Section 138 Evidence Act: Order of Examination of Witnesses
Section 138 of the Indian Evidence Act, 1872 prescribed the order in which a witness is examined in court. The corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 143, which governs examination-in-chief, cross-examination and re-examination.
Section 143 of the Bharatiya Sakshya Adhiniyam, 2023
Section 143 - Order of examinations establishes three connected rules:
- Section 143(1): A witness is first examined-in-chief, then cross-examined if the adverse party wishes, and thereafter re-examined if the party calling the witness wishes.
- Section 143(2): Examination-in-chief and cross-examination must concern relevant facts. Cross-examination is not limited to the facts mentioned in examination-in-chief.
- Section 143(3): Re-examination is intended to explain matters raised during cross-examination. If the court permits new matter to be introduced in re-examination, the adverse party may further cross-examine the witness on that new matter.
Read the official Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF) and the India Code Act record.
Section 138 of the Indian Evidence Act, 1872
Under the earlier law, Section 138 provided that witnesses should first be examined-in-chief, then cross-examined at the option of the adverse party, and finally re-examined at the option of the party who called them. It further provided that examination and cross-examination must relate to relevant facts, but cross-examination need not be restricted to matters covered in examination-in-chief.
The section also specified that re-examination should explain matters arising in cross-examination. If new matters were introduced in re-examination with the court's permission, the adverse party could cross-examine further on those matters. These essential rules are continued in Section 143 of the BSA.
Three stages of examination of witnesses
| Stage | Who examines? | Main purpose |
|---|---|---|
| Examination-in-chief | Party calling the witness | To place relevant testimony before the court |
| Cross-examination | Adverse party | To test testimony, credibility and relevant disputed facts |
| Re-examination | Party calling the witness | To clarify or explain matters arising from cross-examination |
The statutory definitions of these stages appear in Section 137 of the Indian Evidence Act and the corresponding Section 142 of the BSA.
Scope of cross-examination and re-examination
Cross-examination may extend beyond examination-in-chief
Cross-examination is not restricted to subjects that the witness mentioned during examination-in-chief. Questions must nevertheless remain subject to the rules of relevance, admissibility and the court's control over improper questioning. The provision does not create an unrestricted right to ask irrelevant or prohibited questions.
Re-examination generally clarifies previous answers
The calling party may use re-examination to explain ambiguity, context or apparent inconsistency arising during cross-examination. Introducing an entirely new matter requires the court's permission. Where permission is granted, the adverse party has an opportunity to cross-examine further on that new matter.
Related provisions include Section 146 of the BSA on leading questions and Section 148 of the BSA on cross-examination concerning previous written statements.
Practical example
In a civil dispute about payment of a debt, the claimant calls an accountant as a witness. During examination-in-chief, the accountant explains the entries in the account books. During cross-examination, the opposing party asks about relevant discrepancies and whether payments were omitted. In re-examination, the claimant may ask the accountant to clarify answers given about those discrepancies.
If the claimant then seeks to introduce an unrelated new transaction during re-examination, permission of the court is required. If allowed, the opposing party may further cross-examine on that new transaction.
Related legal provisions and reading
The order of examining witnesses operates alongside rules on admissibility, relevance, leading questions and procedural fairness. See Section 135 - Order of production and examination of witnesses, Section 136 - Judge to decide admissibility, and Section 139 - Person called to produce a document.
Frequently asked questions
What is the current equivalent of Section 138 of the Evidence Act?
Section 143 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds to Section 138 of the Indian Evidence Act, 1872.
Is cross-examination compulsory in every case?
Section 143 provides for cross-examination if the adverse party desires it. The opportunity and applicable procedure depend on the nature and stage of the proceeding.
Can cross-examination cover matters not mentioned in examination-in-chief?
Yes. Section 143(2) permits cross-examination on relevant facts beyond the matters addressed in examination-in-chief, subject to other applicable evidentiary rules.
Can a new matter be raised during re-examination?
Yes, but only with the court's permission. The adverse party may then cross-examine further on that new matter under Section 143(3).
When did the Bharatiya Sakshya Adhiniyam take effect?
The Act came into force on 1 July 2024. Its repeal and saving provisions should be considered for proceedings that were already pending.
Legal note: This article explains the statutory framework for general information. Application to a particular case depends on the procedural stage, relevant facts, saving provisions and judicial directions.