Section 33 of the Indian Evidence Act and Section 27 BSA: Relevancy of Earlier Testimony
When a witness is unavailable, evidence recorded in an earlier judicial proceeding may be relevant to prove the truth of the facts stated in a later proceeding. The law imposes specific safeguards to protect the right of cross-examination.
What does Section 27 of the Bharatiya Sakshya Adhiniyam provide?
Section 27, titled "Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated", permits evidence previously given by a witness in a judicial proceeding, or before a person legally authorised to record it, to be used in a later judicial proceeding or at a later stage of the same proceeding, if the witness cannot reasonably be produced and the statutory safeguards are satisfied.
Read the official Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF).
When can previous testimony be used?
Under Section 27 BSA, the witness must have given evidence in a qualifying earlier proceeding and at least one of the following circumstances must exist:
- Death: the witness has died.
- Cannot be found: the witness cannot be located.
- Incapacity: the witness is incapable of giving evidence.
- Kept away: the adverse party has kept the witness out of the way.
- Unreasonable delay or expense: securing the witness would involve delay or expense that the court considers unreasonable in the circumstances.
The mere fact that earlier testimony exists does not make it automatically admissible to prove the facts stated.
Three mandatory safeguards
- Same parties or representatives in interest: the earlier proceeding must have been between the same parties or their representatives in interest.
- Right and opportunity to cross-examine: the adverse party in the earlier proceeding must have had both the right and an opportunity to cross-examine the witness.
- Substantially the same questions in issue: the material issues in the earlier and later proceedings must be substantially the same.
These requirements operate together. A previous deposition should not be treated as substantive proof under this provision if a necessary condition is absent.
Explanation concerning criminal proceedings
The statutory Explanation treats a criminal trial or inquiry as a proceeding between the prosecutor and the accused for the purposes of this provision. The other statutory conditions, including the opportunity for cross-examination and substantially identical issues, still matter.
Example of Section 27 in practice
Suppose a witness gives evidence in a civil dispute and the opposing party has an opportunity to cross-examine that witness. Before a later proceeding involving the same parties and substantially the same disputed questions, the witness dies. Subject to proof of the relevant conditions and applicable procedural rules, the earlier testimony may be relevant to prove the truth of its contents.
By contrast, where the opposing party never had a right and opportunity to cross-examine the witness, Section 27 cannot ordinarily be used to bypass that statutory safeguard.
Section 33 of the Indian Evidence Act, 1872
Section 33 of the former Indian Evidence Act was titled "Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated." It provided that testimony given in a judicial proceeding or before a legally authorised person could be relevant in a later proceeding or a later stage of the same proceeding when the witness was dead, untraceable, incapable, kept away by the adverse party, or could not be produced without unreasonable delay or expense.
The proviso required the same parties (or representatives in interest), an earlier right and opportunity to cross-examine, and substantially the same questions in issue. Its Explanation similarly treated criminal trials and inquiries as proceedings between the prosecutor and accused. These core protections are preserved in Section 27 BSA.
Which law applies to pending proceedings?
Section 170 of the BSA repeals the Indian Evidence Act, 1872, while preserving the treatment of certain applications, trials, inquiries, investigations, proceedings and appeals pending immediately before commencement. Whether the former Act or the BSA governs a particular matter depends on the statutory savings clause and procedural context. Check the official text and the relevant court record before relying on a section number.
Frequently asked questions
Is previous testimony automatically admissible if a witness dies?
No. Death is one qualifying ground of unavailability, but the three safeguards in Section 27 must also be satisfied.
Is actual cross-examination essential?
The statute requires that the adverse party had the right and opportunity to cross-examine. Whether those requirements were met must be assessed from the record; the wording does not invariably require that questions were actually asked.
Does Section 27 apply to a later stage of the same case?
Yes. The provision expressly covers a subsequent judicial proceeding or a later stage of the same judicial proceeding, subject to its conditions.
Official legal reference
Bharatiya Sakshya Adhiniyam, 2023, Act 47 of 2023, Sections 27 and 170 - India Code.
This article provides general legal information and is not a substitute for advice on the facts of a particular case.