Indian Evidence Act, 1872 (IEA). It retains most provisions of the IEA including those on confessions, relevancy of facts, and burden of proof.

PROVISIONS

  • The IEA provides for two kinds of evidence - documentary and oral. Documentary evidence includes primary (original documents) and secondary (that proves the contents of the original). The BSB retains the distinction. It includes electronic records in the definition of documents.
  • Under the IEA, electronic records are categorised as secondary evidence. The BSB classifies electronic records as primary evidence. It expands such records to include information stored in semiconductor memory or any communication devices (smartphones, laptops).
  • Under the IEA, secondary evidence may be required under various Conditions, such as when the original is in the possession of the person against whom the document is sought to be proved or has been destroyed.
The BSB adds that secondary evidence may be required if the genuineness of The document itself is in question.

ISSUES

  • The Supreme Court has recognised that electronic records may be tampered while the BSB provides for the admissibility of such records, there are no safeguards to prevent the tampering and contamination of such records during the investigation process.
  • Under the IEA, a fact discovered due to information received from an Accused in police custody may be provable. The BSB retains this provision.
Courts and Committees noted that facts may be discovered in police custody By coercion, and without adequate safeguards.
  • The IEA (and the BSB) allows such information to be admissible if it was obtained when the accused was in police custody, but not if he was outside. The Law Commission recommended to remove this distinction.