Introduction
The Indian Evidence Act, 1872 (IEA) has been replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), marking a significant step towards modernizing India's justice delivery system. This new legislation aims to streamline, modernize and simplify the presentation and interpretation of evidence in court.
IEA was originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, and is over 150 years old. Notwithstanding the amendments to the IEA over the years, it had far outlived its efficacy, as it was enacted when technology was unheard of and rather than amend the law for this new age, it was best to replace it entirely. This approach will hopefully speed up trials and minimize the time spent on admission/denial of evidence.
In order to appreciate the changes brought about by BSA properly, we must bear in mind that the fundamental principles of jurisprudence on evidentiary standards have not changed. The integrity, chain of control and objectivity of evidence must remain as even the Hon'ble Supreme Court has from time to time cautioned about the ease with which electronic records can be altered. Consequently, BSA prescribes safeguards while embracing technology and at the same time retaining the fundamental principles of the IEA.
Deemed Joint Trial
Section 24 of BSA has retained the text of Section 30 of IEA pertaining to confession affecting the person making it and others jointly under trial for the same offence. Earlier, there was an ambiguity re joint trials where an accused was absent. However, Explanation II to Section 241 has clarified that a trial of more than one person held in the absence of the accused, who has absconded or who fails to comply with a proclamation issued under Section 84 of BNSS, will be deemed to be a joint trial. This in effect means that a person can be tried in absentia and is in keeping with Sections 48, 107 and 356 of the BNSS.
Electronic Statements to be included in the definition of Oral Evidence
The definition of "evidence" under Section 2(e)2 has now been defined to include "statements givenelectronically" in addition to statements which the Court permitted or required to be made before it by witnesses in relation to matters of fact under inquiry under subclause (i). Such statements are now called oral evidence under Section 2(e)(i) of BSA.
This is in contrast to Section 3(1) of IEA3 which defines oral evidence as statements which the court permits or requires to be made before it by any witnesses, in relation to matters of fact under inquiry.
- Admissibility of statements made electronically
Previously, courts have made discretionary exceptions to allow witnesses to provide electronic evidence, including in testamentary matters. Although the Hon'ble Supreme Court had clarified the position in Dr. Kumar Saha v. Dr. Sukumar Mukherjee4 , permitting recording of testimonies and cross examination of witnesses through 'internet conferencing' which was also adopted by the District/Trial Courts for recording of evidence of certain under-trail prisoners for security reasons, a welcome change with the new law is that, this is no longer a matter of discretion, but the norm; thus eliminating lengthy arguments on permissibility of electronic evidence in the case at hand and their applicability to the ongoing trial.
- Alignment of BNSS and BSA:
The addition of words "including statements given electronically" under Section 2(e)(i) is also in line with changes brought about in BNSS, which now permits all trials, inquires and proceedings including— (i) issuance, service and execution of summons and warrant; (ii) examination of complainant and witnesses; (iii) recording of evidence in inquiries and trials; and (iv) all appellate proceedings or any other proceeding, to be held in electronic mode, by use of electronic communication or use of audio-video electronic means.5
- Procedural Precautions:
Sections 265, 266 and 308 of BNSS have introduced a new proviso, permitting examination of witnesses Magistrate through audio-video electronic means, at a designated place to be notified by the State Government.
A hue and cry has been raised regarding examination of witnesses through audio-video means at a place 'designated by State Government' instead of a Court, on the ground that the witness can be coerced or intimidated, and such provisions are against the principle of justice. Addressing the concerns, the Ministry of Home Affairs, through the Home Secretary6 has inter alia clarified that 'designated places' for examination of witnesses under Section 265, 266 and 308 of BNSS shall not be a Police Station or any place under the control of the Police Department to allay the concerns of undue pressure on the witness.
The expanded scope of oral evidence is also in line with the objective of witness protection, since witnesses can now be housed in secure premises without the need for physical exposure in court. Further, courts can now be privy to potential critical evidence which may earlier have been omitted as a result of the witness/es inability to travel on account of sickness, old age or geographical limitations.
- Risk of Perjury
Prior to the new laws, the Supreme Court recognizing the advent of technology in the case of State of Maharashtra v. Praful B. Desai7, had permitted recording of evidence of a doctor based in the United States by video conferencing. In this case, there were several issues raised regarding the admissibility of a statement recorded electronically, such as who would administer the oath, the possibility of witness being coached/tutored/prompted, lack of control of a Court in India, chance of perjury with impunity which could eventually insult the Court without fear of punishment, as such a person would not be amenable to the jurisdiction of the Court:
["24...Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. . . It must be remembered that there have been cases where evidence is recorded on commission and by the time it is read in Court the witness has left the country. There also have been cases where foreign witness has given evidence in a Court in India and that then gone away abroad. In all such cases Court would not have been able to take any action in perjury as by the time the evidence was considered, and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court. Even in those cases the Court could only ignore or disbelieve the evidence. . . .We see no substance in this submission that it would be difficult to put documents or written material to the witness in cross-examination. It is now possible, to show to a party, with whom video conferencing is taking place, any amount of written material".
While rendering the decision, the Hon'ble Supreme Court also cautioned on the drawback of recording evidence in open court where a witness is in another country. The Court observed that "As the witness is now in Court there may be difficulties if he commits contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore, as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of Court and perjury are also punishable."
This caution prescribed by the Supreme Court however has not been built into BSA. It is anticipated that as oral evidence by electronic means becomes widespread, many procedural aspects and safeguards will emerge through judicial precedents.
Documentary Evidence
The definition of 'documentary evidence' now includes digital records and electronic records. The term document has also been redefined to include electronicand digital records.
An illustration has been added to the definition of document to include "electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents".
These additions are also necessitated on account of the corresponding changes in BNSS, which now mandates audio-video recording in certain scenarios:
- Videography of evidence collection at the crime scene, where the offence is punishable is made punishable for 7 years or more8
- Search and Seizure9
- In the case of victims of sexual offences, where the victim is physically or mentally disabled.10
With the intention of enabling admission of electronic and digital record into evidence, Section 57 of the BSA has included the following into the definition of "primary evidence":
- Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
- Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
- Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
- Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.
The inclusions above bring clarity to what can be treated as primary evidence in the case of electronic or digital records.
Section 57 of BSA, now provides that an electronic or digital record produced from proper custody shall be primary evidence. In addition, Section 80 of BSA states that "The Court shall presume the genuineness of every document purporting to be the Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person,if such document is kept substantially in the form required by law and is produced from proper custody."
Considering the said provisions, establishing a proper chain of custody of electronic and digital will be necessary to lend credence to the evidence. Conscious of the same, a standard operating procedure for videography of a crime scene, has also been issued by the Bureau of Police Research and Development (Ministry of Home Affairs), which clearly sets out the steps to be followed in relation to the storage of electronic/digital evidence.
Certification of Digital Records by experts under Section 63(4)
Section 61 of BSA provides that no electronic or digital record shall be denied admissibility, if conditions prescribed in Section 63 are met.
Section 63(4) of BSA which is similar to section 65B of IEA, inter alia provides that
"(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3); (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule."
By bringing in the requirement of certification by experts under sub-section 4 of Section 63, BSA now provides an extra layer of accountability for admissibility of statements made electronically in evidence (through audio/video mode).
Interestingly, the Ministry of Home affairs in its Standard Operating Procedure for Audio Visual Recording of Scene of Crime 11 has categorised two situations where evidence sought to be adduced would require expert certification under Section 63(4) in order to be admissible, which are as under:
First category: Digital recordings after implementation of new laws:
- Audio video recording of statements of victim and witnesses, u/s 180 BNSS (Preferable)
- Audio video recording of search and seizure. (Mandatory)
- Audio video recording of other procedural compliances like identification parade, property disposal. (Preferable)
Second category: Various digital devices are routinely seized during course of investigations like mobile, social media accounts, emails, computers, CCTV cameras and the like.
The said approach indicates the intention of legislature to insist on certificate of an expert under Section 63(4) of BSA for admissibility of an electronic record when it pertains to statements made electronically or when electronic record seized by the police is sought to be produced.
Ministry of Home affairs in its Standard Operating Procedure for Audio Visual Recording of Scene of Crime has also stated that since the demand of experts is very high for practical implementation, there could be gaps due to which NIC is devising a standard software and standard process to capture audio/video and generate hash report with time stamp (e-Sakshya). This application is slated to have an inbuilt system for generating certificate in the prescribed format. Block chain technology is being used to ensure data integrity and trustworthiness. MEITY is expected to issue a notification that photo/video captured through this standardized software/application may not require external certification and system generated report will be 23 sufficient for the purpose of 63(4) BSA. In this regard, the e-Sakshya rather than being a standalone application, can in the future, be dovetailed in already existing portals of National Cyber Forensic Laboratory (NCFL) of I4C or CCTNS.
A format of the certificate has also been prescribed under the Schedule to Section 63(4). The format of the prescribed certificate requires "Hash value reports" of these electronic/digital records to be declared in addition to also producing the said record. This a significant step in ensuring the integrity of digital record, as Hash value acts as a unique footprint of digital/electronic record, and any tampering of the file would cause a change in the hash value. Hash values have been previously relied upon by courts especially in matters pertaining to cyber-crime to authenticate records, however the current act provides codified recognition to the practice.
Conclusion:
BSA makes an earnest attempt to modernise itself to meet the current demands of the times by permitting electronic and digital records. While early challenges are inevitable, the jurisprudence will soon emerge and hopefully trials will become more efficient.
Footnotes
1.Section 24 BSA | Bharatiya Sakshya Adhiniyam, 2023 -Consideration of proved confession affecting person making it and others jointly under trial for same offence.
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation I.—"Offence", as used in this section, includes the abetment of, or attempt to commit, the offence.
Explanation II.—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.
Illustrations.
(a) A and B are jointly tried for the murder of C. It is proved that A said—"B and I murdered C". The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—"A and I murdered C". This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.
2.i)all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;"
3. (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
4. (2011) 13 SCC 98
5. Section 530, BNSS
6. Office order bearing number D.O. No. 01/03/2023-Judicial Cell-1, dated 15.07.2024
7. 2003 (4) SCC 601
8. Section 176 (3) BNSS
9. Sections 105 and 185, BNSS
10. Section 173
11. https://bprd.nic.in/uploads/pdf/SOP%20of%20Audio%20Video%20Recording%20of%20Scene%20of%20Crime.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.