Section 256 of BNSS, 2023 — Entering Upon Defence

Introduction

Section 256 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed when the accused enters upon their defence in a trial before the Court of Session.

After the prosecution evidence has been completed and the Court does not acquit the accused under Section 255, the accused is given an opportunity to present their defence.

Meaning of Section 256

Section 256 provides that where the accused is not acquitted under Section 255, the accused shall be called upon to enter upon their defence.

The accused may then:

• present their evidence;
• produce witnesses;
• produce documents or other relevant material; and
• explain or establish their defence before the Court.

The provision therefore ensures that the accused gets a full opportunity to answer the prosecution case.

Object and Purpose

The main objectives of Section 256 are:

• To provide the accused an opportunity to present a defence.
• To ensure compliance with the principles of natural justice.
• To allow the accused to produce evidence in support of their case.
• To enable the Court to consider both the prosecution and defence cases before deciding guilt.
• To ensure a fair criminal trial.

When Does Section 256 Apply?

Section 256 comes into operation after:

1. The prosecution has presented its evidence.
2. The accused has been examined as required by law.
3. The Court considers whether the accused should be acquitted under Section 255.
4. The Court does not find grounds to acquit the accused under Section 255.

The accused is then called upon to enter upon their defence.

Procedure for Entering Upon Defence

The Judge calls upon the accused to present their defence.

The accused may:

• give evidence in support of the defence;
• produce documents;
• examine defence witnesses;
• rely upon other legally admissible evidence; and
• present arguments based upon the evidence and circumstances of the case.

Written Statement by the Accused

The accused may also submit a written statement explaining the circumstances of the case or setting out the defence.

The Court is required to take such a written statement into consideration.

Summoning Defence Witnesses

If the accused applies for the issue of any process for compelling the attendance of a witness or the production of any document or thing, the Judge shall issue such process unless the Judge considers that the application should be refused for reasons to be recorded.

This ensures that the accused has a meaningful opportunity to present their defence.

Example

Suppose A is being tried before the Court of Session.

The prosecution produces its witnesses and documents. After considering the prosecution evidence, the Court does not acquit A under Section 255.

The Court then calls upon A to enter upon the defence.

A may:

• produce defence witnesses;
• produce documents;
• submit a written statement; and
• seek the attendance of witnesses or production of relevant documents through the Court.

The Court then considers the defence evidence along with the prosecution evidence.

Right to Present Defence Evidence

The defence stage is an important component of a fair trial.

The accused is not required merely to respond verbally to the prosecution’s allegations. Where appropriate, the accused may produce evidence supporting the defence.

However, the accused is not required to prove innocence in the same manner that the prosecution is required to prove guilt, subject to situations where the law places a particular burden upon the accused.

Relationship with Section 255

Section 255 — Acquittal

If there is no evidence that the accused committed the offence, the Court acquits the accused.

Section 256 — Entering Upon Defence

If the accused is not acquitted under Section 255, the accused is called upon to enter upon their defence.

Therefore:

Section 255 → No evidence against accused → Acquittal

Section 256 → No acquittal → Accused enters defence

Prosecution Evidence vs Defence Evidence

Prosecution Evidence	Defence Evidence
Presented by prosecution	Presented by accused
Attempts to establish guilt	Supports the defence
Comes first	Follows prosecution evidence
Witnesses may be cross-examined by defence	Defence witnesses may be cross-examined by prosecution
Forms the basis of prosecution case	Allows accused to answer and challenge prosecution case

Importance of Section 256

Section 256 is important because a criminal trial must provide an accused with a genuine opportunity to defend themselves.

It enables the accused to:

• challenge the prosecution’s version;
• produce supporting evidence;
• call relevant witnesses;
• place documents before the Court; and
• explain the defence case.

The Court must consider the defence along with the prosecution evidence before reaching its final decision.

BNSS and CrPC

Section 256 of the BNSS corresponds to Section 233 of the Code of Criminal Procedure, 1973.

The provision continues the principle that after the prosecution case has been considered and the accused has not been acquitted, the accused is entitled to enter upon their defence and present relevant evidence.

Common Confusions

Is the accused automatically required to produce defence evidence?

No.

The accused has the opportunity to present a defence. The accused is not required to prove their innocence merely because the prosecution has presented evidence.

Can the accused call witnesses?

Yes.

The accused may seek the attendance of defence witnesses through the Court in accordance with the provision.

Can the accused produce documents?

Yes.

Relevant documents and other material may be produced in support of the defence.

Can the accused submit a written statement?

Yes.

A written statement submitted by the accused is taken into consideration by the Court.

Does entering upon defence mean the accused is presumed guilty?

No.

The accused continues to receive the protections applicable to a criminal trial. Entering upon defence simply marks the stage at which the accused is given an opportunity to present their case.

Topic at a Glance

• BNSS Section: 256
• Subject: Entering upon defence
• Applicable Court: Court of Session
• Stage: After prosecution evidence and non-acquittal under Section 255
• Who enters defence: Accused
• Defence may include: Witnesses, documents and other evidence
• Written statement: May be submitted by accused
• Witness process: May be sought for defence witnesses
• Related provision: Section 255
• Corresponding CrPC provision: Section 233
• Nature: Defence stage of Sessions trial

Quick Revision

• Section 256 deals with entering upon defence.
• It applies when the accused is not acquitted under Section 255.
• The accused is called upon to present their defence.
• The accused may produce witnesses, documents and other evidence.
• The accused may submit a written statement, which the Court considers.
• The accused may seek process for securing defence witnesses or production of documents.
• Section 256 ensures the accused gets a fair opportunity to defend the case.
• Section 256 BNSS corresponds to Section 233 CrPC.

ALSO READ: Section 255 – Acquittal

Conclusion

Section 256 of the BNSS marks the defence stage of a Sessions trial. When the accused is not acquitted after the prosecution case, the Court calls upon the accused to enter upon their defence. The accused may present witnesses, documents and other evidence and may submit a written statement. This provision ensures that the accused receives a meaningful opportunity to answer the prosecution’s case before the Court reaches its final decision.