Understanding Section 143 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 – Order of Examinations
1. Introduction
The Bharatiya Sakshya Adhiniyam (BSA), 2023, is India's updated law governing evidence in courts, replacing the Indian Evidence Act of 1872. Enacted on December 25, 2023, and effective from July 1, 2024, the BSA aims to modernize and simplify the rules of evidence to ensure fair trials in the current legal landscape.
A crucial component of the BSA is the structured procedure for examining witnesses during trials. This process is vital for maintaining the integrity of the judicial system. Section 143 of the BSA specifically outlines the order in which witnesses should be examined, ensuring clarity and fairness in legal proceedings.
2. Legal Text of Section 143 – Order of Examinations
According to Section 143 of the BSA:
"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."
In simpler terms, this means:
Examination-in-Chief: The party who calls the witness questions them first.
Cross-Examination: The opposing party then has the opportunity to question the witness.
Re-Examination: The original party may question the witness again, but only on matters discussed during the cross-examination.
This sequence ensures that witness testimonies are presented and scrutinized systematically.
3. Purpose and Relevance of Section 143
Section 143 is fundamental in the examination of witnesses for several reasons:
Structured Testimony: It provides a clear framework for presenting and challenging witness statements.
Fairness: Ensures that both parties have equal opportunities to question witnesses.
Clarity: Helps prevent confusion and manipulation during trials by maintaining an orderly process.
By adhering to this order, courts can better assess the credibility of witnesses and the validity of their testimonies.
4. Detailed Breakdown of the Order of Examination
a. Examination-in-Chief
Definition and Objectives: This is the initial questioning of a witness by the party who has called them to testify.
Conducted by: The party who calls the witness.
Rules Regarding Leading Questions: Leading questions, which suggest the desired answer, are generally not permitted during this phase to ensure that the witness provides their own account.
Connection with Section 144 of BSA: Section 144 addresses the cross-examination of individuals called to produce documents, emphasizing that merely producing a document does not make one a witness unless they are formally examined.
b. Cross-Examination
Meaning and Scope: This is the questioning of the witness by the opposing party, aiming to test the accuracy and reliability of the testimony.
Conducted by: The opposing party.
Wider Freedom to Ask Leading Questions: Leading questions are generally allowed during cross-examination to challenge the witness's statements effectively.
Importance in Testing Credibility: This phase is crucial for uncovering inconsistencies or biases in the witness's testimony.
c. Re-Examination
Meaning and Purpose: This is the follow-up questioning by the original party after cross-examination, focusing on clarifying issues raised during the cross-examination.
Conducted by: The party who originally called the witness.
Limited to Points Raised in Cross-Examination: Questions should only address matters that emerged during the cross-examination.
Controlled Nature to Clarify, Not Add New Facts: The goal is to explain or clarify previous answers, not to introduce new information.
5. Judicial Interpretations and Case Law
State of Rajasthan v. Ani alias Hanif (AIR 1997 SC 1023)
In this case, the Supreme Court emphasized the importance of the judge's role in witness examination. The Court held that it is not improper for a trial judge to ask questions during cross-examination to elicit the truth, especially if the witness appears confused. This underscores the judge's duty to actively participate in the trial to reach a correct conclusion.
Vinod Kumar v. State of Punjab (2015 SCC OnLine SC 1005)
The Supreme Court in this case highlighted the necessity of adhering to procedural discipline during witness examination. The Court criticized the practice of granting unnecessary adjournments, noting that such delays can hinder the administration of justice. The judgment reinforces the importance of following the prescribed order of examinations to ensure a fair and efficient trial process.
6. Comparison with Indian Evidence Act, 1872
The BSA, 2023, replaces the Indian Evidence Act (IEA) of 1872. Section 143 of the BSA corresponds to Section 138 of the IEA, both outlining the order of witness examinations. While the core principles remain the same, the BSA modernizes the language and structure to align with contemporary legal practices.
7. Practical Implications in Indian Courtrooms
In practice, courts implement the order of examinations as follows:
Criminal Trials: The prosecution examines its witnesses first, followed by cross-examination by the defense, and then re-examination if necessary.
Civil Trials: The plaintiff's witnesses are examined first, followed by the defendant's cross-examination and any subsequent re-examination.
Judges play a crucial role in maintaining this sequence, ensuring that each phase is conducted properly. Violating the prescribed order can lead to objections and may affect the admissibility of evidence.
8. Exceptions and Flexibility
While Section 143 provides a standard order, courts have discretion to vary this sequence in certain situations:
Hostile Witnesses: If a witness turns hostile, the party that called them may request the court's permission to cross-examine their own witness.
Recall of Witnesses: Under Section 146 of the BSA, a court may allow a witness to be recalled for further examination if new information arises.
Procedural Errors: If the order of examination is not followed correctly, it may impact the admissibility of the witness's testimony, depending on the circumstances.
9. Criticism and Recommendations
Some legal scholars and practitioners have raised concerns about the potential misuse of the examination process:
Delaying Tactics: Lawyers may intentionally prolong cross-examinations to delay proceedings.
Clarity in Re-Examination: There is a need for clearer guidelines on the scope of re-examination to prevent the introduction of new facts under the guise of clarification.
Recommendations:
Strict Enforcement: Courts should strictly enforce the order of examinations to prevent unnecessary delays.
Training: Regular training for legal professionals on the proper conduct of witness examinations can enhance efficiency.
Clear Guidelines: Issuing detailed guidelines on re-examination can help maintain the integrity of the process.
10. Conclusion
Section 143 of the Bharatiya Sakshya Adhiniyam, 2023, plays a vital role in ensuring a fair and orderly examination of witnesses in Indian courts. By adhering to the prescribed sequence of examination-in-chief, cross-examination, and re-examination, the legal system upholds the principles of justice and due process. It is imperative for legal practitioners and students to understand and follow these procedures diligently to maintain the integrity of the judicial process.
