Report No. 69

Chapter 28

Primary Evidence

Section 62

28.1. Primary evidence.-

Of the two modes of proving documents contemplated by the Act, we shall now deal with primary evidence. The expression is defined in section 62, which provides that "primary evidence" means the document itself produced for the inspection of the court. The document has to be physically produced.

28.2. Of Course, the production of a document does not imply its admission in evidence-an aspect which became very important in a Madras case1, and which was discussed in the Privy Council also. The Privy Council2 held that production and presentation are not identical with admission in evidence3.

1. A. Venkanna, 56 Mad LJ 633.

2. Raja of Bobbilt v. lnuganti China, 1899 ILR 23 Mad 49 (PC).

3. Muhammad Ayub v. Rahim Baksh, 1922 ILR 3 Lah 282 (284).

28.3. First explanation-Duplicates.-

In the normal case, a document has only one original. But certain special cases required to be dealt with. Documents are often executed in duplicate. This situation is dealt with in the first Explanation to section 62. Under the first half of the Explanation, where a document is executed in several parts, each part is primary evidence of the document. The expression "part" here does not bear the ordinary meaning of "fraction", but refers to the form in which documents are sometimes executed, namely, a document is written out as many times, over as there are parties, and each is signed by all the parties. In other words, the Explanation, in its first half, refers to documents executed in duplicate, triplicate and the like.

28.4. Counterparts.-

In contrast with the above, the latter half of the first Explanation to section 62 refers to a procedure in which each of the instruments is signed only by one party, and each delivers to the other what is known as the counterpart. In the first half of the Explanation, "each part" is primary evidence of the document, while, in the second half, each counterpart is primary evidence as against the parties executing it.1

1. Forbes v. Samuel, (1913) 3 KB 706 (721).

28.5. Second Explanation-Copies made by mechanical processes.-

Under the second Explanation to section 62, 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. The principal of this section was applied in a Lahore case1, in allowing a witness to refresh his memory by looking at one specimen, although earlier he had seen another specimen of the document.

1. Ram Chandra v. Emperor, AIR 1930 Lah 371 (373).

28.6. It must be noted that copies made by mechanical processes, though they are excluded from being primary evidence by the Second Explanation to section 62 can constitute secondary evidence under section 63(2). The effect of the combined operation of the Second Explanation to section 62 and the second clause of section 63-to state the matter in very brief terms-is that copies made by mechanical processes, though not primary evidence of the original, can constitute secondary evidence of the original, provided that the other conditions of section 63(2) are satisfied. Thus, where there is an allegation of the publication of a libel in a newspaper, each machine made copy is accepted as primary evidence of other copies inter se1, but it is secondary evidence of the manuscript.

1. Woodroffe.

28.7. Stamp Duty.-

These provisions give a fairly comprehensive idea of what are, and what are not, originals for the purpose of the law of evidence. We are not, in the present context, concerned with what is deemed to be the original of an instrument for the purposes of stamp dut.- a matter dealt with in the Stamp Act

28.8. Evidence of objects other than documents.-

Finally, we may note that the provisions with which we are dealing now are confined to documents, and do not apply to other objects. As regards other objects, the court may direct their production in court1, but it is permissible to give oral evidence as to their existence, condition or contents, without their production, there being no express prohibition in this regard.

1. Section 60.

28.8A., No change needed.- The above discussion does not disclose any need for amending section 62.