Section 137 of the Bharatiya Sakshya Adhiniyam, 2023 and Article 20(3): Compelled Testimony and the Protection Against Prosecution

Section 137 appears among the privileges and is not one. It does the opposite of what its neighbours do: it removes the right a witness might claim to refuse an incriminating question, and compels him to answer. What it gives in exchange is an immunity — the answer cannot be used against him. The exchange is deliberate, and understanding why it does not offend Article 20(3) requires seeing that the Constitution protects a different person from the one the section addresses.

1. The Provision

Section 137, BSA — Witness not excused from answering on ground that answer will criminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

Section 137 corresponds to Section 132 of the Indian Evidence Act and is carried forward unchanged.

The section has a main part and a proviso, and they pull in opposite directions by design.

The main part removes the privilege. A witness must answer. He may not decline on the ground that the answer will incriminate him, or tend to do so directly or indirectly, or expose him to a penalty or forfeiture.

The proviso substitutes an immunity. The compelled answer cannot subject him to arrest or prosecution, and cannot be proved against him in any criminal proceeding — with one exception, a prosecution for giving false evidence by that very answer.

⚠ This is not a privilege and should not be argued as one

Every other provision in Sections 127 to 136 allows somebody to withhold something. Section 137 does the reverse: it compels disclosure and protects the discloser afterwards. A witness who declines to answer on the ground of self-incrimination has raised an objection the section expressly removes, and the court may require the answer. What he is entitled to is the benefit of the proviso, and the right course is to answer and to rely on it.

2. Why the Section Exists

The rationale is a bargain between two things the system needs.

The court needs the evidence. A rule permitting every witness to decline any question that might reflect on him would make large classes of case unprovable — offences committed in concert, transactions in which several persons participated, matters where the only people who know are people with something to lose.

The witness needs protection. A person compelled to convict himself out of his own mouth, in somebody else's proceeding, would be subjected to an injustice the law does not intend.

The section resolves the tension by taking the evidence and neutralising the consequence. The witness answers; the answer serves the proceeding in which it is given; and it is made unusable against him elsewhere.

3. The Scope of the Compulsion

Four features of the main part define how far it reaches.

Feature	Effect
'A witness'	The section addresses a person giving evidence. It has nothing to say about a person under interrogation who is not a witness, and nothing to say about an accused, who is not a compellable witness at all
'Any suit or in any civil or criminal proceeding'	The compulsion operates on both sides of the docket. A witness in a civil suit is as much bound as one in a criminal trial
'Relevant to the matter in issue'	The question must be relevant. The section does not compel answers to questions that are irrelevant, and an objection on that ground is untouched by it
'Criminate ... directly or indirectly'	The reach is wide. It covers answers that would themselves establish an offence and those that would merely tend to do so, and extends to exposure to a penalty or forfeiture

The third row repays attention because it is the practical limit. Section 137 removes one objection only — self-incrimination. It does not convert an irrelevant question into a permissible one, and it does not displace Section 154, under which the court may forbid questions it regards as indecent or scandalous unless they relate to facts in issue, or Section 155, under which the court shall forbid questions intended to insult or annoy.

4. The Immunity

The proviso is the whole of what the witness receives, and its terms should be read closely.

The immunity covers	The immunity does not cover
Arrest on the basis of the answer	A prosecution for giving false evidence by that very answer
Prosecution on the basis of the answer	Proceedings other than criminal proceedings, on the face of the words
Proof of the answer against him in any criminal proceeding	Evidence obtained independently of the answer
Answers he was compelled to give	Answers volunteered where no compulsion was applied

4.1 It protects the compelled answer

The words are 'no such answer, which a witness shall be compelled to give'. The immunity attaches to answers given under the compulsion the section creates. A witness who volunteers information nobody required of him is in a different position, and this is why the record of what was asked and what was objected to can matter afterwards.

4.2 The false-evidence exception

The single carve-out is a prosecution for giving false evidence by such answer. The immunity protects a witness from the consequences of telling the truth under compulsion; it does not protect him from the consequences of lying. Without the exception, a witness compelled to answer could perjure himself with impunity, since the answer could never be proved against him.

4.3 Use immunity, not transactional immunity

The distinction matters and is worth stating precisely.

Transactional immunity would protect the witness from prosecution for the offence disclosed, whatever the evidence. Use immunity protects only against the use of the answer. Section 137 confers the second: the answer cannot be proved against him, but the prosecuting agency is not disabled from proving the offence by evidence obtained independently.

⚠ Derivative use is an open question

The proviso bars the answer from being proved against the witness. It says nothing expressly about evidence discovered as a result of the answer — a weapon found because the witness said where it was, a document traced from what he disclosed. Whether such derivative material is protected has not been authoritatively settled in India, and the safer assumption for a witness is that it is not. A witness with genuine exposure should be advised accordingly, and the question is one on which the position may develop.

5. Article 20(3)

Article 20(3), Constitution of India

No person accused of any offence shall be compelled to be a witness against himself.

Three elements must coincide, and the first is what separates the Article from Section 137.

5.1 A person accused of an offence

📖 Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, AIR 1961 SC 29

Held: The protection under Article 20(3) is available only to a person accused of an offence, and that expression means a person against whom a formal accusation has been made which in the normal course may result in his prosecution. The accusation must ordinarily be founded on a formal complaint or the registration of a first information report.

A person who is merely examined in an investigation or an inquiry, and against whom no formal accusation has been levelled, is not a person accused of an offence within the meaning of the Article.

Ratio: A formal accusation is a condition of the protection. A witness in another's proceeding is not an accused.

5.2 'To be a witness'

📖 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

Held: An eleven-Judge Bench held that 'to be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing. Giving thumb impressions, specimen writings or samples for comparison does not amount to being a witness against oneself, such material furnishing only a means of comparison and conveying no personal knowledge.

Mere custody does not by itself amount to compulsion, and a statement made while in custody is not for that reason alone a compelled statement.

Ratio: The protection covers testimonial material — the compelled communication of the contents of the mind — and not identificatory material.

5.3 The protection at the investigation stage

📖 Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424

Held: The protection of Article 20(3) is not confined to the trial. It extends to the stage of police interrogation, and the expression 'any person' in the provision governing the examination of witnesses by the police is wide enough to include a person against whom an accusation exists, so that he may decline to answer questions which have a reasonable tendency to expose him to a criminal charge.

'Compelled testimony' is evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like. A person under interrogation is entitled to the presence of a lawyer during questioning, though the lawyer need not be present throughout.

Ratio: The protection operates from the investigation stage, and compulsion includes psychological as well as physical pressure.

6. The Two Compared

	Section 137, BSA	Article 20(3)
Source	A statutory rule of evidence	A fundamental right
Who is protected	A witness giving evidence	A person accused of an offence
When it operates	In the witness box, in any suit or civil or criminal proceeding	From the stage of formal accusation, including police interrogation — Nandini Satpathy
What it does	Removes the right to refuse; compels the answer	Confers a right not to be compelled
What is given in exchange	A use immunity under the proviso	Nothing — the protection is absolute within its field
Covers identificatory material?	The section concerns answers to questions	No — specimen writings, impressions, samples and voice samples are outside it
Effect of breach	The answer is compelled but cannot be used against him	A compelled statement is inadmissible

⚠ Why there is no conflict

The two provisions address different people. Article 20(3) protects a person accused of an offence from being compelled to testify against himself — and an accused is not a compellable witness at all, so the question of Section 137 applying to him does not arise. Section 137 addresses a witness, who by definition is not the accused in the proceeding in which he is testifying, and who is therefore outside the Article. The statute and the Constitution do not overlap; they cover adjoining ground, and the proviso to Section 137 supplies by statute an immunity comparable in effect to what the Constitution gives the accused.

7. The Accused Who Chooses to Testify

One situation sits between the two and is worth separating out.

An accused is not a compellable witness. He may, however, offer himself as a witness in his own defence, and the criminal procedure legislation permits this on his own request in writing. Once he does so, he is examined and cross-examined like any other witness.

Article 20(3) is not engaged, because the element of compulsion is absent — he chose to enter the box. And Section 137 operates on him as it operates on any witness: he may not decline a relevant question on the ground that the answer will incriminate him, and the proviso protects the answer from use against him in another criminal proceeding.

What the proviso does not do is protect him in the proceeding in which he is testifying. He has offered himself as a witness in his own trial, and his answers are evidence in it. This is the principal risk of the course, and it is why the decision to testify is taken with care.

8. Where the Question Arises

Four situations account for most of the argument about Section 137.

A witness who is a potential accused. A person examined in a trial who may himself be prosecuted for the same or a related matter. He must answer; the proviso protects him; and the prosecuting agency must build its case against him independently.

An accomplice giving evidence. An accomplice is a competent witness under Section 138, and a conviction on his uncorroborated testimony is not illegal. He is compelled to answer by Section 137 and protected by the proviso — which is, in substance, the statutory footing on which such evidence is given at all.

An approver. A person granted a pardon on condition of making a full and true disclosure. His position is governed primarily by the conditions of the pardon under the criminal procedure legislation, and Section 137 operates alongside them.

A witness in a civil suit exposed to criminal liability. The section applies in civil proceedings in terms, and a witness in a suit about a transaction may be exposed by his answers. The compulsion and the immunity operate identically.

9. Practical Points

Do not object on the ground of self-incrimination. The section removes the objection, and the court may require the answer.
Object on relevance instead where the ground is available. Section 137 compels answers to relevant questions only.
Ensure the compulsion appears on the record. The immunity attaches to answers the witness was compelled to give, and the objection, the ruling and the direction to answer should be recorded.
Advise the witness that the immunity is a use immunity, and that independently obtained evidence is not affected.
Treat derivative material as unprotected until the position is settled.
Remember the false-evidence exception. The immunity protects a truthful compelled answer, not a false one.
For an accused considering testifying, note that the proviso protects him in other proceedings and not in his own trial.

10. The Position Stated Shortly

Section 137 is not a privilege. It removes the right to refuse and substitutes a use immunity.
The compulsion is wide — answers that criminate directly or indirectly, and answers exposing the witness to a penalty or forfeiture.
The immunity bars arrest, prosecution and proof of the answer in any criminal proceeding.
The single exception is a prosecution for giving false evidence by that very answer.
It is a use immunity, not a transactional one, and derivative use is an open question in India.
Article 20(3) protects a person accused of an offence, which requires a formal accusation — Raja Narayanlal Bansilal.
The two do not conflict because they address different persons; an accused is not a compellable witness at all.
An accused who offers himself as a witness is not compelled, and his answers are evidence in his own trial.

11. Related Topics and Provisions

Topic or provision	Connection
Privileged Communications under the BSA	Sections 127 to 136, and why Section 137 is not among them
Confession and Article 20(3)	The constitutional protection as it applies to an accused
Specimen Handwriting and Article 20(3)	Identificatory material, outside the protection
Competency and Privilege of Witnesses — Sections 124 to 139	The chapter as a whole
Advocate-Client Privilege — Section 132	The privilege described as a reflection of Article 20(3)
Accomplice Evidence — Section 138	Where Section 137 does its most important work
Sections 154 and 155, BSA	Objections to questions that Section 137 does not remove