Major Changes Made in the Bharatia Sakshya Act, 2023, as regards Documents

Taken From: Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023

Saji Koduvath, Advocate, Kottayam.

Following are the Major changes made in the new Bharatia Sakshya Adhiniyam, 2023, as regards ‘Documents’(compared to Indian Evidence Act, 1872).

1. Changes in the Definition

Abstract:

  • It is made clear – ‘Electronic Evidence’ is included in the category of ‘Documentary Evidence’.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
Sec. 3. Interpretation-clause. “Document”. ––
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.		Sec. 2(1). In this Adhiniyam, unless the context otherwise requires,—
(d) “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;
Sec. 3. Interpretation-clause. “Evidence”. ––
“Evidence” means and includes –
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.		Sec. 2(1) In this Adhiniyam, unless the context otherwise requires,—
(e) “evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

Under the Indian Evidence Act, electronic evidence could have been taken as a third category of ‘evidence’, other than ‘oral’ and ‘documentary’ evidences. It is more so in view of the interpretation given to Sec. 65B by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216. In this decision it was said that Electronic Evidence is (specially) dealt with “notwithstanding anything contained” in the Act.

By virtue of the definitions in the new act, Electronic Evidence is included in the ‘Documentary Evidence’. It is definite that it is with a view to expand the scope of the application of Electronic Records in evidence.

2. Changes on Primary Evidence – Electronic Records are also Included in the category, Primary Evidence

Abstract:

  • ‘Primary Evidence’ includes-
    • (i) electronic record that is stored in another electronic devise along with that in the ‘creating’ devise; and
    • (ii) video recordings (a) simultaneously stored in electronic form and (b) broadcasted.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
62. Primary evidence. –– Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. ––Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. –– Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.		57. Primary evidence Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

The scope of application of Electronic Records in evidence is further expanded by the Additional Explanations 4 to 7 in Sec. 57 (as to ‘Primary Evidence’). Major changes having practical importance are the following:

  • Under Explanation 4, electronic or digital record that is stored in an electronic devise, simultaneously(or sequentially in multiple files) with that in the ‘creating’ devise, is also taken as ‘primary evidence’.
    • Core-computer system in Banks and storing in ‘iCloud’ etc. are good examples for such storage.
  • Sixth explanation has also wider application. As is clear from the explanation, video recordings (a) simultaneously stored in electronic form and (b) transmitted or broadcasted can also be taken as primary evidence.
  • Explanation 5 renders a rider. Production of electronic or digital record from proper custody (unless it is disputed) is necessary to treat it as ‘primary evidence’.
    • Admission of electronic record contained in a stolen devise seized from an accused is a good example for it.

3. Scope of Secondary Evidence also Expanded

Abstract:

  • Oral and written admissions, as well as the evidence of ‘skilled persons’, are added in the list of Secondary Evidence.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
63. Secondary evidence. –– Secondary evidence means and includes ––
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.		58. Secondary evidence Secondary evidence includes—
(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(iii) copies made from or compared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions;
(vii) written admissions;
(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

The new clauses in Sec. 58, that speaks about Secondary Evidence, also show the legislative intent of liberalization in evidence in legal proceedings. Certificates and Reports of ‘skilled persons’ (as regards the documents which cannot conveniently be examined in Court) are added in the list of Secondary Evidence.

4. Sec. 61, a New Provision

Abstract

  • It widened the scope of admissibility of Computer output. It permits to invoke other provisions of the Act also to prove secondary evidence of Electronic Record (other than Sec. 63, old 65B).
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
    (No specific provision in the Act)61. Electronic or digital record Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.

Importance of this New Provision

The words in the new Sec. 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is made to expand the scope of admissibility of Electronic Evidence.

The non-obstante clause in Sec. 65B (Sec. 63, BSA) is capable of giving two (divergent) interpretations –

  • First, Sec. 65B (Sec. 63, BSA) is an enabling provision to admit ‘computer output’ (derived from original)  as ‘document’ itself, in a simpler manner, by the deeming provision (“shall be deemed to be also a document”) ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
  • Second, a computer output (copy) can be proved only under the provisions of Sec. 65 B, ‘notwithstanding anything contained in the Act’. (It is the view taken By the Supreme Court in Arjun Panditrao v. Kailash Kushanrao,  2020-3 SCC 216.)

The words in the new Sec. 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” makes an emphatic delineation of the legislative intent on the following two matters –

  • 1. Sec. 65B (Sec. 63, BSA) is an enabling provision to admit ‘computer output’ (copy) by the  deeming provision ‘notwithstanding anything contained in the Act’. 
  • 2. The view taken in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, is that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65B,  ‘notwithstanding anything contained in the Act’. It is no more a good law in view of the change by Sec. 61.
  • Because,
    • “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic” record on the ground that it is an electronic record and “such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document” applies to Sec. 63 also. Therefore, the interpretation given in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, will not remain in force.
    • The words, “subject to section 63” (BSA), in Section 61 (BSA), only directs to undergo the requirements in Sec. 63 (that is production of Sec. 63(4) certificate and HASH certificate etc.) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 63.

Note: 1. If this interpretation is not given, Sec. 61 stands meaningless.

Note: 2. This interpretation is also necessary to give effect to the legislative intent (liberalization of evidence).

5. Changes to Sec. 65A and 65B

Abstract:

  • No substantial change to Sec. 65A.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
65A. Special provisions as to evidence relating to electronic record. –– The contents of electronic records may be proved in accordance with the provisions of section 65B.62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.

No material change is made by this new provision which stands as an introductory provision to Sec. 63.

Abstract of change to Sec. 65B:

  • Sec. 63 read with Sec. 61 (BSA) allows to prove the copy or print-out of an electronic record invoking other provisions of the Sakshya Act, also.
  • Mandatory requirement of HASH certificate is introduced..
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
65B. Admissibility of electronic records – (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:–
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process  		63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
 (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
 (5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

Major Changes made in Sec. 65B IEA

  • Now, under Sec. 65B of the Indian Evidence Act, copy or print-out of an electronic record can be proved only by producing the certificate provided under Sec. 65B(4), in view of the Supreme Court decision in Arjun Panditrao v. Kailash Kushanrao, 2020-3 SCC 216.  
  • The proposed Bhartiya Sakshya Act, 2023, (Sec. 63 read with Sec, 61) allows to prove the copy or print-out of an electronic record invoking other provisions of the Evidence Act (such as Sec. 63 and 65 IEA = Sec. 58 and 60 BSA) that permits to prove a secondary evidence (copy) of a document.
  • If  a computer output (copy) is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, the “certificate (HASH) specified in the Schedule” is necessary. It is to be produced “along with the electronic record” also.

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1 Comment

  1. Jayaram Parlikad's avatar Jayaram Parlikad says:
    January 19, 2024 at 1:35 am

    Thank you for the article on the above important legal topic. It is well-analysed and compared with simple and clear explanations.

    I presume the name of the Act “Bharatia Sakshya Act, 1923” written in the article must be read as “Bharati Sakshya Act, 2023”.

    With best wishes, P K Jayaram

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