Report No. 69
III. Clause (a)-Person Legally Bound
30.8. Section 65(a).-
Section 65(a) permits secondary evidence to be given when the original is in the possession etc. of-
(i) the person against whom the document is sought to be proved; or
(ii) any person out of reach or not subject to the process of the court; or
(iii) "any person legally bound to produce it", when, after the notice mentioned in section 66, such person does not produce it.
30.9. Person legally bound to produce the document-Case of.-
Some controversy has been caused by the words "any person legally bound to produce it"-occurring in section 65(a). It may be noted that in English law, when a person is legally bound to produce a document, he can be compelled to do so, and secondary evidence is not permitted. To this extent, the section marks a departure from the English law. So the first point to be discussed is whether this departure from the English law is justified. We shall indicate our preference in this regard later. But it would be convenient first to deal with the views that could possibly be held on the subject.
30.10. One view on the subject is that in section 65(a), the word "not" is to be read before the words "legally bound". This is the view of Norton, and also of Markby1. Norton, however, adds that the case of a person legally bound to produce falls within clause (b), second part. Another possible view2 is that the section marks a deliberate departure from the English law as regards persons legally bound to produce the document, as it is not reasonable that a party's right to give evidence should be taken away by the wilful, negligent and possibly fraudulent refusal of another to produce a document which the law requires him to produce, and on this view, the word "not" should not be read before the word "bound".
It must be noted that the remedy which the English law allows in such a case (case of a person bound to produce)- action for damages-is not speedy, and may not even be adequate, because the person concerned, having custody of the document, may be a man of straw. We are of the opinion that the latter is the correct view. We do not, there-fore, suggest any amendment of clause (a) on this point. As to persons not legally bound, we are adding them separately.
1. Norton and Markby, referred to in Woodroffe and Ameer Ali Evidence, (1958), Vol. 2, p. 811, footnote 1.
2. Morton Evidence, pp. 247-248, referred to by Woodroffe and Ameer Ali Evidence, (195 Vol. 2, p. 811, footnote 1.
30.11. Harmony between section 65(a) and section 66 desirable.-
There is, however, one point on which there is scope for improvement in clause (a). Where the document is in the possession of any person out of reach of or not subject to the process of the court, notice is not necessary under section 66, proviso (6). But the last paragraph of section 65(a) would give the impression that notice is necessary even in such a case. To remove this defect, it is desirable to add, in section 65(a), after the figures "66", the words "where such notice is required under that section" and we recommend that the clause should be so amended.
30.12. Recommendation to amend section 65(a).-
Then there is a verbal point concerning section 65(a). The notice is described in the clause somewhat cryptically by the words "after the notice mentioned in section 66". These words really mean-"when any person in whose possession or power the original may be, does not, alter receiving the notice (if any) required by section 66, produce such originals1. It may be useful to make this clear, and we recommend that the clause should be suitable amended for the purpose.
1. Cf. R. v. Watson, 2 Times Reports 201, referred to by Stokes.
30.13. Persons not legally bound to produce.-
The wording of clause (a) has given rise to considerable doubt in cases where the person to whom a summons is issued for the production of the document objects to doing so, and is not legally bound to produce so. In other words, where the non-production of the document is justifiable and, therefore, the objection to production is upheld by the court, the document does not fall within clause (a). We propose to deal with this point under clause (c)1.
1. See discussion as to section 65(c), infra.
IV. Clause (b)
30.14. Section 65(b).-
This takes us to clause (b) of section 65. Under that clause, when the existence, condition or contents of the original document have been proved to be admitted in writing, by the person against whom it is proved or by his representative-in-interest, then the written admission is admissible. This clause should be contrasted with section 22. which relates to oral admissions of the contents of a document. While oral admissions are not ordinarily admissible until the party proposing to prove them shows that he is entitled to give secondary evidence1, the written admission is admissible even though the original is in existence and is not produced.
1. Section 22.
30.15. It may be noted that this type of secondary evidence is an addition to the categories specified1 in section 63. No changes appear to be necessary in this clause.
1. See discussion as to section 63.
V. Clause (c)
30.16. Section 65(c).-
Section 65(c) permits secondary evidence to be given where the original has been destroyed or lost, or when the party offering evidence of the contents of the document cannot, for any other reason, not arising from his own default or neglect, produce it in reasonable time.
30.17. Person not legally bound.-
The situation where the document is in the possession of a person who is not legally bound to produce it gives rise to a certain amount of difficulty. This controversy has been considered in many cases as relevant to clause (a), but clause (c) seems to be the proper place for dealing with the matter.
30.18. As to the merits of the question, there can hardly be any doubt that secondary evidence ought to be permissible in such cases. The party offering secondary evidence of the contents of the document has no other alternative, because, if the person not legally bound to produce the documen.- whatever be the source of the privileg.- does not waive his privilege and if other evidence of the contents of the document is excluded, truth is with-held from the court for no compelling reasons. The immunity from production may arise from the fact that the document is privileged by reason of its character, or from the fact that the person in possession is privileged by reason of his status. We are not concerned with the details of such privileges. Our attention is naturally focussed, in the present context, on the party who is conducting a litigation in court to which the document is relevant.
30.19. In England, in such a case secondary evidence is admissible1-2. This appears to be a salutary rule, and it is difficult to assume that this salutary rule of English law was deliberately departed from. Rather, it is better to take the view that in such a case, secondary evidence is admissible. It may be noted that in section 65(c), the word.- "when the party offering evidence of its contents cannot, for any other reason not arising from his default or neglect. produce it in reasonable time", which follow the words "when the original has been destroyed or lost", would permit of secondary evidence where a stranger not legally bound to produce the document is in possession of the document. It is sometimes stated that such a case can fall within the words "not subject to the process" in clause (a), but we would prefer to regard it as analogous to clause (c), which covers "any other reason not arising from his default or neglect."
1. Calevafta v. Guest, (1898) 1 QB 759 (Legal professional privilege).
2. Best on Evidence, (1922), pp. 201, 498.
30.20. Recommendation to amend section 65(c).-
Since this aspect is not very obvious from the wording of clause (c), we recommend that it should be made clear in section 65(c) by suitable amendment.
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