Litigation is not always linear. A witness who deposed in an earlier proceeding may die, migrate, become incapacitated, or be kept out of the way before a later related proceeding. When that happens, the testimony they gave earlier is not automatically lost. Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides a specific route to admit it — not merely as an historical record of what was said, but as evidence of the truth of the facts stated, in the later proceeding.
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 any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest; that 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 the first as in the second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
The one drafting change
Section 27 corresponds to Section 33 of the Indian Evidence Act, 1872 (IEA). The BPRD BSA-to-IEA correspondence table records that the only change is a small drafting substitution in the proviso: the word "that" is replaced by "and" — improving readability without altering meaning. The substantive rule is entirely preserved.
The five triggering situations for the witness's unavailability
At least one of the five must be established before Section 27 is engaged. And even then, the proviso's three cumulative conditions must be satisfied before the earlier evidence is admitted for its truth.
The proviso: three conditions the party must satisfy
| Condition | Why it matters |
|---|---|
| Same parties or their representatives in interest | Ensures the earlier evidence was tested by a party with an interest aligned with the current opposing party |
| Adverse party had the right and opportunity to cross-examine | Preserves the essential quality-control of cross-examination even though the witness cannot be examined again |
| Questions in issue were substantially the same | Guards against transposing evidence given on one issue to answer a different question in the later proceeding |
Why the section admits earlier testimony for its truth
Section 27 is a defined exception to the general rule that oral evidence must be direct. It admits earlier testimony as substantive evidence of the facts it states — not merely as a record of what a witness once said. That elevation is justified because the three proviso conditions replicate the essential quality checks of live testimony: the same parties were involved, the adverse party had a full opportunity to test the witness by cross-examination, and the issues were substantially the same. Where all three are met, the earlier examination-in-chief and cross-examination together provide a reliability profile close enough to fresh testimony that the law allows the record to substitute for the missing witness.
How it works in practice
The section has its clearest application in three settings. First, at the trial stage where a witness examined at committal or preliminary inquiry has since died, and the committal-stage testimony is tendered under Section 27. Second, at a re-trial ordered on appeal, where a witness from the first trial cannot now be produced — the earlier trial evidence, subject to the proviso, may be received. Third, in civil litigation with linked proceedings — for example, a suit by the same parties on the same claim in a different forum — where earlier evidence may be tendered if the same-issues test is met.
Placement in Chapter II
Section 27 sits between Section 26, which handles statements of persons who cannot be called as witnesses (dead, missing, incapable, and so on — including dying declarations), and Section 28, which begins the "statements made under special circumstances" block. It differs from Section 26 in an important way: Section 26 admits out-of-court statements from unavailable persons in eight defined circumstances; Section 27 admits in-court evidence already given in an earlier judicial proceeding by a witness now unavailable. The two provisions therefore complement each other — Section 26 for statements the deceased made in daily life, Section 27 for testimony they gave in court.
Key Takeaways
- Substantive-truth admissibility: earlier evidence is admitted not merely as a record but as evidence of the truth of what it states.
- Five triggering situations: dead, cannot be found, incapable, kept out of the way, or unavailable without unreasonable delay/expense.
- Three-condition proviso: same parties or their representatives, right and opportunity to cross-examine, substantially the same questions.
- Criminal proceedings covered: the Explanation deems prosecutor and accused to be the "parties" in criminal cases.
- One drafting change: "that" replaced by "and" in the proviso — meaning preserved.
Conclusion
Section 27 gives the law a considered mechanism for saving earlier judicial testimony from being lost merely because the witness cannot be produced again. Its five triggering conditions and three-part proviso keep the exception disciplined, ensuring that only evidence that was tested under the same-parties, same-issues, cross-examination-available framework of the earlier proceeding is admitted for the truth of what it states. Preserved almost verbatim from Section 33 of the 1872 Act — with only the "that" to "and" tidy in the proviso — it remains a critical bridge between related judicial proceedings.