Marking Secondary Evidence Without Objection: Two Apparently Divergent Views on Waiver and the Mode of Proof of Documents

Saji Koduvath, Advocate, Kottayam.

Introspection

The Supreme Court of India indisputably makes it clear — where a secondary evidence is sought to be admitted on the basis of an admission (by the opposite party), such admission must be either –

a written admission; or
a clear—express or implied—admission on a matter that is legally capable of being admitted by the opposite party.

The Supreme Court has authoritatively held that the mere marking of a document in evidence—in the absence of a clear admission, as stated above—does not preclude the opposite party from challenging its admissibility at a later stage of the proceedings.

Introduction

Howbeit, the decisions of the High Courts disclose two apparently divergent views regarding objections to the mode of proof of documents.

The first view is that an objection to the Mode of Proof must be raised strictly at the time the document is tendered in evidence. Failure to do so amounts to a waiver.
The second view is that Section 65 of the Indian Evidence Act (Section 60, BSA) is mandatory and exhaustive. Therefore, where the party relying on secondary evidence has failed to establish the foundational facts justifying the non-production of the original, the mere exhibition of a document does not preclude the opposite party from challenging its admissibility even at a later stage of the proceedings.

Sec. 65(b) Evidence Act: Admission IN WRITING alone Recognised

Section 65 of the Evidence Act (Section 60, Bharatiya Sakshya Adhiniyam) deals with secondary evidence.

Section 65(b) [Section 60(b), BSA] expressly mandates – where a document is sought to be admitted in evidence based on an admission, it must be ‘in writing‘.

Section 65(b) of the Evidence Act reads as under:

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

Law Relating to “ADMISSIONS”

The general law relating to ‘Admissions’ is contained in Sections 17 to 31 of the Evidence Act (Sections 15 to 20, BSA). In the teeth of the statutory requirement of an admission ‘in writing’ under Section 65(b) of the Evidence Act, on a harmonious consideration, the doctrine of “proof for no objection” (or implied admission) must remain confined to matters that are legally ‘capable of being admitted or waived’ by the party against whom it is to be proved.

Examples for matters ‘capable of being admitted or waived’:

1. A copy of a document — original signed/executed by the opposite party himself.
2. A copy of a document — the opposite party is conversant with the original or its contents.
3. A photograph of a person or a scene — where the opposite party or witness is acquainted with the person or scene.
4. A copy of an Order passed by a Public Authority — where the existence of the Order is known to the opposite party.

The Two Apparently Divergent Views

1. R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy

The classic decision usually pointed out to support the first view (objection be raised when the document is tendered) is – R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (R.C. Lahoti, Ashok Bhan, JJ.), (2003) 8 SCC 752. It is held in this decision as under:

“One document A/30 is the photocopy of a certified copy of the decision given by the Charity Commissioner. This document was tendered in evidence and marked as an exhibit without any objection by the defendants when this was done. The plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have then and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original.”
“The other document is the rent note executed by defendant No.2 in favour of plaintiff. Here also photocopy of the rent note was produced. The defendant No.2 when in witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.”

R.V.E. Venkatchalla Gounder continued as under:

“The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. …. a prompt objection …. firstly … enables the Court to apply its mind and pronounce its decision on the question of admissibility …… and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party …. a regular mode …. removing the objection …. is available …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a documen…….”

‘Mode of Proof‘ and ‘Waiver‘ in R.V.E. Venkatchalla must be read in its factual context

Because the Apex Court, in R.V.E. Venkatchalla Gounder v. Arulmighu, accepted the Charity Commissioner’s Order and the rent notes on specific factual grounds—the former being a certified copy already on record elsewhere, and the latter bearing the opposite party’s signature—the general observations on “mode of proof” and “waiver” in this decision must be read in its factual context. That is, the broader propositions cannot not be applied in isolation.

Note: Subsequent decisions that were founded on R.V.E. Venkatachalla Gounder without considering these crucial factors that explain the decision, do not reflect the true ratio and legal principle laid down in this decision. This distinction becomes even more crucial in light of the statutory scheme of Sections 63 and 65 of the Evidence Act (Sections 58 and 60, BSA).

2. Tharammel Peethambaran v. T. Ushakrishnan

Latest decision on the second view (mere marking does not preclude challenging admissibility) is – Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, Pankaj Mithal, S.V.N. Bhatti, JJ. The crux of the decision is the following:

the secondary evidence (notarised photocopy of a Power of Attorney) is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65, Evidence Act are established;
the court also has an obligation to decide the question of admissibility before admitting it as secondary evidence;
mere marking, or marking on admission, does not automatically prove its contents; and
Sections 63 and 65 are exhaustive.

Divergent Views: As To Proof of Marking Documents Without Objection

The following apparently divergent views require consideration:

1. If no objection (from the opposite side), mere marking of a document will prove its existence and contents.
2. Even if a document is marked without objection, unless foundational facts (for its acceptance) are presented, the document will not be relied upon by the Court.
3. Where the validity of the document is already under challenge (or subjected to challenge in cross examination of a relevant witness), mere marking will not prove its existence or contents.

Important Supreme Court Decisions that are Usually Relied upon

It is pertinent to note – the Supreme Court has not adopted any of the aforesaid (three) propositions as an absolute or unqualified rule.

The following are the often-cited decisions of the Supreme Court to support the proposition – Mere Marking (without objection) Prove the Contents.

Often Cited Decisions	Evidence Considered	Reason for accepting this proposition
P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9	Police reports without examining the Head Constables who covered those meetings.	The reports were made by public servants in their official duty, falls u/S. 35, Evid. Act.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752	Ext. A 30, the photostat copy of the Order of the Asst. Commissioner, H.R. and C.E. Admini. Dept.	Photostat copy was the Order of the Public Authority. (Foundational facts for not producing the original furnished.)
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752	Ext. A 34, the copy of the rent agreement.	Photostat copy of the rent receipts were executed by the opposite side.
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	The copy of the rent receipts.	The rent receipts were executed by the opposite side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758 (The observations on Marking without objection are obiter.)	Carbon copy of dying declaration alone furnished. If it was done without proving the foundational circumstances, the opposite party must have raised the objection at the time of admission. In case of failure, it would have been precluded from being raised at a belated stage.	Here, original dying declaration was not traceable. Hence the secondary evidence was adduced with proper foundational evidence. (It is also said – mere admission of a document in evidence does not amount to its proof. Nor, mere marking does not dispense with its proof.)

Cases often Cited to support the Proposition – Mere Marking (even without objection) WILL NOT Prove the Contents

Often Cited Decisions	Evidence Considered	Reason for *not* accepting this proposition
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80	Truth of contents of a letter and telegrams.	The *truth* of the facts stated in a document *was in issue. Hence, the contents have to be proved by the evidence of persons who can vouchsafe for the* truth.
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	Validity and Genuineness of the Photocopy (of the Caste Certificate)	Validity and Genuineness of the caste certificate were very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	Contents of the Photocopy* was not received as proof* -observing no ‘foundational’ evidence.	Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562	Accounts of the Plaintiff	The accounts of the Plaintiff would not be proved by itself.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562	Ext. A-41 was a copy of the written statement (of the plaintiff) in a previous suit. Ext. A-42 is an affidavit (of the plaintiff) in another Suit.	1. The documents were not inter-party. 2. They were not shown to the defendant in cross-examination. 3. Documents do not prove themselves – particularly because of the issues. 4. They were not relevant. 5. *Mere marking* of an exhibit *does not dispense with proof.*
LIC v. Ram Pal Singh Bisen, (2010) 4 SCC 491	The documents were the *Inquiry Report* and the evidence therein.	The documents did not partake the character of admissible.

A Common Thread in the Above (Apparently Divergent) Decisions

The decisions (in the two tables given above) are harmonious rather than conflicting. Certain classes of documents alone can be marked ‘without objection’. It can be the document –

(i) executed by the opposite party or by the witness through whom it is marked,
(ii) an Order of a Public Authority, the existence of which is known to the opposite party.

Correct Legal Position Can be Discered from Narbada Devi v. Birendra Kumar

The Apex Court held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, to the following effect:

Mere marking of a document cannot be held to be proof of its contents (as held in Ramji Dayawala & Sons (P) Ltd., (1981) 1 SCC 80).
“The situation is, however, different” where the signatures “are admitted by the opposite party”.

Even in such cases, where the truth, genuineness, validity or correctness of the contents is itself in dispute, marking alone does not establish those facts.

Section 294 CrPC and Marking Documents on Admission

Section 294 in The Code of Criminal Procedure, 1973

294. No formal proof of certain documents.
(1)Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. ….

Upon a total analysis of the law governing the marking of documents on admission, the following legal principles emerge:

The Court Can Mark the Documents on Admission under Section 294 of the Code of Criminal Procedure.
Mere Marking Is Not Proof of Contents: Simply marking a document as an exhibit upon admission does not, by itself, constitute proof of the truth or accuracy of its contents.
Documents Subject to Judicial Presumption: Documents whose contents carry a statutory presumption of truth (such as an order issued by a public authority) may be taken as proved upon admission under Section 294 of the CrPC.
Documents Capable of Being Admitted by the Opposite Party: Documents that are legally capable of being admitted by the opposing party (for instance, an instrument executed by that party) can be established as proved upon admission under Section 294.

Secondary Evidence: Implied Waiver Cannot Override S. 65(b), Unless “Admission“

Section 65(b) of the Evidence Act is the enabling provision to adduce secondary evidence on ‘written admission’. The scheme of the Evidence Act makes it clear, in strong words, that an implied admission, or a waiver inferred from mere silence, cannot override the express statutory requirement of a written admission under Section 65(b).

A harmonious consideration of the competing principles suggests the following:

(i) the doctrine of implied admission or waiver arising from a failure to object marking the document, and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA] operate in distinct fields and should not be mixed up.

Effect of Express “Admission” by the Advocate

In cases where the advocate expressly “admits” a fact (not matters of law or legal conclusions), it may bind his client. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.

See: Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373;
Swami Krishnanand Govindanand v. M.P. Oswal Hosiery, (2002) 3 SCC 39;
Veeramma v. Appayya, AIR 1957 AP 965;
Prithwi Chand v. Sukhraj Rai, AIR 1940 FC 25.

How to Put “Truth of the Facts” in a Document in Issue?

Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80, held as under:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”

Following are the methods to place on record the objection to the formal proof of documents:

first, by pleadings (already made),
second, by objecting the marking of the document while it is tendered in evidence ,
third, the defence developed during the cross-examination of a relevant witness.

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, it is held, with respect to certain documents marked, as under:

“27. …. These documents would not by themselves prove the truth of the statements contained therein particularly because of the issues in suit.”

Four Stages before a Court of law Rely upon a Document

In PRS Hospital v. P. Anil Kumar (2021 (1) KLJ 923 (S.V. Bhatti, Bechu Kurian Thomas, J.), pointed out that there are four stages before a Court of law for relying upon a document. They are:

(i) marking of a document,
(ii) admissibility of a document,
(iii) proof of contents of the document and
(iv) evaluation of the document. ( Also See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, 2023-7 KHC 512; 2024-1 KLT 24).

It is further held in PRS Hospital v. P. Anil Kumar (2021 KHC 1; 2021 (1) KLJ 923, relying on Sait Tarajee Khimchand v. Yelamarti Satyam Alias Satteyya [(1972) 4 SCC 562] and Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80, as under:

“23. … By the mere marking of a document, the person bound to prove that document, cannot be absolved of the burden to prove it. Marking of a document is different from proof of the contents of a document. …..
24. … In order to establish the right to adduce secondary evidence, a proper foundation is required to be laid. When the original of a document is not produced nor any factual foundation laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence.”

Should a Document Be Rejected Outright If the Court Finds It Inadmissible?

It cannot be – except in cases like deficiency of stamp duty.

To answer the question (should a document be rejected outright if the court finds it inadmissible) the following matters require consideration:

1. As per Sec. 5 of the Evidence Act evidence can be given with respect to facts in issue and relevant facts, and of no others.
2. Under Rules 3 to 11 of Order 13, CPC, the Court can reject, at any stage of trial of the suit, any document which is irrelevant or inadmissible.
3. Order VII rule 14, Order VIII rule 1A and Order XIII rule 1 of the CPC specify time limits for producing documents relied upon by the parties. The left-out documents can be presented with leave of the court.
4. As per the third para of Section 136 of the Evidence Act (Section 141, BSA), if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge can permit evidence of the second fact to be given before the first fact is proved, on the undertaking of the concerned party to give proof of such second fact.
5. In Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, it is held that objections to marking a document should be recorded when the document is tendered in evidence and the document should be marked tentatively subject to objections which are decided or adjudicated later on.
6. In RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752,it is held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party. (The law laid down in Bipin Shantilal, as regards objection to marking documents, had been, impliedly, reversed.)
7. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal (as regards marking documents) observing as under:
- “The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”
8. In the decision, In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered objections to the oral evidence and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:
- “…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
In the ‘Draft Rules of Criminal Practice, 2021’, (annexed to the Order of the Supreme Court) it is directed as regards marking of documents, inter alia, as under:
- “…. If proper proof is not offered for that document at the time when it is marked, it shall be marked as Exhibit P-1/PW1 (subject to proof).”
9. The courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7 SCC 107, (as regards marking documents) declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.
10. In no subsequent case the Apex Court applied (as regards marking documents) the dictum in Bipin Shantilal Panchal v. State of Gujarat.

Can the Documents be marked “Tentatively”?

In Nambi Narayanan v. State of Kerala, 2010-1 KHC 293; 2010-1 KLJ 685 ; 2010-1 KLT(SN) 46, it is held that, except in cases as to deficiency of stamp duty, the course to be followed when objections were raised, is –

(i) to mark the documents tentatively, subject to the objection, making a note of it;
(ii) to decide the objection at the last stage – in the final judgment; and
(iii) if the court finds at the final stage that the objection raised is sustainable, exclude it from consideration.

It is seen that the view adopted by the Kerala High Court substantially agrees with the the principles in the subsequent Supreme Court ruling in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh, (2021) 10 SCC 598. See also: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469.

Marking Documents “Subject to Objection or Proof”

In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755,
State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
Nilavarnisa v. MM Faizal, 2019-1 KHC 699; 2019-1 KLT 652.

Is Exhibiting a Document an Administrative Act.

In the light of the above, though ‘objection as to the mode of proof falls within procedural law’ (Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082: 2004- 7 SCC 107), it is beyond doubt that it cannot be said that exhibiting a document is an administrative act – as held in Bama Kathari Patil v. Rohidas Arjun Madhavi, 2004-2 AllMR 290; 2004-3 BomCR 509; 2004-3 CivCC 14; 2004-2 MhLJ 572.

Conclusion

The Supreme Court precedents unerringly establish that a written admission is a prerequisite to admit secondary evidence under Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
Still, where there is a clear—express or implied—admission of a matter legally capable of being admitted by the opposite party (for example, a document executed by the opposite party himself), the court is entitled to proceed upon such admission (invoking general provisions as to ‘Admission’ in the Evidence Act). Refer: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745.
Where the execution, genuineness or contents of a document is specifically disputed—either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses—the mere absence of raising an objection at the time of marking cannot, by itself, be treated as an implied admission. Refer: M. Chandra v. M. Thangamuthu, 2010-9 SCC 712.
The following two things operate in distinct fields and should not be mixed up: (i) The doctrine of implied admission or waiver arising from a failure to object marking the document and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
The document, for which proper proof is not offered, has to be marked “subject to proof”. Refer: (See: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469).

End Notes 1

Legal Issues Answered

The following legal issues are answered in this Article:

1. Should objection to the Mode of Proof must invariably be raised at the very moment the document is tendered in evidence. (Otherwise, it stands waived.)	No. Especially where it is put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.
2. When a document is marked without objection as to its mode of proof, is it open to the other side to object its admissibility afterwards? If so, which class of documents fall in that group?	Yes. But it is confined to a class of documents. That is, where the Mode of Proof or contents of a document stand admitted by a clear — express or implied — admission (such as a document executed by the party or the witness himself).
3. . Who Should Object FIRST – Court or Opposite Side?	Not by court, in the class of documents where the Mode of Proof or contents of a document stand admitted on a clear — express or implied — admission (such as a document executed by the party or witness himself).
4. Effect: A document executed by the opposite party (e.g., rent receipt) in another proceeding is marked. Does it amount to valid admission?	Yes. Read Article: 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.
5. Can the court vociferously drum-out a secondary evidence, even when the document and truth of its contents are admitted by the other side (or truth cannot be presumed under Ser. 114 Evidence Act)?	No. Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
6. Effect: A party fails to object marking a document at the time of marking – but the truth, genuineness, execution and contents were specifically put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.	In such cases, the failure to object marking is not fatal.

R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy

The view in R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752, is the following:

Failure to raise objection as to mode of proof of a document (such as secondary evidence – photostat) should be raised at the time while it is marked ; and its failure amounts to waiver.

This view is also found in:

Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718;
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239
Oriental Insurance Co v. Premlata: 2007-8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy: Relevant Findings

In R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.), held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes:
- .(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in superior Court.”
This view is also found in
- Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: five-Judge Bench,
- Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718,
- PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239,
- Oriental Insurance Co v. Premlata: 2007-8 SCC 575,
- Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63,
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731

In Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: Five-Judge Bench, held as under:

“Once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938

The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is the following:

Section 65 Evidence Act is exhaustive. Secondary evidence (notarised photocopy of the alleged Power of Attorney) is NOT admissible until the non-production of the original is accounted for.

The court relied on –

H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.

The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is also found in:

LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491
Yeshoda v. Shoba Ram AIR 2007 SC 1721
State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] ,
Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457].

Also Read: Tharammel Peethambaran v. T. Ushakrishnan (2026): A Classic Decision on Secondary Evidence

End Notes 2

Important Findings (Tharammel Peethambaran v. T. Ushakrishnan)

“19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, implies that Exh. B-2 is, at best, secondary evidence. Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source. Section 63 of the Indian Evidence Act provides an exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
- Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178. (Para 14)
Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party’s possession or reach, they cannot introduce inferior proof (secondary evidence).
- Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.2 Before secondary evidence can be admitted, the party relying on it must lay a factual foundation.
This involves two steps:
- First, the party must prove that the original document actually existed and was executed.
- Secondly, the party must establish valid reasons as to why the original cannot be furnished.
- Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758
20.3 Secondary evidenceis inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
- H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.4 Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible.
To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.
20.5 Further, admitting a document as secondary evidence does not automatically prove its contents.
The secondary evidence must be authenticated byfoundational evidence showing that the alleged copy is, in fact, atrue copyof the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstancesunder which the copy was prepared and who possessed the original at the time the photograph was taken.
- Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
- Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
20.6 Mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
- Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
20.7 There is no requirement that an applicationmust be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
- Dhanpat v. Sheo Ram 2020 (16) SCC 209

Condition for Secondary Evidence# Statutory Clause #Type of Secondary Evidence Allowed
Adversary Possession                            Section 65(a)      Any secondary evidence (after notice).
Written Admission                                 Section 65(b)      The written admission itself.
Loss or Destruction                               Section 65(c)       Any secondary evidence.
Immovable Original                               Section 65(d)      Any secondary evidence.
Public Document                                     Section 65(e)      Only a certified copy.
Law-Specified Document                     Section 65(f)       Only a certified copy.
Voluminous Records                              Section 65(g)      Testimony of a skilled examiner.

21. Therefore, the introduction of secondary evidence is atwo-step process, wherein,
- first, the party must establish the legal right to lead secondary evidence, and
- second, they must prove the contents of the documents through that evidence.
- The twin requirements are conjunctive.
22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It is axiomatic that secondary evidence is permissibleonly as an exception to the requirement of adducing primary evidence.
23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. A photocopy of a document is no evidence unless the same is proved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

End Notes 3

Decisive decisions on Marking Documents Without Objection

Following are the decisive decisions on marking Docuements without objection

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.	Relied on Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar vs. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.	Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection about the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, *too late in the day* to canvass that contents of Ex. 32 were not proved.	…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken (secondary evidence) at trial before document is marked as an ‘exhibit’ and admitted to the record.	Relied on Gopal Das v. Sri Thakurji, AIR 1943 PC 83; R.V.E. Venkatchalla Gounder v. Arulmighu , (2003) 8 SCC 752
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.

Read the Article : Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)

Propositions Analysed

First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards. (b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315. (c) Admission of contents – but, does not dispense with proof of truth of its contents.	(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth* of contents* … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be lawful to apply this principle literatim. A close analysis of each case is essential.)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3

End Notes 4

Chapter V of the Evidence Act deals with Documentary Evidence

Sections 61 to 65 deal generally with Preliminary Aspects as to Admissibility. It can be summarised as under:

Section 61. The contents of documents may be proved either by primary or by secondary evidence.
Section 62. Primary evidence means the document itself
Section 63. Secondary evidence. Secondary evidence means and includes–
- .(1) certified copies
- (2) copies made by mechanical processes
- (3) copies compared with the original
- (4) counterparts of documents
- (5) oral accounts
Section 64 Documents must be proved by primary evidence.
Section 65. Cases in which secondary evidence may be given.
- .(a) when the original is in the possession of the person against whom…
- (b) when the existence, condition or contents admitted in writing
- (c) when the original has been destroyed or lost,
- (d) when the original is not to be easily movable
- (e) when the original is a public document
- (f) when a certified copy is permitted to be given in evidence
- (g) when the originals consist of numerous accounts …

Certified copy of a Regd. Deed can be Given Only if Foundational Facts

According to clause (f) of Section 65 of the Evidence Act [Section 60, BSA], certified copy of a registered deed can be given in evidence (without reference to the original) only if the foundational facts for the non production of the original is presented. Because such a deed, is not a public document, and a certified copy of it is not permitted by any law “to be given in evidence” (without saying where the original is).

Proof on Documents- General Provisions

1. Section 91 expressly bars oral evidence to prove the terms of a contract if they are reduced to writing.

2. Sec. 22 and 144 of the Evidence Act postulate that the oral assertions as to contents of documents are not.

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission (Sec. 17, 21, 58, 67, 70).
Evidence of a person who has seen – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of one who is acquainted with the writing (Sec. 47).
Admission in judicial proceedings (Sec. 32, 33).
Handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of one in the ordinary course of his business or official duty (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)

Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857).

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Marking Secondary Evidence Without Objection: Two Apparently Divergent Views on Waiver and the Mode of Proof of Documents

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