THE BHARATIYA SAKSHYA ADHINIYAM, 2023

 

THE BHARATIYA SAKSHYA ADHINIYAM, 2023

PART I

CHAPTER I PRELIMINARY

1. Short title, application and commencement.

2. Definitions.

PART II

CHAPTER II RELEVANCY OF FACTS

3. Evidence may be given of facts in issue and relevant facts. Closely connected facts

4. Relevancy of facts forming part of same transaction.

5. Facts which are the occasion, cause or effect of facts in issue or relevant facts.

6. Motive, preparation and previous or subsequent conduct.

7. Facts necessary to explain or introduce fact in issue or relevant facts.

8. Things said, done by conspirator in reference to common design.

9. When facts not otherwise relevant become relevant.

10. Facts tending to enable Court to determine amount are relevant in suits fordamages.

11. Facts relevant when right or custom is in question.

12. Facts showing existence of state of mind, or of body of bodily feeling.

13. Facts bearing on question whether act was accidental or intentional.

14. Existence of course of business when relevant.

Admissions

15. Admission defined.

16. Admission by party to proceeding or his agent.

17. Admissions by persons whose position must be proved as against party to suit.

18. Admissions by persons expressly referred to by party to suit.

19. Proof of admissions against persons making them, and by or on their behalf.

20. When oral admissions as to contents of documents are relevant.

21. Admissions in civil cases when relevant.

22. Confession caused by inducement, threat, coercion or promise, when irrelevant

in criminal proceeding.

23. Confession to police officer.

24. Consideration of proved confession affecting person making it and others jointly

under trial for same offence.

25. Admissions not conclusive proof, but may estop.

Statements by persons who cannot be called as witnesses

26. Cases in which statement of facts in issue or relevant fact by person who is dead

or cannot be found, etc., is relevant.

27. Relevancy of certain evidence for proving, in subsequent proceeding, the truth

of facts therein stated.

Statements made under special circumstances

28. Entries in books of account when relevant.

29. Relevancy of entry in public record or an electronic record made in performance

of duty.

30. Relevancy of statements in maps, charts and plans.

31. Relevancy of statement as to fact of public nature contained in certain Acts or

notifications.

32. Relevancy of statements as to any law contained in law books including electronic

or digital form.

33. What evidence to be given when statementforms part of a conversation,

document, electronic record, book or series of letters or papers.

Judgments of Courts when relevant

34. Previous judgments relevant to bar a second suit or trial.

35. Relevancy of certain judgments in probate, etc., jurisdiction.

36. Relevancy and effect ofjudgments, orders or decrees, other than those mentioned

in section 35.

37. Judgments, etc., other than those mentioned in sections 34, 35 and 36 when relevant.

38. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

Opinions of third persons when relevant

39. Opinions of experts.

40. Facts bearing upon opinions of experts.

41. Opinion as to hand-writing and digital signature, when relevant.

42. Opinion as to existence of general custom or right, when relevant.

43. Opinion as to usages, tenets, etc., when relevant.

44. Opinion on relationship, when relevant.

45. Grounds of opinion, when relevant.

Character when relevant

46. In civil cases character to prove conduct imputed, irrelevant.

47. In criminal cases previous good character relevant.

48. Evidence of character or previous sexual experience not relevant in certain cases.

49. Previous bad character not relevant, except in reply.

50. Character as affecting damages.

PART III -ON PROOF

CHAPTER III FACTS WHICH NEED NOT BE PROVED

51. Fact judicially noticeable need not be proved.

52. Facts of which Court shall take judicial notice.

53. Facts admitted need not be proved.

CHAPTER IV OF ORAL EVIDENCE

54. Proof of facts by oral evidence.

55. Oral evidence to be direct.

CHAPTER V OF DOCUMENTARY EVIDENCE

56. Proof of contents of documents.

57. Primary evidence.

58. Secondary evidence.

59. Proof of documents by primary evidence.

60. Cases in which secondary evidence relating to documents may be given.

61. Admissibility of electronic or digital record.

62. Special provisions as to evidence relating to electronic record.

63. Admissibility of electronic records.

64. Rules as to notice to produce.

65. Proof of signature and handwriting of person alleged to have signed or written

document produced.

66. Proof as to electronic signature.

67. Proof of execution of document required by law to be attested.

68. Proof where no attesting witness found.

69. Admission of execution by party to attested document.

70. Proof when attesting witness denies the execution.

71. Proof of document not required by law to be attested.

72. Comparison of signature, writing or seal with others admitted or proved.

73. Proof as to verification of digital signature.

Public documents

74. Public and private documents.

75. Certified copies of public documents.

76. Proof of documents by production of certified copies.

77. Proof of other official documents.

Presumptions as to documents

78. Presumption as to genuineness of certified copies

79. Presumption as to documents produced as record of evidence, etc.

80. Presumption as to Gazettes, newspapers, and other documents.

81. Presumption as to Gazettes in electronic or digital record.

82. Presumption as to maps or plans made by authority of Government.

83. Presumption as to collections of laws and reports of decisions.

84. Presumption as to powers-of-attorney.

85. Presumption as to electronic agreements.

86. Presumption as to electronic records and electronic signatures.

87. Presumption as to Electronic Signature Certificates.

88. Presumption as to certified copies of foreign judicial records.

89. Presumption as to books, maps and charts.

90. Presumption as to electronic messages.

91. Presumption as to due execution, etc., of documents not produced.

92. Presumption as to documents thirty years old.

93. Presumption as to electronic records five years old.

 

CHAPTER VI - OF THE EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

94. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

95. Exclusion of evidence of oral agreement.

96. Exclusion of evidence to explain or amend ambiguous document.

97. Exclusion of evidence against application of document to existing facts.

98. Evidence as to document unmeaning reference to existing facts.

99. Evidence as to application of language which can apply to one only of several persons.

100. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.

101. Evidence as to meaning of illegible characters, etc.

102. Who may give evidence of agreement varying terms ofdocument.

103. Saving of provisions of Indian Succession Act relating to Wills.

PART IV PRODUCTION AND EFFECT OF EVIDENCE

CHAPTER VII OF THE BURDEN OF PROOF

104. Burden of proof.

105. On whom burden of proof lies.

106. Burden of proof as to particular fact.

107. Burden of proving fact to be proved to make evidence admissible.

108. Burden of proving that case of accused comes within exceptions.

109. Burden of proving fact especially within knowledge.

110. Burden of proving death of person known to have been alive within thirty years.

111. Burden of proving that person is alive who has not been heard of for seven years.

112. Burden of proof as to relationship in the cases of partners, landlord and tenant,

principal and agent.

113. Burden of proof as to ownership.

114. Proof of good faith in transactions where one party is in relation of active confidence.

115. Presumption as to certain offences.

116. Birth during marriage,conclusive proof of legitimacy.

117. Presumption as to abetment of suicide by a married woman.

118. Presumption as to dowry death.

119. Court may presume existence of certain facts.

120. Presumption as to absence of consent in certain prosecution for rape.

CHAPTER VIII ESTOPPEL

121. Estoppel.

122. Estoppel of tenants and of licensee of person in possession.

123. Estoppel of acceptor of bill of exchange, bailee or licensee.

CHAPTER IX OF WITNESSES

124. Who may testify.

125. Witness unable to communicate verbally.

126. Competency of husband and wife as witnesses in certain cases.

127. Judges and Magistrates.

128. Communications during marriage.

129. Evidence as to affairs of State.

130. Official communications.

131. Information as to commission of offences.

132. Professional communications.

133. Privilege not waived by volunteering evidence.

134. Confidential communication with legal advisers.

135. Production of title-deeds ofwitness not a party.

136. Production of documents or electronic records which another person, having

possession, would refuse to produce.

137. Witness not excused from answering on ground that answer will criminate.

138. Accomplice.

139. Number of witnesses.

CHAPTER X OF EXAMINATION OF WITNESSES

140. Order of production and examination of witnesses.

141. Judge to decide as to admissibility ofevidence.

142. Examination of witnesses.

143. Order of examinations.

144. Cross-examination of person called to produce a document.

145. Witnesses to character.

146. Leading questions.

147. Evidence as to matters in writing.

148. Cross-examination as to previous statements in writing.

149. Questions lawful in cross-examination.

150. When witness to be compelled to answer.

151. Court to decide when question shall be asked and when witness compelled to answer.

152. Question not to be asked without reasonable grounds.

153. Procedure of Court in case of question being asked without reasonable grounds.

154. Indecent and scandalous questions.

155. Questions intended to insult or annoy.

156. Exclusion of evidence to contradict answers to questions testing veracity.

157. Question by party to his own witness.

158. Impeaching credit of witness.

159. Questions tending to corroborate evidence of relevant fact, admissible.

160. Former statements of witness may be proved to corroborate later testimony as to same fact.

161. What matters may be proved in connection with provedstatement relevant under

section 32 or 33.

162. Refreshing memory.

163. Testimony to facts stated in document mentioned in section159.

164. Right of adverse party as to writing used to refresh memory.

165. Production of documents.

166. Giving, as evidence, of document called for and produced on notice.

167. Using, as evidence, of document production of which was refused on notice.

168. Judge's power to put questions or order production.

CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

169. No new trial for improper admission or rejection of evidence.

170. Repeal and savings.

THE SCHEDULE

THE INDIAN EVIDENCE ACT, 1872, (IEA)

BSA Section	IEA Section	Subject	Summary of comparision
1	1	Short title, application and commencement.	Indian Evidence Act, 1872 (IEA) provided that it extended to the whole of India, whereas Bharatiya Sakshya Adhiniyam, 2023 (BSA) excludes this provision of territorial extent.
2	IEA 3 Interpret ation clause	Definitions	Interpretation clauses, which include words and expressions and are interpreted in paragraphs in the IEA, are now defined under Section 2(1): Definitions, where each word and expression is given individual alphabetical clauses. BSA excludes the interpretation of "India" previously given in Section 3 of the IEA.
2(1)(a)	3, para 1	"Court".	No change.
2(1 )(b)	4, para 3	"conclusive proof'.	"Act" is replaced with "Adhiniyam". Wherever the word "Act" is used in IEA the word "Adhiniyam" is used in BSA, therefore, this fact will not be specifically mentioned in this table hereinafter. Word "means" is added.
2(1) (c)	3, para 8	"disproved".	Words "A fact is said to be disproved" are replaced by "in relation to a fact, means".
2(1)(d)	3, para 5	"document"	The words "or otherwise recorded" and "or any other means", "and includes electronic and digital records" are added.
2(1)(e )	3, para 6	"evidence".	"Words" "including statements given electronically" in (e ) (i) and "or digital" in (e ) (ii) are added.
2(1 )(f)	3, para 2	"fact".	Word "man" is replaced by "person" in illustrations and illustration (e)-"That a man has a certain reputation, is a fact" is now excluded in BSA.
2(1 Kg)	3, para 4	"facts in issue".	No change.
2(1 Kh)	4, para 1	"may presume".	No change.
2(1 KO	3, para 9	"not proved".	No change.
2(1 Ki)	3, para 7	"proved".	No change.
2(1 )(k)	3, para 3	"relevant".	No change.
2(1)0)	4, para 2	"shall presume"	No change.
2(2)	New	Words and expressions.	Newly added. "Words and expressions used herein and not defined but defined in the Information Technology Act, 2000 (21 of 2000), the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Nyaya Sanhita, 2023, shall have the same meanings as assigned to them in the said Act and Sanhitas."
3	5	Evidence maybe given of facts in issue and relevant facts.	No change
4	6	Relevancy of facts forming part of same transaction.	No change
5	7	Facts which are occasion, cause or effect of facts in issue or relevant facts.	Words "or relevant facts" added in heading.
6	8	Motive, preparation and previous or subsequent conduct.	In explanation. And in illustrations "vakils" is replaced by "advocates" "man" is replaced by "person" and "ravished" is replaced by " raped".
7	9	Facts necessary to explain or introduce fact in issue or relevant facts.	Words "fact in issue or" are added in the heading. "A" is replaced by "he".
8	10	Things said or done by conspirator in reference to common design.	No change except in illustrations, "Government of India" is replaced by "State", and city names are changed from Calcutta to Kolkata, Bombay to Mumbai, and Kabul to Singapore.
9	11	When facts not otherwise relevant become relevant.	No Change except in illustrations cities names are changed from Calcutta to Chennai and Lahore to Laddakh.
10	12	Facts tending to enable Court to determine amount are relevant in suits for damages.	No change except in the heading, where the words "In suits for damages" are placed at the end instead of the beginning.
11	13	Facts relevant when right or custom is in question.	No change.
12	14	Facts showing existence of state of mind, or of body or bodily feeling.	In illustrations, word "coin" is replaced by "currency" and "carriage" is replaced by "cars".
13	15	Facts bearing on question whether act was accidental or intentional.	In illustrations, word "rupee" is replaced by "currency".
14	16	Existence of course of business when relevant.	No change.
15	17	Admission defined.	No change.
16	18	Admission by party to proceeding or his agent.	Headings of paragraphs are excluded and written as subsections and clauses.
17	19	Admissions by persons whose position must be proved as against party to suit.	No change.
18	20	Admissions by persons expressly referred to by party to suit.	No change.
19	21	Proof of admissions against persons making them, and by or on their behalf.	Word "coin" is replaced by "currency".
20	22	When oral admissions as to contents of documents are relevant.	No change
21	23	Admissions in civil cases when relevant.	Words "barrister, pleader, attorney or vakil" are replaced by "advocate".
22(1)	24	Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding.	The word "coercion" is added. Section 28 IEA and Section 29 IEA are given as provisos to Section 22 of the BSA. Heading is dropped as sections are included as provisos.
First proviso to section 22	28	Confession made after removal of impression caused by inducement, threat or promise, relevant.	Heading is dropped as section is included as proviso
Second proviso to section 22	29	Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.	Heading is dropped as section is included as proviso.
23(1)	25	Confession to police officer.	Words "not to be proved" are excluded from heading.
23(2)	26	Confession by accused while in custody of police not to be proved against him.	Heading is dropped as the section is included as a subsection. Word "whilst" is replaced by "while" and words "such person" are replaced by "him".
Proviso to section 23	27	How much of information received from accused may be proved.	Heading is dropped as the section is included as proviso.
24	30	Consideration of proved confession affecting person making it and others jointly under trial for same offence.	A new explanation II is added, mentioning that "A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be deemed to be a joint trial for the purpose of this section."
25	31	Admissions not conclusive proof, but may estop.	No change.
26	32	Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.	Word "namely" is added and headings of subsections are dropped. In illustration word "ravished" is replaced by "raped" and word "banya" is replaced by "business".
27	33	Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated.	No change except that word "that" is replaced by "and" in proviso.
28	34	Entries in books of account when relevant.	No change except the words "include those maintained in an electronic form" are excluded from the heading.
29	35	Relevancy of entry in public record or an electronic record made in performance of duty.	No change
30	36	Relevancy of statements in maps, charts and plans.	No change
31	37	Relevancy of statement as to fact of public nature contained in certain Acts or notifications.	Words "any Act of Parliament 4 (of the United Kingdom) or or in any 5 Central Act, Provincial Act or 6 a State Act or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony, or possession of his Majesty is a relevant fact." are replaced by "any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact".
32	38	Relevancy of statements as to any law contained in law books including electronic or digital form.	Words "including in electronic or digital form" are added in heading as well as in the main text of the section.
33	39	What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.	No change.
34	40	Previous judgments relevant to bar a second suit or trial.	No change.
35	41	Relevancy of certain judgments in probate, etc., jurisdiction.	The word "Tribunal" is added. Paragraph "Such judgment, order or decree is conclusive proof that" is given as subsection (2) and conditions under this are enumerated as (i), (ii), (iii), and (iv). The word "that" is excluded.
36	42	Relevancy and effect of judgments, orders or decrees, other than those mentioned in section35[41 IEA].	No change.
37	43	Judgments, etc., other than those mentioned in sections 34, 35 and 36 [40to 42 IEA] when relevant.	No change.
38	44	Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.	No change.
39(1)	45	Opinions of experts.	Words "or any other field" are added. Thus, scope is expanded greatly.
39(2)	45A	Opinion of Examiner of Electronic Evidence.	Heading is dropped as section is added as a subsection.
40	46	Facts bearing upon opinions of experts.	No change
41(1)	47	Opinion as to handwriting and signature, when relevant.	Words "and signature" are added in heading.
41(2)	47A	Opinion as to electronic signature, when relevant.	Heading is dropped as section is added as a subsection.
42	48	Opinion as to existence of general custom or right, when relevant.	No change
43	49	Opinion as to usages, tenets, etc., when relevant.	Paragraphs are numbered as clauses (i), (ii) and (iii).
44	50	Opinion on relationship, when relevant	No change
45	51	Grounds of opinion, when relevant.	No change
46	52	In civil cases character to prove conduct imputed, irrelevant.	No change
47	53	In criminal cases previous good character relevant.	No change
48	53A	Evidence of character or previous sexual experience not relevant in certain cases.	No change
49	54	Previous bad character not relevant, except in reply.	No change
50	55	Character as affecting damages.	No change
51	56	Fact judicially noticeable need not be proved.	No change
52	57	Facts of which Court shall take judicial notice.	Paragraphs are numbered as subsections (1) and (2), and facts enumeration as (1) to (13) is replaced by alphabetic clauses (a) to (1), excluding (2), (3), and (5). These exclusions remove colonial vestiges from the text. A new clause (b) is newly added, mentioning "international treaty, agreement or convention with country or countries by India, or decisions made by India at the international associations or other bodies;".
53	58	Facts admitted need not be proved.	No change.
54	59	Proof of facts by oral evidence.	Words "or electronic records" are excluded.
55	60	Oral evidence to be direct.	In heading word "must" is replaced by "to" and paragraph are numbered as clauses (i), (ii), (iii)and (iv). Word "also" is replaced by "further".
56	61	Proof of contents of documents.	No change
57	62	Primary evidence.	4 new explanations are added.
58	63	Secondary evidence.	Words "means and" are excluded and three new clauses (vi), (vii), and (viii) are added.
59	64	Proof of documents by primary evidence.	No change.
60	65	Cases in which secondary evidence relating to documents may be given.	The word "namely" is added and paragraph of clause (a) are numbered as (i), (ii), and (iii).
61	NEW	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	65A	Special provisions as to evidence relating to electronic record.	No change
63	65B	Admissibility of electronic records.	Words "or semiconductor memory" "or any communication device or otherwise stored, recorded, or copied in any electronic form" is added in subsection (1). Words "communication device", "create" are added in subsection (2). In subsection (3), the word "computer" is replaced by "by means of one or more computers or communication devices," and new clauses (a) to (e) are added newly. In subsection (4), the words "that is to say" are replaced by "shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:". The words "or a communication device referred to in clauses (a) to (e) of sub-section (3)" are added to clause (b) of subsection (4), and in clause (c), the words "person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities" are replaced by "person in charge of the computer or communication device or the management of the relevant activities". The words "and an expert" and "in the certificate specified in the schedule" are added. Clause (b) of subsection (5) of IEA is excluded and now (c) corresponds to (b), where words "communication device" and "or by other electronic means as referred to in clauses (a) to (e) of sub- section (3)". are added.
64	66	Rules as to notice to produce.	"attorney or pleader" is replaced by "advocate or representative".
65	67	Proof of signature and handwriting of person alleged to have signed or written document produced.	No change.
66	67A	Proof as to electronic signature.	No change.
67	68	Proof of execution of document required by law to be attested.	No change.
68	69	Proof where no attesting witness found.	Words "or if the document purports to have been executed in the United Kingdom" are excluded.
69	70	Admission of execution by party to attested document.	No change.
70	71	Proof when attesting witness denies execution.	No change.
71	72	Proof of document not required by law to be attested.	No change.
72	73	Comparison of signature, writing or seal with others admitted or proved.	Paragraph are numbered as Subsections (1), (2) and (3).
73	73A	Proof as to verification of digital signature.	No change
74(1)	74	Public and private documents.	The words " and private" are added in the heading. The words "any part of' and "or of the commonwealth" are excluded.
74(2)	75	Public and private documents	The words "or Union territory" and "except the documents referred to in sub-section (1)" are added.
75	76	Certified copies of public documents.	No change.
76	77	Proof of documents by production of certified copies.	No change.
77	78	Proof of other official documents.	The conditions' enumeration as (1) to (6) is changed to (a) to (f). The expressions "or of the Crown Representative", "or, as the case may be, of the Crown Representative;", "Her Majesty] or by the Privy Council, or by any department of Her Majesty's Government" and "London Gazette, or purporting to be printed by the Queen's Printer;" are excluded. The words "Ministries and" "or Union territory Administration", "Parliament or a State" and "President of India or the Governor of a State or the Administrator or Lieutenant Governor of a Union territory, by copies or extracts contained in the Official Gazette;" are added.
78	79	Presumption as to genuineness of certified copies.	The words "or by any officer [in the State of Jammu and Kashmir] who is duly authorised thereto by the Central Government:" are excluded and paragraph are numbered as subsections.
79	80	Presumption as to documents produced as record of evidence, etc.	The word "that" is excluded and paragraph are numbered as clauses (i), (ii) and (iii).