Introduction
Section 266 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the evidence for the defence in a warrant-case instituted on a police report before a Magistrate.
This stage follows the completion of the prosecution evidence and the subsequent proceedings in which the accused gets an opportunity to present their defence.
The provision ensures that the accused is given a fair opportunity to place their own evidence before the Court and challenge the prosecution’s case.
Meaning of Section 266
Section 266 provides the procedure relating to the defence evidence after the prosecution has completed its evidence and the accused has been given the opportunity to explain the circumstances appearing against them.
The accused may:
- produce evidence in their defence;
- call defence witnesses;
- produce relevant documents;
- rely upon other legally admissible material; and
- request the Court to issue process for compelling the attendance of a witness or production of a document or thing.
The Court may issue such process unless it considers that the application has been made for the purpose of vexation, delay or defeating the ends of justice.
Object and Purpose of Section 266
The main purposes of Section 266 are:
- To provide the accused a fair opportunity to present a defence.
- To allow the accused to produce witnesses and documents supporting their case.
- To ensure that the trial is not based solely on prosecution evidence.
- To allow the defence to challenge the prosecution’s version through its own evidence.
- To protect the accused’s right to a fair trial.
- To enable the Court to consider the defence case before reaching a final decision.
When Does Section 266 Apply?
Section 266 comes into operation after the prosecution has presented its evidence and the case has reached the defence stage.
The broad sequence is:
Section 263 → Framing of charge
↓
Section 264 → Plea of guilty
↓
Section 265 → Prosecution evidence
↓
Examination of accused
↓
Section 266 → Defence evidence
Thus, Section 266 represents the stage at which the accused is given an opportunity to present evidence in support of the defence.
Right of the Accused to Produce Evidence
The accused has the right to present evidence in their defence.
This may include:
- oral evidence;
- documentary evidence;
- expert evidence where legally permissible;
- material objects; and
- other admissible evidence.
The defence evidence may be used to:
- contradict the prosecution case;
- establish a defence;
- explain circumstances;
- challenge the prosecution’s version; or
- create reasonable doubt regarding the prosecution’s allegations.
Defence Witnesses
The accused may call witnesses to support the defence.
For example, a defence witness may be able to establish:
- that the accused was somewhere else at the relevant time;
- that the prosecution witness has given an incorrect version;
- that a particular event occurred differently from the prosecution’s version; or
- facts supporting a lawful defence.
Defence witnesses are subject to the applicable rules governing examination and cross-examination.
Production of Documents
The defence may also rely upon relevant documents.
Examples may include:
- records;
- correspondence;
- financial documents;
- official documents;
- electronic records; or
- other legally admissible material.
The document must be relevant and admissible according to law.
Court’s Power to Issue Process
An important feature of Section 266 is the Court’s power concerning the attendance of defence witnesses and production of documents or things.
The accused may request the Court to issue process for:
- compelling a person to attend as a witness; or
- compelling the production of a document or other thing.
This is important because the accused may not always have the ability to independently secure the attendance of a particular witness or obtain a particular document.
Protection Against Vexatious Applications
The power to issue process is not unlimited.
The Court may refuse an application where it considers that the request has been made for the purpose of:
- vexation;
- delay; or
- defeating the ends of justice.
This prevents the defence evidence stage from being misused to unnecessarily prolong the proceedings.
Therefore:
Genuine defence requirement → Process may be issued
Vexatious or delaying request → Court may refuse
Meaning of Vexation
A vexatious application is one that is made primarily to harass, trouble or unnecessarily burden another person or to obstruct the proper progress of the case.
The provision therefore seeks to balance:
Right of accused to present defence
with
Need for an efficient and fair trial
Meaning of Delay
The defence cannot use repeated or unnecessary requests for witnesses or documents merely to postpone the trial.
If the Court finds that an application is designed primarily to delay proceedings rather than genuinely assist the defence, the Court may refuse the request.
This does not mean that legitimate defence applications can be rejected merely because they take time.
The Court must distinguish between:
- a genuine requirement for defence evidence; and
- an attempt to unnecessarily delay the proceedings.
Defence Evidence and Fair Trial
The opportunity to present defence evidence is an important component of a fair criminal trial.
The prosecution is required to establish its case, while the accused must have a meaningful opportunity to defend themselves.
Section 266 ensures that the accused is not confined merely to cross-examining prosecution witnesses but may, where appropriate, actively present their own evidence.
Prosecution Evidence vs Defence Evidence
| Prosecution Evidence | Defence Evidence |
|---|---|
| Presented by prosecution | Presented by accused |
| Intended to establish the charge | Intended to support the defence |
| Governed by Section 265 | Governed by Section 266 |
| Prosecution witnesses are examined | Defence witnesses may be examined |
| Accused gets opportunity to cross-examine | Prosecution gets opportunity to test defence evidence |
| Supports prosecution case | Supports accused’s defence |
Section 265 and Section 266
These two provisions should be studied together.
Section 265 — Evidence for Prosecution
The prosecution presents its witnesses and other evidence to establish the charge.
Section 266 — Evidence for Defence
The accused gets an opportunity to present witnesses, documents and other evidence in support of the defence.
Easy Formula
Section 265 → Prosecution presents evidence
Section 266 → Defence presents evidence
Example
Suppose A is accused of committing an offence.
The prosecution produces several witnesses under Section 265.
After the prosecution evidence is completed, A is given the opportunity to present a defence.
A claims that they were in another city when the offence occurred.
A wishes to produce a person who can establish their presence in that city.
A may seek to have that witness examined as a defence witness.
If the Court considers the request genuine and relevant, the witness may be summoned and examined according to law.
Another Example
Suppose B is accused of an offence based on a particular document relied upon by the prosecution.
B claims that another official document establishes a different factual position.
B seeks production of that document through the appropriate process.
If the request is genuine and relevant, the Court may facilitate its production.
However, if B repeatedly seeks irrelevant documents solely to delay the trial, the Court may refuse such requests.
Examination of Defence Witnesses
Where defence witnesses are produced, they are examined according to the applicable rules of evidence and criminal procedure.
The basic structure is:
Examination-in-chief
↓
Cross-examination
↓
Re-examination, where applicable
The prosecution is therefore given an opportunity to test the evidence produced by the defence.
Defence Evidence Is Not Always Compulsory
The accused is not necessarily required to produce defence evidence in every criminal case.
The accused may choose to rely upon:
- weaknesses in the prosecution evidence;
- cross-examination of prosecution witnesses;
- contradictions;
- inconsistencies;
- lack of proof; or
- other legal grounds.
Therefore, the existence of Section 266 does not mean that the accused must always call witnesses.
Important Principle
Right to present defence evidence ≠ compulsory duty to produce defence evidence
Accused May Rely on Prosecution’s Weaknesses
A defence does not necessarily have to prove an independent alternative story.
If the prosecution fails to establish the required ingredients of the offence, the accused may rely upon that failure.
For example, if the prosecution’s witnesses are unreliable or the required evidence is missing, the accused may argue that the prosecution has failed to prove the case.
Thus, the accused can defend the case through:
Positive defence evidence
or
Failure of prosecution to prove its case
Burden of Proof
In a criminal case, the prosecution generally carries the primary burden of establishing the guilt of the accused.
The accused’s decision not to produce defence evidence does not automatically establish guilt.
The prosecution must still prove the charge according to the applicable standard of proof.
Section 266 gives the accused an opportunity to produce evidence but does not transfer the primary burden of proving the prosecution’s case onto the accused.
Court’s Role During Defence Evidence
The Court must ensure that the defence receives a fair opportunity to present its case.
At the same time, the Court must prevent the proceedings from being abused through:
- irrelevant applications;
- repeated requests;
- unnecessary adjournments;
- vexatious witness summons; or
- deliberate attempts to delay the trial.
The Court therefore has to balance fairness to the accused with efficient administration of justice.
Importance of Section 266
Section 266 is important because it ensures that criminal proceedings remain balanced.
Without an opportunity to present defence evidence, the accused would be placed in a disadvantaged position.
The provision therefore contributes to:
- fair trial;
- equality of procedural opportunity;
- effective defence;
- proper testing of evidence; and
- accurate determination of criminal liability.
Section 266 and Final Judgment
The defence evidence forms part of the material considered by the Court before delivering judgment.
After the prosecution and defence have completed their respective stages, the Court considers the entire case.
The Court may consider:
- prosecution evidence;
- defence evidence;
- admissions;
- contradictions;
- documents;
- arguments; and
- applicable law.
The Court then determines whether the prosecution has established the guilt of the accused.
Important Principle
The defence evidence stage is an opportunity for the accused to place their case before the Court.
However, the accused is not required to prove innocence in the same manner in which the prosecution must prove guilt.
The prosecution must establish the offence according to law, while the accused may rely upon the defence evidence, weaknesses in the prosecution case, or both.
Common Confusions
Does the accused have to produce defence witnesses?
No.
The accused may choose whether defence evidence is necessary.
Can the accused summon a witness through the Court?
Yes, where the requirements of the provision are satisfied.
Can the Court reject every request for a defence witness?
No.
The Court must consider the request. It may refuse a request where it is made for vexation, delay or defeating the ends of justice.
Is defence evidence mandatory?
No.
The accused may rely on the prosecution’s failure to prove the case.
Can defence evidence be cross-examined?
Yes.
Defence witnesses may be tested through cross-examination according to law.
Difference Between Defence Evidence and Defence Arguments
Defence Evidence
Actual evidence produced before the Court, such as:
- witnesses;
- documents;
- objects; and
- other admissible material.
Defence Arguments
The legal and factual submissions made by the defence after the evidence stage.
Therefore:
Evidence → Material placed before Court
Arguments → Submissions based on that material
Topic at a Glance
- BNSS Section: 266
- Subject: Evidence for defence
- Court: Magistrate
- Type of case: Warrant-case instituted on a police report
- Stage: After prosecution evidence and examination of accused
- Party presenting evidence: Accused/defence
- Evidence: Witnesses, documents and other legally admissible material
- Court’s power: May issue process for attendance of witnesses or production of documents/things
- Restriction: Process may be refused where application is for vexation, delay or defeating the ends of justice
- Purpose: Give accused a fair opportunity to present defence
- Related provision: Section 265
- Corresponding CrPC provision: Section 243
Quick Revision
- Section 266 deals with evidence for the defence.
- It follows the prosecution evidence stage.
- The accused may produce defence witnesses and documents.
- The accused may seek the Court’s assistance in securing attendance of witnesses or production of documents or things.
- The Court may refuse such requests where they are intended for vexation, delay or defeating the ends of justice.
- Defence evidence is not compulsory in every case.
- The prosecution continues to bear the primary burden of proving the charge.
- Defence witnesses may be examined and cross-examined according to law.
- Section 266 ensures the accused receives a meaningful opportunity to present their defence.
- Section 266 BNSS broadly corresponds to Section 243 CrPC.
One-Line Exam Answer
Section 266 BNSS provides for evidence for the defence, allowing the accused to produce defence evidence and seek process for compelling the attendance of witnesses or production of documents or things, subject to the Court’s power to refuse applications made for vexation, delay or defeating the ends of justice.
ALSO READ: Section 265 – Evidence for prosecution
Conclusion
Section 266 of the BNSS provides the accused with an important opportunity to present their defence after the prosecution has completed its evidence. The accused may produce witnesses, documents and other legally admissible material and may seek the Court’s assistance in securing relevant evidence. At the same time, the Court can prevent misuse of this procedure where an application is intended merely to cause vexation, delay the proceedings or defeat the ends of justice. The provision therefore balances the right of the accused to a fair opportunity of defence with the need for an efficient criminal trial.
