​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023-Order of Production and Examination of Witnesses (Section 140)

Introduction
The manner in which witnesses are produced and examined before the court is crucial to the orderly conduct of trials. Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule governing the order of production and examination of witnesses. It harmonizes evidence law with procedural laws and ensures flexibility where no specific procedure exists.

Statutory Provision – Section 140
Section 140 provides that:

• The order in which witnesses are produced and examined shall be regulated by:
  • The law and practice relating to civil procedure in civil cases, and
  • The law and practice relating to criminal procedure in criminal cases.
• In the absence of any such law or practice,
  👉 the order shall be determined by the discretion of the Court.

Thus, Section 140 does not itself prescribe a rigid order but refers to procedural laws and supplements them with judicial discretion.

Scope of Section 140Section 140 deals with:

• Who leads evidence first, and
• In what sequence witnesses are examined

It applies to:

• Civil proceedings
• Criminal proceedings
• Appeals
• Situations where procedural law is silent

(a) Order of Production in Civil ProceedingsIn civil cases, the order of production and examination of witnesses is governed by the Code of Civil Procedure, 1908 (CPC).
General Rule

• The plaintiff has the right to begin.
• The defendant then states his case and produces evidence.

Key CPC Provisions (Illustrative)

• Order XVII Rule 1 – Plaintiff begins the case.
• Order XVII Rule 3 – Plaintiff may lead rebuttal evidence if necessary.
• Civil Appeals (Order XLI Rule 16):
  • The appellant is first heard.
  • If the appeal is not dismissed at once:
    • The respondent is heard.
    • The appellant may reply.

Thus, in civil matters, the party who initiates the proceedings usually leads evidence first.

(b) Order of Production in Criminal ProceedingsIn criminal cases, the order of production and examination of witnesses is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
General Rule

• The complainant or the prosecution has the right to begin.
• After prosecution evidence:
  • The accused may lead evidence, if he chooses.

Criminal Appeals

• The appellant begins.
• If required, the respondent is then heard.

This structure reflects the fundamental principle of criminal law:
The prosecution must first prove its case.

(c) Discretion of the CourtWhen Court’s Discretion Arises

• Where:
  • No specific provision exists in CPC or BNSS, or
  • Procedural law is silent on a particular point.

Nature of Discretion

• The party leading evidence generally decides:
  • Which witnesses to call, and
  • In what order.

However:

• The court retains supervisory discretion to:
  • Direct a different order,
  • Prevent abuse of process,
  • Ensure fairness and efficiency.

Important Limitation

• Judicial discretion must be:
  • Fair,
  • Reasonable, and
  • Not arbitrary.

Delay in Examination of Witnesses

• Mere delay in examining a witness:
  • Does not automatically render his evidence unreliable.
• Weight of such evidence depends on:
  • Facts of the case,
  • Explanation for delay,
  • Overall credibility.

Thus, delay affects weight, not admissibility.

Why Section 140 Is Important

• Ensures coordination between:
  • Evidence law and procedural law
• Prevents confusion regarding:
  • Sequence of witnesses
• Provides flexibility to courts
• Helps maintain orderly trials

Critical Analysis
Strengths

1. Aligns evidence law with procedural laws
2. Avoids rigid technicalities
3. Gives courts flexibility where procedure is silent
4. Prevents procedural injustice
5. Facilitates smooth conduct of trials

Limitations

1. Heavy reliance on judicial discretion
2. Possibility of inconsistent practice
3. Requires careful judicial management

Conclusion
​Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a practical and flexible rule for determining the order of production and examination of witnesses. By deferring primarily to civil and criminal procedural laws, and secondarily to judicial discretion, the provision ensures that trials proceed in an orderly, fair, and efficient manner.
Ultimately, Section 140 reinforces the principle that procedure is the handmaid of justice, not its master, and that courts must balance structure with flexibility to achieve substantive justice.