Section 27 – Bharatiya Sakshya Adhiniyam (BSA) – Relevancy Of Certain Evidence For Proving, In Subsequent Proceeding, Truth Of Facts Therein Stated.

Code

Evidence given by a witness in a judicial proceeding, or before any person
authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which
it states, when the witness is dead or cannot be found, or is incapable of giving evidence,
or is kept out of the way by the adverse party, or if his presence cannot be obtained without
an amount of delay or expense which, under the circumstances of the case, the Court
considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in
interest; that the adverse party in the first proceeding had the right and opportunity to
cross-examine and the questions in issue were substantially the same in the first as in the
second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between
the prosecutor and the accused within the meaning of this section.

Explanation of Section 27 BSA

Section 27 of the Bharatiya Sakshya Adhiniyam allows the use of testimony from a prior judicial proceeding in a later stage of the same proceeding or in a separate but related proceeding. This provision becomes especially important when the original witness cannot appear again due to reasons such as:

• Death

• Disappearance or being untraceable

• Incapacity (physical or mental)

• Intentional absence caused by the opposing party

• Unreasonable delay or expense to secure the witness’s presence

However, the earlier statement is admissible only if:

1. The previous proceeding involved the same parties or their legal representatives,

2. The opposing party had the right and opportunity to cross-examine the witness, and

3. The issues in both proceedings were substantially the same.

This ensures that a fair opportunity to contest the witness’s statement was already provided during the earlier hearing.

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Illustration

1. A witness gave evidence during a civil trial between Party A and Party B. The same parties are later involved in a second case, and the witness has since passed away. If the subject matter of the dispute is the same or closely related, and Party B had the opportunity to cross-examine the witness in the first case, their previous testimony can be used in the second proceeding.

2. In a criminal trial, a prosecution witness testified in an earlier stage of the trial. Due to a medical condition, the witness is later unable to appear. The court can admit their previous testimony from the initial proceeding, as long as the accused had the opportunity to cross-examine.

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Common Questions and Answers on Section 27 BSA

1. When can former testimony be used in a later case?

   • When the witness is unavailable due to death, incapacity, absence, or other valid reasons, and the prior testimony was recorded in a proceeding involving the same parties with an opportunity for cross-examination.

2. What if the parties are different in the subsequent case?

   • The previous testimony is not admissible unless the parties or their legal representatives in the new proceeding are the same as those in the earlier one.

3. Is this section applicable to criminal cases?

   • Yes. The Explanation to Section 27 explicitly states that a criminal trial or inquiry is deemed to be a proceeding between the prosecutor and the accused.

4. Can this section be invoked if the previous statement was made before a police officer?

   • No. The testimony must be given before a court or a person legally authorized to record it, such as during a judicial proceeding.

5. What does “substantially the same issue” mean?

   • It means that the core question or dispute in both proceedings must be materially similar or related in nature.

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Conclusion

Section 27 of the Bharatiya Sakshya Adhiniyam serves as a crucial safeguard in the evidentiary process. It allows the courts to rely on previously recorded statements when a witness becomes unavailable, provided that fairness and opportunity for cross-examination were preserved. This provision ensures continuity and judicial efficiency without compromising the rights of the parties involved.