Examination-in-Chief, Cross-Examination and Re-Examination under Sections 142 to 144 of the Bharatiya Sakshya Adhiniyam, 2023

Three sections govern the shape of every oral testimony in every Indian court. They name the three stages, fix their order, define what each may cover, and deal with the person who is summoned only to hand over a document. The provisions are short and their consequences are considerable: they decide what a party may ask, when he loses the right to ask it, and what a court may properly act upon at the end.

1. Section 142 — The Three Examinations Defined

Section 142 corresponds to Section 137 of the Indian Evidence Act and is carried forward unchanged. It is purely definitional — it names the three stages by reference to who is asking and when, and says nothing about what may be asked.

Two points follow from the drafting and are worth noticing.

The label depends on the questioner, not on the content. An examination by the party calling the witness is examination-in-chief whatever it covers; an examination by the adverse party is cross-examination whatever it covers. Where leave is granted under Section 157 for a party to cross-examine his own witness, the questioning is still formally his examination of his own witness, and what the section permits is the form of question, not a change of stage.

Re-examination is defined by its position. It is the examination by the party calling the witness which is subsequent to the cross-examination. A second round of questioning by the calling party before any cross-examination is simply a continuation of the examination-in-chief.

2. Section 143 — Order and Scope

Section 143 corresponds to Section 138 of the Indian Evidence Act. It does three things: it fixes the sequence, it defines the scope of each stage, and it provides for the case where re-examination opens up something new.

3. Examination-in-Chief

The purpose is to place before the court, from the witness's own mouth, the facts on which the calling party relies. Four constraints govern it.

It must relate to relevant facts. Section 143 says so in terms, and Section 141 permits the judge to ask in what manner a proposed fact would be relevant and to admit the evidence only if he thinks it would be.

Leading questions are restricted. Under Section 146 they must not, if objected to by the adverse party, be asked in examination-in-chief except with the permission of the court — and the court is required to permit them as to matters introductory, undisputed, or already sufficiently proved.

The witness must speak to what he perceived. Under Section 55 oral evidence must in all cases be direct, and a witness in chief who begins to depose to what he was told is met by the rule against hearsay.

Written terms may not be given orally. Under Section 147 the adverse party may object where a witness is about to state the contents of a document that ought to be produced, and this is the examination-stage expression of Section 94.

4. Cross-Examination

The most important stage, and the one the Adhiniyam gives the widest scope.

4.1 It is not confined to the examination-in-chief

Section 143 provides expressly that cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. This is a substantial difference from the practice in some other systems, and it means that a cross-examiner may take a witness into any relevant area, including areas the calling party deliberately avoided.

The only limits are that the questions must relate to relevant facts, and the separate permission in Section 149 to ask questions going to credit — to test veracity, to discover who the witness is and his position in life, and to shake his credit by injuring his character.

4.2 The two objects

4.3 The duty to put one's case

The rule is not in the Adhiniyam but is a settled principle of fair trial: where a party intends to contradict a witness, or to suggest that his account is false, or to rely on a version inconsistent with his, the contrary version must be put to him so that he has an opportunity to answer it.

The consequences of omitting to do so are real. A court may treat the witness's account on the point as unchallenged, and may decline to act on a version put forward for the first time in argument. The principle is the same one that underlies Section 148, which requires a witness's attention to be drawn to the parts of a previous statement used to contradict him.

4.4 Where cross-examination is not availed of

Section 143 makes cross-examination conditional on the adverse party so desiring. A party may decline it, and where he does, the evidence in chief stands unchallenged and the court is ordinarily entitled to act on it.

Where a party has been denied the opportunity, the position is different and the evidence may have to be excluded or the witness recalled, the right to cross-examine being a component of a fair hearing.

5. Re-Examination

The narrowest of the three stages, and the one most often misused.

Re-examination shall be directed to the explanation of matters referred to in cross-examination. Its purpose is repair, not expansion: where cross-examination has left an answer ambiguous, has elicited part of a conversation, or has produced an impression the full facts would dispel, re-examination allows the calling party to have the matter explained.

Three rules govern it.

1. It is confined to matters referred to in cross-examination. A point that was never touched in cross-examination cannot be raised in re-examination, however much the calling party wishes he had put it in chief.
2. New matter requires the permission of the Court. The section contemplates that leave may be given, and it is not a licence — leave is sought and reasons are expected.
3. If new matter is introduced by leave, the adverse party may further cross-examine upon it. The right is automatic and does not require a separate application.

Leading questions are restricted in re-examination exactly as in examination-in-chief: under Section 146 they must not be asked if objected to, except with the permission of the court.

6. The Three Compared

7. Section 144 — The Person Called Merely to Produce a Document

Section 144 corresponds to Section 139 of the Indian Evidence Act. It draws a distinction that is easy to state and frequently overlooked in practice: between a person who produces a document and a person who gives evidence.

7.1 The distinction

7.2 Why the section matters

Three practical consequences follow.

Production is not proof. A party who summons the custodian of a record and receives the document has got the document into court and nothing more. He must still prove it — by a witness who can speak to its execution or custody, by a certified copy where it is a public document, or by the presumptions in Sections 78 to 93. The commonest error is to assume that a document produced in answer to a summons is thereby in evidence.

The producer cannot be questioned. The party who summoned him, and the adverse party, may not cross-examine him about the document, its contents, or how it came into his custody. If that evidence is needed, he must be called as a witness, sworn, and examined in chief — after which he becomes cross-examinable in the ordinary way.

The protection is for the producer. A person who holds documents in an official or custodial capacity — a bank officer, a registrar, a record-keeper — is not to be exposed to cross-examination merely because a litigant found it convenient to summon the record from him.

8. Section 145 — Witnesses to Character

A short provision closing a gap. Character evidence is admissible in the situations the Adhiniyam permits — Section 47, the previous good character of an accused; Section 49, his previous bad character where he has given evidence of good character; and Section 46, character as affecting damages in a civil case. Section 145 makes clear that a witness giving such evidence is examined like any other and is subject to cross-examination and re-examination.

The provision matters because character evidence is often given in a form — general reputation and disposition — that might otherwise be thought to stand apart from the ordinary examination. It does not.

9. Working Through an Examination

1. In chief, elicit every fact the case requires from this witness. What is omitted is ordinarily lost.
2. Avoid leading on contested matters, and be ready to justify leading on introductory or undisputed matters under Section 146.
3. In cross-examination, remember the scope is not confined to the chief, and that Section 149 opens credit as well as facts.
4. Put your case. A version not put to the witness may be treated as an afterthought.
5. Before contradicting by a previous writing, draw the witness's attention to the relevant parts — Section 148.
6. In re-examination, confine yourself to explaining what arose in cross-examination, and seek leave expressly for anything new.
7. Where a document is produced under summons, do not assume it is in evidence. Section 144 means it still has to be proved.
8. If you need the producer's evidence, call him as a witness. Only then may he be examined and cross-examined.

10. The Position Stated Shortly

1. Section 142 defines the three stages by who asks and when, and says nothing about content.
2. Section 143 fixes the order — chief, then cross if the adverse party desires, then re-examination if the calling party desires.
3. Cross-examination is not confined to the examination-in-chief, which is the widest feature of the Indian scheme.
4. Re-examination is confined to explaining matters referred to in cross-examination, and new matter requires the court's permission.
5. Where new matter is introduced by leave, the adverse party may further cross-examine upon it as of right.
6. Leading questions are permitted in cross-examination and restricted in chief and re-examination — Section 146.
7. A person summoned to produce a document does not become a witness, and cannot be cross-examined unless called — Section 144.
8. Production is not proof. The document must still be proved in the ordinary way.

11. Related Topics and Provisions