INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
of the defendant’s pleader, or at the usual place of custody of such evidence. The application must be made on oath affirming relevance of the documents, but no undertaking is required. Such inspection is lim - ited to documents referred to and/or relied on by the defendant in its pleadings, or to specific documents that the claimant affirms the defendant has, and does not amount to a general search of the defendant’s premises. The CPC also allows appointment of commissioners under Order XXVI for local investigation/inspection or for ascertaining mesne profits or damages, or annual net profits. The commissioner records the evidence, prepares a report and submits it to the court, and may also examine witnesses on interrogatories or other - wise. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Criminal Proceedings As stated in 2.1 Disclosure of Defendants’ Assets , Section 94 BNSS empowers a court or the police to summon any person to produce any document, com - munication device containing digital evidence or thing necessary for investigation or trial. The provision is not limited to the accused and may be invoked to seek a document or thing relevant for investigation from any person in whose possession or power such document or thing is believed to be. Civil Proceedings Under the CPC, courts have broad powers to seek production of any document or evidence from any party, either on its own or pursuant to an application filed by a claimant in this regard. One notable change regarding production of documents is that under the newly enacted BSA the definition of the word “docu - ment” has been expanded to include: • electronic or digital records stored in emails; • server logs; • documents on a computer; • messages; • websites; • the cloud; • location evidence; and • voicemail messages stored on digital devices.
Similarly, the definition of the word “evidence” has also been expanded to include any information given electronically, marking a significant statutory develop - ment. 2.4 Procedural Orders Under the CPC, a claimant seeking a temporary injunc - tion (such as to preserve any property or prevent any further injury) may be granted an ex parte injunction if the court believes that the delay in notifying the other party may defeat the purpose of the injunction sought. However, the claimant will be required to inform the opposite party of this and to send all documents forthwith. Such an injunction may be vacated upon an application filed by the opposite party if the claimant has knowingly made false or misleading statements. Further, once an ex parte interim injunction is granted, the court is required to hear and dispose of the appli - cation of the claimant for injunction within 30 days of Victims of fraudulent acts or fraud have two avenues through which they can seek redress against perpe - trators: • initiation of criminal proceedings; or • the filing of a civil suit. passing the interim order. 2.5 Criminal Redress The victim can also pursue both civil and criminal rem - edies simultaneously for the same cause of action. Such proceedings take place before different courts and hence do not impact on the speed at which they are disposed. However, criminal proceedings can be initiated only when criminal offences are sufficient - ly made out in the cause of action, as courts have repeatedly cautioned against giving a criminal colour to purely civil/contractual disputes. In practice, the route chosen by victims depends on the relief sought. Indian criminal law provides lim - ited scope for victim compensation, which is usu - ally recoverable from the fine imposed by the court, and is subject to the discretion of the court. Hence, if the overarching goal of initiation of proceedings is recovery, a victim will be well advised to pursue civil proceedings; but, if the goal is to seek punishment
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