Witnesses — Summoning, Examination, Vulnerable Witness Protection

No criminal trial moves an inch without witnesses. The bare procedural skeleton — who may be summoned, in what order they are examined, and how a reluctant or frightened witness is handled — is supplied by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA), fleshed out by each High Court's Criminal Rules of Practice. But the modern law of witnesses is no longer just about compelling attendance; it is increasingly about protection — of children, of sexual-offence survivors, of the disabled, and of witnesses facing intimidation. This chapter walks through the entire arc: from the summons that fetches a witness to the deposition centre that shields one, with every proposition anchored to the governing section and a verified Supreme Court authority.

Why Witnesses Are the Spine of the Criminal Trial

Indian criminal procedure is overwhelmingly oral and adversarial. Save for the limited categories of documentary and expert proof, guilt or innocence is established through the sworn testimony of human witnesses tested in open court. The whole machinery of the trial — framing of charge, recording of prosecution and defence evidence, and final arguments — is organised around bringing witnesses before the court and subjecting their account to scrutiny. For this reason the procedural law treats the production, compulsion and examination of witnesses as a discrete and tightly regulated subject.

The Criminal Rules of Practice of the High Courts operate as a practical layer over the BNSS. They prescribe how witness summonses are drawn and served, how the list of witnesses is maintained, how depositions are recorded and read over, and how vulnerable witnesses are accommodated. These rules do not override the statute; they implement it. A student must therefore read the BNSS provision first, then the corresponding rule. This chapter follows that discipline. For the broader scheme of how a criminal court is constituted and seated, see our note on constitution and sittings of criminal courts, and for the foundational vocabulary, the introduction.

Summoning Witnesses: The Process to Compel Appearance

A witness ordinarily attends because a party wants the testimony and the court issues process. The primary instrument is the summons. Sections 63 to 71 BNSS govern the form and service of summonses. Under Section 63 BNSS every summons must be in writing, in duplicate, signed by the presiding officer or such officer as the High Court directs by rule, and bear the seal of the court; the provision now expressly recognises summons issued in encrypted or electronic form bearing the court's image of seal and the officer's digital signature. A summons may direct a person merely to attend, or to attend and produce a document or thing — the latter being the procedural route by which documentary evidence is brought through a witness's hands.

Service is regulated by Sections 64 to 71 BNSS, including service by post and through electronic communication. Where a party in a warrant-case instituted otherwise than on a police report needs its witnesses compelled, Section 267 BNSS empowers the Magistrate, on the prosecution's application, to issue summons to any witness directing attendance or production of a document or thing. If a summoned witness wilfully fails to attend, the court may escalate to coercive process. The graduated ladder of summons, bailable warrant and non-bailable warrant — and the safeguards that attach to each — is set out in detail in our companion note on issuance of summons, warrants and bailable / non-bailable warrants.

The Court's Own Power to Summon: Section 348 BNSS

Witnesses are not produced only at the instance of the parties. Section 348 BNSS (the successor to Section 311 of the Code of Criminal Procedure, 1973) confers on every criminal court a sweeping suo motu power: at any stage of any inquiry, trial or other proceeding it may summon any person as a witness, examine any person in attendance though not summoned, or recall and re-examine any person already examined. The second limb is mandatory — the court shall summon, examine, recall or re-examine where the evidence appears essential to the just decision of the case.

The locus classicus is Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346, where the Supreme Court explained that the discretion under what is now Section 348 is wide and unfettered as to the stage at which it may be invoked, but is harnessed by the object of the provision — securing evidence essential for a just decision, not filling gaps for one side. The power was famously deployed to vindicate a fair trial in Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158 (the Best Bakery case), where, witnesses having turned hostile under intimidation, the Court ordered a retrial outside the State and emphasised that the court is not a mute spectator but must act to discover truth. Section 348 is thus both a truth-finding tool and a witness-protection mechanism, since recall is often the remedy when intimidation has corrupted the first round of testimony.

Competency: Who May Testify

Before a person may be examined, the court must be satisfied of competency. Section 124 BSA (formerly Section 118 of the Indian Evidence Act, 1872) lays down an inclusive rule: all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers, by tender years, extreme old age, disease of body or mind, or any like cause. Competency is therefore a question of understanding, not of age. A lunatic is not incompetent unless his lunacy prevents comprehension.

The practical corollary is that a child may testify if the court, after a preliminary inquiry (the voir dire), is satisfied the child understands the duty to speak the truth and can give rational answers. The classic formulation is from Wheeler v. United States, 159 US 523, approvingly cited in Indian decisions: capacity, not chronological age, controls. The Indian position was crystallised in Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, where the Supreme Court held that a child witness, if found competent and reliable, can be the sole basis of conviction, the only precaution being that the child must be reliable and free from the likelihood of tutoring.

The Sequence of Examination: Chief, Cross and Re-examination

Once a competent witness is on oath, the BSA dictates the order of questioning. Section 142 BSA (formerly Section 137 of the Indian Evidence Act) defines the three stages: examination-in-chief is the examination of a witness by the party who calls him; cross-examination is the examination by the adverse party; and re-examination is a further examination by the party who called the witness, after cross-examination. Section 143 BSA (formerly Section 138) fixes the order — examination-in-chief first, then cross-examination if the adverse party so desires, then re-examination if the calling party so desires — and confines re-examination to explaining matters arising out of cross-examination, with new matter admissible only by leave, in which case the adverse party may further cross-examine.

Cross-examination is the great engine for the discovery of truth, and the right to cross-examine flows from the audi alteram partem principle and the fair-trial guarantee under Article 21. Denial of an adequate opportunity to cross-examine a material witness can vitiate the trial. Leading questions, prohibited in chief and re-examination save with the court's leave, are freely permitted in cross-examination — the framework that the Criminal Rules of Practice presuppose when prescribing how depositions are recorded. For the mechanics of how that testimony is reduced to writing, read over and authenticated, see our note on recording of evidence in criminal trials.

Hostile Witnesses: Cross-examining Your Own Witness

A witness who, from the manner of giving evidence, shows that he is not desirous of telling the truth to the court is loosely called a hostile witness — a label the statute itself never uses. The remedy is supplied by Section 157 BSA (formerly Section 154 of the Indian Evidence Act): the court may, in its discretion, permit the party who called the witness to put to him questions that might be put in cross-examination by the adverse party. Crucially, sub-section (2) preserves the calling party's right to rely on any part of the witness's evidence notwithstanding the grant of permission.

The leading authority on the scope of this discretion is Sat Paul v. Delhi Administration, (1976) 1 SCC 727, where the Supreme Court held that the discretion conferred by the section is unqualified and untrammelled, and that the mere fact that a witness has been declared hostile and cross-examined by the party calling him does not result in his evidence being effaced or washed off the record altogether. The court may rely on so much of the testimony, whether elicited in chief or in cross, as it finds creditworthy, provided there is corroboration on material particulars. Hostility, in short, goes to credit and weight, not automatically to admissibility — a point of perennial examination importance.

Child Witnesses and the Corroboration Debate

The evidence of a child stands on a delicate footing. Children are competent under Section 124 BSA, yet they are uniquely susceptible to tutoring and suggestion. The courts have reconciled these truths through a rule of prudence rather than a rule of law. In Panchhi v. State of U.P., (1998) 7 SCC 177, the Supreme Court held that the evidence of a child witness must not be rejected outright but must be scrutinised with great care and circumspection because a child is an easy prey to tutoring; corroboration is desirable but not an inflexible legal requirement.

The position was put even more robustly in State of U.P. v. Krishna Master, (2010) 12 SCC 324, where the Court held that where a child witness narrates the events without improvement or embellishment and the testimony inspires the confidence of the court, no corroboration whatsoever is required, and that a child is in fact receptive to abnormal events and unlikely to forget them. Read with Dattu Ramrao Sakhare, (1997) 5 SCC 341, the settled rule is: competency is established by the voir dire; reliability is tested on the facts; corroboration is a rule of prudence the court may dispense with when the child's account is convincing. The procedural counterpart — recording such evidence in a child-friendly manner — is examined in the vulnerable-witness sections below.

In-camera Trials and Protection of Identity

The default rule is open justice: Section 366 BNSS (formerly Section 327 of the Code of Criminal Procedure, 1973) declares that the place where any criminal court is held shall be deemed an open court to which the public may generally have access. But the same section carves out a protective exception for sexual offences. The inquiry into and trial of offences such as rape and allied offences under the Bharatiya Nyaya Sanhita are to be conducted in camera, and the section further prohibits the printing or publication of any matter in relation to such proceedings except with the court's prior permission, and even then without disclosing the identity of the victim.

This statutory shield was strengthened by judicial direction. In Sakshi v. Union of India, (2004) 5 SCC 518, the Supreme Court, while declining to judicially expand the then definition of rape, issued binding guidelines for the trial of child sexual-abuse and related offences: a screen may be used so that the victim does not have to confront the accused; cross-examination questions of a sensitive nature should be routed in writing through the presiding officer rather than put directly; and sufficient breaks should be given to a child or vulnerable victim during testimony. Sakshi is the doctrinal bridge between bare in-camera procedure and the modern architecture of vulnerable-witness protection.

The POCSO Framework for Child Witnesses

For offences against children, the Protection of Children from Sexual Offences Act, 2012 (POCSO) erects a dedicated, child-sensitive procedure that overrides general criminal procedure to the extent of inconsistency. Section 33 POCSO directs the Special Court to create a child-friendly atmosphere by permitting a parent, guardian or person the child trusts to be present, and to ensure the child is not called repeatedly to testify. Section 35 requires that the child's evidence be recorded, as far as possible, within thirty days of the Special Court taking cognizance, and that the trial be completed, as far as possible, within one year.

Two provisions are the procedural heart of child-witness protection. Section 36 POCSO mandates that the child must not be exposed in any way to the accused while testifying, while still ensuring the accused can hear the statement and communicate with his counsel — typically achieved through a screen or one-way arrangement or video link. Section 37 requires the trial to be held in camera in the presence of a person in whom the child has trust. These provisions translate the Sakshi guidelines into hard statutory commands, and they inform the design of the deposition centres discussed next.

Vulnerable Witness Deposition Centres

The most significant recent development is the institutionalisation of Vulnerable Witness Deposition Centres (VWDCs) — specially designed courtrooms that allow a frightened or fragile witness to depose without intimidation, often through a live audio-video link to a separate room where the accused sits. The journey began with the Delhi High Court's Guidelines for Recording of Evidence of Vulnerable Witnesses in Criminal Matters and was carried nationwide in State of Maharashtra v. Bandu @ Daulat, (2018) 11 SCC 163, where the Supreme Court directed High Courts to set up special centres for the examination of vulnerable witnesses.

The decisive ruling is Smruti Tukaram Badade v. State of Maharashtra, 2022 SCC OnLine SC 78, in which the Supreme Court expanded the concept of a vulnerable witness well beyond child victims to include, among others, age-neutral and gender-neutral survivors of sexual assault, persons with mental illness, those with speech or hearing impairments, and any other person the court considers vulnerable. The Court directed every High Court to adopt and notify a VWDC Scheme and to operationalise centres across districts. The result is that protection is now a structural feature of the trial process, not an ad hoc indulgence — a shift that every aspirant must be able to trace from Sakshi through Bandu to Smruti Tukaram Badade.

Recording Statements of Sexual-offence Survivors

Protection begins long before the trial, at the stage of recording the survivor's statement. Section 183 BNSS (broadly corresponding to Section 164 of the Code of Criminal Procedure, 1973) provides that the statement of a victim of rape, gang rape or an acid attack shall, as far as practicable, be recorded by a woman Judicial Magistrate, and if she is unavailable, by a male Magistrate in the presence of a woman. The provision expressly contemplates recording by audio-video electronic means, and it accommodates witnesses who are temporarily or permanently mentally or physically disabled, whose statement is to be recorded with the assistance of an interpreter or special educator and videographed.

The objective of recording the survivor's account early, faithfully and once is judicial policy as much as statute. In State of Karnataka by Nonavinakere Police v. Shivanna, (2014) 8 SCC 913, the Supreme Court directed that the statement of a rape victim be recorded under Section 164 (now Section 183 BNSS) promptly, preferably by a Judicial Magistrate, so as to avoid the trauma of repeated recordings, and held that such a statement should not be disclosed even to the accused until the charge-sheet is filed. Complementing this, Section 184 BNSS requires the medical examination of a rape survivor by a registered medical practitioner, with the report forwarded promptly. These provisions sit upstream of the charge and trial; for how a complaint or first information report sets the case in motion, see filing of complaints, FIRs and charge-sheets.

Witness Protection Against Intimidation

Vulnerability is not confined to children and survivors; ordinary witnesses in serious cases face threats, inducement and violence. The constitutional and statutory response crystallised in Mahender Chawla v. Union of India, (2019) 14 SCC 615, where the Supreme Court approved the Union Government's Witness Protection Scheme, 2018 and, invoking Article 142, declared it to be the law binding on States and Union Territories until suitable legislation is enacted. The Scheme classifies witnesses by threat perception, provides for protection measures ranging from concealment of identity to relocation, and creates a Witness Protection Fund.

The new code has now given this a statutory home: Section 398 BNSS obliges every State Government to prepare and notify a Witness Protection Scheme for the protection of witnesses. Read together, Sections 348 (recall of intimidated witnesses), 366 (in-camera trial and identity protection), 183 (early recording of survivor statements) and 398 (witness protection schemes) form an integrated protective regime. The intellectual through-line for the exam is this: the criminal process now treats the witness not merely as a source of evidence to be compelled, but as a participant whose safety and dignity the State is bound to secure.

The Criminal Rules of Practice Layer

Overlaying these statutory provisions are the High Court Criminal Rules of Practice, which translate principle into courtroom routine. Typical rules require the prosecution and defence to file a list of witnesses; prescribe the form of the witness summons and the register in which summonses and their service are entered; direct that witnesses be examined in a logical sequence and, where necessary, kept out of court until called so that one does not hear another's deposition (sequestration); regulate the grant of expenses and conduct money to witnesses; and lay down how depositions are recorded in the language of the court, read over to the witness, corrected and signed.

For vulnerable witnesses, the rules — supplemented by the VWDC schemes notified pursuant to Smruti Tukaram Badade — provide for support persons, breaks, simplified language, and the routing of cross-examination through the presiding officer. The student should appreciate that these rules do not create rights; they operationalise the BNSS and BSA and give effect to the Supreme Court's protective directions. The relationship between the recorded deposition and the charge that frames the trial is explored in our note on charge framing — form, recording and reading over, and the full set of chapters is indexed at the Criminal Rules of Practice hub.

Exam Pointers and Common Pitfalls

A handful of distinctions reliably separate the careful answer from the careless one. First, do not confuse the statutory numbering: the power to summon a material witness is Section 348 BNSS (not 311, which is the old CrPC number); the order of examination is Section 143 BSA; the definitions of chief, cross and re-examination are in Section 142 BSA; cross-examining one's own (hostile) witness is Section 157 BSA; competency is Section 124 BSA; in-camera trial is Section 366 BNSS; and the witness protection scheme is Section 398 BNSS. Quoting the superseded Evidence Act or CrPC numbers without the new ones is a common slip.

Second, on hostile witnesses, remember Sat Paul: declaring a witness hostile does not erase the testimony — the court may rely on the trustworthy parts. Third, on child witnesses, hold the line between competency (a Section 124 question settled by the voir dire) and reliability (a question of weight where corroboration is a rule of prudence, per Panchhi and Krishna Master). Fourth, on protection, be able to chart the evolution from Sakshi (2004) to Bandu (2018) to Smruti Tukaram Badade (2022), and to pair it with the POCSO sections 33, 35, 36 and 37. Master these mappings and the topic of witnesses becomes one of the most scoring areas in any Criminal Rules of Practice paper.