Section 88 and 88A of the Indian Evidence Act, 1872: Presumption as to Telegraphic and Electronic Messages

Sections 88 and 88A form part of the statutory rules concerning presumptions about communications. Section 88 deals with telegraphic messages, while Section 88A deals with electronic messages. This article states the legal position under the Indian Evidence Act, 1872 immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force.

Important correction: Presumption as to books, maps and charts is dealt with by Section 87, not Section 88. Section 88 concerns telegraphic messages. The earlier page heading incorrectly associated Section 88 with books, maps and charts.

Meaning of "may presume"

Under Section 4 of the Indian Evidence Act, where the Act provides that the Court "may presume" a fact, the Court has discretion either to regard that fact as proved unless and until it is disproved, or to call for proof of it. Sections 88 and 88A therefore create permissive presumptions; they do not compel the Court to draw the presumption in every case.

Section 88: Presumption as to telegraphic messages

Rule: The Court may presume that a message forwarded from a telegraph office to its apparent addressee corresponds with the message delivered for transmission at the office from which it purports to have been sent. The Court cannot, merely by applying Section 88, presume who delivered that message for transmission.

The provision separates the integrity of transmission from the identity of the sender. It permits a presumption that the forwarded message corresponds with what was handed in for transmission, but expressly withholds any presumption about the person who handed it in. Where authorship or identity is disputed, that matter must therefore be established through admissible evidence rather than assumed under Section 88.

Section 88A: Presumption as to electronic messages

Rule: The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the apparent addressee corresponds with the message fed into the computer for transmission. The provision expressly does not permit a presumption as to the person by whom the message was sent.

Section 88A was inserted by the Information Technology Act, 2000. Its limited presumption concerns correspondence between the transmitted electronic message and the message fed into the computer for transmission. It does not, by itself, prove the identity of the actual sender.

Meaning of "addressee" and "originator"

The Explanation to Section 88A adopts the meanings assigned to "addressee" and "originator" in Section 2(1) of the Information Technology Act, 2000. In substance, an addressee is the person intended by the originator to receive the electronic record, excluding an intermediary; an originator is the person who sends, generates, stores or transmits an electronic message, or causes it to be sent, generated, stored or transmitted, excluding an intermediary.

Practical effect of Sections 88 and 88A

Both provisions distinguish between a presumption concerning the communication and proof of the person responsible for sending it. A party relying on a telegram or electronic message should therefore separately consider proof of authorship, authenticity and other applicable rules governing documentary or electronic evidence. Section 88A should not be read as a statutory presumption that the person named or appearing as the sender actually sent the message.

Section 87 and the old page heading

For completeness, Section 87 of the Indian Evidence Act deals with the presumption as to books, maps and charts. It permits the Court, subject to the statutory conditions, to presume specified particulars concerning a book used for information on matters of public or general interest and a published map or chart whose statements are relevant facts and which is produced for inspection.

Legal position covered by this article

This page intentionally explains the Indian Evidence Act, 1872 position applicable before commencement of the Bharatiya Sakshya Adhiniyam, 2023. It is therefore intended as a legacy-law reference for matters in which the earlier Evidence Act remains relevant. For proceedings governed by the new evidence law, the corresponding provisions of the Bharatiya Sakshya Adhiniyam should be consulted.