Legal Auctor

KEY CHANGES: Upon prima facie analysis of the Bhartiya Sakshya Adhiniyam (“hereinafter referred as BSA,2023”), it is observed that with the new statute, the legislature has attempted to make following changes:

A. Inculcation of Electronic and Digital Records – The legislature has added the terms of electronic and digital records in the following sections to meet the need of the current hour-

Sec.2(1)(d) definition of document,
Sec.2(1)(e ) definition of evidence,
Sec.28, Entries in books of account when relevant,
Sec.31 Relevancy of statement as to fact of public nature contained in certain Acts or notifications,
Sec.32 Relevancy of statements as to any law contained in law books including electronic or digital form,
Sec.61 New Electronic or digital record,
Sec.63 Admissibility of electronic records,
Sec.81 Presumption as to Gazettes in electronic or digital record,
Sec. 85 Presumption as to electronic agreement and
Sec.93 Presumption as to electronic records five years old.  

B. Removal of archaic terms and nomenclature as per current scenario-

Sec. 8 Things said or done by conspirator in reference to common design, where “Government of India” is replaced by “State”, and city names are changed from Calcutta to Kolkata, Bombay to Mumbai, and Kabul to Singapore.

Sec.31 Relevancy of statement as to fact of public nature contained in certain Acts or notifications where Words “any Act of Parliament 4 (of the United Kingdom) 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 purport,

Sec. 77 Proof of other official documents. 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 substituted with 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;”

Sec.78 Presumption as to genuineness of certified copies. The words “or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government:” is removed,

Sec. 80 Presumption as to Gazettes, newspapers, [private Acts of parliament] and other documents. the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen’s Printer” are replaced by “the Official Gazette”.

Sec. 88 Presumption as to certified copies of foreign judicial records ” any country not forming part of India or of Her Majesty’s Dominions” is replaced by “beyond India”.    

C. Introduction of new provisions to avoid delay in proceedings and broadening the scope of the statute

Sec.24 Consideration of proved confession affecting person making it and others jointly under trial for same offence. A new explanation 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.

Sec.52 Facts of which Court shall take judicial notice. 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;”.

Sec. 57 Primary evidence. Where four explanations from 4 to 7 are added that determines digital records that occur simultaneously or sequentially in multiple files, produced from proper custody,  recording of transmitted/broadcasted video and  multiple storage spaces in a computer resource, each such automated storage, including temporary files respectively as primary evidence.

Sec. 165 Production of documents. New proviso is added to the subsection (3), which considers the requirement of a document to be translated and to be kept secret by the translator unless is directed by such court that it is to be given as evidence. It also liberates the executive by stating that “no Court shall require any communication between the Ministers and the President of India to be produced before it.”

Sec. 170 Repeals and Savings Provision Repealing the Indian Evidence Act, 1872  

D. STRUCTURAL DIFFERENCES-

Although majority of the provisions Indian Evidence Act, (hereinafter referred as IEA,1872) are kept intact in the BSA, 2023, the current statute is more structured and has reformed the enumeration that existed in the former legislation. The variation/difference in the two statutes can be perused in the following manner:

Provision in BSA, 2023	Provision in IEA, 1872 respectively	Deviation of serial	Inference/Observation
Sec.1	Sec.1	–	No change, however the extent of the statue is not present in BSA, 2023
Sec.2 (All definitions)	Sec.3 and Sec.4	-2 (the enumeration in BSA is 2 less the one which exists in IEA.	Since Sec.2 is repealed and Section 3 & 4 are inculcated together with the definitions
Sec.3 to Sec.21	Sec.5 to Sec. 23	-2	As continued from above
Sec. 22	Sec. 24	-2	,,
Sec. 22 (first proviso)	Sec. 28		Section 28 & 29 relating to confessions is put together in section 22 of the later Adhiniyam
Sec. 22 (section proviso)	Sec.29		,,
Sec.23 (1)	Sec. 25	-2	As continued from above
Sec.23 (2)	Sec. 26		Provisions relating to Confessions to Police are placed together
Sec 23. (Proviso)	Sec. 27		,,
Sec. 24 to 38	Sec.30 to Sec 44	-6	Difference between the provisions has further decreased by four due to assortment of section 28& 29 of IEA in Sec. 22 of Adhiniyam and Sec. 25,26 & 27 of IEA in Sec. 23 of Adhiniyam
Sec. 39 (1)	Sec. 45	-6
Sec.39 (2)	Sec.45 A		Provisions relating to opinion  are placed together
Sec. 40	Sec. 46	-6	Continued from above
Sec. 41 (1) & Sec.41 (2)	Sec. 47 & Sec. 47A respectively	-6	Provisions relating to opinion  are combined together
Sec. 42 to Sec.47	Sec. 48 to Sec.53	-6	Continued from above
Sec. 48	Sec.53 A	–	–
Sec. 49 to Sec.60	Sec 54 to Sec.65	-5	Due to fresh numbering of section 53 A
Sec. 61	–	–	Newly added provision
Sec. 62	Sec. 65 A	–	–
Sec.63	Sec. 65 B	–	–
Sec.64 to Sec.65	Sec 66 to Sec.67	-2	Due to fresh numbering of section 65 A & B
Sec. 66	Sec. 67 A	-1	Due to fresh numbering of section 67 A
Sec. 67 to  Sec.84	Sec. 68 to Sec. 65	-1	Continued from above
Sec.85	Sec. 85 A	–	–
Sec.86	Sec. 85 B
Sec.87	Sec. 85 C
Sec.88 to 92	Sec. 86 to Sec.90	+2	Due to fresh numbering of sections from 85 A to C
Sec.93	Sec.90 A
Sec. 94 to Sec.114	Sec. 91 to Sec.111	+3	Due to fresh numbering of section 90A
Sec.115	Sec.111A	–
Sec.116 to	Sec.112	+4	Due to fresh numbering of section 111A
Sec.117	Sec.113 A
Sec.118	Sec.113 B
Sec.119	Sec. 114
Sec.120	Sec. 114 A
Sec.121 to Sec.131	Sec. 115 to Sec.125	+6	Due to fresh numbering of Sec.113 B and Sec. 114 A
Sec.132 (1), (2) & (3)	Sec.116 & Sec.117
Sec. 133 to Sec.145	Sec.128 to Sec.140	+5	Provisions relating to professional communications are placed together
Sec.146 ( 1 to 4)	Sec.141 to Sec.143		All aspects relating to leading witness are placed together
Sec.147 to Sec.168	Sec.144 to Sec. 165	+3	Due to collective provision of Sec.146
Sec.169	Sec.167
Sec.170	–	–	New provision of Repeals and Savings

E. MINOR TRANSITIONS- Apart from the abovementioned changes, the present Adhiniyam comprises of following changes in the verbatim throughout the statute-

1. “Act” is replaced with “Adhiniyam”.
2. “banya” is replaced by “business”.
3. “barrister, pleader, attorney or vakil” are replaced by “advocate” 
4. “carriage” is replaced by “cars”.
5. “coin” /”rupee” is replaced by “currency”
6. “employment” is replaced by “service”.
7. “legal professional adviser” is replaced by “legal adviser”
8. “Lunatic” is replaced by “A person of unsound mind”
9. “man” is replaced by “person” and”or servants of barristers, pleaders, attorneys and vakils” are replaced by “or employees of advocates”.”provincial” is replaced by “regional”.
10. “ravished” is replaced by ” raped”.
11. “section 498A of the Indian Penal Code (45 of 1860)” are replaced by “section 86 of the Bharatiya Nyaya Sanhita, 2023”
12. “son” is replaced by “child” “the Indian Penal Code (45 of 1860)” are replaced by “the Bharatiya Nyaya Sanhita, 2023”.
13. “the Indian Succession Act, (10 of 1865)” are replaced by “the Indian Succession Act, 1925 (39 of 1925)”. The words “section 304B of the Indian Penal Code (45 of 1860)” are replaced by “section 80 of the Bharatiya Nyaya Sanhita, 2023”