§ SECTION 58 · BSA 2023 · CHAPTER V — DOCUMENTARY EVIDENCE

Secondary evidence

The fallback route from § 56. When the original cannot be produced, its contents may be shown by secondary evidence — an inclusive list of copies, counterparts, accounts, admissions and a skilled examiner’s evidence, with four illustrations marking the boundary.

How to read Section 58

A menu of stand-ins — and a warning about copies of copies.

‘Includes’

An illustrative list of what can substitute for the original.

Copies & more

Certified / mechanical / compared copies, counterparts, accounts, admissions, examiners.

The trap

A copy of a copy needs comparison with the original; an oral account of a copy fails (illus. c, d).

The bare Act

The section in its own words — the inclusive list and four illustrations.

Section 58 · verbatim

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;

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.

In short: when the original is unavailable, its contents can be shown by a substitute. The list is inclusive: certified copies (i); mechanically-made copies that guarantee accuracy, and copies compared with them (ii); copies made from or compared with the original (iii); counterparts, against those who did not sign (iv); oral accounts by a person who himself saw the document (v); oral (vi) and written (vii) admissions; and the evidence of a skilled examiner of an original too voluminous for court (viii). The illustrations fix the boundary: a photograph or a properly-traced machine-copy qualifies, a copy of a copy qualifies only if compared with the original, and an oral account of a copy never does.

→ This carries forward IEA 1872 § 63. Whether secondary evidence may actually be given is governed by § 60.

Glossary

secondary evidence

A substitute for the original — copies, accounts, admissions, etc.

certified copy

An officially attested copy given under the Act (clause i).

mechanical process

Photocopying and the like — inherently accurate copying (clause ii).

counterpart

A part signed by one side — secondary against non-signers (clause iv).

oral account

Spoken description of contents by one who saw the document (clause v).

admission

A party’s acceptance of the contents — oral (vi) or written (vii).

skilled examiner

An expert who has examined a voluminous original (clause viii).

compared with the original

The test that makes a copy-of-a-copy count (illustration c).

The picture

The stand-ins for an original — and the line the illustrations draw.

The section, part by part

Three groups — tap each. Every clause and illustration is shown in its own words with a plain meaning.

Intro + copies (i)–(iii)(iv)–(viii)Illustrations (a)–(d)

intro + (i)–(iii)Copies that stand in for the original

In one lineSecondary evidence is a stand-in for the original. It includes — first — three kinds of copy: certified, mechanical-process, and copies made from or compared with the original.

Secondary evidence includes–‘includes’ — the substitutes‘secondary evidence’ includes the following stand-ins for the original (a non-exhaustive list):

(i) certified copies given under the provisions hereinafter contained;(i) certified copiescertified copies given under the Act’s own provisions.

(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;(ii) mechanical-process copiesmechanical-process copies that inherently ensure accuracy (e.g. photocopies), and copies compared with such copies.

(iii) copies made from or compared with the original;(iii) copies from / compared with originalcopies made from the original, or compared with it.

ExampleA certified copy of a registered sale deed (i), or a photocopy compared with the original (ii–iii), is secondary evidence of the deed’s contents.

✗ Not this‘Includes’ is illustrative, not exhaustive — but not every copy qualifies. A copy of a copy is secondary only if compared with the original (illustration c); an uncompared copy-of-a-copy is not.

clauses (iv)–(viii)Counterparts, accounts, admissions & the examiner

In one lineBeyond copies: counterparts (against non-signers), oral accounts by one who saw the document, oral and written admissions, and — for unwieldy originals — a skilled examiner’s evidence.

(iv) counterparts of documents as against the parties who did not execute them;(iv) counterparts (vs non-signers)counterparts — secondary evidence against the parties who did not sign them.

(v) oral accounts of the contents of a document given by some person who has himself seen it;(v) oral account (by one who saw it)oral accounts of a document’s contents by someone who has himself seen it.

(vi) oral admissions;(vi) oral admissionsoral admissions of the contents.

(vii) written admissions;(vii) written admissionswritten admissions of the contents.

(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.(viii) skilled examiner of bulky recordsthe evidence of a skilled examiner who has examined an original made up of numerous accounts/documents too bulky to bring to court.

ExampleA party’s written admission of what a lost contract said (vii); or an accountant who has examined 10,000 ledgers testifying to their upshot (viii) — both are secondary evidence.

✗ Not thisAn oral account counts only if the speaker himself saw the document (v). Second-hand talk about its contents — hearsay — is not secondary evidence.

illustrations (a)–(d)Where the line is drawn

In one lineFour worked lines: a photograph (a) and a compared machine-copy (b) are secondary; a copy of a copy is secondary only if compared with the original (c); an oral account of a copy is never secondary of the original (d).

(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.(a) photograph of the originala photograph of an original is secondary evidence — even uncompared — if the thing photographed is proved to be 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.(b) compared machine-copya copy compared with a machine-copy of a letter is secondary evidence — if the machine-copy is shown to have been 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.(c) transcribed-then-compareda copy transcribed from a copy but later compared with the original is secondary; but if not so compared, it is not — even though the copy it came from was compared.

(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.(d) oral account of a copy → NOT secondaryan oral account of a compared copy, or of a photograph/machine-copy, is not secondary evidence of the original.

ExampleIllustration (c): a clerk copies a copy, then checks it against the original — secondary. If he never checks it against the original, it is not — even though the copy he worked from had been checked.

✗ Not thisIllustration (d) is the trap: an oral account of a copy — however faithful the copy — is not secondary evidence of the original. Secondary evidence of the original needs a document-based route, not talk about a copy.

Connected provisions

§ 57

Primary evidence

The original itself — what secondary evidence stands in for.

§ 59 · next

Proof by primary evidence

The default — documents must be proved by primary evidence, save as allowed.

§ 60

When secondary is allowed

The gate — the cases in which secondary evidence may actually be given.

lineage

IEA 1872, § 63

Carried forward — the kinds of secondary evidence.