Facilitating Fair Trials

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant evolution in India’s criminal justice system, encompassing various legal provisions to enhance procedural efficiency, ensure fair trials, and uphold justice. Among its multifaceted chapters, the provisions governing commissions for the examination of witnesses stand out as critical instruments to facilitate the examination of witnesses under unique and challenging circumstances.

The testimony of witnesses plays a pivotal role in criminal proceedings, often shaping the trajectory of criminal cases. However, logistical and practical barriers such as distance, health constraints, or the sensitive status of certain individuals may render their physical presence in court impracticable or unreasonable. To address these scenarios, the BNSS provides a structured framework for issuing commissions to examine witnesses, enabling courts to gather crucial evidence while minimizing unnecessary delays, expenses, and inconveniences.

This article delves into the legislative framework laid out under the BNSS, 2023, focusing on the various provisions that define and regulate commissions for witness examination. It examines the conditions under which such commissions may be issued, the mechanisms for their execution, and the safeguards that ensure the integrity of the evidence obtained. By understanding these provisions, one can appreciate how the BNSS balances procedural pragmatism with the imperatives of justice, providing a roadmap for courts to navigate the complexities of modern legal challenges.

When can the attendance of a witness be dispensed with and a commission issued?

A Court or Magistrate may dispense with the attendance of a witness and issue a commission for examination if:

• The examination of the witness is necessary for the ends of justice.
• The attendance of the witness cannot be procured without unreasonable delay, expense, or inconvenience.
• Additionally, for the President, Vice-President, Governor, or Administrator of a Union Territory, a commission must be issued for their examination.

Can expenses for the accused be directed to be paid when a commission is issued?

Yes, the Court may direct the prosecution to pay a reasonable amount to meet the accused's expenses, including advocate’s fees.

To whom should a commission be issued for the examination of witnesses?

• If the witness is within India and within the territories to which the BNSS extends, the commission is directed to the Chief Judicial Magistrate of the area.
• If the witness is in an Indian State or area where the BNSS does not apply, it is directed to a Court or officer specified by the Central Government.
• If the witness is outside India, the commission is issued to a Court or officer per arrangements made by the Central Government with the concerned country.

How are commissions executed?

Upon receipt, the Chief Judicial Magistrate or an appointed Magistrate summons the witness or proceeds to the witness's location to take evidence, following the procedure used in warrant cases.

Can parties examine witnesses during commission proceedings?

Yes, the parties may:

• Forward written interrogatories to the Magistrate, Court, or officer executing the commission.
• Appear through an advocate or in person (if not in custody) to examine, cross-examine, and re-examine the witness.

What is the procedure for returning a commission?

After execution, the commission, deposition, and return are sent back to the issuing Court or Magistrate. These documents:

• Are open for inspection by parties.
• May be read in evidence, subject to exceptions.
• Form part of the case record.

Can proceedings be adjourned when a commission is issued?

Yes, the inquiry, trial, or proceeding may be adjourned for a reasonable time to allow for the commission's execution and return.

How are foreign commissions executed?

The provisions for executing domestic commissions apply to commissions issued by Courts or Magistrates outside the territories where the BNSS extends, as notified by the Central Government.

Can the deposition of a medical witness be used without their presence?

Yes, if taken and attested by a Magistrate or on commission, it may be used as evidence. However, the Court may summon the medical witness if necessary or upon application by the prosecution or accused.

Can a Magistrate’s identification report be used as evidence without calling the Magistrate?

Yes, but statements in the report must comply with the provisions of the BNSS. The Court may summon the Magistrate upon application or at its discretion.

Can reports from Mint, Printing Presses, or forensic departments be used as evidence?

Yes, reports prepared by gazetted officers from these institutions may be used without summoning them unless:

• The report is disputed.
• The Court decides to summon the officer.

The officer may not disclose unpublished official records or testing methods without specific permissions.

Are reports from Government scientific experts admissible as evidence?

Yes, such reports may be used as evidence. The experts may be summoned, and if they cannot attend, a responsible officer familiar with the case may be deputed to testify.

Is formal proof required for certain documents?

Not if the genuineness of the document is undisputed. The Court may still require proof of signatures at its discretion.

How is evidence about public servants’ conduct given?

Evidence regarding public servants may be given by affidavit, and the Court may order such evidence to be submitted in this form.

Can evidence of a formal character be given by affidavit?

Yes, it can be read in evidence unless disputed, in which case the Court may summon the deponent.

Who can administer oaths for affidavits used in Court?

Affidavits may be sworn or affirmed before:

• Any Judge or Magistrate.
• Any Commissioner of Oaths appointed by a High Court or Court of Session.
• Any notary appointed under the Notaries Act, 1952.

How can previous convictions or acquittals be proved?

By certified extracts of Court records, jail certificates, or warrants of commitment, along with evidence identifying the accused.

What is the procedure for recording evidence when the accused is absent?

If the accused has absconded and cannot be arrested soon, the Court may record depositions in their absence. These depositions may later be used as evidence if the witness is unavailable.

Can public servants, experts, or police officers' documents be used as evidence if they are unavailable?

Yes, their successors can give depositions based on the document or report, even via audio-video means, unless the report is disputed.

Therefore, the provisions related to commissions for the examination of witnesses under the BNSS underscore the legislative intent to foster efficiency, inclusivity, and adaptability in India’s criminal justice system. By enabling courts to overcome logistical and practical barriers in securing witness testimonies, these provisions strengthen the evidentiary foundation of legal proceedings without compromising on the principles of natural justice. Moreover, the emphasis on procedural safeguards ensures that evidence obtained through commissions retains its credibility and is subjected to appropriate scrutiny. Whether it involves high-ranking officials like the President or Governors, witnesses residing outside India, or experts whose technical inputs are indispensable, the framework addresses a wide range of scenarios with precision and foresight.

In a rapidly evolving judicial landscape, the integration of provisions for commissions in the BNSS highlights the balance between tradition and modernization, demonstrating the law's capacity to adapt to contemporary challenges. Ultimately, this mechanism not only preserves the sanctity of witness testimonies but also reinforces the overarching goal of timely and fair justice, serving as a cornerstone of our country’s commitment to an equitable legal system.

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.