Report No. 185
This section refers to cases in which secondary evidence relating to contents of documents may be given. It contains seven clauses (a) to (g). We have already referred to clauses (b) and (g) while dealing with section 63.
In the 69th Report, in para 30.26, five recommendations (a) to (e) were made for amending section 65.
It becomes, therefore, necessary to deal with section 65 in some detail. The section reads as follows:
"65. 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 powe.-
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 moveable;
(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 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.
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".
The notice contemplated in section 65 (a) is the notice referred to in section 66 and is to be issued in the manner mentioned in Order 11, Rule 16 of the Code of Civil Procedure, 1908 except in the cases mentioned in the proviso to section 66.
Whether various clauses of section 65 mutually exclusive
(1) In para 30.5 of the 69th Report, it was pointed out that the various clauses of Section 65 are not mutually exclusive in the sense that if a case does not satisfy the requirement of one clause, it may still be admissible as secondary evidence under another clause. For example, if a case falls under clause (a), then secondary evidence is admissible, even if the conditions of clause (e) or clause (f) are not satisfied. The Report suggested that an attempt to contend that the clauses were mutually exclusive was urged but not accepted in 'In the matter of Collusion' (1879) ILR 5 Cal 568 and in Sunder v. Chandreshwar: (1907) ILR 34 Cal 293.
It was pointed out that a clarification in this behalf is not necessary so far as clauses (a) to (d), (g) are concerned, but is necessary because of the negative words used in the last part of the penultimate para of the section:
"In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible."
The 69th Report suggested (see para 30.6 and 30.7) that the words "unless some other clause of this section applies" be added in the penultimate para after the words 'is admissible'.
We agree respectfully.