Statements Made Under Special Circumstances under Sections 28 to 32 of the Bharatiya Sakshya Adhiniyam, 2023: Books of Account, Public Records, Maps, Gazettes and Foreign Law

Sections 28 to 32 admit five classes of written statement without requiring anybody to be called to prove them. What the five have in common is that each was created for a purpose unconnected with the dispute now before the court — a ledger kept because a business must keep one, a register maintained because a statute requires it, a map published for sale, a recital in an Act, a law reported in the country where it applies. That detachment from the litigation is what stands in place of the cross-examination that never occurs.

1. The Group

These five sections form a distinct block in the relevancy chapter, headed 'Statements made under special circumstances'. Unlike Sections 26 and 27, none of them requires the maker to be unavailable. The material is admitted because of what it is, not because the person who wrote it cannot be produced. In practice this makes them a good deal easier to use, and they are relied upon far more often.

2. Section 28 — Entries in Books of Account

Section 28 corresponds to Section 34 of the Indian Evidence Act. The words 'including those maintained in an electronic form' were inserted into that Act by the Information Technology Act, 2000 and are carried forward, so that accounting software records, ledgers held in a database and digital day books stand on the same footing as bound volumes.

2.1 The two requirements

The entries must be in books of account, and they must be regularly kept in the course of business. Both have been construed strictly, and a great deal of material that a party would like to describe as accounts falls outside.

A book of account is a record of receipts and payments, or of debits and credits, kept as part of the accounting system of the business. Loose sheets of paper, scraps, memoranda, diaries containing miscellaneous jottings and personal notebooks are not books of account merely because figures appear in them. Regularity means that the entries were made systematically and habitually, as the business required, and not compiled after the event.

2.2 The qualification

The closing words of the section are as important as the opening ones. Entries in books of account are relevant, but they are not by themselves sufficient to charge any person with liability. The reason is obvious once stated: a party would otherwise be able to establish another's debt simply by writing it in his own ledger.

What the qualification requires is independent evidence connecting the person sought to be charged with the transaction. That may be a document he signed, an acknowledgment, the testimony of a person who dealt with him, or the corresponding entry in his own records. Once such evidence exists, the entries operate to establish the amount and the details; without it, they establish nothing against him.

2.3 Electronic books of account

Where the accounts are maintained electronically, Section 28 makes the entries relevant on the same terms. But relevance is only the first question, and the second is frequently fatal. The record must be proved in accordance with Sections 57, 61 and 63.

Section 61 provides that admissibility shall not be denied merely because a record is electronic, and that such a record shall, subject to Section 63, have the same legal effect as any other document. The Explanations to Section 57 deem certain electronic outputs to be primary evidence — among them a record produced from proper custody, unless disputed, and each of several files where a record is stored simultaneously or sequentially in multiple files. Where the output tendered does not fall within those Explanations, it is secondary evidence, and the certificate prescribed by the Schedule to Section 63(4) is required, with the hash value in Part A and the expert declaration in Part B.

3. Section 29 — Entries in Public or Official Records

Section 29 corresponds to Section 35 of the Indian Evidence Act. It carries no qualification of the kind found in Section 28, and an entry within it is relevant without more. The guarantee is the duty: a public servant recording a fact because his office obliges him to do so has no interest in the matter, and the record is made before any dispute exists.

3.1 The three requirements

1. The entry must be in a public or other official book, register or record, or in an electronic record, and not in a private paper.
2. It must state a fact in issue or a relevant fact. An entry recording something irrelevant to the enquiry is not made relevant by the section.
3. It must have been made by a public servant in the discharge of official duty, or by a person under a duty specially enjoined by law. An entry made by an official acting outside his duty, or gratuitously, is outside the section.

3.2 Birth and death records

Entries in the registers maintained under the Registration of Births and Deaths Act, 1969 are the standard illustration. The registrar records the birth or death because the statute requires it, and the entry is relevant under Section 29 to prove the fact and the date.

Two qualifications recur in practice. The first is that the section makes the entry relevant, not conclusive. It may be displaced by other evidence, and it frequently is where the entry was made long after the event or on information from a person who did not know the facts. The second is that the reliability of the entry depends on the reliability of the informant. An entry recording a date of birth is trustworthy because somebody with knowledge reported it; where the informant is unknown, or plainly had no personal knowledge, the entry loses much of its value.

The same reasoning applies to entries in school admission registers, which are relied upon constantly in questions of age. Such an entry is relevant where the register is maintained under a statutory or official obligation, but its weight depends on who supplied the date and whether that person had any means of knowing it.

3.3 Revenue records

Revenue records — the record of rights, jamabandis, khasra girdawaris and mutation registers — are maintained by revenue officials under statutory obligation, and entries in them are relevant under Section 29. They are among the most frequently produced documents in Indian civil litigation.

Their limitation is fundamental and constantly overlooked. Revenue records are maintained for fiscal purposes — to identify the person from whom land revenue is to be collected. They do not create title, they do not extinguish it, and an entry in favour of a person is not a declaration that he owns the land. What such an entry establishes is possession or the assertion of a claim; the title itself must be proved by the ordinary means.

The practical consequence is that a party relying on revenue entries in a title suit must use them for what they are — evidence of possession, of the parties' own assertions over time, and of the course of dealing — and must prove title by deeds, by succession, or by adverse possession. Section 11, which makes transactions and particular instances relevant where a right is in question, is ordinarily the provision that does the real work in such a case.

4. Section 30 — Statements in Maps, Charts and Plans

Section 30 corresponds to Section 36 of the Indian Evidence Act. Two categories are admitted, and the guarantee differs in each. A map published for general sale is reliable because its publisher's business depends on accuracy and because it was not prepared with any dispute in view. A map made under government authority is reliable because it was prepared officially, by persons under a duty to prepare it correctly.

The section is confined to 'matters usually represented or stated in such maps, charts or plans'. A survey map is relevant to the location and dimensions of a field, the course of a channel or the alignment of a path — the things such maps exist to show. It is not relevant to who owned the field, because ownership is not a matter usually represented in a map, and a notation of a name in the margin proves nothing about title.

In practice Section 30 does the decisive work in disputes about the location of a public way, the course of a watercourse, the boundaries of a village and the identity of a survey number. It is very commonly pleaded alongside Section 11 and Section 26(d) in litigation over public rights, where the map fixes the physical facts and the other provisions establish the right.

5. Section 31 — Statements in Acts and Official Gazettes

Section 31 corresponds to Section 37 of the Indian Evidence Act. Its function is to spare parties from proving matters of public notoriety by ordinary evidence. Where a statute recites the circumstances that occasioned it, or a notification in the Gazette records the constitution of an authority, the appointment of an officer, the declaration of an area or the coming into force of a provision, the recital or the notification is itself relevant to establish the fact.

Two limits should be noted. The section applies only to a fact of a public nature; a recital touching a private transaction is not within it. And it makes the statement relevant, not conclusive — a recital may be displaced by evidence showing the fact to be otherwise, though in practice this rarely happens with a Gazette notification.

Section 31 works closely with Section 52, under which the court takes judicial notice of certain facts and need not have them proved at all. Where a matter falls within Section 52 the question of relevance does not arise; Section 31 covers the ground beyond it.

6. Section 32 — Statements as to Foreign Law

Section 32 corresponds to Section 38 of the Indian Evidence Act. It rests on a distinction that runs through the whole subject: Indian law is not a matter of evidence at all, because the court takes judicial notice of it under Section 52 and is presumed to know it. Foreign law is a question of fact, and must be proved like any other fact.

Section 32 provides one route to that proof. An official publication of the foreign statute, and an authorised report of the decisions of the courts of that country, are relevant to establish what the law there is. The section admits the book itself; nobody need be called to say what the foreign statute provides.

The other route is Section 39, which makes relevant the opinion of a person specially skilled in foreign law. The two operate together and are ordinarily pleaded together: an expert deposes to the effect of the foreign law, and the official publication is produced to show its text. Where the two conflict, the court must resolve the conflict as it would any other question of fact.

7. The Five Sections Compared

8. The Position Stated Shortly

1. None of these sections requires the maker to be unavailable. The material is admitted because of what it is, which distinguishes the group from Sections 26 and 27.
2. Section 28 has two hurdles and a qualification — the record must be a book of account, it must be regularly kept in the course of business, and the entries alone cannot charge liability.
3. Loose sheets and diaries are not books of account, however many figures they contain.
4. Electronic books of account must clear Sections 57, 61 and 63 as well as Section 28, and this is where most such material fails.
5. Section 29 makes an official entry relevant but not reliable. Its value depends on whether the informant had personal knowledge of what was recorded.
6. Revenue entries do not confer or extinguish title. They are maintained for fiscal purposes and prove possession and assertion, not ownership.
7. Section 30 is confined to matters usually shown in maps — location, dimensions, alignment — and says nothing about ownership.
8. Section 31 covers facts of a public nature, and works alongside judicial notice under Section 52.
9. Foreign law is a question of fact and must be pleaded and proved, under Section 32 and Section 39; failing that, it is presumed to be the same as Indian law.

9. Related Topics and Provisions