Admissibility of Electronic Records (Section 65 BSA)

The BSA significantly strengthens the framework for admissibility of electronic records, bringing it in line with modern technological advancements.

Conditions for admissibility

• Section 65(1) BSA: Outlines the conditions under which computer output (including electronic records) can be admitted as evidence. The computer output must be a document produced by a computer, purporting to be a certificate duly certified by the person controlling the computer, and the certificate must satisfy certain conditions.

• Conditions for Certificate: The certificate must state that the computer output concerns the proceedings, the computer was operating correctly, the data was fed by a competent person, the computer was not tampered with, and the output is a true copy.

Certificates for computer output

• Section 65(1) BSA: As detailed above, this section mandates a certificate for computer output to be admissible.

• Section 65(2) BSA: Requires the person giving the certificate to depose in court or be produced for cross-examination upon request.

Videography of Search, Seizure and Statements (Cross-referencing with BNSS)

The BSA incorporates the mandate for videography for critical investigative steps, aligning with similar provisions in the BNSS to enhance transparency.

Section 47(2) BSA

• Search and Seizure: While Section 47(2) might refer to general search procedures, the specific mandate for videography of searches and seizures is found in Section 47(5) BSA, stating that the process of search and seizure shall be videographed.

Section 173(1)(a) BNSS

• Statements: Section 173 BNSS mandates videography of statements of victims and accused. Correspondingly, the BSA (Section 173(5) and (6)) makes it mandatory to record statements of victims and accused through audio-video electronic means and to videograph them.

• Purpose: This ensures accuracy, prevents malpractices, and enhances the reliability of evidence.

Use of Digital Evidence

• Broader Scope: The BSA acknowledges and provides a framework for the admissibility of digital evidence beyond just computer output, covering various forms of electronic records.

• Reliance on IT Act: The admissibility of digital evidence is heavily reliant on the provisions of the Information Technology Act, 2000, as well as the procedures laid down in BSA for collection and proof.

Presumption as to Digital Records

The BSA introduces or clarifies presumptions related to digital records to aid in their admissibility.

Section 103 BSA

• Likely Content: Section 103 BSA (likely concerning presumptions as to grants and title deeds of certain dates) might be a general section on ancient documents. However, specific presumptions relating to digital records would be covered under sections dealing with electronic evidence, possibly within Sections 65 to 70 BSA.

• Presumption of Authenticity: Courts may presume the authenticity of digital records that are properly authenticated and produced, especially if they meet the criteria for admissibility.

Victim's statements in sexual assault cases (Section 28 BSA)

The BSA introduces special provisions for recording the statements of victims of sexual offences.

Special provision for victim's statement in rape/sexual assault cases

• Section 28 BSA: Mandates that the statement of a victim of rape or sexual assault shall be recorded by a woman police officer or a police officer in the presence of a woman interpreter or social worker, as soon as possible after the commission of the offence.

• Videography: Further, these statements are to be recorded by audio-video electronic means and videographed (Section 173(5) & (6) BNSS, which BSA aligns with).

• Purpose: This ensures sensitivity, confidentiality, and accuracy in recording statements from vulnerable victims.

Testimony of Child Witness

The BSA addresses the competency and testimony of child witnesses.

Section 59 BSA: Competency of child witness

• Competency: Section 59 BSA (likely corresponding to Section 118 Indian Evidence Act) states that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, or any cause.

• Child Witness: This means a child witness is competent if they understand the duty to tell the truth and can give rational answers. The court determines competency.

• Safeguards: Special procedures (like videography of statements, presence of a guardian or social worker) may be employed to ensure the child witness feels comfortable and can provide accurate testimony.

Imprisonment for giving false evidence

The BSA reiterates the penal provisions for perjury.

Section 228 BSA

• Penalty: Section 228 BSA (likely corresponding to Section 193 of the Indian Penal Code, which deals with punishment for giving false evidence) states that whoever intentionally gives false evidence in any proceeding, or fabricates evidence intending that such evidence shall be used in any judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

• Purpose: To deter witnesses from lying under oath and to maintain the integrity of the justice system.

Changes in the definition of "evidence"

• Inclusion of Electronic Records: The definition of "document" in Section 2(d) BSA now explicitly includes "electronic records." This broadens the scope of what can be considered documentary evidence.

• Definition of Evidence: Section 3(1)(i) defines "oral evidence" and Section 3(1)(j) defines "documentary evidence," which now includes electronic records. This integration signifies a major modification, bringing digital information under the umbrella of evidence.

Relevancy of character evidence of women in sexual offence cases

Section 55 BSA

• Modification: Section 55 BSA introduces specific rules for the relevancy of a woman's character in criminal proceedings for offences under specific BNS sections (likely related to sexual offences). It states that evidence of character of a woman is relevant when it goes to the root of the complaint.

• Purpose: This provision aims to balance the need to allow relevant character evidence that might impact the case (e.g., to rebut allegations of consent or fabrication) with the protection of victims from unnecessary character assassination. It seeks to ensure that such evidence is used judiciously and only when it is central to the offence charged.

Clarification on admissibility of confessions

• Section 21 & 22 BSA: While the core rules regarding voluntary confessions remain, the BSA likely clarifies or reorganizes these provisions. Section 22 BSA specifically addresses confessions made under inducement, threat, or promise, rendering them irrelevant. The emphasis on voluntariness is maintained and potentially reinforced.

• Custodial Confessions: The strict rule against confessions made during police custody unless in the presence of a Magistrate (Section 22(2) BSA) is maintained.

Changes in rules of examination of witnesses

• Timeliness and Efficiency: While the fundamental rules of examination-in-chief, cross-examination, and re-examination remain largely similar, the BSA's overall objective of speedy trials might influence how these stages are conducted, potentially with greater emphasis on adhering to court timelines.

• Use of Technology: The facilitation of audio-video electronic means for recording statements (Section 173 BNSS, mirrored in BSA) and the competency of child witnesses (Section 59 BSA) indirectly modify how witnesses might be examined, allowing for more flexibility and potentially remote testimonies.