Bharatiya Sakshya Adhiniyam, 2023 - Chapter X

Section 161 BSA: What Matters May Be Proved in Connection with a Proved Statement Relevant under Section 26 or 27

Section 161 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the supporting or challenging material that may be proved after a statement has been admitted as relevant under Section 26 or Section 27. It permits matters that could have been put to the maker in cross-examination, had that person appeared as a witness.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 is Act 47 of 2023 and came into force on 1 July 2024. Section 161 belongs to the BSA, not to the Bharatiya Nagarik Suraksha Sanhita, 2023.

Text of Section 161, Bharatiya Sakshya Adhiniyam, 2023

161. What matters may be proved in connection with proved statement relevant under section 26 or 27.

Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

Meaning and Scope of Section 161 BSA

Sections 26 and 27 allow certain statements or earlier evidence to become relevant even though the person who made the statement may not be available for ordinary examination in Court. Section 161 addresses the evidentiary consequence of that situation.

Once such a statement is proved, the opposing or supporting party is not confined to the statement alone. Matters may also be proved for the limited purposes identified by Section 161, provided those matters are of a kind that could have been proved if the maker had entered the witness box and had denied the suggestion during cross-examination.

How Section 161 Relates to Sections 26 and 27

Provision Subject Connection with Section 161
Section 27 BSA Relevancy of certain earlier evidence for proving, in a subsequent proceeding, the truth of facts stated in it. If evidence becomes relevant under Section 27, Section 161 permits qualifying matters to be proved to contradict, corroborate, impeach, or confirm the credit of the maker.
Section 26 BSA Statements of relevant facts by a person who is dead, cannot be found, is incapable of giving evidence, or whose attendance cannot reasonably be procured, in the situations specified by the section. When a statement is admitted under Section 26, Section 161 allows relevant credibility and corroborative or contradictory material that would have been available if the maker had testified.

Section 26 BSA: Why It Matters Here

Section 26 is the principal BSA provision dealing with specified statements made by persons who are unavailable as witnesses. It includes, among other categories, statements concerning the cause of death where the cause of that person's death comes into question, as well as other categories expressly set out in the section.

Because the maker may be unavailable for cross-examination, Section 161 provides a statutory mechanism by which material affecting the truth, support, or credit of that statement can still be brought before the Court, subject to the ordinary rules of admissibility and the wording of Section 161.

Section 27 BSA: Earlier Evidence in a Later Proceeding

Section 27 makes certain evidence given by a witness in an earlier judicial proceeding, or before a person authorised by law to take it, relevant in a subsequent proceeding or later stage when the witness is unavailable for one of the reasons stated in the section. The provision also requires the statutory conditions concerning parties or representatives in interest, opportunity to cross-examine, and substantially the same questions in issue.

Where the earlier evidence becomes relevant under Section 27, Section 161 permits matters that could have been proved against or in support of the witness's credit if that witness had been called and had denied the relevant suggestion in cross-examination.

Practical Effect of Section 161

The provision helps preserve fairness when the Court relies on a statement or earlier testimony without the maker being presently available for ordinary cross-examination. It does not automatically make every collateral matter admissible. The matter sought to be proved must fit the statutory purpose and must be one that could have been proved in the hypothetical cross-examination situation described in Section 161.

Position under the Earlier Indian Evidence Act, 1872

Section 161 BSA substantially carries forward the subject previously dealt with by Section 158 of the Indian Evidence Act, 1872. Under the new numbering, the connected provisions referred to in Section 161 are Sections 26 and 27 of the BSA.

Official Sources

For the authoritative statutory text, refer to the official Government of India sources:

This page is an explanatory legal information resource. The statutory text and applicable judicial interpretation should be checked for the facts of a particular case.