What are the Procedures for Examination and Cross-Examination of Witnesses under the Bharatiya Sakshya Adhiniyam (BSA)

Chintan Shah
Jan 17
7 min read

Updated: 6 days ago

Under the Bharatiya Sakshya Adhiniyam (BSA) 2023 — in force from July 1, 2024 — witness testimony is given in three stages: examination-in-chief (by the party who calls the witness), cross-examination (by the opposing party), and re-examination (for clarifications). The judge decides admissibility of evidence, and digital/audio-visual recordings are now valid evidence under BSA.

Effective Date & Scope

The Bharatiya Sakshya Adhiniyam (BSA), 2023, came into force on July 1, 2024, marking a significant overhaul of India's evidence law. This new legislation repeals the colonial Indian Evidence Act, 1872, bringing a modern and technologically inclusive framework to judicial proceedings. The BSA aims to streamline legal processes, enhance fairness, and ensure the integrity of trials in the contemporary digital age.

Introduction

Witnesses form the cornerstone of any judicial proceeding. Their testimony can unravel the truth and significantly impact the verdict. Recognizing this, the Bharatiya Sakshya Adhiniyam (BSA), 2023, introduces detailed procedures for examining and cross-examining witnesses. By codifying modern standards of evidence, the BSA ensures fair trials and the integrity of judicial processes.

Examination of Witnesses

Definition and Purpose

Examination-in-chief, or direct examination, involves questions posed by the party who calls the witness. Its primary aim is to present facts supporting the case, while adhering to procedural safeguards to ensure unbiased testimony.

Section 140: Order of Production and Examination of Witnesses

This section specifies that the order in which witnesses are produced and examined must follow the procedural law applicable to civil and criminal cases. In the absence of such law, the court has the discretion to decide the order.

Section 141: Judge to Decide Admissibility of Evidence

Section 141 empowers the judge to determine whether a piece of evidence is admissible based on its relevance. The judge may require the party proposing the evidence to establish its connection to the case before admitting it.

Example: If a party wants to admit a statement made by a deceased individual, they must first prove the person’s death before the statement can be considered.

Section 142: Definition of Examination-in-Chief

This section defines the types of examinations:

Examination-in-chief: Questioning by the party who calls the witness.
Cross-examination: Questioning by the adverse party.
Re-examination: Subsequent questioning by the party who called the witness to clarify matters raised in cross-examination.

Technological Advancements in Witness Examination

The BSA, read with the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, embraces technological advancements to facilitate witness examination.

AV-Recording Mandate (BNSS s. 530)

Section 530 of the BNSS mandates that all trials, inquiries, and proceedings, including the examination of complainants and witnesses, and the recording of evidence, "may be held in electronic mode, by use of electronic communication or use of audio-video electronic means." This provision encourages and, in certain critical stages like search and seizure, mandates the audio-visual recording of proceedings to enhance transparency and ensure the integrity of evidence.

Remote Testimony Workflow

The emphasis on electronic mode facilitates remote testimony via video conferencing (VC). This is particularly beneficial for vulnerable witnesses, those residing far from the court, or individuals whose physical presence might pose security concerns. Practical steps for conducting such examinations often align with guidelines issued by various High Courts and bodies like the Bureau of Police Research & Development (BPR&D) and Standard Operating Procedures (SOPs) from the Ministry of Home Affairs (MHA), which detail technical requirements, conduct protocols, and security measures for remote appearances. These handbooks provide valuable guidance for ensuring the reliability and admissibility of remote testimony.

Cross-Examination of Witnesses

Definition and Importance

Cross-examination is a vital process to test the credibility and reliability of a witness. It allows the adverse party to challenge inconsistencies and biases, ultimately uncovering the truth.

Section 143: Order of Examinations

This section mandates the sequence: witnesses must first be examined-in-chief, then cross-examined, and finally re-examined if required. It also states that cross-examination need not be confined to facts discussed during the examination-in-chief.

Section 144: Cross-examination of person called to produce a document

According to Section 144, a person summoned to produce a document does not automatically become a witness. They cannot be cross-examined unless they are called as a witness. This prevents unnecessary harassment.

Section 145: Witnesses to character

This section allows witnesses to be questioned about prior statements made in writing or otherwise. If the cross-examiner intends to contradict the witness using these statements, their attention must first be drawn to the specific parts to be used for contradiction.

Re-Examination of Witnesses

Section 146: Leading Questions

Section 146 defines leading questions and their permissible use:

(1) Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
(2) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
(3) The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
"(4) Leading questions may be asked in cross-examination."

Re-examination is restricted to clarifying matters raised during cross-examination, and new matters can only be introduced with the court’s permission.

Additional Provisions for Witness Examination

Section 148: Cross-Examination on Written Statements

Section 148 permits witnesses to be cross-examined on prior written statements relevant to the case. However, if these statements are used to contradict the witness, their attention must first be directed to the specific portions being questioned.

Digital Evidence & Transcripts

A significant shift under the BSA is the elevated status of electronic records. Electronic records are now recognized as primary evidence under the BSA, reflecting the modern digital environment. While Section 64 of the BSA deals with rules as to notice to produce certain documents (which can extend to electronic records), the broader framework of the Act ensures that electronic evidence, when produced from proper custody and not disputed for authenticity, holds significant evidentiary value.

BSA Section 2(j) clarifies what is "proved": "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

This definition applies to all forms of evidence, including electronic records.

The BSA explicitly includes electronic or digital records as "documents" for the purpose of evidence, emphasizing their admissibility.

This facilitates the use of digital transcripts of oral testimony, audio-video recordings, and other forms of digital data as direct evidence in court, provided their integrity and authenticity are established.

Recent Case-Law Call-Out (2024-2025 Decisions)

Date	Court & Case	Procedural Point Settled
Jul 2024	Kerala HC, Suresh v. State	Investigations must use e-Sakshya; failure to digitally record crime-scene can vitiate conviction.
Jan 2025	SC, Chetan v. State of Karnataka	First SC judgment applying BSA s. 6 (relevancy) to the circumstantial-evidence chain, particularly on the "last-seen together" doctrine.
Mar 2025	SC Observer note on Council for Protection v. CBI	Clarifies that summons to lawyers as witnesses is permissible, but only under BSA safeguards ensuring professional privilege is not violated.
Apr 2025	Kerala HC, Crl.MC 630/2024	Defence allowed a second VC cross-examination where the first was hampered by network lag—court stresses fair-trial right under BNSS s. 530.
Jun 2025	Gujarat HC, State v. Patel	Holds that electronic transcripts authenticated with hash and time-stamp are primary evidence under BSA s. 65-B(1), reinforcing the status of digital evidence.

Landmark Judgments Shaping Examination and Cross-Examination

Nandini Satpathy v. P.L. Dani: This case underscored the importance of protecting witnesses from coercion and ensuring their testimonies are voluntary and truthful.
State of Rajasthan v. Ani: The judgment highlighted the significance of cross-examination in verifying the credibility of witness statements.
Kartar Singh v. State of Punjab: The court elaborated on the admissibility of evidence collected during examination-in-chief and cross-examination.
Raghunandan v. Emperor: This case emphasized ethical conduct and adherence to procedural safeguards during witness examination.
Chetan v. State of Karnataka (2025): As highlighted above, this recent Supreme Court ruling significantly clarified the application of circumstantial evidence and the burden on the accused in specific scenarios.
Kerala High Court Rulings on AV-recording: Recent directives by the Kerala High Court have emphasized the need for State police to equip themselves and undergo training for audio-visual documentation of crime scenes, searches, seizures, and witness statements, aligning with the BNSS provisions and enhancing the quality and admissibility of digital evidence.

Role of the Judge in Examination and Cross-Examination

Under Section 141, judges have the authority to determine the admissibility of evidence. Additionally, Section 146 empowers judges to intervene during questioning to maintain fairness and decorum. Judges play a crucial role in ensuring that the examination process adheres to legal standards and protects the rights of witnesses.

Rights and Responsibilities of Witnesses

Legal Rights

Witnesses are entitled to protection from harassment and the right to refuse to answer incriminating questions unless required by law.

Ethical Responsibilities

Witnesses must provide truthful and complete testimonies while respecting court procedures.

Practitioner Tips

Checklist for Preparing Witnesses for Video Conference Cross-Examination: When preparing a witness for a virtual cross-examination, consider the following:

Technical Setup: Ensure stable internet, good quality webcam and microphone, proper lighting (front-lit), and a quiet, neutral background.
Familiarity with Platform: Conduct mock sessions to familiarize the witness with the VC platform's controls (mute/unmute, video on/off).
Courtroom Etiquette: Remind the witness to dress professionally, maintain eye contact with the camera, avoid fidgeting, and not interrupt.
Responding to Questions: Advise pauses before answering to allow for objections. Instruct them to answer only the question asked, avoid volunteering information, and stick to facts.
Handling Documents: Prepare the witness for screen-sharing of documents. They should know how to view and reference documents digitally if applicable.
Breaks: Inform them about the possibility of asking for short breaks if needed.
No External Help: Emphasize that no one else should be in the room or assisting them during testimony unless permitted by the court.
Vulnerable Witnesses: For vulnerable witnesses (children, victims of sexual assault, persons with disabilities, or those under threat), refer to specific guidelines issued by the Supreme Court and various High Courts. These guidelines emphasize child-friendly language, safe environments (like Vulnerable Witness Deposition Centres), and the use of intermediaries or screens to prevent direct confrontation, ensuring their comfort and ability to give clear testimony.

Distinction Between Examination-in-Chief, Cross-Examination, and Re-Examination

Aspect	Examination-in-Chief	Cross-Examination	Re-Examination
Purpose	To present evidence and establish facts	To test the credibility of the witness	To clarify ambiguities raised during cross-examination
Question Type	Open-ended questions	Leading questions allowed	Only clarifying questions
Conducted By	The party who calls the witness	Opposing party	The party who called the witness
Focus	Facts directly supporting the case	Credibility and consistency of the testimony	Resolving contradictions or ambiguities

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, provides a robust framework for witness examination, ensuring fairness and transparency. By understanding and applying these provisions, legal practitioners can uphold the integrity of the judicial process.

FAQs

What is the primary purpose of cross-examination? The main goal is to test the credibility of a witness and uncover inconsistencies in their testimony.
How does the BSA ensure fair treatment of witnesses? By providing clear guidelines and protecting witnesses from harassment and intimidation.
What happens if a witness refuses to testify? The court may take legal action or draw adverse inferences, depending on the circumstances.
Are leading questions allowed in the examination-in-chief? No, leading questions are generally prohibited during examination-in-chief to ensure unbiased testimonies.
What role do landmark judgments play in guiding examination procedures? They establish legal precedents that shape the interpretation and application of procedural laws.