Chapter 25: Bharatiya Nagarik Suraksha Sanhita, 2023

CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS

A.—Mode of taking and recording evidence

Section 307: Language of Courts

• Simple English: The State Government has the power to decide what the official “language” of each Criminal Court (except the High Court) will be in that state.
• Real-World Example: The State Government of Maharashtra can declare that the language of all Magistrate and Sessions Courts in the state shall be Marathi.

Section 308: Evidence to be taken in presence of accused

This is a fundamental rule of a fair trial, based on the principle of “natural justice.”

• Simple English: All evidence taken during a trial must be taken in the presence of the accused.
• The Exception: If the court has “dispensed with” the accused’s personal attendance (as in Sec 228), the evidence must be taken in the presence of their advocate.
• New Provision: This presence can be in person or through “audio-video electronic means” (like a video call).
• Real-World Example: An accused who is in jail can attend their entire trial via a video link. As long as they can see and hear the witness testifying, their “presence” is legally met.
• Proviso:
  • Simple English: This provides a special protection for child victims (under 18) of sexual offences.
  • The court can take “appropriate measures” to ensure the child victim does not have to be “confronted by the accused” (i.e., see them face-to-face).
  • The Condition: This must be done while still ensuring the accused’s right to cross-examination (which can be done via a lawyer or a video link).
  • Real-World Example: A child victim testifies from a separate room in the courthouse via a one-way video link. The child can only see the judge and lawyers, but cannot see the accused. The accused, however, can see the child on a screen in the courtroom, and his lawyer can conduct the cross-examination.
• Explanation:
  • Simple English: “Accused” in this context also includes people in “security proceedings” (like those in Chapter IX, who are asked to sign peace bonds).

Section 309: Record in summons-cases and inquiries

This section explains how evidence is recorded in minor cases.

• Sub-section (1):
  • Simple English: In summons-cases (offences with < 2 years punishment) and in inquiries (like the land-dispute inquiries in Sec 164), the Magistrate does not need to write down every single word of the testimony.
  • Instead, the Magistrate just needs to make a “memorandum of the substance of the evidence” (a summary) in their own words, in the language of the court.
  • Proviso: If the Magistrate is physically unable to write it themselves, they must record the reason and can then dictate the summary to a court clerk.
  • Real-World Example: In a petty theft trial, a witness talks for 10 minutes. The Magistrate simply writes down the summary: “Witness stated he is the owner of the shop. He saw the accused take the item. He identifies the accused. Cross-examination: Denied any prior enmity.”
• Sub-section (2):
  • Simple English: This summary (memorandum) must be signed by the Magistrate and becomes part of the official case record.

Section 310: Record in warrant-cases

This section explains how evidence is recorded in serious cases tried by a Magistrate.

• Sub-section (1):
  • Simple English: In all warrant-cases (offences with > 2 years punishment), a much more detailed record is required. The evidence of each witness must be “taken down in writing.”
  • This can be done:
    • By the Magistrate themselves.
    • By dictation to a court stenographer in open court.
    • If the Magistrate is unable, by a court officer under their personal direction.
  • Proviso (New): This evidence can also be recorded by audio-video electronic means, but it must be in the presence of the accused’s lawyer.
  • Real-World Example: In a cheating case, the witness testifies, and a court stenographer types every word. This is the “deposition.”
• Sub-section (2):
  • Simple English: If the Magistrate doesn’t type/write the evidence themselves, they must add a certificate explaining why (e.g., “Due to physical incapacity…”).
• Sub-section (3):
  • Simple English: The evidence is ordinarily recorded in a “narrative” form (like a story: “I went to the bank. Then I saw the accused…”).
  • The Exception: The Magistrate may, in their discretion, record any part of it in a “question and answer” format.
  • Real-World Example:
    • Narrative: “The witness stated he saw the accused running.”
    • Q&A Format:
      • Q: Who did you see?
      • A: I saw the accused.
      • Q: What was he doing?
      • A: He was running.
• Sub-section (4):
  • Simple English: The final, detailed deposition must be signed by the Magistrate and becomes part of the official record.

Section 311: Record in trial before Court of Session

This section explains how evidence is recorded in the most serious trials (like murder or rape).

• Sub-section (1):
  • Simple English: In all trials before a Court of Session, the evidence of each witness must be “taken down in writing” as their examination proceeds.
  • This can be done by:
    1. The presiding Judge themselves.
    2. By the Judge’s dictation in open court (to a stenographer).
    3. Under the Judge’s direction and supervision by a court officer (if the judge is unable).
  • Real-World Example: In a murder trial, the eyewitness testifies. The judge dictates their testimony word-for-word to a court typist, who types it out. This typed document is the official “deposition.”
• Sub-section (2):
  • Simple English: The evidence is ordinarily recorded in a “narrative” form (e.g., “I saw the accused… then I ran…”).
  • The Exception: The Judge may, in their discretion, record any part of the evidence in a “question and answer” (Q&A) format if they feel it’s necessary.
  • Real-World Example: For most of the testimony, the judge will let the witness speak and record it as a narrative. But during a complex cross-examination, the judge might switch to Q&A format to ensure every question and answer is captured precisely.
• Sub-section (3):
  • Simple English: The final, written evidence (the deposition) must be signed by the presiding Judge and becomes part of the official case record.

Section 312: Language of record of evidence

This section handles what to do when the witness, the accused, and the court speak different languages.

• (a) Simple English: If the witness testifies in the “language of the Court” (e.g., Marathi in a Maharashtra court), the evidence is simply written down in that language.
• (b) Simple English: If the witness testifies in any other language (e.g., in Hindi):
  1. If “practicable,” the evidence can be written down directly in that language (Hindi).
  2. If it’s not practicable, a “true translation” of the testimony into the court’s language (Marathi) must be prepared as the witness is speaking. This translation is then signed by the Judge and becomes the official record.
• (c) Simple English: If the evidence is taken down in another language (as in (b)(1) above), a true translation into the court’s language must be prepared “as soon as practicable” and added to the record.
• Proviso: If the evidence is taken down in English, and no party (prosecution or defense) asks for a translation into the local court language, the Judge can dispense with (skip) the translation.
• Real-World Example: A witness in a Tamil Nadu court testifies in Hindi. The court has an official translator who provides a “running translation” into Tamil (the court’s language). The judge’s stenographer types down the Tamil translation, and this becomes the official record.

Section 313: Procedure in regard to such evidence when completed

This is a crucial check to ensure the testimony is recorded accurately.

• Sub-section (1):
  • Simple English: As soon as the recording of a witness’s evidence is finished, it must be read over to them in the presence of the accused (or their lawyer). If the witness points out a mistake, it must be corrected.
  • Real-World Example: The typist finishes typing the witness’s 5-page testimony. The judge asks the court clerk to read the entire 5 pages back to the witness, right there in the witness box. The witness says, “On page 3, I said ’10 PM’, not ’11 PM’.” The judge corrects the record.
• Sub-section (2):
  • Simple English: If the witness denies the correctness of a part of the record, the Judge may (instead of correcting) just make a note on the document: “The witness objected to this part, stating…” This allows a higher court to see what the dispute was.
• Sub-section (3):
  • Simple English: If the evidence was recorded in a different language from the one the witness spoke (e.g., they spoke Hindi, but it was recorded in English), the record must be interpreted (translated) back to the witness in a language they understand.
  • Real-World Example: The witness spoke in Hindi. The judge recorded the evidence in English. The court interpreter must now read the English record back to the witness in Hindi to confirm its accuracy.

Section 314: Interpretation of evidence to accused or his advocate

This section protects the accused’s right to understand their own trial.

• Sub-section (1):
  • Simple English: If any evidence is given in a language the accused does not understand, and the accused is physically present, it must be interpreted for them in open court.
  • Real-World Example: The accused only understands Hindi. A witness testifies in Tamil. The court must have an interpreter provide a running translation of the testimony into Hindi so the accused can understand what is being said against them.
• Sub-section (2):
  • Simple English: This applies if the accused is represented by a lawyer who doesn’t understand the language of the evidence (and it’s not the court’s language). The evidence must be interpreted for the lawyer.
  • Real-World Example: A witness testifies in a complex tribal dialect. The defense lawyer does not understand it. The court must provide an interpreter to translate the testimony for the lawyer so they can conduct a proper cross-examination.
• Sub-section (3):
  • Simple English: When documents are just being “formally proved” (e.g., “This is the post-mortem report”), the judge only needs to interpret as much of it as seems necessary. They don’t have to read and translate the entire 20-page document.

Section 315: Remarks respecting demeanour of witness

• Simple English: This is a special power for the trial judge. After recording a witness’s testimony, the Judge can also write down their own personal observations (“remarks”) about the “demeanour” (behavior) of the witness while they were testifying.
• Why this is important: A written transcript is “cold.” It doesn’t show if the witness was nervous, arrogant, crying, or avoiding eye contact. These remarks help the appeal court (which only reads the paper record) understand what the trial judge saw.
• Real-World Example: The Judge might write a note at the end of a deposition: “The witness appeared shifty and evasive, and paused for a long time before answering questions in cross-examination.”

Section 316: Record of examination of accused

This section deals with the “Statement of the Accused” (also known as a “316 Statement” or “313 Statement” under the old law) – the formal, direct questioning of the accused by the judge.

• Sub-section (1):
  • Simple English: When a Magistrate or Judge formally examines the accused, the entire examination, including every question put to the accused and every answer they give, must be recorded in full.
  • Real-World Example: The record will be a Q&A list:
    • Q: “Witness 1 said he saw you at the shop. What do you have to say?”
    • A: “I was not there. I was at my village.”
    • Q: “The police recovered a knife from your house. What do you have to say?”
    • A: “The police planted it.”
• Sub-section (2):
  • Simple English: The record should, if “practicable,” be in the language the accused speaks. If not, it must be in the language of the court.
• Sub-section (3):
  • Simple English: After the Q&A is finished, the record must be shown or read to the accused. If they don’t understand the language, it must be translated for them. The accused then has the right to “explain or add to” their answers.
  • Real-World Example: After reading the record, the accused says, “For my answer to question 1, I want to add that I was at my village for my sister’s wedding.” The judge must add this clarification.
• Sub-section (4):
  • Simple English: After being finalized, the record must be signed by the accused and the Judge. The Judge also adds a certificate confirming it was all done in their presence and is a true record of what was said.
  • Proviso (New): If the accused is in custody and was examined via video call, their signature must be obtained within 72 hours (e.g., by sending a court official to the jail with a printout).
• Sub-section (5):
  • Simple English: This formal, lengthy Q&A recording process is not required for “summary trials” (the fast-track trials for petty offences we covered in Chapter XXII).

Section 317: Interpreter to be bound to interpret truthfully

• Simple English: When a court uses an interpreter (for a witness or the accused), that interpreter is legally bound to provide a true and accurate interpretation. They are usually put under oath to do so.
• Real-World Example: A court interpreter takes an oath: “I will truly and faithfully interpret the evidence given in the Oriya language into the English language, and from English into Oriya, to the best of my skill and ability.”

Section 318: Record in High Court

• Simple English: This section just states that every High Court can make its own internal rules for how it will record witness testimony and examine an accused in any trial that happens before it.
• Real-World Example: The Bombay High Court might have its own “Practice Rules” that differ slightly from those of the Madras High Court.

B.—Commissions for the examination of witnesses

This part explains the “commission” – a formal procedure for getting testimony from a witness who is unable to come to court.

Section 319: When attendance of witness may be dispensed with and commission issued

• Sub-section (1):
  • Simple English: At any stage of a case, if a court believes a witness’s testimony is necessary, but that witness cannot be brought to court without an unreasonable amount of delay, expense, or inconvenience, the court can “dispense with” (waive) their personal attendance.
  • The Solution: The court can instead “issue a commission” – which is a formal order appointing someone else to go and record the witness’s testimony.
  • Real-World Example: A key witness in a trial in Delhi has moved to a remote village in Kerala and is 90 years old and too sick to travel. The Delhi court can “issue a commission” to the District Magistrate in that part of Kerala, ordering them to record the witness’s evidence.
• Sub-section (1), Proviso:
  • Simple English: This is a mandatory rule for high-level officials. If the witness is the President of India, the Vice-President, a State Governor, or an Administrator of a Union Territory, the court must issue a commission. They cannot be summoned to attend court in person.
• Sub-section (2):
  • Simple English: If the commission is for a prosecution witness, the court can order the prosecution (the government) to pay the “reasonable expenses” for the accused (and their lawyer) to travel to the place where the commission is being held.
  • Real-World Example: In the Delhi trial, the witness is in Kerala. The court orders the prosecution (Delhi Police) to pay for the accused’s lawyer to fly to Kerala to be present when the witness’s testimony is recorded, ensuring the right to cross-examination is protected.

Section 320: Commission to whom to be issued

This section explains who the court appoints to carry out the “commission.”

• Sub-section (1):
  • Simple English: If the witness is within India and in a territory covered by the BNSS, the commission (the order) is sent to the Chief Judicial Magistrate (CJM) of the district where the witness is.
  • Real-World Example: For the witness in Kerala, the Delhi court sends the commission to the “Chief Judicial Magistrate of Ernakulam.” The Ernakulam CJM will then either go himself or appoint another Magistrate to record the evidence.
• Sub-section (2):
  • Simple English: If the witness is in India but in an area where the BNSS does not apply (like Nagaland or a tribal area, as per Section 1), the commission is sent to a court or officer specified by the Central Government.
• Sub-section (3):
  • Simple English: If the witness is in a foreign country (and India has a treaty or “reciprocal arrangement” with that country for this), the commission is sent to a specific court, judge, or authority in that foreign country, using the official channels set up by the Central Government.
  • Real-World Example: A key witness in a trial is in the United Kingdom. The Indian court sends the commission (via the Central Government) to the designated court in London, which will then summon the witness and record their testimony in accordance with the India-UK treaty.

Section 321: Execution of commissions

This section explains how the Magistrate (who was sent the commission by the trial court) should record the witness’s testimony.

• Simple English: Upon receiving the commission (the order from the trial court), the Chief Judicial Magistrate (CJM) of that district (or a subordinate Magistrate they appoint) must:
  1. Summon the witness to their court, OR
  2. Go to the place where the witness is (if they are sick, etc.).
• Once there, the Magistrate must take down the witness’s evidence using the same formal procedure as a “trial of warrant-cases.” This means the evidence is taken under oath, and the right to cross-examination is given.
• Real-World Example: A trial is in Delhi. A key witness is a 90-year-old man in a village in Kerala. The Delhi court issues a commission to the CJM of the district in Kerala (as per Sec 320). The CJM appoints a local Magistrate. That Magistrate, along with the prosecutor and defense lawyer, travels to the man’s home, sets up a proceeding, and records his full testimony (examination-in-chief and cross-examination).

Section 322: Parties may examine witnesses

This section clarifies the rights of the prosecution and defense during a commission.

• Sub-section (1):
  • Simple English: The parties (prosecution and defense) can send a list of written questions, called “interrogatories,” for the Magistrate to ask the witness.
  • Real-World Example: If the case is minor and the lawyers don’t want to travel, the Delhi defense lawyer can just email a list of 20 questions to the Magistrate in Kerala, who will then ask them on the lawyer’s behalf.
• Sub-section (2):
  • Simple English: This is the more common option. The lawyers for both sides have the right to appear (either by advocate, or in person if they are not in custody) before the Magistrate who is executing the commission. They can then conduct a live examination, cross-examination, and re-examination of the witness, just as they would in a real trial.
  • Real-World Example: The defense lawyer from Delhi flies to Kerala to be present at the witness’s home. After the witness gives their main testimony, the Delhi lawyer stands up and conducts a full cross-examination, which the local Magistrate records.

Section 323: Return of commission

• Sub-section (1):
  • Simple English: After the commission is “duly executed” (the testimony is recorded and signed), the local Magistrate (in Kerala) must send the recorded testimony (the “deposition”) back to the trial court (in Delhi) that issued the commission.
  • The Result: This deposition becomes part of the official trial record. It is open for inspection by both parties and can be read in evidence in the trial.
  • Real-World Example: During the trial in Delhi, the prosecutor says, “Your Honour, I will now read the evidence of witness ‘A’, which was taken by commission in Kerala.” He then reads the signed deposition to the court.
• Sub-section (2):
  • Simple English: This recorded testimony can also be used as evidence in any later stage of the case, such as an appeal to the High Court or Supreme Court.

Section 324: Adjournment of proceeding

• Simple English: The trial court that issues a commission (the Delhi court) can “adjourn” (pause) the trial for a “reasonably sufficient” amount of time to allow for the commission to be executed (in Kerala) and for the report to be returned.
• Real-World Example: The Delhi judge issues the commission and says, “This trial is adjourned for 45 days to allow for the execution of the commission.”

Section 325: Execution of foreign commissions

This section explains what to do when a commission is received from another country.

• Simple English: The same rules (Sections 321, 322, 323) apply to commissions received from a foreign court with which India has a treaty (or from a court in an Indian territory where the BNSS doesn’t apply).
• In other words: An Indian Magistrate must execute a “letter of request” (a commission) from a foreign court in the same way they would for a domestic court.
• Real-World Example: A court in the UK is trying a fraud case and needs to examine a witness who lives in Mumbai. The UK court sends a “letter of request” to the Mumbai CJM (via the Central Government). The CJM must then summon the witness, allow the UK lawyers (or their Indian representatives) to examine them, and send the signed testimony back to the UK court.

Section 326: Deposition of medical witness

This is a time-saving rule for doctors.

• Sub-section (1):
  • Simple English: The “deposition” (formal, sworn testimony) of a Civil Surgeon or other medical witness, if it was taken by a Magistrate in the presence of the accused, can be submitted as evidence in the trial without the doctor having to appear in court.
  • Real-World Example: A doctor who performed a post-mortem gives a full, sworn deposition before a Magistrate. At the main trial, the prosecutor just submits this document. The busy doctor does not have to spend a day in court waiting to testify.
• Sub-section (2):
  • Simple English: This is the safeguard. The court may (at its own discretion) or shall (it is mandatory, if the prosecution or defense applies) summon the doctor for cross-examination regarding their deposition.
  • Real-World Example: The defense lawyer reads the doctor’s deposition and sees a major contradiction. He files an application: “I must cross-examine the doctor.” The judge must then issue a summons for the doctor to appear.

Section 327: Identification report of Magistrate

This is a time-saving rule for “Test Identification Parades” (TIPs).

• Sub-section (1):
  • Simple English: A report of an “identification” (like a police line-up), if it is prepared and signed by an Executive Magistrate, may be used as evidence in the trial without forcing that Magistrate to come to court to testify.
  • Real-World Example: An eyewitness identifies an accused in a TIP conducted by a Tehsildar (an Executive Magistrate). The Tehsildar’s formal report, which says “Witness ‘A’ correctly identified accused ‘B’,” is submitted as evidence in the trial.
• Sub-section (1), Proviso:
  • Simple English: If the Magistrate’s report also contains any inadmissible statements (like a confession made by the accused), that part of the report cannot be used as evidence.
• Sub-section (2):
  • Simple English: This is the safeguard (same as for the doctor). The court may (on its own) or shall (if the prosecution or defense applies) summon the Magistrate to be cross-examined about how the TIP was conducted.
  • Real-World Example: The defense lawyer believes the police unfairly pointed out the accused to the witness before the TIP. The lawyer applies to the judge: “I need to cross-examine the Magistrate about the procedure he followed.” The judge must issue the summons.

Section 328: Evidence of officers of Mint

This section (and the next) are crucial time-savers. They make expert reports “self-explanatory.”

• Sub-section (1):
  • Simple English: A formal, written report from a high-level government expert can be used as evidence in any trial without the expert having to testify. This applies to:
    • Officers of any Mint (for counterfeit coin cases).
    • Officers of any Note Printing Press (for counterfeit currency).
    • Officers of any Security Printing Press (for counterfeit stamps).
    • Officers of any Forensic Department / Forensic Science Laboratory (FSL).
    • Any Government Examiner of Questioned Documents (GEQD) (handwriting/signature expert).
  • Real-World Example: The police send a suspected forged signature on a will to the GEQD. The expert sends back a detailed report concluding, “The signature is a forgery.” The prosecutor can submit this report as direct evidence of the forgery, without needing the expert to come and testify.
• Sub-section (2):
  • Simple English: The court may, “if it thinks fit,” summon and examine the expert about their report. (Note: This is discretionary for the judge, but this rule is updated by the new Section 330).
• Sub-section (3):
  • Simple English: This is a “state secrets” protection. If an expert is called to court, they cannot be forced to:
    • (a) Give evidence from “unpublished official records” (their internal notes).
    • (b) Disclose the “nature or particulars” of the specific tests they used.
  • …unless their boss (e.g., the Director of the FSL) gives permission. This protects secret government/scientific methods from being exposed in open court.
  • Real-World Example: A defense lawyer asks a ballistics expert, “What is the exact chemical composition of the proprietary ‘Gunshot Residue Test’ you used?” The expert can refuse to answer, as it is a protected proprietary test.

Section 329: Reports of certain Government scientific experts

This section is similar to Section 328 but covers a different list of scientific experts.

• Sub-section (1):
  • Simple English: A report from any of the following experts can also be used directly as evidence without them having to testify:
    • (a) Any Chemical Examiner (e.g., for viscera/poison reports).
    • (b) The Chief Controller of Explosives (for bomb cases).
    • (c) The Director of the Finger Print Bureau.
    • (d) The Director, Haffkeine Institute, Bombay.
    • (e) Directors of Central or State FSLs.
    • (f) The Serologist to the Government (for blood group analysis).
    • (g) Any other expert the government notifies.
  • Real-World Example: In a suspected poisoning death, the viscera (organs) are sent to the state’s “Chemical Examiner.” Their report, “Traces of cyanide were detected in the stomach lining,” is submitted as direct evidence of poisoning.
• Sub-section (2):
  • Simple English: The court may, “if it thinks fit,” summon and examine this expert. (Again, this is updated by Section 330).
• Sub-section (3):
  • Simple English: This provides a practical solution for busy experts. If an expert (like the Director of the FSL) is summoned, they may (unless the court expressly forbids it) send a responsible subordinate officer who is familiar with the case to testify on their behalf.
  • Real-World Example: The Director of the FSL, who signed the report, is summoned. He is at an international conference. He “deputes” the Assistant Director (who actually supervised the test) to go to court and testify in his place.
• *Sub-section (4):
  • Simple English: This just lists the experts covered, as detailed in Sub-section (1).

Section 330: No formal proof of certain documents

This is a major new section in the BNSS, designed to dramatically speed up trials by forcing parties to “admit or deny” documents.

• Sub-section (1):
  • Simple English: When any party (prosecution or defense) files a list of documents they want to use as evidence, the other side must be called upon to either “admit” or “deny” the genuineness of each document.
  • Timeline: This admission or denial must be done soon after the documents are supplied, and no later than 30 days after.
  • Real-World Example: The prosecution gives the defense lawyer a list of 20 documents, including the post-mortem report, the seizure memo, and the ballistics report. The defense lawyer must file a written reply within 30 days, stating, “I admit Document 1 (PM Report) and Document 3 (Seizure Memo). I deny Document 2 (Ballistics Report).”
• Sub-section (1), First Proviso:
  • Simple English: The court can give more than 30 days if needed.
• Sub-section (1), Second Proviso:
  • Simple English: This is the most important rule. No expert (like a doctor, forensic scientist, or handwriting expert) shall be called to appear in court unless their report is disputed by one of the parties.
  • This overrides the “may” in Sections 328 and 329. The new rule isn’t just that the report can be used; the new rule is that the expert cannot be called unless the other side disputes the report.
• Sub-section (2):
  • Simple English: The State Government will create the official form for this list of documents.
• Sub-section (3):
  • Simple English: If the genuineness of a document is “not disputed” (either it’s “admitted” or the party just stays silent and doesn’t deny it), that document can be read directly into evidence. The party no longer has to waste time with “formal proof” (i.e., calling the person who signed it just to say “Yes, this is my signature”).
  • Proviso: The court still has the discretion to demand formal proof if it thinks something is suspicious.
  • Combined Real-World Example:
    1. Prosecution files the Post-Mortem (PM) report and a Ballistics report.
    2. The defense lawyer admits the PM report (because the cause of death is not in dispute) but denies the Ballistics report (because they want to challenge the expert).
    3. Result: The PM report is automatically taken as evidence. The doctor is not called (saving a full day of court time). However, because the Ballistics report was “disputed,” the prosecutor must now summon the ballistics expert to testify and be cross-examined.