be given	Cases in which secondary evidence may be given
Number of principal grounds	Seven	Seven
Original withheld after notice	Covered by clause (a)	Covered by clause (a)
Written admission	Covered by clause (b)	Covered by clause (b)
Loss or destruction	Covered by clause (c)	Covered by clause (c)
Public documents and certified copies	Covered by clauses (e) and (f)	Covered by clauses (e) and (f)
Notice provision	Section 64 BSA	Section 66 of the former Act

The provisions are substantially similar in their core operation. Section 60 BSA is the applicable provision for proceedings governed by the new Act, subject to the relevant commencement and savings provisions.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• 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 63: Admissibility of electronic records.
• Section 64: Rules as to notice to produce.
• Section 74: Public and private documents.
• Section 75: Certified copies of public documents.
• Section 76: Proof of documents by production of certified copies.

These provisions should be read together when determining whether secondary evidence may be given, what form it may take and whether notice or certification is required.

Important Points for Law Students and Judiciary Aspirants

• Section 60 BSA corresponds to Section 65 of the Indian Evidence Act, 1872.
• It provides seven principal grounds for giving secondary evidence.
• Section 60(a) concerns an original withheld after the required notice.
• Section 60(b) concerns a written admission of the original’s existence, condition or contents.
• Section 60(c) concerns loss, destruction or another qualifying reason for non-production.
• Section 60(d) applies when the original is not easily movable.
• Section 60(e) and Section 60(f) permit certified copies in the specified circumstances.
• Section 60(g) concerns numerous accounts or documents where the general result is to be proved.
• The Explanation restricts the form of secondary evidence permitted under particular clauses.
• Section 64 governs notice to produce for cases covered by Section 60(a).
• A photocopy is not automatically admissible merely because the original is missing.
• J. Yashoda v. K. Shobha Rani and H. Siddiqui v. A. Ramalingam are important authorities on the foundational requirements for secondary evidence.

Frequently Asked Questions (FAQs)

1. What is Section 60 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 60 specifies the circumstances in which secondary evidence may be given to prove the existence, condition or contents of a document.

2. Which section of the Indian Evidence Act corresponds to Section 60 BSA?

Section 60 BSA corresponds to Section 65 of the Indian Evidence Act, 1872.

3. How many grounds for secondary evidence are listed under Section 60 BSA?

Section 60 contains seven principal grounds, set out in clauses (a) to (g).

4. Can a photocopy be admitted when the original document is lost?

A photocopy may be admitted where the circumstances satisfy Section 60(c) and the applicable requirements for secondary evidence are fulfilled. Loss of the original does not automatically make every copy admissible.

5. Is notice to produce always necessary?

Notice is generally required for cases under Section 60(a), in accordance with Section 64 BSA. However, Section 64 recognises specific exceptions in which notice is unnecessary or may be dispensed with by the court.

6. What type of secondary evidence is allowed for a public document?

Under Section 60(e), the Explanation permits a certified copy of the public document, but not another kind of secondary evidence under that clause.

7. What is the difference between Sections 59 and 60 BSA?

Section 59 establishes the general rule that documents must be proved by primary evidence. Section 60 identifies the circumstances in which secondary evidence may be given and specifies the permitted forms of evidence.

8. Which Supreme Court judgments are important for Section 60 BSA?

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 judgments on the requirements for admitting secondary evidence under the predecessor Evidence Act.

Conclusion

Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 provides seven circumstances in which secondary evidence may be given to prove the existence, condition or contents of a document. Its Explanation is essential because it determines which forms of secondary evidence may be used for the different grounds. For examinations, focus on the seven clauses, the distinction between general and restricted forms of secondary evidence, and the requirement to establish a proper factual and statutory basis before relying on a copy.

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