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Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Rules Relating to Notice to Produce Secondary Evidence Section 64
1. Introduction
Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the procedural requirement of issuing notice to produce the original document before a party is permitted to rely on secondary evidence. The provision reflects the fundamental evidentiary principle that primary evidence is the best evidence, and secondary evidence should be admitted only when production of the original becomes impossible or impracticable for legally acceptable reasons.
2. Statutory Requirement of Notice to Produce
Section 64 provides that secondary evidence of the contents of documents referred to under Section 60(a) shall not be admitted unless:
3. Nature and Scope of Notice under Section 64
The notice to produce must ordinarily:
Illustration:
Where a plaintiff sued on the basis of a promissory note and the defendant called the plaintiff’s advocate as a witness, who admitted possession of the original document but refused to produce it, the Court permitted secondary evidence. The demand made in Court itself was treated as sufficient notice.
4. Situations Where Notice Is Not RequiredSection 64 recognizes that in certain situations, issuing a notice would be unnecessary or meaningless. Accordingly, secondary evidence may be admitted without notice in the following circumstances:
(i) Document Itself Constitutes a NoticeWhere the document sought to be proved is itself a notice—such as a notice to quit, notice of claim, or a statutory notice under Section 80 of the Civil Procedure Code—no separate notice to produce is required.
(ii) Knowledge Inherent from the Nature of the CaseIf the nature of the case itself makes it evident that the adverse party must know that production of the document will be demanded, notice is unnecessary.
Example:
In a prosecution for theft of a bond, secondary evidence of its contents may be given immediately, as the accused is presumed to be aware that the bond would be required.
(iii) Possession Obtained by Fraud or ForceWhere the opposing party has obtained possession of the original document by fraud, coercion, or force, insisting on notice would defeat justice. In such cases, secondary evidence is admissible without notice.
(iv) Original Document Is Already in CourtIf the adverse party or his agent has brought the original document into Court, the object of notice stands fulfilled. A prior notice becomes redundant since the document is readily available.
(v) Admission of Loss or Destruction of the DocumentWhen the party in possession admits that the original document has been lost or destroyed, notice becomes unnecessary.
Examples:
5. Discretionary Power of the Court
Apart from the specified exceptions, Section 64 empowers the Court to dispense with notice in any case where it considers it just and proper to do so.
Illustration:
In a suit for redemption where the plaintiff alleged that the original mortgage deed was in the defendant’s possession and requested the Court to summon it, the Court may waive formal notice before admitting secondary evidence.
6. Judicial Interpretation
In Gurchetan Singh v. Karnail Kaur, the Court held that when the respondent relied on an unregistered Will to obtain mutation and subsequently denied its execution, the petitioner was entitled to lead secondary evidence after satisfying the conditions of Section 60 read with Section 64.
Similarly, in Nawab Singh v. Inderjit Kaur, it was ruled that where the defendant failed to produce the original rent note despite repeated notices, the plaintiff’s application for leading secondary evidence should not be rejected merely on speculative doubts regarding the copy’s authenticity.
7. Proof of Documents: Two Distinct AspectsThe Bharatiya Sakshya Adhiniyam draws a clear distinction between two components of documentary proof:
(A) Proof of Contents
8. Attestation: Meaning and Essentials
The term attestation is defined under Section 3 of the Transfer of Property Act, 1882. An instrument is said to be attested when:
9. Object of Attestation
The purpose of attestation is verification of execution, not verification of contents. It ensures:
10. Important Clarifications
Conclusion
Section 64 plays a crucial role in balancing procedural fairness with evidentiary necessity. By mandating notice to produce the original document while simultaneously carving out pragmatic exceptions, the provision ensures that secondary evidence is admitted only when justified, without allowing technicalities to obstruct justice. The section reinforces the primacy of original documents while accommodating real-world evidentiary challenges.
1. Introduction
Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the procedural requirement of issuing notice to produce the original document before a party is permitted to rely on secondary evidence. The provision reflects the fundamental evidentiary principle that primary evidence is the best evidence, and secondary evidence should be admitted only when production of the original becomes impossible or impracticable for legally acceptable reasons.
2. Statutory Requirement of Notice to Produce
Section 64 provides that secondary evidence of the contents of documents referred to under Section 60(a) shall not be admitted unless:
- The party intending to lead secondary evidence has previously given notice to the party in whose possession or power the original document lies, or
- Such notice is given to that party’s advocate or authorised representative,
- The notice must be in the form prescribed by law, and where no form is prescribed, in a manner that the Court considers reasonable in the circumstances of the case.
3. Nature and Scope of Notice under Section 64
The notice to produce must ordinarily:
- Be in writing,
- Clearly describe the document sought to be produced,
- Be sufficiently precise so that the party receiving it cannot plead ignorance or confusion regarding the document demanded.
Illustration:
Where a plaintiff sued on the basis of a promissory note and the defendant called the plaintiff’s advocate as a witness, who admitted possession of the original document but refused to produce it, the Court permitted secondary evidence. The demand made in Court itself was treated as sufficient notice.
4. Situations Where Notice Is Not RequiredSection 64 recognizes that in certain situations, issuing a notice would be unnecessary or meaningless. Accordingly, secondary evidence may be admitted without notice in the following circumstances:
(i) Document Itself Constitutes a NoticeWhere the document sought to be proved is itself a notice—such as a notice to quit, notice of claim, or a statutory notice under Section 80 of the Civil Procedure Code—no separate notice to produce is required.
(ii) Knowledge Inherent from the Nature of the CaseIf the nature of the case itself makes it evident that the adverse party must know that production of the document will be demanded, notice is unnecessary.
Example:
In a prosecution for theft of a bond, secondary evidence of its contents may be given immediately, as the accused is presumed to be aware that the bond would be required.
(iii) Possession Obtained by Fraud or ForceWhere the opposing party has obtained possession of the original document by fraud, coercion, or force, insisting on notice would defeat justice. In such cases, secondary evidence is admissible without notice.
(iv) Original Document Is Already in CourtIf the adverse party or his agent has brought the original document into Court, the object of notice stands fulfilled. A prior notice becomes redundant since the document is readily available.
(v) Admission of Loss or Destruction of the DocumentWhen the party in possession admits that the original document has been lost or destroyed, notice becomes unnecessary.
Examples:
- An insurance policy rendered obsolete after issuance of a fresh policy was presumed lost, permitting secondary evidence.
- A Will destroyed by rodents was allowed to be proved through secondary evidence.
Where loss is admitted or reasonably inferred, insistence on notice would be futile.
5. Discretionary Power of the Court
Apart from the specified exceptions, Section 64 empowers the Court to dispense with notice in any case where it considers it just and proper to do so.
Illustration:
In a suit for redemption where the plaintiff alleged that the original mortgage deed was in the defendant’s possession and requested the Court to summon it, the Court may waive formal notice before admitting secondary evidence.
6. Judicial Interpretation
In Gurchetan Singh v. Karnail Kaur, the Court held that when the respondent relied on an unregistered Will to obtain mutation and subsequently denied its execution, the petitioner was entitled to lead secondary evidence after satisfying the conditions of Section 60 read with Section 64.
Similarly, in Nawab Singh v. Inderjit Kaur, it was ruled that where the defendant failed to produce the original rent note despite repeated notices, the plaintiff’s application for leading secondary evidence should not be rejected merely on speculative doubts regarding the copy’s authenticity.
7. Proof of Documents: Two Distinct AspectsThe Bharatiya Sakshya Adhiniyam draws a clear distinction between two components of documentary proof:
(A) Proof of Contents
- Contents of documents may be proved by primary evidence (Section 57) or secondary evidence (Section 58), subject to the conditions in Section 60.
- Sections 56 to 64 govern proof of contents, including electronic records.
- Execution refers to the final act completing the document, such as signing, sealing, or delivery.
- Sections 55 to 73 deal with proof of execution, authorship, and attestation.
8. Attestation: Meaning and Essentials
The term attestation is defined under Section 3 of the Transfer of Property Act, 1882. An instrument is said to be attested when:
- It is witnessed by two or more persons,
- Each witness has either:
- Seen the executant sign, or
- Received personal acknowledgment of the signature,
- Each witness signs the document in the presence of the executant,
- No specific form of attestation is required, and witnesses need not be present simultaneously.
9. Object of Attestation
The purpose of attestation is verification of execution, not verification of contents. It ensures:
- The document was executed voluntarily,
- The person executing it was competent,
- The witnesses bear testimony to the act of execution, not to the truth of the document’s contents.
10. Important Clarifications
- If all attesting witnesses are unavailable, the party relying on the document cannot be compelled to produce them.
- In the case of a Will, even registration does not dispense with the requirement of examining at least one attesting witness, regardless of whether execution is denied.
Conclusion
Section 64 plays a crucial role in balancing procedural fairness with evidentiary necessity. By mandating notice to produce the original document while simultaneously carving out pragmatic exceptions, the provision ensures that secondary evidence is admitted only when justified, without allowing technicalities to obstruct justice. The section reinforces the primacy of original documents while accommodating real-world evidentiary challenges.
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