A Defective Legislative Piece as regards Documents “Admitted in Writing” in S. 65(b) of the (Old) Evidence Act is Corrected in S. 58 of the BSA

Saji Koduvath, Advocate, Kottayam.

Abstract

The Bharatiya Sakshya Adhiniyam, 2023, removes the anomaly that existed under the Indian Evidence Act, 1872. By expressly recognising “written admissions” as a distinct category of secondary evidence in Section 58, it makes the written admission referred to in Section 60(b) itself (e.g., “copy enclosed”) admissible as secondary evidence. Accordingly, where Section 60(b) applies, there is no necessity to produce an independent copy falling under any other category of secondary evidence specified in Section 58.

S. 60 BSA Enumerates: “Cases in Which Secondary Evidence … May be Given“

Section 60 of the BSA [Section 65 of the Evidence Act] enumerates the “Cases in which secondary evidence relating to a document may be given”. Relevant part of Section 60 reads as under:

  • “60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: — (a) ……. “

S. 60(b): If Opposite Party Admits Document in Writing

Section 60(b) BSA is attracted where the opposite party has admitted in writing the existence, condition or contents of the original document. Section 60(b) reads as under:

  • “(b) When the existence, condition or 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.”
  • In Explanation (ii) of Section 60, it is stated as under — “For the purposes of- ……. clause (b), the written admission is admissible”

Defective Legislative Drafting in Old Evidence Act (Corrected in BSA)

Section 65(b) of the Indian Evidence Act, 1872, was susceptible to divergent judicial views. It was owing to

  • (i) the absence of any corresponding recognition of any such copy (like an un-compared 3rd generation copy) as a form of secondary evidence under Section 63, Evidence Act, and
  • (ii) Section 65 was relating to the “Cases in which secondary evidence relating to documents may be given“.

The ambiguity was as to –

  • (a) whether any copy of a document admitted in writing could be received — even if it is an un-compared 3rd generation copy, or
  • (b) whether it was confined to the ‘quoted‘ admission portion in the ‘admitted writing’ alone.

It can be demonstrated (referring to the provisions of the Evidence Act) as under:

  • First: Section 58 of the Indian Evidence Act embodied the general principle that facts admitted by the parties need not be proved. Section 65(b), however, operated in a narrower field, namely, where the existence, condition or contents of the original document had been admitted in writing. Nevertheless, because of the manner in which Section 65 was drafted, even where a legible copy of a document was admitted in writing, that very copy was not necessarily receivable in evidence unless it answered the description of one of the recognised forms of secondary evidence under Section 63. This difficulty arose because Section 65 opened with the controlling words, “Cases in which secondary evidence relating to documents may be given”, thereby making the forms of secondary evidence recognised by Section 63 applicable to every clause of Section 65.
  • Second: Although the Explanation to Section 65 also declared that, “for the purposes of clause (b), the written admission is admissible”, Section 63 did not recognise a written admission as a form of secondary evidence. The result was an apparent inconsistency, leaving room for divergent judicial approaches. Section 58 BSA removes that inconsistency by expressly recognising written admissions as a distinct form of secondary evidence.
  • Third: Consequently, where a copy that did not qualify as secondary evidence under Section 63—for example, an uncompared third or fourth generation copy—is expressly admitted in writing by a party as “a correct copy”, the admission does not, by itself, render that copy admissible. The statutory requirement under Section 63, requires production of the recognised classes of copies.
  • Fourth: Section 58 declared that admitted facts need not be proved. It may therefore be legitimately contended that, once the written admission (e.g., “copy enclosed”) falls within Section 65(b), formal proof of the existence, condition or contents of the original document stands dispensed with. If that construction is accepted, however, the opening words of Section 65— “Secondary evidence relating to documents may be given in the following cases”—are deprived of their full effect. The ambiguity thus arises from the difficulty in reconciling the general rule dispensing with proof of admitted facts and the statutory insistence that only recognised ‘secondary evidence’.

Important Legislative Change in BSA, from the Evidence Act

As shown above, Section 60(b) of the Bharatiya Sakshya Adhiniyam, 2023 [Section 65(b) of the Indian Evidence Act, 1872 also], applies where the opposite party has admitted in writing the existence, condition, or contents of the original document. However, Section 60 of the BSA [Section 65 of the Evidence Act] merely specifies the circumstances in which secondary evidence may be given. Hence, it can be argued that, notwithstanding the written admission in Section 60, the party relying on the document must still produce and prove an admissible copy answering the description of secondary evidence. The relevant provision in this regard is Section 58 of the BSA [Section 63 of the Evidence Act].

The Bharatiya Sakshya Adhiniyam, 2023 being include “written admissions” as an item in the list when enumerated legally acceptable copies or secondary evidence in Section 58, the “admission in writing” in Section 60(b) will enable the court to receive such (accepted/enclosed) copies in evidence.

As the (old) Evidence Act (Section 63) did not recognise “written admissions” as an item in the list enumerated as a legally acceptable copy or secondary evidence, it was necessary to produce a legally acceptable copy enumerated in the old Section 63 of the Evidence Act.

S. 58 BSA Says: What Constitutes Secondary Evidence

Section 60(b) does not, by itself, prescribe what constitutes secondary evidence. It is dealt with under Section 58 BSA [S. 63 of the Evidence Act]. The changed Section 58 BSA reads as under:

  • “58: Secondary evidence
  • 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;
    • (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.”

Conclusion

Under the Indian Evidence Act, 1872, Section 63 did not recognise ‘written admissions‘ as a distinct category of secondary evidence. Consequently, even where the existence, condition or contents of the original document had been ‘admitted in writing’ under Section 65(b), a legally recognised copy falling within one of the classes enumerated in Section 63 (in the old Act) should have been produced.

The Bharatiya Sakshya Adhiniyam, 2023 has substantially removed this drafting anomaly. By expressly recognising ‘written admissions‘ as a species of secondary evidence under Section 58, the new Act (BSA) harmonises Sections 58 and 60(b). Accordingly, where the case falls within Section 60(b), the written admission itself makes the accepted/enclosed copy admissible as secondary evidence.

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