INDIA Trends and Developments Contributed by: Sidharth Luthra, Aayushi Sharma Khazanchi and Sheezan Hashmi, Chambers of Sidharth Luthra
not it pertains directly to the specific issue being addressed. • Section 23 relates to confessions to police, and provides that when any fact is deposed to, as discovered in consequence of informa- tion received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved. Informa- tion received in custody may be used for the further purpose of investigation or corrobora- tion of other evidence against such informa- tion. • Section 24 relates to the consideration of a proved confession affecting the person making it and others jointly under trial for the same offence. A trial of more than one person held in the absence of the accused who has absconded or fails to comply with a procla- mation issued under Section 84 of the BNSS 2023 shall be deemed to be a joint trial. Admissibility of electronic records • Section 69 of the BSA 2023 widens the ambit of the provision by covering electronic records produced by any communication device or otherwise stored, recorded or copied in any electronic form. This includes electronic records copied in semiconductor memory in addition to optical or magnetic media as provided in the Indian Evidence Act. • The scope of devices through which elec- tronic or digital records can be sourced as evidence has been enlarged. • Section 63(4) of the BSA 2023 requires a “person in charge of the computer or commu-
nication device or the management of the rel- evant activities (whichever is appropriate) and an expert” to sign the certificate of authentic- ity accompanying such electronic evidence. This new section incorporates the judicial precedents that governed the erstwhile Sec- tion 65-B of the Indian Evidence Act, 1872 in Arjun Pandit Rao Khotkar v Kailash Kushan Rao Gorantyal (2020) 7 SCC 1 after analysing Anvar P.V. v P.K. Basheer (2014) 10 SCC 473 (three-judge bench) and Shafhi Mohammad v State of H.P. (2018) 2 SCC 801 (two-judge bench). Conclusion Their makers’ vision as a break from the colonial past does little to justify the hype around the three new laws. For the litigant, lawyer and judge, the major takeaway is that the jurisprudence of about 150 years or more remains substantially applicable. The question is whether it could have been done differently or better. Of course it could have been, but only if the drafters could have compiled all central laws creating offences, pro- cedure and evidence into three comprehensive central statutes, discarding overlap and ambigu- ity, and bringing coherence to the law. Instead, they forgot that the Evidence Act and the BSA 2023 even apply to civil proceedings and trials. An optimistic viewpoint is that this is a begin- ning, and hopefully the right direction will be tak- en in the future. Meanwhile, Indian lawyers need to figure out the new numbering and (wherever it exists) the change in language.
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