Order of examinations
Section 138 of the Indian Evidence Act, 1872 deals with 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 Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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.
Section 138, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
BSA 143 Order of examinations Text carried over almost unchanged 97%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Vinod Kumar v. State of Punjab
Court's Decision & Legal Precedent
Judgement of Main Case order-6.pdf 2015-01-21 DATE VERIFIED (not same-date ROP order-7; not the earlier 2014-09-23 labelled Judgment order-3). Crl A 554/2012. IEA 137/138: examination-in-chief and cross should be on the same day; long deferral lets the witness be gained over. Hostile evidence is not washed off — usable parts survive (s.154). CrPC 309 adjournments are not a right. Map iea 137/138/154 and crpc 309 (BNSS 346 successor, mapping.csv close).
On this section: s.138 order of examinations: chief, then cross, then re-examination. The trial court must keep that sequence tight; adjournments that break it are not routine (Vinod Kumar).
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State of Haryana vs Ram Mehar and OTHERS Etc Etc
Court's Decision & Legal Precedent
The power to recall and re-examine witnesses under Section 311 Code of Criminal Procedure, despite its broad language permitting exercise at any stage of trial, cannot be exercised merely on the ground that defense counsel was ill or inadvertently failed to put certain questions to witnesses. The exercise of such power must be justified by established legal principles requiring that the evidence appears essential to just decision of the case, and must serve the ends of justice by discovering truth and obtaining proper proof of facts. Mere illness of counsel or subsequent discovery of inadvertent omissions in cross-examination by a changed counsel do not constitute valid grounds for recall when substantial trial has proceeded, accused have had multiple opportunities to defend, and no showing is made that justice has been denied. The concept of fair trial, while fundamental to Article 21, must be balanced against the interests of victims and society, and cannot be stretched to such extent that it mortgages the systemic order of conducting trials per the Code of Criminal Procedure or permits abuse of process in the name of fairness.
On this section: Regarding examination of witnesses; cited in context of Section 311 CrPC powers for recalling witnesses
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Gian Chand vs State of Haryana
Court's Decision & Legal Precedent
Once possession of contraband articles is established in a drug trafficking case, the statutory presumptions under Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 operate against the accused, presuming conscious possession and knowledge of the contraband. The burden thereupon shifts to the accused to prove that he had no knowledge or conscious possession of the contraband. The absence of independent witnesses does not render police testimony unreliable if such testimony is found to be cogent, convincing, credible and reliable upon scrutiny. The failure to examine incriminating circumstances under Section 313 of the Criminal Procedure Code does not vitiate the trial unless material prejudice to the accused is demonstrated. In cases of narcotics possession, the facts regarding how the contraband came to be in the vehicle fall within the special knowledge of the accused under Section 106 of the Indian Evidence Act, 1872.
On this section: Cross-examination of witnesses regarding information tendered in evidence
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Sunil Mehta vs State of Gujarat
Court's Decision & Legal Precedent
Evidence recorded during preliminary inquiry under Section 202 CrPC before the accused appears in court cannot be used to frame charges against the accused under Section 246 CrPC without fresh evidence being produced and recorded under Section 244 CrPC in the presence and with the opportunity of cross-examination by the accused. The accused has a fundamental right to cross-examine prosecution witnesses before charges are framed, as this right is essential for the accused to demonstrate that allegations are groundless and no case exists warranting framing of charges. The scheme and procedure of Chapter XV (dealing with complaints and preliminary inquiry) is distinct from Chapter XIX Part B (dealing with trial of warrant cases on private complaint), and evidence recorded at the preliminary stage cannot substitute for evidence properly recorded under Section 244 in the presence of the accused.
On this section: Order of examination: examination-in-chief, cross-examination, re-examination; cross-examination must be permitted by law; this standard applies to evidence under Section 244 CrPC
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Jagdish Sharma @ Lovely vs State of Punjab
Court's Decision & Legal Precedent
The widest discretionary power under Section 311 Cr.P.C. to recall a witness is reserved for achieving a just decision on facts and preventing a failure of justice. It cannot be claimed as a matter of right or routinely invoked on the grounds of advocate distraction, convenience, or omission of certain questions during an already concluded cross-examination.
On this section: Prescribes the order of examinations of witnesses.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Sathyasingan (Sanctioning Authority) is/isn"t to be examined as witness through video conferencing". 4. Learned Trial Court vide impugned order dismissed the application under Section 138 of the Indian Evidence Act filed by the petitioner, taking into account that petitioner is not a public servant and testimony of witness is relevant qua public servant D.S. Rawat (Accused No.1 before the learned Trial Court). Further, referring to Video Conferencing Rules as notified vide Notification …
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… Of Witnesses', provides that there has to be examination-in-chief of a witness by the party who calls him, then his cross-examination by the adverse party and then re-examination subsequent to the cross-examination by the party who called him. This is prescribed in Section 137 of the Indian Evidence Act. However, Section 138 of the Indian Evidence Act provides that witnesses shall be first examined-in-chief, then cross-examined and thereafter if a party calling him so desires, re-examined. This Section further provides that the reexamination shall be directed to the explanation of matters referred to in cross-examination and if new …
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… Cross-examination.—The examination of a witness by the adverse party shall be called his crossexamination. Re-examination.—The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his reexamination." Further, Section 138 of the Indian Evidence Act, 1872, reads thus: "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 …
Questions about Section 138
What have the courts held on Section 138 of the Indian Evidence Act?
Vinod Kumar v. State of Punjab (21 Jan 2015) is the leading judgment on this section among those set out below: s.138 order of examinations: chief, then cross, then re-examination. The trial court must keep that sequence tight; adjournments that break it are not routine (Vinod Kumar). Another 4 judgments on this section are set out below, 4 of them from the Supreme Court. They run from 2013 to 2023.
How do I find court cases under Section 138 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 138, section 138 IEA, section 138 of the Indian Evidence Act. People searching for it also type indian evidence act 138 and evidence act s 138 3. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 5 reported judgments on this section are set out on this page, beginning with Vinod Kumar v. State of Punjab (21 Jan 2015).
What should I read with Section 138 of the Indian Evidence Act, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BSA 143 (Order of examinations), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 138 of the Indian Evidence Act come into force?
Section 138 of the Indian Evidence Act, cited as IEA 138, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.