The Evidence (Amendment) Bill 2022: An appraisal

On August 31, 2022, the Evidence (Amendment) Bill was introduced before the parliament. This Bill will be an Act only after completing some legislative procedures. Under the Bill, any digital record has been included in the definition of 'document' in section 3. The definition of 'digital record' has been added in the same section which implies that any data or information generated, prepared, sent, received, or stored in magnetic or electro-magnetic, optical, computer memory, micro film, computer generated microfiche including audio, video, DVD and all records of CCTV, Drone, Cell phone, hardware, software, and all other digital devices, are to be considered as digital record.

At present, we are completely dependent on digital devices. So, it is usual that in many, if not all, cases, evidences are digital or electronic. For instance, video recording or CCTV footage can play a vital role in criminal cases. In this regard, it has been essential to make digital records admissible as evidence. The term 'digital record' has been added to sections 17, 34, 35, 36, and 39 in the Bill. Besides, section 22A says that the oral admission of digital evidence would be inadmissible unless the genuineness of the digital record is in question. For example, if the opposing party raises any question regarding the authenticity of the video footage, only then the oral admission of the witness regarding the video footage can be admissible in the court.

The term 'digital signature' has also been added to the Bill. Section 3 provides that the definition of the term 'digital signature' prescribed in the Information and Communication Technology Act, 2006 will be applicable. Section 2(1) of the Act of 2006 says that 'digital signature' means the data in an electronic form which can satisfy affixing the signatory uniquely, capable of identifying the signatory, created in sole control of the signatory, etc. The Bill also contains another provision in sections 67A and 47A so that nobody can defraud the court by only adding the digital signature. Rather, under these sections, the digital signature of the subscriber must be proved in court. Moreover, if the court is in doubt, it may take help from the opinion of the certifying authority which gives the authorisation of such signature.

The second point introduced in the Bill is the extension of the scope of the opinion of the expert in the court. Now, under section 45 of the Evidence Act,1872 only the opinion of persons specially skilled in science, arts, foreign law, the identity of handwriting or finger impressions are called 'expert opinion' which is admissible in the court when the court has to form an opinion regarding those matters. Along with the aforementioned subjects, the definition of 'expert opinion' was expanded by the Bill to cover a wide range of areas. It says that persons specially skilled in physical or forensic evidence or digital record, footprint, palm impression, typewriting, usage of trade, technical term, the identity of person or animal also are experts. Their opinion when necessary will be admitted in the court. For instance, if the court has to form an opinion regarding the trade of vehicles, the opinion of persons specially skilled in the trade of vehicles can be admissible as evidence. The opinion of the 'certifying authority' on the identification of 'digital signature' can also be considered as the 'expert opinion'.

The third point proposed in the bill is the protection of the victims of rape cases from questioning her character. In this regard, section 146(3) is proposed to be amended so that no question in cross-examination can be made as to the general immoral character or previous sexual behaviour of the victim. Besides, section 155 under which the prosecutrix of the rape case can be shown as of generally immoral character is proposed to be omitted. This provision will protect the women from humiliating and embarrassing questions during rape trial.

Some provisions should be amended because of their outdated and irrelevant nature which remained untouched in this Bill. Among these, sections 82, 89, and 166 immediately need to be revisited.

Section 82 deals with the procedure for proving a document in Bangladesh that is recognised as a public document under the laws of England and Ireland. Such a document will be recognised as admissible without showing evidence of a seal, stamp, or signature when it is presented before any Bangladeshi court. The court will assume that the seal, stamp, or signature is genuine. It was enacted for the convenience of the English Rulers in the Indian Subcontinent. There is no practical utility of this provision at present and therefore it needs to be omitted.

Section 89 says '[t]he Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.' It means that the judicial presumption of a document might take place only if notice is given, even though the document is not produced before the court. The document, not stamped, is presumed to be stamped and attested by this provision. Consequently, it is an unreasonable presumption that goes completely against natural justice. Furthermore, section 166 discusses the power of a jury or assessors. This is an outdated provision because there is no jury system in Bangladesh at present.

The writer is a Student of Law, the University of Dhaka.