Bharatiya Sakshya Adhiniyam, 2023
Section 137
Witness not excused from answering on ground that answer will criminate
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution forgiving false evidence by such answer.
Why this exists
This rule descends from Section 132 of the old Indian Evidence Act, 1872, which itself drew on English common-law debates about balancing two competing needs: courts need full, truthful testimony to reach justice, but people should not be forced to be witnesses against themselves. The compromise struck by Indian law is different from the strict 'right to silence' model — witnesses (as opposed to an accused person) must answer, but the law shields them from being punished based on what they were compelled to reveal, so the search for truth does not come at the cost of unfair self-destruction.
How courts read it
Indian courts, interpreting the predecessor Section 132 of the Evidence Act, have held that this provision applies to witnesses generally, not to an accused person testifying in their own trial (whose separate constitutional protection under Article 20(3) against self-incrimination applies differently). Courts have clarified that the proviso's protection is narrow: it protects the witness only from prosecution based on that particular compelled statement, not from prosecution based on independently gathered evidence. The exception for 'giving false evidence' has been read to mean a witness cannot use this shield to lie under oath and then claim immunity.
Common misconceptions
- Myth: A witness can refuse to answer any question that might incriminate them, just like an accused person can stay silent.
Fact: Under this section, ordinary witnesses (not the accused on trial) must answer relevant questions even if self-incriminating; they only get protection against later use of that specific compelled answer, not a right to refuse answering. - Myth: Once protected under this section, a witness can never be prosecuted for the crime they admitted to.
Fact: The protection only bars using that particular compelled answer against them; if the same crime is proven through other independent evidence, they can still be prosecuted.