Section 323 of BNSS, 2023 — Return of Commission

Introduction

Section 323 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the return of a commission after it has been executed.

The provision ensures that once the examination of a witness through a commission is completed, the commission and the evidence recorded under it are properly returned to the Court that issued the commission.

Statutory Basis

When a commission issued for the examination of a witness has been duly executed, it must be returned, together with the evidence taken pursuant to it, to the Court that issued the commission.

The returned material then becomes available for consideration in the original proceeding.

Return of the Commission

After the witness has been examined and the commission has been completed, the authority executing the commission must return:

• the commission itself; and
• the evidence recorded pursuant to the commission

to the Court that originally issued the commission.

This ensures that the evidence reaches the Court where the main criminal proceeding is pending.

Evidence Taken Under the Commission

The evidence recorded through the commission forms part of the judicial record once it is returned to the issuing Court.

The Court can therefore consider that evidence along with the other evidence available in the case.

The commission procedure does not create a separate proceeding. It is a mechanism for obtaining evidence for use in the original case.

Expenses of the Commission

The provision also deals with the expenses connected with the execution of the commission.

The Court may make appropriate orders regarding the costs incurred in connection with the execution of the commission.

This helps regulate the practical expenses involved in obtaining evidence through a commission.

Procedure Under Section 323

The process can be understood in the following steps:

1. A commission is issued for examination of a witness.
2. The commission is sent to the appropriate authority.
3. The witness is examined according to the commission.
4. The evidence is recorded.
5. The commission is completed.
6. The commission and the evidence recorded under it are returned to the issuing Court.
7. The returned evidence becomes available for consideration in the original proceeding.

Example

Suppose a criminal case is pending before a Court, but a witness is located in another jurisdiction.

A commission is issued for recording the witness’s evidence. The appropriate Magistrate executes the commission and records the witness’s testimony.

After completion, the executed commission along with the recorded evidence is returned to the Court that issued it.

The original Court can then consider the evidence while deciding the case.

Relationship with Sections 319–322

Sections 319 to 323 create a connected procedure concerning commissions for examination of witnesses:

Section 319

Deals with when 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

Deals with the right of parties to examine witnesses.

Section 323

Deals with the return of the completed commission and evidence.

Thus, Section 323 represents the stage at which the commission procedure is completed and the evidence is sent back to the original Court.

Purpose of Section 323

The provision aims to:

• ensure the completed commission reaches the issuing Court;
• preserve the evidence recorded through the commission;
• make the evidence available for use in the original proceeding;
• provide procedural closure to the commission process; and
• regulate expenses associated with the execution of the commission.

Importance of the Provision

The return of the commission is essential because the Court conducting the main proceeding must have access to the evidence recorded through the commission.

Without the proper return of the commission and the evidence, the Court would not have the complete evidentiary record necessary for deciding the case.

BNSS and CrPC

Section 323 BNSS corresponds to Section 288 of the Code of Criminal Procedure, 1973.

The basic framework concerning the return of an executed commission and the evidence recorded under it has been retained.

Important Points

• Section 323: Return of commission.
• It applies after a commission for examination of a witness has been executed.
• The completed commission must be returned to the Court that issued it.
• The evidence recorded under the commission must accompany the returned commission.
• The evidence can then be considered in the original proceeding.
• The provision also deals with expenses connected with execution of the commission.
• Section 323 corresponds to Section 288 CrPC.

Quick Revision

• Section: 323, BNSS, 2023
• Subject: Return of commission
• When: After execution of the commission
• Returned to: Court that issued the commission
• Along with: Evidence recorded under the commission
• Purpose: Incorporate commissioned evidence into the original proceeding
• Related sections: Sections 319–322
• Corresponding CrPC provision: Section 288

ALSO READ: Section 322 – Parties may examine witnesses

Conclusion

Section 323 BNSS provides for the return of an executed commission along with the evidence recorded under it to the Court that issued the commission. This ensures that evidence obtained through a commission is properly incorporated into the original criminal proceeding and is available for consideration by the Court.