Introduction
Section 322 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the right of the parties to examine witnesses when a commission has been issued for their examination.
The provision ensures that examination through a commission does not take away the procedural rights of the parties to participate in the examination of the witness.
Statutory Basis
Where a commission is issued for the examination of a witness, the parties to the proceeding may examine, cross-examine and re-examine the witness, subject to the provisions governing the commission.
This preserves the ordinary structure of witness examination even when the witness is examined away from the Court conducting the main proceeding.
Right to Examine the Witness
The party who has called the witness may conduct the examination-in-chief.
The purpose of examination-in-chief is to place the relevant testimony of the witness before the Court through the commission.
The opposing party is then entitled to cross-examine the witness.
Right to Cross-Examine
Cross-examination is an important safeguard in criminal proceedings.
Section 322 ensures that a party does not lose the opportunity to challenge the testimony of a witness merely because the witness is being examined through a commission.
Through cross-examination, the opposing party may test matters such as:
- accuracy of the witness’s testimony;
- consistency of the witness’s statements;
- credibility of the witness;
- circumstances surrounding the evidence; and
- contradictions or weaknesses in the testimony.
Right to Re-Examine
After cross-examination, the party who called the witness may, where permitted, conduct re-examination.
Re-examination may be used to clarify matters arising during cross-examination.
Thus, the normal sequence of witness examination is preserved:
Examination-in-chief → Cross-examination → Re-examination
Application to Commission Proceedings
The provision is important because a witness examined through a commission may be located far away from the Court where the main case is pending.
The commission procedure changes where and how the evidence is recorded, but it does not eliminate the parties’ basic opportunity to participate in the examination of the witness.
Example
Suppose an important witness is residing in another State and the Court issues a commission for recording the witness’s evidence.
The witness is examined before the authority executing the commission.
The party calling the witness conducts the examination-in-chief. The opposing party is then allowed to cross-examine the witness, followed by re-examination where appropriate.
The recorded evidence is subsequently returned to the original Court.
Purpose of Section 322
The provision aims to:
- protect the right of parties to examine witnesses;
- preserve the right of cross-examination;
- ensure fairness in commission proceedings;
- prevent prejudice caused by examination of witnesses outside the trial Court; and
- maintain the reliability of evidence recorded through a commission.
Importance of Cross-Examination
Cross-examination is particularly important when evidence is being taken through a commission because the original Court may not personally observe the witness.
Allowing the parties to question the witness provides an important mechanism for testing the evidence before it becomes part of the record.
Relationship with Sections 319, 320 and 321
These provisions operate together:
Section 319
Deals with when the attendance of a witness may be dispensed with and a commission issued.
Section 320
Deals with to whom the commission is issued.
Section 321
Deals with execution of the commission.
Section 322
Ensures that the parties may examine the witness during execution of the commission.
Therefore, the sequence is:
Section 319 → Commission may be issued
Section 320 → Commission is issued to the appropriate authority
Section 321 → Commission is executed
Section 322 → Parties examine the witness
BNSS and CrPC
Section 322 BNSS corresponds to Section 287 of the Code of Criminal Procedure, 1973.
The basic principle that parties may examine witnesses whose evidence is being taken through a commission has been retained.
Important Points
- Section 322: Parties may examine witnesses.
- It applies to witnesses examined through a commission.
- The party calling the witness may conduct examination-in-chief.
- The opposing party has the right to cross-examine.
- Re-examination may follow where appropriate.
- The provision preserves procedural fairness during commission proceedings.
- It ensures that examination through a commission does not eliminate the parties’ opportunity to test the evidence.
- Section 322 corresponds to Section 287 CrPC.
Quick Revision
- Section: 322, BNSS, 2023
- Subject: Parties may examine witnesses
- Context: Examination of witnesses through commission
- Main right: Parties can examine the witness
- Sequence: Examination-in-chief → Cross-examination → Re-examination
- Purpose: Preserve fairness and right of cross-examination
- Related sections: Sections 319, 320 and 321
- Corresponding CrPC provision: Section 287
ALSO READ: Section 321 – Execution of commissions
Conclusion
Section 322 BNSS safeguards the right of parties to examine witnesses whose evidence is being recorded through a commission. It preserves the opportunity for examination-in-chief, cross-examination and re-examination, ensuring that the use of a commission does not compromise the fairness of the criminal proceeding.
