Definition of Document (Section 2(d) BSA)

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides a broad definition of "document" to encompass various forms of recorded information.

Includes any matter expressed or described upon any substance by means of letters, figures, marks, or symbols

• Definition in BSA: Section 2(d) of the BSA defines "document" as including any matter expressed or described upon any substance by means of letters, figures, marks, or symbols, intended to be used, or which may be used, in relation to any such matter.

• Scope: This definition is comprehensive and includes not only traditional written documents but also anything that conveys information through written, printed, or symbolic means.

• Examples: Books, maps, charts, photographs, inscriptions on stones or metals, audio recordings, video recordings, and importantly, electronic records.

• Purpose: This broad definition ensures that a wide range of recorded information can be presented as evidence, adapting to evolving methods of documentation.

Proof of Documents

The BSA outlines the methods by which documents, both public and private, can be proven in court.

Primary Evidence (Section 62 BSA)

• Definition: Primary evidence means the document itself produced for the inspection of the Court. If there are several originals of a document, each is primary evidence of the contents of the document.

• Requirement: Generally, the original document must be produced as the best evidence of its contents.

Secondary Evidence (Section 63 BSA)

• Definition: Secondary evidence includes certified copies of documents, copies made from the original by mechanical processes ensuring accuracy, copies compared with the original, counterparts, and oral accounts of the contents by someone who has seen or heard it.

• Admissibility: Secondary evidence is admissible only when the original document cannot be produced, subject to conditions specified in Section 64 BSA (e.g., original lost, destroyed, or in possession of adverse party).

Proof of Handwriting and Signatures (Section 67 BSA)

• Requirement: If a document is alleged to be signed or written by a person, the signature or handwriting must be proved to be that person's own.

• Methods: This can be done through direct evidence of the person who signed/wrote it, evidence of someone acquainted with the handwriting/signature, expert opinion, or by comparison of admitted handwriting (Section 73 BSA).

Proof of Execution of Documents

For certain documents, the law requires proof of their execution beyond just proving the signature.

Documents requiring attested signature

• Section 68 BSA: If a document is required by law to be attested, its execution must be proved by calling at least one attesting witness, if alive and available. If no attesting witness can be found, it must be proved that the document was signed by the person purporting to have signed it, and that it was attested by the witness in the manner required by law.

Proof of Public Documents (Sections 35-40 BSA)

Public documents have specific modes of proof, often allowing for certified copies to be used as primary evidence.

• Definition of Public Document: Section 35 BSA defines public documents broadly, including records of acts done by public servants, public records of private documents, etc.

• Proof Methods:

  • Certified Copies: Public documents can generally be proved by producing certified copies (Section 76 BSA).

  • Section 37 BSA: Entries in public registers made in course of business.

  • Section 38 BSA: Statements in maps, charts, etc.

  • Section 39 BSA: Production of Court Records.

  • Section 40 BSA: Production of documents from evidence in other cases.

Admissibility of Electronic Records (Section 65 BSA)

Section 65 of the BSA, likely corresponding to Section 65B of the Indian Evidence Act, 1872, deals with the admissibility of electronic records.

Conditions for admissibility

• Admissibility: Notwithstanding anything contained in Section 64, any electronic record shall be deemed to be a public document within the meaning of Section 35, if it is kept in any State in public records for the purpose of applying for and obtaining any license, permit, certificate, or other instrument.

• General Admissibility: However, the primary conditions for admissibility of electronic evidence are detailed in the subsequent sections, particularly concerning proof of authenticity.

• Primary conditions for admissibility of electronic records often include:

  • Authenticity: The record must be shown to be what it purports to be.

  • Integrity: The record must not have been altered or tampered with.

  • Compliance with Procedures: Evidence collected using digital tools must adhere to the procedures laid down in the BNSS (e.g., videography, proper seizure).

Certificates for computer output

• Section 65(1) BSA: This section specifies that in any proceedings where it is desired to give evidence of any document produced by a computer (commonly referred to as "computer output"), the same may be given in evidence of the existence of any fact stated in the said document by the production of:

  • The said document in its original form; or

  • A copy of it purporting to be duly certified by the person by whom the computer was, or in whose control it was, kept.

• Certificate Conditions: The certificate authenticating the computer output must state:

  • That the computer output concerns the proceedings.

  • That the computer was operating properly and correctly.

  • That the data was fed into the computer by a person competent to do so.

  • That the computer was not tampered with.

  • That the output is a true copy of the information contained in the original.

• Purpose: These conditions ensure the reliability and authenticity of computer-generated evidence.

Proof of Electronic Records

• Section 65(2) BSA: Requires that the person giving the certificate (mentioned above) shall also depose in court in the first instance, or shall upon the request of any party to the proceedings or the judicial authority, be produced for the purpose of cross-examination.

• General Proof: Proof of electronic records follows similar principles as other documentary evidence – they must be proved to be authentic and accurate.

• Methods:

  • Production of the original electronic record (e.g., the device or file itself).

  • Certified copies of electronic records (if permitted by law).

  • Statements from the person who operated the computer or managed the electronic system, accompanied by a certificate attesting to its accuracy (as per Section 65(1) BSA).

  • Expert testimony regarding digital forensics.

Validity of Electronic Signatures

• BSA Provisions: The BSA likely contains provisions, possibly in line with the Information Technology Act, 2000, that govern the validity and proof of electronic signatures.

• Legal Recognition: Electronic signatures are generally recognized as legally valid for authenticating electronic records, similar to traditional signatures for paper documents.

• Proof: The authenticity of an electronic signature would need to be proven, often through testimony of the person who applied it or through expert evidence on the cryptographic methods used.

Interception, monitoring, or decryption of electronic records

• Legal Framework: While the BSA focuses on the admissibility of evidence, the power to intercept, monitor, or decrypt electronic records is governed by specific laws like the Information Technology Act, 2000, and provisions within the Bharatiya Nagarik Suraksha Sanhita (BNSS) that relate to search and seizure or obtaining information.

• Admissibility of Intercepted Data: If electronic records are legally intercepted, monitored, or decrypted under proper legal authority, they can be admissible as evidence, provided their authenticity and integrity can be established according to the rules of evidence.

• Purpose: These powers are crucial for law enforcement agencies to gather evidence in cases involving cybercrimes, terrorism, and organized crime.