Important Definitions under Section 2 of the Bharatiya Sakshya Adhiniyam, 2023: Court, Fact, Facts in Issue, Relevant, Evidence, Document, Proved, Disproved, Not Proved and Presumptions

Section 2 supplies the vocabulary of the entire Adhiniyam. Every later provision is drafted in terms defined here, and a provision cannot be applied correctly unless the defined term is read in its statutory sense rather than its ordinary one. The Indian Evidence Act scattered these definitions between Section 3, an interpretation clause of long unnumbered paragraphs, and Section 4. The Adhiniyam consolidates all of them into a lettered Section 2(1)(a) to 2(1)(l), and adds a new Section 2(2) incorporating definitions from three other statutes.

1. The Structure of Section 2

Clause	Term defined	Corresponding IEA provision
2(1)(a)	Court	Section 3, paragraph 1
2(1)(b)	Conclusive proof	Section 4, paragraph 3
2(1)(c)	Disproved	Section 3, paragraph 8
2(1)(d)	Document	Section 3, paragraph 5
2(1)(e)	Evidence	Section 3, paragraph 6
2(1)(f)	Fact	Section 3, paragraph 2
2(1)(g)	Facts in issue	Section 3, paragraph 3
2(1)(h)	May presume	Section 4, paragraph 1
2(1)(i)	Not proved	Section 3, paragraph 9
2(1)(j)	Proved	Section 3, paragraph 7
2(1)(k)	Relevant	Section 3, paragraph 4
2(1)(l)	Shall presume	Section 4, paragraph 2
2(2)	Incorporation of definitions from the Information Technology Act, 2000, the BNSS, 2023 and the BNS, 2023	No corresponding provision

The clauses are arranged alphabetically rather than logically, which is a drafting convenience. The two definitions that formerly stood in Section 4 of the Indian Evidence Act, together with 'conclusive proof', have been brought into the same clause, so that the whole vocabulary of the statute is now found in one place.

2. Court — Section 2(1)(a)

Section 2(1)(a), BSA

'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.

2.1 Analysis

The definition is inclusive, not exhaustive. The word 'includes' means that the ordinary sense of 'court' is retained and enlarged, not replaced.
The test is functional. What matters is whether the person is legally authorised to take evidence, not the name of the forum or its place in the judicial hierarchy.
Arbitrators are expressly excluded. The exclusion works with Section 1(2), which excludes proceedings before an arbitrator, and with Section 19(1) of the Arbitration and Conciliation Act, 1996.
'Legally authorised' means authorised by law. An authority which receives statements without statutory authority to take evidence is not a court, and a private body cannot become one by agreement between the parties.

2.2 The distinction between a court and a tribunal

📖 Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66

Facts: Whether a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a 'court'.

Held: A tribunal is a court only if it has power to give a definitive judgment which possesses finality and authoritativeness, and which is binding as an adjudication of the rights of the parties. A body that merely enquires and reports, its findings being advisory, is not a court.

Ratio: The essential characteristic of a court is the power to render a binding and final determination of rights.

📖 Virindar Kumar Satyawadi v. State of Punjab, AIR 1956 SC 153

Held: In distinguishing a court from a quasi-judicial tribunal, the test is whether the authority has power to determine questions of legal right by the application of legal rules, after hearing evidence and argument, and whether its determination is binding. A body required to act judicially in the sense of observing a fair procedure does not thereby become a court.

Ratio: The manner of proceeding is not decisive; the nature and effect of the determination is.

A body that is not a court within Section 2(1)(a) is not bound by the Adhiniyam, but it remains subject to the principles of natural justice and to the rule that a finding cannot rest on no evidence at all.

3. Fact — Section 2(1)(f)

Section 2(1)(f), BSA

'Fact' means and includes —

(i) any thing, state of things, or relation of things, capable of being perceived by the senses;

(ii) any mental condition of which any person is conscious.

Kind of fact	Meaning	Illustrations drawn from the statute
Physical or external fact	A thing, state of things or relation of things perceptible by the senses	That there are certain objects arranged in a certain order in a certain place; that a man heard or saw something; that a man said certain words
Psychological or internal fact	A mental condition of which a person is conscious	That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense; that a man is or was at a specified time conscious of a particular sensation
Positive fact	The existence of a state of things	That a person was present at a place at a given time
Negative fact	The non-existence of a state of things	That a person did not do a particular act; that a witness did not report an incident

Two features of the definition are worth noting. First, it is wide enough to include a mental state, so that intention, knowledge, good faith and dishonesty are facts capable of proof and not merely inferences of law. Second, the reference to what is 'capable of being perceived by the senses' means that a fact is not confined to what any particular person actually perceived. A negative fact is as much a fact as a positive one, though it is ordinarily harder to prove.

4. Facts in Issue — Section 2(1)(g)

Section 2(1)(g), BSA

'Facts in issue' means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation. — Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

4.1 How facts in issue are determined

Proceeding	Source of the facts in issue
Civil suit	The pleadings. The court frames issues under Order XIV of the Code of Civil Procedure, 1908 on the material propositions of fact or law affirmed by one party and denied by the other. Each such issue of fact is a fact in issue, as the Explanation to Section 2(1)(g) makes clear
Criminal trial	The charge, read with the substantive law. The Bharatiya Nyaya Sanhita supplies the ingredients of the offence, and each ingredient that the prosecution must establish and the accused denies is a fact in issue
Both	The substantive law is the ultimate source. The law of evidence does not determine what must be proved; it determines only how it may be proved

The point in the third row is often overlooked. Whether a particular fact is a fact in issue is a question of substantive law and pleading, not of the law of evidence. The Adhiniyam takes the facts in issue as given and regulates the proof of them.

4.2 Illustration

On a charge of causing death by an act done with the intention of causing death, the facts in issue would ordinarily include: that the deceased died; that the death was caused by an act of the accused; that the accused intended to cause death; that the accused was of sound mind; and, where a defence such as grave and sudden provocation is raised, the facts constituting that defence. Motive, preparation, previous or subsequent conduct, and the recovery of a weapon are not facts in issue. They are relevant facts, from which a fact in issue may be inferred.

5. Relevant — Section 2(1)(k)

Section 2(1)(k), BSA

One fact is said to be 'relevant' to another when the one is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts.

The definition is circular in form and deliberately so. Relevancy under the Adhiniyam is not a matter of general logic but of statutory recognition. A fact is relevant only if it is connected with a fact in issue in one of the ways set out in Sections 4 to 50. A fact which appears probative but does not fall within any of those heads is not relevant, and evidence of it cannot be given.

This is the practical effect of Section 3, which provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant, and of no others.

Head of relevancy	Sections
Facts forming part of the same transaction (res gestae)	4
Facts which are the occasion, cause or effect of facts in issue	5
Motive, preparation, and previous or subsequent conduct	6
Facts necessary to explain or introduce relevant facts	7
Things said or done by a conspirator	8
Facts otherwise irrelevant which become relevant	9 and 10
Facts showing the existence of a state of mind, or of body or bodily feeling	12
Facts bearing on whether an act was accidental or intentional	13
Existence of a course of business	14
Admissions and confessions	15 to 25
Statements by persons who cannot be called as witnesses, including dying declarations	26 and 27
Statements made under special circumstances	28 to 32
Judgments of courts when relevant	34 to 38
Opinions of third persons, including experts	39 to 45
Character when relevant	46 to 50

6. Evidence — Section 2(1)(e)

Section 2(1)(e), BSA

'Evidence' means and includes —

(i) all statements including any statement given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the Court, and such documents are called documentary evidence.

Two expansions distinguish the definition from Section 3 of the Indian Evidence Act. Oral evidence now expressly includes statements given electronically, supplying the statutory foundation for depositions taken by video conference and for the remote examination of witnesses and experts. Documentary evidence now expressly includes electronic or digital records. Under the earlier Act the same result had to be reached indirectly, through the definition of 'document' read with Section 65B and the provisions inserted by the Information Technology Act, 2000.

📖 Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532

Held: The word 'evidence' is used in common parlance in three senses — as equivalent to relevant, as equivalent to proof, and as equivalent to the material on which the court acts in reaching its conclusion. The statutory definition adopts the third sense.

Ratio: Evidence is the instrument of proof and not proof itself. A fact may be in evidence and yet remain unproved.

⚠ What the definition leaves out

Material or real evidence such as a weapon or a stained garment is not within either limb, and is brought before the court under the second proviso to Section 55, which permits the court to require the production of a material thing for its inspection. The demeanour of a witness, facts judicially noticed under Sections 51 and 52, facts admitted under Section 53, presumptions, and the result of a local inspection are likewise not evidence in the statutory sense, though a court acts upon all of them.

7. Document — Section 2(1)(d)

Section 2(1)(d), BSA

'Document' means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter, and includes electronic and digital records.

7.1 The elements

Any matter. The content may be words, numbers, symbols, an image or a sound; the definition does not confine itself to writing.
Expressed, described or otherwise recorded upon any substance. The medium is immaterial. Paper, stone, metal, wood, cloth and electronic storage all qualify.
By letters, figures or marks or any other means. The mode of recording is immaterial. A map, a plan, a caricature, an inscription and a photograph are all documents.
Intended to be used, or which may be used, for the purpose of recording that matter. The recording purpose is what distinguishes a document from a mere physical object.
Includes electronic and digital records. New to the Adhiniyam, and the source of the expansion of the whole documentary evidence chapter.

7.2 The Illustrations

The Illustrations to Section 2(1)(d) retain the traditional examples — a writing, words printed, lithographed or photographed, a map or plan, an inscription on a metal plate or stone, and a caricature — and add a new Illustration devoted to electronic records. That Illustration covers an electronic record on e-mails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices.

8. Electronic and Digital Record

The Adhiniyam uses the expression 'electronic and digital records' throughout but does not itself define it. The definition is supplied by Section 2(2), which applies the definitions contained in the Information Technology Act, 2000.

Section 2(1)(t), Information Technology Act, 2000 — 'Electronic record'

'Electronic record' means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

Provision	Effect on electronic and digital records
Section 2(1)(d)	Brings them within the definition of 'document'
Section 2(1)(e)	Brings them within the definition of 'evidence' as documentary evidence, and brings statements given electronically within oral evidence
Section 57	Explanations deem specified electronic outputs to be primary evidence — where a record is created or stored simultaneously in multiple files, each file is primary evidence; where a record is stored and then copied or transmitted, each copy is primary evidence; and where a record is produced from proper custody, it is primary evidence unless disputed
Section 61	Admissibility shall not be denied merely because a record is electronic, and such a record shall, subject to Section 63, have the same legal effect, validity and enforceability as any other document
Section 63 and the Schedule	Conditions and certificate for the admission of an electronic record as secondary evidence, including disclosure of the hash value in Part A and a declaration signed by an expert in Part B
Section 39(2)	Opinion of an Examiner of Electronic Evidence under Section 79A of the Information Technology Act, 2000

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Held: A three-Judge Bench held that the certificate then required by Section 65B(4) of the Indian Evidence Act is mandatory wherever secondary electronic evidence is relied upon, but is not required where the original device is itself produced by its owner. Where a party is unable to obtain the certificate from the person in control of the device, the court may compel its production.

Position under the BSA: The distinction between an electronic record produced from the device itself and a copy tendered as secondary evidence is now reflected in Sections 57 and 63.

9. Proved, Disproved and Not Proved

Sections 2(1)(j), 2(1)(c) and 2(1)(i), BSA

A fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

A fact is said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

A fact is said to be 'not proved' when it is neither proved nor disproved.

9.1 Analysis of 'proved'

'After considering the matters before it'. The court considers the whole of the material, not merely the evidence led by one party. The expression 'matters before it' is wider than 'evidence', and takes in admissions, judicially noticed facts, presumptions and the demeanour of witnesses.
'Either believes it to exist, or considers its existence so probable'. Two alternative routes to proof are provided: actual belief, and a judgment of probability. Absolute certainty is not required.
'A prudent man'. The standard is objective. The question is not what the particular judge is personally persuaded of, but what a reasonable and prudent person would act upon.
'Ought to act upon the supposition that it exists'. Proof is measured by the willingness to act, not by philosophical certainty. This is the practical test at the heart of the definition.
'Under the circumstances of the particular case'. This is what permits the degree of assurance to vary. It is the textual basis on which courts require proof beyond reasonable doubt in a criminal trial and proof on a preponderance of probabilities in a civil suit, although the statutory definition is common to both.

9.2 The three states compared

	Proved	Disproved	Not proved
State of the judicial mind	Affirmative satisfaction of existence	Affirmative satisfaction of non-existence	Neither satisfaction
Effect	The fact is treated as existing	The fact is treated as not existing	The party bearing the burden fails on that fact
Relationship	The positive finding	The positive negative finding	The residual category, covering the case where the evidence is evenly balanced or insufficient

The distinction between 'disproved' and 'not proved' is of practical consequence. An accused who establishes a defence brings about a finding that the prosecution case is disproved; an accused who merely raises a reasonable doubt brings about a finding that it is not proved. In either case he is entitled to an acquittal, but the two findings are different in kind, and the difference matters where a statutory presumption places the burden on him.

10. May Presume, Shall Presume and Conclusive Proof

Sections 2(1)(h), 2(1)(l) and 2(1)(b), BSA

'May presume'. Whenever it is provided that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it.

'Shall presume'. Whenever it is directed that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

'Conclusive proof'. When one fact is declared to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

	May presume	Shall presume	Conclusive proof
Nature	Presumption of fact — permissive	Presumption of law — obligatory but rebuttable	Presumption of law — irrebuttable
Discretion of the court	The court may presume, or may call for proof	No discretion; the court must presume	No discretion; the court must regard the fact as proved
Rebuttable	Yes	Yes	No
Evidence in rebuttal	Permitted	Permitted	Not permitted
Illustrations under the BSA	Section 119 — the court may presume the existence of certain facts, such as that a man in possession of stolen goods soon after the theft is either the thief or a receiver	Section 116 — legitimacy of a child born during a valid marriage, subject to the exception; Section 118 — dowry death; Section 120 — absence of consent in specified prosecutions	Section 116 operates as conclusive proof of legitimacy unless it is shown that the parties had no access to each other at any time when the child could have been begotten

📖 Sodhi Transport Co. v. State of Uttar Pradesh, (1986) 2 SCC 486

Held: The expression 'shall presume' does not make the presumed fact conclusive. A presumption is not evidence in itself but only makes a prima facie case for the party in whose favour it operates. It indicates the person on whom the burden of proof lies, and when that person adduces evidence to rebut it, the presumption disappears.

Ratio: A mandatory presumption is a rule about the burden of proof, not a rule that forecloses enquiry.

📖 M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691

Held: A presumption of fact under a 'may presume' provision is an inference which the court may draw from the proof of certain other facts, applying its knowledge of human affairs and the common course of natural events. It is not a legal fiction. Proof of a fact depends on the degree of probability of its having existed, and the standard is that of the prudent man.

Ratio: A permissive presumption is an ordinary process of inference given statutory recognition, and remains subject to the definition of 'proved' in Section 2(1)(j).

📖 Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052

Held: A rule prescribing that on proof of one fact another shall be treated as conclusively proved is a rule of evidence. Such a rule regulates the mode of proof and does not by itself create or extinguish substantive rights, though the legislature must have the competence to enact it.

Ratio: Conclusive proof is a rule of evidence, and its effect is to shut out evidence in rebuttal on the fact so declared.

11. Section 2(2) — Incorporation of Other Definitions

Section 2(2), BSA

Words and expressions used but not defined in the Adhiniyam, but defined in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023, shall have the same meanings as assigned to them in those enactments.

The Indian Evidence Act contained no such incorporating provision, and courts had to construe expressions such as 'electronic record' by reference to the Information Technology Act as a matter of interpretation rather than by force of a statutory direction. Section 2(2) makes the incorporation express.

Expression used in the BSA	Where defined
Electronic record; computer; computer system; computer network; electronic form; electronic signature; hash function	Information Technology Act, 2000
Examiner of Electronic Evidence	Section 79A, Information Technology Act, 2000
Judicial proceeding; inquiry; investigation; police report; Magistrate; charge	Bharatiya Nagarik Suraksha Sanhita, 2023
Offence; and the ingredients of particular offences	Bharatiya Nyaya Sanhita, 2023

12. Related Topics and Provisions

Topic or provision	Connection
Fact, Fact in Issue and Relevant Fact	Works out the three definitions in Sections 2(1)(f), (g) and (k) in detail
Relevancy and Admissibility of Evidence — Difference	Applies the definition of 'relevant' in Section 2(1)(k) against the rules of proof
Nature and Meaning of Evidence	The definition in Section 2(1)(e) and the classification of evidence into its several kinds
Application of the BSA — Section 1	The forums in which the definition of 'Court' operates
Sections 57, 61 and 63 and the Schedule, BSA	The provisions given content by the definitions of 'document' and 'electronic record'
Sections 116 to 120, BSA	The statutory presumptions to which Sections 2(1)(b), (h) and (l) supply the operative meaning
Section 79A, Information Technology Act, 2000	Examiner of Electronic Evidence