Ensuring Fairness and Transparency

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is a comprehensive legal framework aimed at enhancing the protection and security of citizens, while also ensuring the fair and transparent administration of justice. A critical component of BNSS is the mode of taking and recording evidence, which plays a vital role in ensuring that the legal proceedings are conducted in an efficient, transparent, and just manner. The provisions under the BNSS address various aspects of evidence collection, from the language used in courts to the procedures for recording witness testimony and the accused’s statements. These provisions not only establish clear guidelines for judges and magistrates but also safeguard the rights of accused individuals and witnesses.

Who determines the language of the courts other than the High Court?

The State Government may determine the language of each Court within the State, other than the High Court, for purposes of the BNSS.

In whose presence must evidence be taken during trials or proceedings?

All evidence taken in the course of a trial or other proceeding must be taken in the presence of the accused or, if their personal attendance is dispensed with, in the presence of their advocate. This may also include taking evidence through audio-video electronic means at a designated place notified by the State Government.

What special provision is made for recording the evidence of a woman below 18 years who is an alleged victim of rape or sexual offences?

The Court may take appropriate measures to ensure that such a woman is not confronted by the accused, while still ensuring the accused’s right to cross-examination.

How is evidence recorded in summons cases and inquiries?

In summons cases and inquiries:

1. The Magistrate makes a memorandum of the substance of the evidence in the language of the Court as the examination of each witness proceeds.
2. If the Magistrate is unable to make the memorandum personally, they must record the reason and have it made in writing or from their dictation in open Court.
3. The memorandum must be signed by the Magistrate and form part of the record.

How is evidence recorded in warrant cases tried before a Magistrate?

1. The evidence of each witness is taken down in writing by the Magistrate, by dictation in open Court, or by an officer of the Court under the Magistrate’s direction and supervision if the Magistrate is unable to write due to incapacity.
2. Evidence may also be recorded by audio-video electronic means in the presence of the accused’s advocate.
3. The Magistrate must certify the reason for their inability to write the evidence personally.
4. Evidence is ordinarily taken in narrative form, but the Magistrate may record parts of it in question-and-answer format.
5. The evidence must be signed by the Magistrate and form part of the record.

How is evidence recorded in trials before a Court of Session?

1. The presiding Judge records the evidence of each witness in writing, by dictation in open Court, or under their supervision by an officer of the Court.
2. Evidence is ordinarily taken in narrative form, but the presiding Judge may use the question-and-answer format at their discretion.
3. The evidence must be signed by the presiding Judge and form part of the record.

What are the requirements for the language used in recording evidence?

1. If the witness gives evidence in the language of the Court, it must be recorded in that language.
2. If the witness gives evidence in another language, it may be recorded in that language if practicable, or a true translation into the language of the Court must be prepared.
3. If evidence is taken in English and the parties do not require translation into the Court’s language, the Court may dispense with such translation.

What is the procedure for handling evidence once it is recorded?

1. The evidence of each witness is read over to them in the presence of the accused or their advocate and corrected if necessary.
2. If the witness denies the correctness of any part of the evidence, the Magistrate or presiding Judge may make a memorandum of the objection instead of correcting it and add remarks as needed.
3. If the record is in a language the witness does not understand, it must be interpreted to them in the language they used or another language they understand.

What happens if evidence is given in a language not understood by the accused?

1. The evidence must be interpreted to the accused in open Court in a language they understand if they are present in person.
2. If the accused is represented by an advocate who does not understand the language of the evidence, it must be interpreted to the advocate.
3. When documents are presented for formal proof, the Court may interpret only as much as necessary.

What should a presiding Judge or Magistrate record about a witness’s demeanor?

The presiding Judge or Magistrate must record any remarks they consider material about the demeanour of the witness while under examination.

How is the examination of the accused recorded?

1. The entire examination, including every question and answer, is recorded in full by the presiding Judge or Magistrate, or by an officer of the Court under their supervision if the Judge or Magistrate is unable to write.
2. The record is made in the language in which the accused is examined, or if not practicable, in the language of the Court.
3. The record must be shown or read to the accused, interpreted if necessary, and signed by the accused and the Magistrate or Judge.
4. If the accused is examined through electronic communication while in custody, their signature must be obtained within 72 hours.

What is the duty of interpreters in a Criminal Court?

Interpreters must truthfully interpret any evidence or statement as required by the Court.

How is evidence recorded in the High Court?

The High Court may prescribe general rules for recording evidence of witnesses and examining the accused. These procedures must follow the prescribed rules.

What is the significance of the right of the accused to have evidence taken in their presence?

The right of the accused to have evidence taken in their presence is a valuable right. However, any infringement of this right is curable and does not necessarily vitiate the trial, as established in Atma Ram v. State of Rajasthan (2019) 20 SCC 481.

How can evidence be recorded in the absence of the accused?

The BNSS allows for evidence to be recorded in the absence of the accused when their personal attendance is dispensed with, but in the presence of their pleader (advocate). This ensures that the rights of the accused are protected while accommodating certain situations where the accused cannot be physically present.

In conclusion, the provisions relating to the mode of taking and recording evidence under the Bharatiya Nagarik Suraksha Sanhita, 2023, reflect a significant step toward ensuring fairness, transparency, and the protection of citizens’ rights within the judicial system. By emphasizing the need for clear, accurate, and accessible recording of evidence, the BNSS promotes the integrity of legal proceedings. The introduction of modern methods, such as audio-video recording, and the careful handling of sensitive testimonies, like those of minors or vulnerable individuals, ensures that justice is both timely and equitable. These reforms set the stage for a more efficient legal process, reinforcing the trust of citizens in the administration of justice.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.