Section 308 of BNSS, 2023 — Evidence to Be Taken in Presence of Accused

Introduction

Section 308 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the requirement that evidence in criminal proceedings should ordinarily be taken in the presence of the accused.

The provision protects the accused’s right to be present when evidence is recorded against them and ensures that the accused gets an opportunity to hear and participate in the proceedings.

Statutory Basis

Section 308 provides that, except as otherwise expressly provided by the BNSS, all evidence taken under Chapters XVIII, XIX, XX and XXI shall be taken in the presence of the accused, or, when the accused’s personal attendance has been dispensed with, in the presence of the accused’s advocate.

The provision therefore establishes the general rule of presence of the accused during the recording of evidence.

General Rule

The basic principle under Section 308 is that evidence should be recorded in the presence of:

• the accused, or
• where the accused’s personal attendance has been dispensed with, the advocate representing the accused.

This ensures that the accused is not deprived of the opportunity to know and respond to the evidence being recorded during the proceedings.

When the Accused’s Personal Attendance Is Dispensed With

The provision recognises that there may be situations where the accused is not personally present in Court because their personal attendance has been lawfully dispensed with.

In such a case, the accused’s advocate must be present when the evidence is taken.

Thus, dispensing with personal attendance does not mean that evidence can automatically be recorded without any representation of the accused.

Purpose of Section 308

The provision serves several procedural purposes:

• protects the accused’s right to participate in the trial;
• promotes fairness in criminal proceedings;
• allows the accused or their advocate to hear the evidence being recorded;
• facilitates effective defence;
• supports the principles of natural justice and fair trial.

Scope of Section 308

Section 308 applies to evidence taken under the Chapters specifically mentioned in the provision.

However, the opening words “except as otherwise expressly provided by this Sanhita” are significant.

This means that the rule is subject to specific exceptions or alternative procedures expressly authorised elsewhere in the BNSS.

Therefore, Section 308 establishes the general rule but does not prevent the BNSS from providing for particular situations in which evidence may be recorded through a different procedure.

Presence of the Accused

The presence contemplated by Section 308 is connected with the recording of evidence during criminal proceedings.

The accused’s presence enables the accused to:

• hear the testimony of witnesses;
• understand the evidence being placed before the Court;
• instruct their advocate where necessary;
• participate effectively in the defence.

The provision therefore forms part of the procedural safeguards associated with a fair criminal trial.

Presence of the Advocate

Where the accused’s personal attendance has been dispensed with, the advocate of the accused represents the accused during the taking of evidence.

This ensures that the accused continues to have legal representation even though the accused is not physically present.

The advocate can participate in the proceedings in accordance with the procedural rights available to the defence.

Relationship with Fair Trial

Section 308 is closely connected with the principle of fair trial.

A criminal trial must ordinarily provide the accused with a meaningful opportunity to know and respond to the evidence relied upon against them.

Requiring evidence to be taken in the presence of the accused, or the accused’s advocate where personal attendance has been dispensed with, strengthens this procedural safeguard.

The provision should therefore be understood as part of the broader framework protecting the accused’s participation in criminal proceedings.

Important Limitation

Section 308 is not an absolute rule without exceptions.

The words “except as otherwise expressly provided by this Sanhita” mean that another provision of the BNSS may expressly authorise evidence to be taken through a different procedure.

Therefore, the section must always be read together with the specific provisions governing the particular proceeding.

Example

Suppose a criminal trial is being conducted against an accused person and a prosecution witness is called to give evidence.

Ordinarily, the witness’s evidence must be taken in the presence of the accused.

If the Court has lawfully dispensed with the accused’s personal attendance, the evidence may instead be taken in the presence of the accused’s advocate.

Important Distinctions

Presence of Accused and Personal Attendance of Accused

The requirement that evidence be taken in the presence of the accused does not necessarily mean that the accused must personally appear in every situation.

Where personal attendance has been lawfully dispensed with, the accused’s advocate may be present during the recording of evidence.

Evidence and Other Proceedings

Section 308 specifically concerns the taking of evidence.

It should not be treated as a general rule governing every stage or every type of proceeding in a criminal case.

BNSS and CrPC

Section 308 BNSS corresponds to Section 273 of the Code of Criminal Procedure, 1973.

The basic principle has been substantially retained: evidence is ordinarily to be taken in the presence of the accused, or, where personal attendance has been dispensed with, in the presence of the accused’s advocate.

The provision therefore continues the established procedural safeguard under the earlier criminal procedure framework.

Important BNSS Provisions

• Section 307: Language of Courts.
• Section 308: Evidence to be taken in the presence of accused.
• Section 309: Record in certain cases.
• Section 310: Interpretation of evidence to accused or advocate.
• Section 311: Language of record of evidence.
• Section 312: Interpretation of evidence to accused or advocate.

These provisions collectively regulate important procedural aspects relating to the recording, language and interpretation of evidence in criminal proceedings.

Quick Revision

• Section: 308, BNSS, 2023
• Subject: Evidence to be taken in presence of accused
• General rule: Evidence is taken in the presence of the accused.
• Alternative: If personal attendance is dispensed with, evidence is taken in the presence of the accused’s advocate.
• Exception: The rule is subject to provisions where the BNSS expressly provides otherwise.
• Purpose: Protects participation of the accused and supports fair trial.
• Corresponding CrPC provision: Section 273
• Key principle: Presence of accused or, where attendance is dispensed with, presence of advocate during taking of evidence.

ALSO READ: Section 307 – Language of Courts

Conclusion

Section 308 BNSS establishes the general procedural safeguard that evidence should be taken in the presence of the accused. Where the accused’s personal attendance has been dispensed with, the accused’s advocate must ordinarily be present. The provision ensures meaningful participation of the defence while allowing the BNSS to create specific exceptions where expressly provided.