If a crime has been committed then police investigations involve determining the answers to certain questions like, what types of crime have been committed, who has committed it, and finding out what evidence may be available to charge the perpetrators. The motive behind this is to do justice to the victim and to convict the guilty. Hence, the investigations ought to be a search for truth and justice. A trial must be conducted with the utmost care and precautions to protect the interest of the innocent and to punish the guilty.
The Section 61 of the Indian Evidence Act, 1872 states that the contents of documents may be proved either by primary evidence or by secondary evidence. A police investigation may be based on a photocopy of certain documents given that those photocopies comply with specific provisions given in the India Evidence Act.
Can a photocopy of the document be used as evidence?
According to Section 3 of the Indian Evidence Act, evidence means and includes oral evidence as well as documentary evidence. Further, Section 61 of the Indian Evidence Act state that the contents of a document may be proved either by ‘primary evidence’ or by ‘secondary evidence’. Also, according to Section 62, primary evidence means the original document itself that is produced for the inspection of the Court.
Now, section 63 of the Act mentions secondary evidence. Secondary evidence consists of certified copies; Copies made from the original document by the mechanical processes which in themselves insure the accuracy of the copy; Copies made from or compared with the original document, etc. For example, a certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. Moreover, at times, it may be required to examine the person who took out the photocopy of the original document for the sake of checking the accuracy of the photocopy.
The first preference in an investigation is always primary evidence. This approach is also called the ‘best evidence rule’. In many cases after hearing the arguments of the parties thoroughly, a court may decide whether it should consider secondary evidence. Now, an important question that arises is whether a mere photocopy of a document can be used as secondary evidence or not? For secondary evidence, the testimony must indicate either that the given photocopy was prepared from the original document or that it was not prepared from a copy of the original. In case the photocopy was prepared from another copy of the original then in such a case, it needs to be shown that it was compared with the original document. In the absence of any of the stated provisions, the photocopy will not be treated as secondary evidence and thus, a police investigation will not be based on such a copy of documents.
On what basis is secondary evidence admissible?
Simply stated, a photocopy to be admissible as evidence has to be a certified copy of the original document. No reliance can be expected on a document that is otherwise inadmissible in a Court. Whenever “document” is referred to in order or is required to be produced, it must satisfy the test of admissible documents namely being an original or secondary as per sections 64, 65, and 66 of the Evidence Act.
The Section 64 of the Act coveys that documents need to be proved by primary evidence except under certain cases. Furthermore, a police investigation may be based on a photocopy of the document under circumstances mentioned in Section 65 of the Act.
Now, Section 65 states that secondary evidence may be admissible when:
- The original document is shown or seems to be in the possession of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court, or of any person that legally bound to produce it.
- Also, a photocopy may be produced when the existence and contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
- Most importantly in cases where the original document has been destroyed or lost and cannot be recovered by any means then also a copy of documents can form the basis of an investigation.
- Furthermore, when the original document is of such a nature that it may not be able to easily move then too secondary evidence comes into the picture.
In cases (i), (ii) and (iv), any secondary evidence of the contents of the document is admissible. In case (iii), the written admission is admissible.
- Furthermore, when the original is a document of which a certified copy is permitted by this Act or by any other law in force in to be given in evidence. In such a case only a certified copy of the document, but no other kind of secondary evidence, is admissible.
- Moreover, in a situation where the original consists of numerous other documents and accounts which may be difficult for the court to examine properly and conveniently and the argument to be proved are the general result of the whole document then a photocopy may be admissible.
In the case of Smt.J.Yashoda v. Smt.K.Shobha Rani , the Apex Court held that secondary evidence is generally admissible only in the absence of primary evidence. If the original document itself is found to be inadmissible through a failure of the party who files it as valid, then the same party will not be entitled to introduce secondary evidence of its contents.
Therefore, it can be seen that to bring a photocopy within the sphere of secondary evidence, the ingredients of section 65 of the Evidence Act must be satisfied. Furthermore, it is important to note that mere exhibition of a document or a copy does not itself render it to be evidence, instead admissible proof of authenticity needs to be shown. The mere fact that these photocopies of documents have been filed along with an affidavit would not satisfy the requirement of admitting evidence in a suit. Therefore, photocopies of the documents are required to be proved in terms of their execution and need to comply with section 63 of the Evidence Act. Only in cases where the primary or the original evidence is not available can secondary evidence in compliance to section 65 of the India Evidence Act can be used for investigation. Lastly, the court has to arrive at the truth and needs to help meet the ends of justice. Hence, judicial scrutiny of facts proved by admissible evidence culminating into a reasoned judgment is said to be a crucial feature of a trial.
 Indian Evidence Act, 1872
 Ratanlal v Kishanlal 2012 (III) MPJR 24
 Indian Evidence Act, 1872
 AIR 2007 SC 1721
This article is authored by Tanya Singh, First-Year, B.A. LL.B student of Vivekananda Institute of Professional Studies, GGSIPU
Also Read – Is Hearsay Evidence Enough To Convict Someone?