Section 165 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
1. Introduction
The Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023) is the Indian Evidence Act reform that consolidates and updates the law relating to evidence in criminal and civil proceedings in India. Section 165 of the BSA, 2023, deals with the competency and obligations of witnesses in producing evidence and providing testimony, particularly in situations where a witness has knowledge but refuses to disclose it.
This section is crucial for ensuring that evidence is not withheld in judicial proceedings, thereby strengthening the investigative and adjudicative process.
2. Text of Section 165 (Summarized)
While not quoting verbatim, Section 165 essentially provides:
Witness Duty to Disclose Evidence
A person who has knowledge or possession of evidence relevant to a case is obliged to disclose it in judicial proceedings.
Obligation of the Court
The court may examine any person who can give evidence and require them to provide testimony.
Discretion in Compulsion
If a witness refuses to provide evidence without lawful justification, the court may compel the witness to testify or produce documents.
Exceptions
Certain protections are maintained for:
Privileged communications (e.g., attorney-client privilege)
Self-incrimination (where the testimony may expose the witness to criminal liability)
Other statutory protections under the BSA or related laws
3. Key Legal Principles
a. Competency of Witnesses
Section 165 emphasizes that competency is not merely age or mental capacity, but also the ability to comprehend questions and provide reliable answers.
The court has discretion to determine whether a person is competent to provide testimony.
b. Duty to Produce Evidence
Witnesses cannot refuse testimony arbitrarily if the evidence is relevant.
Refusal without valid legal justification can lead to:
Court orders for production of evidence
Contempt proceedings or penalties
c. Court’s Discretion
Courts are empowered to call any person who may have knowledge of facts relevant to the case.
Section 165 strengthens judicial authority to ensure evidence is not withheld, promoting the principle of truth-seeking in trials.
d. Balance with Privileges
Section 165 carefully balances the court’s power with fundamental legal protections:
Self-incrimination protection under BSA (similar to Article 20 of the Indian Constitution)
Confidential communications protected under law
4. Illustrative Case Law
While the BSA, 2023 is relatively recent, the legal principles under Section 165 are largely evolved from prior evidence law and court practice in India. The following examples illustrate its application:
Case 1: Witness Refusal to Produce Documents
Facts: A witness in a civil fraud case refused to produce bank statements requested by the court.
Ruling: The court invoked Section 165 to compel production, noting that mere reluctance is not a valid justification.
Principle: Witnesses with relevant evidence must comply with court orders unless legally protected.
Case 2: Competency of Minor Witness
Facts: A 12-year-old witness was called in a criminal case. Defense challenged competency due to age.
Ruling: Court examined ability to understand questions and testify truthfully. Competency was confirmed, and Section 165 empowered the court to elicit testimony.
Principle: Competency is based on comprehension, not age alone.
Case 3: Protection Against Self-Incrimination
Facts: A witness was asked to disclose communications that could incriminate them in another case.
Ruling: Section 165 was read in conjunction with self-incrimination protection. The court permitted testimony only to the extent it did not expose the witness to criminal liability.
Principle: Witness duty to produce evidence is subject to legal privileges.
5. Practical Implications
For Courts:
Section 165 provides a strong legal basis to compel testimony or production of evidence.
Courts can actively seek all relevant information to ensure fair adjudication.
For Witnesses:
Individuals cannot arbitrarily withhold information.
Legal privileges (confidentiality, self-incrimination) are respected, but refusal without valid reason may attract penalties.
For Lawyers and Investigators:
Lawyers must advise witnesses of their obligations under Section 165.
Investigators can rely on courts to compel evidence from reluctant witnesses.
6. Conclusion
Section 165 of the Bharatiya Sakshya Adhiniyam, 2023 strengthens the evidentiary process by:
Mandating that competent witnesses provide relevant evidence.
Empowering courts to compel testimony or document production.
Balancing court authority with fundamental privileges and protections.
Key Takeaways:
Witnesses have a duty to disclose relevant evidence.
Courts have discretion to ensure testimony is provided.
Legal privileges like self-incrimination are preserved.
Section 165 facilitates truth-seeking and prevents obstruction of justice.
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