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Bharaitya Sakshya Bill, 2023 : Major changes as regards to documents and electronic record

Introduction :

 

The union government of India in August 2023 proposed three bills which plan to change the criminal laws of the country. It also includes the Indian Evidence Act, 1872 which is now likely to be the Bharatiya Sakshya Adhiniyam, 2023.

The new bill introduces the ambit of electronic evidence and secondary evidence in a court of law. The definition of secondary evidence is expanded, including written evidence.

Following are the major changes made in the new bill.

S.NO Nature Indian Evidence Act Bharatia Sakshya Abhiniyam
1 Short title The Indian Evidence Act, 1972 – S(1) Bharatiya Sakshya Adhiniyam, 2023 – S(1)
2 Application Whole of India – S(1) Applies to all judicial proceedings before any court except cases in front of an arbitrator. – S(1)
3 Documents S(3) – Means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one means. The document is inclusive of electronic and digital records. – S(2)(1)
4 Evidence All statements the court permits including electronic record which is called as documentary evidence – S(3) Evidence is inclusive of statements or any information given electronically or digitally -Section 2(1)
5 IT Act definitions Omitted – S(3) Whatsoever terms used as per the IT act will be referred to the Act itself. – S(2)
6 Confessions S(28) and S(29) were omitted which spoke about confessions made under coercion or promise of secrecy. Proviso clause which amalgamated both S(28) and S(29) together – Section 22
7 Relevancy of statements Colonial references were removed – S(37) Courts can now form opinions of a public fact based on electronic records or digital information. S(31)
8 Relevancy of statements with respect to any information contained in law books The law book should be published or printed under the authority of the Government – S(38) Addition of law books in e-form or digital form which the court can take into consideration. – S(32)
9 Facts of which court must take judicial notice Colonial references such as acts passed by the Parliament of the UK, Proceedings of the parliament of UK, accession and the sign manual of  the sovereign of UK or Ireland were omitted – S(57)

 

The court shall take notice of such as law including territorial operation, international treaties, conventions, parliament or state legislatures included – S(52)
10 Primary evidence Section 62 – The scope of primary evidence was widened Section 57 :

1. If an electronic or digital record is stored, and multiple copies are made of such files, each such copy would be regarded as primary evidence, provided there is an uniformity with the original document.

2. If electronic evidence is produced through custody, it will be considered as a primary evidence

3. Video recording which is recorded and transmitted is primary evidence

4. Temporary files are primary evidences if they are electronic in nature.

12 Secondary evidence Certified copies, copies from the original, oral documents were secondary evidence – S(63) Oral admissions, Written admissions, evidence of a person who has examined a document and is also skilled to examine such documents was added to the already existing scope of secondary evidence – S(58)
13 Admissibility of electronic record or digital signature N/A Treats electronic evidence as part of the documentary evidence- they have the same legal effect, validity and enforceability as paper records.
14 Admissibility of electronic record S(65B)(3) – storage of documents in multiple devices – omitted 1.     Information contained in Semiconductor memory which is produced by a communication device or recorded in any other form was added in Section 65B(1), subsequently renamed as Section 63

2.     The information can be stored in standalone mode, on a computer system or computer network or a computer resource or an intermediary.

15 Public and private documents Covered under S(74) – Public documents which are publicly available such as records forming the sovereign, tribunals, public officers etc and any other documents are private documents as per S(75) Public and private documents were covered in one Section – S(74)
16 Gazette publication in electronic form The court shall presume genuineness of every gazetter publication in electronic form Included digital record in its scope

Conclusion :

 

The major changes done in the Bill was in the format of the Act itself, such as numbering and clubbing redundant provisions together. Another major change done was the inclusion of digital records, electronic signatures and electronic records under the scope of documents which are admissible.

It is primitive to note that the Bill is in line with the Information Technology Act which presupposes the electronic record as a document itself.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sanjana Ravichandran

References :

 

  1. The Bharatiya Sakshya Bill, 2023: An Overview of the changes to Indian Evidence Act, 18721 (3/3) – https://www.lexology.com/library/detail.aspx?g=8ca4eb70-8e3f-4da8-a3a9-61b28e6e2aaa
  2. Major Changes Made in the Bharatia Sakshya Act, 2023, as regards Documents – https://indianlawlive.net/2024/01/17/major-changes-made-in-the-bharatia-sakshya-act-1923-as-regards-documents/
  3. Bharatiya Sakshya Bill: Implications of Proposed Changes to the Indian Evidence Act, 1872 – https://www.nls.ac.in/blog/bharatiya-sakshya-bill-implications-of-proposed-changes-to-the-indian-evidence-act-1872/

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Bombay High Court quashes PIL which is poorly drafted and presented; calls it haphazard to the justice system

TITLE : Forum for fast Justice V University of Mumbai

CORAM : Hon’ble Chief Justice Devendra Kumar Upadhyaya

DATE :  15th  January 2024

CITATION : PIL No.49 of 2024

FACTS

A PIL was filed to direct the university and BCI to verify whether all law colleges under the jurisdiction of Mumbai University has functioning legal aid cells and to grant funds to run legal aid cells. The maintainability of the petition was challenged in the current case. It was argued by the petitioners that the PIL is not vague and invoked Article 39-A of the constitution.

LAWS INVOLVED

Article 39-A of the Constitution of India provides for “equal justice” and “free legal aid” and it was for the State to secure that the operation of the legal system promotes justice.

ISSUES

Whether the PIL is maintainable

JUDGEMENT

The court observed that the petitioners did not present any material on record which proves that the state is not fulfilling its objective on legal aid. There is no legal basis to the petitioner’s claim. The petitioner has also not proved maintainability in the court.

The court took reference to another PIL which was considered to be baseless. It stated that poorly drafted and haphazardly presented petitions will not be entertained by the court. It firmly held that :

“the judicial system operates with limited time and resources, and frivolous or poorly presented PILs burden the Court and hinder the resolution of other genuine and urgent cases”

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Written by- Sanjana Ravichandran

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Bombay HC dismisses petition which seeks for arbitration when the conciliation proceeding was abruptly terminated.

TITLE : Bafna udyog v Micro and Small enterprises, Facilitation council

CORAM : Hon’ble Justice Neela Gokhale

DATE :  16th  January 2024

CITATION : Arbitration Petition No.201 of 2023

FACTS

The petitioner seeks appointment of a retired judge to conduct the arbitration proceedings. The petitioner also requests the court to direct the respondent to produce all records required for the proceedings. The petitioner is registered under MSMED Act, 2006. The respondent owes Rs. 92,41,072 to the petitioner with future interest as per the act.

The dispute among the parties remained unsolved. The petitioner contends that the respondent acknowledged the debt he owes. The petitioner filed a conciliation proceeding which upon getting failed has approached for arbitration under Section 11(6) of the arbitration act. The respondents did not show up during the proceedings even after issuing notice.

LAWS INVOLVED

Section 11(6) states that an arbitrator would be appointed by the arbitral forum if none of the parties take initiative to appoint an arbitrator or fails to seek for an arbitrator.

ISSUES

Whether the petitioner was right in asking for an arbitration proceeding?

JUDGEMENT

The court observed that the arbitration proceeding would be invalid as per the MSMED Act. There is an alternative remedy available in law to first observe failure of conciliation proceeding and then approach for arbitration. In the present matter, the conciliation proceeding was terminated which is against Section 18(3) of the MSMED Act which states that only after failure of conciliation proceeding, an arbitration recourse can be proceeded with.

The petiton was dismissed on the grounds of maintainability.

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Written by- Sanjana Ravichandran

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Defence representative for a workman is not permissible under inquiry proceedings : Bombay HC

Lawyer shows the scales of justice in hand on a blurred background.

TITLE : Ajit Bhagwan Sawant V M/s Parveen Industries Pvt Ltd.

CORAM : Hon’ble Justice Sandeep V Marne

DATE :  8th January 2024

CITATION : WP No. 11801 Of 2023

FACTS

The primary issue in the petition is about right of a workman to avail services of a legal practitioners to defend himself in the inquiry process by the labor officer. The appeal is on the basis of the industrial court rejecting the application for permission to defend the workman. The petitioner is working in the defendant company and has been subjected to domestic inquiry. The inquiry officer is a person practicing law and is a qualified advocate. The petitioner claim that the inquiry officer hurried the proceeding without granting enough opportunity to defend him. The petitioner had filed for an interim application under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

LAWS INVOLVED

Bombay Industrial Employment (Standing Orders) Rules 1959 gives the power to another workman or trade union member to defend a workman under enquiry.

Section 21 of the MRTU and PULP act, no workman shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices.

ISSUES

Whether the employee can be permitted to engage services of a legal practitioner as a defence representative?

JUDGEMENT

Under the Model Standing Orders imposes a restriction on the right of the workman to choose his defence representative. The court held that the employer has the right to impose such restriction. Further, it was held that as per the provisions of Clause 25 of the Model Standing Orders the defence representative can only be a workman working in the same department or an office-bearer of trade union of which he is a member.

The advocate is not appointed by the company and not an employee of the respondent company.

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Written by- Sanjana Ravichandran

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Census record is sufficient to prove scheduled tribe to certify them belonging to the community : Bombay HC

TITLE : Omkar v The state of Maharashtra

CORAM : Hon’ble Justice Ravindra v Ghuge

DATE :  15th  January 2024

CITATION : WP No. 13567 Of 2021

FACTS

It was claimed by the petitioner that they belong to a particular tribe called as Thakar Scheduled Tribe, which was invalidated by the scheduled tribes certifying authority. It was argued that the collector has approved the petitioners in belonging in the community. The same was forwarded to the Scheduled Tribes certifying scrutiny authority. It was contended that the procedure adopted by the Committee is contrary to Rule 12(7)(8) of the Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012. The vigilance committee also approved the petitioners as  belonging to the caste. 

LAWS INVOLVED

The scheme under Rule 12, particularly, sub-clause (7) and (8) would depict that once the vigilance cell report is favourable, the Committee shall normally rely upon the same and issue validity certificates.

ISSUES

Whether the petitioner belong to the thakar community?

JUDGEMENT

The court observed the evidence provided by the petitioners which were national census including the relatives as ‘Thakar’ caste. Records also figured school certificates of the cousin and grandfather of the petitioners to declare them as belonging to the thakar community.

The court held that the petitioners have proved themselves to be belonging to the thakar community through census record.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sanjana Ravichandran

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