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Sections 136, 137 and 138 of the Indian Evidence Act, 1872

Sections 136, 137 and 138 deal with the Judge's role in deciding admissibility, the three stages of examining a witness, and the order and scope of those examinations.

Historical law covered by this article: This page explains the Indian Evidence Act, 1872 as applicable immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force. It is intended for matters in which the earlier Evidence Act remains relevant.
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Section 136 - Judge to decide as to admissibility of evidence

Meaning: Section 136 places the responsibility for deciding whether proposed evidence is legally admissible on the Judge. The party offering a fact may be required to explain how that fact, if proved, would be relevant to the case.

Core rule under Section 136

When either party proposes to give evidence of any fact, the Judge may ask how the alleged fact, if proved, would be relevant. The Judge shall admit the evidence if the fact, if proved, would be relevant, and not otherwise.

If a fact is admissible only after another fact has been proved, that foundational fact must ordinarily be proved first. The Court may, however, accept an undertaking that the foundational fact will be proved where the statutory conditions are satisfied.

Where the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge has discretion to determine the sequence in which evidence of those facts may be given.

Illustrations to Section 136

  1. If a statement of a person alleged to be dead is sought to be proved as relevant under Section 32, the death of that person must be proved before the statement is received in evidence.
  2. If the contents of a document said to be lost are sought to be proved by a copy, the loss of the original must first be established before the copy is produced as secondary evidence.
  3. If an accused is alleged to have received stolen property knowing it to be stolen and a denial of possession is relied upon, the relevance of the denial depends on identification of the property. The Court may determine which fact should be proved first.
  4. If fact A is said to be the cause or effect of a fact in issue and intermediate facts B, C and D are necessary to connect them, the Court may permit A to be proved first or may require proof of the intermediate facts before admitting proof of A.
In short: Section 136 is a gatekeeping provision. Relevance is the starting point, while proof of foundational facts and the proper sequence of proof may determine whether and when particular evidence is admitted.

Section 137 - Examination-in-chief, cross-examination and re-examination

Section 137 defines the three principal stages through which a witness may be examined.

Examination-in-chief

The examination of a witness by the party who calls that witness is called examination-in-chief. Its purpose is to place the calling party's relevant evidence before the Court through that witness.

Cross-examination

The examination of a witness by the adverse party is called cross-examination.

Re-examination

The examination of a witness, after cross-examination, by the party who called that witness is called re-examination.

Section 138 - Order of examinations

Section 138 prescribes the ordinary sequence of witness examination and explains the permissible scope of cross-examination and re-examination.

Sequence of examination

A witness is first examined-in-chief, then cross-examined if the adverse party so desires, and then re-examined if the party who called the witness so desires.

Scope of cross-examination

Examination and cross-examination must relate to relevant facts. Cross-examination, however, need not be confined to the facts to which the witness testified in examination-in-chief.

Scope of re-examination

Re-examination is directed to explaining matters referred to in cross-examination. If the Court permits a new matter to be introduced in re-examination, the adverse party may further cross-examine the witness on that new matter.

How Sections 136, 137 and 138 work together

These provisions operate at different stages of receiving oral and documentary evidence. Section 136 concerns the threshold question of whether proposed evidence is relevant and admissible, including whether a necessary foundational fact must first be proved. Section 137 defines examination-in-chief, cross-examination and re-examination. Section 138 then fixes their sequence and regulates their scope.

Accordingly, a party does not obtain admission of material merely by producing it or asking a witness about it. The Court must apply the rules of relevance and admissibility, while the examination of witnesses proceeds in the statutory order.

Official legal source

For the text of the Indian Evidence Act, 1872, see the official India Code copy of the Indian Evidence Act, 1872.

This article explains the statutory provisions for general legal information and should be read with applicable amendments, judicial decisions and procedural law relevant to the particular proceeding.