Section 88 Evidence Act: Presumption as to Telegraphic Messages
Section 88 of the Indian Evidence Act, 1872 dealt with the limited presumption concerning messages transmitted through telegraph offices. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), in force from 1 July 2024, does not reproduce this telegraph-specific provision. Its Section 90 instead addresses electronic messages.
Text of former Section 88 of the Indian Evidence Act, 1872
88. Presumption as to telegraphic messages. The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
Meaning and legal effect of Section 88
The provision permitted a court to infer, in an appropriate case, that the message received through a telegraph office matched the message originally handed over for transmission. It did not allow the court to infer the identity of the individual who handed in the original message.
What does "may presume" mean?
Under the former Evidence Act, "may presume" was a discretionary presumption: the court could regard the fact as proved unless disproved, or call for proof of it. It was not a mandatory finding and could be rebutted by contrary evidence. The corresponding concept is defined in Section 2 of the BSA.
Conditions and limits
- The material must concern a message forwarded from a telegraph office to its purported addressee.
- The inference concerns correspondence between the transmitted and received messages, not the truth of their contents.
- No presumption arises under this section about the identity or authority of the person who submitted the message.
- Other requirements of relevance, admissibility and proof remain applicable.
Illustration
Suppose a telegraph office forwarded a telegram to a recipient. Under former Section 88, a court could presume that the forwarded text matched the message delivered for transmission at the originating office. The provision alone could not establish that a named person authored or submitted that telegram. Separate evidence would be needed to prove that person's involvement.
Current law: BSA Section 90 and electronic messages
Section 90 of the Bharatiya Sakshya Adhiniyam, 2023, titled "Presumption as to electronic messages", allows a court to presume that an electronic message forwarded through an electronic mail server corresponds with the message fed into the computer for transmission. It expressly excludes any presumption about who sent the message. This provision carries forward the substance of Section 88A of the former Evidence Act; it should not be described as a direct renumbering of the telegraphic-messages provision.
For present-day electronic evidence, the requirements governing electronic and digital records, including Section 63 BSA where applicable, must be considered separately. A transmission-related presumption does not itself prove the sender's identity, the truth of the communication, or compliance with admissibility requirements.
Does former Section 88 still matter?
It remains useful when reading older judgments and assessing historical telegram evidence. Whether the repealed law or a saved proceeding is governed by earlier rules depends on the facts and the repeal-and-savings provision in Section 170 BSA. Do not apply former Section 88 automatically to a new proceeding under the BSA.
Frequently asked questions
Is Section 88 of the Indian Evidence Act still in force?
No. The Indian Evidence Act, 1872 was repealed with effect from 1 July 2024, subject to statutory savings under Section 170 of the BSA.
What is the BSA equivalent of Section 88?
There is no direct telegraph-specific equivalent. BSA Section 90 addresses electronic messages and corresponds to former Evidence Act Section 88A.
Did Section 88 prove who sent a telegram?
No. It expressly prohibited a presumption about the person who delivered the message for transmission.
Official legal sources
Bharatiya Sakshya Adhiniyam, 2023 - official India Code PDF (see Sections 2, 63, 90 and 170).
India Code - official legislation database (consult the historical Indian Evidence Act, 1872, Section 88).
Bureau of Police Research and Development - BSA reference and section comparison.
Legal information only. Consult the latest statutory text and relevant judgments for a particular proceeding.