The Madhya Pradesh High Court at Jabalpur set aside a trial court order allowing secondary evidence under Section 60 of the Bhartiya Sakshya Adhiniyam, 2023. The Court held, “Secondary evidence cannot be permitted when original exists.”
The Madhya Pradesh High Court at Jabalpur set aside a trial court order that had allowed secondary evidence of a disputed document under Section 60 of the Bhartiya Sakshya Adhiniyam, 2023.
Justice Vivek Jain held that secondary evidence cannot be permitted when the original document still exists and can be obtained by the party who had produced it earlier.
The case arose from a civil dispute in which the plaintiff was trying to introduce a document written on a Rs.100 stamp paper, claiming that it contained an acknowledgment of payment.
The document was earlier filed in a criminal case under Section 138 of the Negotiable Instruments Act, and the matter is currently pending in a criminal appeal before the High Court.
The defendants argued that the plaintiff had made repeated attempts to bring this document on record but had failed every time. They pointed out that the trial court had earlier rejected the plaintiff’s request to summon the original criminal case record and had also rejected an application under Order 7 Rule 14 CPC.
The plaintiff had even approached the High Court in MP No. 124 of 2026, but that petition was dismissed. After this, the plaintiff filed an application under Section 60 BSA, relying on a passing reference in the earlier High Court order.
The trial court then allowed secondary evidence based on a certified copy obtained from the criminal court record.
The High Court carefully analysed the events and clarified that the trial court, in its earlier order dated 08.05.2025, had not conclusively held that the document was irrelevant. Instead, the trial court had only refused to summon the criminal case record from the High Court and had given liberty to the plaintiff to obtain the original document directly from the High Court.
Justice Vivek Jain emphasised that the relevance of the document could only be decided during trial and not at this preliminary stage. Since the document contained some record of money transactions between the parties, it could not be said to be “utterly irrelevant” without proper evidence being recorded.
However, the High Court found that the trial court had made a legal error in allowing secondary evidence. The Court noted that the original document was still in existence and was part of the criminal appeal record before the High Court.
Relying on Order 13 Rule 9 CPC, the Court pointed out that the party who produced the document in the criminal casenamely the plaintiff’s husband was entitled to apply for return of the original document. Therefore, unless the High Court in the pending appeal refused to supply the original, there was no question of invoking Section 60 BSA.
The Court clearly stated,
“As original is in existence and it can still be filed before the Trial Court, therefore, unless the High Court in pending Cr.A. nO. 487/2024 denies to supply the original to the plaintiff or her husband, there will be no question to invoke Section 60 BSA.”
Based on this reasoning, the High Court set aside the trial court’s order permitting secondary evidence and granted liberty to the plaintiff to first seek the original document from the High Court. Only if the High Court declined to return the original could the plaintiff consider invoking Section 60 BSA again. With these observations, the petition was disposed of.
The Court also made it clear that the very existence of the original document prevents the use of Section 60 BSA, 2023, and that secondary evidence is only a narrow exception which cannot replace primary evidence when the original can be produced.
It further explained that issues concerning the relevance or probative value of a document can only be examined during the course of trial and cannot be conclusively determined at an initial stage.
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The Court added that when the original document forms part of a court record, the concerned party must first attempt to obtain that original before seeking permission to lead secondary evidence.
This judgment clarifies an important procedural point: secondary evidence is not available as a shortcut when the original document is intact and accessible.
The Court has reaffirmed that the proper legal process must be followed, and secondary evidence is permissible only when the original cannot be produced despite due diligence.
Secondary Evidence
Secondary evidence refers to evidence that is presented in court when the original document (primary evidence) is not available. It is essentially a substitute for the original, but its admissibility depends on strict legal conditions.
Secondary Evidence under the Indian Evidence Act, 1872
Under the Indian Evidence Act, 1872:
- Primary Evidence (Section 61): Original documents.
- Secondary Evidence (Sections 63–65): Admissible only if the original is unavailable, for example:
- Certified copies from public offices.
- Copies made from the original.
- Oral accounts of the document’s contents.
Secondary Evidence under Section 60 of the Bhartiya Sakshya Adhiniyam, 2023
The Bhartiya Sakshya Adhiniyam, 2023 modernizes evidence law.
Section 60: Secondary Evidence
- Secondary evidence cannot be admitted if the original exists and can be obtained, even if a certified copy is available.
- Court may allow secondary evidence only when:
- The original is lost.
- The original cannot be produced despite reasonable efforts.
- There is a legal exemption for non-production.
Case Title: Smt. Munendra Kumar Samaiya & Ors. vs. Smt. Varsha Samaiya & Ors., Misc. Petition No. 1514 of 2026
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