Bharatiya Sakshya Adhiniyam, 2023
Section 27 BSA: Relevancy of Earlier Evidence in a Subsequent Proceeding
Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the circumstances in which testimony given by a witness in an earlier judicial proceeding may be used to prove the truth of the facts stated in that testimony in a later proceeding or at a later stage of the same proceeding.
Updated: 12 September 2026
Current law: The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. Section 170 repealed the Indian Evidence Act, 1872, subject to a savings clause for applications, trials, inquiries, investigations, proceedings or appeals that were already pending immediately before commencement.
What Section 27 of the BSA provides
Section 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 a person authorised by law to take it, is relevant for proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts stated by that witness when the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or cannot be produced without delay or expense which the Court considers unreasonable.
The rule applies only where the earlier proceeding was between the same parties or their representatives in interest, 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 both proceedings.
For this purpose, a criminal trial or inquiry is treated as a proceeding between the prosecutor and the accused.
The statutory wording should always be checked against the official text before relying on it in pleadings, legal opinions or court submissions. The official Act is available through India Code.
Meaning and scope of Section 27
As a general rule, a witness should give evidence directly before the court that is deciding the case. Section 27 creates a limited exception. It permits earlier sworn testimony to become relevant for proving the truth of what was stated when producing the witness again is impossible or would involve unreasonable delay or expense, provided the procedural safeguards specified in the section are satisfied.
The provision is therefore concerned not merely with proving that a witness made an earlier statement. Where its conditions are fulfilled, the earlier evidence may itself become relevant for proving the truth of the facts contained in it.
Essential conditions for using earlier testimony
Earlier evidence should not be treated as automatically admissible merely because it was recorded in a previous case. The following statutory requirements are important:
- Earlier evidence must have been lawfully recorded: It must have been given in a judicial proceeding or before a person authorised by law to take evidence.
- The witness must be unavailable in a manner recognised by Section 27: For example, the witness is dead, cannot be found, has become incapable of giving evidence, has been kept out of the way by the adverse party, or cannot be secured without unreasonable delay or expense.
- Identity of parties or legal representatives: The earlier proceeding must have been between the same parties or their representatives in interest.
- Right and opportunity of cross-examination: The adverse party in the first proceeding must have had both the right and the opportunity to cross-examine the witness.
- Substantially the same issues: The questions in issue in the earlier and later proceedings must be substantially the same.
Key safeguard: The earlier testimony becomes relevant only when the opposing party previously had a fair right and opportunity to test that testimony by cross-examination and the material issues were substantially the same.
When can the witness be treated as unavailable?
| Witness is dead | Earlier testimony may become relevant if the remaining statutory conditions are satisfied. |
|---|---|
| Witness cannot be found | The court may consider earlier evidence where the witness cannot reasonably be located. |
| Witness is incapable of giving evidence | Physical or other legally relevant incapacity may bring the case within the section. |
| Witness kept away by adverse party | The provision expressly covers a witness who is kept out of the way by the adverse party. |
| Unreasonable delay or expense | The court must consider the delay or expense unreasonable in the circumstances of the particular case. |
Right and opportunity to cross-examine
The cross-examination requirement is central to Section 27. It protects the fairness of relying on testimony that the present court cannot hear directly from the witness. It is not enough that a party was formally present in the earlier proceeding; the adverse party must have had the legal right and a real opportunity to cross-examine the witness on substantially the same issues.
Same parties and substantially the same questions in issue
The section also requires continuity between the earlier and later proceedings. The parties must be the same, or represented through persons having the relevant legal interest, and the questions in issue must be substantially the same. This requirement reduces the risk of using earlier testimony for a materially different dispute in which the previous cross-examination would not have adequately tested the present issues.
Application in criminal trials and inquiries
The Explanation to Section 27 states that a criminal trial or inquiry is deemed to be a proceeding between the prosecutor and the accused. This statutory deeming rule is relevant while determining whether the requirement concerning identity of parties is fulfilled in criminal proceedings.
Relationship with the former Indian Evidence Act, 1872
Section 27 BSA substantially carries forward the subject previously dealt with by Section 33 of the Indian Evidence Act, 1872. For proceedings governed by the new law, the BSA should be cited. However, Section 170 of the BSA preserves the application of the Indian Evidence Act, 1872 to proceedings that were already pending immediately before 1 July 2024.
Accordingly, the applicable statute may depend on when the relevant application, trial, inquiry, investigation, proceeding or appeal commenced and whether it falls within the statutory savings clause.
Practical checklist before relying on Section 27
- Identify the earlier judicial proceeding and the authority before whom the evidence was recorded.
- Establish the statutory reason why the witness cannot now be examined.
- Verify that the earlier and present parties satisfy the statutory requirement.
- Confirm that the adverse party previously had the right and opportunity to cross-examine.
- Compare the questions in issue in both proceedings and show that they are substantially the same.
- Check whether the proceeding is governed by the BSA or saved under Section 170 for continued application of the Indian Evidence Act, 1872.
Related provisions
Section 27 forms part of the BSA provisions dealing with statements made by persons who cannot be called as witnesses. Readers may also refer to Section 26 BSA concerning statements of relevant facts made by persons who are dead, cannot be found or otherwise fall within the situations specified by that section.
For the next provision, see Section 28 BSA - Entries in books of account when relevant.