BSA 2023 Important Definitions Explained for Judiciary Exams
Bharatiya Sakshya Adhiniyam 2023 Important Definitions Court Fact Evidence Document
Object of the Adhiniyam
Bharatiya Sakshya Adhiniyam, 2023 declares that the Act is enacted to consolidate and provide general rules and principles of evidence for judicial proceedings in India. It lays down how facts are to be proved, what kind of material may be treated as evidence, and how courts must appreciate such evidence.
Nature of the Act
The Bharatiya Sakshya Adhiniyam is a procedural law, not a substantive law. This means it does not create rights or liabilities. It provides the method by which facts relevant to a case are proved or disproved.
Its function is to regulate:
- What evidence is admissible
- How evidence is to be produced
- How courts must evaluate evidence
Date of enactment and enforcement
- The Bharatiya Sakshya Adhiniyam, 2023 was assented to by the President of India on 25 December 2023.
- It is formally cited as Act No. 47 of 2023.
- Although the Act was enacted in December 2023, its provisions were brought into force on 1 July 2024.
Application of the Act (Extent of Applicability) or Sope
Section 1(2) declares that the Act applies to all judicial proceedings in or before any Court.
This means the Act governs:
- Civil trials
- Criminal trials
- Appeals and revisions
- Any proceeding where a court records and evaluates evidence
The expression “in or before any Court” indicates that:
- The Act applies not only inside the courtroom during trial, but also to ancillary judicial processes connected with adjudication. For example, recording of confession before a magistrate, test identification parade etc. rn
Inclusion of Courts-Martial
The Act expressly states that it applies to Courts-martial. This signifies that military courts conducting trials under military law must also follow the principles of evidence contained in this Act, unless specifically excluded by special law.
Express Exclusion
1. Affidavits
The Act does not apply to affidavits presented to any Court, or any officer.
Reason - An affidavit is a sworn written statement and is governed by separate procedural rules. The strict rules of examination, cross-examination, and admissibility under evidence law are not applied in the same manner.
2. Arbitration Proceedings
The Act does not apply to proceedings before an arbitrator. Arbitration is a private dispute resolution mechanism. Arbitrators are not strictly bound by technical rules of evidence unless parties agree otherwise. Thus, arbitrators may adopt flexible evidentiary procedures.
Important definitions
COURT - SECTION 2(1)(a)
“Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.
Judges and Magistrates - All Judges and Magistrates are expressly included within the meaning of “Court”.
Other Persons Legally Authorised to Take Evidence - Examples include commissioners appointed by court to record evidence, authorities exercising quasi-judicial powers with statutory authority. Thus, even if a person is not formally called a “judge”, he may still be a “court” for the purpose of this Act if he is legally authorised to take evidence.
Express Exclusion of Arbitrators
The definition specifically excludes arbitrators. This signifies that arbitrators are not bound by strict rules of evidence under the Bharatiya Sakshya Adhiniyam. Arbitration proceedings are governed by flexibility and party autonomy. This exclusion aligns with Section 1(2), which also states that the Act does not apply to proceedings before an arbitrator.
FACT - SECTION 2(1)(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.
Meaning and Importance of “Fact”
The concept of “fact” is the foundation of the law of evidence. Evidence exists only to prove or disprove facts. Therefore, understanding what constitutes a fact is essential for applying the Bharatiya Sakshya Adhiniyam.
Section 2(1)(f) gives a wide and inclusive definition, showing that a fact is not limited only to physical objects or events, but also extends to internal mental states.
Physical Facts
Clause (i) covers any thing, state of things, or relation of things, capable of being perceived by the senses. This means facts that can be seen, heard, touched, smelled, or tasted.
Any thing - A physical object or tangible entity. For example, knives, firearms, forged documents, bloodstained clothes etc.
State of things - A condition or situation existing at a particular time. For example, a door being open or locked, a house being in burnt condition, a person being injured, a building being demolished etc.
Relation of things - Connection or association between two or more persons or objects. For example, A is the father of B, X is the tenant of Y, Accused was standing near the victim etc. that is capable of being perceived by the senses.
Mental Facts or Psychological Facts
Clause (ii) includes any mental condition of which a person is conscious. This refers to internal states of mind that cannot be directly seen but can be inferred from conduct and circumstances.
Examples - Intention, Knowledge, Good faith, Bad faith, Dishonest intention etc.
Mental conditions are crucial in criminal law, especially for determining mens rea.
Difference Between Physical Facts and Mental Facts
Physical facts are externally perceptible, while mental facts are internally experienced.
However, both are legally recognized as facts under the Act and may be proved through appropriate evidence.
Illustration
If A stabs B:
- The stabbing itself is a physical fact.
- The presence of blood is a physical fact.
- A’s intention to kill is a mental fact.
FACTS IN ISSUE - SECTION 2(1)(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.
Meaning of Facts in Issue
Facts in issue are the principal facts (factum probandum) which are directly in controversy between the parties in a case. They are those facts which must be proved or disproved in order for the court to decide who is right, who is wrong, and what legal consequence follows. Thus, facts in issue form the core of the dispute.
Essential Elements of Fact in Issue
1. Fact
Only matters falling within the definition of “fact” can become Fact in Issue.
2. Bearing on Right, Liability or Disability
The fact should have direct bearing on:
- A legal right
- A legal liability
- A legal disability
3. Asserted or Denied
A fact becomes a fact in issue only when:
- One party asserts it, and
- The other party denies it (expressly or impliedly).
(If a fact is admitted by both sides, it normally ceases to be a fact in issue.)
Illustration 1
A sues B for recovery of ₹1,00,000 on the basis of a loan.
Facts in issue:
- Whether B borrowed ₹1,00,000 from A.
- Whether B agreed to repay the amount.
- Whether B has failed to repay.
- Whether B was minor at the time when the contract was entered.
Illustration 2
A is charged with murder of B.
Facts in issue:
- Whether A caused the death of B.
- Whether A caused such death intentionally.
- Whether A was suffering from insanity at the time when the death was caused.
RELEVANT - SECTION 2(1)(k)
“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.”
Meaning of Relevant Fact
A fact is called relevant when it has a legally recognized connection with another fact. Relevancy determines which facts may be proved and which facts must be excluded. Merely because a fact appears useful or interesting does not make it legally relevant. It must be connected in a manner permitted by the Act. Thus, relevancy is the gateway to admissibility of evidence.
Statutory Nature of Relevancy
Section 2(1)(k) makes it clear that relevancy is not based on common sense alone, but on the specific provisions of the Adhiniyam.
A fact becomes relevant only if its connection with another fact falls within the categories described in provisions relating to relevancy of facts, i.e Section 4-50 of the Adhiniyam. Thus, relevancy is a question of law. Therefore, a fact may appear logically connected, yet be legally irrelevant.
Logical Relevancy - Logical relevancy means a fact has a reasonable connection with another fact according to logic, human experience, or common sense. However, logical relevancy alone is not sufficient under the law.
Legal Relevancy - Legal relevancy means a fact is relevant because the law expressly recognizes that kind of connection. A fact is legally relevant only if it falls within one of the categories (section 4-50) laid down in the Adhiniyam. Thus, legal relevancy is logical relevancy plus statutory recognition.
Relationship Between Logical and Legal Relevancy
All legally relevant facts are logically relevant. But all logically relevant facts are not legally relevant. Only those logically relevant facts which are recognized by statute become legally relevant.
Example 1
A confessed before the Police officer. Logically confession seems relevant but it is not legally relevant as section 23(1) clearly states that confession before a police officer is not relevant.
Example 2
The accused had a strong motive to kill the victim. Motive is logically relevant as well as legally relevant under Section 6 of the Adhiniyam.
Example 3
The accused is generally a bad person. Logical suspicion may arise against the accused.
However, the Adhiniyam does not permit character evidence to prove guilt (except in limited cases). Hence, not legally relevant.
Relevant Fact and Fact in Issue
Relevancy always revolves around facts in issue. Relevant facts are those facts which:
- Help prove or disprove facts in issue, or
- Establish probability or improbability of facts in issue.
Proved, Disproved and Not Proved
These three expressions form the core standard of judicial fact-finding under the Bharatiya Sakshya Adhiniyam.
The Act does not insist upon absolute or mathematical certainty. Instead, it adopts the standard of judicial belief based on probability, tested through the conduct of a reasonable and prudent person. Thus, every fact placed before a court will finally fall into one of three categories:
- Proved - (Section 2(1)(j))
A fact is said to be proved when, after considering all matters before it, the Court:
Either believes that the fact exists, or
Considers its existence so probable that a prudent person would act upon the assumption that it exists.
- Disproved - (Section 2(1)(c))
A fact is said to be disproved when, after considering the matters before it, the Court:
Either believes that the fact does not exist, or
Considers its non-existence so probable that a prudent person would act upon the assumption that it does not exist.
- Not Proved - (Section 2(1)(i))
A fact is said to be not proved when it is neither proved nor disproved. This situation arises when evidence is insufficient or evidence is evenly balanced.
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EVIDENCE - SECTION 2(1)(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.
Meaning of evidence
Evidence refers to the material placed before the court for the purpose of proving or disproving facts.
Section 2(1)(e) gives an inclusive definition, indicating that evidence broadly consists of two categories:
1. Oral Evidence
2. Documentary Evidence
Oral Evidence
Oral evidence consists of:
- All statements including statements given electronically
- Which the court permits or requires to be made before it by witnesses
- Regarding matters of fact under inquiry.
Nature of Oral Evidence
Oral evidence is the verbal account of a witness relating to facts perceived or known by him.
It may be:
- Spoken in open court, or
- Given through electronic means (such as video conferencing).
Documentary Evidence
Documentary evidence consists of:
- All documents including electronic or digital records
- Produced for inspection of the court.
DOCUMENT - SECTION 2(1)(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.
Meaning and Scope of Document
The term “document” has been given a very wide meaning under the Act.
- “Any Matter Recorded Upon Any Substance”
The expression “any substance” means that the material on which the matter is recorded is irrelevant. Paper is not necessary. It may be stone, wood, cloth, wall etc.
- Modes of Recording
The matter may be recorded by Letters, Figures, Marks, Any other means Or combination of these means.
Examples - Written words, Numbers, Symbols, Codes etc.
- Intention to Record Information
For something to qualify as a document it must be intended to record information, or it must be capable of being used to record information.
Accidental marks or meaningless scribbles do not become documents.
- Inclusion of Electronic and Digital Records
The definition expressly includes electronic records or digital records.
Examples - Emails, WhatsApp messages, SMS, CCTV footage etc.
Relationship with Documentary Evidence
Only when a document is produced for inspection of the court, it becomes documentary evidence.
EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE AND RELEVANT FACTS - SECTION 3
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation: This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure.
Section 3 lays down the fundamental rule of admissibility of evidence.
It declares that evidence can be given only of:
- Facts in issue, and
- Relevant facts
- And of no other facts.
Thus, this section draws a clear boundary around what kinds of facts may be proved before a court.
Explanation to Section 3 – Limitation by Civil Procedure Law
The Explanation clarifies that:
Even if a fact is a fact in issue or relevant fact, a person cannot give evidence of it if:
- He is disentitled to prove it by any law relating to civil procedure. This means procedural law may impose restrictions on who can prove certain facts.
Illustration - If a civil procedural law bars a party from leading evidence on a particular issue because: Pleadings are absent, or Time limit has expired, Then Section 3 does not override such bar. Thus, evidence law is subject to procedural law.
