Section 209 of BNSS, 2023 — Receipt of Evidence Relating to Offences Committed Outside India

Introduction

Section 209 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure for receiving evidence relating to an offence committed outside India.

The provision applies where an Indian Court is dealing with an offence committed outside India under Section 208 and evidence relating to that offence is required from a foreign country.

It provides a mechanism through which evidence recorded outside India can be received and used in the proceedings before the Indian Court.

Statutory Provision

Section 209 provides that where, in the course of an inquiry or trial of an offence committed outside India under Section 208, the Central Government has, by notification, directed that evidence of a person or document produced before a diplomatic or consular representative of India in the country where the evidence is to be collected shall be received, the Court shall receive such evidence.

The provision therefore facilitates the collection and reception of evidence located outside India.

Meaning of Section 209

Section 209 is essentially an evidentiary and procedural provision.

Section 208 establishes when certain offences committed outside India can be dealt with in India. Section 209 complements Section 208 by providing a mechanism for obtaining evidence that is located outside Indian territory.

The evidence may relate to:

• a person who is required to give evidence; or
• a document that is required to be produced.

The evidence is recorded before the appropriate diplomatic or consular representative of India in the foreign country concerned, subject to the Central Government’s notification.

Object and Purpose

The primary purposes of Section 209 are:

• to facilitate the collection of evidence located outside India;
• to enable Indian Courts to receive evidence recorded abroad;
• to provide a formal mechanism for dealing with foreign-based witnesses and documents;
• to support criminal proceedings in India concerning offences committed outside India.

The provision recognises that an Indian Court may require evidence from a foreign country but cannot ordinarily exercise its procedural powers directly within that foreign territory.

Essential Elements

1. An Inquiry or Trial Must Be Pending

Section 209 operates in connection with an inquiry or trial.

The provision is therefore linked to an existing criminal proceeding before an Indian Court.

2. The Proceeding Must Concern an Offence Committed Outside India

The provision operates in relation to proceedings concerning an offence committed outside India under the framework of Section 208.

3. Evidence Must Be Required from Outside India

The provision concerns evidence that is located or required to be obtained in a foreign country.

Such evidence may relate to a witness or a document.

4. Central Government Notification

The Central Government must have issued a notification directing that the specified evidence may be received.

The notification is an important statutory condition governing the receipt of such evidence.

5. Evidence Before Diplomatic or Consular Representative

The evidence is to be produced before an appropriate diplomatic or consular representative of India in the country where the evidence is to be collected.

This provides an official channel for recording evidence outside India.

Evidence of a Person

Where a person located outside India possesses relevant information about the offence, evidence may be recorded before the appropriate Indian diplomatic or consular representative in the foreign country, subject to the statutory requirements.

The Indian Court may then receive that evidence in the proceedings.

Evidence Relating to Documents

Section 209 also covers situations where relevant documentary evidence is located outside India.

A document required for the proceedings may be produced through the mechanism contemplated by the provision, allowing the Indian Court to receive the evidence in accordance with the statutory framework.

Relationship with Section 208

Sections 208 and 209 should be read together.

Section 208

Section 208 establishes the circumstances in which an offence committed outside India may be dealt with in India.

Section 209

Section 209 provides a mechanism for receiving evidence relating to such proceedings when the evidence is located outside India.

Thus:

Section 208 → Jurisdiction over certain offences committed outside India

Section 209 → Receipt of evidence relating to those offences

Procedure

The operation of Section 209 can be understood in the following manner:

1. An offence has been committed outside India.
2. The offence falls within the circumstances covered by Section 208.
3. An inquiry or trial is being conducted in India.
4. Relevant evidence is located outside India.
5. The Central Government has issued the required notification regarding receipt of such evidence.
6. The evidence is produced before the relevant diplomatic or consular representative of India in the foreign country.
7. The Indian Court receives the evidence in accordance with Section 209.

Example

An Indian citizen commits an offence while abroad and is subsequently proceeded against in India under Section 208.

A material witness remains in the foreign country and cannot conveniently appear before the Indian Court.

Where the statutory requirements of Section 209 are satisfied, the witness’s evidence may be recorded before the appropriate Indian diplomatic or consular representative and the evidence may thereafter be received by the Indian Court.

Important Distinctions

Section 209 and Section 208

Section 208 is primarily concerned with jurisdiction over offences committed outside India.

Section 209 is concerned with receiving evidence relating to those offences.

Section 209 and Ordinary Evidence

Section 209 does not create a new category of substantive evidence.

It provides a procedural mechanism for receiving evidence that has been recorded outside India through the statutory mechanism.

Section 209 and Foreign Courts

Section 209 does not mean that an Indian Court directly exercises judicial powers over a foreign Court.

Instead, it provides for evidence to be produced before an Indian diplomatic or consular representative in the foreign country in accordance with the statutory framework.

BNSS and CrPC

Section 209 of BNSS broadly corresponds to Section 189 of the Code of Criminal Procedure, 1973.

The underlying principle has been retained: where evidence relating to an offence committed outside India is required, the law provides a mechanism for receiving evidence recorded through the appropriate diplomatic or consular channel.

The provision therefore forms part of the BNSS framework concerning offences committed outside India.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) determines the substantive criminal offence.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework for dealing with the offence and receiving evidence.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the broader law of evidence applicable to the proceedings.

Section 209 therefore operates at the intersection of criminal jurisdiction and evidence located outside India.

Important BNSS Provisions

• Section 197: Ordinary place of inquiry and trial.
• Section 198: Place of inquiry or trial.
• Section 199: Offence triable where act is done or consequence ensues.
• Section 200: Offence by reason of relation to other offence.
• Section 201: Place of trial in case of certain offences.
• Section 202: Offences committed by means of electronic communications, letters, etc.
• Section 203: Offence committed on journey or voyage.
• Section 204: Place of trial for offences triable together.
• Section 205: Power to order cases to be tried in different Sessions divisions.
• Section 206: High Court to decide, in case of doubt, district where inquiry or trial shall take place.
• Section 207: Power to issue summons or warrant for offence committed beyond local jurisdiction.
• Section 208: Offence committed outside India.
• Section 209: Receipt of evidence relating to offences committed outside India.

Common Confusions

Does Section 209 itself give Indian Courts jurisdiction over an offence committed abroad?

No.

The jurisdictional basis is primarily provided by Section 208. Section 209 deals with the receipt of evidence relating to such proceedings.

Can every piece of foreign evidence automatically be received under Section 209?

No.

The statutory requirements, including the relevant Central Government notification and the prescribed mechanism for recording the evidence, must be satisfied.

Does Section 209 apply only to witnesses?

No.

The provision also contemplates evidence relating to documents.

Is Section 209 a substantive criminal provision?

No.

It is a procedural provision concerning the receipt of evidence in proceedings relating to offences committed outside India.

Quick Revision

• Section 209 BNSS deals with the receipt of evidence relating to offences committed outside India.
• It operates in connection with proceedings under Section 208.
• The evidence may relate to a person or document.
• The Central Government must have issued the relevant notification.
• Evidence may be produced before an Indian diplomatic or consular representative in the foreign country.
• The Indian Court may receive such evidence in accordance with the statutory mechanism.
• Section 209 is primarily an evidentiary and procedural provision.
• It broadly corresponds to Section 189 CrPC, 1973.
• Section 208 concerns jurisdiction, while Section 209 concerns receipt of foreign evidence.

ALSO READ: Section 208 – Offence committed outside India

Conclusion

Section 209 of the BNSS provides an important procedural mechanism for receiving evidence located outside India in proceedings concerning offences committed outside India. By allowing evidence to be obtained through the appropriate Indian diplomatic or consular channel, the provision helps Indian Courts conduct criminal proceedings even when relevant witnesses or documents are situated abroad.