Commissions for the Examination of Witnesses | BNSS 2023

Commissions for the Examination of Witnesses: Sections 319 to 325 of the BNSS, 2023, When a Commission May Issue, Its Execution and Foreign Commissions

The ordinary rule is that a witness comes to the court. Part B of Chapter XXV of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides for the case in which he cannot, and the device it uses is to send the court to the witness: an officer is commissioned to take his evidence wherever he is, and the deposition so taken is returned to the trial court and read in evidence.

A commission is therefore an exception to the principle that evidence is given orally, in open court, before the tribunal that will decide the case. What makes the exception acceptable is section 322, which preserves the parties’ right to examine, cross-examine and re-examine the witness before the commissioner. Without that, a commission would be a device for putting untested assertions on the record.

1. The Scheme

Figure 1: Sections 319 to 325

Section 319, BNSS 2023

(1) Whenever, in the course of any inquiry, trial or other proceeding under this Sanhita, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter.

Provided that where the examination of the President or the Vice-President of India, or the Governor of a State or the Administrator of a Union territory, as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.

(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the expenses of his advocate, shall be paid by the prosecution.

Figure 2: The two questions, and when a commission is the right answer

Sub-section (2) deserves a note of its own. A commission taken at a distance is of no use to an accused who cannot afford to send his advocate to it. The Court may therefore direct the prosecution to pay the reasonable expenses of the accused, including his advocate’s expenses, when it issues a commission for a prosecution witness. The right in section 322 to appear and cross-examine is otherwise theoretical for a poor accused.

2. Execution and Return

Provision	Content
Section 320	To whom the commission is issued. If the witness is within the territories to which the Sanhita extends, to the Chief Judicial Magistrate within whose local jurisdiction he is to be found. If he is in India but in a State or area to which the Sanhita does not extend, to such Court or officer as the Government of that State or area may appoint. If he is in a country or place outside India in respect of which arrangements have been made by the Central Government, to such Court, Judge or Magistrate, and through such authority, as the Central Government may by notification specify
Section 321	Execution. The Magistrate or officer to whom the commission is issued shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for that purpose exercise the same powers, as in the trial of a warrant case under the Sanhita
Section 322	The parties may examine the witness. The parties to any proceeding in which a commission is issued may respectively forward any interrogatories in writing which the Court or Magistrate directing the commission may think relevant to the issue, and the Magistrate or officer executing it shall examine the witness upon such interrogatories. Any such party may appear before him by advocate, or if not in custody, in person, and may examine, cross-examine and re-examine the witness
Section 323	Return and use. After a commission has been duly executed, it shall be returned, together with the deposition of the witness examined, to the Court or Magistrate issuing it; and the commission, the return and the deposition shall be open to inspection by the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record
Section 324	Adjournment. In every case in which a commission is issued, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission
Section 325	Foreign commissions. Provision for the execution in India of commissions issued by a Court, Judge or Magistrate in a country or place outside India in respect of which arrangements have been made by the Central Government, the commission being forwarded to the Chief Judicial Magistrate or such Metropolitan or other Magistrate as the High Court may appoint

📖 Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532

Facts: The question arose as to the value of testimony which was not given directly by the person who perceived the fact, and as to what the rule requiring direct oral evidence secures.

Held: The Supreme Court restated the foundation on which the law of oral evidence rests. Oral evidence must, in all cases, be direct: it must be the evidence of the person who saw, heard or perceived the fact, given by him. The reason for the rule is that testimony which does not come from the perceiver cannot be tested: the person who actually perceived the fact is not on oath, is not before the Court, and is not subject to cross-examination, so that neither his accuracy nor his truthfulness can be examined. The Court held that the demeanour of the person who actually perceived the fact is also lost, and that these are the three securities — the oath, cross-examination, and the Court’s observation of the witness — which the direct-evidence rule exists to preserve.

Ratio: Oral evidence must be direct, and the rule exists to preserve three securities: the oath, cross-examination, and the Court’s observation of the witness. Evidence which escapes them cannot be tested.

A commission deposition escapes the third of those securities — the trial court does not see the witness — but preserves the first two. The witness is examined on oath by the commissioner, and the parties may cross-examine him. That is why a commission is permissible where a mere written statement would not be, and it explains where the limits of the device lie: it is suited to a witness whose demeanour is not what matters, and unsuited to one whose credit is the issue in the case.

📖 Mohammed Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408

Facts: A person was convicted and sentenced to death in a trial in which he was unrepresented for a substantial part of the proceedings and had no effective opportunity to cross-examine a large number of prosecution witnesses. The question was the consequence of a trial conducted without an effective opportunity to test the prosecution evidence.

Held: The Court held that the right to a fair trial includes a real and effective opportunity to cross-examine the witnesses against the accused, and that legal representation is part of what makes that opportunity effective. Where an accused has been denied that opportunity — whether through the absence of counsel, or through the manner in which the trial was conducted — the proceeding cannot be treated as a trial in the sense the law requires, however complete the record may appear. The Court held that in such a case the proper course is to set aside the conviction and direct a retrial, at which the accused is to be represented and the witnesses examined afresh, rather than to attempt to assess the evidence as it stands.

Ratio: A fair trial requires a real and effective opportunity to cross-examine the prosecution witnesses. Where it has been denied, the proceeding is not a trial in the sense the law requires and a retrial is ordered.

⚠ What that means when a commission is sought

The right in section 322 to appear and cross-examine before the commissioner is not a formality to be recorded and passed over. It is the thing that makes the deposition usable, and it must be a real opportunity.

A commission issued at short notice, in a distant place, to an accused who cannot send an advocate, and without a direction under section 319(2) for his expenses, gives him a theoretical right and no more.

It follows that when a commission is issued, the Court should fix the date and place so that the parties can be present, should consider a direction as to the expenses of the accused, and should ensure that the interrogatories the parties wish to forward are settled before it goes.

3. The Commission and Its Alternatives

A commission is no longer the only way of taking the evidence of a witness who cannot come to court, and in many cases it is no longer the best.

Route	Provision	When it is suitable
Commission	Sections 319 to 325	Where the witness is at a distance, abroad, or in a place from which he cannot travel, and the evidence is such that the trial court’s observation of him is not essential
Audio-video electronic means	Section 530; sections 310 and 311	Wherever the facility exists. It preserves immediacy — the Court and the parties see and hear the witness as he answers — which a written commission does not
Examination in prison	Section 306	Where the witness is confined or detained in a prison. The Court may issue a commission for his examination in the prison instead of requiring his attendance
Letter of request	Sections 112 and 113	Where evidence is to be obtained from a country outside India in the course of an investigation. This is a different mechanism operating at a different stage
Proof without a witness	Sections 326 to 336	Where the matter is formal: a medical deposition, a scientific expert’s report, an undisputed document, or evidence of a formal character on affidavit

⚠ Why video-conferencing is ordinarily preferable

A commission produces a written deposition taken by somebody other than the judge who will decide the case. The trial court receives words on paper and nothing else.

Video-conferencing produces evidence given to the trial court itself. The Judge sees the witness, the parties cross-examine in real time, the court can put its own questions, and section 315 remains available for a remark on demeanour.

Section 530 now expressly permits the examination of witnesses to be conducted in electronic mode, and sections 310 and 311 expressly permit evidence to be recorded by audio-video electronic means. Where the facility exists, the statutory preference for direct evidence points to using it.

A commission remains necessary where there is no such facility, where the witness cannot operate one, or where the examination requires the commissioner to go to the place where the witness is — which section 321 expressly contemplates.

4. Key Takeaways

The position stated shortly

1. Section 319: a commission may issue where the examination of a witness is necessary for the ends of justice and his attendance cannot be procured without an amount of delay, expense or inconvenience which would be unreasonable in the circumstances.

2. Both conditions must be satisfied. If the evidence is not necessary, the answer is not a commission but a refusal to examine the witness at all.

3. Where the witness is the President or Vice-President of India, a Governor or an Administrator, a commission shall issue.

4. Section 319(2): the Court may direct the prosecution to pay the reasonable expenses of the accused, including his advocate’s expenses, when issuing a commission for a prosecution witness.

5. Section 320: the commission goes to the Chief Judicial Magistrate where the witness is within India, and to the Court or authority the Central Government specifies where he is abroad.

6. Section 321: the commissioner summons the witness or goes to him, and takes his evidence in the same manner and with the same powers as in the trial of a warrant case.

7. Section 322: the parties may forward interrogatories, and may appear by advocate or in person and examine, cross-examine and re-examine the witness. This is what makes the deposition usable.

8. Section 323: the commission, the return and the deposition are open to inspection, may subject to all just exceptions be read in evidence by either party, and form part of the record.

9. A commission preserves the oath and cross-examination but not the trial court’s observation of the witness. It is therefore suited to evidence where demeanour does not matter, and unsuited where credit is the issue.

10. Section 530 and sections 310 and 311 now permit evidence to be taken by audio-video electronic means, which preserves immediacy that a written commission does not, and is ordinarily to be preferred where the facility exists.

5. Frequently Asked Questions

When may a court issue a commission to examine a witness?

Where the examination is necessary for the ends of justice and the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable: section 319(1). Both conditions must be satisfied.

Is a commission compulsory in any case?

Yes. The proviso to section 319(1) provides that where the examination of the President or Vice-President of India, the Governor of a State or the Administrator of a Union territory is necessary for the ends of justice, a commission shall be issued.

Can the accused cross-examine a witness examined on commission?

Yes. Section 322 permits the parties to forward interrogatories in writing, and to appear before the commissioner by advocate or, if not in custody, in person, and to examine, cross-examine and re-examine the witness.

Who pays for the accused to attend a commission?

Section 319(2) permits the Court, when issuing a commission for a prosecution witness, to direct that such amount as it considers reasonable to meet the expenses of the accused, including the expenses of his advocate, shall be paid by the prosecution.

Is the deposition taken on commission evidence in the case?

Yes. Section 323 provides that the commission, the return and the deposition are open to inspection by the parties, may subject to all just exceptions be read in evidence by either party, and shall form part of the record.

Is a commission still necessary now that video-conferencing is permitted?

Less often. Section 530 permits the examination of witnesses in electronic mode and sections 310 and 311 permit evidence to be recorded by audio-video electronic means, which preserves the immediacy a written commission loses. A commission remains necessary where no such facility exists, or where the commissioner must go to the place where the witness is.

Related Topics

Electronic Evidence and Video Conferencing in Criminal Proceedings
Evidence in Inquiries and Trials: Sections 307 to 336, BNSS
Attendance of Persons Confined in Prisons: Sections 301 to 306
Reciprocal Arrangements and Letters of Request: Sections 111 to 124
Record of Evidence in Summons, Warrant and Sessions Cases
Affidavit Evidence under the BNSS, 2023