BHARTIYA SAKSHYA ADHINIYAM, 2023

HISTORY

In 1862, the British Government established three High Courts in India through
Royal Charter or Letters Patent, located in Bombay, Calcutta, and Madras
provinces. These Charter Courts initially adopted the Rules of Evidence from
England. In 1868, Sir Henry Sumner Maine proposed a bill for Indian evidence
rules, but it was deemed unsuitable for the country and lapsed.
On April 18, 1871, under the chairmanship of James Stephen, a new bill
comprising 167 sections was introduced and subsequently passed by the
Legislative Council. This bill, known as the Indian Evidence Act of 1872,
received the assent of the Governor General on March 15, 1872. It applied to
the territories of British India and British Burma.
Following the partition in 1947, the Act remained applicable to both India and
Pakistan until January 26, 1950, when it was retained for the Courts of the
Sovereign Republic of India, excluding Jammu and Kashmir.
The Bharatiya Sakshya Bill, 2023, was introduced in the Lok Sabha on August
11, 2023. It was referred to the Department-related Parliamentary Standing
Committee on Home Affairs for consideration and report. The Committee
submitted its recommendations on November 10, 2023. The Lok Sabha passed
the Bill on December 21, 2023, and it was subsequently approved by the Rajya
Sabha on the same day. Thereafter, the Presidential assent was received on
December 25, 2023, and the Bill came into force on July 1, 2024.

THE BHARATIYA SAKSHYA ADHINYAM, 2023 (BSA)

The key objectives of BSA Bill was as under : -

(i) It provides that “evidence” includes any information given
electronically, which would permit appearance of witnesses, accused,
experts and victims through electronic means;
(ii) It provides for admissibility of an electronic or digital record as
evidence having the same legal effect, validity and enforceability as
any other document;
(iii) It seeks to expand the scope of Secondary evidence to include
(a) copies made from original by mechanical processes,
(b) copies made from or compared with the original, counterparts of
documents as against the parties who did not execute them and
(c) oral accounts of the contents of a document given by some person
who has himself seen it and giving matching hash value of original
record will be admissible as proof of evidence in the form of
Secondary evidence;

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 (iv) It seeks to put limits on the facts which are admissible and its
Certification as such in the Courts.

The Bharatiya Sakshya Adhiniyam (BSA) introduces modifications to 23

sections of the Indian Evidence Act (IEA). Additionally, it repeals 5 sections
of the former IEA and adds a new section, resulting in a total of 170 sections
in the BSA. While the erstwhile IEA was divided into three parts, the BSA is
organized into four parts as follows:
Indian Evidence Act Bharatiya Sakshya Adhiniyam

I Relevancy of Facts (Sec. 5 to I Preliminary Definitions (Sec 1 &

55) 2)

II On Proof (Sec 56 to 100) II Relevancy of Facts ( Sec 3 to 50 )

III Production & Effect of III On Proof (Sec 51 to 103)
Evidence
(Sec 101 to 167)
IV Production & Effect of Evidence
(Sec 104 to 170)

APPLICABILITY
The Bharatiya Sakshya Act (BSA) applies to all judicial proceedings in or
before any court, including court-martials.
However, the BSA does not apply to:
(a) Affidavits presented to any court or officer.
(b) Proceedings before an arbitrator.
While Section 1 of the Indian Evidence Act (IEA) specified its application to
the entire territory of India, except Jammu and Kashmir, Section 1 of the BSA
does not include this provision. This omission is likely intended to facilitate the
admissibility of digital evidence originating from locations outside India.
Additionally, references to the Army Act, Naval Discipline Act of 1934, or Air
Force Act, previously included in Section 1 of the IEA, have been removed and
are not incorporated into the BSA.

DELETED SECTIONS:
The following five provisions from the Indian Evidence Act (IEA) have been
deleted and are not included in the Bharatiya Sakshya Act (BSA):
1. Section 3 (j or 10th item in the Interpretation clause): The definition
stating "India means the territory of India excluding the State of Jammu
and Kashmir" has been removed.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 2. Section 82: The presumption regarding documents admissible in England
or Ireland without proof of seal or signature has been deleted.
1. Section 88: The presumption concerning telegraphic messages from
Telegraph Offices has been removed.
3. Section 113: The proof of cession of British Indian territory by official
Gazette Notification has been omitted.
4. Section 166: The power of juries or assessors to put questions to witnesses
with the Judge's permission has been deleted.

ADDITIONS AND CHANGES

➢ Document - Section 2(1)(d), BSA (Sec 3(e), IEA)
Definition:
“'Document' means any matter expressed or described or otherwise
recorded upon any substance by means of letters, figures, 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.”
Key Changes:
1. "Otherwise recorded": This phrase is added after "described,"
expanding the scope to include various methods of recording.
2. Inclusion of Electronic and Digital Records: The definition now
explicitly includes electronic and digital records. This means that
information expressed, described, or recorded electronically—such as
through computers, smartphones, or other digital devices—falls under
the definition of a document.
3. New Illustration (vi): This illustration has been added to clarify what
constitutes a document in the digital age: - “(vi) An electronic record
on emails, server logs, documents on computers, laptops or
smartphones, messages, websites, locational evidence, and voicemail
messages stored on digital devices are documents.”
Expanded Means of Recording: The new definition broadens how
information can be recorded beyond just letters, figures, or marks. It
includes any means of recording, such as audio recordings, video
recordings, or any other method of capturing information.
Clarification of Intended Use: Both definitions mention the intended use of
the document for recording information. However, the new definition
clarifies that this intended use includes electronic and digital formats,
ensuring these formats are not excluded due to their non-physical nature.
Inclusion of "Otherwise Recorded": The inclusion of "otherwise recorded"
emphasizes the broad scope of what constitutes a document. This phrase
acknowledges that information can be recorded in various ways beyond
traditional methods, ensuring unconventional methods are also covered
under the definition.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
➢ Evidence- Section 2(1)(e), BSA (Sec 3(f) IEA)
Definition:
“'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.”
Key Changes:
• Embracing Technological Advances: The new definition envisions the
online recording of evidence and video conferencing, reflecting the
current technological capabilities. By incorporating these updates, the
legal framework remains relevant and effective in addressing modern
forms of evidence.
• Contrast with the Older Definition: The older definition primarily
focused on oral testimony and documents without specific mention of
electronic records, which could limit its applicability in today's digital
age. The updated definition enhances clarity and adaptability, ensuring
the legal system can accommodate the evolving nature of evidence in the
digital era.

➢ Facts which are the occasion, cause or effect of facts in issue or relevant
facts. Section 5, BSA (Sec 7, IEA)
The heading now includes the phrase "or a relevant fact," broadening the
scope of connected facts considered relevant. Previously, only facts
connected to a ‘fact in issue’ were mentioned, but the new section includes
facts connected to both a fact in issue and any relevant fact. This adjustment
allows for a more comprehensive consideration of connected facts in legal
proceedings, ensuring that all relevant information is taken into account,
regardless of whether it directly pertains to the specific issue being
addressed.

➢ Admission in Civil cases when relevant. Section 21 BSA (Sec 22 IEA)

The Explanation clause of Section 126 has been replaced by Section 132
(1) & (2), which deals with "Professional Communications." According to
the new section, an advocate cannot disclose communications with the
client, the contents of the client's documents, or professional service advice
given to the client. Such information can only be disclosed with the express
consent of the client. This obligation persists even after the professional
service has ended.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
➢ Confession caused by inducement, threat, coercion or promise, when
irrelevant in criminal proceeding. Section 22, BSA (Sec 24, 28,89 IEA):
Section 22 of the Bhartiya Sakshya Adhiniyam (BSA) pertains to the
relevancy of confessions made by a person in criminal proceedings. Unlike
the Indian Evidence Act (IEA), which had separate provisions for different
aspects of confessions in Sections 24, 28, and 29, the BSA combines these
provisions into a single section, streamlining the law.
Key Changes
• Combination of Provisions: The old Sections 24, 28, and 29 of the IEA
dealt with different aspects of confessions separately. Section 22 of the
BSA merges these provisions into one, making the legal framework
more cohesive.
• Inclusion of "Coercion: The old sections only mentioned "inducement,
threat, or promise" as factors affecting the relevance of a confession. The
new Section 22 of the BSA includes "coercion" as a factor, broadening
the scope and providing more comprehensive coverage in criminal
proceedings.

➢ Confession to police officer Section 23, BSA (Sec25, 26, 27 IEA):

Section 23 of the Bhartiya Sakshya Adhiniyam (BSA) deals with the
inadmissibility of confessions made to police officers against the person
accused of an offense. This section corresponds to the erstwhile Section 25
of the Indian Evidence Act (IEA), now renumbered as Section 23 in the
BSA.
Key Changes
• Merging of Provisions: The former Section 26 of the IEA, which
addressed confessions made in police custody, is now merged into
Section 23 of the BSA as a subsection. The former Section 27 of the
IEA, which dealt with the admissibility of information leading to
discovery, is included as a proviso in Section 23 of the BSA.
• No Change in Language: The language of the provisions remains
unchanged. The restructuring aims to consolidate the related sections
into a single comprehensive section.
·
➢ Consideration of proved confession affecting person making it and others
jointly under trial for same offence. Section 24, BSA (Sec30. IEA)
The core content and meaning of Section 24 of the Bhartiya Sakshya
Adhiniyam (BSA), 2023, remain essentially the same as in the
corresponding section of the Indian Evidence Act (IEA). However, Section
24 of the BSA includes an additional Explanation II:
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
Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by
Advocate Association Small Cause Court, Mumbai.
 section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be
deemed to be a joint trial for the purpose of this section.”
Section 84 of the Bharatiya Nagarik Suraksha Sanhita (B.N.S.S.), 2023,
deals with the “Proclamation for person absconding.” In a joint trial, if a
person against whom a warrant has been issued by a court is absconding or
has concealed themselves such that the warrant cannot be executed, the
publication of a proclamation is envisaged.
This addition clarifies that a trial involving multiple defendants, conducted
in the absence of an absconding accused or one who fails to comply with a
proclamation under Section 84 of the B.N.S.S. 2023, will be considered a
joint trial for the purposes of Section 24.

➢ Relevancy of Statements as to law contained in law books Including Digital

and Electronic Formats Section 32 BSA (Sec 38, IEA):
Section 32 of the Bhartiya Sakshya Adhiniyam (BSA) addresses the Court's
need to form an opinion on statements about the law of any country,
whether foreign or otherwise. This section allows such statements to be
contained in books that are printed or published in both physical and
electronic or digital forms.
Key Changes
• Section 38 of the Indian Evidence Act (IEA): Although it mentions law
contained in books, it does not explicitly recognize electronic or digital
forms. This omission suggests that Section 38 predates the widespread
use of digital media, focusing primarily on physically printed materials.
• Section 32 of the BSA: Ensures that the law remains relevant with
technological advancements by explicitly including electronic and
digital forms. This inclusion reflects the increasing accessibility of legal
documents in digital formats.
• Authenticity of Sources: Both sections specify that the books must be
printed or published under the authority of the government of the country
whose law is being discussed, ensuring the authenticity of the source.

➢ Relevancy of certain judgements in Probate etc. Jurisdiction Section 35

BSA (Sec 41, IEA):
This section addresses the relevance and conclusive proof provided by final
judgments, orders, or decrees issued by competent courts or tribunals
exercising probate, matrimonial, admiralty, or insolvency jurisdiction. The
inclusion of the phrase "or Tribunal" after the word "Court" in Section 35
of the Bhartiya Sakshya Adhiniyam (BSA) broadens the scope to
encompass decisions made by tribunals as well as courts.
Key Changes

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 • Scope of Jurisdiction: The section covers final judgments, orders, or
decrees from probate, matrimonial, admiralty, or insolvency
jurisdictions.
• Addition of Tribunals: By adding "or Tribunal" after "Court," Section 35
of the BSA ensures that decisions from tribunals are also recognized as
relevant and conclusive proof. This inclusion reflects the modern legal
landscape, where tribunals play a significant role in adjudicating
specialized matters.
The amendment in Section 35 of the BSA enhances the legal framework by
explicitly acknowledging the authority of tribunals alongside courts, ensuring
that final judgments, orders, or decrees from both courts and tribunals are
considered relevant and conclusive proof in legal proceedings.

➢ Opinion of Experts Section 39 BSA (Sec45, IEA):

Both sections address the relevance of expert opinions in court cases
concerning specialized knowledge, such as foreign laws, sciences, arts, and
the identification of handwriting or fingerprints. Section 39 of the Bhartiya
Sakshya Adhiniyam (BSA) includes an added Sub-Section (2) and an
Explanation:
Sub-Section (2):
“When in a proceeding, the court has to form an opinion on any matter
relating to any information transmitted or stored in any computer
resource or any other electronic or digital form, the opinion of the
Examiner of Electronic Evidence referred to in section 79 of the
Information Technology Act, 2000, is a relevant fact.”
Explanation:
“For the purposes of this sub-section, an Examiner of Electronic
Evidence shall be an expert.”
Key Changes
• Empowering Courts: Sub-section (2) of Section 39 of the BSA
empowers courts to seek expert opinions on matters related to
information transmitted or stored in computers or electronic/digital
forms.
• Role of the Examiner of Electronic Evidence: The expert opinion from
the Examiner of Electronic Evidence, as recognized under Section 79 of
the Information Technology Act, 2000, is considered a relevant fact.
• Recognition as Experts: The Explanation clarifies that an Examiner of
Electronic Evidence is deemed an expert for the purposes of this sub-
section.
Section 39 ensures that courts can rely on specialized knowledge in the rapidly
evolving field of information technology, thereby enhancing the relevance and
accuracy of expert testimonies in legal proceedings.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
➢ Facts of which Court shall take judicial notice Section 52, BSA (Sec57,
IEA):
Items 2 and 3 of the former enactment, which dealt with laws passed by the
UK Parliament and Articles of War for the Army, Navy, and Air Force,
have been removed. Additionally, references to the United Kingdom, Great
Britain, Ireland, English Courts, the Crown, and similar terms have been
eliminated, and the section has been Indianized.
Two new covenants have been added as Section 52(1) (a) and (b), which
state:
Section 52(1):
The Court shall take judicial notice of the following facts, namely:
(a) All laws in force in the territory of India, including laws having extra-
territorial operation.
(b) International treaties, agreements, or conventions with other
countries by India, or decisions made by India at international
associations or other bodies.
Key Changes
• Removal of Colonial References: The names and terms related to the
UK and its institutions have been deleted, removing colonial vestiges
from the text.
• Inclusion of Indian Laws: The new clause (a) ensures that all Indian
laws, including those with extra-territorial jurisdiction, are
acknowledged.
• Recognition of International Commitments:The new clause (b)
includes international treaties, agreements, or conventions entered
into by India, as well as decisions made by India in international
associations or other bodies. This acknowledges India's sovereign
commitments and excludes colonial references.

➢ Primary Evidence Section 57, BSA (Section 62. IEA):

Section 57 of the Bhartiya Sakshya Adhiniyam (BSA) expands on the
concept of primary evidence, particularly in the context of electronic and
digital records, with the addition of four new explanations:
“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.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 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.”
Key Changes
• Recognition of Digital Realities: These explanations address modern
technological realities, clarifying how electronic or digital records
are treated as primary evidence.
• Multiple Storage Formats: The explanations cover scenarios such as
electronic files stored in multiple locations or formats, and video
recordings stored and transmitted simultaneously.
• Proper Custody: They ensure that electronic records produced from
proper custody are considered primary evidence unless contested.
The additions to Section 57 of the BSA modernize the concept of primary
evidence by explicitly including electronic and digital records.

➢ Secondary Evidence Section 58, BSA (Section 63, IEA):

Section 58 of the Bhartiya Sakshya Adhiniyam (BSA) pertains to
secondary evidence and includes three new categories added after clause
(v). These new clauses are:
Clause (vi): Oral admissions
Clause (vii): Written admissions
Clause (viii): Evidence of a person who has examined a document, the
original of which consists of numerous accounts or other documents that
cannot conveniently be examined in Court, and who is skilled in the
examination of such documents.
Secondary evidence is essentially any evidence that is not the original
document or artifact but can still provide credible information about the
original. These additions ensure that the concept of secondary evidence is
comprehensive and adaptable to modern legal needs, especially in cases
involving complex or voluminous documentation.

➢ Admissibility of electronic records: 63 BSA (sec 65 B, IEA):

The updated sections 61, 62, and 63 of the Bhartiya Sakshya Adhiniyam
(BSA) introduce several new provisions to address electronic or digital
records.
Key Changes
• Subsection (1): Addition of the words "or semiconductor memory" and
"any communication device or otherwise stored, recorded, or copied in
any electronic form."
• Subsection (2): Wherever the use of "computer" is mentioned, "or
communication device" is added. The terminology now stands as
"computer or communication device."

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 • Subsection (3): The word "computer" is replaced by "by means of one or
more computers or communication devices."
As well as, Addition of new clauses (a) to (e):
a. In standalone mode
b. On a computer system
c. On a computer network
d. On a computer resource enabling information creation or
providing information processing and storage
e. Through an intermediary
• Subsection (4): The words "that is to say" are replaced by "shall be
submitted along with the electronic record at each instance where it is
being submitted for admission, namely:"
Addition of the words "or a communication device referred to in clauses
(a) to (e) of sub-section (3)" to clause (b).
In clause (c) of Subsection (4), the words "person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities" are replaced by
"person in charge of the computer or communication device or the
management of the relevant activities."
Addition of the words "and an expert" and "in the certificate specified
in the schedule."
Further, the Subsection provides for a format of the Certificate specified
in the Schedule to the Act.
• Subsection (5): Clause (b) of subsection (5) of the IEA is excluded. The
corresponding new clause (c) is renumbered to (b) and now includes the
words "communication device" and "or by other electronic means as
referred to in clauses (a) to (e) of sub-section (3)."

➢ Public and Private Documents. Sec74, BSA (Sec 74-75, IEA):

Section 74 of IEA, defined what constitutes a public document, focusing
on records of official acts and public records. Section 75 of IEA Defined
private documents as those not falling under the category of public
documents. Section 74 of BSA merges these definitions into a single
section for clarity and simplicity, which the language still remains the same

➢ Section 77 & 88 BSA (77,81 &86 IEA)

Sections 77 and 88 of the Bhartiya Sakshya Adhiniyam (BSA) replace and
update the colonial and antiquated terminology found in Sections 77, 81,
and 86 of the Indian Evidence Act (IEA). This modernization includes
removing references to entities such as the ‘Parliament of the United
Kingdom’, ‘Provincial Act’, ‘London Gazette’, ‘Commonwealth’, ‘Privy

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 Council’, ‘Queen’s Printer’, and ‘Her Majesty’, as well as colonial
proclamations and orders.

➢ Presumption as to certified copies of foreign judicial proceedings. Section

88, BSA (Sec 86, IEA):
Section 88 of the Bhartiya Sakshya Adhiniyam (BSA) applies to judicial
records of any country beyond India without specifying a particular
jurisdiction or geographic limitation. In contrast, Section 86 of the Indian
Evidence Act (IEA) applies to judicial records of any country not forming
part of India or Her Majesty’s Dominions.
Key Changes
• Applies broadly to judicial records of any country outside India.
• Designates a Political Agent for a territory or place outside India as a
representative of the Central Government of that country.
• Includes an explanation for the term "proper custody" within the section
itself, ensuring clarity and specificity within the provision.

➢ Who may Testify Section 125 BSA (Sec. 118 IEA)

Terminology considered insensitive or outdated, like ‘lunatic’, has been
updated to more respectful terms such as ‘person of unsound mind’.

➢ Repealing provision of IEA Section 170 BSA (Sec. 2 IEA)

Section 170 of the Bhartiya Sakshya Adhiniyam (BSA) governs judicial
records effective from the date of its enforcement on 1st July 2024.
However, it's important to note that any pending applications, trials,
inquiries, investigations, proceedings, or appeals existing before this date
shall continue to be governed by the provisions of the Indian Evidence Act,
1872. This transitional arrangement ensures continuity and clarity in
ongoing legal processes, applying the old legal framework to cases initiated
before the enactment of the new law

CORRESPONDENCE TABLE and COMPARISON SUMMARY OF

THE BHARATIYA SAKSHYA ADHINIYAM, 2023, (BSA) and THE
INDIANEVIDENCE ACT, 1872, (IEA)
BSA IEA Subject Summary of comparison
Section Section
1 1 Short title, application and Indian Evidence Act, 1872 (IEA) provided that it
commencement. extended to the whole of India, whereas Bharatiya
Sakshya Adhiniyam, 2023 (BSA) excludes this
provision of territorial extent.
2 IEA3 Definitions. Interpretation clauses, which include words and
Inter expressions and are interpreted in paragraphs in the
pret IEA, are now defined under Section 2(1):
ation Definitions, where each word and expression is

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 claus given individual alphabetical clauses. BSA
e excludes the interpretation of "India" previously
given in Section3 of the IEA.
2(1)(a) 3,para1 "Court". No change.
2(1)(b) 4,para3 "conclusive proof". "Act" is replaced with "Adhiniyam".
Wherever the word “Act” is used in IEA the word
“Adhiniyam” isused in BSA, therefore, this fact will
not be specifically mentioned in this table
hereinafter.
2(1)(c) 3,para8 "disproved". Words "A fact is said to be disproved "are
replaced by "in relation to a fact, means".
2(1)(d) 3,para5 "document". The words "or otherwise recorded" and "or by any
other means," and "and includes electronic and
digital records" are added.
2(1)(e) 3,para6 "evidence". "Words" "including statements given
electronically" in (e )(i) and "or digital" in (e ) (ii)
are added.
2(1)(f) 3,para2 "fact". Word "man" is replaced by "person" in illustrations
and illustration (e)-"That a man has a certain
reputation, is a fact" is now excluded in BSA.
2(1)(g) 3,para4 "facts in issue". No change.
2(1)(h) 4,para1 "may presume". No change.
2(1)(i) 3,para9 "not proved". No change.
2(1)(j) 3,para7 "proved". No change.
2(1)(k) 3,para3 "relevant". No change.
2(1)(l) 4,para2 "shall presume". No change.
2(2) New Words and expressions. Newly added. “Words and expressions used herein
and not defined but defined in the Information
Technology Act, 2000 (21 of 2000), the Bharatiya
Nagarik Suraksha Sanhita, 2023, and the Bharatiya
NyayaSanhita,2023, shall have the same meanings
as assigned to them in the said Act and Sanhitas.”
3 5 Evidence may be given of facts in No change.
issue and relevant facts.
4 6 Relevancy of facts forming part No change.
of same transaction.
5 7 Facts which are occasion, cause Words "or relevant facts" added in heading.
or effect of facts in issue or
relevant facts.
6 8 Motive, preparation and previous In explanation. And in illustrations "vakils" is
or subsequent conduct. replaced by "advocates" "man" is replaced by
"person" and "ravished" is replaced by "raped".
7 9 Facts necessary to explain or Words "fact in issue or "are added in the heading.
introduce fact in issue or relevant "A" is replaced by "he".
facts.
8 10 Things said or done by No change except in illustrations, "Government of
conspirator in reference to India" is replaced by "State", and city names are
common design. Changed from Calcutta to Kolkata, Bombay to
Mumbai, and Kabul to Singapore.
9 11 When facts not otherwise relevant No Change except in illustrations cities names are
become relevant. changed from Calcutta to Chennai and Lahore to
Laddakh.
10 12 Facts tending to enable Court to No change except in the heading, where the words
determine amount are relevant in "In suits for damages "are placed at the end instead
suits for damages. of the beginning.
11 13 Facts relevant when right or No change.
custom is in question.
12 14 Facts showing existence of state In illustrations, word "coin" is replaced by
of mind, or of body or bodily "currency" and "carriage" is replaced by "cars".

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 feeling.
13 15 Facts bearing on question In illustrations, word "rupee" is replaced by
whether act was accidental or "currency".
intentional.
14 16 Existence of course of business No change.
when relevant.
15 17 Admission defined. No change.
16 18 Admission by party to proceeding Headings of paragraphs are excluded and written as
or his agent. subsections and clauses.
17 19 Admissions by persons whose No change.
position must be proved as
against party to suit.
18 20 Admissions by persons expressly No change.
referred to by party to suit
19 21 Proof of admissions against Word "coin" is replaced by "currency".
persons making them, and by or
on their behalf.
20 22 When oral admissions as to No change.
contents of documents are
relevant.
21 23 Admissions in civil cases when Words "barrister, pleader, attorney or vakil" are
relevant. replaced by "advocate".
22(1) 24 Confession caused by The word "coercion" is added. Section 28 IEA and
inducement, threat, coercion or Section29IEAaregivenasprovisostoSection22 of the
promise, when irrelevant in BSA. Heading is dropped as sections are included as
criminal proceeding. provisos.
First 28 Confession made after removal of Heading is dropped as section is included as proviso.
proviso impression caused by
to inducement, threat or promise,
section relevant.
22
Second 29 Confession otherwise relevant Heading is dropped as section is included as proviso.
proviso not to become irrelevant because
to of promise of secrecy, etc.
section
22
23(1) 25 Confession to police officer. Words "not to be proved" are excluded from heading.
23(2) 26 Confession by accused while in Heading is dropped as the section is included as a
custody of police not to be proved subsection. Word "whilst" is replaced by "while" and
against him. words "such person" are replaced by "him".
Proviso 27 How much of information Heading is dropped as the section is included as
to received from accused maybe proviso.
section proved.
23
24 30 Consideration of proved A new explanation II is added, mentioning that "A
confession affecting person trial of more persons than one held in the absence of
making it and others jointly underthe accused who has absconded or who fails to
trial for same offence. complywithaproclamationissuedunderSection84 of
the Bharatiya Nagarik Suraksha Sanhita, 2023, shall
be deemed to be a joint trial for the purpose of this
section."
25 31 Admissions not conclusive proof, No change.
but may estop.
26 32 Cases in which statement of Word "namely" is added and headings of subsections
relevant fact by person who is are dropped. In illustration word "ravished" is
dead or cannot be found, etc., is replaced by "raped" and word "banya" is replaced by"
relevant. business".
27 33 Relevancy of certain evidence for No change except that word "that" is replaced by
proving, in subsequent "and" in proviso.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 proceeding, truth of facts there in
stated.
28 34 Entries in books of account when No change except the words "include those
relevant. maintained in an electronic form "are excluded from
the heading.
29 35 Relevancy of entry in public No change.
record or an electronic record
made in performance f duty.
30 36 Relevancy of statements in maps, No change.
charts and plans.
31 37 Relevancy of statement as to fact Words "any Act of Parliament 4 (of the United
of public nature contained in Kingdom)ororinany5CentralAct,ProvincialAct or 6
certain Acts or notifications. a State Act or in a Government notification or
notification by the Crown Representative appearing
in the Official Gazette or in any printed paper
purporting to be the London Gazette or the
Government Gazette of any Dominion, colony, or
possession of his Majesty is a relevant fact." are
replaced by "any Central Act or State Act or in a
Central Government or State Government
notification appearing in the respective Official
Gazette or in any printed paper or in electronic or
digital form purporting to be such Gazette, is a
relevant fact".
32 38 Relevancy of statements as to any Words" including in electronic or digital form "are
law contained in law books added in heading as well as in the main text of the
including electronic or digital section.
form.
33 39 What evidence to be given when No change.
statement forms part of a
conversation, document,
electronic record, book or series
of letters or papers.
34 40 Previous judgments relevant to No change.
bar a second suit or trial.
35 41 Relevancy of certain judgments The word "Tribunal" is added. Paragraph "Such
in probate, etc., jurisdiction. judgment, order or decree is conclusive proof that" is
given as subsection (2)and conditions under this are
enumerated as (i), (ii), (iii), and (iv). The word "that"
is excluded.
36 42 Relevancy and effect of No change.
judgments, orders or decrees,
other than those mentioned in
section35[41IEA].
37 43 Judgments, etc., other than those No change.
mentioned in sections 34, 35 and
36 [40 to 42IEA] when relevant.
38 44 Fraud or collusion in obtaining No change.
judgment, or incompetency of
Court, may be proved.
39(1) 45 Opinions of experts. Words "or any other field "are added. Thus, scope is
expanded greatly.
39(2) 45A Opinion of Examiner of Heading is dropped as section is added as a
Electronic Evidence. subsection.
40 46 Facts bearing upon opinions of No change.
experts.
41(1) 47 Opinion as to hand writing and Words "and signature" are added in heading.
signature, when relevant.
41(2) 47A Opinion as to electronic Heading is dropped as section is added as a

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 signature, when relevant. subsection.
42 48 Opinion as to existence of general No change.
custom or right, when relevant.
43 49 Opinion as to usages, tenets, etc., Paragraphs are numbered as clauses(i), (ii)and(iii).
when relevant.
44 50 Opinion on relationship, when No change.
relevant.
45 51 Grounds of opinion, when No change.
relevant.
46 52 In civil cases character to prove No change.
conduct imputed, irrelevant.
47 53 In criminal cases previous good No change.
character relevant.
48 53A Evidence of character or previous No change.
sexual experience not relevant in
certain cases.
49 54 Previous bad character not No change.
relevant, except in reply.
50 55 Character as affecting damages. No change.
51 56 Fact judicially noticeable need No change.
not be proved.
52 57 Facts of which Court shall take Paragraphs are numbered as subsections (1) and (2),
judicial notice. and facts enumeration as (1) to (13) is replaced by
alphabetic clauses (a) to (l), excluding (2), (3), and
(5) These exclusions remove colonial vestiges from
the text. A new clause (b) is newly added, mentioning
"international treaty, agreement or convention with
country or countries by India, or decisions made by
India at the international associations or other
bodies;"
53 58 Facts admitted need not be proved No change.
54 59 Proof of facts by oral evidence. Words "or electronic records" are excluded.
55 60 Oral evidence to be direct. In heading word "must" is replaced by "to" and
paragraph are numbered as clauses (i), (ii), (iii)and
(iv) Word" also "is replaced by "further".
56 61 Proof of contents of documents. No change.
57 62 Primary evidence. 4 new explanations are added.
58 63 Secondary evidence. Words "means and "are excluded and three new
clauses (vi), (vii), and (viii) are added.
59 64 Proof of documents by primary No change.
evidence.
60 65 Cases in which secondary The word "namely" is added and paragraph of clause
evidence relating to documents are numbered as (i), (ii),and (iii).
may be given.
61 New Electronic or digital record. “Nothing in this Adhiniyam shall apply to deny the
admissibility of an electronic or digital record in the
evidence on the ground that it is an electronic or
digital record and such record shall, subject to section
63, have the same legal effect, validity and
enforceability as other document.”
62 65A Special provisions as to evidence No change.
relating to electronic record.
63 65B Admissibility of electronic Words "or semiconductor memory" "or any
records. communication device or otherwise stored,
recorded, or copied in any electronic form" is added
in subsection (1). Words "communication device",
"create" are added in subsection (2). In subsection
(3), the word "computer" is replaced by "by means
of one or more computers or communication

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 devices, "and new clauses(a) to (e) are added. In
subsection (4), the words "that is to say" are
replaced by "shall be submitted along with the
electronic record at each instance where it is being
submitted for admission, namely:". The words "or a
communication device referred to in clauses (a) to
(e) of sub-section (3)" are added to clause (b) of
subsection (4), and in clause(c), the words "person
occupying a responsible official position in relation
to the operation of the relevant device or the
management of the relevant activities "are replaced
by "person in charge of the computer or
communication device or the management of the
relevant activities". The words "and an expert" and
"in the certificate specified in the schedule " are
added. Clause (b) of subsection (5) of IEA is
excluded and now (c) corresponds to (b), where
words "communication device" and "or by other
electronic means as referred to in clauses (a) to (e)
of sub-section (3)". are added.
64 66 Rules as to notice to produce. "attorney or pleader" is replaced by " advocate or
representative".
65 67 Proof of signature and No change.
handwriting of person alleged to
have signed or written document
produced.
66 67A Proof as to electronic signature. No change.
67 68 Proof of execution of document No change.
required by law to be attested.
68 69 Proof where no attesting witness Words "or if the document purports to have been
found. executed in the United Kingdom" are excluded.
69 70 Admission of execution by party No change.
to attested document.
70 71 Proof when attesting No change.
witness denies execution.
71 72 Proof of document not required No change.
by law to be attested.
72 73 Comparison of signature, writing Paragraph are numbered as Sub sections (1), (2) and
or seal with others admitted or (3).
proved.
73 73A Proof as to verification of digital No change.
signature.
74(1) 74 Public and private documents. The words " and private" are added in the heading.
The words "any part of "and" or of the
commonwealth" are excluded.
74(2) 75 Public and private documents. The words "or Union territory" and "except the
documents referred to in sub-section (1)"are added.
75 76 Certified copies of public No change.
documents.
76 77 Proof of documents by No change.
production of certified copies.
77 78 Proof of other official documents. The conditions' enumeration as (1) to (6) is changed
to (a) to (f). The expressions "or of the Crown
Representative", "or, as the case may be, of the
Crown Representative;", "Her Majesty] or by the
Privy Council, or by any department of Her
Majesty’s Government" and "London Gazette, or
purporting to be printed by the Queen’s Printer;"
are excluded.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 The words "Ministries and" "or Union territory
Administration", "Parliament or a State" and
"President of India or the Governor of a State or the
Administrator or Lieutenant Governor of a Union
territory, by copies or extracts contained in the
Official Gazette;" are added.
78 79 Presumption as to genuineness of The words "or by any officer [in the State of Jammu
certified copies. and Kashmir] who is duly authorised thereto by the
Central Government:" are excluded and paragraph
are numbered as subsections.
79 80 Presumption as to documents The word "that" is excluded and paragraph are
produced as record of evidence, numbered as clauses (i), (ii) and (iii).
etc.
80 81 Presumption as to Gazettes, "the London Gazette or any Official Gazette, or the
newspapers, [private Acts of Government Gazette of any colony, dependency or
parliament] and other documents. possession of the British Crown, or to be a
newspaper or journal or to be a copy of a private
Act of Parliament of the United Kingdom printed
by the Queen’s Printer" are replaced by "the
Official Gazette".
A new explanation is added regarding proper
custody.
81 81A Presumption as to Gazettes in A new explanation is added regarding proper custody
electronic or digital record. of electronic document. Its phraseology is similar to
the new explanation added in the preceding section.
82 83 Presumption as to maps or plans No change.
made by authority of Government
83 84 Presumption as to collections of No change.
laws and reports of decisions.
84 85 Presumption as to powers-of- No change.
attorney.
85 85A Presumption as to electronic The words "or digitals" are added.
agreements.
86 85B Presumption as to electronic No change.
records and electronic signatures
87 85C Presumption as to Electronic No change.
Signature Certificates
88 86 Presumption as to certified copies "any country not forming part of India or of Her
of foreign judicial records. Majesty’s Dominions" is replaced by "beyond India".
89 87 Presumption as to books, maps No change.
and charts.
90 88A Presumption as to electronic Explanation excluded.
messages.
91 89 Presumption as to due execution, No change.
etc., of documents not produced.
92 90 Presumption as to documents A new explanation same as of section80 is added. In
thirty years old. illustration "is" is replaced by "shall be".
93 90A Presumption as to A new explanation same asofsection81isadded.
electronic records five years old.
94 91 Evidence of terms of contracts, No change.
grants and other dispositions of
property reduced to form of
document.
95 92 Exclusion of evidence of oral The words "to the last section" are replaced by
agreement. section number "94" Instead of writing "Proviso1"
"Proviso 2" etc. "Provided that", Provided further
that" etc. are used while writing proviso in this
section. In illustrations, " Calcutta" and "London" are
replaced by "Kolkata" and "Visakhapatnam", "2023"

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 is used in place of "1978" and "thirty thousand" and
"ten thousand" in place of "500" and "200" to make
it contemporary.
96 93 Exclusion of evidence to explain In illustrations,"Rs.1000" and "Rs.1500" are replaced
or amend ambiguous document. by "one lakh rupees" "one lakh fifty thousand rupees"
respectively.
97 94 Exclusion of evidence against No change.
application of document to
existing facts.
98 95 Evidence as to In illustrations, "Calcutta" is replaced by "Kolkata".
document meaning in
reference to existing facts.
99 96 Evidence as to application of In illustrations, "Haidarabad", "Haidarabad in
language which can apply to one Dekkan" and "Haidarabad in sindh" are replaced by
only of several persons. "Ramgarh", "Ramgarh in Rajasthan" and "Ramgarh
in Uttarakhand" respectively.
100 97 Evidence as to application of No change.
language to one of two sets of
facts, to neither of which the
whole correctly applies.
101 98 Evidence as to The word "provincial" is replaced by "regional".
meaning of illegible characters,
etc.
102 99 Who may give evidence of No change.
agreement varying terms of
document.
103 100 Saving of provisions of Indian The words "the Indian Succession Act, (10 of
Succession Act relating to wills. 1865)"are replaced by "the Indian Succession Act,
1925 (39 of 1925)".
104 101 Burden of proof. No change.
105 102 On whom burden of proof lies. No change.
106 103 Burden of proof as to particular No change.
fact.
107 104 Burden of proving fact to be No change.
proved to make evidence
admissible.
108 105 Burden of proving that case of The words "the Indian Penal Code (45of1860)"are
accused comes within exceptions. replaced by "the Bharatiya Nyaya Sanhita, 2023".
109 106 Burden of proving fact especially No change.
within knowledge.
110 107 Burden of proving death of No change.
person known to have been alive
within thirty years.
111 108 Burden of proving that person is The words "Provided that " are excluded.
alive who has not been heard of
for seven years.
112 109 Burden of proof as to relationship No change.
in the cases of partners, landlord
and tenant, principal and agent.
113 110 Burden of proof as to ownership. No change.
114 111 Proof of good faith in transactions The word "attorney" is replaced by " advocate".
where one party is in relation of
active confidence.
115 111A Presumption as to IPC sections are replaced by corresponding BNS
certain offences. sections.
116 112 Birth during marriage, conclusive "son" is replaced by "child" thus made gender neutral.
proof of legitimacy.
117 113A Presumption as to abetment of The words "section 498A of the Indian Penal Code
suicide by a married woman. (45 of 1860)"are replaced by "section 86 of the

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 BharatiyaNyayaSanhita,2023"intheexplanation.
118 113B Presumption as to dowry death. The words "section304B of the Indian Penal Code
(45 of 1860)" are replaced by "section 80 of the
Bharatiya Nyaya Sanhita, 2023" in explanation.
119 114 Court may presume existence of Paragraph are numbered as subsections (1) and (2),
certain facts. and illustrations to subsection (2) are numbered from
(i) to (x).
120 114A Presumption as to absence of IPC sections are replaced by corresponding BNS
consent in certain prosecution for sections.
rape.
121 115 Estoppel. No change.
122 116 Estoppel of tenant and of licensee The words "or any time there after" are added.
of person in possession.
123 117 Estoppel of accept or of bill of No change.
exchange, bailee or licensee.
124 118 Who may testify. The word "Lunatic" is replaced by "A person of
unsound mind".
125 119 Witness unable to communicate No change.
verbally.
126 120 Competency of husband and wife Heading" Parties to civil suit, and their wives or
as witnesses in certain cases. husbands. Husband or wife of a person under
criminal trial" is replaced by "Competency of
husband and wife as witnesses in certain cases".
Paragraphs are numbered as subsections (1) and (2),
127 121 Judges and Magistrates. No change.
128 122 Communications during No change.
marriage.
129 123 Evidence as to affairs of State. No change.
130 124 Official communications. No change.
131 125 Information as to commission of No change.
offences.
132(1) 126 Professional communications. The words "barrister, attorney, pleader or vakil" are
&(2) replaced by "advocate". Word "employment" is
replaced by "service". In sub-section (2) words
"referred to in the proviso to sub-section (1)"are
added.
132(3) 127 Professional communications to Section127 of IEA is added as subsection (3) in
apply interpreters, etc ". which the words" or servants of barristers, pleaders,
attorneys and vakils" are replaced by" or employees
of advocates".
133 128 Privilege not waived by Words "barrister, attorney, pleader or vakil" are
volunteering evidence. replaced by "advocate".
134 129 Confidential communication with Words "legal professional adviser" are replaced by
legal advisers. "legal adviser".
135 130 Production of title- No change.
deeds of witness not a party.
136 131 Production of documents or No change.
electronic records which another
person, having possession, could
refuse to produce.
137 132 Witness not excused from Word "Proviso" is excluded.
answering on ground that answer
will criminate.
138 133 Accomplice. Words "merely because "are replaced by "if".
139 134 Number of witnesses. No change.
140 135 Order of production and No change.
examination of witnesses.
141 136 Judge to decide as to Paragraph are numbered as subsections (1), (2) and
admissibility of evidence. (3).

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
 142 137 Examination of witnesses. Paragraphs are numbered as subsections (1), (2) and
(3), and headings of paragraph are excluded.
143 138 Order of examinations. Paragraph are numbered as subsections (1), (2) and
(3), and word "in-chief" included. The words in
paragraph heading " Direction of re- examination"
are excluded.
144 139 Cross-examination of person No change.
called to produce a document.
145 140 Witnesses to character. No change.
146(1) 141 Leading questions. Section141 IEA is included as subsection (1) of 146
BSA.
146(2) 142 When they (leading) must not be Section142IEAis included as subsection (2) and (3)
&(3) asked. of 146 BSA.
146(4) 143 When they(leading) maybe asked. Section143 IEA is included as subsection (4) of 146
BSA.
147 144 Evidence as to matters in writing. No change.
148 145 Cross- examination as to No change.
previous statements in writing.
149 146 Questions lawful in Numbers (1), (2) and (3) are replaced by(a),(b) and
cross- examination. (c). IPC sections are replaced by corresponding BNS
sections.
150 147 When witness to be compelled to No change.
answer.
151 148 Court to decide when question Word"namely"isadded in its subsection (2).
shall be asked and when witness
compelled to answer.
152 149 Question not to be asked without In illustrations, the words "barrister", "an attorney or
reasonable grounds. vakil", " dakait " and "A pleader" are replaced by
words "advocate", "another advocate", "dacoit" and
"a advocate" respectively.
153 150 Procedure of Court in case of Word "barrister, attorney, pleader or vakil" are
question being asked without replaced by "advocate".
reasonable grounds.
154 151 Indecent and scandalous No change.
questions.
155 152 Questions intended to insult or No change.
annoy.
156 153 Exclusion of evidence to "Lahore" and Calcutta" are replaced by "Goa" and
contradict answers to questions "Varanasi" respectively.
testing veracity.
157 154 Question by party to his own No change.
witness.
158 155 Impeaching credit of witness. Numbers (1), (2) and (3) are replaced by(a), (b) and
(c). Word "indicted" is replaced by "accused".
159 156 Questions tending to corroborate No change.
evidence of relevant fact,
admissible.
160 157 Former statements of witness No change.
may be proved to corroborate
later testimony as to same fact.
161 158 What matters may be proved in No change.
connection with proved statement
relevant under section 26 or 27.
[section 32 or 33].
162 159 Refreshing memory. Paragraphs are numbered as subsections (1) and (2).
Sub-heading words "When witness may use copy of
document to refresh memory" are excluded from
Subsection (2). Words "Provided that "and"
Provided further that" are added in provisos.

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
163 160 Testimony to facts stated in No change.
document mentioned in section
162[159].
164 161 Right of adverse party as to Word "must" is replaced by "shall".
writing used to refresh memory.
165 162 Production of documents. Paragraphs are numbered as subsections (1), (2) and
(3)."Provided that "is added in proviso. New proviso
is added to the subsection (3).
166 163 Giving, as evidence, of document No change.
called for and produced on notice.
167 164 Using, as evidence, of document No change.
production of which was refused
on notice.
168 165 Judge's power to put questions or Words "proper", "please" and "relevant or irrelevant"
order production. are excluded. Word "agents" is replaced by
"representatives".
169 167 No new trial for improper No change.
admission or rejection of
evidence.
170 New Repeal and savings. Newly added. Section 2 IEA is deleted

Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by

Advocate Association Small Cause Court, Mumbai.
Notes by Prof. J.M. D’SILVA, Advocate, for the seminar organized by
Advocate Association Small Cause Court, Mumbai.