Analysis of Section 138, Indian Evidence Act, 1872

The Tripartite Structure of Witness Examination: A Juridical Analysis of Section 138 of the Indian Evidence Act, 1872

Introduction

The edifice of the adversarial system of justice is built upon the robust examination of evidence, wherein the truth is elicited through a structured process of questioning and counter-questioning. Central to this procedural architecture in Indian jurisprudence is Section 138 of the Indian Evidence Act, 1872 (hereinafter "the Act"). This provision is not a mere procedural formality but the very bedrock that governs the order and scope of witness examination, ensuring fairness, precision, and the ascertainment of truth. It delineates a tripartite sequence—Examination-in-Chief, Cross-Examination, and Re-Examination—each with a distinct purpose and ambit. This article provides a comprehensive analysis of Section 138 of the Act, examining its statutory components and the rich tapestry of judicial interpretation woven by the Indian courts. Drawing upon landmark precedents, this analysis will explore the nuances of each stage of examination, its interplay with other procedural laws like the Code of Criminal Procedure, 1973 (CrPC), and its fundamental role in safeguarding the principles of a fair trial.

The Statutory Framework: Section 138 of the Indian Evidence Act, 1872

Section 138 of the Act statutorily mandates the sequence and defines the contours of witness examination. It reads as follows:

138. Order of examinations.—Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination.—The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

The provision establishes a clear, non-negotiable order. The party calling the witness initiates with the Examination-in-Chief to present its version of the facts. The adverse party is then given the right to Cross-Examine the witness to test the veracity of the statements, expose inconsistencies, and elicit facts favourable to its case. Finally, the party who called the witness has the option to conduct a Re-Examination to clarify ambiguities or explain matters that arose during cross-examination.

Judicial Interpretation of the Order and Scope of Examination

The Supreme Court of India and various High Courts have extensively interpreted the provisions of Section 138, reinforcing its procedural sanctity and elaborating on its practical application.

Examination-in-Chief and the Prohibition of 'Tendering' for Cross-Examination

The mandate that a witness "shall be first examined-in-chief" is absolute. The Supreme Court, in Sukhwant Singh v. State Of Punjab (1995 SCC 3 367), decisively held that the practice of merely "tendering" a witness for cross-examination without conducting an examination-in-chief is inconsistent with Section 138. The Court clarified that such a practice amounts to the prosecution giving up the witness, as it chooses not to elicit any testimony from them. The historical context for this practice under the old Code of Criminal Procedure, 1898, where depositions from committal proceedings could be used as substantive evidence, is no longer applicable under the current procedural framework. Therefore, the examination-in-chief is an indispensable first step before the right to cross-examine can be triggered.

The Expansive Ambit of Cross-Examination

Section 138 explicitly states that "cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief." This grants the cross-examiner wide latitude. The purpose of cross-examination is not merely to get a repetition of the chief-examination but is a powerful tool to:

  • Test the veracity and credibility of the witness.
  • Impeach the witness's credit by exposing bias, motive, or questionable character.
  • Elicit suppressed facts or admissions that favour the cross-examining party.

The principles underlying the evaluation of testimony from interested or hostile witnesses, as discussed in cases like Sat Paul v. Delhi Administration (1976 SCC 1 727), are given practical effect through the mechanism of cross-examination. It is through this process that the court can scrutinize the evidence of a witness who may have a motive to lie, thereby aiding the court in separating the grain from the chaff. The right to cross-examine is a vital component of a fair trial, and its denial can lead to serious prejudice and vitiate the proceedings (Karmadhan Lama v. State Of Sikkim, 1978 SCC ONLINE SIKK 8).

The Purpose and Scope of Re-Examination

The role of re-examination is often misunderstood as being limited to clarifying ambiguities. The Supreme Court, in a seminal exposition in Rammi Alias Rameshwar v. State Of M.P (1999 SCC 8 649), corrected this "erroneous impression." The Court held that re-examination serves a broader purpose: to provide an "explanation of matters referred to in cross-examination." This includes not only resolving ambiguities but also allowing the witness to elaborate on answers that may have been presented in a misleading light during cross-examination. The Court emphasized that an attentive Public Prosecutor has the right and duty to formulate questions to get necessary explanations. Furthermore, Section 138 permits the introduction of new matter during re-examination with the court's permission, subject to the adverse party's right to further cross-examine on that new matter. This ensures that the process remains fair and that all relevant facts are brought before the court.

The Interplay with Section 311 of the Code of Criminal Procedure, 1973

Section 311 of the CrPC vests the court with wide discretionary powers to summon, recall, or re-examine any witness at any stage if their evidence appears essential for a just decision. However, this power does not exist in a vacuum and must be read in conjunction with the procedural discipline of Section 138 of the Evidence Act. The Supreme Court, in Rajaram Prasad Yadav v. State Of Bihar And Another (2013 SCC 14 461) and reaffirmed in State (Nct Of Delhi) v. Shiv Kumar Yadav And Another (2016 SCC 2 402), held that while the power under Section 311 CrPC is extensive, it cannot be used to subvert the principles of examination. A witness cannot be recalled merely to fill lacunae in the prosecution case or to allow them to change their testimony after having been cross-examined. The invocation of Section 311 CrPC must be consonant with the order of examination prescribed in Section 138, ensuring that the process is used for the discovery of truth, not for tactical advantages or to remedy a party's negligence.

Distinguishing Section 138 of the Evidence Act from Analogous Provisions

It is pertinent to address a common point of confusion arising from similarly numbered sections in other statutes, which were part of the provided reference materials.

Section 138, Negotiable Instruments Act, 1881

Section 138 of the Negotiable Instruments Act, 1881, is a substantive penal provision that criminalizes the dishonour of a cheque for insufficiency of funds. It has no procedural connection to Section 138 of the Evidence Act. The former creates a criminal offence, while the latter lays down the rules for witness examination in a trial (including trials under the NI Act). Cases such as Vishnu Dutt Sharma v. Daya Sapra (2009) and PRAMODKUMAR CHHOTALAL VYAS v. STATE OF GUJARAT (2024) deal with the presumptions under Sections 118 and 139 of the NI Act, which are special rules of evidence applicable to cheque dishonour cases, but they do not pertain to the order of examination governed by the Evidence Act.

Section 138B, Customs Act, 1962

Similarly, Section 138B of the Customs Act, 1962, as noted in Sampad Narayan Mukherjee v. Union Of India And Others (2019), is a special provision concerning the relevancy and admissibility of statements made to a Customs Officer under certain circumstances. It creates an exception to the general law of evidence for the purpose of proceedings under the Customs Act. This is a rule of relevancy, distinct from the procedural rule of witness examination order stipulated in Section 138 of the Evidence Act.

Conclusion

Section 138 of the Indian Evidence Act, 1872, is a cornerstone of procedural justice in India. It codifies a time-tested method for the systematic elicitation and scrutiny of oral evidence, thereby upholding the principles of natural justice and fair trial. The judicial pronouncements, particularly from the Supreme Court, have consistently fortified its mandatory nature, preventing procedural shortcuts and ensuring that each party has a fair opportunity to present its case and challenge the evidence of the other. The structured progression from examination-in-chief to cross-examination and re-examination is fundamental to the adversarial process, enabling the court to effectively assess the credibility of witnesses and arrive at a just decision. As elucidated in judgments like Sukhwant Singh, Rammi Alias Rameshwar, and Rajaram Prasad Yadav, Section 138 is not a technicality to be trifled with but a vital safeguard that ensures the integrity of the trial process itself.