EVIDENTIARY VALUE OF DOCUMENTS IN PROCEEDINGS
- Team Lawgram
- Jun 12, 2020
- 13 min read
Relevancy vs Admissibility vs Proving of a Document
By Devika Mathur
Introduction
As practitioners of Law, we all come across several documents in our daily life, and how many documents we see in a day are genuine and admissible in the court of law? This piece of writing will primarily deal with the central idea about what all documents that are admissible in the court of law and how successful scrutinizing the set of documents can make the lawyer achieve the brownie point for his client.
To bring the cat out of the bag, “Law of Evidence” play a vital role and comes to the rescue be it a criminal or a civil case, But is it as simple as it appear?
Let us get the facts straight in order to make the article more comprehensive for better understanding.
For a document to be admissible legally, it has to pass the several litmus test as laid down by the book of statue and findings of the court of law.
Documentary Evidence: Section 3 of the Act, states that the “documents” produced before the court for the purpose of inspection is known as “Documentary Evidence”, but in order to understand it better, let’s dive into few basics terminology.
Documents: In a normal sense, the word document means anything written or in typed form, but in legal sense it has a wider scope. In a Legal Document it includes, any matter expressed or described upon any sense. Meaning thereby any matter expressed through sign, letter, written, figure or by one or other way intending to be used or may be used for the purpose of recording that matter. For Example: Dairy Entry, Written contract, Inscription upon a metal, maps, lithography, and Inscription on a wall. Now the question that comes up is
Whether A Tape Recording Be Included In The Definition Of A Document ?
The, answer is in affirmative. In the case of Ram Singh Vs. Cornel Ram Sigh[1] the apex court laid down the test for the admissibility of tape recording as admissible evidence after the following criteria is duly matched in the para no 32 which is as follows:
“32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.”
Primary Evidence & Secondary Evidence:
In the Indian Evidence Act, there are only two ways of proving the evidence firstly as per Section 62 Primary Evidence and as per Section 63 Secondary Evidence. In Muraka Properties pvt.Ltd vs Bihari Lal Murakha[2], The Hon’ble Supreme Court had held that, any evidence in the form of Documentary Evidence will always hold an edge as compared to the oral evidence at hand.
To be short and precise, Primary are the best source of evidence whereas the secondary are the alternate to the primary evidence. In the eyes of law, the best evidence is the Primary evidence though in the absence of it, the court may also take secondary evidence, as an exception to it. Primary Documents come under section 62 whereas Secondary under section 63 of the Indian Evidence Act.
Primary Evidence: the document itself produced for the inspection of the court. The word “execution” in the section implies to the signatures done by a person in all the parts of a document considered as Primary document. Now here comes the difficult part, the word “counter-part”, this means a copy a document executed in counter-part that will lie as a primary evidence against the person who has signed it. If there are many documents made from a uniform process, all the sources from which made are considered as Primary Evidence example: getting a photocopy of your college passing certificate, the passing certificate will act as a primary evidence.
Secondary Evidence: Let’s suppose there is, a public document under the possession of the Government and a person has applied for it, in return the person will be given a certified copy of same, meaning there by the copy of the original Public document. “copies made or compared from the original documents are Secondary Evidence”. “Counter-parts” if not signed will become a secondary evidence against the person who has not signed it. For Counter-part explained: Example: when A issues a cheque by signing it in favour of B, the cheque becomes a secondary evidence for the B and Primary evidence against A.
Now once we all are through with the basic Legal terminology surrounding the Law of Evidence, Let us dive into the bigger question.
What is the litmus test for a document to be admissible legally in the court of law?
The nature of the admissible Evidence holds the following trails firstly it must be relevant, secondly the material should be strong, and thirdly it should be competent. This article revolves around Documentary Evidence that is Admissible in the eyes of Law.
Document vis a vis Relevancy:
The very first litmus test that a document has to pass in the court of law is the test of Relevancy. As per the rule the parties are free to bring the documents on records but many a times highly irrelevant documents which when the judicial mind is applied will serve no purpose are also brought in by the parties. There comes the role of a wise advocate as he would very well scrutinize the relevant documents which will stand the test of law. The Indian Courts are already overburdened and making the brief bulkier will add up to the problem.
At the initial phase of the proceedings, when the documents in support of the case is presented to the court, the court firstly before admitting the evidence, inquiries from the parties submitting about the RELEVANCY of the Documents, meaning there by how the documents are connected to the facts in issues.
Talking about the initial stage, which is admissibility that totally depends upon the relevancy of the document. There is a difference between admissibility and relevancy of a document, Admissibility declares whether an evidence is admissible or not whereas relevancy declares, whether the given facts are relevant to the facts in question. Thus, if the relevancy of a document is proved, the court has a power to admit the document.
THE POWER OF COURT FOR ADMISSION OF A DOCUMENT
The power of Admission is u/s 136 of the Evidence Act. The Object is to save the time of the court and in order to prevent misleading and wastage of courts time. This section is a general declaration, consisting of three parts.
The breaking of the section:
The First Part: clearly states that the party has to prove as to how the fact, which he proposes to prove, will be Relevant. Then the onus falls upon the party and the party has to prove in the eyes of the court that the, fact lies under the ingredients one of the any sections between Section 6 to Section 55 of the Indian Evidence Act. There is also an implied declaration that, the court may even disallow the evidence on the bases of irrelevancy of the Fact.
The Second Part: Relevancy of the alleged First part of the Fact would depend upon the Existence of second alleged Fact. The Party has to give an undertaking in the court that, he proposes to prove the second part of the Fact in order to prove the First part. The court under such circumstance has to allow the undertaking. Therefore, the admissibility of second part depends upon the First one. Example: A, who to file a case, but does not possess original/ primary document in order to support his case, as the court relies upon the primary document. This section helps the party to support his claim upon submitting a photocopy of the original document in order to prove the relevancy of a fact.
The Third Part: This part helps the party to prove two sects of facts that are relevant in the court. The major difference between the second part and the third part is that, unlike in the second part the party has to prove, both the facts and not just one in order to prove the other one as well as the party does not have to submit any undertaking in the third part.
MODE OF PROVING A DOCUMENT
Contents of private documents are proved either by primary or secondary evidence in view of Sections 61 to 66, the genuineness is established by adducing evidence as per Sections 67 to 73; and the truth of their contents is ordinarily established by means of independent, direct or circumstantial, evidence.
A duly proved document can only be considered at the final hearing of a proceeding. Onus to prove a document is upon the party intending to rely on it. The genuineness or the truthfulness of the contents of a document are to be proved by the oral evidence and the contents thereof are to be proved either by adducing primary evidence or the secondary evidence. A document is said to be proved if following three criteria are satisfied:
(a) firstly, the execution of a document, i.e., the handwriting or signature on the document, if any, is proved. (Genuineness of a document)
(b)secondly, contents of a document, and
(c) thirdly, truthfulness of the contents of a document.
The Evidence Act distinguishes between 'private document' and 'public document' and above mentioned criteria of proving the document do not apply to the 'public document' due to the special rules and presumptions provided by law.
(A) Execution : The process of proving the signature or handwriting in a document goes to the 'genuineness' of the document. The party who seeks to prove a particular document must get the handwriting or signature of the author, if any, identified by the author himself under Section 67 of the Act or any third person acquainted with the handwriting in question under Section 47 of the Act or by a person in whose presence the document was signed or executed under Section 67 and 68 of the Act or by an expert witness under Section 45 of the Act. Also, the signatory may himself admit having signed or executed a document, which dispense with the proof thereof vide Section 58 of the Act. Further, the court itself is enabled under Section 73 of the Act to compare the handwriting or the signature in question with the one admitted or proved to the satisfaction of the court. Under certain circumstances enumerated at section 79 to 90A of the Evidence Act, a court is entitled to presume that the signature on a document and the document itself is genuine. Thus, under Section 79, courts may presume that certified copies are genuine. Proof of a signature or handwriting on document is sometimes referred to as mere 'formal proof of a document' as proof thereof does not automatically result in the proof of the contents of the document.
(B) Contents : The contents of a document must ordinarily be proved by 'primary evidence'. However, where the party is not able to produce the primary evidence itself due to the reasons enumerated under Section 65 of the Act, the party is at liberty to produce the secondary evidence to prove the contents of the document. The 'proof of contents' is different from the 'truth of the contents'. The distinction has been brought out in Om Prakash Berlia v. Unit Trust of India, wherein it was held that expression ' contents of a document' under the Evidence Act must mean only 'what the document states and not the truth of what the document states' and that the truth of contents of a document cannot be proved merely by producing the document for the inspection of the court. For example, a letter is produced as having been written by ‘A’ and it contains a statement that in his presence ‘B’ paid an amount of money to ‘C’. If the 'contents' of this letter are proved, then it can be said that A, in fact wrote this letter. But that does not mean that B actually paid such amount to C. Hence, the 'truthfulness of the contents of a document' are to be specifically proved.
(C) Truthfulness of the Contents : Section 67 prescribes that truthfulness of the contents has to be proved by the personal knowledge. Ordinarily, the witness who has been called by the party intending to rely on a document, must have personal knowledge of the document. In other words, such witness should be the author of the document. This is proof by way of oral evidence as stipulated in Section 59 of Evidence Act. However, in another judgment of Bombay High Court, Bima Tima Dhotre v. Pioneer Chemical Co.[3] observed that it was not necessary to call the writer of the document in order to prove the document as documentary evidence would become meaningless if the writer has to be called in every case. Hence, it can be said that truth of the contents of a document must be proved either by the author or by 'the person who knows and understands the contents', that is persons having personal knowledge of a document. This is rule against hearsay. It is necessary to note that, in some cases, it will not be necessary to call the author or the writer of the document in order to prove the truthfulness of its contents.
In Sudhir Engg. v. Nitco Roadways Ltd.[4] Delhi High Court held that, the mere admission of a document in evidence does not amounts to its prove. It was held that a document filed by a party goes through three stages before it is held proved or disproved: Firstly, the stage in which the document is filed in court, Secondly, the stage in which the party tenders or produces the document in evidence and the court admits the document; and Thirdly, the stage in which the court applies its judicial mind and the document is held proved, disproved and not proved. Once, the above mentioned three criteria are fulfilled a document is said to be 'proved' as defined under Sec.3 of the Evidence Act. If not, then document is said to be 'disproved' or 'not proved' as the case may be.
In Smt. J.Yashoda Vs. Smt. K. Shobha[5] the Hon'ble Apex Court held that “Secondary evidence as a general rule is admissible only in the absence of primary evidence. 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. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it.
In H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam[6], it was held that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of document is inadmissible, until the nonproduction of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that alleged copy is in fact a true copy of the original. It has been further held in this case that mere admission of a document in evidence does not amounts to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
Electronic Records:
The digital world in which we live today has paved the path for the transition of evidence from the traditional documents into digitally signed documents thereby resulting in the growth of Electronic Evidence. The statue also gives the legal sanctity to the electronic records at par which makes the electronic records to be fully admissible under the court of law. According to Section 2(T) of the Information Technology Act, 2000 “Electronic Record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. The IT Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages. The Indian IT Act 2000 lays down a blanket permission for records not to be denied legal effect if they are in electronic form as long as they are accessible for future reference.
The Indian Evidence Act under Sec 3 and the Information Technology Act under section 4 gives the legal admissibility to the electronic records under the law of evidence.
The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872 and upon complete compliance of the provisions of these sections any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The procedural requirement of the Evidence Act under Section 65B was scrutinized by the Apex Court in the judgement of State (NCT of Delhi) v. Navjot Sandhu[7] where the apex court was dealing with the case of prosecution which was solely based upon the call records of the accused, The Court held that the cellular phone records of the accused were admissible in law and they would be in the nature of secondary evidence since the primary evidence would be the call servers maintained by the telecom operators which would be difficult to move and produce in the court. However, the Court proceeded to hold that even if the requirements of certification under Section 65-B(4) were not complied with, it would not be a bar for production of secondary electronic evidence if the evidence is otherwise admissible under the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872.
In yet another landmark judgement of Anvar P.V. v. P.K. Basheer[8] the apex court has the occasion to deal with the issues surrounding the admissibility of Electronic Evidence and the Hon’ble Supreme Court while giving the emphasis on section 65B of the Indian Evidence Act. The court held “An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible”.
Finally I will part away with the saying by William James
“It is wrong always, everywhere, and for everyone, to believe anything upon insufficient evidence”
The Author is a lawyer practising in Delhi High Court and views of the author are personal. This article is only for research and educational purpose.
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