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Section 2 of IEA was repealed by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).
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”.
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.
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.
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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References:
Indian Evidence Act, 1872 Download pdf
Bharatiya Sakshya Adhiniyam, 2023, Download pdf
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