Report No. 69
Minute of Shri Dhavan Opposing the Proposal to Amend sections 63 and 65 of the Act
In my opinion, there should be no amendment of sections 63 and 65 and both these sections should remain as they are.
Section 63 purports to enumerate five categories of what the section calls, "secondary evidence". It begins: "Secondary evidence means and includes"-then follow 5 clauses indicating 5 categories of secondary evidence. An important question is whether these five categories are exhaustive. In my opinion, they are not exhaustive, reasons to be explained later.
Section 64 is very short and provides: "Documents must be proved by primary evidence except in the cases hereinafter mentioned".
Section 65 provides that secondary evidence may be given of the existence, condition or contents of a document in 7 circumstances which are mentioned in clauses (a), (b), (c), (d), (e), (f) and (g). Then follow illustrations of evidence other than primary evidence which may be given in the above 7 cases.
Illustrations of clause (b) and clause (g) are important. Illustration (b) says: "In case (b) the written admission is admissible". Illustration (g) says: "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". It may be noted that section 63 does not include written admission illustration (b) or evidence of general result illustration (g) among the categories of secondary evidence mentioned in clauses (1), (2), (3), (4) and (5) of that section. What is the explanation for this omission. The only two reasonable alternative explanations are (1) either section 63 is not exhaustive, or (2) illustrations (b) and (g) in section 65 are types of evidence other than secondary.
In my view, illustration (b) and illustration (g) can be treated as secondary evidence only if the categories of secondary evidence enumerated in section 63 are not regarded as exhaustive. It has been suggested that a possible explanation may be oversight or inadvertence on the part of those who drafted the Act. I am afraid I am unable to agree with this argument. The Indian Evidence Act is considered to be a masterpiece of excellent draftsmanship and I find if difficult to believe that the mention of the illustration was due to an oversight, inadvertence or error. I prefer the alternative explanation that section 63 is not exhaustive of the types of secondary evidence, and respectfully agree with the view of the Madras High Court in Kalliani Amma v. Narayanan Nambiar, AIR 1915 Mad 962.
In that case, the Division Bench held that section 63 was not exhaustive. In support of this view, their Lordships pointed out that "though section 65 purports to enumerate the cases in which secondary evidence may be given, the evidence which is rendered admissible in cases (b) and (g) would not apparently fall under any of the five clauses of section 63 referring to what secondary evidence means and includes". To my mind this argument is conclusive and is preferable to the alternative argument that the legislature made a mistak.- one might even call it a blunde.- in drafting sections 63 and 65. The language of section 63 indicates that this section does not give an exhaustive definition of secondary evidence but only enumerates five categories of what the section calls secondary evidence.
It is true that other High Courts have observed that section 63 is exhaustive. In Jagannatha Naidu v. Secretary of State, AIR 1922 Mad 334, Spencer and Devadoss, JJ. observed: "The definition in section 63 is exhaustive as the section dedares that secondary evidence 'means and includes' and then follow the five kinds of secondary evidence". But the learned Judges did not give any reason for their observation and did not refer to the argument in the earlier Madras case cited above. It may also be noted that spencer, J. who delivered the judgment in the latter case was a member of the Bench which decided the earlier case in which he had expressly observed:
"I am quite willing to concede that the Evidence Act places written admissions on a higher footing than oral admissions of the contents of the document and that the description of several kinds of secondary evidence given in section 63 is not exhaustive". His contrary observation in the latter case that "the definition in section 63 is exhaustive" is contradicted by his own earlier observation in the former case.
In Hafiz Muhamad Suleman v. Hari Ram and Others, AIR 1937 Lah 370, Tek Chand and Dalip Singh, JJ. observed that section 63 of the Evidence Act "is exhaustive of the meaning of secondary evidence". But the learned Judges advanced no argument in support of this observation and did not refer to the Madras case Kalliani Amma v. Narayanan Nambiar cited above. It may be noted that they referred to the latter Madras case (cited above.- overlooking the fact that Spencer, J. who was a member of the Bench deciding this case had contradicted himself. It appears to me, therefore, that the view taken by the Madras High Court in Kalliani Amma's case is sound.
It may be noted that the Supreme Court in Hindustan Construction Co. Ltd. v. Union of India, AIR 1967 SC 526 while considering section 63 did not give any definite opinion on the question whether the section was exhaustive. The court merely observed: "that section (section 63 of the Evidence Act) inter alia defines what secondary evidence means and includes". The learned Judges (K.N. Wanchoo and G.K. Mitter, JJ.) did not discuss the question whether section 63 is not exhaustive. They did not disagree with the view taken by the Madras High Court in Kalliani Amma's case.
It has been argued that the words "means and includes" are no longer used to indicate that a particular definition is not exhaustive, and in fact these words have been out of use for some time. But with respect, the question is not what the words "means and includes" are supposed to indicate or not indicate today but what they were intended to indicate by the legislature a hundred years ago when the Evidence Act was passed in 1872. I am reluctant to accept the argument that the words "and indudes" in section 63 were included as a mere verbiage. This argument is contradicted by the illustrations given in clauses (b and (g) of section 65.
It is suggested that the proposed amendments to section 63 and section 65 will not alter the law in any way and their effect will be to make the languag( and arrangement of the two sections more systematic and tidy. With respect, think that if the proposed amendments are not intended to introduce any change in the law, this is an argument in favour of making no change at all and letting the sections alone.
But it appears to me that the effect of the proposed amendments will be to change the law. The very fact that two additional clauses will be added to the existing five would suggest that the definition of secondary evidence in section 63 had been made exhaustive, contrary to the view taken by the Madras High Court in Kalliani Amma's case-a view not dissented from or overruled by the Supreme Court. Furthermore, I feel that with the advancement of science and technology new varieties of secondary evidence, closely akin to the five types of secondary evidence already mentioned in section 63, may come into existence. It is, therefore, not desirable that the definition of secondary evidence in section 63 should be made exhaustive.
It has been suggested that this Commission has recommended in several sections of the Evidence Act that the words "means and includes" should be replaced by a single wor.- either "means" or "includes". That may be so, but if any change is to be made, I would suggest that the words "means and includes" in section 63 should be replaced by the word "includes".
In the result, I agree with my colleagues, Dr. Tripathi and Mr. Mitra that there should be no amendment of section 63 and section 65, both of which should remain as they are.
20th January, 1977
Sd/- S. S. Dhavan