Section 321 of BNSS, 2023 — Execution of Commissions

Introduction

Section 321 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the execution of commissions issued for the examination of witnesses.

It lays down the procedure to be followed by the person or authority to whom a commission has been issued and explains how the evidence recorded under the commission is to be dealt with.

Statutory Basis

When a commission is issued for examining a witness under the provisions relating to commissions, the person to whom the commission is directed must execute the commission according to its terms.

The evidence of the witness is taken and properly recorded, after which the commission and the evidence are returned to the Court that issued the commission.

Execution of the Commission

The authority receiving the commission must conduct the examination of the witness in accordance with the directions contained in the commission.

The witness is examined in the manner prescribed for taking evidence.

The authority executing the commission must ensure that the evidence is properly recorded and authenticated.

Examination of Witness

During execution of the commission, the witness may be examined by the parties in accordance with the procedure applicable to the proceeding.

The purpose is to ensure that examination through commission does not deprive the parties of their opportunity to properly examine the witness.

Where applicable, the witness may be:

• examined by the party who called the witness;
• cross-examined by the opposing party; and
• re-examined where permitted.

Recording of Evidence

The evidence obtained through the commission must be taken down in writing.

The record should accurately reflect the evidence given by the witness.

The person executing the commission is responsible for ensuring that the evidence is properly recorded and authenticated.

Return of the Commission

After the examination has been completed, the person executing the commission must return the commission together with the evidence recorded pursuant to it to the Court that issued the commission.

This enables the original Court to use the evidence in the pending proceeding.

Evidence Becomes Part of the Record

Once the executed commission and the recorded evidence are returned to the issuing Court, the evidence forms part of the record of the case.

The Court can therefore consider the evidence while deciding the proceeding.

Expenses Connected With Execution

The provision also recognises the practical expenses associated with executing a commission.

The Court may make appropriate orders concerning the expenses incurred in executing the commission, including the costs connected with obtaining and recording the evidence.

Purpose of Section 321

The provision serves several important purposes:

• provides a procedure for executing commissions;
• ensures proper examination of witnesses;
• preserves the evidence in written form;
• protects the procedural rights of the parties;
• ensures that the executed commission is returned to the issuing Court; and
• enables the evidence to be considered in the original proceeding.

Example

Suppose a criminal case is pending before a Court, but an important witness is located in another district.

The Court issues a commission for examination of the witness. The commission is executed by the appropriate Magistrate in the area where the witness is located.

The witness is examined and the evidence is recorded. After completion, the executed commission and the recorded evidence are returned to the original Court.

The original Court can then consider that evidence during the trial.

Relationship with Sections 319 and 320

Sections 319, 320 and 321 operate as a sequence.

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 how the commission is executed.

Therefore:

Section 319 → Issue of commission

Section 320 → Authority to whom commission is issued

Section 321 → Execution of commission

Importance of Cross-Examination

The execution of a commission must preserve the parties’ opportunity to examine the witness according to the applicable procedure.

This is important because evidence obtained through commission may be relied upon by the Court in deciding the case.

The commission procedure is therefore not intended to eliminate the procedural safeguards associated with examination of witnesses.

BNSS and CrPC

Section 321 BNSS corresponds to Section 286 of the Code of Criminal Procedure, 1973.

The basic framework concerning execution of commissions for examination of witnesses has been retained.

Important Points

• Section 321: Execution of commissions.
• It applies to commissions issued for examination of witnesses.
• The authority receiving the commission must execute it according to its terms.
• The witness’s evidence is properly recorded.
• The parties are given the opportunity to examine the witness according to law.
• The executed commission and evidence are returned to the Court that issued the commission.
• The evidence becomes part of the record of the original proceeding.
• Section 321 corresponds to Section 286 CrPC.

Quick Revision

• Section: 321, BNSS, 2023
• Subject: Execution of commissions
• Purpose: Examination of witness through commission
• Authority: Person or Magistrate to whom commission is issued
• Main duty: Execute commission and record evidence
• After execution: Commission and evidence returned to issuing Court
• Effect: Evidence becomes part of the case record
• Related sections: Sections 319 and 320
• Corresponding CrPC provision: Section 286

ALSO READ: Section 320 – Commission to whom to be issued

Conclusion

Section 321 BNSS establishes the procedure for executing commissions issued for the examination of witnesses. It ensures that the witness is properly examined, the evidence is accurately recorded, and the completed commission is returned to the Court that issued it. The provision allows necessary evidence to be obtained without requiring the witness to personally attend the original Court.