You are a witness in a criminal case — the law, your rights, and what to expect
The Indian criminal trial is built on the live oral testimony of witnesses. The Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam together set the procedure; the Supreme Court’s adoption of the Witness Protection Scheme 2018 in Mahender Chawla and its long line on hostile witnesses set the floor. The asymmetry between what the statute promises and what witnesses actually get remains the system’s most visible failing.
In the Supreme Court’s words in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 — the Best Bakery decision — "witnesses are the eyes and ears of justice." That metaphor has become almost ritualistic in Indian criminal law, but it captures something the system has never been able to fix. The trial happens in the witness box. The chargesheet, the case diary, the Section 180 BNSS [Section 161 CrPC] statement to the police — none of it is substantive evidence. What is said on oath in the courtroom, after the witness has been sworn in and cross-examined, is the trial. Everything else is preparation.
This guide sets out the statutory framework that governs a witness in an Indian criminal case — the summons, the duty to attend, the examination and cross-examination sequence, and the protection available to witnesses who are threatened — and traces the long jurisprudential argument about what the courts can do when witnesses turn hostile. It also flags the questions the Supreme Court has identified but not resolved.
The witness in Indian criminal procedure
The recording of evidence in a criminal trial is governed by Sections 273 to 287 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [Sections 273 to 299 of the Code of Criminal Procedure, 1973]. The Bharatiya Sakshya Adhiniyam, 2023 governs the substantive law of testimony — what is relevant, what is admissible, what may be asked on cross-examination. The two statutes operate in tandem: BNSS tells the court how to take evidence; BSA tells the court what counts as evidence.
Three propositions follow from Section 273 BNSS [Section 273 CrPC]. First, all evidence must be taken in the presence of the accused (or, where the accused’s personal presence has been dispensed with, in the presence of his pleader). The Supreme Court in Ram Shankar v. State, 1975 CrLJ 1402 (Pat), and the line that follows it, has held the provision mandatory; a trial in which prosecution witnesses are examined in the accused’s absence and without his lawyer is void. Second, every witness must be separately examined; testimony recorded in one trial cannot be transposed into another, even with the consent of the accused (Sukanraj v. State, AIR 1967 Raj 267). Third, the accused has an unqualified right to cross-examine every prosecution witness; deprivation of this right is, in the Court’s phrase, an "almost irresistible" inference of prejudice that vitiates the trial.
The proviso to Section 273 BNSS, inserted into the old Code by the Criminal Law (Amendment) Act, 2013, makes a single exception — where the witness is a woman below eighteen years alleged to have been subjected to rape or any other sexual offence, the court may take measures to ensure that she is not confronted by the accused, while preserving the accused’s right of cross-examination. The standard mechanisms are screens, in-camera proceedings under Section 308 BNSS, and recording through video link.
For warrant cases tried by a Magistrate, Section 275 BNSS [Section 275 CrPC] requires the evidence of each witness to be taken down in writing — either by the Magistrate himself, by his dictation in open court, or under his direction by a court officer. The proviso (inserted into the old Code by the CrPC (Amendment) Act, 2008, with effect from 31 December 2009) permits the evidence to be recorded by audio-video electronic means in the presence of the accused’s advocate. The Supreme Court in State of Maharashtra v. Dr. Praful B. Desai, AIR 2003 SC 2053, had already held, before that amendment, that "presence" under Section 273 is not used in the sense of physical presence — video-conferenced examination, properly supervised, is recording in the presence of the accused.
Summons and the duty to attend
A witness in a criminal case is summoned by the court under the process provisions in Chapter VI of the BNSS [Chapter VI CrPC, Sections 61–90]. The summons specifies the case, the parties, the police station, the date and time of attendance, and the court — ordinarily the trial court of the Magistrate or the Sessions Court. The duty to attend is statutory; failure to attend without sufficient cause exposes the witness to action under Section 90 BNSS, which empowers the court to issue a warrant of arrest or to impose a fine.
The Indian system has no general subpoena-duces-tecum doctrine; documentary attendance is governed by Section 94 BNSS [Section 91 CrPC], which empowers the court to direct production of any document, and by Section 175 of the Bharatiya Sakshya Adhiniyam, 2023 [Section 165 of the Indian Evidence Act, 1872], which preserves the judge’s power to ask any question on any matter to discover or obtain proper proof of relevant facts.
Reasonable expenses of attendance are payable, but the structure is thin. The State pays a daily allowance and travel expenses fixed by the State Government’s rules under the criminal manual. The amounts are negligible in most States and bear no relationship to a witness’s actual income loss. The Law Commission’s reports — most recently the 198th Report (2006) on Witness Identity Protection and the 273rd Report (2017) on Implementation of the United Nations Convention against Torture — have repeatedly recommended a revised, livelihood-linked schedule; legislative action has not followed.
For witnesses outside India, or in remote locations within India where attendance involves disproportionate delay or expense, Section 319 BNSS [Section 284 CrPC] empowers the court to issue a commission for the examination of the witness. The commission may now be executed by video conference under the Praful B. Desai doctrine, subject to the protections that the Supreme Court built in — the witness must be examined from a country with an extradition treaty with India and under whose laws perjury and contempt are punishable.
Witness protection — the 2018 scheme and after
For most of independent India’s history, there was no statutory witness-protection regime. The Indian Penal Code, 1860, criminalised false evidence (Sections 191–195, now Sections 227–232 of the Bharatiya Nyaya Sanhita, 2023) and threats to witnesses (Section 195A IPC, inserted in 2006; now Section 348 BNS). But a witness who feared retaliation had no legal mechanism for relocation, identity protection or proactive police cover.
That changed with the Supreme Court’s decision in Mahender Chawla v. Union of India, (2018) 17 SCC 698. The petition arose from the killings of witnesses in the Asaram Bapu trial. The Court, after surveying jurisdictions that had implemented witness-protection legislation — the United States, the United Kingdom, Canada, South Africa, Italy — held that the absence of an Indian regime was a constitutional failing under Articles 14 and 21. It then took an unusual step. Rather than wait for Parliament, the Court adopted the draft Witness Protection Scheme, 2018, prepared by the Ministry of Home Affairs and the Bureau of Police Research and Development, and declared it the law of the land under Article 141 of the Constitution until a legislative framework was enacted.
The scheme classifies witnesses into three categories based on threat perception — Category A (threat extends to the life of the witness or his family during investigation, trial or thereafter), Category B (threat extends to safety, reputation or property of the witness or his family during investigation, trial or thereafter), and Category C (moderate threat, extending to harassment or intimidation). Applications are made to a Standing Committee at the district level, chaired by the District & Sessions Judge with the Head of Police in the District and the Head of the Prosecution as members. The Committee orders measures ranging from concealment of identity, relocation, in-camera trials, escort, and installation of security devices, to financial assistance.
Implementation is uneven across States. The Court’s monitoring jurisdiction in Mahender Chawla has not produced a national compliance audit. Reports from State Legal Services Authorities suggest that Category A applications are processed; Category B and C applications often die in the standing committee. The scheme also pre-dates the 2023 statutes and has not been mapped to the BNSS and BSA framework; whether the Section 273 BNSS in-camera regime for child sexual-offence witnesses sits comfortably with the scheme’s identity-concealment measures has not been worked out by any High Court at the level of doctrine.
The hostile-witness problem
The hostile-witness problem is the single most discussed failure of the Indian criminal trial. The statutory regime, in itself, is sparse. Section 154 of the Indian Evidence Act, 1872 [now Section 157 of the Bharatiya Sakshya Adhiniyam, 2023] permits the party calling a witness, with the permission of the court, to put any question to him "which might be put in cross-examination by the adverse party" — that is, to cross-examine its own witness who has resiled from his earlier statement. The court treats this declaration as the witness being "hostile" or "having been declared hostile". The terminology, despite its century-and-a-half pedigree, is misleading: the witness has not been formally adjudicated to be against the prosecution, and his evidence does not become inadmissible.
The leading Supreme Court statement on the evidentiary value of a hostile witness’s testimony is Krishna Mochi v. State of Bihar, (2002) 6 SCC 81. The Court held that the evidence of a witness who has been declared hostile is not wiped out; the portions that are consistent with the prosecution case and inspire confidence remain admissible and can sustain a conviction. The trial court must, however, scrutinise such testimony with care, looking for corroboration from independent sources. The decision sat on top of a longer line — Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Sat Paul v. Delhi Administration, (1976) 1 SCC 727 — that had already held that the credit of a hostile witness is not destroyed merely by reason of the declaration.
The problem the case-law has not solved is the upstream one: why witnesses turn hostile. The factors are well-documented — threat, financial inducement, social pressure in caste or communal cases, the long pendency of trials, the corrosive experience of repeated postponements, and the absence of any reliable witness-protection ecosystem before Mahender Chawla. The Supreme Court’s response in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, was structural: where the trial has been so compromised by witness intimidation that the appearance of justice has collapsed, the Court will exercise its powers under Article 142 of the Constitution to transfer the trial, order a retrial, and direct fresh investigation. The Best Bakery decision sent the trial out of Gujarat to Maharashtra and ordered the witnesses to be re-examined under court protection.
The doctrinal cost of Zahira, however, has not been worked out. A retrial after an acquittal raises serious double-jeopardy questions under Article 20(2) of the Constitution and Section 337 BNSS [Section 300 CrPC]; the Court read its Article 142 power as sufficient to override these in the extraordinary case of intimidated trials. Whether the holding extends beyond cases of demonstrable witness-tampering, or whether the High Courts can replicate the technique under their inherent powers under Section 528 BNSS [Section 482 CrPC], remains contested. Different benches have given different answers.
Section 348 BNSS [Section 195A CrPC] is the criminal-procedure complement to this doctrine. It provides that a witness or any other person who is threatened with injury to person, reputation or property in order to make him give false evidence may file a complaint directly before a Magistrate; the threatened person is not put to the burden of going through the police. The provision is rarely invoked in practice. Whether that is because intimidation has reduced in the post-Mahender Chawla era or because witnesses lack confidence in the magistrate-complaint route is an empirical question on which there is no good data.
Cross-examination and the right to be re-examined
The Indian trial is structured around three rounds of questioning under Sections 142 to 146 of the Bharatiya Sakshya Adhiniyam, 2023 [Sections 137 to 141 of the Indian Evidence Act, 1872]. Examination-in-chief is conducted by the party calling the witness; cross-examination by the adverse party; re-examination by the party calling the witness on points arising out of the cross-examination. Leading questions are permitted in cross-examination but not in examination-in-chief or re-examination (Section 143 BSA / Section 142 IEA). The court may, in its discretion under Section 168 BSA [Section 165 IEA], itself ask any question at any time, and the answer may be used to discover or obtain proper proof of relevant facts.
The witness has corresponding statutory rights at each stage. Under Section 281 BNSS [Section 278 CrPC], the deposition, as it is recorded, is read over to the witness in the presence of the accused or his pleader; the witness may have any inaccuracy corrected. Where the witness denies the correctness of any part of the record, the Judge makes a memorandum of the objection — the witness’s right is, in other words, to have his disagreement on the record, not to compel a re-recording. The Supreme Court in Mir Mohd. Omar v. State of West Bengal, AIR 1989 SC 1785, clarified that the object is to obtain an accurate record of what the witness meant to say; it is not to permit the witness to substitute a fresh story under the guise of correction.
Section 311 BNSS [Section 311 CrPC] is the recall provision. The court may, at any stage of any inquiry, trial or other proceeding, summon any person as a witness, examine any person in attendance though not summoned, or recall and re-examine any person already examined. The first half of the section is discretionary; the second half — "and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case" — is mandatory. The leading exposition of when the recall power is properly invoked is Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346.
Where the deposition has not been properly read over, or where the witness was prevented from correcting it under Section 281 BNSS, the remedy is an application under Section 311 BNSS for re-examination. The Andhra Pradesh High Court in Mangi v. State, (1989) CrLJ 2265, held that the two provisions must be read together — the discretion under Section 311 is to be exercised in light of the restraints under Section 281, but the power to re-examine is not foreclosed by the prior reading-over.
What the Supreme Court has flagged but not resolved
Several questions about the Indian witness regime remain genuinely open at the level of doctrine. They are flagged here because a researcher attempting to write a brief or an academic paper will find that the cases gesture toward resolution without delivering it.
The standard of proof of intimidation for the Zahira route. The Best Bakery decision set in motion an extraordinary jurisdiction — retrial after acquittal where witness intimidation has compromised the fair-trial guarantee. The Court has not articulated what threshold the prosecution must meet to invoke it. Demonstrated witness-tampering and a complete collapse of evidence are clearly enough; whether systematic delay coupled with sustained pressure short of physical threat suffices has not been tested. Different benches of the Supreme Court have read Zahira narrowly and expansively in successor cases.
Perjury prosecutions and the gap between law and practice. Section 195(1)(b) BNSS [Section 195(1)(b) CrPC] requires that a prosecution for perjury or for offences against the administration of justice be initiated only on a complaint by the court concerned. The Supreme Court in State (NCT of Delhi) v. Sanjeev Nanda, (2012) 8 SCC 450, expressed unease at the rarity of perjury prosecutions, observing that the Indian justice system has been "indulgent" to false testimony and that this indulgence has corroded the value of witness evidence. The Court directed trial courts to exercise the Section 195 complaint power more readily. The directions have not produced a measurable increase in perjury prosecutions; the structural inhibition remains unresolved.
The interaction of the Witness Protection Scheme 2018 with the BNSS in-camera regime. The 2018 scheme provides for identity protection and in-camera trial as measures under Categories A and B. Section 308 BNSS provides a statutory in-camera regime for offences under Sections 64 to 71 of the Bharatiya Nyaya Sanhita, 2023 [Sections 376 to 376E IPC]. Where a witness in a non-sexual-offence trial qualifies for in-camera proceedings under the Scheme, the statutory route is unclear — trial courts have improvised by invoking the inherent powers under Section 528 BNSS [Section 482 CrPC]. The clean doctrinal mapping awaits a Supreme Court ruling.
The status of the Section 180 BNSS statement after a witness turns hostile. The statement to the police under Section 180 BNSS [Section 161 CrPC] is not substantive evidence; Section 181 BNSS [Section 162 CrPC] confines its use to contradiction of the witness under Section 148 BSA [Section 145 IEA]. The Supreme Court in Krishna Mochi held that the prior statement may be used to contradict the hostile witness, but its content does not become substantive evidence even after contradiction. High Courts have, however, occasionally relied on Section 180 statements as corroborative material in long-pending trials where direct witnesses are no longer available. Whether that practice is consistent with the statutory scheme has not been authoritatively settled.
Compensation for witness expenses. The statutory regime under Section 320 BNSS [Section 286 CrPC] (expenses of complainants and witnesses) presupposes that the State will compensate witnesses for attendance. The schedules under the relevant State criminal manuals are decades old. The Court has not held the inadequate compensation regime to violate Article 21, but the Law Commission’s recommendations have remained unimplemented. The argument that a witness compelled to attend repeatedly without livelihood replacement suffers a constitutional injury has not been pressed in a clean case.