Introduction
Chapter X of the Bharatiya Sakshya Adhiniyam, 2023 opens, appropriately enough, with a provision that does something unusual: it declines to answer the question it raises. Rather than fixing a rigid sequence for producing and examining witnesses across every kind of proceeding, it hands that question off to whichever body of procedural law actually governs the case — and only steps in with a fallback when no such law exists.
Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the first section of Chapter X ("Of the Examination of Witnesses") — and, working backward through this chapter as this series has, it is fittingly the final piece. This article explains how Section 140 connects the law of evidence to the separate procedural codes governing civil and criminal trials, a recent Supreme Court ruling on how much discretion that connection actually leaves courts, and closes out the ten-article run through Sections 149 down to 140.
140. Order of production and examination of witnesses.
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.
A Deliberate Hand-Off, Not a Gap
Section 140 could have tried to fix a single, universal sequence for producing and examining witnesses across every kind of case. Instead, it deliberately defers to whatever procedural law currently governs the proceeding — civil cases follow civil procedure, criminal cases follow criminal procedure, and each system's own rules on the order of evidence apply rather than a one-size-fits-all rule embedded in the evidence statute itself.
This is a considered structural choice. The law of evidence answers what facts are relevant and how they may be proved; the separate procedural codes answer the practical, case-management question of sequencing. Section 140 keeps that division intact, rather than letting the evidence code quietly dictate trial management questions better suited to procedural law that can be updated on its own timeline.
The Criminal Branch: Section 254 BNSS
In criminal trials, the "law and practice relating to criminal procedure" that Section 140 refers to lives in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 254 BNSS — corresponding to the old Section 231 CrPC — governs evidence for the prosecution, establishing the basic sequence familiar to every criminal trial: the prosecution produces and examines its witnesses first, followed in due course by the defence's evidence. Section 140 BSA does not restate any of this; it simply confirms that this BNSS sequence, not some separate rule buried in the evidence statute, is what actually governs the order of witnesses in a criminal case.
The Civil Branch: Order XVIII, Rule 1, CPC
In civil suits, the referral points to Order XVIII, Rule 1 of the Code of Civil Procedure, 1908 (CPC), which gives the plaintiff the right to begin — except where the defendant admits the plaintiff's alleged facts but contends that, on a point of law or additional facts, the plaintiff still is not entitled to relief, in which case the defendant begins instead.
A December 2024 Supreme Court ruling, Jami Venkata Suryaprabha & Anr. v. Tarini Prasad Nayak & Ors. (2024 INSC 1001), clarified just how much room courts retain within this civil-procedure branch. The Court held that Order XVIII Rule 1's "right to begin" is a right, not an automatic entitlement the court is bound to enforce mechanically in every case — a court may require the defendant to lead evidence first where the defendant's plea strikes at the root of the case and doing so could dispose of the matter more efficiently, based on the pleadings, documents, admissions, and issues actually framed. Neither party can simply insist on going first as a matter of course; the sequencing question remains genuinely case-specific.
The Fallback: Discretion Where No Law Applies
Section 140's final clause covers the residual case: where neither civil nor criminal procedure supplies an applicable rule for a given proceeding, the order of producing and examining witnesses is left entirely to the discretion of the court hearing the matter. This ensures no proceeding is left without any governing rule at all, even at the edges of the procedural codes' coverage.
Worked Example
In a criminal trial for cheating, the order of witnesses follows Section 254 BNSS: the prosecution produces and examines its witnesses first, in whatever internal sequence the prosecutor chooses, before the defence's evidence is taken. In a parallel civil suit for recovery of the same money, Order XVIII Rule 1 CPC ordinarily gives the plaintiff the right to begin — but if the defendant's written statement raises a plea (say, limitation) that would dispose of the entire suit regardless of the plaintiff's case, the court may, following Jami Venkata Suryaprabha, require the defendant to lead evidence on that plea first. Section 140 BSA is what confirms that these two different bodies of procedural law, not a single evidence-code rule, are what govern each proceeding.
| Proceeding Type | Governing Rule | Key Feature |
|---|---|---|
| Criminal trial | Section 254 BNSS (=Section 231 CrPC) | Prosecution evidence first, then defence |
| Civil suit | Order XVIII, Rule 1, CPC | Plaintiff's right to begin, subject to court discretion per Jami Venkata Suryaprabha (2024) |
| No applicable procedural law | Section 140 BSA's own fallback | Entirely at the discretion of the court |
Section 140 BSA vs. Section 135 IEA: No Substantive Change
Section 140 corresponds to Section 135 of the Indian Evidence Act, 1872 (IEA), carried forward without any change in wording. Only the procedural codes it refers to have been renumbered and modernised — CrPC into BNSS, with CPC unchanged — while the referral structure itself, including the residual court-discretion fallback, remains exactly as it stood in 1872.
Closing Chapter X: What This Run Has Covered
This article completes a ten-part run through Sections 149 down to 140, following the two batches before it that covered Sections 159 down to 150 and 165 down to 160. Together with the previously published Sections 166 through 170, every section of Chapter X of the BSA — Sections 140 through 168 — is now covered, closing out the entire "Examination of Witnesses" chapter. Fittingly, this final article covers the chapter's opening provision: the rule that hands the practical mechanics of witness sequencing to civil and criminal procedure, leaving the rest of the chapter free to focus on what those witnesses may be asked, how their credit may be tested, and how their evidence may be weighed.
Who Section 140 Actually Affects
- Every litigator ultimately answers "what order do witnesses go in?" by consulting the BNSS or the CPC, not the BSA directly — Section 140 is what makes that the correct place to look.
- Civil litigators should read Jami Venkata Suryaprabha before assuming the plaintiff automatically goes first, particularly where the defendant's plea could dispose of the case on a threshold ground.
- Criminal litigators rely on Section 254 BNSS's prosecution-first structure as the operative rule Section 140 confirms applies.
- Trial judges retain genuine discretion both within the civil-procedure referral (per Jami Venkata Suryaprabha) and, more broadly, in any proceeding where neither procedural code supplies an applicable rule.
- Anyone studying this chapter as a system should read Section 140 first in principle, even though this series covered it last — it is the provision that hands off to procedural law before the rest of the chapter's substantive examination rules take over.
Key Takeaways
- Section 140 is a referral provision, not a sequencing rule: it hands the order of witness production and examination to civil and criminal procedure respectively.
- Criminal trials follow Section 254 BNSS: prosecution evidence first, corresponding unchanged to the old Section 231 CrPC.
- Civil suits follow Order XVIII Rule 1 CPC: the plaintiff's right to begin, but Jami Venkata Suryaprabha (2024 INSC 1001) confirms this is not an automatic entitlement the court must enforce mechanically.
- Court discretion is the fallback, not the default: it applies only where no applicable civil or criminal procedural law exists.
- The rule is unchanged from 1872: Section 140 BSA carries forward Section 135 IEA verbatim, with only the referenced procedural codes modernised.
Conclusion
Section 140 is a quiet, structural provision that does exactly one job: it makes sure the question "in what order do witnesses appear?" is answered by the procedural law actually built for that purpose, not improvised within the evidence statute itself. Jami Venkata Suryaprabha shows that even that referral is not the end of the discretion question — courts retain real, case-specific judgment within the civil-procedure branch it points to.
With this article, the ten-section run from Section 149 down to Section 140 is complete, and so is the entirety of Chapter X. From the compulsion-and-immunity rule in Section 137 through leading questions, documentary evidence, character testing, and the order-of-examination framework, to this final, foundational hand-off provision — the chapter now stands covered in full, section by section, as one connected system rather than 29 isolated rules.