Order and Production of Witnesses (Section 135 IEA)

Section 135 of the Indian Evidence Act, 1872 (IEA) — re-enacted in the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court. Sections 135 to 136 IEA together set out the framework for the production of witnesses, the order in which they are called and examined, the rule on recall and further examination, and the trial court's power to regulate the production of evidence in the interest of justice. The chapter is short but procedurally critical: every trial depends on the orderly production and examination of witnesses, and the rules of this chapter govern that process.

The chapter is exam-tested for its substantive provisions, its interaction with the procedural codes, and the trial court's discretion in regulating the order of evidence. The student who masters Sections 135 to 136 IEA can navigate the procedural questions that arise at the threshold of every witness's testimony in any Indian trial.

Concept — order of production as a procedural matter

The order in which witnesses are produced and examined is a procedural matter. The Adhiniyam itself does not prescribe a fixed order; it defers to the procedural codes — the Code of Civil Procedure for civil proceedings and the BNSS (previously the CrPC) for criminal proceedings — and to the discretion of the court where neither code is applicable. The deference reflects the recognition that the order of evidence depends on the nature of the case, the strategic considerations of the parties, and the convenience of the court and of the witnesses themselves.

The chapter on examination of witnesses — examination-in-chief, cross-examination, re-examination develops the procedural framework within which each witness is examined; the present chapter develops the framework that determines the order in which witnesses are called for that examination. The chapter on witnesses — competency, compellability, privileged communication develops the threshold rules of competency that operate before the production of witnesses.

Section 135 IEA — order regulated by procedural codes

Section 135 IEA / corresponding BSA provision provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court. The provision therefore identifies three sources for the rule on order: (i) the procedural codes, (ii) the practice of the courts, and (iii) the discretion of the trial court in the absence of code or practice.

The procedural codes contain detailed provisions on the order in which evidence is led. In civil proceedings, the plaintiff leads his evidence first, calling all his witnesses in the order he chooses; the defendant then leads his evidence in similar fashion. In criminal proceedings, the prosecution leads its evidence first, calling its witnesses in the order in which the case is to be presented; the defence then leads its evidence in support of the defence theory. The procedural codes give the parties wide latitude to choose the order of their own witnesses, subject to the trial court's overall control.

Section 136 IEA — judge to decide as to admissibility of evidence

Section 136 IEA / corresponding BSA provision provides that when either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

The provision is the operational expression of the rule that admissibility is a matter for the judge, not for the jury (where juries existed) or for the parties themselves. The judge is the gatekeeper: he decides whether a proposed item of evidence is relevant under the relevancy chapters of the Adhiniyam, and whether it should be admitted. The provision empowers the judge to inquire into the relevancy basis before the evidence is led, and to refuse evidence that has no relevancy basis.

The trial court's discretion in regulating production

The trial court has wide discretion in regulating the production of witnesses. The court may direct the order in which witnesses are called where the procedural codes leave the matter open. The court may permit the recall of a witness for further examination on any matter, including matters that arose only after the witness's original examination. The court may permit a party to call additional witnesses where the interests of justice so require, even after the party's evidence has been formally closed. The court may also restrict the number of witnesses where it is satisfied that further evidence on a particular fact is not necessary or will be merely cumulative.

The chapter on burden of proof and standard of proof in trial develops the burden framework that interacts with the order of production: the party with the burden generally leads first on the issues on which the burden lies. The chapter on oral testimony under the direct-evidence rule develops the substantive framework of testimonial evidence within which the production rules operate.

Order of production in civil proceedings

In civil proceedings under the Code of Civil Procedure, the order of production is well established. After the issues have been framed and the trial date fixed, the plaintiff leads his evidence first. The plaintiff's witnesses are called in the order the plaintiff chooses, examined in chief, cross-examined by the defendant's counsel, and re-examined by the plaintiff's counsel. Once the plaintiff's evidence is closed, the defendant leads his evidence in similar fashion. The defendant's witnesses are called in the defendant's chosen order, examined in chief, cross-examined by the plaintiff's counsel, and re-examined by the defendant's counsel.

The Code of Civil Procedure contains provisions for examination on commission — the examination of a witness who cannot conveniently attend court, taken at the witness's location by a commissioner appointed by the court. The chapter on proof of documents and the attesting-witness rule develops the related framework on documentary proof that interacts with witness examination in civil practice.

Order of production in criminal proceedings

In criminal proceedings under the BNSS, the order of production is similarly structured. After the framing of charges, the prosecution leads its evidence first. Prosecution witnesses are called in the order in which the prosecution case is to be presented, typically beginning with the complainant or the first informant, followed by eyewitnesses, then by investigating officers and finally by expert witnesses. The accused has the right to cross-examine each prosecution witness and may then call defence witnesses in support of any defence theory.

The BNSS contains specific provisions for the recording of evidence in summary trials, in trials before the magistrate, and in trials before the sessions court. The procedural codes therefore supply the detailed rules of order; Section 135 IEA defers to those codes and supplements them with the trial court's residual discretion. The chapter on dying declarations and their tests of reliability develops the framework within which the deceased's statements are received in criminal trials.

Recall of witnesses for further examination

The trial court has the power to recall any witness for further examination on any matter at any stage of the trial. The power is exercised on application by either party, or by the court of its own motion, where the further examination is necessary in the interests of justice. The recall may be for the purpose of clarifying ambiguous testimony, of putting newly discovered facts to the witness, of testing the witness on matters that have come to light after the original examination, or of giving the witness an opportunity to address contradictions that have emerged in subsequent evidence.

The trial court exercises the power sparingly, balancing the need for complete evidence against the prejudice that may be caused to the opposite party by reopening evidence that had been closed. The chapter on refreshing memory and cross-examination on documents develops the related framework on the witness's use of documents during examination, which often arises in the context of recalled witnesses.

Production of additional witnesses

A party may seek to call additional witnesses after his evidence has been formally closed, on the ground that the additional evidence has come to light only after the closure. The trial court grants such applications sparingly, requiring the applicant to satisfy the court that the additional evidence is genuinely new, that it could not have been produced earlier with reasonable diligence, and that it is material to the issues in the case. Where the application is granted, the additional witness is called and examined under the regular framework of Sections 137 to 154 IEA.

The provision is significant in cases where investigative discoveries continue after the trial has commenced — for example, where forensic analysis produces new findings, or where new witnesses come forward after the start of the trial. The chapter on electronic evidence under Section 63 BSA develops the related framework on electronic-record evidence that may emerge during the course of the trial.

The judge's role in controlling the order of evidence

The trial judge plays a central role in controlling the order of evidence. The judge may direct the order in which witnesses are called where the parties' choices would prejudice the orderly conduct of the trial, where the convenience of witnesses requires a particular order, or where the parties seek to depart from the established practice without adequate justification. The judge may also direct the order in which issues are tried, calling the witnesses on a particular issue together so that the court receives all the evidence on that issue at once before moving to the next.

The chapter on the judge's power to put questions and decide admissibility develops the related framework on the judge's power to ask questions of any witness on any matter, which often interacts with the order-of-production rules in the trial court's overall management of the case.

Distinguishing order of production from rules of admissibility

The order of production is a procedural matter; the admissibility of evidence is a substantive matter governed by the relevancy and exclusion chapters of the Adhiniyam. A witness produced in the wrong order is not for that reason inadmissible; the trial court may permit the testimony and rectify the procedural irregularity by appropriate adjustment. A witness whose testimony is inadmissible — for example, on the ground of privilege or hearsay — is not made admissible by being produced at the right time. The two questions are independent and must be addressed separately by the trial court.

The chapter on admissions and their evidentiary value under Sections 15 to 21 BSA develops the related framework on out-of-court admissions that interacts with witness production in trial practice.

BSA-specific changes — minor cosmetic only

The BSA reproduces Sections 135 and 136 IEA in renumbered form without substantive change. The deference to the procedural codes is preserved; the residual discretion of the trial court is preserved; the Section 136 IEA gatekeeper rule on relevancy is preserved. The classical case law on the order of evidence in civil and criminal trials, on the recall of witnesses, and on the production of additional witnesses continues to govern the renumbered sections without doctrinal variation. For the side-by-side mapping see our IEA to BSA section-mapping table.

Common pitfalls in answer scripts

Three errors recur and they trip up even mains candidates.

First, treating the order of production as fixed by the Adhiniyam itself. It is not. Section 135 IEA expressly defers to the procedural codes and to the discretion of the court. The Adhiniyam does not prescribe the order; it identifies the sources of the rule.

First, treating the trial court's discretion as unlimited. The discretion is structured by the procedural codes, by the established practice of the courts, and by the constitutional principle of fair trial. The court must exercise its discretion judicially, not arbitrarily.

Third, conflating the order of production with the burden of proof. The two are connected but distinct. The party with the burden generally leads first on the issues on which the burden lies, but the order of witnesses within that side's evidence is a matter of strategic choice subject to the court's control. The chapter on leading questions and their permissibility develops the related framework on the conduct of examination once witnesses are produced.

For the broader topic-cluster of Evidence Act and BSA notes — covering relevancy, oral, documentary and electronic evidence, witness examination, presumptions and the BSA-specific innovations — the chapter index links to every other unit in the syllabus.

Practical drafting — the witness list and the trial schedule

In civil practice in the Indian trial courts, the proponent of evidence prepares a witness list at the start of the trial, identifying each witness, the issues on which the witness will depose, and the documents that will be produced through the witness. The trial court fixes the trial schedule on the basis of the witness lists, calling the witnesses in the order chosen by each side and adjusting for the convenience of the court and of the witnesses themselves.

In criminal practice in the trial courts, the prosecution prepares its witness list at the time of filing the charge sheet under the BNSS, listing the prosecution witnesses in the order in which the case is to be presented. The accused may, after the framing of charges, file his own list of defence witnesses. The trial court then schedules the trial dates and calls the witnesses in the established order, ensuring that the accused has full opportunity to cross-examine each prosecution witness before being called upon to lead defence evidence.

The trial schedule and the management of witnesses

The trial schedule fixed by the trial court is the operational expression of the order-of-production framework discussed in this chapter. The trial court fixes specific dates for the leading of evidence, allocating sufficient days for the examination-in-chief and cross-examination of each witness on the witness list, and adjusting the schedule as the trial progresses to accommodate unexpected developments — the unavailability of a witness on the assigned date, the need for additional time for cross-examination of a complex witness, the introduction of additional witnesses with the court's leave on a showing of good cause. The schedule is managed by the trial court with the cooperation of the parties' counsel, and the orderly conduct of the trial depends on the disciplined adherence to the schedule by all sides — by the prosecution and the defence in criminal trials, and by the plaintiff and the defendant in civil trials.

In modern Indian trial practice in the trial courts and in the special courts established under various statutory frameworks of the central and state governments, the management of the trial schedule has become increasingly important as case volumes grow steadily and judicial time becomes more constrained year after year in the trial courts and at the various appellate stages of the case as well. The trial courts have moved towards day-to-day trials in serious criminal cases under the BNSS and in commercial litigation under the Commercial Courts Act, requiring the parties to produce all their witnesses on the assigned trial dates without seeking adjournments except for genuine reasons recognised by the procedural codes and by the case law on adjournments. The discipline of the trial schedule is the practical counterpart of the order-of-production rules of Section 135 IEA and is enforced by the trial court through the contempt power and through orders striking the evidence of defaulting parties.

Examination on commission and remote witness examination

The Code of Civil Procedure and the BNSS contain provisions for the examination of witnesses on commission — the examination conducted at the witness's location by a commissioner appointed by the court, where the witness cannot conveniently attend court for reasons of distance, infirmity or other practical impediment. Modern practice has extended this to examination by video conferencing, where the witness gives evidence from a remote location through a secure video link, with the trial court controlling the proceedings from its own location and the parties' counsel participating from the courtroom or from another remote location.

The provision is significant in cases involving witnesses resident abroad in foreign countries, witnesses who are seriously ill or hospitalised, witnesses in protective custody under the witness protection scheme, and witnesses whose attendance at the court would entail unreasonable cost or inconvenience for the witness or for the trial process. The chapter on the Section 63 BSA framework for computer-output evidence develops the related framework on the recording and tendering of remote testimony as electronic-record evidence in the trial court today.

Conclusion — the chapter as the procedural framework of production

Sections 135 and 136 IEA together govern the order in which witnesses are produced and examined in Indian trials, and the trial judge's role in deciding admissibility. The chapter is short but procedurally critical: every trial depends on the orderly production of witnesses, and the rules of the chapter — together with the procedural codes and the trial court's discretion — determine that order. The mains aspirant who has internalised the framework of the procedural codes, the residual discretion of the trial court, and the gatekeeper rule of Section 136 IEA on relevancy will be at home in this chapter and will not be tripped up by any production-of-witnesses fact-pattern, however ingeniously the examiner constructs it. The chapter rewards close engagement with the procedural framework of the BNSS and the Code of Civil Procedure, alongside the BSA itself, in understanding how trials in India are organised and conducted from the production of the first witness through to the close of the evidence on both sides.

Frequently asked questions

What does Section 135 IEA say about the order of production of witnesses?

Section 135 IEA / corresponding BSA provision provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court. The provision identifies three sources for the rule: the procedural codes (the Code of Civil Procedure and the BNSS), the established practice of the courts, and the residual discretion of the trial court where neither code nor practice supplies the answer.

What is the role of Section 136 IEA in the trial process?

Section 136 IEA / corresponding BSA provision is the gatekeeper rule on admissibility. The judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. The provision empowers the judge to inquire into the relevancy basis before the evidence is led, and to refuse evidence that has no relevancy basis under the relevancy chapters of the Adhiniyam. The judge is the gatekeeper, not the parties themselves.

Can the trial court recall a witness for further examination?

Yes. The trial court has the power to recall any witness for further examination on any matter at any stage of the trial. The power is exercised on application by either party, or by the court of its own motion, where the further examination is necessary in the interests of justice. The recall may be for clarifying ambiguous testimony, putting newly discovered facts to the witness, testing the witness on matters that have come to light after the original examination, or giving the witness an opportunity to address contradictions that have emerged in subsequent evidence.

How is the order of evidence determined in civil and criminal trials?

In civil trials under the Code of Civil Procedure, the plaintiff leads his evidence first, calling his witnesses in the order he chooses; the defendant then leads his evidence in similar fashion. In criminal trials under the BNSS, the prosecution leads its evidence first, calling its witnesses in the order the case is to be presented — typically beginning with the complainant, followed by eyewitnesses, then investigating officers and finally expert witnesses. The accused has the right to cross-examine each prosecution witness and may then call defence witnesses in support of any defence theory.

Can a party call additional witnesses after his evidence has been closed?

Yes, but the trial court grants such applications sparingly. The applicant must satisfy the court that the additional evidence is genuinely new, that it could not have been produced earlier with reasonable diligence, and that it is material to the issues in the case. The provision is significant in cases where investigative discoveries continue after the trial has commenced — for example, where forensic analysis produces new findings, or where new witnesses come forward after the start of the trial. Where the application is granted, the additional witness is called and examined under the regular framework of the witness chapter.