Bharatiya Sakshya Adhiniyam, 2023 - Presumptions as to Documents
Section 81 BSA: Presumption as to Gazettes in Electronic or Digital Record
Section 81 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the Court's presumption regarding the genuineness of an Official Gazette, or another record required by law to be kept, when it is produced in electronic or digital form from proper custody.
Text of Section 81 of the Bharatiya Sakshya Adhiniyam, 2023
81. Presumption as to Gazettes in electronic or digital record. - The Court shall presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any person, if such electronic or digital record is kept substantially in the form required by law and is produced from proper custody.
Explanation. - For the purposes of this section and section 93 electronic records are said to be in proper custody if they are in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render that origin probable.
Meaning and legal effect of Section 81 BSA
The section applies to an electronic or digital record that appears to be an Official Gazette, as well as to an electronic or digital record which a law requires a person to keep. When the statutory conditions are satisfied, the Court is directed to presume the genuineness of that record.
The expression "shall presume" is defined in the BSA as requiring the Court to regard the relevant fact as proved unless and until it is disproved. Accordingly, Section 81 creates a rebuttable statutory presumption rather than an irrebuttable or conclusive rule.
Conditions for the presumption under Section 81
- The material must be an electronic or digital record.
- It must purport to be the Official Gazette, or a record which a law directs a person to keep.
- The record must be kept substantially in the form required by law.
- It must be produced from proper custody.
What is "proper custody"?
The Explanation to Section 81 treats an electronic record as being in proper custody when it is kept in the place, and looked after by the person, with whom the document is required to be kept. The Explanation also recognises that custody will not become improper merely because it does not fit that ordinary description, where the record is shown to have a legitimate origin or the surrounding circumstances make that origin probable.
Connection with Section 93 BSA
The Explanation to Section 81 is expressly made relevant to Section 93, which concerns the presumption as to electronic records that are five years old. This cross-reference makes the concept of proper custody important beyond Section 81 itself.
Practical significance
Section 81 facilitates proof of qualifying official and legally maintained electronic records by giving them a statutory presumption of genuineness when the prescribed form and custody requirements are met. A party disputing genuineness may seek to rebut the presumption with appropriate evidence.