When a party cannot produce an original document, what may they offer instead? Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers that question by cataloguing the forms secondary evidence can take — certified copies, mechanical copies, counterparts, oral accounts, and more. But the section does something subtler than list categories. Through a single change of wording from the 1872 Act, it signals that the list is open-ended, and it expands the catalogue to reflect how documents are actually contested in modern courts.
58. Secondary evidence. Secondary evidence includes—
(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(iii) copies made from or compared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions;
(vii) written admissions;
(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.
Illustrations.
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
The wording change that widened the definition
Section 58 corresponds to Section 63 of the Indian Evidence Act, 1872 (IEA), but the drafters made two deliberate edits. First, the old definition opened with "Secondary evidence means and includes"; the BSA drops "means and" and begins simply "Secondary evidence includes." Second, three new clauses — (vi), (vii) and (viii) — were added to the five that the 1872 Act contained.
| Aspect | Section 63, IEA | Section 58, BSA |
|---|---|---|
| Opening words | "means and includes" | "includes" |
| Number of listed forms | Five | Eight |
| New forms added | — | (vi) oral admissions; (vii) written admissions; (viii) evidence of a skilled examiner of numerous documents |
The shift from "means and includes" to "includes" is not mere tidying. In statutory interpretation, "means" tends to make a definition exhaustive, while "includes" makes it expansive and illustrative. By choosing "includes," Section 58 signals that the eight enumerated forms are examples of secondary evidence, not an exhaustive fence around it — leaving room for other recognised forms to qualify. The three additions then make explicit what practice had long accepted: admissions of a document's contents, whether spoken or written, and the summarised findings of a skilled examiner faced with voluminous records, are all legitimate ways of proving contents when the original is unavailable.
The new clauses on admissions repay a closer look. By expressly listing oral admissions (vi) and written admissions (vii) as forms of secondary evidence, Section 58 confirms that a party's own concession about what a document said can prove its contents when the original is not before the court. This dovetails with the general treatment of admissions elsewhere in the Act: an admission is relevant against the person who makes it, and here it is recognised as a legitimate route to a document's contents. Clause (viii) serves a different practical need — where the records are so numerous that examining each in court is impractical, a witness skilled in their examination may speak to the general result, a form of proof that mirrors the case for secondary evidence in Section 60(g).
Reading the illustrations
The four illustrations are the section's quiet instruction manual, and they repay close reading because they mark the boundary of what counts. Illustration (a) accepts a photograph of an original as secondary evidence, even without comparison, provided the thing photographed is proved to be the original. Illustration (c) draws a sharp line: a copy transcribed from a copy is secondary evidence only if it was afterwards compared with the original — an uncompared copy of a copy does not qualify. Illustration (d) rules out the most attenuated form of all: an oral account of a copy, or of a photograph or machine-copy, is not secondary evidence of the original. The through-line is reliability of the link back to the original. The further and less verifiable the chain, the more likely the law is to reject it.
Authenticating the copy
Identifying the correct kind of secondary evidence is only half the task; the copy must also be shown to be a true reflection of the original. In M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, the Supreme Court held that while secondary evidence, once admissible, may be adduced in any available form — a copy, a copy of a copy, or oral evidence of the contents — it must be authenticated by foundational evidence establishing that the alleged copy is in fact a true copy of the original. The Court framed the exceptions to the primary-evidence rule as relief for a party genuinely unable to produce the original through no fault of its own, not as a licence to substitute unverified material. Section 58 supplies the menu of forms; M. Chandra supplies the reminder that each form still has to earn the court's confidence.
Key Takeaways
- An expanded, inclusive definition: Section 58 lists eight forms of secondary evidence and, by using "includes," treats the list as illustrative rather than closed.
- Two changes from Section 63 IEA: "means and" was dropped, and clauses (vi) oral admissions, (vii) written admissions, and (viii) skilled-examiner evidence were added.
- The illustrations set the boundary: a compared copy or a proved photograph qualifies; an uncompared copy of a copy, or an oral account of a copy, does not.
- Definition, not admissibility: falling within Section 58 does not make evidence admissible — Section 60 and Section 64 control that.
- Authenticate the copy: per M. Chandra, secondary evidence must be shown by foundational evidence to be a true copy of the original.
Conclusion
Section 58 modernises the definition of secondary evidence without disturbing its logic. By moving from "means and includes" to "includes" and adding three familiar forms of proof, it acknowledges that courts have always recognised admissions and expert summaries as ways of establishing a document's contents. Yet the section's discipline is unchanged: the enumerated forms are only candidates, admissible only when a Section 60 gateway opens and only when the copy is authenticated as true. Understood alongside Sections 59 and 60, it completes the picture of how, and in what shape, a document may be proved when the original cannot be placed before the court.