Section 68 BSA 2023: Proof Where No Attesting Witness Is Found
Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 provides the method for proving an attested document when no attesting witness can be found. It operates as an alternative mode of proof where the normal method of calling an available attesting witness under Section 67 BSA cannot be followed.
Text of Section 68 - Proof where no attesting witness found
"If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
What Section 68 BSA means
A document may be required by law to be attested. Ordinarily, proof of execution is governed by Section 67, which requires at least one attesting witness to be called when such a witness is alive, subject to the process of the Court and capable of giving evidence, subject to the statutory proviso contained in that section.
Section 68 applies when no such attesting witness can be found. In that situation, the party relying on the document must establish two handwriting facts: first, that the attestation of at least one attesting witness is in that witness's handwriting; and second, that the signature of the person who executed the document is in the handwriting of that person.
Essential requirements under Section 68
- The document is one for which proof of attestation is legally relevant.
- No attesting witness can be found for the purpose of proving execution in the ordinary manner.
- The handwriting of at least one attesting witness must be proved.
- The handwriting or signature of the executant must also be proved.
- The section should be read with the surrounding provisions on proof of signatures, handwriting and attested documents.
Relationship with Sections 65 to 72 BSA
Section 68 forms part of the statutory sequence dealing with proof of documentary execution and attestation. Section 65 deals generally with proof of signature and handwriting; Section 67 lays down the normal rule for documents required by law to be attested; and Section 68 provides the alternative where no attesting witness can be found.
The succeeding provisions cover related situations, including admission of execution by a party under Section 69, denial or failure of recollection by an attesting witness under Section 70, and documents not required by law to be attested under Section 71.
Section 68 BSA and old Section 69 of the Indian Evidence Act, 1872
Section 68 BSA broadly carries forward the rule that appeared in Section 69 of the Indian Evidence Act, 1872. The earlier provision additionally referred to a document purporting to have been executed in the United Kingdom; that wording does not appear in Section 68 BSA.
| Provision | Position |
|---|---|
| Section 68, Bharatiya Sakshya Adhiniyam, 2023 | Applies where no attesting witness can be found and requires proof of an attesting witness's handwriting and the executant's signature or handwriting. |
| Section 69, Indian Evidence Act, 1872 | Contained the corresponding earlier rule and also included wording concerning a document purporting to have been executed in the United Kingdom. |
Commencement and savings
The Bharatiya Sakshya Adhiniyam, 2023 is Act 47 of 2023 and came into force on 1 July 2024. Section 170 repeals the Indian Evidence Act, 1872 but preserves the old Act for any application, trial, inquiry, investigation, proceeding or appeal that was already pending immediately before the BSA came into force.
Practical note
Before relying on Section 68, identify whether the proceeding is governed by the BSA or is saved by Section 170 for continued application of the Indian Evidence Act, 1872. The date and procedural status of the matter can therefore affect which statutory provision should be cited.
Related BSA provisions
Official legal sources
For authoritative text and commencement details, refer to the Bharatiya Sakshya Adhiniyam, 2023 on India Code and the Ministry of Home Affairs - New Criminal Laws.
Disclaimer: This article is for general legal information. The applicable evidentiary rule depends on the facts, the nature of the document and the procedural status of the case.