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Provision of documentary evidence in IEA
Typology: Summaries
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The facts of a particular document can be proved via two methods, one is the oral evidence, and the other is the documentary evidence. Chapter 4 of the Indian Evidence Act Deals with Oral Evidence (sections 59 and 60) and Chapter 5 is the documentary Evidence (Sections 61 to 90 A). This section deals with how the contents given in the document will be proven.
1. What is Documentary Evidence? The word document has been defined under section 3 of the Indian Evidence Act. Any document which is given for the assessment of the court also it is pertinent to note that documentary evidence is superior to oral pieces of evidence, especially in the area of trustworthiness. This principle comes from the doctrine of vox Audita Perit, literra Scripta Manet which means spoken words vanish whereas only the written words remain. This means when there is evidence in front of the court, one is the oral evidence, and the other is the documentary evidence supremacy will be given to the documentary Evidence. So, if we look at the Indian Evidence act then we see that the documentary evidence is bifurcated into three categories –
Hence as the general rules say that there are only 2 methods for proving the content of the document. II. What is a Primary Evidence – Under section 62 of the Indian Evidence Act of 1872, we find the exact definition of primary evidence. Primary evidence is simply an original document in its original form. For example, if a person wants to prove that he was a minor when he entered into the contract then his original birth certificate can be considered primary evidence. It is prima facie the best or has the highest evidentiary values. The status of primary evidence is such that the law gives it supreme importance as it has an extremely high amount of certainty. This is because it is considered that it has very less chances of tampering. The primary evidence should be in its original form. Essentially the court always says to present the primary evidence as mentioned under section 64 of the Indian Evidence Act but there are certain exemptions for the same which are discussed under section 65 of the Indian Evidence Act. Section 65 discusses the point that in some restrictive cases in which secondary evidence can also be given to prove a fact. So, if a particular case is absent in section 65 then it shall be proved only via primary evidence. In the case of Prithi Chand vs State of Himachal Pradesh^2 it was held that when we look into the carbon copies, they are primary evidence of each other as they are brought from the same source and a uniform process. But such carbon copies cannot be considered as the primary evidence against the original document. III.What is Secondary Evidence? The definition of secondary evidence is given under section 63 of the Indian Evidence Act of 1872 and it includes five major things that can be accepted in the form of secondary pieces of evidence. In the case of J. Yashoda vs K. Shobha Rani^3 , it was held that the definition given under section 63 of the secondary evidence is exhaustive in nature and therefore includes all the (^2) MANU/SC/0420/1989. (^3) MANU/SC/7314/2007.
Under section 65 B (1), any document or information which is present in an electronic form shall be considered also as a normal document as defined under section 3. This is done after the satisfaction with the conditions mentioned under this section. VI. State (NCT of Delhi) v. Navjot Sandhu^6 Facts: In this case, the accused was punished for various provisions under IPC. Out of all the prominent pieces of evidence, one of the most prominent ones was the accused phone’s call records. Fact in Issue: Whether such evidence of call record is admissible in the court of law? Judgment : In the case of Navjot Sandhu the Apex court came with certain exceptions given under Section 65 A. The court held that cellular phones are secondary evidence because the primary evidence would involve the information which is possessed by telecom servers. VII. Notice to Produce Section 66 of the Indian Evidence Act deals with the rules which deal with notification to produce. This section aligns with section 65 (a), where the possession of the original documents is with some other party. This means that whenever secondary evidence is presented before the court a notice must be given to the person who has the original document in its possession. This can be given to that person's attorney or pleader as the case may be. There is a system of check and balance that states that the notice shall be produced in the manner “prescribed by law” and if there is no such law then the notice shall be presented as the court decides reasonably. Hence when we critically analyze this section then we can say that the ‘notice to produce’ under section 66 of the Indian Evidence Act is a compulsory condition that needs to be followed and if such notice is not given to the other party, then the other party cannot be restricted to present the original document. VIII. A short critical Question that might come to your mind after reading section 66. (^6) MANU/SC/0465/2005.
Now there must be a question in your mind that suppose a particular opposite party refuses to produce the original document and the court subsequently admits the secondary evidence then in such a circumstance can the opposite party present the original document later? the answer to this question is complete No. this is inferred from section 164 of the Indian Evidence Act where it is clearly stated when a particular party refuses to produce a particular document in a circumstance where he knew he had to present it then, later on, he cannot produce it until and unless the other party also consents to it. Documents that need to be Attested Now under chapter 5 from sections 67 to 73 A deal with the documents which are to be attested. This means that whenever you go to the court you also need to prove the genuine nature of the document you present before it. Hence mere presentation of the document in the court is not enough but must be proved as well. Hence, we have section 67. In layman's terms attestation means evidence or proof for something. IX. Section 67 deals with the case of proof of signature and handwriting of the person Under section 67 of the Indian evidence act, it is clearly stated when there is a question regarding the signature and handwriting of the person then the handwriting or signature done on the document shall be only proved with the handwriting of the person who had made it. X. Amendment made with the amendment of 2000. Section 67 A came with the amendment in 2000. Under this section If there is an electronic signature and any person is contending that it is not his signature, and it has been affixed then it is the contending person only who has to prove it. An exception to the same is of secure electronic signature. XI. Section 68 deals with the Proof regarding the document which needs to be attested Under section 68 of the Indian evidence act, it has been clearly said that if documents need to be attested following the law, then such a document shall not be taken in as a piece of evidence in the court until and unless it is done in the attendance of at least one of the attesting witnesses.
The section simply says that when a document does not require to be attested then even if it is attested still, it can be proved as unattested. So, to prove a document that is attested firstly we have to prove that it is attested, and secondly, the signature but to prove an unattested document the only proof required is execution. XVI. Section 73 Section 73 clearly states that when there is a question to prove a signature, writing, or a seal of a particular person when it may be proved with the help of any written matter, signature, writing, or seal of that particular person who has been already admitted or proved in the court to be valid. Under this section, the court also has the discretionary power to direct a person to write certain words or figures to enable the court to determine and compare such signature, writing, or seal under the section.