§ SECTION 39 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Opinions of experts

The opinions run opens: when the Court must judge a specialist point — science, foreign law, handwriting, fingerprints, or any field — the opinion of a person specially skilled is relevant. So too the Examiner of Electronic Evidence on digital matters.

How to read Section 39

Borrowed knowledge, relevant — not binding.

Which points

Foreign law, science, art, any field, handwriting, fingerprints — and (sub-2) electronic evidence.

Whose opinion

A person specially skilled in that field — an expert; for e-records, the Examiner of Electronic Evidence.

Its force

The opinion is relevant — evidence to weigh, but the Court is not bound by it.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 39 · verbatim

(1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts.

Illustrations

(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

(2) When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.

In short: some questions need knowledge the Court does not have — medicine, foreign law, handwriting, computers. The law lets a specially skilled person give an opinion on that narrow point, and calls him an expert. The 2023 Act widens the fields to “any other field” and names the Examiner of Electronic Evidence for digital matters.

→ This carries forward IEA 1872 §§ 45 and 45A — the opening of the “opinions of third persons” run.

Glossary

expert

A person specially skilled in a field whose opinion on a point in it the law makes relevant.

specially skilled

Having real, above-ordinary knowledge or skill in the field — by study, training or experience.

any other field

The 2023 widening — expert opinion is no longer confined to the old list of foreign law / science / art / handwriting / prints.

finger impressions

Fingerprints — a classic field for expert identification.

Examiner of Electronic Evidence

An expert notified under § 79A of the IT Act, 2000 — for opinions on electronic/digital information.

relevant, not binding

An expert’s opinion is evidence to weigh — the Court decides; it is not bound to accept it.

The picture

The Court borrows the knowledge it lacks.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleElectronic-evidence expertThe Illustrations

the ruleWhen the Court borrows expert knowledge

In one lineWhen the Court must form an opinion on a specialist point — foreign law, science, art, any field, handwriting or fingerprints — the opinions of persons specially skilled in it are relevant; such persons are experts.

When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions,the trigger · a specialist pointwhen the Court must decide a specialist point — foreign law, science, art, any field, handwriting, or fingerprints…

the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressionswho · the specially skilled…the opinions of persons specially skilled in that field…

are relevant facts→ relevant…are relevant facts…

and such persons are called experts.= experts…and such persons are called experts.

ExampleWas A’s death caused by poison? A toxicologist’s opinion on the symptoms is relevant. So too a fingerprint examiner, a handwriting expert, or a foreign-law expert — each on their own field.

✗ Not thisAn expert only gives an opinion to help the Court — he does not decide the case, and the Court is not bound by him. And the point must need special skill: on ordinary matters of common knowledge, no expert is needed. The 2023 words “any other field” widen it well past the old list.

the electronic-evidence expertThe digital counterpart

In one lineFor electronic or digital evidence, the opinion of the Examiner of Electronic Evidence (IT Act § 79A) is relevant — and the Explanation makes him an expert.

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form,the trigger · electronic infowhen the Court must decide about electronic or digital information (in a computer resource, etc.)…

the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.→ the Examiner’s opinion…the opinion of the Examiner of Electronic Evidence (notified under IT Act § 79A) is a relevant fact.

For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.Explanation · = an expertand the Explanation makes that Examiner, in law, an expert.

ExampleWhether a server log or a chat record is authentic and what it shows — the Examiner of Electronic Evidence’s opinion is relevant, and treated as expert opinion under § 39(2).

✗ Not thisThis is a specific statutory expert for electronic records — his standing comes from the § 79A notification. It is the digital twin of the traditional expert in sub-section (1), not a way to bypass proving the electronic record itself.

the illustrationsPoison, the mind, and handwriting

In one lineThe Act’s three examples: a poison death (a), unsoundness of mind (b), and whether two documents share the same hand (c).

(a) whether A’s death was caused by poison — experts’ opinions on the symptoms are relevantmedical experta toxicologist opines on the poison’s symptoms.

(b) whether A’s symptoms show unsoundness of mind, and whether it made him incapable of knowing the act — experts’ opinions are relevantpsychiatric experta psychiatrist opines on the mental condition and its effect.

(c) whether two documents were written by the same person — experts’ opinions are relevanthandwriting experta document examiner compares the disputed writing with a proved sample.

Example(c): is the disputed letter A’s? A document is produced that is proved to be A’s; a handwriting expert’s opinion on whether both are by the same hand is relevant.

✗ Not thisThe expert’s opinion is evidence to weigh, not a verdict — the Court still compares, tests the reasons, and decides. A confident expert who gives no reasons carries little weight.

Connected provisions

§ 32

Foreign law in law books

Foreign law can be proved by official law books (§ 32) — or by an expert in it under § 39.

IT Act

Section 79A

The provision that notifies the Examiner of Electronic Evidence — the expert of § 39(2).

§ 40 · next

Facts bearing on expert opinions

The next of the opinion-relevancy provisions in Chapter II.

lineage

IEA 1872, §§ 45 & 45A

Carried forward — expert opinion, now including the electronic-evidence Examiner.