The contents of documents may be proved either by primary or by secondary evidence.
Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document:
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2.-Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
Secondary evidence means and includes--
(1) Certified copies given under the provisions hereinafter contained; 1*
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents 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.
(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.
--------------------------------------------------------------------- 1. See s. 76, infra.
64.Proof of documents by primary evidence.
64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65.Cases in which secondary evidence relating to documents may be given.
65. 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:--
(a) when the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, 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 Act, or by any other law in force in 1*[India] to be given in evidence; 2* --------------------------------------------------------------------- 1. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". 2. Cf. the Bankers Books Evidence Act, 1891 (18 of 1891), s. 4.32.(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.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (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 documents.
66.Rules as to notice to produce.
66. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, 1*[or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
67.Proof of signature and handwriting of person alleged to have signed or written document produced.
67. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting --------------------------------------------------------------------- 1. Ins. by Act 18 of 1872, s. 6.33.of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.
68.Proof of execution of document required by law to be attested.
68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
1*[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
69.Proof where no attesting witness found.
69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
Admission of execution by party to attested document.
70. Admission of execution by party to attested document. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
71.Proof when attesting witness denies the execution.
71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
72.Proof of document not required by law to be attested.
72. Proof of document not required by law to be attested. An attested document not required by law to be attested may be proved as if it was unattested.
73.Comparison of signature, writing or seal with others admitted or proved.
73. Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare --------------------------------------------------------------------- 1. Ins. by Act 31 of 1926, s. 2.34.the words or figures so written with any words or figures alleged to have been written by such person.
1*[This section applies also, with any necessary modifications, to finger-impressions.]
74. Public documents. The following documents are public documents:-- (1) documents forming the acts or records of the acts-- (i) of the sovereign authority. (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, 2*[of any part of India or of the Common-wealth], or of a foreign country;
(2) public records kept 3*[in any State] of private documents.
75. Private documents. All other documents are private.
76.Certified copies of public documents.
Every 4* public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation.-Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
The following public documents may be proved as follows:-
(1) Acts, orders or notifications of 1*[the Central Government] in any of its departments, 2*[or of the Crown Representative] or of any State Government or any department of any State Government,- by the records of the departments, certified by the heads of those departments respectively,or by any document purporting to be printed by order of any such Government 2*[or, as the case may be, of the Crown Representative];
(2) The proceedings of the Legislatures,-by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed 3*[by order of the Government concerned];
(3) Proclamations, orders or regulations issued by 4*Her Majesty or by the Privy Council, or by any department of 4*Her Majestys Government,- by copies or extracts contained in the London Gazette, or purporting to be printed by the Queens Printer;
(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country,-by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some 5*[Central Act]:
(5) The proceedings of a municipal body in 6*[a State],-by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
(6) Public documents of any other class in a foreign country,- by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of 7*[an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
The Court shall presume 1*[to be genuine] every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer 2*[of the Central Government or of a State Government, or by any officer 3*[in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
The Court shall presume the genuineness of every document purporting to be the London Gazette or 1*[any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament 2*[of the United Kingdom] printed by the Queens Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.
The Court shall presume that maps or plans purporting to be made by the authority of 1*[the Central Government or any State Government] were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the Courts of such country.
The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1*[Indian] Consul or Vice-Consul, or representative 2*** of the 3*[Central Government], was so executed and authenticated.
The Court may presume that any document purporting to be a certified copy of any judicial record of 2*[3*** any country not forming part of India or] of Her Majestys Dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of 4*** the 1*[Central Government] 5*[in or for] 6*[such country] to be the manner commonly in use in 7*[that country] for the certification of copies of judicial records.
8*[An officer who, with respect to 9*** any territory or place not forming part of 10*[India or] Her Majestys Dominions, is a Political Agent therefor, as defined in section 3, 11*[clause (43)], of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the 1*[Central Government] 12*[in and for the country] comprising that territory or place].
The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.
The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.-Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.Illustrations.
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in Bs possession which were deposited with him by B for safe custody. The custody is proper.
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