Report No. 69
Documentary Evidence-The General Scheme
We now proceed to a consideration of the provisions relating to documentary evidence. There are three distinct questions which are dealt with in the Act1, in regard to documentary evidence-(a) first, how the contents of documents are to be proved; (b) secondly, how the document is to be proved to be genuine; and (c) thirdly, how far and in what cases oral evidence is excluded by documentary evidence.
27.2. (a) Topics relating to documentary evidence as dealt with in the Act.-
The first question is dealt with in sections 61-66, and sections 59 and 22 are also relevant to this question. Taking section 59 with sections 61 and 64, the result may be stated as follows1:-
The contents of a document must, in general, be proved by a special kind of evidence called primary evidence; but there are exceptional cases in which such contents may be proved otherwise.
27.3. Primary and secondary evidence.-
Evidence which is used to prove the contents of a document, but which is not primary, is called secondary. Primary evidence is said, by section 62, to be the document itself, produced for the inspection of the Court. Later on, in the section, this is called the original document. The contents of public documents being provable in a particular manner, this matter is dealt with separately in sections 74-78. The question how far witnesses may be cross-examined as to written statements made by them without producing the writings, is dealt with by section 145.
Besides the question which arises as to the contents of a document, there is always the question when the document is used as evidence-is it what it purports to be?1 In other words, is it genuine? The signature or writings, sealing or mark and attestation (where the latter is a necessary formality of execution), must be proved. This matter is dealt with in sections 67-73. Sections 74-78 deal with public documents, as already stated.
27.4. Lastly, the Act deals, in sections 79-90, with the presumptions which the courts are enabled or directed to make in respect of certain documents or specified classes of documents, tendered in evidence before them.
27.5. Inter-relationship of oral and documentary evidence.-
Having dealt with the two kinds of evidence oral and documentary-the Act proceeds to deal with their inter-relationship. The exclusion of oral by documentary evidence is the subject-matter of the next few sections-section 91 onwards.
27.5A. Scheme of provisions as to documentary evidence.-
So much as regards the general scheme of the provisions concerning documentary evidence. "Documentary evidence", as defined in the Act1, means all documents produced for the inspection of the Court. Aside from "real" evidence2of which the court is the original percipient-and matters of which judicial notice is taken, all evidence comes to the tribunal either-(a) as the statement of a witness, or (b) as the statement in a document. This is how a "document" is interwoven into the scheme of the Act.
1. Section.- "document".
2. Section 60, proviso.
27.6. Importance of definition of document.-
The scope and ambit of the various provisions relating to documentary evidence, including, in particular, the restrictive provision in section 64 to which we have already referred, is essentially dependent on the meaning attributed to the expression "document". That expression is defined in section 3, and the definition is wider than its ordinary meaning. We need not discuss its various ingredients again. But it will be useful to point out that the principal element in the definition of "document"-in this Act as well as in many other Central Acts-is the recording of a matter in some permanent form. The theory of the law is that matter which is recorded in that form should be proved by producing that record, except in special cases.
27.7. Analogy with rule against hearsay.-
In a sense, the restrictive provision in section 64, emphasising the primary character of "primary" evidence, is analogous to the rule against hearsay. Just as, by virtue of the rule against hearsay, a fact which can be seen or otherwise perceived is to be proved only by the person who says he has seen or otherwise perceived it1, similarly, under the scheme of the provisions relating to documentary evidence, a record must come directly before the court, and not indirectly through copies or oral accounts or other types of secondary evidence thereof. Where the contents of any document are in question, the document is the proper evidence of its own contents, and all derivative proof is rejected until its absence is satisfactorily accounted for. With these general introductory remarks, we are now in a position to deal with the sections proper.
1. Section 60.
27.8. Media of proof.-
Section 61 deals with proof of the contents of a document. It may be recalled that in the scheme of the Act, there are two principal kinds of evidence, namely, oral and documentary. Oral evidence has already been dealt with in sections 59 and 60, and the Act now proceeds to deal with documentary evidence. In general, a document produced at the instance of a party must be proved1. Consent by a party to a document being exhibited does not dispense with the proof of its genuineness2.
1. State v. Balm Lal, AIR 1965 Raj 90 (92), para. 8.
2. AIR 1973 Born 40.
27.9. Proof of two elements.-
Proof of a document comprises proof of two elements, namely, proof of its execution and proof of the contents. Proof of execution of a document is postponed by the Act to later sections1, and proof of the contents of a document is the subject-matter dealt with in section 61. The section provides for two alternative media of proof, namely, primary evidence and secondary evidence. The two alternatives provided for in the section are defined in the next two sections-section 62 which deals with primary evidence and section 63 dealing with secondary evidence.
1. Section 67, et seq.
27.10. Primary evidence preferred.-
But it should be pointed out that under section 64, a document must be proved by primary evidence, except in specified cases. In this sense, "primary evidence" fully justifies its name. Primary evidence is evidence which the law requires to be given first. Secondary evidence is the substitute, and is evidence which may be given in the absence of primary evidence. As will be seen later, the rule preferring primary evidence is based on the principle that the best available evidence is to be produced.1
1. See discussion relating to section 64, infra.
27.11. No change in section 61.-
The above discussion is intended to indicate the scheme of the Act. It does not disclose any need for amending section 61.