Major Changes in the Evidence Act by Bharatiya Sakshya Adhiniyam, 2023

Following are the Major changes made in the new Bharatia Sakshya Adhiniyam, 2023, as regards ‘Documents’(when compared to Indian Evidence Act, 1872).

Changes in the Definition

Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
Sec. 3. Interpretation-clause. “Document”. –– “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document; Words printed lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.		Sec. 2(1) In this Adhiniyam, unless the context otherwise requires,—
(d) “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An 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;
Sec. 3. Interpretation-clause. “Evidence”. ––“Evidence” means and includes ––
(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;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.		Sec. 2(1) In this Adhiniyam, unless the context otherwise requires,—
(e) “evidence” means and includes—
(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;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

Under the Indian Evidence Act, electronic evidence could have been taken as a third category of ‘evidence’, other than ‘oral’ and ‘documentary’ evidences. It is more so in view of the interpretation given to Sec. 65B by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216. In this decision it was said that Electronic Evidence is (specially) dealt with “notwithstanding anything contained” in the Act.

By virtue of the definitions in the new act, it is made clear – Electronic Evidence is included in the ‘Documentary Evidence’. It is definite that it is with a view to expand the scope of the application of Electronic Records in evidence.

Changes on Primary Evidence – Electronic Records are also Included in the category , Primary Evidence

Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
62. Primary evidence. –– Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. ––Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. –– Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.		57. Primary evidence Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Explanation 4.—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.
Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
Explanation 6.—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.
Explanation 7.—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 scope of application of Electronic Records in evidence is further expanded by the Additional Explanations 4 to 7 in Sec. 57 (as to ‘Primary Evidence’). Major changes having practical importance are the following: