Report No. 69
Minute of Dr. Tripathi and Shri Mitra Regarding Recommendations Relating to section 63 of the Act
We are unable to agree to the proposal for amendment of section 63 of the Act by addition of the proposed clause (6). The proposed clause is as follows:-
"(6). Written admission of the existence, condition or contents of the original".
It is to be noticed that section 63 is concerned with the definition and enumeration of secondary evidence. By the proposed amendment an admission in writing that a document is in existence or that such a document is in good or bad condition or an admission regarding the contents of the document would be treated as secondary evidence. So far as the contents of the original are concerned, it is to be noticed that a copy of the original is already covered by sub-section (3) of section 63. The effect of the amendment in so far as it concerns the contents of a document is that a written admission of the contents becomes secondary evidence. Consideration of the proposed amendment makes it necessary to refer to section 65.
It may be remembered, however, that in order to attract section 65(b) the written admission of the contents of the document has to be the admission by the person against whom it is sought to be proved or by his representative in interest. It is next to be recalled that section 65 deals with cases in which secondary evidence relating to documents may be given, and says that secondary evidence may be given of the existence, contents or condition of a document in the following cases, and thereafter proceeds to enumerate seven cases in which secondary evidence may be given. When A gives evidence that B had admitted the existence of a document, A is not giving evidence of the document itself or its contents, but A is giving evidence of the fact that B had admitted the existence of the document.
Similarly again, if a person writes a letter to another, and subsequently writes another letter saying in that second letter that he should destroy the first letter, the second letter is evidence that the writer admitted the existence of the first letter, and is not secondary evidence of the first letter. Again if the writer mentions in the second letter anything about the condition or contents of the first letter, such mention also is only evidence of the fact that he admitted the condition and contents of the second letter; it is not secondary evidence of the first letter. The language of section 65 makes it clear, that the section does not deal with kinds or varieties of secondary evidence. If the section dealt with kinds of secondary evidence, it will be meaningless because the kinds of secondary evidence have already been enumerated in section 63.
The key to the interpretation of section 65 lies in appreciating the nature of its contents. As already stated, the section does not enumerate kinds of secondary evidence, but it enumerates situations in which secondary evidence may be given. Secondary evidence remains what it is as defined in section 63. Section 65 only says when that secondary evidence, as defined in section 63, may be given.
It is very significant that every one of the clauses (a) to (g) under section 65 begins with the word "When". In other words, when X happens or Y happens or Z happens, then and then only secondary evidence is admissible and not otherwise. "When" indicates the situation in which or the circumstances in which secondary evidence may be given. The word "When" cannot and does not indicate what is secondary evidence. The marginal note or heading of section 65 makes the position quite clear inasmuch as it says "cases in which" secondary evidence may be given; which in other words means the circumstances and situations in which secondary evidence may be given.
After specifying seven different occasions on which secondary evidence may be given in clauses (a) to (g) of section 65 by using the word "When", there are four small paragraphs beginning with "In case" or "In cases". The second of these says, "In case (b), the written admission is admissible". The reason for insertion of this provision plainly is that without such a provision the written admission would not be admissible as evidence of the fact of admission itself, because the language of section 64 will stand in the way.
The same argument is applicable to clause (g) and to the last paragraph of section 65 which deals with clause (g). The evidence of the general result of the documents by any person who has examined them is neither primary evidence of the document nor secondary evidence. Such evidence will not be admissible except by virtue of the provision in the last paragraph of the section. Clause (g) only enumerates the circumstances in which secondary evidence of the original mentioned therein can be given.
But the secondary evidence, if given, must be secondary evidence in terms of section 63, i.e., it should be either certified copy, etc., or an oral account of such part of the contents as it is intended to present to the court. It is clear that if oral or written evidence as to the general result of a whole collection of documents itself is treated as secondary evidence, then it will have the effect of creating a new class or category of secondary evidence which might replace primary or secondary evidence as known in the law of evidence. This point may be further elaborated by what it hereinafter stated. The third part of the section which is as follows is of great significance:-"In case (b), the written admission is admissible".
It is plain that the written admission contemplated by sub-section (b) is not treated as secondary evidence but as written admission. The effect of what is now proposed to be done is that the written admission of the existence, condition or contents of the original would be treated as secondary evidence. One reason behind the suggestion for the amendment is that the head-note or marginal note of section 65 speaks of secondary evidence and this head-note or marginal note embraces all the clauses of the section including clause (b). The next prima facie ground for the proposed amendment is that the section opens by saying that secondary evidence may be given in the following cases and thereafter sets out different cases in which secondary evidence can be given.
It may be said that all the clauses under the section including clause (b) should be construed to mean secondary evidence. We are unable to agree either with the proposed amendment or with the reasons behind the suggestion. In our view, a written admission relating to the existence or condition of a document cannot be said to be secondary evidence of the admission of such matters, namely, existence or condition of the document. Turning now to the question of the head-note or marginal note of the section which speaks of secondary evidence, it must be noticed that in the third part of the section quoted above, the evidence is said to be written admission and not secondary evidence. If it was intended that the written admission relating to existence or condition of a document is to be treated as secondary evidence, there is no justification for not using the words:
"secondary evidence" as has been done in the case of clauses (a), (c), (d), (e) and (f). To say that written admission relating to the existence or condition of a document is to be treated as secondary evidence would have the effect of introducing a new concept in the rule relating to secondary evidence. We are of the opinion that evidence relating to existence or condition of a document cannot be said to be secondary evidence for any reason whatsoever. The existence or condition of a document is a question of fact and a written admission regarding such a question of fact can by no means be said to be secondary evidence of the contents of the documents. For the reasons mentioned above, we are of the opinion that the proposed clause (6) should not be added to section 63 of the Act.
Sd/- P.K. Tripathi,
20-1-77
Sd/- B.C. Mitra.
20-1-77
29.22B. The view of one of us-Shri Dhavan-on the subject is reproduced below from the note given by him for the purpose:-
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