Section 319 of BNSS, 2023 — When Attendance of Witness May Be Dispensed With and Commission Issued

Introduction

Section 319 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with situations where the personal attendance of a witness may be dispensed with and the Court may issue a commission for examining that witness.

The provision is particularly useful when a witness cannot conveniently attend the Court because of circumstances such as illness, infirmity, or other reasons recognised by law.

Statutory Basis

Section 319 empowers a Court to issue a commission for the examination of a witness in circumstances where the Court considers it necessary to do so.

The Court may dispense with the attendance of the witness and direct that the witness’s evidence be taken through a commission.

When Can a Commission Be Issued?

The Court may issue a commission where the attendance of a witness is considered necessary but the witness cannot conveniently be required to appear before the Court.

The provision therefore provides an alternative to requiring the witness to physically attend the Court.

The Court considers the circumstances of the witness and the requirements of justice before issuing the commission.

Witness Who Is Sick or Infirm

One important situation covered by the provision is where a witness is too ill or infirm to attend the Court.

If the Court is satisfied that the witness cannot conveniently attend because of illness or infirmity, it may issue a commission for the examination of that witness.

This prevents the inability of a witness to travel to Court from unnecessarily preventing their evidence from being recorded.

Purpose of a Commission

A commission allows the witness to give evidence without necessarily appearing physically before the Court that is conducting the case.

The evidence is taken by the person authorised under the commission and is subsequently dealt with as part of the judicial proceedings.

The procedure therefore balances:

• the need to obtain relevant evidence; and
• the practical difficulty faced by the witness in attending Court.

Who May Issue the Commission?

The Court before which the proceeding is pending may issue the commission in accordance with Section 319.

The Court determines whether the circumstances justify dispensing with the witness’s personal attendance.

Examination Through Commission

When a commission is issued, the witness is examined in accordance with the procedure prescribed for examination on commission.

The evidence obtained through the commission becomes part of the record of the case.

The commission procedure therefore enables the Court to obtain evidence while avoiding unnecessary hardship to the witness.

Connection with Prisoners

Section 319 is also important in relation to prisoners who are required to give evidence.

Section 306 BNSS specifically recognises the power of the Court to issue a commission for the examination of a person confined or detained in prison as a witness.

Thus, Section 319 provides the general statutory mechanism for examination on commission, while Section 306 specifically deals with its application to prisoners.

Purpose of Section 319

The provision serves several important purposes:

• avoids unnecessary physical attendance of witnesses;
• facilitates examination of witnesses who cannot conveniently attend Court;
• prevents illness or infirmity from obstructing the recording of evidence;
• reduces hardship to witnesses;
• assists the Court in obtaining necessary evidence; and
• promotes efficient administration of criminal justice.

Example

Suppose an important witness in a criminal case is seriously ill and is unable to travel to the Court.

The Court may, where the statutory requirements are satisfied, dispense with the witness’s personal attendance and issue a commission for examination of the witness.

The witness can then be examined pursuant to the commission, and the evidence can be incorporated into the record of the proceedings.

Important Distinction

Summoning a Witness vs Commission

Ordinarily, a witness may be summoned to appear before the Court and give evidence.

Section 319 provides an alternative where personal attendance is unnecessary or impracticable.

Thus:

Ordinary procedure: Witness appears before Court.

Commission procedure: Witness is examined through a commission without requiring personal attendance before the Court.

Safeguard Against Unnecessary Hardship

The provision recognises that requiring every witness to personally attend Court may sometimes cause unnecessary hardship.

For example, a witness may be:

• seriously ill;
• physically infirm;
• unable to travel conveniently; or
• otherwise situated in circumstances where personal attendance should be dispensed with.

The commission mechanism allows the Court to obtain the evidence while taking such circumstances into account.

Relationship with Section 306

Section 306 provides that the provisions relating to prisoners do not affect the Court’s power to issue a commission under Section 319 for examining a person confined or detained in prison as a witness.

Therefore:

• Section 306: Specifically addresses examination of a prisoner through commission.
• Section 319: Provides the broader power concerning dispensing with attendance of witnesses and issuing commissions.

BNSS and CrPC

Section 319 BNSS corresponds to Section 284 of the Code of Criminal Procedure, 1973.

The basic principle of allowing a Court to dispense with a witness’s attendance and issue a commission for examination has been substantially retained.

Important Points

• Section 319: When attendance of witness may be dispensed with and commission issued.
• It provides an alternative to requiring personal attendance of a witness.
• A commission may be issued where the circumstances justify examination without personal attendance.
• Illness or infirmity may be relevant grounds for dispensing with attendance.
• The evidence is obtained through the commission.
• Section 306 specifically connects the commission procedure with prisoners.
• The provision helps reduce hardship to witnesses.
• Section 319 corresponds to Section 284 CrPC.

Quick Revision

• Section: 319, BNSS, 2023
• Subject: Dispensing with attendance of witness and issuing commission
• Authority: Court before which the proceeding is pending
• Main mechanism: Examination of witness through commission
• Important ground: Witness unable to conveniently attend, including due to illness or infirmity
• Purpose: Obtain necessary evidence while avoiding unnecessary hardship
• Related provision: Section 306 BNSS
• Corresponding CrPC provision: Section 284

ALSO READ: Section 317 – Interpreter to be bound to interpret truthfully

Conclusion

Section 319 BNSS provides a practical mechanism for obtaining the evidence of witnesses whose personal attendance before the Court may be difficult or unnecessary. By permitting the Court to dispense with attendance and issue a commission, the provision balances the need to secure relevant evidence with the need to avoid undue hardship to witnesses.