Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 265
Code: section 265
(1) If the accused refuses to plead or does not plead, or claims to be tried or the
Magistrate does not convict the accused under section 264, the Magistrate shall fix a date
for the examination of witnesses:
Provided that the Magistrate shall supply in advance to the accused, the statement of
witnesses recorded during investigation by the police.
(2) The Magistrate may, on the application of the prosecution, issue a summons to
any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may
be produced in support of the prosecution:
Provided that the Magistrate may permit the cross-examination of any witness to be
deferred until any other witness or witnesses have been examined or recall any witness for
further cross-examination:
Provided further that the examination of a witness under this sub-section may be
done by audio-video electronic means at the designated place to be notified by the State
Government.
Explanation:
This section of the BNSS outlines the procedure for commencing the examination of witnesses in a criminal trial after the accused has entered a plea or the Magistrate has decided not to convict under Section 264. It emphasizes the importance of providing the accused with access to evidence and allows for flexible witness examination procedures.
(1) If the accused refuses to plead, does not plead, or claims to be tried, or the Magistrate does not convict under Section 264, the Magistrate is required to set a date for the examination of witnesses. Crucially, this subsection mandates that the Magistrate must provide the accused with the witness statements recorded by the police during the investigation in advance of the examination.
(2) The prosecution can apply to the Magistrate for summonses to be issued to their witnesses. These summonses can require the witnesses to attend court or produce documents or other relevant materials.
(3) On the designated date, the Magistrate will hear the evidence presented by the prosecution. The Magistrate has the power to defer cross-examination of a witness until other witnesses have been examined or to recall a witness for further cross-examination. This subsection also permits recording witness evidence through audio-video electronic means.
Illustration:
Imagine a case where the accused pleads not guilty to a theft charge. After the plea, the Magistrate sets a date for the examination of witnesses. Before the examination, the Magistrate provides the accused with the witness statements recorded by the police during the investigation. On the designated date, the prosecution presents their evidence, including testimony from eyewitnesses and expert witnesses. The Magistrate, in accordance with the provisions of this section, allows the defense to cross-examine the prosecution witnesses. They may defer cross-examination of specific witnesses until later.
Common Questions and Answers:
- Q: What happens if the accused is not provided with the witness statements before the examination?A: This would be a violation of the BNSS. The accused has the right to review the witness statements to prepare their defense adequately.
- Q: Can the defense request the Magistrate to recall a witness for further cross-examination?A: Yes, the Magistrate has the discretion to recall a witness for further cross-examination based on the circumstances of the case.
- Q: Can the Magistrate refuse to permit the recording of witness evidence through audio-video electronic means?A: No, the BNSS allows for the recording of witness evidence through audio-video electronic means, and the Magistrate cannot refuse to permit it.
