Local Inspection by a Judge or Magistrate | Section 347 BNSS

Local Inspection by a Judge or Magistrate: Section 347 of the BNSS, 2023, the Purpose of Appreciating Evidence and the Memorandum

Oral evidence about a place is often difficult to follow. A witness says the assailant came from behind the wall and that he saw him from the courtyard; whether that is possible depends on where the wall is, how high it is, and what can be seen from the courtyard. Section 347 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits a Judge or Magistrate to go and look.

The section is short and it is easy to misuse. What it permits is an inspection for the purpose of properly appreciating the evidence given — an aid to understanding testimony already on the record. What it does not permit is the collection of evidence. A Judge who visits a place and returns with a fact that no witness spoke to has not appreciated the evidence; he has become a witness in his own case.

1. The Section

Figure 1: Section 347 and its four requirements

Section 347, BNSS 2023

(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case; and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.

Requirement	What it means	Why it is there
After due notice to the parties	The parties must be told, so that they may be present and know what the Court has seen	A judicial inspection is not a private visit. A party who was not there cannot address the Court on what it saw
For appreciating the evidence given	The inspection is an aid to understanding testimony already on the record	It marks the boundary of the power. The section does not authorise the Court to gather material
A memorandum shall be recorded	The Judge shall, without unnecessary delay, record the relevant facts observed	An impression carried away in the Judge’s head and produced in the judgment is exactly what the requirement exists to prevent
It forms part of the record, and a copy is supplied free	What the Court saw becomes part of the case, and the parties may have it	So that the observation can be addressed in argument and reviewed on appeal

2. Appreciating Evidence, Not Collecting It

📖 State of Himachal Pradesh v. Mast Ram, (2004) 8 SCC 660

Facts: A question arose as to the use a court may make of what it observes on a spot inspection, and whether observations made on such an inspection can supply a finding of fact which the evidence on record does not support.

Held: The Supreme Court held that the power of local inspection is conferred for the limited purpose stated in the section itself — to enable the Court to properly appreciate the evidence given at the inquiry or trial. The inspection is not a method of collecting evidence, and what the Judge observes does not become substantive evidence in the case. It follows that a finding cannot be founded on the inspection: the Court may use what it saw to understand the testimony of a witness, to follow a plan or a description, and to assess whether an account is physically possible, but it cannot use it to supply a fact which no witness deposed to. The Court emphasised that the safeguards in the section — notice to the parties and a memorandum forming part of the record — exist precisely because the observation must be capable of being addressed by the parties and examined on appeal, and that an inspection conducted without them puts into the judgment material the parties never had an opportunity to meet.

Ratio: Local inspection is for appreciating the evidence, not collecting it. What the Judge observes is not substantive evidence and cannot supply a fact no witness deposed to.

📖 Ram Chander v. State of Haryana, (1981) 3 SCC 191

Facts: The trial judge had intervened extensively in the examination of witnesses, putting questions in a manner which, it was contended, went beyond the elucidation of evidence and amounted to taking over the conduct of the case. The Supreme Court considered the proper role of a judge in a criminal trial.

Held: The Court held that a judge in a criminal trial is not a mere umpire and is under a duty to elicit the truth; he has ample power to put questions to witnesses for that purpose, and a passive judge presiding over an inadequately conducted trial serves nobody. But it held with equal firmness that the judge must not descend into the arena: he must not adopt the role of a prosecutor, must not put questions in a manner that frightens, coerces, confuses or intimidates a witness, and must not conduct the examination so as to make out a case for one side. The Court observed that the object of every judicial intervention must be the ascertainment of truth, and that the moment the intervention ceases to serve that object and begins to serve one party, the character of the proceeding changes and the accused is deprived of a fair trial.

Ratio: A judge must actively seek the truth and may question witnesses for that purpose, but he must not descend into the arena or conduct the case for a party. The object of every intervention must be the ascertainment of truth.

⚠ Why the two principles belong together

Section 347 and the power to question witnesses are both instances of the same thing: a judge acting on his own initiative to understand the case better.

And both carry the same danger. A judge who inspects a place and uses what he saw as evidence, and a judge who questions a witness so as to supply what the prosecution failed to prove, have both crossed from adjudicating to prosecuting.

The limits are the same in substance: the object must be understanding the evidence, not supplying it; the parties must know what was done and be able to address it; and the record must show enough for an appellate court to see what happened.

Which is why the memorandum matters so much. It is the thing that keeps a local inspection inside the judicial role, by converting a private impression into a recorded observation the parties can contest.

3. Local Inspection and the Other Routes

Figure 2: The four ways a place comes before the Court

The Sanhita provides several routes by which the physical characteristics of a place reach the Court, and they differ in the status of what they produce.

Section 347 — local inspection by the Judge. Produces a memorandum, which forms part of the record but is not substantive evidence. It helps the Court understand what the witnesses said.
The site plan or spot map prepared by the investigating officer and forwarded with the report under section 193. It is not substantive evidence either; it is proved by the officer, and is used to follow the oral testimony.
Section 176(3) — the forensic expert’s visit, mandatory for offences punishable with seven years or more, where the expert collects evidence at the scene and the process is videographed. What he collects is evidence, proved through his report under section 329 and his testimony.
Section 158 — local investigation in a nuisance proceeding under Chapter XI, where the Magistrate deputes a person to make a local investigation. Section 159 expressly makes the report readable as evidence, and the person may be examined on it.

⚠ The distinction to hold

A section 158 report and a section 176(3) expert’s findings are evidence. They were produced by persons deputed or required to examine the place, and the Sanhita provides for them to be proved and tested.

A section 347 memorandum is not evidence. It records what the Judge observed, so that the parties know what was in his mind and can address it, and so that an appellate court can see it.

The practical test is simple: the Judge’s own observation can help him understand what the witnesses said. It cannot supply what they did not say.

4. Key Takeaways

The position stated shortly

1. Section 347 permits any Judge or Magistrate, at any stage of an inquiry, trial or other proceeding, to visit and inspect the place where an offence is alleged to have been committed, or any other place he considers necessary to view.

2. The statutory purpose is to properly appreciate the evidence given at the inquiry or trial. It is an aid to understanding testimony, not a means of collecting it.

3. The inspection must be after due notice to the parties, so that they may be present and know what the Court has seen.

4. The Judge shall, without unnecessary delay, record a memorandum of any relevant facts observed.

5. The memorandum forms part of the record, and a copy shall be furnished free of cost to any party who desires it.

6. What the Judge observes is not substantive evidence and cannot supply a fact no witness deposed to: Mast Ram.

7. A judge is not a mere umpire and may act to elicit the truth; but he must not descend into the arena or make out a case for a party: Ram Chander.

8. A site plan prepared by the investigating officer is likewise not substantive evidence; it is proved by him and used to follow the oral testimony.

9. By contrast, a section 158 local investigation report is expressly made readable as evidence by section 159, and the findings of the forensic expert under section 176(3) are evidence proved through his report and testimony.

10. The three requirements — notice, memorandum, and supply of a copy — exist for one reason: a Judge must not decide a case on material the parties have not seen and cannot answer.

5. Frequently Asked Questions

What does section 347 permit?

A Judge or Magistrate, at any stage and after due notice to the parties, to visit and inspect the place where an offence is alleged to have been committed or any other place necessary to view for the purpose of properly appreciating the evidence given, and requires him to record a memorandum of relevant facts observed.

Is what the Judge sees on inspection evidence?

No. The inspection is for appreciating the evidence, not collecting it. What the Judge observes is not substantive evidence and cannot supply a fact which no witness deposed to: State of Himachal Pradesh v. Mast Ram.

Must the parties be given notice of the inspection?

Yes. The section requires due notice to the parties, so that they may be present and know what the Court has seen. An inspection without notice puts into the judgment material the parties had no opportunity to address.

Must a memorandum be recorded?

Yes, without unnecessary delay, of any relevant facts observed. It forms part of the record of the case, and a copy shall be furnished free of cost to the prosecutor, complainant, accused or any other party who so desires.

How does local inspection differ from a local investigation under section 158?

A section 158 local investigation is made by a person deputed by the Magistrate in a nuisance proceeding, and section 159 expressly makes his report readable as evidence. A section 347 memorandum is not evidence; it records the Judge’s own observation as an aid to appreciating the testimony.

Can a judge question witnesses on his own?

Yes. A judge is not a mere umpire and has a duty to elicit the truth, and section 348 gives him the power to summon or recall witnesses. But he must not descend into the arena or conduct the case for a party: Ram Chander v. State of Haryana.

Related Topics

Section 348 BNSS: Summoning and Recalling a Witness
General Provisions as to Inquiries and Trials: Sections 337 to 366
Forensic Investigation under Section 176(3), BNSS
Local Investigation and Expert Examination in Nuisance Cases
Evidence in Inquiries and Trials: Sections 307 to 336, BNSS
Record of Evidence in Summons, Warrant and Sessions Cases