Section 2 of #BSA: Definitions

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Vande Matram Friends!

Welcome to the blog series of New Criminal Laws in Bharat. In this blog I am comparing the provisions regarding definitions in the Indian Evidence Act, 1872 (IEA) and Bharatiya Sakshya Adhiniyam, 2023 (BSA). To read more such blogs on the comparison and interpretation of these two statutes, please follow this blog and share it with others.

Before going further note some things regarding the presentation of the things. Provisions given in Red colour are from IEA and those given in Blue colour are from BSA.

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Section 2 of IEA:

[Repeal of enactments.].––Rep. by the Repealing Act, 1938 (1 of 1938), s. 2 and Schedule.

Section 2 of IEA was repealed by the Repealing Act, 1938, hence it is not having any relevance in Independent Bharat, hence no need to discuss.

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Section 3 of IEA:

3. Interpretation-clause.––In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: ––

“Court”.––“Court” includes all Judges1 and Magistrates1, and all persons, except arbitrators, legally authorised to take evidence.

“Fact”.––“Fact” means and includes––(1) anything, state of things, or relation of things, capable of being perceived by the senses; 

(2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact. 

(c) That a man said certain words, is a fact. 

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. 

(e) That a man has a certain reputation, is a fact. 

“Relevant”. ––  One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

“Facts in issue”.–– The expression “facts in issue” means and includes–– any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. 

Explanation.––Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,2  any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

Illustrations

A is accused of the murder of B. At his trial the following facts may be in issue:––

That A caused B’s death; 

That A intended to cause B’s death; 

That A had received grave and sudden provocation from B; 

That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature.

“Document”. ––“Document”3 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 writing4 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.

“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) 5[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

“Proved”.––A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

“Disproved”.––A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

“Not proved”. –– A fact is said not to be proved when it is neither proved nor disproved.

6[“India”. –– “India” means the territory of India excluding the State of Jammu and Kashmir.]

7[the expressions “Certifying Authority”, “8[electronic signature]”, 9[(Electronic Signature Certificate], “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]

Footnotes:

1. Cf. the General Clauses Act, 1897 (10 of 1897), s. 3(32) and the Code of Criminal Procedure, 1973 (Act 2 of 1974).

2. See now the Code of Civil Procedure, 1908 (Act 5 of 1908); as to the settlement of issues, see Schedule I, order XIV.

3. Cf. the Indian Penal Code (Act 45 of 1860), s. 29 and the General Clauses Act, 1897 (10 of 1897), s. 3 (18).

4. Cf. definition of “writing” in the General Clauses Act, 1897 (10 of 1897), s. 3(65).

5. Subs. by Act 21 of 2000, s. 92 and the Second Schedule, for the words “all documents produced for the inspection of the Court” (w.e.f. 17-10-2000).

6. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the definitions of “State” and “States” which were ins. by the A.O. 1950. 

7. Ins. by Act 21 of 2000, s. 92 and the Second Schedule, (w.e.f. 17-10-2000).

8. Subs. by Act 10 of 2009, s. 52, for “digital signature” (w.e.f. 27-10-2009). 

9. Subs. by s. 52, ibid., for “Digital Signature Certificate” (w.e.f. 27-10-2009).  

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Notes and Explanation:

In most of the colonial laws, the section enlisting definitions of the various terms used in the enactment is titled as “Interpretation clause”. The Section 3 of IEA provides definitions of various terms used frequently while applying the said Act. All the definitions under this Section are discussed separately by comparing them given under BSA and interpreted by the Court while deciding various cases during the course of time.

But before going further, let us discuss about the footnotes of this Section 3 of IEA.

As per footnote no. 1, the terms “judges” and “Magistrates” derive their respective meanings from CRPC and GCA.

As per Footnote no. 2, the matters governed by the Civil Procedures will be governed by the CPC and specifically one has to refer Schedule I and Order XIV of CPC for these procedures.

As per Footnote no. 3, the term “document” can be elaborated from Section 29 of IPC and Clause (18) of Section 3 of GCA.

As per Footnote no. 4, one has to also refer definition of “writing” as given under Clause (65) of Section 3 of GCA.

As per Footnote no. 5, after enactment of Information Technology Act, 2000; (‘ITA-2000’ for short) the ‘digital records’ also became evidence in the eyes of law. Before that, there was no evidential value of digital records of any kind.

As per Footnote no. 6, during the British Rule, there was definition of ‘State’ or ‘States’. But after enactment of COI, The Adaptation of Laws Order, 1950 came into force and definition of “India” was inserted in IEA and definitions of ‘State’ or ‘States’ was replaced by the term “India”.

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Section 4 of IEA:

Section 4 “May presume”.––Whenever it is provided by this Act that the 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.

“Shall presume”.––Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. 

“Conclusive proof”.––When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

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Notes and Explanation:

Section 4 of IEA may be called as presumption clause. It provides for the conditions of presumptions for fact as proved and/or conclusive proof. The definitions of these conditions will be discussed in detail with case references under separate headings by comparing them with their parimateria in other statutes and in BSA.

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Section 2 of BSA:

Section 2: Definitions.  

(1) In this Adhiniyam, unless the context otherwise requires,—

(a) "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence;

(b) "conclusive proof" means when one fact is declared by this Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it;

(c) "disproved" in relation to a fact, means when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist;

(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, laptopor smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

(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;

(f) "fact" means and includes—

(i) any thing, state of things, or relation of things, capable of being perceived by the senses;

(ii) any mental condition of which any person is conscious.

Illustrations.

(i) That there are certain objects arranged in a certain order in a certain place, is a fact.

(ii) That a person heard or saw something, is a fact.

(iii) That a person said certain words, is a fact.

(iv) That a person holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact;

(g) "facts in issue" means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation.—Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

Illustrations.

A is accused of the murder of B. At his trial, the following facts may be in issue: —

(i) That A caused B's death.

(ii) That A intended to cause B's death.

(iii) That A had received grave and sudden provocation from B.

(iv) That A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature;

(h) "may presume".—Whenever it is provided by this Adhiniyam that the 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;

(i) "not proved".—A fact is said to be not proved when it is neither proved nor disproved;

(j) "proved".—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;

(k) "relevant".—A fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts;

(l) "shall presume".—Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

(2) 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 Nyaya Sanhita, 2023 shall have the same meanings as assigned to them in the said Act and Sanhitas.

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Notes and Explanation:

In BSA, all the terms enlisted under Sections 3 & 4 of IEA were enlisted under Section 2 of BSA. Separate Clause number is given for each term defined under Section 2 of BSA. Sub-Section (1) of Section 2 of BSA provides definitions of various terms.

Sub-Section (2) of Section 2 of BSA provides for definition and meaning of certain words and expressions which are not defined in BSA. Many of the words and expressions used under criminal jurisprudence are defined under ITA-2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short) and the Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short). If any word or expression is not defined under BSA but defined under ITA-2000, BNSS or BNS, then that word or expression should borrow its meaning and definition as it is given under these statutes. Thus Sub-Section (2) of Section 2 of BSA provides for application of ITA-2000, BNSS and BNS while dealing with provisions of BSA.



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Thank you for reading till the end. Please share this blog with friends and family. Your comments are welcomed so feel free to comment. Bharat Mata Ki Jay!

#NewCriminalLaws, #LawOfEvidence, #Bharat, #CriminalJurisprudence, #BNS, #BNSS, #BSA, #IPC, #CRPC, #IEA,

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References:

Indian Evidence Act, 1872 Download pdf

Bharatiya Sakshya Adhiniyam, 2023, Download pdf




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