Sections 331 and 332, BNSS 2023

Section 331 · Affidavit in proof of conduct of public servants. When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Sanhita, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.

Section 332 · Evidence of formal character on affidavit. (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Sanhita.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

📖 Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366

Facts: A party sought to rely on affidavits as proof of contested facts, no order having been made permitting evidence to be given in that form, and the question was whether affidavits are “evidence” on which a court may found a finding of fact.

Held: The Supreme Court held that affidavits are not included in the definition of “evidence” and can be used as evidence only if, for sufficient reason, the Court passes an order under the relevant provision permitting evidence to be given in that form. It followed that affidavits could not be accepted as proof of contested facts where no such order had been made, and that a finding on a disputed question of fact could not be founded on them. The Court emphasised that the ordinary mode of proof is oral evidence on oath, subject to cross-examination, and that permitting affidavits to take its place in a contested matter would deprive the other side of the means by which testimony is tested.

Ratio: An affidavit is not evidence in the ordinary sense and cannot prove a contested fact unless the Court has, for sufficient reason, permitted evidence to be given in that form. The ordinary mode of proof is oral evidence subject to cross-examination.

⚠ The two limbs of section 332 must be read together

Sub-section (1) permits formal evidence to be given by affidavit and read in evidence subject to all just exceptions — which imports the ordinary rules of relevance and admissibility. An affidavit does not make admissible what would otherwise be inadmissible; it only changes the form in which admissible evidence is given.

Sub-section (2) provides that the Court may, and shall on the application of the prosecution or the accused, summon and examine the deponent. The word is shall. A party who wants to cross-examine the deponent of a formal affidavit is entitled to have him summoned, and the Court has no discretion to refuse.

That is what makes the section acceptable. It does not take away the right to cross-examine; it relieves a party of the trouble of insisting on it where the matter is genuinely formal and genuinely undisputed. The right sleeps until it is claimed, and revives the moment it is.

Section 330, BNSS 2023

(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the advocate for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document within a period of thirty days of the filing of the list.

(2) The list of documents shall be in such form as may be prescribed by the State Government.

(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Sanhita without proof of the signature of the person to whom it purports to be signed:

Provided that the Court may, in its discretion, require such signature to be proved.

📖 Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485

Facts: An application was made in the course of a trial to have a document exhibited without formal proof, and questions arose as to the working of the provision requiring parties to admit or deny the genuineness of documents, and as to what follows from an admission or a denial.

Held: The Supreme Court held that the provision requiring the parties to admit or deny the genuineness of documents is intended to shorten trials by removing from contest what is not genuinely in dispute. Where the genuineness of a document is not disputed, it may be read in evidence without formal proof of the signature; and the Court retains a discretion to require the signature to be proved notwithstanding the absence of a dispute. The Court held that the provision operates on genuineness, and that an admission of genuineness is not an admission of the contents or of their truth: the document comes on the record without formal proof, and what it establishes remains a matter for the Court on the whole of the evidence. It emphasised that the exercise should be undertaken early, so that the parties know what they must prove before the evidence begins.

Ratio: The admit-or-deny exercise removes from contest what is not genuinely disputed, so that a document may be read without proof of signature. But an admission of genuineness is not an admission of contents or of their truth.

⚠ The distinction that matters most in section 330

Genuineness is not truth. To admit that a document is genuine is to admit that it is what it purports to be — that it was written by the person whose signature it bears, on the date it bears. It is not to admit that what it says is correct.

A party who admits the genuineness of a statement therefore admits that the statement was made, not that it was true; and he remains free to contest its contents, to explain them, and to lead evidence against them.

The thirty-day period in sub-section (1) is worth noting alongside the other periods the Sanhita has introduced. It places the admit-or-deny exercise at an early stage, so that both sides know before the evidence begins what will have to be formally proved.

The position stated shortly

1. The ordinary mode of proof in a criminal trial is oral evidence on oath, subject to cross-examination. Sections 330 to 333 are exceptions, confined to matters that are formal or undisputed.

2. Section 332(1): the evidence of a person whose evidence is of a formal character may be given by affidavit and read in evidence, subject to all just exceptions.

3. Section 332(2): the Court may, and shall on the application of the prosecution or the accused, summon and examine the deponent. The word is shall — the right to cross-examine is not lost, only unclaimed.

4. Evidence is formal where the credit, accuracy or opportunity of observation of the deponent is not in issue — custody and movement of an article, dispatch of a sample, the fact of a service, an official position held on a date.

5. An affidavit is not “evidence” in the ordinary sense and cannot prove a contested fact unless the Court has, for sufficient reason, permitted evidence to be given in that form: Sudha Devi.

6. Section 331: where allegations are made respecting a public servant in an application, the applicant may give evidence of the facts by affidavit, and the Court may order that evidence relating to them be so given.

7. Section 330: the particulars of every document filed are included in a list, and the other party is called on to admit or deny genuineness within thirty days.

8. Where genuineness is not disputed, the document may be read in evidence without proof of signature — though the Court may in its discretion require the signature to be proved.

9. Genuineness is not truth. An admission that a document is genuine admits that it is what it purports to be, not that its contents are correct: Shamsher Singh Verma.

10. Section 333: an affidavit may be sworn before a Judge, a Judicial or Executive Magistrate, a Commissioner of Oaths or a Notary, and must be confined to facts the deponent can prove of his own knowledge, statements of belief being admissible on interlocutory applications only with the grounds stated.