​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Proof Where No Attesting Witness Can Be Found [Section 68]

1. Introduction
​As a general rule, a document which the law requires to be attested must be proved by examining at least one attesting witness. However, situations may arise where no attesting witness is available to testify. To address such practical difficulties, Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 provides an alternative mode of proof for attested documents when attesting witnesses cannot be found.

2. Statutory Provision
Section 68 provides that:

• Where no attesting witness can be found,
• It must be proved that:
  • The attestation of at least one attesting witness is in his handwriting, and
  • The signature of the executant is in the handwriting of the person who executed the document.

Thus, proof shifts from oral testimony of attesting witnesses to proof of handwriting and signatures.

3. Scope and Applicability of Section 68
This section applies only when it is not possible to examine any attesting witness, and the Court is satisfied that such examination is genuinely impossible. The Court cannot compel production of an attesting witness under this provision.
Section 68 can be invoked in the following situations:

• All attesting witnesses are dead;
• Attesting witnesses are alive but incapable of giving evidence due to physical or mental incapacity;
• Attesting witnesses cannot be traced despite reasonable efforts;
• Attesting witnesses are otherwise unavailable for reasons the Court considers sufficient.

4. Meaning of “Can Be Found”
The expression “can be found” is interpreted broadly. It does not merely mean that the witness cannot be physically located. It also includes cases where:

• The witness is alive but no longer competent to testify;
• The witness is incapable of understanding or giving evidence;
• Circumstances exist which make examination of the witness impracticable or impossible.

Thus, the focus is on practical unavailability, not mere absence.

5. Mode of Proof under Section 68When this section is invoked, the following must be proved:

1. The handwriting of at least one attesting witness, and
2. The handwriting or signature of the executant.

This proof may be established through:

• Handwriting experts,
• Persons acquainted with the handwriting,
• Other admissible evidence recognized under the Act.

Both elements are mandatory. Proof of only one is insufficient.

6. Judicial Interpretation
In Babu Singh v. Ram Sahai, the Court held that:

• A Will must ordinarily be proved strictly in accordance with Section 63 of the Indian Succession Act and Section 67 of the BSA.
• However, where attesting witnesses are unavailable, strict proof of execution and attestation is relaxed under Section 68.
• Even then, the handwriting of the attesting witness and the signature of the executant must be proved.

Thus, while oral testimony of attesting witnesses is dispensed with, documentary and handwriting proof remains essential.

7. Relationship with Other Provisions

• Section 67: Requires examination of an attesting witness where possible.
• Section 68: Provides an exception where attesting witnesses cannot be found.
• Section 69: Applies where execution is admitted by the executant.
• Section 70: Applies where attesting witnesses deny or fail to recollect execution.

Together, these provisions ensure that proof of attested documents is not frustrated by technical or practical difficulties.

8. Conclusion
Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a balance between procedural rigor and practical necessity. It ensures that an attested document does not fail merely because attesting witnesses are unavailable, while still safeguarding authenticity by insisting on proof of handwriting and signatures. The provision reflects a pragmatic approach to evidentiary proof without compromising legal certainty.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Gazettes in Electronic or Digital Form [Section 81]

​With the enactment of the Information Technology Act, 2000 and its amendment in 2008, electronic and digital records were accorded legal recognition, including electronic Gazettes (e-Gazettes). In line with this development, Section 81 of the Bharatiya Sakshya Adhiniyam, 2023 provides for a statutory presumption regarding the authenticity of such electronic or digital records.

Statutory Rule under Section 81
Section 81 lays down that:

• The Court shall presume the genuineness of:
  • Every electronic or digital record purporting to be the Official Gazette, and
  • Every electronic or digital record which is directed by any law to be kept by any person,

provided that such record:

• Is maintained substantially in the form prescribed by law, and
• Is produced from proper custody.

This presumption is mandatory in nature and operates unless the contrary is proved.

Meaning and Importance of E-Gazettes
An Official Gazette, whether in physical or electronic form, is a formal publication of the Government used to notify laws, rules, notifications, orders, and other official matters. With the transition to digital governance, e-Gazettes now serve the same legal and evidentiary purpose as traditional printed Gazettes. Section 81 ensures that courts can rely on such electronic publications without requiring strict proof of their authenticity in every case.

Proper Custody of Electronic or Digital Records
For the presumption under Section 81 to arise, the electronic or digital Gazette must be produced from proper custody. Proper custody implies that:

• The record is kept at the place where it is legally required to be kept, and
• It is maintained by the person or authority responsible for its custody.

However, the law adopts a flexible approach. Even if the record is not produced from its usual place of custody, such custody will not be considered improper if:

• The record is shown to have a legitimate origin, or
• The circumstances of the case reasonably explain and justify such custody.

Scope of Presumption
The presumption under Section 81 relates to the genuineness of the electronic or digital Gazette or record, meaning that the Court assumes it to be authentic and official. This facilitates judicial efficiency by eliminating unnecessary formal proof of official electronic publications, especially in an era where governmental records are predominantly maintained in digital form.

Conclusion
Section 81 of the Bharatiya Sakshya Adhiniyam, 2023 reflects the modern realities of digital governance by extending evidentiary presumptions to electronic and digital Gazettes. By recognizing their authenticity when produced from proper custody and maintained as required by law, this provision strengthens the credibility of electronic public records and ensures their smooth admissibility in judicial proceedings.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Gazettes, Newspapers, and Other Documents [Section 80]

Statutory Provision
Section 80 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a rule of presumption regarding the genuineness of certain official and public documents. It provides that the Court shall presume the genuineness of:

• Every document purporting to be the Official Gazette,
• Every document purporting to be a newspaper or journal, and
• Every document which purports to be one that is directed by law to be kept by any person,

provided that such document:

• Is kept substantially in the form required by law, and
• Is produced from proper custody.

This presumption is mandatory in nature, meaning the Court is bound to presume genuineness unless evidence to the contrary is produced.

Meaning of Proper Custody
The Explanation to Section 80 clarifies the concept of proper custody. A document is said to be in proper custody when:

• It is found in the place where it would naturally be kept, and
• It is under the care of the person with whom it would ordinarily be preserved.

However, the law does not insist on strict technical custody. Even if the document is not produced from its usual place of keeping, such custody will not be considered improper if:

1. It is proved that the document had a legitimate origin, or
2. The surrounding circumstances of the case reasonably make such origin probable.

This flexible approach ensures that technical objections do not defeat substantive justice.

Scope and Significance of the Section(a)Official Gazettes
Publication of rules, notifications, orders, and statutory instruments in the Official Gazette is often a mandatory legal requirement. Such publication serves two important purposes:

• It provides public notice of laws and governmental actions, and
• It acts as a formal confirmation of the validity and enforceability of the rule or order.

Under Section 80, the Official Gazette is treated as authoritative and reliable evidence. Courts rely only on the official version of the Gazette, and its genuineness need not be independently proved.

(b) Newspapers and JournalsWhile Section 80 attaches a presumption of genuineness to newspapers and journals, this presumption is limited in scope. It only establishes that:

• The newspaper or journal is genuine as a publication, and
• It was printed and circulated as it purports to be

However, the truth of the facts reported in a newspaper is not presumed. Statements of fact contained in newspapers are generally considered hearsay evidence. Therefore:

• Newspaper reports cannot be treated as proof of the facts stated therein,
• Unless the reporter or author of the report appears before the Court and testifies, or
• Unless the facts are proved through independent admissible evidence.

Thus, newspapers may be used to show that a particular statement was published, but not that the contents of the statement are true.

(c) Other Documents Directed by Law to Be KeptThe section also covers documents which the law requires certain persons or authorities to maintain, such as registers, records, or official files. If such documents are maintained substantially in the prescribed form and produced from proper custody, their genuineness is presumed without the need for formal proof.

Nature of the Presumption
The presumption under Section 80 relates only to the genuineness of the document, not to the accuracy or truth of its contents, unless expressly provided elsewhere in the Act. The presumption is rebuttable, meaning that the opposite party is free to challenge the authenticity of the document by leading contrary evidence.

Conclusion
Section 80 of the Bharatiya Sakshya Adhiniyam, 2023 plays a vital role in simplifying proof of public and official documents such as Gazettes, newspapers, and statutory records. By allowing courts to presume their genuineness when produced from proper custody, the provision promotes judicial efficiency while maintaining safeguards against misuse by limiting the presumption strictly to authenticity and not factual correctness.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Documents Produced as Record of Evidence, etc. [Section 79]

Statutory Provision
Section 79 of the Bharatiya Sakshya Adhiniyam, 2023 provides for a statutory presumption regarding documents that are produced before a Court as official records of evidence or related proceedings. It applies when a document purports to be:

• A record or memorandum of evidence, or any part of such evidence,
• Evidence given by a witness in a judicial proceeding, or before an officer authorised by law to record such evidence, or
• A statement or confession made by a prisoner or an accused person, recorded in accordance with law,

and such document purports to be signed by a Judge, Magistrate, or any other officer legally authorised for that purpose.
In such cases, the Court shall presume the following:

1. That the document is genuine;
2. That any statements made in the document regarding the circumstances under which it was recorded, and which purport to be made by the person signing it, are true; and
3. That the evidence, statement, or confession was duly taken in accordance with law.

Nature and Scope of the Presumption
The presumption under Section 79 is mandatory in nature. Once the foundational requirements of the section are satisfied, the Court is bound to presume the genuineness and due recording of the document, unless the contrary is proved.
The primary object of this provision is to dispense with formal proof of certain official judicial records. It avoids unnecessary procedural delays by eliminating the need to call the Judge, Magistrate, or authorised officer to testify merely to prove that such a document was properly recorded.
However, it is important to note that this section:

• Does not deal with the admissibility of the evidence; admissibility is governed by other provisions of law, and
• Does not raise any presumption as to the truthfulness or voluntariness of the contents, especially in the case of confessions.

Illustrative Application
For instance, a confession recorded by a Magistrate in accordance with the provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and produced before the Court will attract the presumption under Section 79. The Court will presume that:

• The document is genuine, and
• The confession was duly recorded following the prescribed legal procedure.

In such a situation, it is not necessary for the prosecution to examine the Magistrate who recorded the confession merely to prove its recording.
However, this presumption does not extend to voluntariness. Whether the confession was made voluntarily remains a matter of proof and can still be challenged by the accused.

Conclusion
Section 79 of the Bharatiya Sakshya Adhiniyam, 2023 serves as a procedural facilitation provision. By presuming the genuineness and due recording of judicial records of evidence, statements, and confessions, it promotes efficiency in judicial proceedings while carefully preserving the rights of the accused by not presuming the truth or voluntariness of such statements.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to the Genuineness of Certified Copies [Section 78]

Statutory Provision
Section 78 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule relating to the presumption of genuineness of certified copies and similar official documents. The provision recognises the reliability of documents issued or certified by public authorities and facilitates their acceptance in judicial proceedings without requiring strict proof in every case.
Under Section 78(1), the Court shall presume the genuineness of every document purporting to be a certificate, a certified copy, or any other document, provided the following conditions are satisfied:

1. The document is declared by law to be admissible as evidence of a particular fact;
2. It purports to be duly certified by an officer of the Central Government or a State Government; and
3. It is substantially in the prescribed form and appears to have been executed in the manner directed by law.

Underlying Principle
Sections 78 to 93 of the Bharatiya Sakshya Adhiniyam are based on the well-established legal maxim omnia praesumuntur rite esse acta, meaning all official acts are presumed to have been done regularly and correctly. This principle reflects judicial confidence in the integrity and regularity of acts performed by public officials in the discharge of their statutory duties.

Nature of the Presumption
The presumption created under Section 78 is mandatory but rebuttable in nature. While the Court is bound to presume the genuineness of such certified documents once the statutory conditions are fulfilled, this presumption is not conclusive.
Accordingly:

• The opposing party is entitled to challenge the accuracy or correctness of the certified copy;
• Evidence may be led to show that the document does not correctly represent the original or has been improperly certified.

Thus, the presumption only shifts the initial burden and does not foreclose inquiry into the authenticity of the document.

Presumption as to Official Character of the Certifying Officer[Section 78(2)]
Section 78(2) further strengthens the evidentiary value of certified documents by providing that the Court shall also presume that:

• The officer by whom the document purports to be signed or certified held the official position which he claims to hold at the time of signing or certification.

This presumption removes the necessity of separately proving the authority or designation of the certifying officer, thereby simplifying the process of proof.

Scope and Limitations

• The provision applies only to certificates, certified copies, or documents certified by a competent and duly authorised public officer.
• It does not apply to original documents, which must be proved in accordance with the general rules relating to primary evidence.
• The section operates purely as a rule of evidence, facilitating proof, and does not determine the substantive rights of the parties.

Conclusion
Section 78 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in ensuring procedural efficiency by according presumptive authenticity to certified public documents. By recognising the regularity of official acts while still allowing rebuttal, the provision strikes a careful balance between judicial convenience and fairness to the parties.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023 -Presumptions as to Documents and Other Facts [Section 77]

Meaning and Nature of Presumption
The term presumption is not expressly defined in the Bharatiya Sakshya Adhiniyam, 2023. In legal usage, a presumption refers to an inference drawn by the court regarding the existence or non-existence of a fact, based on another fact that has been proved or is judicially noticeable. It is essentially a process of reasoning whereby the law allows or directs courts to accept certain facts as true until evidence to the contrary is produced.

Jurists have explained presumption as a legal assumption taken without direct proof. It does not itself constitute evidence but operates as a rule of law that shifts the burden of proof. Once a presumption is raised, the party against whom it operates must disprove it by leading evidence.
​
Presumptions play a vital role in judicial proceedings by reducing the difficulty of proving facts that ordinarily arise in the normal course of human conduct, official acts, or public administration.

Relationship Between Presumption and Burden of Proof
Presumption and burden of proof are closely connected and may be viewed as two sides of the same concept. When the law raises a presumption in favor of a fact, the burden of disproving that fact lies upon the opposing party. Conversely, when the burden of proof lies on a party, the law may be said to presume the non-existence of that fact until it is proved.
Thus, presumptions help courts determine who must prove what during a trial.

Types of Presumptions Under the Bharatiya Sakshya Adhiniyam 2023
The Act recognizes three distinct kinds of presumptions:
1. “May Presume”
This category grants discretion to the court. The court may either:

• Treat the presumed fact as proved unless disproved, or
• Require the party to produce further proof.

Such presumptions are usually based on logic, common experience, and the ordinary course of human affairs. The court is not bound to draw the presumption and must exercise judicial discretion.
Examples include:

• Presumptions relating to certain documents such as foreign judicial records, books, maps, charts, electronic messages, and old documents.
• Presumptions regarding possession of stolen property shortly after theft.

2. “Shall Presume”
These presumptions are mandatory in nature. Once the foundational facts are established, the court is bound to presume the existence of the fact unless it is disproved by the opposite party.
Although rebuttable, the court has no discretion to refuse the presumption once the conditions are satisfied.
Examples include presumptions relating to:

• Certified copies of public documents
• Judicial records
• Gazettes, newspapers, and official publications
• Maps and plans prepared by government authority
• Powers of attorney
• Electronic agreements and electronic signature certificates
• Secure electronic records and signatures
• Documents called for but not produced

3. Conclusive Proof
Conclusive proof refers to an irrebuttable presumption. Once the foundational fact is proved, the law does not permit any evidence to disprove the presumed fact.
Such presumptions are absolute and final, and the court has no discretion to allow contrary evidence except where expressly permitted by the statute itself.
Examples include:

• Final judgments in probate, matrimonial, insolvency, or admiralty jurisdiction
• Certain statutory presumptions relating to legitimacy or estoppel

Presumptions Relating Specifically to Documents
Presumption as to Certified Copies
Certified copies issued by authorized public officers are presumed to be genuine, provided they are in the proper form and certified according to law. The court also presumes the official capacity of the officer who certifies such documents. However, this presumption is rebuttable.

Presumption as to Judicial Records
Documents that purport to be records or memoranda of evidence or confessions recorded by judicial authorities are presumed to be genuine. The court also presumes that such records were duly taken in accordance with law. This presumption does not extend to the truth or voluntariness of statements contained therein.

Presumption as to Gazettes, Newspapers, and Official Publications
Official Gazettes and government-directed publications are presumed to be genuine if produced from proper custody. Newspaper reports enjoy a presumption of genuineness as publications, but not of the truth of the facts reported, which remain hearsay unless independently proved.

Presumption as to Government Maps and Plans
Maps or plans prepared under the authority of the Central or State Government are presumed to be accurate. This presumption does not apply to private maps, which must be proved by examining the person who prepared them.

Presumption as to Old Documents (Thirty Years)
Documents that are thirty years old and produced from proper custody may be presumed to be genuine with respect to handwriting, signature, execution, and attestation. This presumption exists to overcome the practical difficulty of proving very old documents. However, it does not apply to wills, which must be proved strictly according to succession law.

Presumption as to Electronic Records and Digital Evidence
The Act recognizes several presumptions relating to electronic records, reflecting technological advancements:

• Secure electronic records and signatures are presumed to be unaltered and authentic.
• Electronic agreements are presumed to be validly concluded through digital signatures.
• Electronic signature certificates are presumed correct as to verified information.
• Electronic messages are presumed to match the content fed into the system, but no presumption is made regarding the identity of the sender.
• Electronic records five years old may be presumed authentic if produced from proper custody.

Proper Custody
For most documentary presumptions, production from proper custody is essential. A document is considered to be in proper custody if it is found in a place where it would naturally be kept and under the care of the person who would normally have possession of it. Custody is not considered improper merely because it is unusual, provided the court is satisfied that the document has a legitimate origin.

Conclusion
Presumptions under the Bharatiya Sakshya Adhiniyam, 2023 serve as essential legal tools that simplify proof, promote judicial efficiency, and reflect practical realities. By allocating evidentiary responsibility through logical inferences, presumptions assist courts in arriving at just conclusions while balancing fairness and convenience. However, except in cases of conclusive proof, presumptions remain rebuttable, ensuring that justice is not sacrificed at the altar of convenience.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Documents by Production of Certified Copies [Section 76]
​
Meaning and Object of Section 76Section 76 of the Bharatiya Sakshya Adhiniyam, 2023 provides a statutory method for proving public documents by producing their certified copies before the court. The section recognises that it is often impractical, inconvenient, or undesirable to bring original public records into court. Therefore, the law permits certified copies to serve as reliable substitutes for originals.
Under this provision, certified copies may be produced as evidence to prove the contents of public documents or any part thereof. Once duly certified, such copies are treated by law as equivalent to the original document for evidentiary purposes.

Scope and Application
The scope of Section 76 is limited to public documents, which include records maintained by public authorities in the discharge of their official duties. The section does not apply to private documents unless they have acquired the character of public documents under law.
Certified copies issued in accordance with statutory requirements are deemed to carry the same evidentiary value as the original public document. In this sense, the law treats certified copies as statutory originals, thereby dispensing with the need to produce the primary document.
This provision plays an important role in maintaining the integrity and safety of public records, as frequent removal of original documents could result in loss, damage, or administrative inconvenience.

Legal Effect of Certified Copies
A certified copy produced under Section 76 is admissible as secondary evidence, yet it enjoys a special status because its authenticity is backed by statutory certification. The court is not required to call the certifying authority as a witness, nor is it necessary to produce the original public document, unless the authenticity of the certified copy itself is challenged.

Illustrations and Judicial Recognition

• Electoral rolls are recognised as public documents. Accordingly, a certified copy of an electoral roll is admissible in evidence to prove its contents.
• Registers maintained under statutory authority, such as marriage registers, are also public documents. Certified copies issued from such registers are admissible to establish facts recorded therein.

In Seema v. Ashwani Kumar, the court held that proof of marriage through a registration certificate issued by the competent authority is admissible in evidence. The decision reaffirmed that a certified copy of a public register maintained under law is sufficient proof of the recorded fact, without requiring production of the original register.

Similarly, certified copies of entries from registers maintained under personal laws, such as the Hindu Marriage Register, have been recognised as admissible evidence under this section.

Importance of Section 76
Section 76 ensures:

• Convenience in judicial proceedings
• Protection of original public records
• Reliability of evidence through official certification
• Speedy administration of justice

By granting evidentiary value to certified copies, the law strikes a balance between procedural efficiency and evidentiary reliability.

Conclusion
Section 76 of the Bharatiya Sakshya Adhiniyam, 2023 provides a clear and effective mechanism for proving public documents through certified copies. It eliminates the necessity of producing original public records in court while ensuring authenticity through statutory certification. This provision strengthens the evidentiary framework by promoting efficiency, certainty, and trust in official records.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Certified Copies of Public Documents [Section 75]

Concept and Purpose of Section 75
Section 75 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the legal framework relating to certified copies of public documents. This provision explains what constitutes a certified copy, identifies the authority competent to issue such copies, and specifies the conditions under which such copies must be supplied.
The object of this section is to ensure transparency in public administration and to facilitate access to public records by persons who are legally entitled to inspect them, without requiring production of the original document in every case.

Statutory Provision
Explained Under Section 75, every public officer who has custody of a public document is under a statutory obligation to provide a certified copy of that document to any person who has a legal right to inspect it. Such copies must be issued on request and upon payment of the prescribed fee.

The section further clarifies that even if an officer does not have direct custody of the document, but is authorised in the ordinary course of official duties to issue copies, such officer shall be deemed to have custody of the document for the purposes of this section.

Meaning of Certified Copy
A certified copy is a reproduction of a public document or a part thereof, accompanied by an official certificate stating that it is a true and accurate copy of the original. For a copy to qualify as a certified copy under Section 75, the following formalities must be fulfilled:

• The copy must bear a certificate at its foot declaring it to be a true copy of the original document or the relevant part thereof.
• The certificate must be dated and signed by the issuing officer.
• The name and official designation of the officer must be clearly mentioned.
• Where the officer is authorised to use an official seal, the copy must be duly sealed.

Only copies fulfilling these statutory requirements are recognised as certified copies under the Adhiniyam.

Scope and Legal Effect
Certified copies issued in compliance with Section 75 can be produced in court as proof of the contents of public documents. Once such a certified copy is produced, no further proof is required regarding its authenticity, and the issuing officer need not be examined as a witness unless the genuineness of the copy itself is disputed.
However, a copy which does not bear the requisite certificate or is not properly authenticated does not qualify as a certified copy and is inadmissible unless supported by independent evidence.

Essential Conditions for Admissibility
For admissibility of a certified copy under this section, the following conditions must be satisfied:

1. The document must be one which the law permits the public or a class of persons to inspect.
2. The copy must be certified as a true copy by the officer having custody of the original or authorised to issue such copies.
3. The certification must include the date, signature, official designation, and seal (where applicable).

Failure to comply with these requirements renders the copy legally ineffective as certified evidence.

Judicial InterpretationIn State of Haryana v. Ram Singh, the Supreme Court held that certified copies of registered sale deeds could be relied upon as evidence in land acquisition proceedings for determining market value. The Court clarified that once certified copies are produced, examination of the parties to the original transaction is not mandatory. This decision reinforces the evidentiary value of certified copies under the law.

Conclusion
Section 75 of the Bharatiya Sakshya Adhiniyam, 2023 provides a clear and reliable mechanism for obtaining and using certified copies of public documents. By treating such copies as legally authentic reproductions of original public records, the provision promotes efficiency in judicial proceedings while safeguarding original documents from unnecessary handling. It plays a vital role in balancing accessibility, authenticity, and administrative convenience within the evidentiary system.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Electronic Agreements [Section 85]

Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule regarding the presumption relating to electronic agreements. This provision operates in harmony with the Information Technology Act, 2000, as amended in 2008, which accords legal recognition to electronic records, electronic signatures, digital signatures, and electronic contracts.

Legal Basis of Electronic Agreements
With the advancement of digital transactions, agreements are frequently executed in electronic form. The Information Technology Act, 2000 validates such electronic records and signatures, thereby enabling contracts to be formed without physical documentation. Section 85 of the Bharatiya Sakshya Adhiniyam supplements this framework by prescribing an evidentiary presumption in favour of such electronic agreements.

Statutory Presumption under Section 85
Section 85 provides that:

• The Court shall presume that every electronic record purporting to be an agreement, and
• Containing the electronic signature or digital signature of the parties,
• Was concluded by affixing such electronic or digital signatures by the parties concerned.

This means that once an electronic agreement bearing the electronic or digital signatures of the parties is produced before the Court, the law presumes that the agreement was validly executed through those signatures.

Nature of the Presumption

• The presumption under Section 85 is a rebuttable presumption of law.
• The opposing party is entitled to challenge the validity of the agreement by proving that the signatures were not affixed voluntarily, were forged, or that the agreement was otherwise invalid.
• Until such contrary evidence is produced, the Court will presume the genuineness and proper execution of the electronic agreement.

Scope and Significance

• This presumption simplifies the proof of electronic contracts by relieving the party relying on the agreement from the burden of proving execution in the first instance.
• It promotes certainty, reliability, and efficiency in electronic commerce and digital transactions.
• The provision reflects the legislative intent to place electronic agreements on par with traditional written agreements for evidentiary purposes.

Conclusion
Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 strengthens the legal framework governing digital transactions by recognising and presuming the validity of electronic agreements bearing electronic or digital signatures. By doing so, it facilitates the smooth enforcement of e-contracts while preserving the right of parties to rebut the presumption through appropriate evidence.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Powers of Attorney [Section 84] 

Section 84 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the legal presumption relating to powers of attorney. A power of attorney is a formal legal instrument by which one person authorises another to act on his behalf. Since such documents play a significant role in civil and commercial transactions, the law provides a presumption to facilitate their acceptance and proof in court.

Statutory Provision
Section 84 provides that:

• The Court shall presume that every document purporting to be a power of attorney, and
• Purporting to have been executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or a representative of the Central Government,
• Was duly executed and authenticated in the manner it claims.

Thus, once such a document is produced, the Court is bound to presume its due execution and proper authentication unless evidence to the contrary is led.

Essential Requirements for Raising the Presumption
For the presumption under Section 84 to operate, the following two conditions must be satisfied:

1. Nature of the Document
   • The document must purport to be a power of attorney, i.e., it should clearly indicate that authority has been conferred upon another person to act on behalf of the executant.
2. Execution and Authentication
   • The document must appear to have been executed before and authenticated by one of the authorities mentioned in the section, such as a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice-Consul, or a representative of the Central Government.

If a power of attorney does not mention execution before such an authority or lacks proper authentication, the statutory presumption cannot be invoked.

Proof of Power of Attorney
Apart from the presumption under Section 84, a power of attorney may also be proved by producing a certified copy issued in accordance with Section 4 of the Power of Attorney Act, 1882. This further eases the evidentiary burden on the party relying on the document.

Meaning and Scope of Power of Attorney
Under the Indian Stamp Act, a power of attorney includes any instrument by which a specified person is authorised to act for and in the name of the person executing it. Section 84 creates a presumption not only regarding the execution of such an instrument but also regarding its authentication by the designated authority.

Judicial Interpretation
In Jugraj Singh v. Jaswant Singh, the Supreme Court held that when a document purports to be a power of attorney and appears to have been executed before and authenticated by a Notary Public, the Court must presume that it was duly executed and authenticated. The Court also recognised the presumption of regularity of official acts, meaning that acts performed by public officials in their official capacity are presumed to have been done correctly.

Conclusion
Section 84 of the Bharatiya Sakshya Adhiniyam, 2023 significantly simplifies the proof of powers of attorney by creating a mandatory presumption in favour of their due execution and authentication. This provision promotes legal certainty and efficiency by reducing unnecessary technical challenges, while still allowing the presumption to be rebutted through credible contrary evidence.