Section 309 of BNSS, 2023 — Record in Summons-Cases and Inquiries

Introduction

Section 309 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the recording of evidence in summons-cases and certain inquiries and proceedings.

It requires the Magistrate to make a memorandum of the substance of the evidence as the examination of each witness proceeds. The memorandum must be prepared in the language of the Court and must be signed by the Magistrate.

Statutory Basis

Section 309 applies to:

• all summons-cases tried before a Magistrate;
• inquiries under Sections 164 to 167; and
• proceedings under Section 491, except when they are conducted in the course of a trial.

In these proceedings, the Magistrate must record a memorandum of the substance of the evidence as each witness is examined.

Recording of Evidence

The provision does not require the Magistrate to reproduce the entire testimony of every witness word for word.

Instead, the Magistrate must prepare a memorandum of the substance of the evidence.

This memorandum is made as the examination of each witness proceeds, ensuring that the important substance of the testimony is recorded during the proceedings.

Language of the Memorandum

The memorandum must be made in the language of the Court.

This requirement is connected with the provisions dealing with the language of Courts and ensures consistency in the preparation of judicial records.

When the Magistrate Cannot Make the Memorandum Personally

Section 309 provides for a situation where the Magistrate is unable to make the memorandum himself.

In such a situation, the Magistrate must:

1. record the reason for the inability; and
2. cause the memorandum to be made either:
   • in writing; or
   • from the Magistrate’s dictation in open Court.

Thus, the Magistrate remains responsible for ensuring that the substance of the evidence is properly recorded.

Signature of the Magistrate

The memorandum must be signed by the Magistrate.

The signature authenticates the memorandum and makes it an official part of the judicial record.

The signed memorandum forms part of the record of the proceedings.

Purpose of Section 309

The provision serves several important purposes:

• preserves the substance of witness evidence;
• ensures that an official record is maintained;
• promotes accuracy in judicial proceedings;
• facilitates consideration of evidence at later stages; and
• provides a reliable record for appeal or revision.

Scope of Section 309

Section 309 applies specifically to the proceedings mentioned in the provision.

1. Summons-Cases

It applies to all summons-cases tried before a Magistrate.

2. Inquiries Under Sections 164 to 167

It applies to the inquiries specifically covered by Sections 164 to 167 BNSS.

3. Proceedings Under Section 491

It also applies to proceedings under Section 491 when they are conducted otherwise than in the course of a trial.

Procedure Under Section 309

The procedure can be understood as follows:

1. A summons-case or specified inquiry or proceeding is before a Magistrate.
2. A witness begins giving evidence.
3. As the examination proceeds, the Magistrate records a memorandum of the substance of the evidence.
4. The memorandum is prepared in the language of the Court.
5. If the Magistrate cannot personally prepare it, the reason for the inability is recorded.
6. The memorandum is prepared in writing or from the Magistrate’s dictation in open Court.
7. The Magistrate signs the memorandum.
8. The signed memorandum becomes part of the official record.

Example

Suppose a Magistrate is conducting a summons-case and a prosecution witness gives evidence.

As the witness is examined, the Magistrate records a memorandum containing the substance of the witness’s evidence.

After the memorandum is prepared, the Magistrate signs it, and it becomes part of the case record.

Important Distinction

Memorandum of Substance vs Full Verbatim Record

Section 309 requires a memorandum of the substance of the evidence.

Therefore, the provision does not require the Magistrate to reproduce every word spoken by the witness.

The important substance of the testimony is recorded as the examination proceeds.

BNSS and CrPC

Section 309 BNSS corresponds substantially to Section 274 of the Code of Criminal Procedure, 1973.

The basic principle has been retained: in summons-cases and specified inquiries, the Magistrate records a memorandum of the substance of each witness’s evidence, signs it, and makes it part of the record.

Important Points

• Section 309 deals with the recording of evidence in summons-cases and specified inquiries.
• The Magistrate records the evidence.
• A memorandum of the substance of the evidence is prepared.
• The memorandum is made as the examination of each witness proceeds.
• It is prepared in the language of the Court.
• If the Magistrate cannot personally prepare it, the reason must be recorded.
• The memorandum may then be made in writing or from the Magistrate’s dictation in open Court.
• The memorandum must be signed by the Magistrate.
• The signed memorandum forms part of the record of the proceedings.
• Section 309 corresponds substantially to Section 274 CrPC.

Quick Revision

• Section: 309, BNSS, 2023
• Subject: Record in summons-cases and inquiries
• Authority: Magistrate
• Main requirement: Memorandum of the substance of evidence
• When: As the examination of each witness proceeds
• Language: Language of the Court
• Authentication: Signature of the Magistrate
• Special situation: If the Magistrate cannot personally make the memorandum, the reason must be recorded
• Alternative method: Written memorandum or memorandum from dictation in open Court
• Legal effect: Forms part of the record
• Corresponding CrPC provision: Section 274

ALSO READ: Section 308 – Evidence to be taken in presence of accused

Conclusion

Section 309 BNSS provides a specific method for recording evidence in summons-cases and specified inquiries and proceedings. It requires the Magistrate to prepare and sign a memorandum containing the substance of each witness’s evidence. This ensures that an official record of the proceedings is maintained while keeping the recording process appropriate to the nature of these cases.