Only a Photocopy: Proving Documents and Secondary Evidence Under Sections 61-65 Evidence Act vs Sections 56-60 BSA

Under Indian evidence law, a document must ordinarily be proved by primary evidence — the original itself — under Section 59 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Section 64 of the Indian Evidence Act, 1872. Where only a photocopy, certified copy or other secondary evidence is available, Section 60 BSA (replacing Section 65 Evidence Act) sets out the specific situations in which that is enough, and Section 58 BSA (replacing Section 63 Evidence Act) now defines "secondary evidence" through a list opening "includes" (not "means and includes") that adds oral and written admissions, which Section 63 Evidence Act's list did not contain.

The situation

A person needs to prove the existence, condition or contents of a document in an Indian court, but does not have the original — only a photocopy, a certified copy, or someone's account of having seen it. They need to know whether a copy is enough, what situations allow secondary evidence at all, and whether they must give the other side notice before relying on it.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 — Start from the general rule: primary evidence

Section 59 BSA states: "Documents shall be proved by primary evidence except in the cases hereinafter mentioned." Section 64 of the Evidence Act stated the same rule using "must" instead of "shall" — the substance is unchanged.

Step 2 — Know what counts as primary evidence

Section 57 BSA defines primary evidence as "the document itself produced for the inspection of the Court," followed by Explanation 1 (a document executed in several parts — each part is primary evidence of the document) and, as a now-separate Explanation 2, the counterpart rule: where a document is executed in counterpart by one or some parties only, each counterpart is primary evidence against the parties who executed it. Section 62 of the Evidence Act stated both the several-parts rule and the counterpart rule within a single, undivided Explanation 1. Explanation 3 BSA (uniform-process copies, such as printed placards from one original) carries forward Explanation 2 of Section 62 Evidence Act without change, including the same placard illustration. Explanations 4-7 BSA, addressing simultaneously or sequentially stored electronic records, records from proper custody, transmitted video recordings, and records stored in multiple storage spaces in a computer resource, have no counterpart in Section 62 of the Evidence Act.

Step 3 — Know what counts as secondary evidence under the new list

Section 63 of the Evidence Act opened with "Secondary evidence means and includes" and listed five items: certified copies; mechanically accurate copies and copies compared with them; copies made from or compared with the original; counterparts against non-executing parties; and oral accounts by someone who has seen the document.

Section 58 BSA opens instead with "Secondary evidence includes," and lists eight items (the statutory text does not say whether either list is exhaustive, and this guide does not characterise the effect of the change in opening words): the same first five categories from Section 63 Evidence Act, renumbered (i)-(v), followed by three additional categories — (vi) oral admissions, (vii) written admissions, and (viii) the 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 examining such documents. The four illustrations under Section 58 BSA (a photograph, a copy compared with a copying-machine copy, a copy transcribed then compared with the original, and the rule that oral accounts of a copy or photograph are not themselves secondary evidence of the original) are carried forward from Section 63 Evidence Act without change.

Step 4 — Check whether your situation falls within the seven listed exceptions

Section 60 BSA lists the same seven situations as Section 65 Evidence Act, keeping clauses (a)-(g) and numbering the three limbs of clause (a) as (i)-(iii): the original is in the possession or power of the person against whom it is sought to be proved, or of someone out of the court's reach, or of someone legally bound to produce it, and — after notice under Section 64 BSA — is not produced; the original's existence, condition or contents have been admitted in writing by the party against whom it is proved; the original has been destroyed or lost, or the offering party cannot, for any other reason not arising from their own default or neglect, produce it in reasonable time; the original is not easily movable; the original is a public document within the meaning of Section 74 BSA; the original is a document of which a certified copy is permitted by the BSA or any other law; or the originals are numerous accounts or documents that cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. The Explanation attached to Section 60 restates, clause by clause, what kind of secondary evidence is admissible for each situation — for example, only a certified copy (not any other kind of secondary evidence) for the public-document and certified-copy situations.

Step 5 — Give notice to produce before relying on secondary evidence under Section 60(a)

Section 64 BSA requires the party intending to give secondary evidence under Section 60(a) to have previously given the party holding the original — or their advocate or representative — such notice to produce it as the law prescribes, or as the court considers reasonable if no notice is otherwise prescribed. Section 66 of the Evidence Act imposed the same requirement, using "attorney or pleader" rather than "advocate or representative." Both provisions list the same six cases where notice is not required (in addition to any other case in which the Court thinks fit to dispense with it): the document to be proved is itself a notice; the adverse party must, from the nature of the case, know they will be required to produce it; the adverse party obtained the original by fraud or force; the adverse party's original is already in court; the adverse party has admitted the document's loss; or the document holder is out of the court's reach.

What changed — and what did not

• Identical in substance: Sections 56, 59, 60 and 64 BSA reproduce Sections 61, 64, 65 and 66 Evidence Act with only renumbering and, in Section 64, an updated reference from "attorney or pleader" to "advocate or representative."
• Modified (structural): Section 57 BSA splits the old Section 62 Explanation 1 (which covered both several-part documents and counterparts in one Explanation) into two separate Explanations.
• New provisions: Section 57 BSA's Explanations 4-7, covering electronic and digital records, have no counterpart in Section 62 Evidence Act.
• Expanded: Section 58 BSA changes the secondary-evidence list from Section 63 Evidence Act's five-item list opening "means and includes" to an eight-item list opening "includes", adding oral admissions, written admissions, and evidence from a skilled examiner of numerous accounts or documents.
• Unchanged: the seven situations permitting secondary evidence (Section 60 BSA / Section 65 Evidence Act) and the notice-to-produce exceptions (Section 64 BSA / Section 66 Evidence Act) carry over without substantive change.

Which law applies to your case

If the application, trial, inquiry, investigation, proceeding or appeal in which the document is tendered was pending immediately before the BSA came into force on 1 July 2024, Section 170(2) BSA provides that it shall be dealt with under the Indian Evidence Act as in force immediately before that commencement — so the Evidence Act's rules on primary and secondary evidence, not Sections 56-60 and 64 BSA, govern that proceeding. The full rule on what "pending" means for this purpose is set out in Which Law Applies to an Offence Before 1 July 2024; this article does not restate the transition rule beyond that reference.

Practical checklist

For the person trying to prove a document:

• Establish first whether the original can be produced — Section 59 BSA requires primary evidence unless one of the Section 60 exceptions applies.
• If relying on a copy, identify which of Section 58 BSA's eight categories it falls under, and which of Section 60's seven situations justifies using secondary evidence at all.
• Where the original is with the other side, arrange for notice to produce under Section 64 BSA before the hearing, unless one of the six notice exceptions applies or the Court dispenses with notice.
• If relying on an oral or written admission as secondary evidence, note this is a category available under Section 58 BSA that was not listed in Section 63 of the Evidence Act.

For the advocate:

• Match the specific Section 60(a)-(g) BSA clause relied upon to the Explanation governing what kind of secondary evidence is admissible for that clause — some situations (public document, certified-copy-permitted document) admit only a certified copy, not any other secondary evidence.
• Confirm notice to produce was given under Section 64 BSA, or that a Section 64 exception applies, before tendering secondary evidence under Section 60(a).
• For a document executed in counterpart, cite Section 57 BSA's Explanation 2 specifically, since it is now separated from the several-parts Explanation 1.
• Where the record in question is electronic, read Section 57's Explanations 4-7 together with Sections 61-63 BSA (Section 62: the contents of electronic records may be proved in accordance with Section 63) — see the sibling article on WhatsApp, email and screenshot evidence.

Frequently asked questions

If I only have a photocopy of a document, can I still prove it in court?

Yes, but only if one of the specific situations in Section 60 BSA (replacing Section 65 Evidence Act) applies — for example, the original is with the other side and they failed to produce it after notice, the original has been destroyed or lost, or the original is a public document. Outside those situations, Section 59 BSA requires proof by primary evidence, meaning the original itself.

What counts as "secondary evidence" of a document under the BSA?

Section 58 BSA lists eight categories: certified copies, mechanically accurate copies (and copies compared with them), copies made from or compared with the original, counterparts against non-executing parties, oral accounts by someone who has seen the document, oral admissions, written admissions, and the evidence of a person skilled in examining voluminous documents. The last three categories — oral admissions, written admissions and the skilled examiner's evidence — are not in the Evidence Act's Section 63 list.

Do I have to give the other side notice before producing a copy instead of the original?

Only where the original is one of the documents referred to in Section 60(a) BSA. Section 64 BSA, replacing Section 66 Evidence Act, provides that secondary evidence of those documents shall not be given unless notice to produce has previously been given, except in six listed cases or any other case in which the Court thinks fit to dispense with it — for example, the document is itself a notice, or the adverse party already has the original in court.

Is a document's secondary-evidence list now open-ended or fixed?

Section 63 Evidence Act opened "Secondary evidence means and includes" and listed five items; Section 58 BSA opens "Secondary evidence includes" and lists eight. Neither provision states in terms whether its list is exhaustive, and this guide does not characterise the legal effect of the change in wording, which would require case law outside the scope of this series. What the text does show is that Section 58 names three categories Section 63 did not: oral admissions, written admissions, and the evidence of a skilled person who has examined numerous accounts or documents.

What is primary evidence, and how is it different under the BSA?

Primary evidence means the document itself produced for the court's inspection. Section 57 BSA restates the Evidence Act's Section 62 rules on documents executed in several parts or counterparts and uniform-process copies (now split into three separate Explanations instead of two), and adds four further Explanations addressing electronic and digital records specifically.

Does this article cover WhatsApp messages, emails or other electronic records?

Only in part. Explanations 4-7 to Section 57 BSA, covered above, state when an electronic or digital record is primary evidence. The special provisions on proving the contents of electronic records are in Sections 61 to 63 BSA, immediately following this block — see the dedicated article on proving WhatsApp chats, emails and screenshots for that framework.

Related on Veritect

• Which Law Applies to an Offence Before 1 July 2024
• Proving WhatsApp Chats, Emails and Screenshots in Court: Section 65B Evidence Act vs Sections 61-63 BSA
• Admissibility of Electronic Records — Sections 65A-65B Evidence Act
• A Witness Turns Hostile, an Accomplice Testifies: Evidence Act Sections 133, 145, 154, 155 vs the BSA
• Evidence Act to BSA: Complete Section Mapping
• Section 45 — Expert Opinion
• Sections 91-92 IEA vs Sections 94-95 BSA — Exclusion of Oral by Documentary Evidence
• Sections 56 and 57 Evidence Act vs Sections 51 and 52 BSA — Judicial Notice
• Sections 76–90A IEA vs Sections 75–93 BSA — Certified Copies, Official Documents and Presumptions as to Documents

Statutory sources

• Indian Evidence Act, 1872 — Sections 61, 62, 63, 64, 65, 66 (read from Evidence_Act_1872.md)
• Bharatiya Sakshya Adhiniyam, 2023 — Sections 56, 57, 58, 59, 60, 64 (read from BSA_2023.md)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.