Sections 64 and 65 of the Indian Evidence Act 1872: Primary and Secondary Evidence
Sections 64 and 65 of the Indian Evidence Act, 1872 set out the basic rule for proving documentary evidence and the principal exceptions that permit secondary evidence of a document.
Section 64: Proof of documents by primary evidence
Section 64 states the general rule that documents must be proved by primary evidence, except in the cases mentioned in the provisions that follow it.
For this purpose, "primary evidence" is understood with reference to Sections 61, 62 and 63 of the Indian Evidence Act, 1872, which deal with proof of contents of documents, primary evidence and secondary evidence.
Section 65: When secondary evidence may be given
Section 65 permits secondary evidence of the existence, condition or contents of a document in specified circumstances. The party relying on secondary evidence must bring the case within the applicable clause of Section 65 and comply with any related statutory requirement.
- Original in another person's possession or power: Where the original is shown or appears to be in the possession or power of the person against whom it is sought to be proved, a person outside the reach of the Court's process, or a person legally bound to produce it, and the document is not produced after the notice contemplated by Section 66.
- Written admission: Where the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom the document is proved, or by that person's representative in interest.
- Original lost or destroyed: Where the original has been destroyed or lost, or cannot be produced within a reasonable time for another reason that does not arise from the default or neglect of the party offering the evidence.
- Original not easily movable: Where the original is of such a nature that it cannot easily be moved.
- Public document: Where the original is a public document within the meaning of Section 74 of the Indian Evidence Act, 1872.
- Certified copy permitted by law: Where the original is a document for which a certified copy is permitted by the Indian Evidence Act, 1872 or by another law in force in India to be given in evidence.
- Numerous accounts or documents: Where 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 whole collection.
What type of secondary evidence is admissible under each clause?
| Section 65 case | Evidence permitted |
|---|---|
| Clauses (a), (c) and (d) | Any secondary evidence of the contents of the document that is otherwise legally admissible. |
| Clause (b) | The written admission is admissible. |
| Clauses (e) and (f) | A certified copy is admissible; Section 65 specifies that no other kind of secondary evidence is admissible for these clauses. |
| Clause (g) | Evidence of the general result may be given by a person who has examined the documents and is skilled in examining such documents. |
Notice to produce under Section 66
Clause (a) of Section 65 is closely connected with Section 66. As a general rule, secondary evidence of a document falling within Section 65(a) cannot be given unless the required notice to produce has first been given to the person in whose possession or power the document is, subject to the statutory exceptions under Section 66.
Difference between the rule and the exception
Section 64: The normal rule is proof by primary evidence.
Section 65: Secondary evidence is permitted only in the situations specified by law and in the form allowed for the particular clause.
Practical points for proving a document
A party proposing to rely on secondary evidence should identify the original document, explain why the original is unavailable or why the relevant statutory exception applies, establish the factual foundation required by the applicable clause of Section 65, and comply with Section 66 where notice to produce is required. The admissibility of electronic records was separately governed by Sections 65A and 65B of the Indian Evidence Act, 1872.
Related provisions
Sections 61 to 63 explain proof of contents, primary evidence and secondary evidence. Section 66 deals with notice to produce. Sections 65A and 65B contain special provisions relating to electronic records. Sections 67 onward deal with proof of signatures, handwriting, digital signatures and execution of documents in specified situations.
This page is a general legal information resource. The applicability of the Indian Evidence Act, 1872 or the Bharatiya Sakshya Adhiniyam, 2023 depends on the proceeding, relevant dates and applicable transitional provisions.