Examination of Witnesses under Sections 140 to 168 of the Bharatiya Sakshya Adhiniyam, 2023

Twenty-nine sections govern what happens between the moment a witness is sworn and the moment he steps down. They settle who examines him and in what order, what may be asked and by whom, which questions the court must forbid, how a witness may be contradicted or discredited, how his memory may be refreshed, and what the judge may ask on his own. This is the most procedural chapter in the Adhiniyam and the one most used in daily practice.

1. The Chapter

2. The Structure of the Chapter

The sections fall into six groups, and identifying the group is the quickest route to the right provision.

3. Order and Control — Sections 140, 141 and 143

Section 140 hands the order of witnesses to the procedural codes and, failing them, to the court's discretion. It is the provision under which a court regulates the sequence of the trial, and it explains why the Adhiniyam itself says almost nothing about when a particular witness must be called.

Section 141 is the admissibility provision and is more important than its brevity suggests. It permits the judge to ask in what manner a proposed fact would be relevant, and directs him to admit the evidence only if he thinks the fact, if proved, would be relevant. The section also contains the provision governing the situation where the relevancy of one fact depends on another being proved first, and the order in which the two may be established.

Section 143 fixes the sequence of the three examinations and is examined in the topic devoted to Sections 142 to 144.

4. The Three Examinations — Sections 142 to 145

Section 143 provides that witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling him so desires, re-examined; that the examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief; and that re-examination shall be directed to the explanation of matters referred to in cross-examination, with new matter admitted only by leave of the court, in which event the adverse party may further cross-examine upon it.

Section 144 provides that a person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.

Section 145 provides that witnesses to character may be cross-examined and re-examined, and should be read with the character-evidence provisions in Sections 46 to 50.

These provisions are examined in detail in the topic devoted to Sections 142 to 144.

5. Leading Questions and Matters in Writing

Section 146 consolidates three provisions of the earlier Act. It defines a leading question as any question suggesting the answer which the person putting it wishes or expects to receive; provides that such questions must not, if objected to by the adverse party, be asked in examination-in-chief or re-examination except with the permission of the court; requires the court to permit them as to matters which are introductory, undisputed, or in its opinion already sufficiently proved; and provides that they may be asked in cross-examination.

Section 147 is the examination-stage counterpart of Section 94, under which the terms of a contract, grant or disposition reduced to writing may be proved only by the document. It supplies the mechanism by which the objection is taken in the witness box, and it is the answer to a witness who begins to depose to the terms of a written transaction.

6. Cross-Examination — What May Be Asked

Clause (c) is the provision under which a witness's character may be attacked in cross-examination, and its breadth is deliberate. The closing words remove the objection of self-incrimination, which is separately and more fully dealt with by Section 137.

The proviso is a protection of considerable importance and operates with Section 48, which makes evidence of the victim's character or previous sexual experience irrelevant on the issue of consent. Section 48 makes the material irrelevant; the proviso closes the route by which it would otherwise be extracted.

Sections 150 and 151 govern compulsion. Section 150 provides that if a question relates to a matter relevant to the matter in issue, Section 137 applies and the witness is compellable. Section 151 gives the court the discretion to decide whether a witness shall be compelled to answer a question going only to credit, and directs it to have regard to whether the imputation would seriously affect the court's opinion of his credibility, and whether it relates to matters so remote in time or of such a character that it would not affect that opinion.

7. What Must Not Be Asked — Sections 152 to 155

Four sections restrain cross-examination, and they operate at different levels of severity.

Sections 152 and 153 read together are the professional-conduct provisions of the chapter. A question imputing dishonesty or misconduct is not to be put on instructions alone; counsel must have reasonable grounds, and where he does not, the court may report the matter to the disciplinary authority.

8. Contradicting and Discrediting a Witness

The section contains a permission and a condition. A witness may be questioned on a previous written statement without it being shown to him — which is what permits a cross-examiner to test his account before revealing the material. But if the writing is to be used to contradict him, his attention must first be drawn to the relevant parts, so that he has an opportunity to explain.

Two related provisions complete the picture.

Section 156 states the finality rule. Where a question relates only to the credit of a witness and he answers it, no evidence may be given to contradict him — with exceptions permitting contradiction where he is asked whether he has been previously convicted and denies it, and where he is asked a question tending to impeach his impartiality and answers falsely.

Section 158 sets out the ways in which the credit of a witness may be impeached by the adverse party, or, with the consent of the court, by the party who calls him — by the evidence of persons who testify that from their knowledge of the witness he is unworthy of credit; by proof that the witness has been bribed or has accepted an offer of a bribe or received any other corrupt inducement; and by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

Section 157 — the hostile-witness provision — permits the court in its discretion to allow the party calling a witness to put questions which might be put in cross-examination. It does not use the word 'hostile', the grant of leave is discretionary, and it does not efface the testimony: the court may rely on so much of it as it finds creditworthy.

9. Corroboration by Former Statements

Section 160 corresponds to Section 157 of the Indian Evidence Act and is one of the most used provisions in the chapter.

Two conditions attach and either will do. The former statement must have been made at or about the time when the fact took place, or before an authority legally competent to investigate the fact. The second limb is what brings statements made to a Magistrate, or in the course of a competent investigation, within the section.

Section 159 makes relevant questions tending to corroborate the evidence of a relevant fact. Section 161 governs what may be proved in connection with a statement relevant under Section 26 or Section 27 — the statements of persons dead or unavailable, and evidence given in a previous judicial proceeding — permitting all matters to be proved in order to contradict or corroborate it, or to impeach or confirm the credit of the person who made it, as if he had been called as a witness.

10. Refreshing Memory — Sections 162 to 164

Three features govern the provision. The writing must have been made at the time of the transaction or so soon afterwards that the matter was fresh. It may have been made by somebody else, provided the witness read it within that time and knew it to be correct. And an expert is given a wider facility, being permitted to refer to professional treatises.

Section 163 provides that a witness may testify to facts mentioned in a document referred to under Section 162, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. This is the provision that permits a witness with no memory at all to give evidence from a contemporaneous record he vouches for.

Section 164 confers a right on the adverse party: any writing referred to under Sections 162 or 163 must be produced and shown to the adverse party if he requires it, and he may cross-examine the witness upon it. Refreshing memory is therefore not a private exercise, and a witness who consults a document in the box exposes it.

11. Documents — Sections 165 to 167

Three sections govern the production of documents during the examination of witnesses, and the second and third together make a notice to produce a powerful instrument.

Section 165 provides that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection to its production or admissibility; the validity of any such objection is to be decided by the Court, which may inspect the document unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility; and where a translation is necessary, the court may direct one and require it to be kept secret.

Section 166 provides that a party who calls for a document he has given notice to produce, and who inspects it when produced, is bound to give it as evidence if the producing party requires him to do so.

Section 167 provides that a party who refuses to produce a document he has had notice to produce cannot afterwards use it as evidence without the consent of the other party or the order of the Court.

12. The Judge's Power — Section 168

The power is expressed in the widest terms in the Adhiniyam — any question, in any form, at any time, of any witness, about any fact relevant or irrelevant — and the parties may not object.

Three limits confine it, and they are what make the width tolerable.

1. The judgment must rest on relevant facts duly proved. The judge may ask about anything; he may decide only on what is relevant and proved. The width of the enquiry does not enlarge the basis of the decision.
2. The privileges are preserved. The judge may not compel a witness to answer or produce what he could refuse under Sections 129 to 136 if the adverse party had asked. The marital, professional and State privileges are not subject to the section.
3. The restraints on improper questions apply to the judge too. He may not ask what it would be improper for anybody else to ask under Sections 152 or 153, and may not dispense with primary evidence.

The section is the statutory foundation of the proposition that a judge is not a mere umpire. Where an answer has been left obscure, where a witness has plainly not understood a question, or where a material matter has been passed over, the court may and should ask — subject always to doing so in a manner that does not descend into the arena.

13. The Position Stated Shortly

1. Twenty-nine sections govern the examination of witnesses, and the chapter is the most procedural in the Adhiniyam.
2. Sections 141, 142 and 143 of the earlier Act are consolidated into Section 146, so the chapter runs three numbers higher rather than five, and the jury provision has been dropped.
3. Section 142 defines the three examinations and Section 143 fixes their order, cross-examination not being confined to what was said in chief.
4. Section 146 permits leading questions in cross-examination and forbids them in chief and re-examination if objected to, subject to the court's permission.
5. Section 148 permits questioning on a previous written statement without showing it, but requires attention to be drawn before it is used to contradict.
6. Section 154 gives a discretion to forbid indecent questions; Section 155 makes it mandatory to forbid insulting ones.
7. Section 160 corroborates but does not make the former statement substantive evidence.
8. Section 168 confers the widest power to question, limited by the requirement of a judgment on relevant facts duly proved and by the preservation of the privileges in Sections 129 to 136.

14. Related Topics and Provisions