Section 325 – Execution of Foreign Commissions

Introduction

Section 325 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the execution of foreign commissions for the examination of witnesses in criminal proceedings. It provides the legal mechanism by which commissions issued by specified courts, judges or magistrates outside the ordinary territorial operation of the BNSS may be executed in accordance with the procedure applicable to commissions issued under Section 319.

The provision facilitates the examination of witnesses who are located outside the jurisdiction of the court conducting the criminal proceeding.

Meaning of Execution of Foreign Commissions

A foreign commission is a commission issued by a court, judge or magistrate in a specified foreign country or place for the examination of a witness in connection with criminal proceedings.

Section 325 enables the procedural provisions relating to the execution and return of commissions to apply to such foreign commissions, subject to the conditions specified in the section.

Statutory Basis

The relevant provision is:

Section 325, BNSS, 2023 — Execution of Foreign Commissions

Section 325 operates in connection with Sections 319, 321, 322 and 323 of the BNSS.

Section 319 deals with the circumstances in which a commission may be issued for the examination of a witness.

Section 321 deals with the execution of commissions.

Section 322 permits parties to examine witnesses in proceedings conducted under a commission.

Section 323 deals with the return of the commission after its execution.

Essential Elements

1. Application of the Procedure for Execution of Commissions

Section 325 provides that the provisions of Section 321 and the relevant portions of Sections 322 and 323 relating to the execution and return of a commission apply to foreign commissions.

Thus, the procedural safeguards applicable to commissions issued under Section 319 are extended to the foreign commissions covered by Section 325.

2. Foreign Commission Must Be Issued by a Specified Authority

The provision applies only to commissions issued by courts, judges or magistrates falling within the categories specified in Section 325(2).

The provision does not automatically apply to every foreign court or judicial authority.

3. Central Government Notification

The Central Government has the power to specify, by notification, the courts, judges or magistrates to which Section 325 will apply.

Therefore, the statutory mechanism depends upon the authority being one covered by the notification contemplated under the provision.

4. Authorities in Areas of India Outside the Operation of BNSS

Section 325(2)(a) covers courts, judges or magistrates exercising jurisdiction within an area in India to which the Sanhita does not extend, provided that the Central Government specifies them by notification.

5. Authorities Outside India

Section 325(2)(b) covers courts, judges or magistrates exercising jurisdiction in a country or place outside India, provided that:

• the Central Government has specified the court, judge or magistrate by notification; and
• the authority has power under the law applicable in that country or place to issue commissions for the examination of witnesses in criminal matters.

Procedure

The basic operation of Section 325 can be understood as follows:

1. A criminal proceeding requires the examination of a witness who is situated outside the relevant jurisdiction.
2. A commission is issued for the examination of the witness.
3. The commission may be executed through an authority covered by Section 325.
4. The provisions relating to execution of commissions apply.
5. The parties may exercise the rights relating to examination of the witness under the applicable provisions.
6. After execution, the commission and the relevant deposition are dealt with according to the provisions governing the return of commissions.

Authorities Covered

Section 325 covers two categories of authorities.

Authorities in India

A court, judge or magistrate exercising jurisdiction in an area of India to which the BNSS does not extend may be covered if the Central Government specifies the authority by notification.

Authorities Outside India

A foreign court, judge or magistrate may be covered if:

• the Central Government specifies the authority by notification; and
• the authority has legal power under the law of that country or place to issue commissions for examination of witnesses in criminal matters.

Purpose of Section 325

The principal purpose of Section 325 is to facilitate the examination of witnesses located outside the ordinary jurisdiction of the criminal court.

Without a mechanism for executing commissions through recognised foreign or otherwise specified judicial authorities, obtaining testimony from witnesses situated abroad could create significant procedural difficulties.

The provision therefore supports the effective collection of witness testimony while maintaining the procedural framework applicable to commissions.

Relationship with Sections 319 to 324

Section 325 should be read together with the provisions dealing with commissions for examination of witnesses.

Section 319

Section 319 provides the statutory basis for issuing a commission for the examination of a witness.

Section 321

Section 321 deals with the execution of commissions.

Section 322

Section 322 concerns the right of parties to examine witnesses in proceedings conducted under a commission.

Section 323

Section 323 deals with the return of the commission after it has been executed.

Section 324

Section 324 permits the inquiry, trial or other proceeding to be adjourned for a specified period reasonably sufficient for the execution and return of the commission.

Section 325

Section 325 extends the relevant commission procedure to specified commissions issued by foreign or otherwise specified courts, judges or magistrates.

Important Distinctions

Domestic Commission and Foreign Commission

A domestic commission is dealt with within the ordinary framework governing commissions under the BNSS.

A foreign commission involves a court, judge or magistrate exercising jurisdiction in a country or place outside India, subject to the requirements of Section 325.

Commission and Summons

A commission is a procedural mechanism for obtaining the examination or deposition of a witness through an authorised process.

A summons primarily requires a person to appear before the court or authority issuing it. The two mechanisms serve different procedural purposes.

Execution of Commission and Return of Commission

Execution concerns carrying out the commission and examining the witness in accordance with the applicable procedure.

Return of the commission concerns sending the executed commission and associated deposition back to the authority that issued it.

BNSS and CrPC

Section 325 of the BNSS corresponds to Section 290 of the Code of Criminal Procedure, 1973.

The provision substantially continues the earlier CrPC framework relating to execution of foreign commissions. The principal change is the renumbering and incorporation of the provision into the BNSS framework.

Under the BNSS, Section 325 must be read with Sections 319 to 324, which contain the corresponding provisions concerning commissions for examination of witnesses.

Relationship with BSA

The BNSS provides the procedural framework for criminal proceedings, while the Bharatiya Sakshya Adhiniyam, 2023 governs the law of evidence.

Accordingly, although Section 325 deals with the procedural execution of a foreign commission, the admissibility and evidentiary effect of material obtained through the commission must also be considered in accordance with the applicable law of evidence.

Example

A criminal trial is pending before an Indian court. A material witness is residing in a foreign country and cannot conveniently appear before the Indian court.

If the relevant foreign judicial authority falls within the category specified by the Central Government and has authority under the law of that country to issue commissions for examination of witnesses in criminal matters, the commission may be executed in accordance with Section 325 and the connected provisions governing commissions.

The deposition obtained through the commission can then be dealt with according to the applicable procedural and evidentiary provisions.

Topic at a Glance

• Topic: Execution of Foreign Commissions
• BNSS Section: Section 325
• Purpose: Facilitates execution of specified foreign commissions for examination of witnesses in criminal matters.
• Connected Sections: Sections 319, 321, 322, 323 and 324
• Foreign Authority: Must satisfy the requirements prescribed under Section 325(2)(b).
• Central Government: May specify the relevant courts, judges or magistrates by notification.
• CrPC Equivalent: Section 290, CrPC, 1973

Quick Revision

• Section 325 of BNSS deals with execution of foreign commissions.
• It applies the relevant provisions concerning execution and return of commissions to specified foreign commissions.
• Section 321 deals with execution of commissions.
• Section 322 deals with examination of witnesses by parties.
• Section 323 deals with return of commissions.
• Section 325(2)(a) covers specified authorities exercising jurisdiction in areas of India to which the Sanhita does not extend.
• Section 325(2)(b) covers specified authorities in foreign countries or places.
• The foreign authority must have legal authority under the law applicable in that country or place to issue commissions for examination of witnesses in criminal matters.
• The Central Government specifies the relevant authorities by notification.
• Section 325 corresponds to Section 290 of the CrPC, 1973.
• The provision facilitates obtaining witness testimony when the witness or relevant judicial authority is outside the ordinary jurisdiction of the criminal court.

ALSO READ: Section 324 – Adjournment of proceeding

Conclusion

Section 325 of the BNSS provides a procedural mechanism for the execution of specified foreign commissions in criminal matters. By extending the commission procedure to recognised foreign judicial authorities, the provision enables courts to obtain witness testimony across jurisdictional boundaries while retaining the procedural safeguards governing commissions under the BNSS.