Record of Evidence in Summons Warrant and Sessions Cases

Sections 309, 310 and 311, BNSS 2023

Section 309 · Summons cases and inquiries. In every summons case tried before a Magistrate, and in every inquiry under Chapter XIV, and in every proceeding under section 164 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court. Such memorandum shall be signed by the Magistrate and shall form part of the record. If the Magistrate is unable to make it himself, he shall, after recording the reason of his inability, cause it to be made in writing or from his dictation in open Court, and shall sign it.

Section 310 · Warrant cases. In all warrant cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself, or by his dictation in open Court, or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf, and may be recorded by audio-video electronic means. Such evidence shall ordinarily be taken down in the form of a narrative; but the Magistrate may, in his discretion, take down or cause to be taken down any part of it in the form of question and answer. It shall be signed by the Magistrate and shall form part of the record.

Section 311 · Sessions trials. In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself, or by his dictation in open Court, or, where he is unable to do so, under his direction and superintendence by an officer of the Court appointed by him, and may be recorded by audio-video electronic means. The same provisions as to narrative form, the discretion to record in question and answer form, and signature apply.

⚠ Three points often confused

The memorandum in a summons case is not a lesser version of a warrant-case record; it is a different thing. It records the substance of what the witness said. A warrant-case record records the evidence. The distinction matters when a deposition is used to contradict a witness later: a memorandum of substance is a weaker instrument for that purpose than a written record of the evidence.

Section 313 applies only to evidence taken under sections 310 and 311. It is the evidence in warrant cases and Sessions trials that must be read over to the witness in the presence of the accused and corrected. The summons-case memorandum is not subject to that requirement.

Narrative form is the rule; question and answer is the exception. Both sections say the evidence shall ordinarily be taken down in the form of a narrative, and give a discretion to record any part in question and answer form. The discretion is properly used where the exact words matter — an admission, a contradiction, an answer on which the case turns.

📖 Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1

Facts: Trials were being interrupted, sometimes for long periods, by objections to the admissibility of questions and documents, which the trial court would hear and decide at once, and which would then be carried to the High Court, so that the recording of evidence stopped while the objection was litigated. The Supreme Court considered what a trial court should do when an objection to admissibility is raised.

Held: The Court held that the practice of stopping the evidence to decide an objection is unsatisfactory and is a substantial cause of delay. It laid down that when an objection is raised to a question put to a witness or to a document sought to be exhibited, the trial court should, as a rule, proceed to record the answer or mark the document subject to the objection, making a note of the objection and the party raising it, and should decide the question of admissibility at the final stage, in the judgment. That course ensures that the evidence is on the record if the objection fails, so that the witness need not be recalled, and that the trial is not interrupted by a challenge that can equally be decided at the end. The Court held that the exhibit may be marked with a distinguishing mark indicating that it was admitted subject to objection, and that this practice should be adopted by all trial courts.

Ratio: An objection to admissibility should not halt the recording of evidence. The trial court records the answer or marks the document subject to the objection, notes the objection, and decides admissibility in the judgment.

Section 313, BNSS 2023

(1) As the evidence of each witness taken under section 310 or section 311 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his advocate, if he appears by advocate, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

(3) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.

⚠ Why sub-section (2) is drafted as it is

The obvious course, when a witness says the record is wrong, would be to correct it. The section permits that — sub-section (1) says the evidence shall, if necessary, be corrected.

But it also permits the alternative, and the alternative exists because the witness may be wrong about what he said. A witness who has given a damaging answer and then denies having given it is not to be allowed to rewrite the record by asserting that it is inaccurate.

So sub-section (2) permits the court to leave the record as it stands and add a memorandum of the objection with its own remarks. The appellate court then sees three things: what was recorded, that the witness disputed it, and what the judge who heard him thought about the dispute. That is more informative than either a silent correction or a silent refusal to correct.

📖 State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715

Facts: It was established that entries in a police station record relevant to the case had been interfered with. The defence contended that once a record maintained in the course of the proceedings was shown to be unreliable, the whole of the case founded on the connected material must fail.

Held: The Supreme Court held that a defect or manipulation in a record does not, by itself, destroy the case. The question in every instance is what effect the defect has on the reliability of the evidence the court is asked to act upon: the court must examine the remaining evidence on its own merits and decide whether, notwithstanding the defect, the case is established. The Court held that it would be wrong to treat a flaw in a record as producing an automatic consequence, and equally wrong to ignore it; the correct approach is to assess what the flaw actually affects and to scrutinise the connected evidence with corresponding care. It emphasised that courts decide on the totality of the material and not on a single defect treated as decisive.

Ratio: A defect in a record does not by itself destroy a case. The court examines what the defect actually affects, scrutinises the connected evidence with corresponding care, and decides on the totality of the material.

The position stated shortly

1. Section 309: in a summons case and in an inquiry, the Magistrate makes a memorandum of the substance of the evidence, signed by him, forming part of the record. Where he cannot make it himself, he records the reason.

2. Section 310: in a warrant case, the evidence of each witness is taken down in writing by the Magistrate, by his dictation in open Court, or under his direction and superintendence; and it may be recorded by audio-video electronic means.

3. Section 311: in a Sessions trial, the same, by the presiding Judge.

4. The evidence shall ordinarily be taken down in the form of a narrative; the Judge or Magistrate has a discretion to record any part in question and answer form, properly used where the exact words matter.

5. The record is signed by the Magistrate or the presiding Judge and forms part of the record.

6. Section 313 applies to evidence taken under sections 310 and 311: it is read over to the witness in the presence of the accused or his advocate and, if necessary, corrected.

7. Where the witness denies the correctness of a part, the court may, instead of correcting it, make a memorandum of the objection and add such remarks as it thinks necessary.

8. An objection to admissibility should not halt the recording. The court records the answer or marks the document subject to the objection, notes it, and decides admissibility in the judgment: Bipin Shantilal Panchal.

9. A defect in a record does not by itself destroy a case; the court examines what the defect affects and decides on the totality: K. Yarappa Reddy. Section 511 makes failure of justice the test.

10. But a record so deficient that the appellate court cannot see what evidence was given cannot support a finding, and the ordinary order in such a case is a retrial.