Evidence Given in a Previous Judicial Proceeding under Section 27 of the Bharatiya Sakshya Adhiniyam, 2023: Conditions, Cross-Examination and the Explanation

Section 27 is the one exception to the rule against hearsay that needs no substitute for cross-examination, because cross-examination was actually available. Where a witness has already given evidence on oath in a proceeding at which the adverse party could question him, and has since died or become unavailable, his deposition may be proved in a later proceeding as evidence of the truth of what it states. It stands closer to live testimony than anything else the Adhiniyam admits from an absent witness.

1. The Provision

Section 27 corresponds to Section 33 of the Indian Evidence Act and is carried forward unchanged. It sits immediately after Section 26 and completes the group of provisions headed 'Statements by persons who cannot be called as witnesses'.

2. What Distinguishes Section 27 from Section 26

Every clause of Section 26 admits an untested statement, and each clause supplies some circumstance to stand in place of the testing that never happened — spontaneity, routine, an interest against the maker, the solemnity of an approaching death, or the disinterestedness of a statement made before any controversy arose.

Section 27 needs none of that. What it admits is evidence, not a statement. The witness was on oath. He was examined in the presence of the adverse party. That party had the right and the opportunity to cross-examine him and, whether or not he exercised it, the safeguard was there. The only thing missing when the deposition is later read is that the second court does not see the witness for itself, and that is a limitation on the weight of the evidence rather than on its character.

This explains the additional conditions the section imposes. Because the justification is that the safeguard was present, the section must satisfy itself that it really was: hence the requirements of the same parties, the same issues, and a genuine opportunity to cross-examine. Section 26 imposes none of these, because it never claims that any testing occurred.

3. The Conditions

3.1 Evidence given in a judicial proceeding, or before an authorised person

What is admitted must have been evidence. A statement recorded by a police officer during investigation is not evidence, however carefully it was taken, and Section 27 has no application to it. Nor does the section reach a statement recorded by a Magistrate during investigation under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is a statement and not evidence, and which is used for corroboration or contradiction under Sections 160 and 148.

The alternative limb — 'before any person authorised by law to take it' — covers commissioners appointed to record evidence, arbitrators where a statute so provides, and tribunals and officers empowered by their constituting Act to take evidence. What matters is that the person had legal authority to take evidence, and that the evidence was taken as such.

3.2 The witness is now unavailable

Five grounds are specified, and the fifth is peculiar to this section. The witness must be dead, unable to be found, incapable of giving evidence, kept out of the way by the adverse party, or not producible without delay or expense the court considers unreasonable.

The fourth ground exists because a deposition already taken is a standing temptation. A party who finds the earlier evidence damaging has an interest in ensuring that the witness never appears again, and the section prevents him from profiting by it. Where it is shown that the adverse party has kept the witness away — by concealment, by inducement, or by intimidation — the deposition may be read against him even though the witness could otherwise have been produced. Section 26 contains no corresponding ground, and it is worth noticing that the clause protects only against the party who is responsible; a witness kept away by somebody else does not fall within it.

3.3 Between the same parties or their representatives in interest

The requirement follows from the rationale. If the party against whom the deposition is now tendered was not a party to the earlier proceeding, he had no opportunity to cross-examine, and the justification for admitting the evidence disappears. 'Representatives in interest' extends the requirement to successors — an heir, an assignee, a purchaser, a legal representative — since such a person takes with the litigation history attaching to what he acquired.

3.4 Right and opportunity to cross-examine

This is the condition on which most contested applications turn, and the two words must be read separately. A party who was present, was entitled to cross-examine, and chose not to has had both the right and the opportunity, and the deposition is admissible against him; he cannot complain of a safeguard he declined to use. A party who was entitled to cross-examine but never had the chance — because he had not been arrested, or had not been served, or the evidence was taken in his absence — has had the right but not the opportunity, and the condition fails.

3.5 Substantially the same questions in issue

The issues in the earlier proceeding must have been substantially the same as those in the later one. The word is 'substantially', not 'identically'. A difference in the relief claimed, or in the form of the proceeding, does not defeat the section provided the factual questions the witness addressed were the same. What defeats it is a genuine change of subject: evidence given about a boundary in a suit for possession is not receivable on the question whether a signature was forged, even between the same parties.

4. The Explanation

Without the Explanation, the same-parties requirement would be almost impossible to satisfy in a criminal case. A prosecution is not litigation between parties in the ordinary sense, and it would be open to argument that a committal inquiry and the subsequent trial are not proceedings between the same parties at all.

The Explanation removes the difficulty by deeming a criminal trial or inquiry to be a proceeding between the prosecutor and the accused. The practical consequence is that evidence recorded at a committal inquiry, or at an earlier stage of the same trial, satisfies the condition, and may be read at the trial where the witness has since died or become unavailable.

The words 'or in a later stage of the same judicial proceeding' in the body of the section work with the Explanation and are of real importance. They cover the situation where a trial has to begin afresh — on transfer to another court, on the succession of a new presiding officer where a de novo trial is directed, or where a retrial is ordered on appeal. Evidence recorded before the change may be read at the later stage, subject to the same conditions.

5. How the Deposition Is Proved

Section 27 makes the earlier evidence relevant; it does not dispense with the ordinary requirements of proof. The deposition is a document and must be proved as one.

In practice this presents little difficulty. A deposition recorded by a court forms part of the record of that court and is ordinarily proved by production of a certified copy, which attracts the presumption under Section 78 that it is genuine. Where the record of the earlier proceeding is produced, Section 79 permits the court to presume the genuineness of a document produced as a record of evidence.

What must also be established, and is sometimes overlooked, is the identity of the witness and the identity of the proceeding. The party tendering the deposition must show that the person who deposed is the person now unavailable, and that the earlier proceeding is the one in which the conditions are said to be satisfied. Where the deposition is tendered on the ground of death, the death must be proved; where on the ground that the witness cannot be found, evidence of a genuine search is required.

6. Where Section 27 Is Used

The section is invoked less often than Section 26 but is of real practical value in four recurring situations.

A witness who dies between the committal inquiry and the trial, or between two stages of a long trial, is the commonest case. His deposition is read, and the accused cannot complain, because he was present and entitled to cross-examine when it was given.

A de novo trial ordered on transfer or on the succession of a presiding officer would otherwise require every witness to be recalled. Where a witness has died or become untraceable in the interval, Section 27 permits his earlier evidence to be read at the fresh trial.

Civil litigation between the same parties over the same subject matter, where an earlier suit was withdrawn or dismissed on a technical ground and a fresh suit is brought, frequently produces the situation the section contemplates. The evidence recorded in the earlier suit is receivable in the later one if the conditions are met.

A witness kept away by the adverse party is the situation the fourth ground was framed for, and it arises most often where the evidence already recorded is strongly against the party responsible.

There is also the dying deposition, which is not a statutory term but the practitioner's name for evidence taken from a person expected to die, on oath and in the presence of the accused, and afterwards proved under this section. It is rare, because the conditions are difficult to assemble at a deathbed, but where it exists it is considerably stronger than a dying declaration under Section 26(a), for the obvious reason that the one safeguard a declaration can never have was present.

7. Section 26 and Section 27 Compared

The last row is where the practical difference lies. A court reading a deposition under Section 27 is receiving material that has already passed through the process the law regards as the principal test of truth. What it loses is the opportunity to observe the witness for itself, and that is a real loss where credibility rather than content is in issue. But the deposition is not hearsay in the sense that Section 26 material is hearsay, and it is not approached with the same reserve.

8. The Position Stated Shortly

1. Section 27 admits evidence, not a statement. The witness was on oath and was liable to be cross-examined.
2. Five grounds of unavailability are specified, including the fifth peculiar to this section — that the witness is kept out of the way by the adverse party.
3. Three conditions must be satisfied — the same parties or their representatives, a right and opportunity to cross-examine, and substantially the same questions in issue.
4. Right and opportunity are separate requirements. An opportunity declined is enough; an opportunity never given is not.
5. The Explanation makes the section workable in criminal cases by deeming a trial or inquiry to be a proceeding between the prosecutor and the accused.
6. The section covers a later stage of the same proceeding, which is what permits evidence to be read after a de novo trial or a retrial.
7. A statement recorded during investigation is not evidence, and Section 27 does not apply to it.
8. The deposition must still be proved, ordinarily by a certified copy, with the identity of the witness and of the proceeding established.

9. Related Topics and Provisions