The Madhya Pradesh High Court has clarified that the admission of secondary evidence under the Bharatiya Sakshya Adhiniyam, 2023 is not automatic and requires strict compliance with procedural safeguards. This ruling reinforces the importance of notice and due process in evidentiary matters, particularly in property disputes where original documents are unavailable.
Background & Facts
The Dispute
The petitioner, Dr. Manjeet Kaur, sought to admit a photocopy of a memorandum of partition executed between herself and her siblings as secondary evidence in a civil suit concerning ancestral property. The original document was allegedly taken possession of by the respondents, leaving the petitioner with only a photocopy. She filed an application under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 65 of the Indian Evidence Act, 1872) to have the photocopy admitted into evidence.
Procedural History
- The trial court rejected the application on multiple grounds, including failure to prove the photocopy was produced by a mechanical process and failure to establish it was a true copy tallied with the original.
- The petitioner challenged this rejection before the High Court under Article 227 of the Constitution, arguing that the trial court misapplied the law on secondary evidence.
- The petitioner contended that authenticity of the document could be tested during trial, and rejection at the admission stage was premature and prejudicial.
Relief Sought
The petitioner sought the setting aside of the trial court’s order and directed the admission of the photocopy of the memorandum of partition into the record.
The Legal Issue
The central question was whether Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 permits the admission of secondary evidence without prior notice to the party in possession of the original document, and whether non-compliance with this requirement renders the application invalid.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the trial court erred in rejecting the photocopy at the admission stage, as the authenticity of documents is typically tested during trial. He relied on the principle that procedural technicalities should not defeat substantive justice, especially where the original document is with the opposing party. He further submitted that the rejection was based on an overly rigid interpretation of evidentiary requirements.
For the Respondent/State
The respondent contended that Section 60 of the BSA mandates strict compliance with procedural conditions, including giving notice to the party in possession of the original document. The absence of such notice, she argued, rendered the application non-compliant with statutory requirements, and the trial court’s dismissal was legally sound.
The Court's Analysis
The Court examined Section 60 of the Bharatiya Sakshya Adhiniyam, 2023, which provides that no document shall be admitted as secondary evidence unless the party seeking to produce it has given notice to the person who has possession of the original. The Court noted that this provision is a mandatory precondition, not a mere formality.
"Such requirement has not been complied with. In the impugned order, the trial Court has referred the judgment of Gwalior Development Authority vs. Dushyant Sharma & Ors. 2013(3) MPLJ 172 wherein it is held that some requirements have been prescribed for giving any document as secondary evidence. Admittedly, nothing has been done in this regard."
The Court held that the trial court correctly applied the law by dismissing the application due to non-compliance with the notice requirement. It emphasized that procedural compliance is non-negotiable in evidentiary matters, even if the outcome may appear harsh. The Court distinguished between the admissibility of evidence and its weight, noting that while authenticity may be tested later, the threshold for admission must be met upfront.
The Verdict
The petition was dismissed. The Court held that Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 requires prior notice to the possessor of the original document before secondary evidence may be admitted, and failure to comply renders the application invalid. However, the Court directed that the petitioner may refile the application after fulfilling the statutory conditions.
What This Means For Similar Cases
Notice Is Mandatory Before Admitting Secondary Evidence
- Practitioners must serve formal notice to the party in possession of the original document before filing an application under Section 60 BSA.
- Failure to serve notice, even if the original is allegedly withheld, will result in automatic rejection of the application.
- Notice must be documented and filed with the court as proof of compliance.
Trial Courts Must Not Conflate Admission with Authenticity
- Courts should not reject secondary evidence at the admission stage on grounds of authenticity or credibility - those are matters for trial.
- However, they must rigorously enforce procedural prerequisites like notice, as failure here is fatal to admissibility.
Re-filing Is Permitted After Compliance
- A dismissed application under Section 60 BSA is not a bar to re-filing, provided the statutory conditions are met.
- Practitioners should treat the initial dismissal as a procedural corrective opportunity, not a final denial of relief.
