Section 33 IEA: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated
Indian Evidence Act, 1872
Section 33 IEA at a Glance
Section 33 IEA deals with relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. From 1 July 2024 it is replaced by Section 27 BSA.
Section 33 IEA Bare Act Text
33. Relevancy of certain evidence for proving, in subsequent proceeding, the 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;
that the questions in issue were substantially the same in the first as in the second proceeding.
ExplanationA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Source: Section 33, Indian Evidence Act, 1872
Section 33 IEA in Simple Words
Section 33 of the Indian Evidence Act, 1872 makes earlier witness testimony relevant in a subsequent judicial proceeding, or at a later stage of that same proceeding. It is relevant for proving the truth of the stated facts when the witness cannot be produced in court for specific reasons set out in the Act.
The witness must have testified in a judicial proceeding, or before someone whom the law authorises to record evidence. The testimony becomes relevant when the witness has died, cannot be located, is incapable of testifying, or is kept away by the adverse party (the opposing side). It is also relevant when bringing the witness would cause delay or expense that the court considers unreasonable in the case.
Under the proviso, the earlier proceeding was between the same parties or persons who are their representatives in interest (successors to the legal interest of a party). Also, the opposing side during the first proceeding had both the right and the opportunity for cross-examination (questioning the witness), and the disputed issues remained substantially the same across the first and second proceedings. Under the explanation, a criminal inquiry or trial counts as a proceeding between the prosecution and the accused person.
When Section 33 IEA Applies
- A witness gave testimony in an earlier judicial proceeding, or before someone whom the law authorises to record evidence.
- A party seeks to prove the truth of the stated facts in a later judicial proceeding, or at a later stage of that same proceeding.
- The witness has died, cannot be located, is incapable of testifying, or is kept away by the opposing party.
- Or the witness cannot be brought to court without delay or expense that the court considers unreasonable in the case.
- In a criminal inquiry or trial, the proceeding is treated as being between the prosecution and the accused person.
Example of Section 33 IEA
When Section 33 IEA Does Not Apply
- Under the proviso, the rule is limited to proceedings between the same parties or persons who are their representatives in interest.
- Under the proviso, the rule is limited to cases where the opposing side during the first proceeding had both the right and the opportunity for cross-examination.
- Under the proviso, the rule is limited to cases where the disputed questions were substantially the same across the first and second proceedings.
Section 33 IEA in the BSA
Section 33 IEA is now covered under Section 27 BSA.
Section 33 of the Indian Evidence Act, 1872 became Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. A one-word drafting edit in the text, and the heading drops "the".
View detailed comparison (IEA 33 vs BSA 27) →FAQs on Section 33 IEA
What is Section 33 IEA?▼
Section 33 of the Indian Evidence Act, 1872 makes testimony given by a witness in an earlier judicial proceeding relevant in a later judicial proceeding, or at a later stage of that same proceeding, to prove the truth of the stated facts when the witness cannot be produced in court for specified reasons.
Can earlier testimony be used under Section 33 IEA if the opposing party had no opportunity to cross-examine?▼
No. Under the proviso, the opposing side during the first proceeding had to have both the right and the opportunity to cross-examine the witness.
Does Section 33 IEA apply when a live witness is kept away by the opposing party?▼
Yes. Besides cases where a witness has died, cannot be located, or is incapable of testifying, the rule applies when the opposing side keeps the witness away or when producing the witness would cause unreasonable delay or expense.
Does Section 33 IEA cover criminal proceedings between the prosecution and the accused?▼
Yes. Under the explanation, a criminal inquiry or trial counts as a proceeding between the prosecution and the accused person.
What is Section 33 IEA in BSA?▼
Section 27 BSA replaces Section 33 IEA from 1 July 2024 with no substantive change to the rule. In the proviso, the word that before the final clause was replaced with the word and, and the word the was dropped from the heading.
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Sources: Bare Act Text, Indian Evidence Act, 1872 ·