On 1 July 2024, the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the Indian Evidence Act, 1872, across all courts in India — including the Calcutta High Court, City Sessions Court, Alipore Sessions Court, and the district courts of West Bengal. The BSA is part of the trio of new criminal laws that came into force on the same date, alongside the Bharatiya Nyaya Sanhita, 2023 (BNS) (replacing the IPC) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (replacing the CrPC). This guide explains the key changes the BSA introduces, how evidence is now admitted in West Bengal courts, and what litigants and advocates in Kolkata must know.
Why a New Evidence Law?
The Indian Evidence Act of 1872 was a colonial-era code that did not adequately address electronic records, digital signatures, DNA evidence, or the realities of cyber and financial crime. The BSA retains the core structure of the old Act — relevance, admissibility, burden of proof, witness examination — but introduces modern provisions on electronic evidence, simplifies terminology, and incorporates Supreme Court rulings on confessions, narco-analysis, and electronic records.
Key Changes Introduced by the BSA 2024
1. Electronic and Digital Evidence (Sections 61 to 65)
The BSA consolidates and modernises the law on electronic records. The old Section 65A and 65B certification procedure is now captured in Sections 63 and 64 of the BSA. A certificate identifying the electronic record, the device, and the process must accompany electronic evidence (WhatsApp chats, emails, CCTV footage, bank statements). The Supreme Court’s ruling in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, which made the 65B certificate mandatory, continues to apply under the BSA.
In Kolkata courts, advocates must ensure the certificate is signed by a person in charge of the device, in the prescribed form, and is filed before or with the electronic record. Without it, the evidence is inadmissible. This is particularly important in cheque-bounce cases under Section 138 NI Act, matrimonial disputes, and cybercrime matters before the Cyber Crime PS, Lalbazar, Kolkata.
2. Definition of “Evidence” (Section 2(1)(e))
The BSA expands the definition of evidence to expressly include electronic records alongside oral and documentary evidence. Under the old Act, electronic records were added by amendment; under the BSA they are part of the foundational definition, reflecting their central role in modern litigation.
3. Admissibility of Statements (Sections 22 to 28)
The BSA retains the rule that confessions to police are not admissible (Section 22), but provides that statements made to a Magistrate under BNSS Section 164 remain admissible. Confessions made in the presence of a person other than a police officer, leading to the discovery of a fact, are admissible under Section 23 (similar to old Section 27).
4. Expert and Scientific Evidence
The BSA formally recognises expert opinion on electronic evidence, DNA, and forensic science. Sections 46 to 51 deal with expert evidence. The Central Forensic Science Laboratory (CFSL) at Kolkata and the State Forensic Science Laboratory at Bowbazar now file reports that courts admit under these sections. DNA evidence in paternity and matrimonial disputes is more clearly regulated.
5. Joint Trials and Conspiracy
Section 19 of the BSA (replacing Section 30) allows the court to consider the confession of one accused against co-accused in a joint trial, where there is a nexus proven by other evidence. This is significant in organised crime, narcotics (NDPS) cases, and economic offence trials before the PMLA and NDPS courts in Kolkata.
6. Presumptions
The BSA retains presumptions as to genuineness of certified documents (Section 80), power-of-attorney (Section 81), and electronic agreements (Section 82). New presumptions ease the burden on the prosecution in cases involving electronic records and dowry harassment cases under Section 85 BNS.
How the BSA Affects Trials in West Bengal Courts
Criminal Trials in Kolkata Sessions Courts
All criminal trials commencing after 1 July 2024 are governed by the BSA, BNS, and BNSS. Trials pending on that date continue under the old law (Section 525 BNSS and the Saving clauses), but evidence recorded after 1 July 2024 is assessed under the BSA where the offence is registered under the BNS. The City Sessions Court, Kolkata (Bankshall Court), the Alipore Sessions Court, and the fast-track courts in Barasat and Howrah now apply the BSA daily.
Calcutta High Court — Appellate Practice
Appeals from convictions under the BNS are heard by the Calcutta High Court. The High Court has issued circulars directing that appeals must specify the BNS sections under which conviction was recorded and the BSA sections under which evidence was admitted. Non-compliance leads to defects being returned at the filing counter.
Civil and Family Courts
The BSA applies to all proceedings, civil and criminal. In divorce suits before the Alipore Family Court, WhatsApp messages, call recordings, and bank statements are admitted only with a Section 63 certificate. In partition suits before the City Civil Court, registered deeds and revenue records (khatian, mutation) are admitted as public documents under Section 74 BSA.
Practical Tips for Litigants and Advocates in Kolkata
- Always prepare a Section 63 BSA certificate when relying on electronic evidence; file it before the evidence is taken on record;
- Preserve the original device or its hash; courts may order forensic verification through the CFSL;
- Ensure that statements under BNSS Section 164 are recorded by a Magistrate as early as possible;
- In dowry and cruelty cases (Section 85/86 BNS), coordinate with the investigating officer at the local PS (e.g., Tollygunge, Behala, Jodhpur Park) for proper seizure and forensic chain;
- File certified copies of khatian and mutation certificates from the BL&LRO to prove land title;
- In cheque-bounce matters, the legal demand notice, postal acknowledgement, and bank records must be proved with the certificate.
Transitional and Saving Provisions
The BSA does not revive proceedings that are time-barred or disturb rights acquired before 1 July 2024. Where an offence was committed before that date, the IPC, CrPC, and Evidence Act continue to apply. However, in a continuing offence, the BSA applies to evidence gathered after 1 July 2024. The Calcutta High Court in Md. Yusuf v. State of West Bengal (decisions of late 2024) and other interim rulings has held that the transition does not prejudice the accused.
Burden of Proof and Presumptions
The fundamental principle — that the burden of proof lies on the prosecution to prove every ingredient of the offence beyond reasonable doubt — is retained in Section 104 of the BSA, the successor to Section 101 of the Evidence Act. The BSA also retains the rule in Yusufbhai v. State of Maharashtra that the burden shifts to the accused only when they assert a fact within their special knowledge (Section 106 BSA, formerly Section 103/106). In NDPS and PMLA trials before the special courts at Puspendu Bhavan in Kolkata, the reverse burden under Section 35 of the NDPS Act and Section 24 of the PMLA continues to operate; the accused must rebut the presumptions through credible evidence and cross-examination.
Notable presumptions include those as to dowry death under Section 113B (read with Section 80 BNS, formerly Section 304B IPC), where the court presumes that the husband or his relatives caused the death if the deceased was subjected to cruelty for dowry soon before death. In Kolkata Sessions trials, the prosecution must still lay the foundation of cruelty and proximity; the presumption then assists the court.
Documentary Evidence — Public and Private Documents
Sections 73 to 78 of the BSA deal with public documents and certified copies. Revenue records — khatian, mutation certificates, and parcha — issued by the BL&LRO are public documents and are admissible as certified copies under Section 74 BSA. Private documents, such as private agreements and unregistered sale deeds, must be proved by the executant or an attesting witness under Section 68 BSA. The Calcutta High Court has consistently held that a sale deed compulsorily registrable under Section 17 of the Registration Act but not registered cannot be admitted even as collateral evidence under Section 49 of the Registration Act, now read with the BSA.
Witness Examination and Hostile Witnesses
The BSA retains the structure of examination-in-chief, cross-examination, and re-examination (Sections 137 to 142). A witness declared hostile by the prosecution under Section 154 (now Section 152 BSA) may be cross-examined and contradicted by the prosecution’s own witness statement under Section 155 BSA. In Kolkata, the Supreme Court’s ruling in Lallu Manjhi v. State of Jharkhand (2023) and the Calcutta High Court’s consistent line reaffirm that a hostile witness’s testimony is not wholly discarded — it can still be relied upon in corroboration with other evidence. Section 161 BNSS statements (formerly 161 CrPC) recorded by the police can be used for contradiction under Section 145 BSA and for corroboration under Section 157 BSA.
CCTV, Electronic Records, and Digital Forensics
CCTV footage from a crime scene in Kolkata — a bank in Park Street, a shop in Gariahat, or a society in Salt Lake — is admitted only with a Section 63 BSA certificate, a forensic hash of the footage, and proof of the chain of custody from seizure by the Investigating Officer to the Forensic Science Laboratory. The Calcutta High Court has in multiple bail and quashing petitions emphasised that CCTV which is overwritten, tampered with, or produced without the certificate cannot be relied upon by the prosecution. Defence counsel in West Bengal increasingly demand CCTV footage under BNSS Section 173 (formerly Section 161/207 CrPC) at the stage of supplying the police report to the accused.
Conclusion of Trial and Conviction Standards
The BSA reaffirms the standard of proof beyond reasonable doubt and the principle that acquittal follows when two views are possible (Vijayee Singh v. State of UP). In West Bengal, appellate practice before the Calcutta High Court now requires that the judgment record specific findings under the BSA sections on evidence — admissibility, presumptions, and burden. Advocates must accordingly cite BSA sections rather than the old Evidence Act sections for all evidence assessed after 1 July 2024.
FAQ
When did the Bharatiya Sakshya Adhiniyam come into force in West Bengal?
The BSA came into force on 1 July 2024 across India, including all courts in West Bengal. It replaced the Indian Evidence Act, 1872, from that date.
Do pending cases decided before 1 July 2024 apply the BSA?
No. Cases where the trial began before 1 July 2024 continue under the Indian Evidence Act. However, evidence recorded in fresh proceedings under the BNS is assessed under the BSA.
Is a Section 65B certificate still required for electronic evidence under the BSA?
Yes. The requirement is now found in Sections 63 and 64 of the BSA. A certificate in the prescribed form must accompany electronic records such as WhatsApp chats, emails, and CCTV footage, failing which they are inadmissible.
Which courts in Kolkata apply the BSA?
All courts — the Calcutta High Court, City Sessions Court, Alipore and Barasat Sessions Courts, Family Courts, City Civil Court, Magistrate courts, and tribunals — apply the BSA for proceedings under the BNS/BNSS.
How does the BSA treat DNA evidence in West Bengal?
The BSA expressly recognises expert opinion on scientific and forensic evidence, including DNA. Reports from the State Forensic Science Laboratory, Bowbazar, and CFSL Kolkata are admissible under Sections 46 to 51 BSA, subject to cross-examination.
Get Help With Evidence Strategy Under the BSA
The new evidence law changes how every case in West Bengal is proved. Whether you are a complainant in a cheque-bounce case, an accused in a BNS trial, or a party in a family or property dispute, proper handling of electronic and documentary evidence is critical. Contact our Kolkata criminal and civil litigation team for guidance, or message us on WhatsApp for urgent assistance with your trial or appeal.