Section 27 BSA: Relevancy of Evidence in Subsequent Proceedings

Section 27 BSA explains when evidence given by a witness in an earlier judicial proceeding may be used to prove facts in a subsequent proceeding, subject to statutory safeguards.

Introduction

The law of evidence generally requires witnesses to give testimony that can be tested through examination and cross-examination. However, a witness may die, become incapable of giving evidence, remain untraceable or become unavailable for other reasons recognised by law.

Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) addresses this situation by permitting evidence given in an earlier judicial proceeding, or before a person legally authorised to take evidence, to be relevant in a subsequent proceeding or a later stage of the same proceeding, provided the statutory conditions are satisfied.

This provision seeks to balance the practical need to use previously recorded testimony against the importance of procedural fairness. Earlier testimony cannot be used automatically merely because the witness is unavailable. The requirements relating to the parties, the opportunity for cross-examination and the similarity of issues must also be considered.

Section 27 substantially corresponds to Section 33 of the Indian Evidence Act, 1872.

Bare Act: Section 27 BSA

27. Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated.—

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.

Meaning of Section 27 BSA

Section 27 concerns the use of testimony recorded in an earlier proceeding when the witness cannot be produced in a subsequent proceeding or at a later stage of the same proceeding.

For example, a witness testifies in a civil suit about the execution of an agreement. The opposing party has an opportunity to cross-examine the witness. Before a subsequent proceeding involving substantially the same issue, the witness dies. The earlier testimony may be relevant under Section 27 if all the statutory conditions are fulfilled.

The provision does not create a general rule that evidence from one case can automatically be transferred to another. The court must determine whether the earlier testimony qualifies under the main provision and the proviso.

Essential Conditions Under Section 27 BSA

1. The witness must be unavailable

The section recognises the following circumstances:

• The witness is dead.
• The witness cannot be found.
• The witness is incapable of giving evidence.
• The witness is kept out of the way by the adverse party.
• The witness’s presence cannot be obtained without unreasonable delay or expense in the circumstances of the case.

The court must be satisfied that the relevant circumstance exists. Mere inconvenience in producing a witness is not necessarily sufficient.

2. The evidence must have been given in a qualifying proceeding

The testimony must have been given in a judicial proceeding or before a person authorised by law to take evidence.

An informal conversation, private letter or statement outside such a proceeding does not become admissible under Section 27 merely because its maker is unavailable.

3. The parties must be the same or legally represented

The proviso requires the earlier proceeding to have been between the same parties or their representatives in interest.

This condition protects a person from having earlier testimony used against them without the legally required relationship to the earlier proceeding.

4. The adverse party must have had the right and opportunity to cross-examine

The adverse party in the first proceeding must have had both the right and the opportunity to cross-examine the witness.

This requirement is fundamental because cross-examination allows a party to challenge the witness’s credibility, accuracy and account of the facts.

The mere fact that the witness was examined in an earlier proceeding does not satisfy this condition if the adverse party lacked the required right or opportunity.

5. The issues must be substantially the same

The questions in issue in the first and subsequent proceedings must be substantially the same.

Also Read: Section 3 – Evidence may be given of facts in issue and relevant facts – BSA 2023

The proceedings need not be identical in every respect. However, the material questions that the earlier testimony is intended to establish must substantially correspond to those in the later proceeding.

If the later proceeding concerns a materially different issue, the earlier testimony may not qualify under Section 27 for proving that issue.

Explanation of the Proviso

The proviso contains three distinct safeguards.

Requirement	Legal significance
Same parties or representatives in interest	Establishes the required relationship between the earlier and later proceedings
Right and opportunity to cross-examine	Protects the ability to challenge the witness’s testimony
Substantially the same questions in issue	Ensures that the earlier testimony relates to the dispute in the later proceeding

These conditions must be considered together with the witness’s unavailability. Even if the witness has died, the earlier testimony cannot automatically be relied upon without satisfying the applicable requirements.

Explanation of the Statutory Explanation

The Explanation provides that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused for the purposes of Section 27.

This clarifies how the requirement concerning the parties applies to criminal trials and inquiries.

However, the Explanation does not remove the need to establish the other conditions, including the adverse party’s right and opportunity to cross-examine and the substantial similarity of the issues.

Practical Examples of Section 27 BSA

Example 1: Witness dies after giving evidence

A witness testifies in a civil suit concerning the execution of a contract. The opposing party has the right and opportunity to cross-examine the witness. The witness subsequently dies, and a later proceeding between the same parties raises substantially the same issue.

The earlier testimony may be relevant under Section 27 if the statutory requirements are established.

Principle: The death of a witness may permit reliance on earlier testimony, but it does not dispense with the other conditions.

Example 2: No opportunity for cross-examination

A witness gives evidence in an earlier proceeding, but the opposing party had no right or opportunity to cross-examine. The witness later becomes unavailable, and the testimony is sought to be used against that party.

The cross-examination requirement is not satisfied merely because the testimony was recorded.

Principle: The right and opportunity to challenge the testimony are essential safeguards.

Example 3: Different issues in the subsequent proceeding

A witness testifies in an earlier dispute about whether a contract was signed. In a later proceeding, the main issue is whether the contract was terminated.

Even if the witness is unavailable and the parties are the same, the court must examine whether the questions in issue are substantially the same. The earlier testimony does not automatically qualify to establish the distinct question of termination.

Principle: The similarity of the material issues is a separate statutory requirement.

Example 4: Witness deliberately kept away

A party deliberately prevents a witness from appearing in the subsequent proceeding. If the circumstances fall within Section 27, the earlier testimony may be relevant, subject to the other statutory conditions.

Principle: The provision addresses deliberate unavailability but does not dispense with the safeguards in the proviso.

Important Case Laws on Section 27 BSA

The following cases interpret Section 33 of the Indian Evidence Act, 1872, the predecessor provision. They are relevant to the corresponding principles under Section 27 BSA but should not be described as decisions directly interpreting the new Act.

1. V.M. Mathew v. V.S. Sharma, (1995) 6 SCC 122

Legal principle: The Supreme Court considered the importance of the adverse party’s right and opportunity to cross-examine a witness whose earlier testimony is sought to be used subsequently.

Relevance: The decision illustrates that the right to challenge earlier testimony is a substantive safeguard. The recording of evidence in an earlier proceeding does not, by itself, make it available for use against a party in every later proceeding.

2. Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79

Legal principle: The Privy Council considered the conditions governing the use of earlier testimony under Section 33 of the Indian Evidence Act, including the requirement concerning cross-examination.

Also Read: Section 11 of Bharatiya Sakshya Adhiniyam, 2023: Facts Relevant When Right or Custom Is in Question

Relevance: The decision helps explain why the statutory right to cross-examine must be established before earlier testimony can be relied upon under the corresponding provision.

3. Chainchal Singh v. Emperor, AIR 1946 PC 1

Legal principle: The Privy Council considered the application of Section 33 in a criminal context and the need to satisfy the statutory conditions before relying on evidence recorded in an earlier proceeding.

Relevance: The case illustrates the importance of applying the statutory safeguards when earlier testimony is sought to be used in criminal proceedings.

These decisions concern the former Evidence Act. Their relevance to Section 27 BSA must be assessed in light of the corresponding statutory wording and the facts of each case.

Difference Between Section 26 and Section 27 BSA

Section 26 BSA	Section 27 BSA
Covers specified statements made by persons who are dead or otherwise unavailable	Covers evidence previously given by a witness in a qualifying proceeding
Includes dying declarations, specified business records and statements against interest	Concerns the use of earlier testimony in a subsequent proceeding or a later stage of the same proceeding
Contains categories of statements under clauses (a) to (h)	Requires witness unavailability and compliance with the proviso
Corresponds to Section 32 of the former Evidence Act	Corresponds to Section 33 of the former Evidence Act

The key distinction is that Section 26 addresses specified statements by unavailable persons, while Section 27 deals with testimony already given in a judicial proceeding or before a legally authorised person.

Difference Between Section 27 and Section 28 BSA

Section 27 concerns the relevance of earlier testimony in subsequent proceedings. Section 28 concerns entries in books of account when relevant.

Section 28 addresses entries in books of account regularly kept in the course of business. Section 27, by contrast, establishes conditions for relying on evidence given by a witness in an earlier proceeding.

The provisions deal with different forms of evidence and should not be confused.

Corresponding Provision Under the Indian Evidence Act, 1872

The corresponding provision was Section 33 of the Indian Evidence Act, 1872, titled Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.

Both provisions permit earlier testimony to be relevant in a subsequent judicial proceeding or a later stage of the same proceeding when the witness is unavailable in a specified manner.

Both also require the earlier proceeding to have involved the same parties or their representatives in interest, the adverse party to have had the right and opportunity to cross-examine, and the questions in issue to have been substantially the same.

For proceedings governed by the Bharatiya Sakshya Adhiniyam, 2023, Section 27 is the applicable provision, subject to relevant savings and transitional rules.

Important Points for Law School and Judiciary Examinations

• Section 27 BSA deals with the use of evidence from an earlier proceeding to prove facts in a subsequent proceeding or a later stage of the same proceeding.
• The corresponding provision under the Indian Evidence Act, 1872 was Section 33.
• The witness must be dead, untraceable, incapable of giving evidence, kept away by the adverse party or unavailable without unreasonable delay or expense.
• The evidence must have been given in a judicial proceeding or before a person legally authorised to take evidence.
• The earlier proceeding must have involved the same parties or their representatives in interest.
• The adverse party must have had the right and opportunity to cross-examine the witness.
• The questions in issue must have been substantially the same.
• The Explanation treats a criminal trial or inquiry as a proceeding between the prosecutor and the accused.
• Earlier testimony is not automatically admissible merely because the witness is unavailable.

Frequently Asked Questions (FAQs)

1. What is Section 27 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 27 provides that evidence given by a witness in a judicial proceeding, or before a person authorised by law to take evidence, may be relevant in a subsequent proceeding or a later stage of the same proceeding when the witness is unavailable and the statutory conditions are satisfied.

2. Which section of the Indian Evidence Act corresponds to Section 27 BSA?

Section 27 BSA corresponds to Section 33 of the Indian Evidence Act, 1872.

3. Can evidence from an earlier case be used in a subsequent case?

Yes, provided the witness is unavailable in a manner recognised by the section and the requirements concerning the parties, cross-examination and substantially identical issues are satisfied.

4. Is the death of a witness sufficient to make earlier testimony admissible?

No. Death is one recognised ground of unavailability, but the other statutory requirements must also be satisfied.

5. Why is cross-examination important under Section 27?

Cross-examination allows the opposing party to test the witness’s credibility, accuracy and version of events. The proviso requires that the adverse party had the right and opportunity to cross-examine the witness in the earlier proceeding.

6. Does Section 27 apply to criminal proceedings?

Yes. The Explanation states that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused for the purposes of the section. The other statutory conditions must still be satisfied.

7. Which case is important for Section 27 BSA?

V.M. Mathew v. V.S. Sharma, (1995) 6 SCC 122, is relevant to understanding the safeguards governing the use of earlier testimony, particularly the right and opportunity to cross-examine.

Conclusion

Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 provides a limited exception permitting testimony from an earlier proceeding to be used at a later stage or in a subsequent judicial proceeding.

Its application depends on more than the unavailability of the witness. The testimony must have been given in a qualifying proceeding, the earlier and later proceedings must involve the same parties or their representatives in interest, the adverse party must have had the right and opportunity to cross-examine, and the questions in issue must have been substantially the same.

For law students and judiciary aspirants, the central principle is that Section 27 preserves relevant earlier testimony while maintaining procedural fairness through its statutory safeguards.

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