Sections 34–41 IEA vs Sections 28–35 BSA — Statements in Special Circumstances and Judgments of Courts

In India, Sections 28 to 35 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 34 to 41 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. Most rules carry over. The substantive changes are in gazette recitals (Section 31), law books in electronic form (Section 32) and Tribunal judgments in rem (Section 35).

At a glance

These are rules of relevancy, not offences, so no First Schedule classification applies. The neighbouring Sections 42 to 44 IEA (other judgments; fraud or collusion) continue as Sections 36 to 38 BSA and are outside this page. The BSA commenced on 1 July 2024 under S.O. 849(E) dated 23 February 2024.

What changed

Statements made under special circumstances (IEA 34–38 → BSA 28–32)

• Minor edit — Section 28 (IEA 34): the operative words are carried over, including "including those maintained in an electronic form" (inserted into Section 34 IEA by Act 21 of 2000 with effect from 17 October 2000). The comma after "regularly kept in the course of business" is dropped, and the Illustration's "Rs. 1,000" becomes "one thousand rupees".
• Minor edit — Section 29 (IEA 35): the body is word for word the same, including "record or an electronic record" (also inserted by Act 21 of 2000). Only the heading changes, from "Relevancy of entry in public record made in performance of duty" to "Relevancy of entry in public record or an electronic record made in performance of duty".
• Identical — Section 30 (IEA 36): maps and charts "generally offered for public sale", and maps or plans made under the authority of "the Central Government or any State Government".
• Modified — Section 31 (IEA 37):
  • Omitted: recitals in "any Act of Parliament of the United Kingdom" and in a "Provincial Act"; a "notification by the Crown Representative"; and "any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of his Majesty".
  • Restated: "a Government notification … appearing in the Official Gazette" becomes "a Central Government or State Government notification appearing in the respective Official Gazette".
  • Added: a statement "in any printed paper or in electronic or digital form purporting to be such Gazette".
• Expanded — Section 32 (IEA 38): a book "purporting to be printed or published including in electronic or digital form under the authority of the Government" of a country, and a book of law reports "including in electronic or digital form". The heading now reads "law books including electronic or digital form" (IEA: "law-books").

How much of a statement is to be proved (IEA 39 → BSA 33)

• Identical — Section 33: the text substituted into Section 39 IEA by Act 21 of 2000 (covering electronic records) is carried over word for word.

Judgments of Courts (IEA 40–41 → BSA 34–35)

• Identical — Section 34 (IEA 40): a judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is relevant when that is the question.
• Expanded — Section 35 (IEA 41): "a competent Court" becomes "a competent Court or Tribunal". The single paragraph is split into sub-section (1) (relevancy) and sub-section (2) (conclusive proof), with the four conclusive-proof matters numbered (i) to (iv); commas are added ("legal character, which it confers"; "such judgment, order or decree").
• Minor edit — group headings: "JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT" becomes "Judgments of Courts when relevant"; the other two headings are the same words in sentence case.

Statutory text (relevant extract)

Extract, Section 37 IEA (repealed from 1 July 2024):

… any statement of it, made in a recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette …

Extract, Section 31 BSA:

… any statement of it, made in a recital contained in any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact.

Extract, Section 35(1) BSA:

A final judgment, order or decree of a competent Court or Tribunal, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character …

How it works

Section 28 — account books. An entry is relevant if (a) it is in a book of account, including one "maintained in an electronic form", (b) the book is "regularly kept in the course of business", and (c) it refers to a matter into which the Court has to inquire. The second limb limits its weight: the entry alone cannot charge a person with liability. The Illustration makes the point — A's account books showing B owes one thousand rupees "are relevant, but are not sufficient, without other evidence, to prove the debt".

Section 29 — public and official records. The entry must (a) be in a public or other official book, register, record or electronic record, (b) state a fact in issue or relevant fact, and (c) be made by a public servant in the discharge of official duty, or by another person in performance of a duty "specially enjoined by the law of the country" in which the record is kept.

Section 31 — facts of a public nature. When the Court must form an opinion on a fact of a public nature, a recital of it in a Central or State Act, or in a Government notification in the respective Official Gazette (printed or in electronic or digital form), is relevant. Neighbouring presumptions as to Gazettes are in Sections 80 and 81 BSA.

Section 32 — law of any country. Statements of law in a book published under the authority of that country's Government, and reports of its courts' rulings in a book purporting to be a law report, are relevant — now expressly including electronic or digital forms.

Section 33 — the rule of completeness. Where the statement proved is part of a longer statement, conversation, isolated document, book, electronic record or series of letters, evidence is given of "so much and no more" as the Court considers necessary to understand the statement's nature and effect and the circumstances in which it was made.

Section 35 — judgments in rem. A final judgment of a competent Court or Tribunal in probate, matrimonial, admiralty or insolvency jurisdiction that confers, takes away or declares a legal character, or declares entitlement to a specific thing "not as against any specified person but absolutely", is relevant; under sub-section (2) it is conclusive proof of when the legal character accrued or ceased and that the thing was that person's property from the declared time.

What this means in practice

For a party relying on accounts (civil recovery, tax, corruption, hawala-type prosecutions)

• Prove the three elements of Section 28 first: a book, a book of account, and regular keeping in the course of business. On V.C. Shukla (below), loose sheets are not a book, and a memorandum is not an account unless its entries are reckoned.
• Then lead independent evidence that the entries reflect real transactions. Without it, Section 28's final words bar a decree or conviction on the entries alone.
• For electronic ledgers, the entry is within Section 28 ("maintained in an electronic form"), but, on a reading of the text, proving the electronic record itself is a separate step governed by the documentary and electronic-evidence provisions in Sections 57 to 63 BSA — see the electronic-evidence pages linked below.

For a party proving age or status from an official register

• A school register, birth register or similar entry is admissible under Section 29 only if the three conditions are met. On Birad Mal Singhvi, its weight on age depends on evidence of the material on which the entry was made — examine the parent or the person who supplied the information where possible.

For proving public facts, notifications and foreign law

• A recital in a Central or State Act, or in an Official Gazette notification, can now be proved from an electronic or digital version purporting to be the Gazette (Section 31). Recitals in Acts of the United Kingdom Parliament and in the London Gazette are no longer listed.
• Foreign law can be proved from government-authorised publications and law reports in electronic or digital form (Section 32).

For parties in matrimonial, probate or insolvency litigation

• A final decree of a competent Tribunal exercising any of the four jurisdictions now falls within Section 35. Whether a particular Tribunal exercises "probate, matrimonial, admiralty or insolvency jurisdiction" depends on the statute that creates it — a reading of the text, since the BSA does not list Tribunals.
• Other judgments are relevant only as Sections 34 to 37 BSA allow. A civil decree does not end a criminal case on the same facts (Premshanker, below).

Judgments that still matter

Central Bureau of Investigation v. V.C. Shukla and Ors., [1998] 1 S.C.R. 1153 (1998 INSC 119) — 2 March 1998. A Bench of M. K. Mukherjee, S. P. Kurdukar and K. T. Thomas JJ. (judgment by Mukherjee J.) heard the CBI's appeals against the High Court's order quashing the proceedings and discharging the respondents in the "Jain hawala" cases, which rested on diaries and loose sheets seized from J. K. Jain. The Court held that "to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business" (report p. 1172). Loose sheets or scraps of paper "cannot be termed as 'book'" because they can be easily detached and replaced; the spiral notebooks and pads were books (pp. 1172–1173). The notebook MR 71/91 was a book of account "as it records monetary transactions duly reckoned" (p. 1176). Whether a book is regularly kept depends on the nature of the occupation (p. 1179). The words "shall not alone be sufficient" are an "additional safeguard of insistence upon other independent evidence" (p. 1180), and there was no independent evidence of the payments. The appeals were dismissed, leaving open whether members of Parliament are public servants under the Prevention of Corruption Act (last page). The report shows no paragraph numbers.

Birad Mal Singhvi v. Anand Purohit, [1988] Supp. 2 S.C.R. 1 (1988 INSC 198) — 2 August 1988. E. S. Venkataramiah and K. N. Singh JJ. (judgment by Singh J.) heard an election appeal where the High Court had set aside the appellant's election on the footing that two candidates whose nominations were rejected had in fact attained 25 years, relying on school registers and certificates. The Court held that to render a document admissible under Section 35 "three conditions must be satisfied": the entry must be in a public or other official book, register or record; it must state a fact in issue or relevant fact; and it must be made by a public servant in discharge of official duty or by another person in performance of a duty specially enjoined by law (p. 21). A date-of-birth entry in a school register "is relevant and admissible under Section 35", but "is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded" (p. 21). The appeal was allowed, the High Court's order set aside and the election petition dismissed (last page). Section 29 BSA repeats the operative words.

K.G. Premshanker v. Inspector of Police and Anr. — Supreme Court, 12 September 2002. A Bench of M. B. Shah, B. P. Singh and H. K. Sema JJ. (judgment by Shah J.) heard a police officer's plea that a criminal prosecution for custodial assault should be dropped because the complainant's civil suit for damages had been dismissed (that decree was later set aside on appeal and remitted). The Court held that a previous judgment which is final "can be relied upon as provided under Sections 40 to 43 of the Evidence Act"; that if a criminal case and civil proceedings are for the same cause, the civil judgment "would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41"; and that in each case the court must first ask whether the judgment is relevant and then what its effect is. It held that the observation in V.M. Shah v. State of Maharashtra that a criminal court's finding "stands superseded" by a civil court's finding "is not correct enunciation of law". The appeal was dismissed. Our record gives no S.C.R. or INSC citation, and the text shows no paragraph numbers. Sections 40 to 43 IEA are now Sections 34 to 37 BSA.

Sections 28, 29, 34 and 35(1) BSA repeat the operative words these judgments construed (Section 35 adding "or Tribunal"), so on a reading of the text the judgments remain relevant to the new sections. No Supreme Court judgment applying Sections 28 to 35 BSA was found.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". On a reading of that provision, a matter pending on 1 July 2024 applies Sections 34 to 41 IEA — so, for example, a Tribunal's judgment would fall outside Section 41 IEA in such a matter — while a matter begun afterwards applies Sections 28 to 35 BSA. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What are the BSA equivalents of Sections 34 to 41 of the Evidence Act? Sections 28 to 35 of the Bharatiya Sakshya Adhiniyam, 2023 replace Sections 34 to 41 of the Indian Evidence Act, 1872 in the same order from 1 July 2024: account books (28), public and electronic records (29), maps and plans (30), gazette recitals (31), law books (32), part of a longer statement (33), judgments barring a second suit or trial (34) and judgments in probate, matrimonial, admiralty or insolvency jurisdiction (35).

Are entries in account books enough to prove a debt under Section 28 BSA? No. Section 28 BSA, like Section 34 IEA, makes entries in books of account regularly kept in the course of business relevant, but provides that such statements "shall not alone be sufficient evidence to charge any person with liability". In CBI v. V.C. Shukla, [1998] 1 S.C.R. 1153, the Supreme Court held that independent evidence of the trustworthiness of the entries is needed to fix liability.

Are loose sheets or a diary 'books of account' under Section 28 BSA? In CBI v. V.C. Shukla, [1998] 1 S.C.R. 1153, decided under Section 34 IEA, the Supreme Court held that spiral notebooks and pads were books, but loose sheets of paper in files were not, because they can be easily detached and replaced. It held that a notebook whose entries were totalled and balanced was a book of account. Section 28 BSA repeats the words the Court construed.

Is the date of birth in a school register proof of age? In Birad Mal Singhvi v. Anand Purohit, [1988] Supp. 2 S.C.R. 1, the Supreme Court held that a date-of-birth entry in a school register is relevant and admissible under Section 35 IEA (now Section 29 BSA), but is of not much evidentiary value to prove age in the absence of the material on which the age was recorded. It set out three conditions for an entry to be admissible under Section 35.

What changed in Section 31 BSA on gazette notifications? Section 37 IEA covered recitals in Acts of the United Kingdom Parliament, Central, Provincial and State Acts, Government and Crown Representative notifications, and the London Gazette or a Dominion gazette. Section 31 BSA covers recitals in a Central Act or State Act, or in a Central or State Government notification in the respective Official Gazette, or in a printed paper or electronic or digital form purporting to be such Gazette.

Can a judgment of a Tribunal be conclusive proof under Section 35 BSA? Section 35(1) BSA refers to a final judgment, order or decree of a competent "Court or Tribunal" in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction; Section 41 IEA said only "Court". Under Section 35(2), such a judgment is conclusive proof of the four matters listed in clauses (i) to (iv).

Does a civil court judgment decide a criminal case on the same facts? Not automatically. In K.G. Premshanker v. Inspector of Police (Supreme Court, 12 September 2002), the Court held that a previous judgment is relevant only as provided in Sections 40 to 43 of the Evidence Act (now Sections 34 to 37 BSA), and that it is not conclusive except as provided in Section 41 (now Section 35). The Court must first decide whether the judgment is relevant, and then its effect.

Which law applies to a trial that was pending on 1 July 2024? Section 170(2) BSA provides that a trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under S.O. 849(E), so Sections 34 to 41 IEA continue to govern those matters.

Related

• Sections 17-31 IEA vs Sections 15-25 BSA — Admissions and confessions
• Section 32 IEA vs Section 26 BSA — Dying declaration and statements of persons who cannot be called
• Sections 56-57 IEA vs Sections 51-52 BSA — Judicial notice
• Sections 76-90A IEA vs Sections 75-93 BSA — Presumptions as to documents
• Sections 62-65B IEA vs Sections 57-63 BSA — Electronic evidence framework
• Evidence Act to BSA — master mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 28 to 36 and 170; arrangement of sections, group headings and commencement footnote (S.O. 849(E)) from the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 34 to 43 with footnotes.
• Judgments read in full text: CBI v. V.C. Shukla (1998_1_1153_1191_EN.md); Birad Mal Singhvi v. Anand Purohit (S_1988_2_1_23_EN.md); K.G. Premshanker v. Inspector of Police (Diary_11192-1998_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.