​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Witness Not Excused from Answering on Ground that Answer Will Criminate [Section 137]

Introduction
In judicial proceedings, courts must balance two competing interests:

1. The need to discover the truth and ensure fair justice, and
2. The protection of individuals against self-incrimination.

Section 137 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) addresses this balance in relation to witnesses. It makes it clear that a witness cannot refuse to answer a relevant question merely because the answer may incriminate him, while simultaneously granting protection against misuse of such compelled answers.

Full Definition of BNSS
BNSS stands for Bharatiya Nagarik Suraksha Sanhita, 2023.
It is the principal criminal procedural law of India, which has replaced the Code of Criminal Procedure, 1973 (CrPC). The BNSS governs:

• Investigation of offences
• Arrest, bail, and custody
• Recording of statements
• Trial procedures
• Appeals and revisions

BNSS provisions often interact with the Bharatiya Sakshya Adhiniyam, especially in matters concerning witness examination, accused testimony, and evidentiary safeguards.

Section 137 – Statutory Provision (Explained Simply)Section 137 provides that:

• A witness shall not be excused from answering any question relating to a matter relevant to the matter in issue, in any civil or criminal proceeding,
• Merely on the ground that:
  • The answer will criminate him, or
  • May tend directly or indirectly to criminate him, or
  • May expose him to a penalty or forfeiture of any kind.

Proviso (Protective Clause)However:

• Any answer which a witness is compelled to give:
  • Shall not subject him to arrest or prosecution, and
  • Shall not be proved against him in any criminal proceeding,

👉 Except in a prosecution for giving false evidence (perjury).

Scope and Meaning of Section 1371. Rule Against Self-IncriminationThe general principle against self-incrimination is expressed in the maxim:
nemo tenetur se ipsum prodere – no one is bound to criminate himself.

• In India, this protection exists at two levels:
  • For accused persons → Article 20(3) of the Constitution
  • For witnesses → Section 137 of the BSA

2. Compulsion to Answer Relevant Questions

• If a question is relevant to the matter in issue:
  • A witness must answer it, even if:
    • It exposes him to civil or criminal liability, or
    • It may lead to penalty or forfeiture.

The witness cannot refuse merely on the ground of possible self-incrimination.

3. Protective Immunity under the ProvisoSection 137 protects witnesses by granting use immunity:

• The compelled answer:
  • Cannot be used to arrest or prosecute the witness, and
  • Cannot be used as evidence against him in any criminal proceeding.

This immunity applies only to compelled answers, not to voluntary statements.

Section 137 and Article 20(3) of the ConstitutionArticle 20(3) – Constitutional Protection

• Applies only to an accused person.
• Protection is absolute:
  • An accused cannot be compelled to be a witness against himself.

Section 137 – Statutory Protection for Witnesses

• Applies only to witnesses, not accused persons.
• Protection is qualified, not absolute.

Key Differences (Note Form)Article 20(3) vs Section 137

• Who is Protected
  • Article 20(3): Accused person
  • Section 137: Witness
• Nature of Protection
  • Article 20(3): Absolute
  • Section 137: Qualified
• Compulsion
  • Article 20(3): No compulsion permitted
  • Section 137: Compulsion permitted for relevant questions
• Use of Answer
  • Article 20(3): No compelled testimony at all
  • Section 137: Compelled answer cannot be used against the witness

Claiming the Privilege under Section 137

• The witness must:
  • Claim the privilege when an incriminating question is put.
• Even after claiming:
  • The court may still compel the witness to answer.
• In such cases:
  • The proviso automatically protects the witness from prosecution based on that answer.

Voluntary Answers vs Compelled Answers

• Voluntary Answer:
  • Not protected by the proviso.
  • May be used against the witness.
• Compelled Answer:
  • Fully protected under Section 137.
  • Cannot be used in any criminal proceeding (except perjury).

Accused Appearing as a Witness under BNSSUnder Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):

• An accused may volunteer to appear as a defence witness.

Legal Consequences

• By doing so:
  • The accused waives the constitutional protection under Article 20(3).
  • He is treated as an ordinary witness.

He may:

• Be cross-examined, and
• Be asked questions tending to incriminate him.

However:

• Answers compelled from him will still receive protection under the proviso to Section 137, except in perjury proceedings.

Perjury Exception

• If a witness gives:
  • A false answer under oath,

👉 He may still be:

• Prosecuted for giving false evidence, even though the answer was compelled.

Section 137 does not protect falsehood.

Why Section 137 Is Important

• Ensures:
  • Truth is not suppressed
  • Relevant facts come before the court
• Protects witnesses from:
  • Fear of prosecution
  • Reluctance to testify

It encourages full and frank disclosure without sacrificing fairness.

Critical AnalysisStrengths

1. Balances truth-finding with witness protection
2. Encourages honest testimony
3. Prevents abuse of privilege by witnesses
4. Harmonizes statutory and constitutional safeguards
5. Supports efficient administration of justice

Limitations

1. Qualified protection may cause anxiety to witnesses
2. Requires judicial vigilance to ensure compulsion is lawful
3. Distinction between voluntary and compelled answers can be complex

ConclusionSection 137 of the Bharatiya Sakshya Adhiniyam, 2023 embodies a carefully calibrated balance between the needs of justice and the protection against self-incrimination. While it compels witnesses to answer relevant questions even if incriminating, it simultaneously grants immunity against the use of such compelled answers in criminal proceedings.
By distinguishing between the absolute constitutional protection of accused persons under Article 20(3) and the qualified statutory protection of witnesses, Section 137 ensures that courts can uncover the truth without unjustly penalising those who assist in the administration of justice.