Que 1: Write in brief about Bhartiya Sakshya Adhiniyam/Describe Bhartiya Sakshya Adhiniyam/Wirite an Essay on Bhartiya Sakshya Adhiniyam/Write a short note on the prliminary Sections of BSA
Ans :
Introduction
- Bhartiya Sakshya Adhiniyam 2023, which was earlier known as Indian Evidence Act 1872 is a major Act is laids down the provisions for evidences to be allowed in Indian Courts.
- The Bhartiya Sakshya Adhiniyam 2023, got the assent from the president on 25th of July 2023 and came into effect from 1st July 2024 with the objective to consolidate and to provide general rules and principles of evidence for fair trail in Indian Courts.
- There are certain changes in Bhartiya Sakshya Adhiniyam 2023 as compared to the old and repealed Indian Evidence Act 1872. One of such major change is that the Indian Evidence Act was not applicable in court martial(i.e Army Court) along with affidavits and arbitrators. However the new Bhartiya Sakshya Adhiniyam, as per section 1, is applicable to all judicial proceedings including court martial but not in affidavits and arbitrators.
- The act applies to both civil as well as criminal proceedings.
- However it is important to note that, BSA is not exhaustive that is not all the rules related to evidence is contained in this subject. Many general rules of evidence in provided in Code of Civil Procedure, 1908.
- Bhartiya Sakshya Adhiniyam 2023 or BSA consists of 4 parts, 12 Chapters, 170 Sections and 1 Schedule.
Features of the Act
- BSA is a Lex Fori:
Bhartiya Sakshya Adhiniyam is a lex fori that is Law of Forum or Law of Land. This
means that it is applicable to the land or area for which it was made applicable for. For example, for the Evidence rules for India we will have to look Bhartiya Sakshya Adhiniyam (Indian Evidence Act, 1872) but for evidence rules in Pakistan the Indian Evidence Act will not work. the Evidence act of that country will work for that particular country.
2. Applicable to All Judicial Proceedings:
According to section 1 of Bhartiya Sakshya Adhiniyam, the act is applicable to all Judicial Proceedings including court martial and excluding Arbitrators and Affidavits. This means that now the rules of Evidence will not be different in the Army court(that is court martial) . And that they are also required to comply with the rules and regulations given under the act and not by Army Act, Naval Discipline Act, Indian Navy Act ect.
SUDHA DEVI VS. MP NARAYAN
- Affidavits are not included in the the definition of "Evidence" in Section 3 of Indian Evidence Act.
- Affidavits can be used as evidence only if for sufficient reason court permits or passes an order under Order XIX rule 1 or 2 of the Code of Civil Procedure.
- Even in the absence of a defence, the court cannot pass an ex-parte decree without relevant evidence.
3. Convenience Source of Evidence Law:
Bhartiya Sakshya Adhiniyam 2023 got its assent on 25th of July 2023, with the primary intention of making the evidence act easy to understand and laid down new rules relating to evidence as according to the changes in society. When we compare Bhartiya Sakshya Adhiniyam with Indian Evidence Act we find that the new law, that is Bhartiya Sakshya Adhiniyam, has all the definitions arranged in alphabetical order which were scattered in Indian Evidence Act. Also we find that many similar rules in Indian Evidence act have been clubbed together in Bharitya Sakshya Adhiniyam so that we can understand it well.
4. Based on the new era of technologies:
As the days as passing by, we are heading towards a much more technological driven world. It is interesting to see that the new evidence act that is Bhartiya Sakshya Adhiniyam 2023 includes the form of documents and evidences in electronic form which this new era demands.
For example, now the definition of document that is section 2(d) of bhartiya sakshya adhiniyam included electronic and digital records.
5. Primary law for governing applicability of Evidence:
Bharitya Sakshya Adhiniyam will serve the same purpose that The Indian Evidence Act 1872 use to serve that is governing the applicability of rules of Evidence in all Judicial proceedings except in Arbitration and Affidavits. Each and every case, whether civil or criminal, has to comply with the rules of evidence given under this act to prove the existence or non-existence of any fact in issue or relevant fact.
Definitions
As per section 2 of Bhartiya Sakhshya Adhiniyam the following are the definitions mentioned in the act in simple words for the understanding to provisions given under the act -
Section 2(a): Court - includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.
Section 2(b): Conclusive Proof - when one fact is declared by this Adhiniyam to the conclusive proof of another, the court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
Section 2(c): Disproved - when after considering the matter the court believes that the fact/matter either does not exist or consider its non existence so probable that a prudent man under ordinary circumstances believes that it does not exist.
Section 2(d): Document - Any matter recorded upon any substance be means of letters, figures or marks, with intention to be used in future and included electronic and digital records.
Section 2(e): Evidence - means and includes-
(1) all statements including statements given electronically, this is called oral evidence.
(2) all documents including electronic and digital records produced for inspection of the court, this is called documentary evidence.
Section 2(f): Fact - means and includes-
(1) Anything, state of things or relation of things capable of being perceived by the senses
(2) any mental condition, opinion of a person etc.
Section 2(g): Fact in Issue - means the primary reason which the parties are in dispute with and which is required to be proved by giving relevant facts.
Section 2(h): May presume - whenever the court "may presumes" a fact it means that the court regards such fact as proved unless and until it is disproved and the court can also call for proof of it.
Section 2(i): Not proved - a fact is said to be not proved when it is neither proved nor disproved.
Section 2(j): Proved - A fact is said to be proved when after considering the matter before it the court believed it to exist or consider it to be so obvious that any prudent man under ordinary circumstances believes it to exist.
Section 2(k): Relevant - when a fact is related or closely connected to with other fact then it is called a relevant fact.
Section 2(l): Shall Presume - Whenever a court "Shall Presumes" a fact regards such fact as proved unless and until it is disproved.
Types of Evidence
Broadly, Evidence can be divided into the following types -
(1) Oral Evidence -
- as per Section 2(e)(i) of Bhartiya Sakshya Adhiniyam, "all statements including statements given electronically which the court permits or requires to be made before it by witnesses in relation to matter of fact under enquiry."
STATE OF MAHARASHTRA VS PRAFULLA B DESAI, 2001- The court held that the oral evidence can be recorded through video conferencing and the presence under section 273 of CrPC does not only mean physical presence but also virtual Presence.
(2)
Documentary Evidence-- as per section 2(e)(ii) of Bhartiya Sakshya Adhiniyam, " All document including electronic or digital records produced for the inspection of the court , such documents are called documentary evidence."
- Documentary evidence is also called written evidence.
- as per section 20 of bhartiya sakshya Adhiniyam, "oral admissions of the contents of a document is not relevant unless, a party proposing to prove them show that he is entitled to give secondary evidence or the authenticity of the document is in question.
(3)
Circumstantial Evidence-- Circumstantial Evidence is not expressly mentioned in Bhartiya Sakshya Adhiniyam.
- Such types of evidences helps the court to make presumptions based on circumstances of the case or matter and thus is not substantive in nature, this means that the court cannot make a judgement or order or decree based on presumptions made on the basis of circumstantial evidence.
(4)
Medical Evidence- - The Indian Evidence Act 1872 or The Bhartiya Sakshya Adhiniyam 2023 given a lot of weightage to medical evidence especially in criminal trials related to rape, murder etc.
- Medical Evidence forms a substantive proof of evidence as it is scientifically supported with facts and reasons.
- The opinion of Doctors as an expert also forms an important and relevant fact as per section 39 of Bhartiya Sakshya Adhiniyam.
(5)
Child Witness-- A child can be a witness provided that he/she understands the questions and answer them rationally.
- As per section 26 of Bhartiya Sakshya Adhiniyam 2023, dying declaration can be given to any person including a child as the concept of dying declaration is based on the principle of necessity.
(6)
Eye Witness- Eye witness is someone who has seen the event/crime/incident and is able to describe it. The statements disclosed by eye witness can be considered as facts as facts includes something that we can receive from our sense organs and eye is one of our sense organ.\
- It forms an important piece of evidence as the testimony of the eye witness is often considered as a substantive piece of evidence.
(7)
Chance Witness- Chance witness is someone who is believed to be present at the scene during the happening of an event.
- Supreme Court of India has often ruled that the evidence of the chance witness should not be dismissed as it can be proved with corroborations.
Presumptions
- Presumptions refers to assumptions drawn from a fact or situation.
- Cambridge Dictionary defines Presumptions as " the fact of believing that something is true without having any proof"
- Black Law's Dictionary Defines Presumption as "a rule of law, statutory or judicial, by which finding of a basic fact give rise to existence of presumed facts, until presumption is rebutted.
- Presumptions under law can be broadly divided into two types :
- Presumption of Fact-
- Presumption of facts are naturally derived and is based on reasons, logic., human conduct, customs and so on.
- Such type of Presumption is rebuttable in nature that is the parties can provide evidences to disprove such facts.
- In legal terms, Presumption of Fact is called Presumptio Huminis.
- Under Bhartiya Shakshya Adhiniyam, May Presume is Presumption of Fact.
- May Presume under section 2(h) means that if a court may presume a fact, it may either regard such fact as proved unless and until it is disproved or may call for proof of it.
2. Presumption of Law-
- Presumption of law are artificially made laws which supports fair and equal justice to all.
- Such type of Presumptions are generally not rebuttable in nature reason being that it is made by the authorities and is generally accepted in a country in order to maintain a civic society. That is, such presumptions are mandatory to follow.
- In legal terms, Presumption of Law is called Presumptio Juris.
- Under Bhartiya Sakshya Adhiniyam, Shall presume and conclusive proof falls under the category of Presumption of Law.
- Shall Presume under section 2(l) means that if a court shall presume a fact then it regards such fact as proved, unless and until it is disproved.
- Conclusive Proof under section 2(b) means that when one fact is declared to be conclusive proof of other then the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given to disprove it.
Conclusion
- The preliminary part of Bhartiya Sakshya Adhiniyam helps us to under stand the applicability of the evidence act and the major definitions that we should know in order to comprehend the subject well.
- It is however important to note that Bhartiya Sakshya Adhiniyam does not provide extensive list of definitions of the words used in the subject. Many Definitions are not provided in the section but have the same meaning as provided under Information technological Act 2000, Bhartiya Nyaya Sanhita etc.
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