Indian Evidence Law – Primary Evidence under Section 57 of the Bharatiya Sakshya Adhiniyam 2023
The Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) is India’s current general evidence statute for courts, enacted as Act 47 of 2023 and brought into force on 1 July 2024. 1 Its stated legislative purpose is “to consolidate and to provide for general rules and principles of evidence for fair trial.” 
Within the BSA’s scheme, Section 57 (Primary evidence) sits at the core of documentary proof: it defines what counts as “primary evidence,” and then expands that definition through Explanations 1–7—including several new explanations addressing electronic/digital records and video recordings. 
Legal framework and statutory setting
The BSA’s foundational definitions matter because they determine what the Act treats as “documents” and “evidence.” The statute defines “document” broadly to include records on physical media and expressly includes “electronic and digital records”; it also defines “evidence” to include both (i) witness statements (including those “given electronically”) and (ii) documents “including electronic or digital records” produced for the court’s inspection. 
This drafting choice links directly to Section 57. By first recognizing electronic/digital records as “documents,” the Act can then treat certain electronic outputs and stored digital records as primary (rather than merely secondary) evidence under the Section 57 explanations. 
Institutionally, the authoritative published text used below is the official Gazette publication hosted by the , which reproduces the enacted BSA provisions.
What Section 57 establishes
Core definition
Section 57 gives a direct, classical definition: primary evidence is “the document itself” produced for the court’s inspection.  This is immediately preceded by Section 56, which states that the “contents of documents” may be proved by “primary” or “secondary” evidence—signalling a two-track structure: prefer primary evidence, fall back on secondary evidence only when permitted. 

Explanations 1–3: traditional “originals” in multiple-document situations
Section 57 then addresses common documentary realities:

• Executed in several parts (Explanation 1): if a document is executed in several parts, each part is primary evidence of the document. 
• Executed in counterpart (Explanation 2): where a document is executed in counterparts (each executed by one or some parties only), each counterpart is primary evidence as against the party executing it. 
• Uniform process (Explanation 3): where multiple documents are made by one uniform process (printing/lithography/photography), each is primary evidence of the contents of the rest; but if they are all copies of a common original, they are not primary evidence of the contents of that original. 

The Act also includes an illustration about placards printed at one time from one original to show what Explanation 3 means in practice. 

Explanations 4–7: the digital expansion
A key modernization is the addition of four explanations focused on electronic/digital records and video recordings:

• Explanation 4: where an electronic/digital record is created or stored simultaneously or sequentially in multiple files, each file is primary evidence. 
• Explanation 5: where an electronic/digital record is produced from “proper custody,” it is primary evidence unless disputed. 
• Explanation 6: where a video recording is simultaneously stored electronically and transmitted/broadcast/transferred, each stored recording is primary evidence. 
• Explanation 7: where an electronic/digital record is stored in multiple storage spaces in a computer resource (including temporary files), each such automated storage is primary evidence. 

Relationship with Sections 58–60: why “primary” stays the baseline
Section 57 does not operate in isolation. Immediately afterward:

• Section 58 lists what “secondary evidence includes” (certified copies, mechanical copies, copies compared with originals, counterparts against non-executing parties, oral accounts of contents, oral admissions, written admissions, etc.). 
• Section 59 lays down the general rule: documents “shall be proved by primary evidence” except where the Act provides otherwise. 
• Section 60 enumerates the situations in which secondary evidence may be given (loss/destruction, possession by adverse party, public documents where certified copies are permitted, voluminous records, and so on), and clarifies what kind of secondary evidence is admissible under each clause. 

So, Section 57 supplies the definition of the preferred proof; Sections 59–60 supply the rule-and-exceptions logic that drives admissibility choices in real disputes. 

Rationale and doctrinal foundations of the “document itself” rule
Indian documentary-evidence doctrine is usually explained through the “best evidence” principle: when the original document exists and can be produced, it is treated as the best available proof of its contents, and legal systems typically insist on it to reduce the risk of error, alteration, or misdescription. This preference is concretely expressed in the BSA through (i) Section 59’s rule requiring primary evidence and (ii) the statutory architecture that allows secondary evidence only in specifically justified situations. 

The approach is also reinforced structurally by the BSA’s provisions empowering judges to order production of documents, while simultaneously indicating that the judge should not “dispense with primary evidence of any document” except in the cases already excepted by the Act.

Historically, this framework closely tracks the earlier 1872 statute. Under the Indian Evidence Act, 1872, Section 62 defined primary evidence in the same “document itself produced for inspection” terms, with the same core explanations and the same placard illustration.  The BSA largely retains that architecture for paper-era documents and then extends it for the digital era through Explanations 4–7. 

Commentary from the has long emphasized that once “document” expands to include electronic forms, authenticity and reliability concerns become central; the Commission noted that computer-generated information may need additional assurance about system security and reliability. This concern is one reason modern evidence rules often distinguish between (a) status as a “document,” (b) admissibility conditions, and (c) weight/probative value—a distinction courts repeatedly stress in electronic evidence disputes. 

Traditional “document originals” under Explanations 1–3
Documents executed in several parts and the status of carbon/duplicate originals
Explanation 1 recognizes that some documents are executed in multiple signed parts, each intended to function as an original (for instance, two identical signed counterparts each kept by a different party). 

A leading illustration of this logic in case law comes from the 2 in Mohinder Singh v. Jaswant Kaur (D) through LRs (Civil Appeal No. 6706/2013, order dated 11 September 2019), where the Court held that a signed carbon copy prepared in the same process as the original can assume the character of an original under the classical primary-evidence rule, and the High Court’s contrary view was “absolutely incorrect.” 

This decision is doctrinally important for Section 57 analysis because Section 57’s Explanation 1 is the BSA successor to the earlier Section 62 structure: the central question becomes whether the copy was executed as part of the same execution process and intended to operate as an original. 

Counterparts and the “as against the executing party” caveat
Explanation 2 draws a careful line: a counterpart is primary evidence against the party who executed it, but it is not automatically primary evidence against a non-executing party.  This is why Section 58 expressly lists “counterparts of documents as against the parties who did not execute them” as a form of secondary evidence, reflecting that counterpart status can change depending on who it is being proved against. 

Uniform-process documents versus mechanical copies: clarifying a common confusion
Student confusion often arises between:

• Section 57 Explanation 3 (uniform process): multiple documents all made by a uniform process may be primary evidence of each other (e.g., multiple identical placards printed at the same time), but not of the “common original” they were made from. 
• Section 58(ii) (mechanical processes): “copies made from the original by mechanical processes” ensuring accuracy—classic examples include photocopies or similar reproductions—are treated as secondary evidence. 

The statute’s own illustration is the cleanest way to see the distinction. If the dispute is about what a particular placard said, any one placard can prove the contents of the others (primary evidence of each other), but none proves the contents of the “original” from which the print run was generated.  If instead the dispute is about the original source document (say, the original deed), then a mechanically produced copy generally sits in the “secondary evidence” bucket unless the Act’s secondary-evidence gateways are satisfied. 

This continuity is visible when compared to the earlier Indian Evidence Act: its Section 62/63 used the same conceptual separation between “uniform process” originals (primary among themselves) and “mechanical copies” (secondary evidence). 

Electronic and video primary evidence under Explanations 4–7
What changed and why it matters
A major policy objective of the BSA is to modernize evidentiary treatment of digital material.  The BSA formally treats electronic/digital records as “documents” and then expands the category of what counts as “primary evidence” in the electronic context—especially where the same record exists across multiple files, devices, or storage spaces due to routine digital replication. 
The policy framing presented by  highlights the same shift: the older Evidence Act’s electronic-record regime largely operated through the special admissibility path for electronic records, while the BSA clarifies that certain electronic records (including those produced from “proper custody,” and those stored across multiple files) will be treated as primary evidence unless disputed. 

Interaction with Sections 61–63: “primary” does not eliminate admissibility conditions
Two statutory moves occur simultaneously:

1. Section 61 prohibits denying admissibility merely because a record is electronic/digital and states that such record shall have the same legal effect as other documents, subject to Section 63. 
2. Section 63 then provides a detailed rule for when “computer output” (printed/stored/recorded/copied electronic information) will be deemed a document and admissible, contingent on listed conditions, and—critically—requires a certificate to be submitted along with the electronic record “at each instance” it is submitted for admission. 

On its face, then, BSA Section 57’s “primary evidence” expansions cannot be read as a blanket waiver of authentication/admissibility safeguards for electronic evidence; the statute expressly routes electronic-record proof through Section 63’s conditions when the evidence being produced is “computer output.” 

The certificate regime and its evolution from Section 65B case law
The Supreme Court’s pre‑BSA jurisprudence under the old Evidence Act converged on a strict approach: in Anvar P.V. v. P.K. Basheer, the Court treated Section 65B certification as central to admissibility of electronic records when the original device is not itself produced. 10 The position was re‑affirmed and clarified by a larger bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which emphasized the Section 65B(4) certificate requirement as a condition precedent for admitting electronic evidence in many practical situations. 

The BSA’s Section 63 is structurally similar to the old Section 65B framework: it defines “computer output,” lists operational conditions for regular use, proper functioning, ordinary-course feeding of information, and then requires a certificate describing production particulars. 

A prominent practitioner analysis notes that BSA Sections 62–63 (the electronic evidence provisions) “retain” the core admissibility criteria but add features that may make compliance more onerous—such as producing the certificate at every instance of submission and requiring certification by relevant persons and an expert—while also raising questions about how the expanded “primary evidence” status for multiple stored copies interacts with the certificate requirement. 

“Proper custody” in Explanation 5: a powerful phrase with interpretive pressure
Explanation 5 states: if an electronic/digital record is produced from “proper custody,” it is primary evidence unless disputed. 
The Act does define “proper custody” in the presumptions chapter for certain contexts. For instance, it explains that documents/electronic records are in proper custody when they are kept in the required place and looked after by the required person, while also allowing custody to be treated as proper if legitimate origin is shown. 
However, the presence of this definition in the presumptions provisions creates an interpretive question: does that definition automatically govern Explanation 5, or will courts develop a more chain‑of‑custody and integrity‑focused meaning for “proper custody” in the electronic primary‑evidence context? A practitioner note from flags chain‑of‑custody and tampering concerns in relation to Explanation 5, referencing institutional scrutiny during legislative review and highlighting that “proper custody” may become a contested hinge in litigation. 

This is not a technicality: making electronic records “primary” when produced from proper custody shifts disputes from “is it admissible at all?” to “is it authentic / untampered / attributable?”, and courts may respond by demanding stronger foundational proof when the opposing side disputes integrity. 

Practical implications for proving and challenging primary evidence
Producing primary evidence is not the end of proof
Section 57 answers what counts as primary evidence; it does not automatically prove authorship, execution, or genuineness in contested cases. The Law Commission’s caution—expanded definitions increase the difficulty of demonstrating authenticity—captures this well, especially for computer‑generated or electronically stored information. 

Accordingly, even where Section 57 classifies something as “primary,” courts typically still require foundational proof tailored to the document type (e.g., proof of signature/handwriting/attestation where required, or system and integrity proof for electronic records). The BSA’s insistence that electronic-record proof is “subject to” Section 63 underscores that classification as “document/primary” and the satisfaction of admissibility conditions are distinct analytical steps. 

Carbon-copy and duplicate-original disputes: the Mohinder Singh takeaway
Where parties executed documents using carbon processes or duplicate “originals,” the key litigation question becomes whether the proffered document is a true executed original (primary) or merely a copy (secondary). The Supreme Court’s order in Mohinder Singh stresses that a carbon copy prepared in the same process and signed by both parties can be treated as an original—an approach aligned with Section 57’s focus on execution-in-several-parts situations. 
Procedure: why objections to “mode of proof” must be timely
Even in a Section 57‑centric dispute, procedure matters. Indian courts draw a difference between (a) objections to inherent inadmissibility and (b) objections to mode of proof / irregular proof. The latter generally must be raised when the document is tendered, so that defects can be cured (for example, by producing the correct original or by laying proper foundation for secondary evidence). 
This principle is especially important in primary‑vs‑secondary controversies because the failure to object at the right time can constrain later challenges and can prevent the opposing party from curing proof defects at trial. 

Electronic primary evidence after the BSA: likely litigation patterns
Based on the enacted text, early BSA litigation on Section 57 is likely to consolidate around three recurring disputes:

1. “Primary” classification disputes: whether a particular electronic artefact is truly within Explanations 4–7 (e.g., whether a cached file or temporary copy should count as a primary evidence “storage space”). 
2. Custody/integrity disputes: what “proper custody” must look like, and what evidentiary showing is needed once the record is “disputed.” 
3. Certificate boundary disputes: when Section 63 certification is mandatory versus when direct production of an original device/record is enough—an issue already central to Arjun Panditrao under the old Evidence Act and flagged as an uncertainty under the BSA in practitioner commentary.

​​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Contents of Documents [Section 56]
Section 56: Rule Regarding Proof of ContentsSection 56 of the Bharatiya Sakshya Adhiniyam, 2023 provides that the contents of documents may be proved either by primary evidence or by secondary evidence. There is no other legally recognised mode for proving the contents of a document.

(a) Scope and Object of Section 56
The purpose of producing a document before the Court is to rely upon the truth of the statements contained in it. Whenever a document is produced in evidence, the Court is required to consider three distinct questions:

1. Whether the document is genuine?
2. What are the contents of the document?
3. Whether the statements contained in the document are true?

Each of these questions is proved by different modes of evidence.

Threefold Analysis Explained
Suppose a letter written by A is produced before the Court stating that B murdered C. The issues arising would be:

1. Whether the letter was written by A
   • This concerns the genuineness of the document.
   • It can be proved by oral evidence, such as examining A.
2. What does the letter contain
   • This concerns the contents of the document.
   • It can be proved only by producing the document itself or its legally admissible copy.
   • If the original letter is produced, primary evidence is given.
   • If a permitted copy is produced, secondary evidence is given.
3. Whether the statement that B murdered C is true
   • This concerns the truth of the contents, not the contents themselves.
   • It must be proved by independent oral or other substantive evidence, not merely by producing the document.

Distinction Between Proof of Contents and Proof of Truth

• Contents of a document are proved only by primary or secondary evidence.
• Truth of the statements contained in the document is proved by oral or other substantive evidence.
• Producing a document does not prove the truth of its contents; it only proves what the document states.

Illustration: Newspaper Report
The production of newspapers reporting that a cricket match was played does not prove that the match was actually played. It merely proves what the newspaper contains. To prove that the match was played, a person who witnessed the match must give evidence.
This principle flows from a combined reading of Section 54 and Sections 56 to 66 of the Adhiniyam.

Mode of Proving Contents of Documents
The contents of documents can be proved only in the following two ways:

1. By Primary Evidence – by producing the original document
2. By Secondary Evidence – by producing a legally admissible copy
3. There is no third method recognised under law for proving the contents of documents.

Case LawIn Chander Kanta Ben v. Vadilal Baplal, the Court held that where entries in account books were sought to be proved but:

• No person appeared to support the entries, and
• No basic vouchers or supporting documents were produced,

the evidence was not admissible. Mere production of account entries without proper proof of their contents and reliability was held to be insufficient.

Exam-Ready Conclusion
Section 56 clearly draws a distinction between proof of the contents of a document and proof of the truth of its contents, permitting the former to be proved only through primary or secondary evidence, and the latter through independent substantive evidence.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Electronic Evidence (E-Evidence): Sections 62 and 63
1. Introduction to Electronic EvidenceWith the increasing reliance on digital communication and electronic storage, the law of evidence has evolved to recognize electronic records as a distinct and independent form of evidence. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) incorporates special provisions to regulate the proof and admissibility of electronic records, commonly referred to as e-evidence.
Two key provisions govern this area:

1. Section 62 – Special provisions relating to evidence of electronic records
2. Section 63 – Admissibility of electronic records

These provisions collectively ensure that electronic evidence is admitted in a manner that safeguards authenticity, reliability, and procedural fairness.

2. Special Provisions Relating to Electronic Records – Section 62
Section 62 acts as an enabling provision for electronic evidence. It clarifies that the contents of electronic records shall be proved in accordance with the procedure laid down in Section 63.
In essence, Section 62 does not itself prescribe the mode of proof; rather, it refers and links the proof of electronic records directly to Section 63. Thus, any attempt to rely upon electronic evidence must satisfy the requirements stipulated under Section 63.

3. Admissibility of Electronic Records – Section 63
Section 63 lays down a comprehensive legal framework for determining when and how electronic records may be admitted in evidence.

3.1 Computer Output Deemed to Be a Document – Section 63(1)
Section 63(1) provides that any information contained in an electronic record which is:

• Printed on paper, or
• Stored, recorded, or copied on optical media, magnetic media, semi-conductor memory, or
• Produced by a computer, communication device, or any electronic means

shall be treated as a “document”, provided the statutory conditions are fulfilled.
Once these conditions are satisfied:

• Such computer output becomes admissible in evidence, and
• It may be relied upon without producing the original electronic record,
• As evidence of both the contents and the facts stated therein, where direct evidence would otherwise be admissible.

This provision legally equates a valid computer output with a traditional documentary record.

3.2 Conditions for Admissibility of Computer Output – Section 63(2)
For a computer output to be admissible under Section 63(1), all four statutory conditions must be satisfied:
(i) Regular Use of Computer or Communication Device – Section 63(2)(a)
The computer or communication device must have been:

• Used regularly during the relevant period,
• By a person having lawful control or charge over it,
• For activities that were routinely carried on during that period.

This ensures that the device was not specially created or manipulated for litigation.

(ii) Information Fed in Ordinary Course of Activities – Section 63(2)(b)
The information contained in the electronic record must have been:

• Regularly fed into the system,
• In the ordinary course of business or activities,
• And not introduced as an afterthought or for the purpose of evidence.

(iii) Proper Functioning of the Device – Section 63(2)(c)
The computer or communication device must have been:

• Operating properly during the relevant period, or
• Any malfunction must not have affected the accuracy or integrity of the electronic record.

This condition ensures technical reliability of the data.

(iv) Information Derived from Ordinary Input – Section 63(2)(d)
The electronic record must:

• Reproduce information directly fed into the system, or
• Be derived from such information supplied in the normal course of activities.

This safeguards against fabrication or alteration.

3.3 Multiple Devices Treated as a Single System – Section 63(3)
Section 63(3) recognizes the practical reality of modern digital infrastructure. Where information is created, stored, or processed through:

• Multiple computers or communication devices,
• Whether functioning independently or as part of a system,
• Including networks, cloud systems, intermediaries, or integrated resources,

—all such devices shall be treated as one single computer or communication device for the purpose of admissibility.
This provision avoids technical objections based on the complexity of digital systems.

3.4 Mandatory Certificate Accompanying Electronic Evidence – Section 63(4)
A certificate is a crucial requirement for admitting electronic evidence. Whenever electronic evidence is sought to be admitted, a certificate must accompany the record and must:

1. Identify the electronic record and describe the manner in which it was produced;
2. Specify particulars of the device used in producing the record, sufficient to establish that it qualifies as a computer or communication device under the Act;
3. Address compliance with the conditions laid down in Section 63(2);
4. Be signed by a person:
   • In charge of the computer or communication device, or
   • Responsible for the management of the relevant activities.

An expert’s involvement may also be reflected where appropriate. The certificate may state facts based on the best knowledge and belief of the certifying person, as prescribed in the Schedule.
Such a certificate itself constitutes evidence of the matters stated therein.

3.5 Meaning of Computer Input and Output – Section 63(5)
For clarity, Section 63(5) explains:

• Computer input includes information supplied to a computer or communication device:
  • In any form,
  • Directly or indirectly,
  • With or without human intervention.
• Computer output includes information produced:
  • Directly by the device, or
  • Through auxiliary equipment or electronic means,
  • As part of systems referred to in Section 63(3).

This provision adopts a technology-neutral approach, ensuring adaptability to evolving digital methods.

4. Conclusion
Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023 provide a robust statutory framework for the admissibility of electronic evidence. By treating valid computer outputs as documents, prescribing strict conditions for reliability, and mandating certification, the law strikes a balance between technological advancement and evidentiary integrity. These provisions ensure that electronic records are admitted not merely for convenience, but on the basis of trustworthiness and procedural compliance.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof as to Electronic Signature Section 66
1. IntroductionWith the recognition of electronic records and electronic signatures under Indian law, it became essential to prescribe rules for proving the authenticity of electronic signatures. Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 specifically deals with the manner in which an electronic signature is to be proved when its genuineness is disputed before a Court.

2. Statutory Provision under Section 66
Section 66 provides that:

• Where an electronic signature is alleged to have been affixed by a subscriber to an electronic record,
• The party relying upon such electronic record must prove that the electronic signature belongs to that subscriber.

Thus, the burden lies on the party asserting the validity of the electronic signature to establish that it was affixed by the person to whom it is attributed.

3. Meaning of “Subscriber”
A subscriber refers to a person who:

• Has obtained an Electronic Signature Certificate (ESC) from a Certifying Authority, and
• Is authorised and certified under the provisions of the Information Technology Act, 2000 to affix an electronic signature.

The certifying authority verifies the identity of the subscriber and issues the certificate, which forms the foundation for proving the electronic signature.

4. Nature and Extent of Proof Required
To prove an electronic signature under Section 66, it must be shown that:

• The electronic signature was affixed using a valid Electronic Signature Certificate,
• The certificate was issued in the name of the alleged subscriber, and
• The subscriber had control over the electronic signature at the relevant time.

This proof may be furnished through technical evidence, certification records, or testimony of the Certifying Authority, depending on the facts of the case.

5. Exception: Secure Electronic Signature
An important exception is carved out under this section:

• No proof is required where the electronic signature in question is a secure electronic signature.

A secure electronic signature enjoys a statutory presumption of authenticity under the Adhiniyam read with the Information Technology Act. In such cases, the Court presumes that the signature is genuine unless the contrary is proved.

6. Illustration
Example:
A affixes his electronic signature to an electronic document. During judicial proceedings, a dispute arises as to whether the electronic signature truly belongs to A. In such a case, it must be proved that:

• A is the subscriber of that electronic signature, and
• The signature was affixed using his valid Electronic Signature Certificate.

However, if the electronic signature is a secure electronic signature, separate proof of authenticity is not required.

7. Object and Rationale
The purpose of Section 66 is to:

• Prevent misuse or impersonation in electronic transactions,
• Ensure reliability and trust in electronic records, and
• Maintain parity between proof of handwritten signatures and electronic signatures.

By mandating proof of authorship while also recognising secure electronic signatures, the provision balances technological efficiency with evidentiary safeguards.

8. Conclusion
Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a clear rule that electronic signatures do not automatically prove themselves. Where an electronic signature is disputed, its attribution to the subscriber must be proved, except in the case of secure electronic signatures. This provision reinforces confidence in electronic evidence while ensuring accountability and authenticity in digital transactions.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Signature and Handwriting of a Person Alleged to Have Signed or Written a Document Section 65
1. Introduction
Section 65 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule regarding the proof of signature and handwriting when a document is alleged to have been signed or written, wholly or partially, by a particular person. The section embodies the fundamental evidentiary principle that authorship of a document must be established before its contents can be relied upon by the Court.

2. Statutory Rule under Section 65
According to Section 65:

• Where a document is alleged to be signed or written by any person,
• The signature or handwriting attributed to that person must be proved to be genuinely his.

Thus, mere production of a document is not sufficient. The party relying on the document must establish that the signature or handwriting appearing on it is that of the person concerned.

3. Scope and Application of the Section
This section primarily applies to documents not required by law to be attested. In such cases:

• The execution of the document can be proved by any competent witness who saw the person signing or writing the document.
• This may include the scribe, an attesting witness, or any other literate person who was present at the time of execution.

Importantly, Section 65 does not prescribe a single rigid method for proving handwriting or signatures. Instead, it allows flexibility, permitting any legally acceptable method of proof, provided it does not violate the best evidence rule.

4. Modes of Proving Handwriting and Signature
The handwriting or signature of a person may be proved through several recognized methods, including:

1. Direct evidence of the writer himself, where the person admits authorship.
2. Expert evidence, by comparing the disputed handwriting or signature with admitted or proved samples (Section 39).
3. Evidence of a person acquainted with the handwriting of the alleged writer, such as a colleague or family member (Section 41).
4. Testimony of a person who saw the document being written or signed, such as the scribe or a witness present at execution.
5. Comparison by the Court itself of the disputed writing or signature with admitted or proved samples under Section 72.

These modes are alternative and cumulative, and the law does not mandate the adoption of any one particular method.

5. Proof of Authorship of Different Types of Documents

• In the case of letters, it must be proved who wrote and signed the letter.
• For diaries, notebooks, or private records, authorship must be established by showing that the document belongs to and was written by the alleged person.
• Mere possession of such documents is insufficient without proof of authorship.

6. Marking of Documents as Exhibits and Its Legal Effect
Judicial decisions have clarified that marking a document as an exhibit does not amount to proof of its contents.

• In Narbada Devi Gupta v. Varender Kumar Jaiswal, the Supreme Court held that merely exhibiting a document does not dispense with the requirement of proving its execution and contents.
• Similarly, in LIC of India v. Ram Pal Singh Bisen, it was held that admission of a document only amounts to admission of its existence, not the truth of its contents.

Therefore, a document must be proved either by primary evidence or admissible secondary evidence, in accordance with law.

7. Objections as to Admissibility and Mode of Proof
​In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami Temple, the Supreme Court clarified that:

• An objection relating to the admissibility of a document can be raised at any stage of the proceedings, even after it has been marked as an exhibit.
• However, objections regarding the mode of proof must be raised at the time the document is tendered in evidence. Failure to do so may result in waiver of such objection.

8. Conclusion
Section 65 reinforces the principle that documents do not prove themselves. When a document is alleged to have been signed or written by a particular person, its authenticity must be established through legally recognized modes of proof. Mere production or exhibition of a document is insufficient. The provision ensures reliability, prevents fabrication, and upholds the integrity of documentary evidence in judicial proceedings.

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:

• 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.

The purpose of such notice is to give the opposite party a fair opportunity to produce the original document so that the Court may have access to the best available evidence.

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.

Section 60(a) complements this rule by providing that where the original document is in the possession of the adversary and he fails to produce it after notice, secondary evidence becomes admissible.

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.

(vi) Document Beyond Jurisdiction of the CourtIf the document is located in a foreign country or otherwise beyond the reach of the Court’s process, secondary evidence may be admitted without notice.

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.

(B) Proof of Execution or Authorship

• 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:

1. It is witnessed by two or more persons,
2. Each witness has either:
   • Seen the executant sign, or
   • Received personal acknowledgment of the signature,
3. Each witness signs the document in the presence of the executant,
4. 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.

In M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri & Sons, the Supreme Court emphasized that attestation requires animo attestandi, i.e., an intention to attest. A person signing merely as a scribe, identifier, or registering officer does not qualify as an attesting witness.

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.

Kembaraxtra-Islamic Criminal Law - Male Posing as Woman

Question 1

Explain the Islamic position on a male person posing as a woman.


Answer:
Islam recognises that men and women have distinct natural characteristics. The Prophet (SAW) prohibited men from imitating women and women from imitating men. Such imitation includes behaviour, speech, walking style, dressing, and appearance. Islamic teachings strongly condemn this conduct, and it is reported that Allah and His angels curse those who deliberately imitate the opposite gender.

Question 2

What forms of imitation are prohibited under Islamic teachings?


Answer:
Prohibited imitation includes adopting the dress, manner of speaking, walking style, behaviour, and outward appearance of the opposite gender. Wearing attire specifically associated with the opposite sex is considered a form of prohibited imitation.


Question 3

State the relevant Prophetic traditions (Hadith) concerning imitation of women by men.


Answer:
The Prophet (SAW) forbade men from wearing items associated with women, including silk and gold. In a hadith narrated by Ali, the Prophet prohibited the wearing of a gold ring and silk garments by men. Another hadith narrated by Ibn Umar records the Prophet (SAW) reprimanding the wearing of clothing associated with unbelievers and forbidding such attire.

Question 4

What is the offence of a male person posing as a woman under the Syariah Criminal Offences (Federal Territories) Act 1997?


Answer:
Under section 28 of the Syariah Criminal Offences (Federal Territories) Act 1997, any male person who, in a public place, wears women’s attire and poses as a woman for immoral purposes commits an offence under Syariah law.

Question 5

What are the essential elements of the offence under section 28 of the Syariah Criminal Offences (Federal Territories) Act 1997?


Answer:
The essential elements are:

1. The offender is a male person;
2. The conduct occurs in a public place;
3. The male wears women’s attire; and
4. He poses as a woman for immoral purposes.

Question 6


What is the punishment for a male person posing as a woman under Syariah law?


Answer:
Upon conviction, the offender may be punished with:

• A fine not exceeding RM1,000, or
• Imprisonment for a term not exceeding one year, or
• Both.

Question 7


Who has jurisdiction to try the offence of a male person posing as a woman?


Answer:
The offence falls within the jurisdiction of the Syariah Courts and applies only to Muslims, subject to the limits imposed by the Syariah Courts (Criminal Jurisdiction) Act 1965.


Exam Tip (One-liner)


Section 28 criminalises cross-dressing by a male in public only when it is done for immoral purposes, reflecting Islamic moral standards rather than mere appearance.

kembaraXtra-Islamic Law-Differences between Penal Code and Syariah Law

(Indecent Acts in Public Places)​


1. Source of Law

• Penal Code: Section 294 and section 292, Act 574 (civil criminal law).
• Syariah Law: Section 29, Syariah Criminal Offences (Federal Territories) Act 1997.

2. Persons Subject to the Law

• Penal Code: Applies to all persons regardless of religion.
• Syariah Law: Applies only to Muslims.

3. Nature of the Offence

• Penal Code:
  • Focuses on obscenity.
  • Requires the act to cause annoyance to others.
  • Covers obscene acts, words, songs, and materials.


• Syariah Law:
  • Focuses on indecent behaviour contrary to Islamic law.
  • Does not expressly require annoyance.
  • Emphasises public morality and modesty.

4. Types of Conduct Covered

• Penal Code:
  • Obscene acts in public.
  • Obscene songs, words, recitations.
  • Sale, possession, or circulation of obscene materials (s 292).
• Syariah Law:
  • Any indecent behaviour in public that violates Islamic moral standards.

5. Punishment

• Penal Code (s 294):
  • Imprisonment up to 3 months, or
  • Fine, or
  • Both.
• Syariah Law (s 29):
  • Fine up to RM1,000, or
  • Imprisonment up to 6 months, or
  • Both.

6. Jurisdiction

• Penal Code: Tried in civil courts (Magistrates / Sessions).
• Syariah Law: Tried in Syariah Courts within constitutional limits.

B. QUESTIONS AND ANSWERS


Question 1


Explain the offence of acting or behaving in an indecent manner in a public place under the Penal Code.


Answer:
Under section 294 of the Penal Code, a person commits an offence if he or she performs any obscene act, or utters obscene words or songs, in or near a public place to the annoyance of others. The offence requires proof of obscenity, public place, and annoyance. Upon conviction, the offender may be punished with imprisonment up to three months, a fine, or both.

Question 2

What is the offence of indecent behaviour under the Syariah Criminal Offences (Federal Territories) Act 1997?


Answer:
Section 29 of the Syariah Criminal Offences (Federal Territories) Act 1997 provides that any Muslim who acts or behaves in an indecent manner in a public place, contrary to Islamic law, commits an offence. The offence focuses on morality and decency according to Islamic principles. The punishment is a fine not exceeding RM1,000, imprisonment not exceeding six months, or both.

Question 3




Compare the elements of the offence under section 294 of the Penal Code and section 29 of the Syariah Criminal Offences Act 1997.


Answer:
Section 294 of the Penal Code requires the act to be obscene and to cause annoyance to others in a public place. In contrast, section 29 of the Syariah Criminal Offences Act does not require proof of annoyance but instead assesses indecency based on Islamic law. Furthermore, the Penal Code applies to all persons, while the Syariah provision applies only to Muslims.

Question 4




Discuss the differences in punishment for indecent acts under civil law and Syariah law in Malaysia.


Answer:
Under the Penal Code, the maximum punishment for indecent acts is imprisonment for three months, a fine, or both. Under Syariah law, the punishment is more limited but may include imprisonment up to six months, a fine up to RM1,000, or both. The difference reflects the constitutional limits placed on Syariah courts’ criminal jurisdiction.

Question 5




Why can indecent acts in public be punished under both the Penal Code and Syariah law?


Answer:
Indecent acts in public may fall under both the Penal Code and Syariah law because the two systems serve different purposes. The Penal Code protects public order and prevents annoyance, while Syariah law regulates moral conduct among Muslims. Both operate concurrently, subject to constitutional limits on Syariah court jurisdiction.

Kembaraxtra-Islamic Law - Overview
Crimes under Islamic law are classified according to the nature of the rights affected. First, there are crimes against society, which are punished to safeguard public interest and social order. Most ḥadd offences fall within this category. Second, there are crimes against individuals, which are punished to protect private rights; these include offences governed by qiṣāṣ and diyah. Ta‘zīr offences may involve either public rights or individual rights, depending on the nature of the wrongdoing.


Ḥadd offences such as zinā (unlawful sexual intercourse), theft, qazaf (false accusation of zinā), consumption of intoxicants, hirābah (highway robbery), baghy (rebellion), and riddah (apostasy) are crimes for which punishments are fixed and prescribed by Allah. Once the offence is proven, these punishments must be imposed without regard to the offender’s status. They cannot be reduced, increased, annulled, or altered by the court or any authority. Accordingly, the judge has no discretion in sentencing once a ḥadd offence is established.


In Malaysia, Syariah courts operate parallel to the civil courts, but their jurisdiction is constitutionally limited. Syariah courts have authority only over Muslims and derive their criminal jurisdiction from State laws enacted under Article 74(2) of the Federal Constitution and the Ninth Schedule (State List). Their sentencing powers are further restricted by the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits punishment to a maximum of three years’ imprisonment, a fine of RM5,000, six strokes of whipping, or any combination thereof. This jurisdiction is significantly more limited compared to even the First-Class Magistrates’ Court in the civil system.


As a result, offences against decency under the Syariah Criminal Offences (Federal Territories) Act 1997, such as zinā, incest, sodomy, and prostitution, carry punishments that do not correspond with the punishments prescribed in the Qur’an and Sunnah. Under Islamic law, the punishment for fornication is one hundred lashes, and for adultery, stoning to death, whereas under the 1997 Act, zinā—regardless of whether it is fornication or adultery—is punishable only by a fine, short imprisonment, whipping of up to six strokes, or a combination thereof.


Given these limitations, the current criminal jurisdiction of the Syariah courts is insufficient to fully enforce Islamic criminal law in Malaysia. It is therefore argued that the legislature should consider enhancing the Syariah courts’ criminal jurisdiction, ensuring that punishments are proportionate to the seriousness of offences and effective in deterring repeat criminal conduct.