In the recent judgment of Tharammel Peethambaran v. T. Ushakrishnan [2026 INSC 134], the Supreme Court clarified that a photocopy of a document—being “secondary evidence”—is generally not admissible unless it meets the strict conditions laid out under the law.
The General Rule: Section 64 and 65
Under Section 64 of the Evidence Act (now Section 59 of the Bharatiya Sakshya Adhiniyam/BSA), a document must normally be proved by its original.
However, Section 65 provides exceptions where secondary evidence (like photocopies or oral accounts) can be used if the original cannot be produced.
When is Secondary Evidence Allowed?
A photocopy or secondary evidence can only be admitted if the party proves that the original:
- Is in the possession of the opposing party (who refuses to produce it).
- Has been lost or destroyed.
- Cannot be easily moved.
- Is a public document or a certified copy permitted by law.
The Mandatory Two-Step Process
The Supreme Court emphasized that introducing secondary evidence is a structured legal process:
- Establish the Legal Right: The party must first prove the “foundational facts”—they must explain why the original is missing and show they have a legal right to use a copy.
- Prove the Contents: Once the court allows secondary evidence, the party must then prove that the copy accurately reflects the contents of the original.
Key Requirements for Photocopies
If a party wants to use a photostat copy, they must specifically explain:
- The circumstances under which the copy was made.
- Who was in possession of the original when the copy/photograph was taken.
A Checklist for Filing an Application for Secondary Evidence
Before a lawyer can mark a photocopy as an “Exhibit,” they must file a specific application (often under Section 65 of the Evidence Act / Section 60 of the BSA), covering the following four essential points:
- State where the original is. Whether it is lost in transit? Destroyed in a fire? Is it being intentionally withheld by the Defendant?
- State who made the photocopy, when it was made, and from which original source. A photocopy of a photocopy is generally not admissible.
- Who had the custody of the original last? Provide the name and details of the person who was the “custodian” of the document before it became unavailable.
- State that the photocopy is a true and faithful reproduction of the original without any alterations.
A Sample Supporting Affidavit for Leading Secondary Evidence
IN THE COURT OF THE MUNSIFF AT [NAME OF PLACE]
O.S. NO. ________ OF 2026
Between:
[Name of Petitioner] … Petitioner/Plaintiff
And:
[Name of Respondent] … Respondent/Defendant
AFFIDAVIT FOR LEADING SECONDARY EVIDENCE
I, [Name], S/o [Father’s Name], aged [Age] years, residing at [Address], do hereby solemnly affirm and state as follows:
I am the Petitioner/Plaintiff in the above-mentioned suit and am well-acquainted with the facts of the case.
I am filing this affidavit to lead secondary evidence (Photocopy) of the document titled [Name of Document, e.g., Sale Deed/Will], dated [Date].
I state that the original of the said document was [Explain exactly what happened, e.g., lost during a house shift in 2024 / destroyed in a flood / is in the illegal possession of the Defendant]. Despite diligent searches, the original cannot be traced.
I state that the photocopy produced herewith was prepared by me from the original document on [Approx. Date] at [Location] using a mechanical process that ensures a true and accurate reproduction.
I have compared the contents of this photocopy with the original when it was in my possession, and I hereby vouch that it is a faithful and verbatim copy of the original document.
I state that since the primary evidence (the original) is unavailable for the reasons stated above, I am entitled to lead secondary evidence under Section 60 of the Bharatiya Sakshya Adhiniyam (BSA) [formerly Section 65 of the Evidence Act].
DEPONENT
VERIFICATION
Verified at [Place] on this the [Date] day of [Month], 2026, that the contents of paragraphs 1 to 6 are true to the best of my knowledge and belief.
DEPONENT
AdVOCATE
In Conclusion
Secondary evidence is inadmissible until the party provides a satisfactory explanation for the absence of the original.
If the foundational facts are not established, the court cannot legally allow the party to lead secondary evidence.
