Section 135 Evidence Act and Section 140 BSA: Order of Production and Examination of Witnesses
The sequence in which witnesses are called and examined in Indian courts is governed primarily by the applicable civil or criminal procedure. Section 135 of the Indian Evidence Act, 1872 established this rule; its corresponding provision is now Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Section 140 of the Bharatiya Sakshya Adhiniyam, 2023
Heading: Order of production and examination of witnesses.
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
In practical terms, this provision does not impose one universal witness list or sequence. It directs courts to follow the relevant procedural law and established practice. Judicial discretion operates where no such rule applies.
Historical Section 135 of the Indian Evidence Act, 1872
Heading: Order of production and examination of witnesses.
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
Section 135 contained the same substantive rule as the present Section 140 BSA. It remains relevant when the saving provision in Section 170(2) of the BSA applies.
Meaning and scope of the provision
1. Order of production of witnesses
The order of production concerns which witness is called first, next and thereafter. The applicable procedure, court directions and established practice govern that sequence; it is not determined solely by the preference of a party.
2. Examination of witnesses
The examination of a witness ordinarily involves examination-in-chief, cross-examination and, where appropriate, re-examination. These stages are addressed in Sections 142 and 143 of the BSA, corresponding broadly to Sections 137 and 138 of the former Evidence Act.
3. Court's discretion
Where the relevant procedural law does not prescribe an order, the court may regulate the sequence in exercise of its discretion. This discretion must be exercised fairly, consistently with applicable procedural requirements and the opportunity of the parties to present their cases.
How the rule operates in civil and criminal cases
Civil proceedings: The Code of Civil Procedure, 1908, particularly Order XVIII, deals with hearing of suits and examination of witnesses. The court applies those rules together with relevant directions and practice.
Criminal proceedings: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), subject to its own transitional provisions, regulates the recording and examination of prosecution and defence evidence according to the type and stage of trial. The applicable procedural framework must be checked in each case.
Related provisions
- BSA Section 139: Number of witnesses; no particular number is required for proof of a fact.
- BSA Section 141: Judge to decide as to admissibility of evidence.
- BSA Section 142: Examination of witnesses; defines examination-in-chief, cross-examination and re-examination.
- BSA Section 143: Order of examinations; regulates the sequence and scope of those stages.
- BSA Section 170: Repeal and savings, including continuation under the former Act for proceedings covered by subsection (2).
Frequently asked questions
Does Section 140 BSA require witnesses to be examined in a fixed order?
No. It refers the order to the applicable civil or criminal procedure and practice, with residual discretion for the court where no rule exists.
Is Section 135 of the Evidence Act still applicable?
The Indian Evidence Act has been repealed with effect from 1 July 2024. However, Section 170(2) BSA preserves its application to the categories of matters pending immediately before that date specified in the saving provision.
Is the order of witnesses the same as the order of examination-in-chief and cross-examination?
No. Section 140 deals with the order of producing and examining witnesses generally, while Section 143 addresses the stages of examination of an individual witness.