Sajjad Husain LawSajjad Husain Law Associates

Introduction

"Examination-in-chief," "cross-examination," "re-examination" — every trial lawyer uses these three terms dozens of times a day, almost as reflexes. But each one has a precise, technical meaning fixed by statute, and that meaning turns entirely on one thing: who is asking the questions, not what the questions are about.

Section 142 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), in Chapter X ("Of the Examination of Witnesses"), supplies those definitions. It looks like the simplest possible provision — three short subsections, each one sentence — but it raises a genuinely interesting puzzle once a witness enters the picture who was not called by either party at all. This article works through the definitions, that puzzle, and a Supreme Court ruling that resolved it decades before the BSA existed.

Identity-Based Definitions, Not Content-Based Ones

The most important thing to notice about Section 142 is what it does not define these terms by. It says nothing about the subject matter, tone, or style of questioning — a question can be gentle or aggressive, narrow or wide-ranging, and still fall into whichever category Section 142 assigns based purely on who is asking it and in what sequence.

Examination-in-chief is simply whatever questioning comes from the party who called the witness. Cross-examination is whatever questioning comes from the adverse party. Re-examination is whatever questioning comes, after cross-examination has occurred, from the same party who called the witness in the first place. The label attached to a given stretch of questioning is entirely a function of whose witness it is and where in the sequence the questioning falls — set out in Section 143 BSA, the companion provision immediately following this one.

The Puzzle: A Witness Neither Party Called

Section 142's clean binary — calling party versus adverse party — assumes every witness was called by one side or the other. But the BSA gives a judge an independent power to summon a witness of the court's own motion, entirely apart from either party's case: Section 168 BSA (already covered in this series), corresponding to Section 165 of the old Indian Evidence Act, lets a judge call and examine witnesses to discover or obtain proper proof of relevant facts. A witness produced this way was not "called" by the prosecution or the defence in any conventional sense — so where do they fit within Section 142's framework?

How the Courts Resolved It: Jamatraj Kewalji Govani

The Supreme Court addressed this gap in Jamatraj Kewalji Govani v. State of Maharashtra (AIR 1968 SC 178), holding that the statutory power to summon a witness, examine one already present in court, or recall a witness already examined, is conferred in absolute terms, exercisable at any stage of the trial, and is in fact a duty the court must discharge whenever a just decision of the case demands it. Crucially, the Court also confirmed that this power does not leave either party without recourse: a witness examined by the court in this way remains liable to be cross-examined by the parties to the proceeding, if they wish to exercise that right.

The practical resolution is this: since a court witness cannot be classified as belonging to either side under Section 142's ordinary definitions, both the prosecution and the defence are treated as entitled to cross-examine such a witness — preserving the adversarial testing that Section 142 and Section 143 together are designed to guarantee, even for a witness who does not fit neatly into either category subsection (1) or subsection (2) describes.

The Rule Reinforced: A Recent High Court Ruling

This principle has continued to be applied in more recent decisions. A Chhattisgarh High Court ruling held that a witness examined under the judge's questioning power is required to be made available for cross-examination so that the parties can elicit further truth or other relevant facts — reinforcing that a court-summoned witness's evidence is not treated as beyond challenge simply because a judge, rather than either party, brought that witness forward.

Worked Example

In a complex fraud trial, the judge — exercising the Section 168 BSA power — calls an independent forensic accountant of the court's own motion to clarify a technical discrepancy neither party had adequately addressed. Strictly, this witness was not called by the prosecution (so their testimony is not the prosecution's examination-in-chief) nor by the defence (so it is not the defence's). Under the Jamatraj Kewalji Govani principle, both the prosecution and the defence are entitled to cross-examine the accountant on the technical evidence given, ensuring the testimony is tested from both sides despite not fitting cleanly within Section 142's two-party framework.

Section 142 BSA vs. Section 137 IEA: Verbatim Continuity

Section 142 corresponds to Section 137 of the Indian Evidence Act, 1872 (IEA), and all three definitions are carried forward without a single change in wording. Because the text is identical, the entire body of case law interpreting these definitions — including the Jamatraj Kewalji Govani principle on court-summoned witnesses — continues to apply with full force under the BSA.

Who Section 142 Actually Affects

1. Every trial lawyer relies on these three definitions to know exactly which examination rules — from leading questions to contradiction procedures — apply to a given stretch of questioning.
2. Trial judges exercising the Section 168 BSA power must ensure both parties retain a genuine right to cross-examine any witness the court summons of its own motion.
3. Litigators facing a court-summoned witness can rely on Jamatraj Kewalji Govani and its later reinforcement to insist on a full cross-examination opportunity, even though Section 142's text does not expressly cover this scenario.
4. Appellate courts reviewing a trial's fairness should check whether a court witness's testimony was properly opened to cross-examination by both sides.
5. Anyone drafting or teaching trial procedure should treat Section 142 as foundational vocabulary — the terms every other provision in this chapter assumes the reader already understands.

Key Takeaways

1. The three definitions are identity-based, not content-based: what makes questioning "examination-in-chief," "cross-examination," or "re-examination" is who is asking and when, not what is asked.
2. Section 142 assumes a two-sided structure: every witness is presumed to have been called by one party, with the other party as the adverse party.
3. Court-summoned witnesses fall outside that binary: a witness called under Section 168 BSA's judicial questioning power was not "called" by either party in Section 142's sense.
4. Both parties may still cross-examine such a witness: Jamatraj Kewalji Govani v. State of Maharashtra (1968) and later High Court authority confirm this right survives despite the definitional gap.
5. The rule is unchanged from 1872: Section 142 BSA carries forward Section 137 IEA's definitions verbatim, so the case law resolving this puzzle remains fully applicable.

Conclusion

Section 142 looks, at first glance, like nothing more than a glossary entry — three short sentences fixing vocabulary that every other provision in this chapter depends on. But its clean two-party structure runs into a genuine gap the moment a judge exercises the independent power to summon a witness of the court's own motion, and it took the Supreme Court, not the statute itself, to confirm that both parties keep their right to test that witness through cross-examination all the same.

Read alongside Section 143 BSA, which uses these definitions to fix the examination sequence, and Section 168 BSA, which creates the court-witness scenario the definitions don't quite anticipate, Section 142 shows how even the most basic-seeming provision in a statute can carry real interpretive weight once it meets the full complexity of an actual trial.