§ SECTION 140 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Order of production and examination of witnesses

Sequence is a matter of procedure. The order in which witnesses are produced and examined is set by the procedural law and practice — civil or criminal — and, where no such law applies, by the court’s discretion.

How to read Section 140

The Evidence Act does not fix the order of witnesses — the procedural law (civil or criminal) does; and if none applies, the court decides.

What it governs

The order in which witnesses are produced and examined.

The primary rule

Regulated by the law and practice (for the time being) of civil and criminal procedure respectively.

The fallback

In the absence of any such law, by the discretion of the court.

The bare Act

The section in its own words — a single rule, with a fallback.

Section 140 · verbatim

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

In short: this section opens the run on the examination of witnesses, and it begins by handing the question of sequence to procedure. The Evidence law itself does not lay down the order in which the parties call and question their witnesses; that is regulated by the law and practice, as it stands from time to time, of civil procedure in civil cases and criminal procedure in criminal cases. Only where no such law speaks to the point does the section supply a fallback: the discretion of the court. The sensible division of labour is the point — how and in what order a trial unfolds is the province of the procedural codes, while the Evidence law governs what may be proved and how it is proved. So § 140 defers on sequencing, and the sections that follow turn to the substance of examination-in-chief, cross-examination and re-examination.

→ This carries forward IEA 1872 § 135 — the order of witnesses follows procedural law, or the court’s discretion.

Glossary

produced and examined

Called to the stand and questioned.

law and practice for the time being

The procedural rules currently in force.

civil and criminal procedure respectively

The civil procedure code for civil cases; the criminal procedure code for criminal cases.

in the absence of any such law

Where no procedural rule covers the point.

discretion of the Court

The judge’s considered choice — the fallback.

order of witnesses

The sequence in which each side’s witnesses appear.

The picture

Sequence is set by the procedural codes — and only where they are silent does the court’s discretion step in.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

Governed by procedureThe court’s discretion

procedureThe order follows the civil / criminal procedure codes

In one lineThe order of producing and examining witnesses is fixed by the procedural law and practice in force — civil procedure for civil cases, criminal for criminal.

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively,procedure sets the order…the sequence follows the procedural law and practice for the time being — civil or criminal, as the case is.

ExampleIn a criminal trial, when the prosecution leads its witnesses and when the defence leads its own is governed by the criminal procedure rules — not by the Evidence law.

✗ Not thisThe Evidence Act does not itself prescribe the order. Questions of sequence are a matter of procedure; this section simply points to where the answer is found.

discretionWhere the codes are silent, the court decides

In one lineOnly in the absence of any governing procedural law does the section leave the order to the discretion of the court.

and, in the absence of any such law, by the discretion of the Court.→ the fallback: judicial discretionwhere the procedural law is silent, the court orders the sequence as it thinks fit.

ExampleIf a particular question of sequence is not answered by the procedural rules, the judge may decide, in the interests of a fair and orderly trial, when a given witness should be examined.

✗ Not thisThe discretion is a fallback, not an override. Where the procedural law does govern the order, the court follows it — it does not set the codes aside at will.

Connected provisions

§ 139 · back

Number of witnesses

The close of the competency run — no particular number of witnesses is required.

§ 141 · next

Judge to decide admissibility

The judge admits evidence only if relevant; foundations come first; and the judge controls the order of proof.

the run ahead

Examination of witnesses

Examination-in-chief, cross-examination and re-examination — the sections that follow.

lineage

IEA 1872, § 135

Carried forward — the order of witnesses follows procedural law, or the court’s discretion.