Section 326 – Deposition of Medical Witness

Introduction

Section 326 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the use of the deposition of a civil surgeon or other medical witness in criminal proceedings.

The provision permits such a deposition to be used as evidence even when the medical witness is not called before the court, provided that the deposition was taken and attested by a Magistrate in the presence of the accused, or was taken on commission under the relevant provisions of the BNSS.

The provision is intended to facilitate the use of medical evidence without requiring the physical appearance of the medical witness in every proceeding.

Meaning of Deposition of Medical Witness

A deposition of a medical witness is the evidence given by a civil surgeon or other medical witness concerning matters within the witness’s medical or professional knowledge.

Section 326 permits such deposition to be used in an inquiry, trial or other proceeding when it has been recorded in the manner prescribed by the section.

The provision is particularly relevant to medical evidence concerning injuries, post-mortem examinations and other matters arising from the examination or treatment of a person.

Statutory Basis

The relevant provision is:

Section 326, BNSS, 2023 – Deposition of medical witness

The section contains two important rules:

• A qualifying deposition of a medical witness may be given in evidence even if the medical witness is not called as a witness.
• The court may summon and examine the medical witness, and it must do so when either the prosecution or the accused applies for such examination.

Essential Elements

1. The Witness Must Be a Civil Surgeon or Other Medical Witness

Section 326 applies to the deposition of a civil surgeon or other medical witness.

The provision is therefore concerned specifically with medical testimony and does not apply generally to every witness.

2. Deposition Taken and Attested by a Magistrate

The deposition may be used when it has been taken and attested by a Magistrate in the presence of the accused.

The presence of the accused at the recording of the deposition provides an important procedural safeguard.

3. Deposition Taken on Commission

The provision also applies where the deposition has been taken on commission under the relevant chapter of the BNSS.

This connects Section 326 with the provisions governing commissions for the examination of witnesses.

4. Deposition May Be Used Without Calling the Witness

A qualifying deposition may be given in evidence even though the medical witness is not called as a witness in the inquiry, trial or other proceeding.

Thus, the physical appearance of the medical witness is not an absolute requirement in every case.

5. Power of the Court to Summon the Medical Witness

The court may, if it considers it appropriate, summon and examine the medical witness concerning the subject matter of the deposition.

6. Mandatory Examination on Application

The court must summon and examine the medical witness when an application for such examination is made by the prosecution or by the accused.

Therefore, the section creates a distinction between the court’s discretionary power to summon the witness on its own and its obligation to do so upon an application by either party.

Procedure

The operation of Section 326 can be understood in the following manner:

1. A civil surgeon or other medical witness gives a deposition.
2. The deposition is either taken and attested by a Magistrate in the presence of the accused or taken on commission under the relevant BNSS provisions.
3. The deposition may subsequently be given in evidence in an inquiry, trial or other proceeding.
4. The medical witness need not necessarily be called before the court.
5. If the court considers examination necessary, it may summon the medical witness.
6. If the prosecution or accused applies for examination of the medical witness, the court is required to summon and examine the witness concerning the subject matter of the deposition.

Rights of the Accused

Section 326 contains an important procedural safeguard for the accused.

Where the accused applies for the examination of the medical witness concerning the subject matter of the deposition, the court is required to summon and examine the witness.

This enables the accused to seek examination of the medical witness instead of allowing the deposition to remain the only form of testimony on the relevant medical matter.

Rights of the Prosecution

The prosecution also has the right to apply for the medical witness to be summoned and examined.

The court is required to examine the deponent when such an application is made.

Powers of the Court

The court has two distinct powers under Section 326:

Discretionary Power

The court may summon and examine the medical witness if it considers such examination appropriate.

Mandatory Duty on Application

When the prosecution or accused applies for examination of the medical witness, the court shall summon and examine the deponent regarding the subject matter of the deposition.

The distinction between “may” and “shall” is significant because it separates the court’s own discretion from the statutory right arising upon an application by either party.

Scope of Section 326

Section 326 applies to:

• inquiries;
• trials; and
• other proceedings under the BNSS.

Its scope is therefore not confined exclusively to a completed criminal trial.

The provision specifically concerns depositions of civil surgeons and other medical witnesses that have been recorded through the prescribed procedure.

Relationship with Commission Proceedings

Section 326 is closely connected with the BNSS provisions dealing with commissions for examination of witnesses.

Where a medical witness’s deposition is taken on commission under the relevant chapter, Section 326 permits that deposition to be used in the criminal proceeding even though the medical witness is not subsequently called as a witness.

This ensures continuity between the procedure for taking evidence on commission and its subsequent use in the main proceeding.

Important Distinctions

Medical Deposition and Ordinary Medical Report

A medical deposition under Section 326 is evidence given by a medical witness and recorded in the manner contemplated by the section.

A medical report is a document prepared in the course of medical examination or investigation. The evidentiary treatment of a medical report depends upon the applicable procedural and evidentiary provisions.

Therefore, a medical report and a deposition under Section 326 should not automatically be treated as identical.

Deposition and Physical Appearance of the Witness

Ordinarily, evidence is presented through witnesses who appear before the court. Section 326 creates a specific procedural mechanism under which a qualifying deposition of a medical witness may be used even when the deponent is not called as a witness.

The section nevertheless preserves the possibility of examination of the medical witness.

BNSS and CrPC

Section 326 of the BNSS corresponds to Section 291 of the Code of Criminal Procedure, 1973.

The provision substantially continues the earlier CrPC framework concerning the deposition of medical witnesses.

There is no major substantive change in the mechanism. The principal change is the renumbering of the provision from Section 291 of the CrPC to Section 326 of the BNSS and the replacement of references to the Code with references to the Sanhita.

Relationship with BSA

The BNSS governs criminal procedure, whereas the Bharatiya Sakshya Adhiniyam, 2023 governs the law of evidence.

Section 326 determines when a qualifying medical deposition may be used in a criminal proceeding. Questions concerning the evidentiary treatment, relevance and admissibility of particular material must also be considered in accordance with the applicable provisions of the BSA.

The two statutes therefore operate together: BNSS provides the procedural framework, while BSA governs the law of evidence.

Example

Suppose a doctor examined an injured person in a criminal case and subsequently gave a deposition before a Magistrate in the presence of the accused.

If the deposition satisfies the requirements of Section 326, it may be given in evidence during the trial even if the doctor is not called before the trial court.

If the accused applies for the doctor’s examination concerning the subject matter of the deposition, the court is required to summon and examine the doctor.

Topic at a Glance

• Topic: Deposition of Medical Witness
• BNSS Section: Section 326
• Relevant Witness: Civil surgeon or other medical witness
• First mode: Deposition taken and attested by a Magistrate in the presence of the accused
• Second mode: Deposition taken on commission under the relevant chapter
• Effect: Deposition may be given in evidence even if the medical witness is not called
• Court’s power: Court may summon and examine the deponent
• Application by prosecution or accused: Court shall summon and examine the deponent
• CrPC Equivalent: Section 291, CrPC, 1973

Quick Revision

• Section 326 BNSS deals with the deposition of medical witnesses.
• It applies to a civil surgeon or other medical witness.
• The deposition must have been taken and attested by a Magistrate in the presence of the accused, or taken on commission under the relevant chapter.
• Such deposition may be used in an inquiry, trial or other proceeding under the BNSS.
• The medical witness need not necessarily be called as a witness.
• The court may summon the medical witness on its own if it considers it appropriate.
• The court shall summon and examine the medical witness when the prosecution or accused applies for such examination.
• Section 326 corresponds to Section 291 of the CrPC, 1973.
• The provision substantially continues the earlier CrPC position.

ALSO READ: Section 325 – Execution of foreign commissions

Conclusion

Section 326 BNSS provides a practical mechanism for using the deposition of a civil surgeon or other medical witness without requiring the witness to be physically called in every proceeding. At the same time, it preserves the right of the prosecution and the accused to seek examination of the medical witness concerning the subject matter of the deposition. The provision therefore balances procedural convenience with the opportunity for examination of medical evidence