Evidence in Inquiries and Trials | Section 307 to 336 BNSS

Evidence in Inquiries and Trials: Chapter XXV of the BNSS, 2023, Sections 307 to 336, the Mode of Taking Evidence, Commissions, Expert Reports and the New Successor Provision

Chapter XXV is the longest chapter in the Bharatiya Nagarik Suraksha Sanhita, 2023 and it answers three questions in order. Part A, sections 307 to 318, is about how evidence is taken and written down: in what language, in whose presence, in what form, and with what safeguards. Part B, sections 319 to 325, is about what happens when a witness cannot come. Part C, sections 326 to 336, is about the matters that may be proved without calling a witness at all.

The Chapter should be read with section 530, which sits over the whole of it and permits all trials, inquiries and proceedings under the Sanhita — including the examination of witnesses — to be held in electronic mode. That provision, together with the changes worked into individual sections of this Chapter, is the principal way in which the Sanhita has altered the law of criminal evidence-taking.

1. The Scheme

Figure 1: The three parts of Chapter XXV

Part	Sections	Subject
A	307 to 318	Mode of taking and recording evidence. Language; presence of the accused; the record in summons, warrant and Sessions cases; the language of the record; the procedure when evidence is completed; interpretation to the accused; remarks on demeanour; the record of the examination of the accused; the interpreter; the record in the High Court
B	319 to 325	Commissions for the examination of witnesses. When attendance may be dispensed with; to whom the commission is issued; its execution; examination by the parties; its return; adjournment meanwhile; and foreign commissions
C	326 to 336	Proof without calling the witness. The medical witness; the identification report; officers of the Mint; Government scientific experts; documents not disputed; affidavits; previous convictions; evidence in the absence of the accused; and — newly — evidence by the successor of a public servant or expert

2. Part A: How Evidence Is Taken

Sections 307 and 308, BNSS 2023

Section 307. The State Government may determine what shall be, for the purposes of this Sanhita, the language of each Court within the State other than the High Court.

Section 308. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his advocate.

Explanation. — In this section, “accused” includes a person in relation to whom any proceeding under Chapter IX has been commenced under this Sanhita.

And, by the enabling provision: the evidence may be recorded by audio-video electronic means.

📖 State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601

Facts: The prosecution applied to examine a medical expert who was in another country, by video-conferencing. It was objected that evidence must be taken in the presence of the accused, and that a witness appearing on a screen from abroad is not present before the court at all, so that the procedure was not permitted by the Code.

Held: The Supreme Court held that evidence can be recorded by video-conferencing. The requirement that evidence be taken in the presence of the accused does not mean actual physical presence: what the provision secures is that the accused should be able to see and hear the witness and to instruct his advocate, so that cross-examination is effective, and video-conferencing achieves all of that. The Court held that “presence” is to be read in a manner that advances the object of the provision rather than defeats it, and that the criminal procedure statute is not to be construed so as to exclude an advance in technology which serves the very purpose the section exists for. It laid down safeguards: the witness must be identified, must be examined on oath before an officer authorised to administer it, the accused and his advocate must be able to see and hear and to cross-examine, and the proceedings must be recorded. It emphasised that the arrangement saves time and expense without sacrificing any right of the accused.

Ratio: Evidence may be recorded by video-conferencing. “Presence” of the accused does not mean actual physical presence, provided he can see and hear the witness, instruct his advocate and cross-examine effectively.

The decision was made under the Code of Criminal Procedure and required the word presence to be construed. The Sanhita has now put the matter beyond argument. Section 530 provides that all trials, inquiries and proceedings — including the examination of witnesses — may be held in electronic mode, and the evidence provisions of this Chapter expressly contemplate recording by audio-video electronic means.

2.1 The safeguards that attach to every record

Figure 2: What applies to every record of evidence

Section 312. The evidence is ordinarily taken down in the language of the Court. Where a witness gives evidence in a language other than the language of the Court, it may be taken down in that language, and a translation in the language of the Court prepared as soon as practicable.
Section 313. As the evidence of each witness taken under sections 310 or 311 is completed, it shall be read over to him in the presence of the accused or his advocate, and shall, if necessary, be corrected. Where the witness denies the correctness of any part, the Judge or Magistrate may, instead of correcting it, make a memorandum of the objection and add such remarks as he thinks necessary.
Section 314. Whenever evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language understood by him. Where documents are put for the purpose of formal proof, it is in the discretion of the Court to interpret as much as appears necessary.
Section 317. Every person appointed as an interpreter in any proceeding shall be bound to state the true interpretation of whatever is stated in his presence.
Section 335. Where it is proved that an accused person has absconded and that there is no immediate prospect of arresting him, the Court may, in his absence, examine the witnesses produced on behalf of the prosecution and record their depositions, which may be given in evidence against him on his arrest, in the circumstances the section specifies.

3. Part B: Commissions

Part B answers the case of a witness who cannot come. The scheme is that the court sends an officer to the witness rather than requiring the witness to travel, and that the parties retain their rights before that officer.

Provision	Content
Section 319	When a commission may be issued. Whenever, in the course of an inquiry, trial or other proceeding, 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 the 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 issue a commission for his examination. Where the witness is the President or Vice-President of India, or a Governor or an Administrator, a commission shall issue
Section 320	To whom issued. If the witness is within India, to the Chief Judicial Magistrate within whose local jurisdiction he is to be found. If he is in a country or place outside India in respect of which arrangements have been made, to such Court, Judge or Magistrate as the Central Government may specify
Section 321	Execution. The Magistrate or officer to whom the commission is issued shall summon the witness or proceed to the place where he is, and shall take down his evidence in the same manner, and may exercise the same powers, as in the trial of a warrant case
Section 322	The parties may examine the witness. The parties may forward any interrogatories in writing which the Court may think relevant, and the Magistrate or officer shall examine the witness upon them. Any party may appear before him by advocate, or in person, and may examine, cross-examine and re-examine the witness
Section 323	Return. After the commission has been duly executed, it shall be returned, together with the deposition, to the Court which issued 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 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 its execution and return
Section 325	Foreign commissions. Provision for the execution in India of commissions issued by courts outside India in the countries and places the section and the Central Government specify

4. Part C: Proof Without Calling the Witness

Figure 3: The principal provisions of Part C

4.1 The medical witness and the scientific expert

Section 326 permits the deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or recorded in the presence of the accused in a previous inquiry or trial, to be given in evidence in any inquiry, trial or other proceeding although the deponent is not called as a witness. The Court may, and shall on the application of the prosecution or the accused, summon and examine him as to the subject-matter of his deposition.

Section 329 permits any document purporting to be a report under the hand of a Government scientific expert, upon any matter duly submitted to him for examination or analysis in the course of a proceeding, to be used as evidence without calling him. The Court may summon and examine him as to the subject-matter of his report. The experts to whom the section applies include the Chemical Examiner or Assistant Chemical Examiner to Government, the Chief Controller of Explosives, the Director of the Finger Print Bureau, the Director of the Haffkeine Institute, the Director, Deputy Director or Assistant Director of a Central or State Forensic Science Laboratory, and the Serologist to the Government.

📖 Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367

Facts: A report of a Government scientific expert was used as evidence under the provision corresponding to section 329, without the expert being examined, and the defence contended that the report could not be acted upon in the circumstances of the case because matters requiring explanation arose from it.

Held: The Supreme Court explained the scope of the provision. It held that the section is an exception to the ordinary rule that an opinion must be proved by the person who formed it, and that it exists so that formal scientific reports need not require the expert to travel to court in every case. But the section confers on the Court a discretion to summon and examine the expert, and that discretion is to be exercised whenever the report is not self-explanatory, whenever its conclusions are challenged, or whenever the Court needs assistance on the basis of the opinion or the data and tests on which it rests. The Court held that where the report is relied on for a material conclusion and the accused disputes it, it is ordinarily desirable to examine the expert, and that a court should not act on a bare report in such a case merely because the section permits it to be used as evidence.

Ratio: A report of a Government scientific expert may be used as evidence without calling him, but the Court should summon and examine him where the report is not self-explanatory, where its conclusions are challenged, or where the basis of the opinion requires explanation.

4.2 The new successor provision: section 336

Section 336, BNSS 2023 — a new provision

Where any document is prepared, examined or signed by a public servant, an expert or a police officer, and such person is —

transferred, retired or dead; or cannot be found; or his presence cannot be procured without an amount of delay or expense which the Court considers unreasonable,

the evidence in respect of such document may be given by the officer who is holding that office at the time of the trial — that is, by the successor of the person who prepared, examined or signed it.

⚠ What section 336 does, and what it does not

It answers a real and long-standing difficulty. Criminal cases take years, and public servants, experts and police officers are transferred, retire and die in the meantime. Under the earlier law a document proved by nobody else could be lost to the case altogether, or the trial delayed indefinitely while an untraceable officer was sought.

It is confined to the document. The section permits the successor to give evidence in respect of the document — its preparation, examination or signature, and the records of the office. It is not a provision permitting one officer to depose to what another officer saw or did in a matter of substance.

It does not dispense with the conditions. The successor may depose only where the original officer is transferred, retired, dead, untraceable, or cannot be produced without unreasonable delay or expense. Where he is available, he must be called.

And it does not affect weight. What the successor says is evidence, and its value is for the Court. A successor who can speak to the record of his office is one thing; a successor who is merely reading out a document he knows nothing about is another, and the difference will tell.

5. Key Takeaways

The position stated shortly

1. Chapter XXV has three parts: A (ss.307 to 318) the mode of taking and recording evidence; B (ss.319 to 325) commissions; C (ss.326 to 336) proof without calling the witness.

2. Section 308: all evidence shall be taken in the presence of the accused, or of his advocate where his personal attendance is dispensed with; and it may be recorded by audio-video electronic means.

3. “Presence” does not mean actual physical presence. Evidence may be recorded by video-conferencing, provided the accused can see and hear the witness, instruct his advocate and cross-examine: Praful B. Desai. Section 530 now puts this on a statutory footing.

4. Section 313: the evidence of each witness is read over to him in the presence of the accused and corrected; where he denies the correctness of a part, a memorandum of the objection is made instead.

5. Section 314: evidence given in a language not understood by the accused shall be interpreted to him in open court; and section 317 binds every interpreter to state the true interpretation.

6. 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 unreasonable delay, expense or inconvenience.

7. Section 322: the parties may forward interrogatories, and may appear and examine, cross-examine and re-examine the witness before the commissioner. Section 323: the deposition may be read in evidence and forms part of the record.

8. Section 326: the deposition of a medical witness may be given in evidence without calling him; the Court shall summon him on the application of either party.

9. Section 329: a report of a Government scientific expert may be used as evidence without calling him; but the Court should summon him where the report is not self-explanatory or its conclusions are challenged: Sukhwant Singh.

10. Section 336 is new: where a document was prepared, examined or signed by a public servant, expert or police officer who is transferred, retired, dead, untraceable or not producible without unreasonable delay or expense, evidence in respect of it may be given by his successor in office.

6. Frequently Asked Questions

Must evidence be taken in the physical presence of the accused?

No. Section 308 requires it to be taken in the presence of the accused or of his advocate where personal attendance is dispensed with, and “presence” does not mean actual physical presence: evidence may be recorded by video-conferencing provided the accused can see and hear the witness and cross-examine effectively: Praful B. Desai. Section 530 now expressly permits proceedings in electronic mode.

What happens after a witness’s evidence is recorded?

Section 313 requires it to be read over to him in the presence of the accused or his advocate and corrected if necessary. Where he denies the correctness of any part, the Judge or Magistrate may make a memorandum of the objection and add such remarks as he thinks necessary instead of correcting it.

When can a commission be issued 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 would be unreasonable in the circumstances: section 319. A commission must issue where the witness is the President or Vice-President, a Governor or an Administrator.

Can a forensic report be used without calling the expert?

Yes, under section 329, where it is a report under the hand of one of the Government scientific experts the section lists. But the Court may summon and examine him, and should do so where the report is not self-explanatory or its conclusions are challenged: Sukhwant Singh v. State of Punjab.

What is new in section 336?

It permits evidence in respect of a document prepared, examined or signed by a public servant, expert or police officer to be given by the officer holding that office at the time of the trial, where the original officer has been transferred, has retired or died, cannot be found, or cannot be produced without unreasonable delay or expense. There was no such provision in the Code of Criminal Procedure.

Can evidence be recorded if the accused has absconded?

Yes. Section 335 permits the Court, where it is proved that the accused has absconded and there is no immediate prospect of arresting him, to examine the prosecution witnesses in his absence and record their depositions, which may be given in evidence against him on his arrest in the circumstances the section specifies.

Related Topics

Record of Evidence in Summons, Warrant and Sessions Cases
Remarks on the Demeanour of a Witness: Section 315, BNSS
Affidavit Evidence under the BNSS, 2023
Attendance of Persons Confined in Prisons: Sections 301 to 306
Electronic Mode of Proceedings: Section 530, BNSS
Forensic Investigation under Section 176(3), BNSS