Report No. 185

Section 63

Section 63 refers to 'Secondary evidence'. It reads as follows:

"63. Secondary evidence means and include.-

(1) Certified copies given under the provisions hereinafter contained;

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

(3) Copies made from or compared with the original;

(4) Counterparts of document as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it."

There are four illustrations below this section.

In the 69th Report, there was division of opinion 3:3 between the members. Dr. P.B. Gajendragadker, Shri Sen Verma and Sri P.M. Bakshi proposed that what is mentioned in clause (b) and (g) of section 65 should also be brought into section 63 because section 63 is otherwise being treated by courts as exhaustive of the definition of secondary evidence. In fact, there was some conflict among the courts in this behalf.

This controversy has arisen because section 63 uses the words "means and includes". On the other hand, Dr. Tripathi and Shri Mitra felt that section 63 should not be amended and they gave a separate note. Dr. Dhavan gave a separate note for disagreeing with the views of Dr. P.B. Gajendragadkar, Mr. Sen Verma and 348 Mr. P.M. Bakshi. In view of this difference, nothing was finally decided as to the amendment.

Section 63 refers to five types of evidence. Clauses (1), (2) and (3) refer to three types of copies of documents. Clause (4) refers to counterparts; Clause (5) refers to oral account of contents of documents.

Illustration (a) refers photograph, first part of clause (2) says that no comparison with original is necessary. Illustration (b) refers to copy compared with copy and refers to the latter part of clause (2) and states that comparison with original is necessary. Illustration (c) refers to clause (3), copies transcribed and compared with original. Illustration (d) refers to clause (5) and shows that an oral account of the contents of the original and not of the copy would be secondary evidence.

Section 65 says secondary evidence may be given of the existence, condition or contents of a document whe.-

(a) .....

(b) when the existing 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) .......

(d) .......

(e) .......

(f) .......

(g) when the original consist of numbers accounts or other documents which cannot conveniently be examined by the court, and the fact to be proved is the general result of the whole collection.

Section 65 further says that in clause (b), the written admission is admissible and in clause (g), evidence as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents, is necessary.

Sarkar says (15th Edn., 1999, p.1064) that "some other forms of secondary evidence have already been considered, e.g., admissions, statements by deceased person, etc. and that it has been held in a case that this section is exhaustive of the kinds of secondary evidence admissible under the Act. Where the terms of the document were sought to be proved by a judgement containing a transaction thereof in a suit which was not between the same parties or their representatives, neither the translation nor the statement in the judgment was secondary evidence of the contents of the document. It was so held in Jagannath v. Secretary of State, AIR 1922 Madras 334.

Sarkar also refers to Hafiz Mohd. v. Hariram, AIR 1937 Lah 370, that the section is exhaustive and an abstract translation which is a summary of a document does not come within the purview of section 63. Draft of award of arbitrators, from which award was prepared, unless shown to have been compared with the fair award, is not secondary evidence (Girdhar v. Ambika, AIR 1969, Pat 218).

But in Kalliani Amma v. Narayanan, AIR 1915 Mad. 962, (referred to in the 69th Report, para 29.10), it was held that section 63 was not exhaustive. The case related to written admission of contents of the document. Tyabji J. stated that clause (b) and (g) of section 65 do not fall within the five clauses of section 63.

In Hindustan Construction Co. v. Union of India, AIR 1967 SC 526, 527 it was held that a copy means a document prepared from the original which is an accurate or true copy of the original.

Now, we shall discuss the difference of opinion in the 69th Report. The crucial difference in the opinions between the Members of the Commission may now be summarized. According to Dr. P.B. Gajendragadkar, Mr. Sen Verma and Sri P.M. Bakshi in view of Kaliani A's case stated above, clause (b) and (g) of section 65 are to be added to section 63 for they do not, as stated by Tyabji J. in this case, fall within any of the five clauses of section 63.

On the other hand, according to Dr. Tripathi and Sri B.C. Mitra, when clause (b) of section 65 says that 'admission' is admissible, it is only referring to a situation where secondary evidence is admissible and is not making the admission equivalent to secondary evidence of the document as such. So is the position with clause (g) of section 65 where evidence as to the general result of a number of document.- which are too numerous to be produced in cour.- can be given and that is not secondary evidence of those documents in that full measure.

While this latter reasoning is correct, in our opinion, Dr. Tripathi and Sri B.C. Mitra do not say that clauses (b) and (g) of section 65 can fall within any of the five clauses in section 63.

Coming to the dissenting view of Sri Dhavan, upto a point he agrees that Tyabji J. is correct, that clauses (b) and (g) of section 65 are not covered by section 63 but the very fact of adding these clauses to section 65 would mean that the legislature treated the five clauses of section 63 as not being exhaustive. The Member says, with the development of science and technology, new forms of secondary evidence may come into being and it is not desirable to make section 63 exhaustive. Having said this, the Member says that, if any change is at all to be made, he would prefer to replace the words "means and includes" by the words "includes".

We may point out that section 63 says "secondary evidence means and includes" and contains five clauses as already set out above. Section 65 bears the title "Cases in which secondary evidence relating to documents may be given".

Now, the view of the three Members in favour of the amendment does not answer the point raised by the two other dissenting members i.e. Dr. Tripathi and Sri B.C. Mitra that clauses (b) and (g) only make admission and a 'general account' admissible as secondary evidence but by that, the entirety of the document, word for word, is not coming on record. At the same time, the said two Members do not answer the point raised by the first three that the cases falling under clauses (b) and (g) of section 65 do not fall within any of the five clauses of section 63. The third dissent goes a long way in supporting the amendment but satisfies itself to omit the word 'means' in section 65 in as much as more types of secondary evidence may come into being with the advance of science and technology.

We have noticed the statement by Sarkar (p.1064) that 'some other forms of secondary evidence have already been considered, eg., admissions, statements of deceased person etc.' We can visualize also that with the development of science and technology, there could be addition to clauses (1) to (5) of section 63. In that sense, section 63 is exhaustive "only for the present". While the comment that clauses (b) and (g) of section 65 do not substitute the document word for word and are secondary evidence in the full sense, the admissions and general account referred to in these clauses being admissible, could form the basis of proof for one party.

Phipson refers under para 41.13 to 41.36, 'secondary evidence' but the discussion covers not only what is contained in section 63 but also that in section 65.

In the light of the above discussion, we are of the view that clauses (b) and (g) cannot be included in the definition of 'secondary evidence' by adding them to section 63 because they do not bring in the whole document. But, as clauses (b) and (g) make evidence admissible, otherwise than of the original document, such evidence must be 'secondary evidence', if it is not 'primary evidence' because we do not have a third or hybrid character of evidence.

Thus section 63 cannot ignore the concepts behind clauses (b) and (g) of section 65. The only way this can be achieved, and the further scope for scientific developments can also be given, is to drop the word "means and" in section 63. We have reached our conclusion in this behalf for reasons which are other than or in addition to the reasons given by Sri Dhavan. We now proceed to deal with other clauses of section 63.

We agree with the 69th Report that in clause (3) for the words "made from or compared" the words "made from and compared" shall be substituted.

In the 69th Report, three clauses were separately considered (see paras 29.23 to 29.28) and it was held that no amendment is called for except to use the word 'seen' for the word 'read' in clause (5) of section 63. That relates to oral accounts of contents given by those who have 'seen' the document. Surely, in our opinion, 'read' is a better word.

In the result, we recommend deletion of the word 'means and' in the opening portion of section 63 and substituting the word 'read' for 'seen' in clause (5) of section 63 and also substituting the words "made from and compared" in clause (3) of Section 63 for the words "made from or compared".

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