• Adv Govind Bali
• Law of Evidence, Law Student Notes
• August 22, 2026

Witnesses, Privileges and Examination under the Bharatiya Sakshya Adhiniyam, 2023

Statutory Map: Sections 124–168 BSA

The current text may be checked in the official Bharatiya Sakshya Adhiniyam, 2023 Gazette text hosted by the Ministry of Home Affairs.

Part I — Competency of Witnesses: Sections 124–126

Section 124: Who May Testify?

Section 124 begins with inclusion, not exclusion: all persons are competent to testify unless the Court considers that they cannot understand the questions put to them or cannot give rational answers because of tender years, extreme old age, disease of body or mind, or another comparable cause.

The legal test is therefore functional. Age, diagnosis or disability is not itself the disqualification. The question is whether the proposed witness can understand and respond rationally to the questions relevant to the proceeding.

Section 125: Witness Unable to Communicate Verbally

A witness who cannot communicate verbally may give evidence in another intelligible manner, including writing or signs. The writing must be written and the signs made in open court, and the evidence is treated as oral evidence.

The proviso further requires assistance of an interpreter or special educator where appropriate and states that the recording of such statement shall be videographed. The provision reflects accessibility while preserving transparency and accuracy in recording testimony.

Section 126: Husband and Wife as Competent Witnesses

Section 126 makes spouses competent witnesses in civil proceedings and makes the spouse of an accused a competent witness in criminal proceedings. This concerns competency; it must be distinguished from the separate protection for communications during marriage in Section 128.

Part II — Privileged and Protected Evidence: Sections 127–136

Section 127: Judges and Magistrates

A Judge or Magistrate cannot ordinarily be compelled to answer questions about his or her own conduct in court as Judge or Magistrate, or about matters that came to knowledge in court in that judicial capacity, except upon the special order of the superior court specified by the section. The protection does not prevent examination about other matters occurring in the judicial officer’s presence while acting.

Section 128: Communications During Marriage

A person who is or has been married cannot ordinarily be compelled or permitted to disclose a communication made during marriage by the spouse who made it, unless the maker or representative in interest consents. The statute recognises exceptions for suits between married persons and proceedings in which one spouse is prosecuted for a crime committed against the other.

Sections 129–131: State Affairs, Official Confidence and Informant Source

Part III — Advocate–Client Privilege: Sections 132–134

Section 132: Professional Communications

Section 132 prevents an advocate, unless the client expressly consents, from disclosing specified professional communications, advice and document-related information acquired in the course and for the purpose of professional service. The statutory obligation continues even after the professional service has ended and extends to interpreters and the clerks or employees of advocates.

What Is Protected?

• Communication made by or on behalf of the client in the course and for the purpose of professional service.
• Contents or condition of documents with which the advocate became acquainted in the course and for the purpose of professional service.
• Advice given by the advocate to the client in the course and for the purpose of professional service.
• The obligation survives termination of the professional relationship.

What Is Not Protected?

The statutory proviso excludes protection for a communication made in furtherance of an illegal purpose and for a fact observed by the advocate showing that a crime or fraud has been committed since the commencement of professional service. This distinction is critical: telling an advocate about a completed offence in order to obtain lawful defence is not the same as using the advocate’s service to further an illegal purpose.

Section 133: Privilege Is Not Automatically Waived by Volunteering Evidence

A party does not waive Section 132 privilege merely by giving evidence. If the party calls the advocate as a witness, consent to disclosure is deemed only to the extent the party questions the advocate about matters which the advocate could not otherwise disclose.

Section 134: Confidential Communication with Legal Advisers

Section 134 protects the client from being compelled to disclose confidential communication with the legal adviser unless the client offers himself as a witness, in which event disclosure may be compelled only to the extent the court considers necessary to explain evidence given by that client.

Sections 135–136: Protected Documents and Electronic Records

Section 135 protects a non-party witness from being compelled to produce specified title deeds, pledged/mortgaged documents or a document whose production might tend to incriminate him, subject to the written-agreement exception stated in the provision. Section 136 extends protection where the document or electronic record is held by one person but another person would legally be entitled to refuse its production.

Part IV — Compelled Answers, Accomplices and Number of Witnesses

Section 137: Witness Not Excused Because Answer May Incriminate

A witness cannot refuse to answer a relevant question merely because the answer may directly or indirectly expose the witness to a criminal charge, penalty or forfeiture. But the protection is crucial: a compelled answer cannot subject the witness to arrest or prosecution and cannot be proved against the witness in a criminal proceeding, except a prosecution for giving false evidence by that answer.

Section 138: Accomplice

An accomplice is a competent witness against an accused person. The present BSA text further states that a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. Students should read this provision together with the court’s power to draw presumptions under Section 119 and the long-standing judicial concern with independent corroboration of material particulars.

Section 139: No Particular Number of Witnesses Required

Evidence law values quality rather than arithmetic. Section 139 states that no particular number of witnesses is required to prove a fact. A court may act on the testimony of a single reliable witness if the legal standard of proof is met; conversely, several witnesses do not guarantee proof if their evidence is unreliable or legally deficient.

Part V — Examination-in-Chief, Cross-Examination and Re-Examination

Sections 140–141: Order and Admissibility

Section 140 leaves the order of production and examination of witnesses primarily to the relevant civil or criminal procedure and, where that law does not decide the matter, to the court’s discretion. Section 141 makes the Judge the gatekeeper of admissibility: the court may ask how the proposed fact would be relevant and must exclude it if it would not be relevant even if proved.

Section 141 also deals with conditional relevance. Where one fact becomes admissible only after another foundational fact is proved, the court may require the foundation first or may accept an undertaking and regulate the sequence.

Section 142: Three Forms of Examination

Section 143: Order and Scope

The normal sequence is chief → cross → re-examination. Cross-examination must relate to relevant facts but is not confined to matters actually mentioned in examination-in-chief. Re-examination should explain matters arising from cross-examination. If genuinely new matter is introduced in re-examination with the Court’s permission, the adverse party gets a further opportunity to cross-examine on that new matter.

Sections 144–145: Document-Producing and Character Witnesses

A person summoned merely to produce a document does not become a witness simply because the document is produced and cannot be cross-examined until called as a witness. Character witnesses may be both cross-examined and re-examined.

Section 146: Leading Questions

A leading question suggests the answer desired or expected by the questioner. If objected to, leading questions ordinarily cannot be asked in chief or re-examination without the court’s permission. The court must permit them for introductory, undisputed or sufficiently proved matters. They may be asked in cross-examination.

Section 147: Matters in Writing

Where a witness is giving evidence about a contract, grant or disposition of property that ought to be contained in a document, the adverse party may object to oral evidence of its contents until the document is produced or a lawful basis for secondary evidence is established. This provision reinforces the documentary-proof hierarchy.

Part VI — Section 148: Previous Statements and Contradictions

Section 148 is one of the most important trial provisions in the BSA. A witness may be cross-examined about a previous statement in writing or reduced into writing without first showing or proving that writing. However, if the cross-examiner intends to contradict the witness by the writing, the witness’s attention must first be drawn to the specific parts proposed to be used for contradiction before those parts can be proved.

For police statements, the procedural counterpart is Section 181 BNSS, which permits use of the prior police statement for contradiction in the manner provided by Section 148 BSA and expressly recognises that a significant and relevant omission may amount to a contradiction depending on context. See our BNSS investigation guide.

Contradiction vs Omission vs Improvement

Part VII — Lawful Scope and Limits of Cross-Examination: Sections 149–156

Section 149: Questions Lawful in Cross-Examination

Cross-examination may test veracity, discover who the witness is and his position in life, and shake credit by questions affecting character, even where the answer may tend to incriminate or expose the witness to penalty or forfeiture. But this breadth is controlled by Sections 150–156 and by the sexual-offence proviso.

Sections 150–153: Relevance, Character Questions and Reasonable Grounds

• Section 150: if the question concerns a relevant matter, Section 137 governs the witness’s obligation to answer and protection from criminal use.
• Section 151: where a question is relevant only to credibility by injuring character, the Court decides whether the witness should be compelled to answer and weighs remoteness, seriousness and proportionality.
• Section 152: no such imputational question should be asked without reasonable grounds for believing it well-founded.
• Section 153: if an advocate asks such a question without reasonable grounds, the Court may report the circumstances to the High Court or other professional authority.

Sections 154–155: Indecent, Scandalous, Insulting or Annoying Questions

The court may forbid indecent or scandalous questions even where they have some bearing on the case, unless they relate directly to facts in issue or are necessary to determine whether those facts existed. The court must forbid questions intended to insult or annoy, or questions that are proper in substance but needlessly offensive in form.

Section 156: Collateral Credit Answers Usually Cannot Be Contradicted

Where a witness has answered a question relevant only because it tends to shake credit by injuring character, the cross-examiner ordinarily cannot lead separate evidence merely to contradict that answer. The section contains important exceptions, including denial of a previous conviction and questions tending to impeach impartiality.

The rationale is trial discipline: litigation should not splinter into endless mini-trials over collateral allegations unrelated to the facts in issue.

Part VIII — Section 157: Cross-Examining One’s Own Witness

Section 157 does not use the expression “hostile witness” as a statutory label. It empowers the court, in its discretion, to permit the party who called a witness to put questions that could have been put in cross-examination by the adverse party. Sub-section (2) expressly states that obtaining such permission does not prevent the calling party from relying upon any part of that witness’s evidence.

What Happens to the Evidence of a Hostile/Adverse Witness?

The testimony does not disappear merely because Section 157 permission has been granted. The court evaluates the testimony as a whole and may rely on portions that remain credible and are supported by other reliable evidence. This is reinforced by the text of Section 157(2).

Official judgment: Tarun Sharma v. State of Haryana, 2025 INSC 1139.

Section 158: Impeaching Credit

The adverse party—or, with the court’s consent, the party calling the witness—may impeach credit by:

• evidence of persons who, from their knowledge of the witness, believe the witness unworthy of credit;
• proof of bribery, offer of bribe or another corrupt inducement to give evidence;
• proof of former statements inconsistent with parts of the witness’s evidence that are legally capable of contradiction.

Part IX — Corroboration and Former Statements: Sections 159–161

Section 159: Corroborative Circumstances

A witness whose testimony about a relevant fact is sought to be corroborated may be questioned about other circumstances observed at or near the time or place of the relevant event where the court considers those circumstances capable of corroborating the testimony.

Section 160: Former Statements Used to Corroborate

A former statement made by a witness relating to the same fact may be proved to corroborate the witness if made at or about the time when the fact occurred or before an authority legally competent to investigate the fact. The provision must not be confused with Section 148, which deals with contradiction.

Section 161: Statements Relevant under Sections 26 or 27

Where a statement relevant under Sections 26 or 27 is proved, matters may also be proved to contradict or corroborate that statement, or to impeach or confirm the credit of its maker, in the same broad manner that would have been available had the maker been called as a witness and denied the suggested matter in cross-examination.

Part X — Refreshing Memory and Documents: Sections 162–167

Section 162: Refreshing Memory

A witness may refresh memory from a writing made by the witness at the time of the transaction or so soon afterwards that the court considers the transaction was then fresh in memory. The witness may also refer to a writing made by another person if it was read within that period and the witness knew it to be correct. With court permission, a copy may be used where sufficient reason exists for non-production of the original. Experts may refer to professional treatises.

Section 163: Testimony from Correctly Recorded Facts

A witness may testify to facts recorded in the document described in Section 162 even without specific present recollection, provided the witness is sure that the facts were correctly recorded. A classic example is a bookkeeper relying on regularly kept entries whose correctness he can vouch for despite forgetting the individual transaction.

Section 164: Adverse Party’s Right to Inspect

Any writing used under Sections 162–163 must be produced and shown to the adverse party if required, and the adverse party may cross-examine the witness on that writing. The rule protects fairness: a witness cannot use a private memory aid that the opponent is denied the opportunity to inspect and test.

Section 165: Production of Documents

A witness summoned to produce a document in his possession or power must bring it to court notwithstanding an objection to production or admissibility. The court decides the validity of the objection. The court may inspect the document where appropriate, subject to State-affairs protections, and may take other evidence to decide admissibility.

The provision also protects communications between Ministers and the President from compelled production.

Sections 166–167: Notice to Produce and Consequences

If a party calls for a document after giving notice to the opposing party to produce it, and the document is produced and inspected by the calling party, that party may be bound to give it in evidence if the producing party so requires. Conversely, a party who refuses to produce a document after notice ordinarily cannot later use that document as evidence without the other party’s consent or court order.

Part XI — Section 168: Judge’s Power to Put Questions or Order Production

Section 168 gives the Judge broad power, in order to discover or obtain proof of relevant facts, to ask any question considered necessary, in any form, at any time, of any witness or party and to order production of a document or thing.

But this is not an unlimited power to decide a case on intuition or inadmissible material. The judgment must still be based upon facts that the BSA declares relevant and that have been duly proved. The section also preserves the privileges in Sections 127–136, the restrictions on improper character questions in Sections 151–152, and the ordinary law concerning primary documentary evidence.

Part XII — Important Distinctions for Exams and Trial Practice

Part XIII — Courtroom Problem-Solving Method

Frequently Asked Examination Questions

1. Who is competent to testify under Section 124 BSA?
2. Can a child witness give evidence?
3. Does unsoundness of mind automatically make a person incompetent?
4. How does a witness unable to communicate verbally testify under Section 125?
5. Are husband and wife competent witnesses?
6. Distinguish spousal competency from privilege for marital communications.
7. Explain privilege concerning unpublished State records.
8. What is advocate–client privilege under Section 132?
9. What are the exceptions to Section 132 professional privilege?
10. Does advocate–client privilege continue after the engagement ends?
11. Discuss In Re: Summoning Advocates…, 2025 INSC 1275.
12. Can a witness refuse to answer because the answer may incriminate him?
13. Explain the statutory protection attached to a compelled answer under Section 137.
14. Is an accomplice a competent witness under Section 138?
15. How many witnesses are legally required to prove a fact?
16. Define examination-in-chief, cross-examination and re-examination.
17. What is the permissible scope of cross-examination under Section 143?
18. What is a leading question and when may it be asked?
19. Explain contradiction by a previous written statement under Section 148.
20. When can an omission in a police statement amount to a contradiction?
21. What questions may lawfully be asked in cross-examination under Section 149?
22. What is the statutory restriction on sexual-history evidence?
23. When may the Court permit a party to cross-examine its own witness under Section 157?
24. Does a hostile witness’s testimony become completely inadmissible?
25. Explain methods of impeaching credit under Section 158.
26. How may a former statement corroborate testimony under Section 160?
27. Explain refreshing memory under Section 162.
28. What rights does the adverse party have over a writing used to refresh memory?
29. Explain the rules concerning notice to produce under Sections 166–167.
30. What powers does the Judge have under Section 168, and what are the limits?

Exam Answer Toolkit

One-Minute Revision

Academic note: This article is for legal education and examination preparation. Witness competency, privilege, contradiction, cross-examination and evidentiary weight are fact-sensitive and may interact with the BNSS, constitutional protections, special statutes and case-specific procedural orders. Current statutory text and full judgments should be checked before professional reliance.