Saji Koduvath Associates

Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?

No.

Saji Koduvath, Advocate, Kottayam.

Suit under Sec. 6 Sp. Rlf. Act is a ‘Summary’ one, for Three Reasons

A suit filed under Sec. 6 (Specific Relief Act) is said to be a ‘Summary Suit’. It is for three reasons:

No adjudication on title.
Only issue germane is whether ‘illegal dispossession’.
No Appeal or Review from the Judgment thereon.

It is noteworthy that it is not a suit that falls under Order XXXVII CPC (‘Summary Procedure’).

Sec. 6, Specific Relief Act

Sec. 6, Specific Relief Act, reads as under:

“6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”

What is Section 6 of the Specific Relief Act, 1963

When attracted?

A person (in actual possession) has been dispossessed.
From an immovable property.
Without his consent and.
Otherwise than in due course of law.

Who can file a suit?

Person who has been dispossessed or
Any person through whom he has been in possession or
Any person claiming through him

What should be the suit for?

Recover possession of the immoveable property.

What are the characteristics of such a suit?

It is a special remedy, notwithstanding any other title the plaintiff may have, or he could set up.
The must be brought within the six months of dispossession.
No appeal shall lie from any order or decree passed; there will be no review also.
This section does not bar the person dispossessed (etc.) to file a suit to establish his title and to recover possession thereof.
No suit can be filed against the Government under this section.
Sec. 6(4) of the Sp. Relief Act will not preclude the defendant from recovering the property based on title.
A suit under Sec. 6 is maintainable even against the true owner of the property.

Read Blog: SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE (though Tenancy Not Proved) if Defendant Falsely Claimed Independent Title

Sec. 6 – Only Issue – Whether Plaintiff Illegally Dispossessed

In I.T.C. Limited v. Adarsh Co-op. Housing Soc. Ltd., 2013-10 SCC 169, it is observed that “illegal dispossession” is the only issue germane to a suit under Sec. 6. It is held as under:

“In fact, in a suit under Section 6, the only question that has to be determined by the Court is whether the plaintiff was in possession of the disputed property and he had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. … As the question of possession and illegal dispossession therefrom is the only issue germane to a suit under Section 6, a proceeding thereunder, naturally, would partake the character of a summary proceeding against which the remedy by way of appeal or review has been specifically excluded by sub-Section 3 of Section 6. … (The Court referred to: Lallu Yashwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620, Krishna Ram Mahale v. Shobha Venkat Rao, AIR 1989 SC 2097 and Sanjay Kumar Pandey v. Gulabahar Sheikh, 2004-4 SCC 664).

Why Called “Summary Suit” – No Adjudication on Title and No Appeal

In Sanjay Kumar Pandey v. Gulabahar Sheikh, 2004-4 SCC 664, it is explained as under:

“4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.” (Quoted in: I. T. C. Limited v. Adarsh Co-op. Housing Soc. Ltd., 2013-10 SCC 169.)

“Unjustly Denied by an Illegal Act of dispossession”

The Supreme Court, in Sanjay Kumar Pandey v. Gulbahar Sheikh, (2004) 4 SCC 664, held that Sec. 6 is to give immediate relief to the person who has been illegally dispossessed from the property. The Court held as under:

“A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession.” (Same words in Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 (9) SCC 221, also. Quoted in: P. Thankamma v. Sajitha G. Nair, 2014-2 KHC 151; 2014-2 KLT 110)

Title or better possession not arise for Adjudication

In I. T. C. Limited v. Adarsh Co-op. Housing Soc. Ltd., 2013-10 SCC 169, it is observed by our Apex Court that Sec. 6 requires adjudication as to illegal dispossession of immovable property, independently of the question of title that may be set up by the defendant in such a suit.

In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 (9) SCC 221, it is held as under:

“…. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time 6 months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the Specific Relief Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” (Quoted in: P. Thankamma v. Sajitha G. Nair, 2014-2 KHC 151; 2014-2 KLT 110)

“Dispossessed otherwise than in due course of law”

In Sukhjeet Singh v. Sirajunnisa (Dipak Misra, J.), AIR 2001 MP 59, the tenant handed over the premises to the landlord for the marriage of the landlord’s son. The landlord did not return possession. It is held that possession under Section 6 is not attracted inasmuch as the possession was voluntarily transferred.

Issue is Not Validity of Transaction; But Whether Dispossessed ‘Without His Consent’

In Onama Glass Works Lid. v. Shri Ram Harak Panday, AIR 1966 Madh Pra 282, the Board of Directors of a Company by resolution transferred the companies property, but there was no resolution by the General Body. The Court, on considering the scope of Sec. 6, Sp. Relief Act, held as under:

“8. …. .This section becomes applicable only when the plaintiff is dispossessed ‘without his consent.’ The matter in issue is not whether the transaction was valid but whether the plaintiff was dispossessed ‘without his consent’. . . . .” (Quoted in: Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

If “An Iota of Consent”- Cannot Complain of Dispossession

In Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59, the learned Judge (as he then was) pointed out the facs of Neyveli Lignite Corporation Ltd. v. K.S. Narayan Iyer, AIR 1965 Madras 122, to establish that “there should not have been an iota of consent in handing over the possession”.

In the said case (Neyveli Lignite Corporation Ltd. v. K.S. Narayan Iyer) certain property was leased by the Corporation for running of a canteen. The lease was originally for one year. It was renewed thereafter; but declined any further. After the expiry of the notice period the authorities accompanied by Police took possession. The respondents did not protest. Later on he issued a notice to the Corporation calling upon it to pay damages failing which he threatened to take steps for recovery. There was no demand for restoration of possession. The High Court held that the respondent did not intend to hold the possession, and hence, he cannot complain of dispossession and claim relief under Section 9 (Section 6 of New Act) of the Specific Relief Act.

Not to declare evicted person was in Lawful Possession

In M.C. Chockalingam v. Manickavasagam, AIR 1974 SC 104, the Apex Court observed as follows:–

“13. … . All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This section has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. . . .” (Quoted in: Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Discretionary Revisional Jurisdiction

In Sobhabati v. Lakshmi Chand, AIR 1984 Ori. 171, held that the High Court should not interfere in its discretionary revisional jurisdiction with a decision given under Section 6 of the Specific Relief Act as parties have effective remedy by way of suit for declaration of title and possession. (Referred to in Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Can Sec. 6 suit be dismissed without trial?

No.

Such a view would be a misapprehension of scope of the section. In such a situation the decision can be interfered in Revision. (Ajodhiya Prasad v. Ghasiram, AIR 1937 Nag. 326. Referred to in Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Counter Claim to Set Aside Gift Deed in Sec. 6 Suit – Possible

In P. Thankamma v. Sajitha G. Nair, 2014-2 KHC 151; 2014-2 KLT 110, it is held that the court below had not erred in allowing I.A. for amending the written stat ement in order to set up by way of counter claim in the suit filed under Section 6 of the Act. It is observed as under:

“…. The enquiry in the suit under Section 6 of the Act and in the counter claim to set aside the Gift Deed vastly differs in its nature and scope. Also the decree in the suit is only open to challenge in a Civil Revision Petition whereas the decree in the counter claim is open to an appeal. But does it mean that a counter claim for setting aside the Gift Deed cannot be permitted to be set up in a suit for possession under Section 6 of the Act? I am afraid not since there is no such limitation to set up by way of counter claim under Order VIII Rule 6-A of the Code of Civil Procedure, 1908.”

Doctrine of clean hands in claiming an equitable relief

Halsbury’s Laws of England Fourth Edition Vol.-16 pages 874-876, lays down the legal position on the doctrine of clean hands in claiming an equitable relief as under:

1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim “he who has committed iniquity shall not have equity”, and relief was refused where a transaction was based on the plaintiff’s fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff’s demerits.” (Quoted in: A. S. Motors Pvt. Ltd. v. Union of India, 2013-10 SCC 114.)

No Party Can Take Advantage Of His Own Wrong

(i.e. ex injuria sua nemo habere debet)

Our Supreme Court, in Machhindranath v. Ramchandra Gangadhar Dhamne (Sudhanshu Dhulia, Ahsanuddin Amanullah, JJ.), 2025 INSC 795, observed as under:

“32. Undoubtedly, the present case comes under a unique category where a person on the one hand comes before a Court seeking that his own actions be nullified on the ground that it was void and on the other hand wants relief in his favour, which is consequential to and traceable to 26 of 29 his own wrong. It would not be proper for a Court of law to assist or aid such person who states that the wrong he committed be set aside and a relief be granted de hors the wrong committed, after condoning the same. In the present case, the plaintiff cannot be allowed to benefit from his own wrong and the Court will not be a party to a perpetuation of illegality. In Ram Pyare v Ram Narain, (1985) 2 SCC 162, a 3-Judge Bench of this Court, in the circumstances therein, did not void a transaction even though the transaction was void being prohibited by law. The principle that no party can take advantage of his/her own wrong i.e. ex injuria sua nemo habere debet is squarely attracted. In Kusheshwar Prasad Singh v State of Bihar, (2007) 11 SCC 447, it was held:

‘13. The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127: 1996 SCC (Cri) 592] the accused 27 of 29 army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time- barred. This Court (at SCC p. 142, para 28) referred to Broom’s Legal Maxims (10th Edn.), p. 191 wherein it was stated:
“It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.”
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned.
To put it differently, ‘a wrongdoer ought not to be permitted to make a profit out of his own wrong’.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.

Saji Koduvath, Advocate, Kottayam.

Charitable and Religious Trusts Act, 1920 – Object

The object of the Act is shown to be ‘to provide more effectual control over the administration of Charitable and Religious Trusts’; and it is made to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts’.

Provisions as regards opinion, advice or direction of the Court.

Following are the important provisions of the Act as regards opinion, advice or direction of the Court.

“Sec. 2. Interpretation. — In this Act, unless there is anything repugnant in the subject or context, ‘the Court’ means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.
Sec. 7. Powers of trustee to apply for directions.—
.(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction hereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
Sec. 9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—
.(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;
(b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or
(c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
Sec. 12. Barring of appeals.— No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.”

The purport of the Act can be analysed as under:

Court gives opinion, advice or direction to trustees alone.
The advice or direction is given only on any question affecting the management or administration of the trust property.
It is on the principle – Court is Guardian or Protector of All Public Trusts.
It envisages a ‘summary disposal’ (No need to invite pleads, frame issues, take evidence etc.).
Court exercises a discretionary jurisdiction in this matter.
Court is not bound to give opinion if the question not susceptible to a summary disposal.
The opinion is not given in matters which are seriously disputed or contested.
There will not be adjudication on questions of fact or law.
Operation of this section is subject to Sections 9 and 12 (given above).

Court is Protector of All Public Trusts – Cannot Refuse Opinion

Referring Sec. 7 of the Charitable and Religious Trusts Act, 1920, it is observed in Sennimalai Swamy Madam Trust, Palani v. NIL, 1999-3 CTC 390, as under:

“10. In view of these decisions, it has to be held that petitioner is competent to file an application before lower court seeking opinion. Unless Court finds that the opinion cannot be given since there are complicated facts or question of law is to be decided, it may not be proper on its part to refuse to give opinion. After all, Court is guardian or Protector of all public trusts and it cannot refuse to give its opinion, when the same is sought for by a Trustee.” (Avoch Thevar v. Chummar, AIR 1957 Ker 171, In Re Birla Jankalyan Trust, AIR 1971 Cal. 290, In Re Dhanalat, AIR 1975 Cal. 67, referred to)

Courts desist if Complicated Facts or Question of Law

In Avoch Thevar v. Chummar, AIR 1957 Ker 171, it is observed that serious questions of res judicata, estoppel, good faith etc. could not be adjudicated under Sec. 7 of the Charitable and Religious Trusts Act, 1920. It is said as under:

“6. …. “The Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g. if it is one of the detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.”

This Kerala decision is followed in Hasan Bin Mubarak v. Chief Judge, City Civil Court, Hyderabad AIR 1999 AP 11, observing as under:

“Section 34 of the Act contemplates only a summary disposal on non-controversial issues. The mental condition of a person being an important personal problem, the Court cannot dispose of the same in a summary manner. What the Court below has done was to examine 3rd respondent, who is alleged to be an insane person and give the opinion on the basis of her statement. Though Ex.R-1, certificate, alleged to have been given by a psychiatrist, was marked, the Court made no effort to examine the said doctor. Obviously, this could not have been done because the matter has to be disposed of in a summary manner. Thus, it is evident that the advice that was sought for by the trustee required a determination on contentious facts and the jurisdiction of the Court under section 34 being only in the nature of giving guidelines or directions without entering into the merits, the application ought not to have been entertained by the Court. The trustee might have got a valid and satisfactory opinion had he approached a qualified medical man or the Court in a properly instituted suit.
23. In Avoch Thevar case (supra) following the decision in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing the trustees a right to apply to the Court for opinion to the Management and the Members, Section 34 embodied at the same time, a limitation governing the questions to be asked viz. that there should not be hypothetical and any questions of details or difficulty or importance, not proper in the opinion of the Court for summary disposal……” (quoted in Ashok Kumar Kapur VS Ashok Khanna, AIR 2007 SC 6; 2007-5 SCC 189).

Avoch Thevar v. Chummar, AIR 1957 Ker 171, is followed in P. D. Jaiswal v. Dwarikadhish Temple Trust, 2006 2 ADJ 680; 2006 3 AllLR 21; 2006 3 AWC 2823 saying as under:

“39. The last strand of Mr. Ravi Kant’s arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar, A.I.R. 1957 Ker 171, which was delivered for the Court by Hon’ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully referred the reader to paragraph-6, 7, 8 and 9 of the said judgment.
40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested, or which required difficult decisions on questions of fact or law,”

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

How to Execute an Injunction Decree

Saji Koduvath, Advocate, Kottayam.

Abstract – Methods of Execution of Injunction Decree

detention in civil prison
attachment of property
compensation
act to be done, be done by the decree-holder
or be done by some other person appointed by the court.

Order XXI rule 32, CPC is the Relevant Provision

It reads as under:

32. Decree for specific performance for restitution of conjugal rights, or for an injunction.
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it,
the decree may be enforced
- in the case of a decree for restitution of conjugal rights
  - by the attachment of his property or,
  - in the case of a decree for the specific performance of a contract or
- for an injunction
  - by his detention in the civil prison, or
  - by the attachment of his property, or by both.
(2) ….. …..
(3) Where any attachment under sub-rule (1) or sub- rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and
- out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and
- shall pay the balance (if any) to the judgment- debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid,
direct that the act required to be done may be done
- so far as practicable
by the decree-holder or
some other person appointed by the Court,
- at the cost of the judgment-debtor, and
upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
Explanation:- For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.”

Execution Petition – Form

Order XXI rule 11 of the Code of Civil Procedure provides the form for the Execution Petition (See End Notes) . Civil Rules of Practice of various States may also provide for Forms thereof. In all forms, for execution of the Decree for Injunction, the Decree Holder has to specifically seek one or more of the following methods; viz. –

detention of the Judgment Debtor in civil prison
attachment of his property
realisation of compensation
if any act to be (got) done, be done by the decree-holder
or be done by some other person appointed by the court.

Important Rulings

Not by Contempt Proceedings

1. Kanwar Singh Saini v. High Court of Delhi, 2011(4) KHC SN I

If violation of permanent injunction, it can be set right in executing the proceedings and not the contempt proceedings.

Police Protection invoking inherent powers

2. Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220

No technicality can prevent justice in exercise of its inherent powers (Police Protection). (Referred in: Johnson Kuriakose v. Fr. Thomas Paul Ramban, 2019 1 ILR(Ker) 174; 2019 1 KLT 6).

In Raja Venkateswarlu v. Mada Venkata Subbaiah, 2017-15 SCC 659, it is observed as under:

But merely because an application for police protection was filed only under Section 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the High Court to reject it and hold that the application should have been filed under Order XXI, Rule 32 CPC. The crucial question is whether the Execution Court has jurisdiction. That is not disputed.
The only thing is that an exact provision was not invoked. That by itself shall not be a reason for rejecting the application (See: Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal, (1983) 2 SCC 422 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633).

Awarding Compensation – reasonable and pragmatic (Not Arrest)

3. Gopinathan Pillai v. Rajappan, (2011(1) KLT 59)

O21 r. 32 (3) and (5) expressly authorizes courts to award compensation. Hence, before ordering arrest, an opportunity to compensate the decree holder, and obey the decree be done, by the court in a more reasonable and pragmatic way. (Referred in: Valsamma v. Abraham, 2013 1 ILR(Ker) 278; 2013 1 KHC 139; 2013 1 KLT 228)

Consequence Would Be Grave

4. Gopinathan Pillai v. Rajappan, (2011(1) KLT 59)

Even if the violation is not so grave, the consequence would be grave, since the court would be bound to sell the property after six months in such a case as the judgment debtor would be incapable of undoing the mischief which was done already. (Referred in: Valsamma v. Abraham, 2013 1 ILR(Ker) 278; 2013 1 KHC 139; 2013 1 KLT 228)

End Notes:

Order XXI rule 11 of the Code of Civil Procedure reads as under:

1. Oral application.-
(1) Where a decree is for the payment of money the court may, on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant if he is within the precincts of the court.
(2) Written application—
Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:—
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;
(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree is sought; and the mode in which the assistance of the court is required, whether—
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) .otherwise, as the nature of the relief granted may require.
(3) The court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.
HIGH COURT AMENDMENTS
Allahabad.- (1) For clause (f) of sub-rule (2), substitute the following:
“(f) The date of the last application if any.”
(2) Add the following proviso to sub-rule (2):
“Provided that when the application files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h), need not be given in the application.” (24.7.1926).
(3) Add the following as sub-rule (4);
“(4) Where a decree for money is sought to be executed under sub-rule (2) by the arrest and detention in prison of the judgment-debtor, the application shall also state on which of the grounds mentioned in the proviso to Section 51, detention is claimed,” (19.5,1956).
Andhra Pradesh.- Same as in Madras.
Karnataka.- (I) after clause (f) insert clause (ft) as in Madras with the omission of the words “original” before “decree-holder”.
(ii) after clause (j), (v) insert para as in Madras. (30.3.1967)
Kerala.- (i) after clause (f) insert clause (ff) as in Madras.
(ii) Clause (j) is substituted. The effect of substitution is that after sub-clause (v) a paragraph is added as in Madras. (9.6.1959).
Madhya Pradesh.- Add the following proviso to sub-rule (2):—
“Provided that, when the applicant files with his application a certified copy of the decree the particular specified in clauses (b), (c) and (h) need not be given in the application.” (16.9.1960).
Madras and Andhra Pradesh.- (P. Dis. No. 776 to 1929) – (a) In sub-rule (2) of rule 11 between clauses (I) and (g) insert the following new clause:-
‘(ff) whether the original decree-holder has transferred any part of his interest in the decree and if so, the date of the transfer and the name and address of the parties to the transfer”.
(G.O Ms. No. 2084-Home of 2.9.1936) – H.G.P. Dis. No. 691 of 13.10.1936) – (b) Add the following to sub-rule (2) (j) after clause (v):
“In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of Rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”
(c) Add the following proviso at the end of sub-rule (2);
“Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (C) and (h) need not be given in the application.”
Orissa.- (Amend. deleted 14.5.19841.
Patna.- (a) Add the following as sub-rule (1-A) to rule I
“(1-A) Where an order has been made under Section 39 for the transfer of a decree for the payment of money for execution to a Court within the local limit 1 r jurisdiction of which the judgment-debtor resides, such Court may, on the production by the decree-holder of a certified copy of the decree and an affidavit of non-satisfaction forthwith order immediate execution of the decree by the arrest of the judgment-debtor.”
(b) Substitute the words and figures “sub-rules (1) and (I-A)” for the words and figure “sub-rule (1)” in line 1 of sub-rule (2) of rule 11.
(c) Delete clauses (b), (c), (d), (1) and (h) of sub-rule (2). (5.4.1961).

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Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

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, 1872	Bharatia 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, 1872

Bharatia 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, 1872

Bharatia 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, 1872	Bharatia 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, 1872	Bharatia 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, 1872

Bharatia 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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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Does Easement of Necessity and Prescriptive Easement Stand Mutually Destructive? Can Easement of Necessity and Implied Grant be Claimed Alternatively?

Saji Koduvath, Advocate, Kottayam.

PART I – ABSTRACT

1. Courts in India consistently adhered to the following postulations-

Prescriptive Right of Easement (Grant also) stands destructive to claim of Easement of Necessity.
Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts.
Therefore, both such rights cannot be claimed in the (same) suit even as an alternative remedy.
Theoretical basis of ‘Easement of Necessity’ and ‘Easement by Implied Grant’ are same. Therefore, such claims can be raised in the (same) suit as an alternative remedy.

2. Following is a matter of seminal importance-

A (Single) Judge of the Kerala High Court (in Achuthan Nair, v. Vasudevan, 2020-5 KHC 647) took the view that Easement of Necessity can be claimed as an alternative remedy (in a suit based on Prescriptive Rights), “in the event of rejection of claim of prescriptive easement“; for, easement of necessity is “co-extensive with the necessity”. It being stood against the earlier view of the High Court, in various cases, he referred the matter for the decision by a larger bench. The case is pending consideration by the larger Bench.

Necessity and Prescription (Generally Followed) Propositions

Easement of Necessity and Prescriptive Right are ‘mutually destructive’
Both are antithetical to each other.
Both cannot be maintained in one suit.
The reason is that the origins of both are distinctive and divergent in law. Easement of necessity continues as long as necessity exists. Its origin is the presumption of law. It will not give rise to a prescriptive right. In other words, Easement of necessity is based on an implied grant – based on some sort of ‘consent, approval or permission’; and, Easement by Prescription is acquired by prescriptive or hostile acts.

Invariably it is so held by the Courts in India. See:

(i) P. Sadayan v. Arumugam, 2020-1 LW 535
(vii) Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623)
(vi) Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700: 2017 KHC 876)
(ii) Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649
(v) Kallen Devi v. Kizhakkekoroth Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443)
(iv) Kochu Nadar v. Kunjan Nadar Gabriel, (2011 SCC OnLine Ker 2674)
(iii) Joy Joseph and Others v. Jose Jacob, (2010 (4) KHC 167)
(viii) Ibrahimkutty v. Abdul Rahmankunju, (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91)
Mohammed vs. Doomunhi Achari, 1987 (2) KLT 1037.

Necessity and Implied Grant – can Claim Alternatively; Theoretical Basis Same

Theoretically, easement of necessity and quasi-easement arise from implied approval of the servient owner; and, therefore, there is “implied grant” in both.
‘Grant’ of easement may be express or implied. Implied grant is controlled by the (implied) terms and conditions of the grant.
Both easement of necessity and quasi easement have some common features; but, they are distinguishable and cannot go together.
Grant being controlled by the (implied) conditions, it is not akin to ‘quasi easement’, and a grant will not be defeated by the emergence of an alternative way.
It is obvious , the decision of Sree Swayam Prakash Ashramam v. G. Anandavally Amma , 2010 (2) SCC 689, proceeded on this principle – “theoretical basis of ‘Easement of Necessity’ and ‘Easement by (Implied) Grant’ are same”.

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Easement by Prescription and Easement of Necessity are Antithetical

Easement by prescription is “acquired” by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore, “grant” is ‘presumed’ in easement by prescription.

Origin of Easements of necessity and Easement by prescription are different (Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent, approval or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts). Hence, both these rights are said to be antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

“Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M. Chellappan, AIR 2023 Mad 8, P. Sadayan v. Arumugam, 2020-1 Mad LW 535).

In Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109, it is held as under:

“10. …. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

No Res judicata, Where suit dismissed on Technical Ground

It is trite law – there will not be res judicata if a suit is dismissed not on merit but on technical ground. (See: Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Patna 5 upheld by the Supreme Court in Indian Oil Corporation Ltd. v. Niloufer Siddiqui, 2015-16 SCC 125: Referred to in: P. Rajesh v. V. Shanthi, 2015-5 LW 27; 2015-7 MLJ 648)

Therefore, there may not be any bar on the ground of res judicata even if a suit is dismissed on the technical ground of claiming inconsistent pleas of easement.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Should Power of Attorney for Sale Must have been Registered under Sec. 17(1)(b) Regn. Act – Channegowda v. NS Vishwanath Analysed

Saji Koduvath & James Joseph, Advocates, Kottayam.

Did Karnataka High Court hold in Channegowda v. NS Vishwanath that (all) ‘power of attorneys for sale’ must have been registered, under Sec. 17(1)(b) Registration Act?

The learned Judge, on a precise and perfect Judgment, held that the General Power of Attorney “coupled with interest” required registration.

The court arrived at the legal attribute, “coupled with interest” in the the facts of that case (presented by the plaintiff himself), which included the following –

(i) the power of attorney issued (made after obtaining entire sale consideration) in favour of the second plaintiff had (in fact) set-forth or effected a “sale of property” itself.
(ii) it conferred power on the second plaintiff (as owner) to make a (further) sale to first plaintiff, and
(iii) on this (professed) capacity as “owner”, the second defendant executed an agreement for sale in favour of the first plaintiff.

Claim of the plaintiffs

The claim of the plaintiffs in this case was –

i. The defendants 1 to 3 were the original owners of the suit property.
ii. They made a “sale transaction” (or sold the property) in favour of the second plaintiff on 01.03.1991, without a sale deed (due to the Fragmentation Act), through the following documents –
- (a) an affidavit sworn on 01.03.1991 before the Notary stating receipt of consideration and “transfer of their vested right” with possession. The affidavit made it clear that defendants 1 to 3 received the full sale consideration; and they undertook that at no point of time, they would sell the property to any third party. It was also agreed that they would come and execute the sale deed in favour of the second plaintiff.
- (b) an irrevocable General Power of Attorney in favour of the second plaintiff (executed on 01.03.1991) wherein liberty was given to the second plaintiff to “deal with the property as per her will and wish, either to sell or to develop the same”.
iii. Second plaintiff (who got the power of attorney and affidavit) entered into an “agreement of sale” in favour of the first plaintiff on 05.04.1991 and hence she requested defendants 1 to 3 to execute the absolute sale deed in her favour.

The judgement places the argument of the plaintiff, in this regard, as under:

“Secondly, he argued by saying that based on the General Power of Attorney coupled with interest, the second plaintiff sold the property in favor of the first plaintiff.”
- Note: 1. The concept of power of attorney is that the ‘owner’ (principal) himself is ‘getting done’ the specified acts enumerated in the Power of Attorney (in his name and on his behalf) through the power of attorney holder (agent).
- 2. Taking a could-shoulder, property law (in some cases) recognised the ‘General-Power-of-Attorney-Sale’. But it desires all formalities of a ‘sale’ including registration .

Court Referred a Supreme Court Decision

It is pointed out that the Apex Court decision in Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656, held –

.(i) that the General-Power-of-Attorney-Sale, or Sale-Agreements will/do not convey title and they do not amount to transfer, and
(ii) they cannot be considered as valid modes of transfer of immovable property.

Why the Power of Attorney was Found – that it Required Registration

The General Power of Attorney considered in this case was held to be one required registration under Sec. 17 of the Registration Act, for it was “coupled with interest“.

That is, the power of attorney required registration in view of the contention of the plaintiffs that –

(i) the Power of Attorney was a deed that (indirectly) set forth a “sale” (itself) made after obtaining entire sale consideration, and
(ii) by virtue of the same the second plaintiff could make a further alienation (i.e., with “power of alienation”).

The Crucial Findings of the Well-Versed Judgment

In view of the contention of the plaintiffs that the Power of Attorney was a deed that set-forth a “sale” (itself) made after obtaining entire sale consideration, and by virtue of the same the second plaintiff could make a further alienation, it is held as under:

“However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration.”

In the High Court, the plaintiff’s advocate placed an alternative argument (that the second plaintiff was not as a title holder), changing his earlier stand (that there was a sale and the second plaintiff became the title holder). The High Court dealt with the argument as under:

“An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the property as a General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable.”
“The submission is noted with care.”
“Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable.”

Conclusion in the Judgment

The plaintiffs claimed that the power of attorney had effected or set-forth a “sale”. Therefore, the High Court concluded that it was “inadmissible in evidence”. It is held as under-

“Therefore, it can be safely concluded that the declaration of facts/statement of facts (affidavit) and General Power of Attorney do not convey title”.

End Notes:

Power of Attorney, Concepts in Law

In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –

It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
A power of attorney is, as is well known, a document of convenience.
By a power of attorney, an agent is formally appointed to act for the principal.
It is an authority upon another person; but, subject to the limitations contained in the said deed.
The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
All acts, deeds and things done by done by the agent shall be read as if done by the donor.
Except in cases where power of attorney is coupled with interest, it is revocable.
The agent cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a matter between the donor and the donee.

State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”

“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

Should a Power of Attorney be Compulsorily Registered

Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:

“(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any
- right,
- title or
- interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property”

Power of Attorney creates only an ‘Obligation’ on the agent

It is no doubt, true that a power of attorney does not create, declare, assign, limit or extinguish any right, title or interest; it only creates an ‘obligation‘ on the agent. The agent acts in a fiduciary capacity.

Power of Attorney, “coupled with interest”

A Power of Attorney, “coupled with interest”, requires registration.

E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).

Kerala Amendment to Sec. 17(1)(g)

Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:

(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.

But, in Lachchhiram v Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

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Adverse Possession

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Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

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Easement

Stamp Act & Registration

Will

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 4: Common Law of TRUSTS in India

General Principles
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- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
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Law on Hindu Religious Endowments
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Temples, Gurudwaras, Churches and Mosques – General
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- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame

Stamp Act v. Arbitration Act

Saji Koduvath, Advocate, Kottayam

Abstract

•➧ In NN Global Mercantile v Indo Unique Flame, (2023) 7 SCC 1, Five Judge Bench of the Supreme Court, held (on 25. 4. 2023) – if an arbitration agreement was not sufficiently stamped it could not be sent for Arbitration (by a court).
•➧ Seven Judge Bench of the Apex Court, in a ‘curative petition‘, on December 13, 2023, held – sufficiency of stamp could not be a subject for the Court.
•➧ It was laid down – the objections as to insufficiency of stamp lies in the domain or ambit of the Arbitral Tribunal.

The Seven Judge Bench of the Supreme Court held-

Defect on non-stamping of a document is curable.
Such a document is not void (though “inadmissible” under Sec. 35 of the Stamp Act)
The courts, only examine whether the arbitration agreement “prima facie exists” (under Sec. 8 and 11 of the Arbitration Act)
The objection as to non-stamping fall within the ambit of the arbitral tribunal (Sec. 16)

Reference to Seven-Judge Bench

The Five Judge Bench decision in NN Global Mercantile v Indo Unique Flame, (2023) 7 SCC 1, was placed before the Seven Judge Bench, in a ‘curative petition’, considering the “larger ramifications and consequences” (within the shortest time?).

Findings of the Seven-Judge Bench – on Stamp Act, in Nutshell

The Stamp Act is a fiscal statute only.
The Act itself provided for curing defects on non-stamping.
Hence such unstamped agreements are not void.

Findings of the Seven-Judge Bench – on Arbitration Act, in Nutshell

The Arbitration Act provided for minimum judicial interference.
Arbitration Act is a self-contained code.
It provides for the separability of the arbitration agreement from the main contract.
Arbitral tribunals had jurisdiction to determine the limits of their own jurisdiction. Thereby, the Arbitral Tribunal can decide “the existence and validity of an arbitration agreement“.
Harmonious interpretation of Stamp Act and Arbitration Act is needed, for-
- The Arbitration Act, a comprehensive legal code.
- It is a “special” statute.
- It did not specify stamping as a pre-condition of a valid arbitration agreement.
- It requires courts to confine at the referral stage to examination of the existence of arbitration agreement.

The Seven Judge Bench highly relied on Section 16 of the Arbitration and Conciliation Act, 1996, which declares the competence of arbitration tribunal to determine the existence or validity of the arbitration agreement .

The Supreme Court has overruled Earlier Decisions

NN Global Mercantile v. Indo Unique Flame, (2023) 7 SCC 1
SMS Tea Estates v. Chandmari Tea Co, (2011) 14 SCC 66
Garware Wall Ropes v. Coastal Marine Constructions, (2019) 9 SCC 209

These (earlier) decisions held –

Existence of a valid arbitration agreement (with sufficient stamp) was necessary, for ‘reference to arbitrator’ under Sec. 8 of the Arbitration and Conciliation Act, 1996.
These decisions relied, mainly, on Sec. 8(1) which reads as under:
- “A judicial authority …. shall … refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

FINDINGS OF THE APEX COURT

Non-Stamping Does Not Render a Document Invalid or Nonexistent.

“194. The interpretation accorded to the Stamp Act by this Court in the present judgment does not allow the law to be flouted. The arbitral tribunal continues to be bound by the provisions of the Stamp Act, including those relating to its impounding and admissibility. The interpretation of the law in this judgment ensures that the provisions of the Arbitration Act are given effect to while not detracting from the purpose of the Stamp Act. 195. The interests of revenue are not jeopardised in any manner because the duty chargeable must be paid before the agreement in question is rendered admissible and the lis between the parties adjudicated. The question is at which stage the agreement would be impounded and not whether it would be impounded at all. The courts are not abdicating their duty but are instead giving effect to:
- a. The principle of minimal judicial intervention in Section 5 of the Arbitration Act;
- b. The prima facie standard applicable to Sections 8 and 11 of the Arbitration Act; and
- c. The purpose of the Stamp Act which is to protect the interests of revenue and not arm litigants with a weapon of technicality by which they delay the adjudication of the lis.
- d. The interpretation of the law must give effect to the purpose of the Arbitration Act in addition to the Stamp Act.” (emphasis in original).

Referral Court Not to Impound Unstamped Instrument

The Apex Court held as under:

“218. The discussion in preceding segments indicates that the referral court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument, but rather leave it for the determination by the arbitral tribunal. When a party produces an arbitration agreement or its certified copy, the referral court only has to examine whether an arbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral court under Section 11 is not required to examine whether a certified copy of the agreement/ instrument/ contract discloses the fact of payment of stamp duty on the original. Accordingly, we hold that the holding of this Court in SMS Tea Estate (supra), as reiterated in N N Global 2 (supra), is no longer valid in law.”

Conclusions of the Apex Court

The Apex Court held further as under:

“224. The conclusions reached in this judgment are summarised below:

Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;
b. Non-stamping or inadequate stamping is a curable defect;
c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists;
d. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal; and
e. The decision in NN Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent.”

End Notes

Arbitration and Conciliation Act, Sec. 7, 8 and 16

7. Arbitration agreement.

In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
An arbitration agreement shall be in writing.
An arbitration agreement is in writing if it is contained in
- (a) a document signed by the parties;
- (b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or
- (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

8. Power to refer parties to arbitration where there is an arbitration agreement.

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:
- Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

16. Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,–
an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) Where an award is remitted under sub- section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court: Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under sub- section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Major Changes in the Evidence Act by Bharatiya Sakshya Adhiniyam, 2023

Saji Koduvath, Advocate, Kottayam.

Major Changes are made in Three Facets

They are in –

(i) Status of Documents and Electronic Evidence
(ii) Sec. 65B (Electronic Records) of the Evidence Act.
(iii) Sec. 27 (Recovery/Discovery on confession by accused before Police) of the Evidence Act and

Read – BNSS – Major Changes from CrPC

Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

Part I

Documents and Electronic Evidence

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

Changes in the Definition

Abstract:

It is made clear – Electronic Evidence is included in the category of ‘Documentary Evidence’.

Indian Evidence Act, 1872	Bharatia 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;

By virtue of the definitions in the new act, it is made clear – 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.

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

Abstract:

(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, 1872

Bharatia Sakshya Act, 2023

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 to be treated as ‘primary evidence’.
- Admission of electronic record contained in a stolen devise seized from the custody of accused is a good example for it.

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, 1872

Bharatia Sakshya Act, 2023

Part II

Changes made to Sec. 65A & 65B (Electronic Records) in Evidence Act

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, 1872	Bharatia 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 non-obstante clause _{(‘notwithstanding anything contained in the Act’)} 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.)

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 interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65B, ‘notwithstanding anything contained in the Act’(the view taken in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216), is not accepted by the legislature.
- “Nothing in this Adhiniyam shall apply to deny the admissibility” applies to Sec. 63 also. Therefore, the interpretation given in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, will not remain in force.
“Subject to Section 63”
- The words, “subject to section 63” (BSA), in Section 61 (BSA), denotes two things-
- 1. Sec. 61 covers Sec. 63 also. That is, Sec. 61 is not confined to (original) ‘electronic record’; but it covers ‘computer output’ (copy) also.
- 2. To avoid a misinterpretation – that Sec. 61 is independent of Sec. 63 which directs to comply with certain requirements to accept ‘computer output’ (copy) (that is production of Sec. 63(4) certificate and HASH certificate etc.) one opts to prove ‘computer output’ (copy) 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).

Note: 3. Invoking Sec. 61, a copy taken in a CD or pen-drive _{(which is obviously ‘made by mechanical processes which in itself insure the accuracy’)} can be given in evidence, with the oral evidence to the effect that it is the copy taken from the Electronic Record _(original). Now, because of Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, we cannot give evidence in this manner; for, according to Arjun Panditrao ‘computer output _(copy) can be proved only’ under the provisions of Sec. 65B, that is with the “Sec. 65B Certificate” _{(‘notwithstanding anything contained in the Act’)}.

Changes to Sec. 65A and 65B

Abstract:

No substantial change to Sec. 65A.

Indian Evidence Act, 1872	Bharatia 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 changes 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, 1872

Bharatia 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).

Changes made to Sec. 65B

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes in Sec. 65B of the Indian Evidence Act, 1872. It updates Sec. 65B, as under:

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.

A Discordant Note

The Certificate required in Sec. 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

“I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
SHA1:
SHA256:
MD5:
Other …….. …….. …….. (Legally acceptable standard)
(Hash report to be enclosed with the certificate)”

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

Note: Hash value is needed/possible in electronic evidence alone.

What is HASH value (in simplest terms)?

HASH value is a string of unique characters, usually represented by letters and numbers.
It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
HASH value of every electronic record can be fixed.
Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

Part III

Changes made in Sec. 27 (Recovery/Discovery)

Abstract:

Sec. 25, 26 and 27 of IEA are consolidated to one section.
The word “thereby” in Sec. 27 is removed.

Section 25, 26 and 27, Indian Evidence Act

Section 23, Bhartiya Sakshya Act

25. Confession to police officer not to be proved. –– No confession made to a police-officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation.––In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18827 (10 of 1882).
27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

23. Confession to police officer.
(1) No confession made to a police officer shall be proved as against a person accused of any offence.

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved

The proposed Bhartiya Sakshya Act, 2023 introduces two significant changes in Sec. 27 of the Indian Evidence Act, 1872.

Changes in the New Act (Made to Sec. 27, IEA)

First –

Now, from the words of Sec. 27 of the Indian Evidence Act, it is clear (i) what is to be proved by Sec. 27 is the fact deposed by the Investigating Officer in court; and (ii) it must be as to the ‘discovery’ on ‘information’ (or disclosure) from the accused.
From the words of Sec. 27 of the Evidence Act, it could be shown or argued (though not correct) that the fact ‘discovered’ embraces (a) the “recovery” (b) of the “object” (c) in the immediate presence of the accused – to have it “in consequence of (his) information”.
The possibility of these (incorrect) arguments are averted by removing the word “thereby” in Section 27 (in the proviso to Section 23 of the new Bhartiya Sakshya Act).

Second –

Now, the Sec. 27 of the Indian Evidence Act begins with a ‘Proviso’.
This impropriety is removed by clubbing Section 25, 26 and 27 (of the Indian Evidence Act) in the new Bhartiya Sakshya Act (in Sec. 23).

A Discordant Note

Now, under Sec. 25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. But, if it falls under Sec. 27 (that is, if it leads to a discovery as provided in Sec. 27), it can be proved.
Though Section 25 is retained in the new Bhartiya Sakshya Act, 2023, under Sec. 23(1), the proviso is not made applicable to the Section, 23(1).
Note: 1. The proviso is limited (or made applicable) to subsection (2) of Section 23 of the Bhartiya Sakshya Act (alone) – See the colon (:) at the end of subsection (2).
Note: 2. It appears to be a mistake in drafting the section; because,
- (i) Sec. 25 of the Indian Evidence Act is a general provision which governs Sec. 26 also; and Sec. 27 applies to both Sec. 25 and 26;
- (ii) but, the proviso in Sec. 23 of the Bhartiya Sakshya Act is made applicable to Sec. 23(2) alone, and not to Sec. 23(1); thereby the vigor of Sec. 23(1) prevails – without being governed by the Proviso to Section 23(2);
- (iii) and, in such a case, Section 23(2) of the Bhartiya Sakshya Act, cannot work at all, inasmuch as Sec. 23(1) makes a total bar – “No confession made to a police officer shall be proved as against a person accused of any offence”.

Sec. 27 Indian Evidence Act (Proviso to Sec. 23 Bhartiya Sakshya Act) Analysed

Who has to “depose” – It is by the police officer, and before the court.

What is to be Deposed – It is the fact he discovered as disclosed by the accused.

“As Discovered” (in consequence of information from accused)

It is the fact deposed to (as disclosed by the accused) by the police officer before the court. It should have been ‘discovered’ from the “Place of Concealment”.

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, consistently followed by the courts in India, made it clear, as regards the concealment of a knife, as under-

“In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King Emperor it is clear –

Even if the knife was discovered many years ago,
if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
it is relelvent and admissible under Sec. 27 Evd. Act.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023

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

Saji Koduvath & James Joseph, Advocates, Kottayam.

Section 25, 26 and 27, Indian Evidence Act

Section 23, Bhartiya Sakshya Act

Introduction

The proposed Bhartiya Sakshya Act, 2023 introduces two significant changes in Sec. 27 of the Indian Evidence Act, 1872.

Changes in the New Act (Made to Sec. 27, IEA)

First –

Now, from the words of Sec. 27 of the Indian Evidence Act, it is clear (i) what is to be proved by Sec. 27 is the fact deposed by the Investigating Officer in court; and (ii) it must be as to the ‘discovery’ on ‘information’ (or disclosure) from the accused.
From the words of Sec. 27 of the Evidence Act, it could be shown or argued (though not correct) that the fact ‘discovered’ embraces (a) the “recovery” (b) of the “object” (c) in the immediate presence of the accused – to have it “in consequence of (his) information”.
The possibility of these (incorrect) arguments are averted by removing the word “thereby” in Section 27 (in the proviso to Section 23 of the new Bhartiya Sakshya Act).

Second –

Now, the Sec. 27 of the Indian Evidence Act begins with a ‘Proviso’.
This impropriety is removed by clubbing Section 25, 26 and 27 (of the Indian Evidence Act) in the new Bhartiya Sakshya Act (in Sec. 23).

A Discordant Note

Now, under Sec. 25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. But, if it falls under Sec. 27 (that is, if it leads to a discovery as provided in Sec. 27), it can be proved.
Though Section 25 is retained in the new Bhartiya Sakshya Act, 2023, under Sec. 23(1), the proviso is not made applicable to the Section, 23(1).
Note: 1. The proviso is limited (or made applicable) to subsection (2) of Section 23 of the Bhartiya Sakshya Act (alone) – See the colon (:) at the end of subsection (2).
Note: 2. It appears to be a mistake in drafting the section; because,
- (i) Sec. 25 of the Indian Evidence Act is a general provision which governs Sec. 26 also; and Sec. 27 applies to both Sec. 25 and 26;
- (ii) but, the proviso in Sec. 23 of the Bhartiya Sakshya Act is made applicable to Sec. 23(2) alone, and not to Sec. 23(1); thereby the vigor of Sec. 23(1) prevails – without being governed by the Proviso to Section 23(2);
- (iii) and, in such a case, Section 23(2) of the Bhartiya Sakshya Act, cannot work at all, inasmuch as Sec. 23(1) makes a total bar – “No confession made to a police officer shall be proved as against a person accused of any offence”.

End Notes

Sec. 27 Indian Evidence Act (Proviso to Sec. 23 Bhartiya Sakshya Act) Analysed

Who has to “depose” – It is by the police officer, and before the court.

What is to be Deposed – It is the fact he discovered as disclosed by the accused.

“As Discovered” (in consequence of information from accused)

It is the fact deposed to (as disclosed by the accused) by the police officer before the court. It should have been ‘discovered’ from the “Place of Concealment”.

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, consistently followed by the courts in India, made it clear, as regards the concealment of a knife, as under-

“In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King Emperor it is clear –

Even if the knife was discovered many years ago,
if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
it is relelvent and admissible under Sec. 27 Evd. Act.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

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

Jojy George Koduvath & Saji Koduvath, Advocate, Kottayam.

Section 65B, Indian Evidence Act

Section 63, Bhartiya Sakshya Act

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).

Abstract

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes as regards ‘Electronic Evidence’. It updates Sec. 65B .

One of the key requirements of the new Act is the production of a ‘HASH’ certificate to prove the copy or print-out (computer output). It is seen as introduced with a view to avert tampering. But it appears that this requirement is harsh and unwanted.

What are the Major Changes made in Section? 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).
The proposed Bhartiya Sakshya Act, 2023, 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 an electronic record is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, “the certificate specified in the Schedule” is necessary. It is to be produced “along with the electronic record”.

Other Major Changes in this regard, in the New Act

First – The existing Evidence Act contains three explanations alone while escribing ‘Primary Evidence’ in Sec. 62.

Explanation 4, 5, 6 and 7 are added in the new Sakshya Act, in the Sec. 57. It reads as under:

“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.”

From Explanations 4, 5, 6 and 7 it is clear that the scope of primary evidence is widened.

Second – A new provision is made – Sec. 61, which stipulates that –

“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.”

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Sec. 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Sec. 65B is capable of giving two (divergent) interpretations –

First, Sec. 65B 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 Section 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is an emphatic delineation of the legislative intent on the following two matters –

1. Sec. 65B is an enabling provision to admit ‘computer output’ (copy) as a ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’, as stated above.
2. The interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65 B, ‘notwithstanding anything contained in the Act’, is not accepted by the legislature (that is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)
- The the words, “subject to section 63” in Section 61, only directs to undergo the requirements in Sec. 65B (that is production of Sec. 65B(4) certificate, and HASH certificate) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 65B.

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

Methods to Prove Secondary Evidence (copy) in the BSA

“HASH value/s of the electronic/digital record/s”

The Form in the Schedule directs to state as under:

“I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
SHA1:
SHA256:
MD5:
Other …….. …….. …….. (Legally acceptable standard)
(Hash report to be enclosed with the certificate)”

A Discordant Notes

Hash Value Certificate: Mandatory or Merely Illustrative?
What is the purpose of ascertaining Hash Value of the Original?

Read Blog: Hash Value Certificate – Mandatory or Directory?

It is not clear –

(i) What is the precise purpose of ascertaining the hash value(s) of the (original) electronic or digital record?
- Note: It appears that the hash value(s) of the original record are expected to be stated, rather than that of the copy (or “computer output”) actually produced before the court. This raises several questions, including: how is the court to verify the authenticity of the copy, if only the original’s HASH is referenced?
(ii) Why does the requirement of including hash value(s) appear only in the Schedule (certificate format) and not in the main body of Section 63 itself?

The lack of explicit mention in the section text also creates uncertainty about whether hash values are mandatory or merely illustrative of best practices.

END NOTE – 1

What is HASH value (in simplest terms)?

HASH value is a string of unique characters, usually represented by letters and numbers.
It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
HASH value of every electronic record can be fixed.
Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

END NOTE – 2

Sections 58 to 63 of BSA read as under:

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.
Illustrations.
- .(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
- (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
- (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
- (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

59. Proof of documents by primary evidence – Documents shall be proved by primary evidence except in the cases hereinafter mentioned

60. Cases in which secondary evidence relating to documents maybe given.

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:–

.(a) when the original is shown or appears to be in the possession or power–
.(i) of the person against whom the document is sought to be proved; or
(ii) of any person out of reach of, or not subject to, the process of the Court; or
(iii) of any person legally bound to produce it,
and when, after the notice mentioned in section 64 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

Explanation.–For the purposes of–

clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
clause (b), the written admission is admissible;
clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

61. Admissibility of 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

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.

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 or Communication device 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 or Communication device 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 or Communication device 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 or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device 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) and an expert 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).

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