Bharatiya Nagarik Suraksha Sanhita, 2023

Section 308 BNSS: Evidence to be Taken in Presence of Accused

Section 308 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the general rule for recording evidence during a criminal trial or other proceeding. Evidence is ordinarily to be taken in the presence of the accused. Where personal attendance has been dispensed with, it may be taken in the presence of the accused's advocate, including through audio-video electronic means at a place designated by the State Government.

Act: Bharatiya Nagarik Suraksha Sanhita, 2023 Act No.: 46 of 2023 In force: 1 July 2024 Chapter: XXV - Evidence in Inquiries and Trials

Bare Provision of Section 308 BNSS

308. Evidence to be taken in presence of accused.

Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his advocate including through audio-video electronic means at the designated place to be notified by the State Government:

Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the Court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.

Explanation. - In this section, "accused" includes a person in relation to whom any proceeding under Chapter IX has been commenced under this Sanhita.

Meaning and Scope of Section 308

The provision protects the accused's opportunity to know and test the evidence being recorded in the proceeding. The normal rule is that evidence should not be recorded behind the accused's back, subject to exceptions expressly permitted by the BNSS or other applicable law.

  • Presence of accused: Evidence in a trial or other proceeding is ordinarily recorded in the accused's presence.
  • When personal attendance is dispensed with: Evidence may be recorded in the presence of the accused's advocate.
  • Audio-video electronic means: Section 308 expressly recognises participation through audio-video electronic means at a designated place notified by the State Government.
  • Protection of a child victim: For a woman below eighteen years alleged to have suffered rape or another sexual offence, the Court may prevent direct confrontation with the accused while preserving the accused's right of cross-examination.
  • Extended meaning of accused: The explanation also covers a person against whom proceedings under Chapter IX of the BNSS have commenced.

Evidence Through Audio-Video Electronic Means

A significant feature of Section 308 is its express reference to audio-video electronic means. Where personal attendance is dispensed with, the accused's advocate may be present while evidence is taken through such electronic means at the place designated by the State Government. The statutory wording therefore combines remote participation with a requirement that the process take place through a legally designated arrangement.

Protection Where the Witness Is Below 18 Years

The proviso authorises the Court to adopt suitable measures so that a woman below eighteen years who is alleged to have been subjected to rape or another sexual offence is not confronted by the accused. At the same time, the statute expressly preserves the accused's right of cross-examination. The provision therefore seeks to reduce direct confrontation without removing the defence right to test the evidence.

Who Is Included in the Term "Accused"?

For Section 308, the expression "accused" is wider than a person formally facing a criminal charge. The statutory explanation includes a person in relation to whom a proceeding under Chapter IX of the BNSS has been commenced.

Commencement of BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed 1 July 2024 as the date on which the BNSS came into force, subject to the exception stated in the commencement notification concerning the First Schedule entry related to section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

Official Sources

India Code: Bharatiya Nagarik Suraksha Sanhita, 2023 - official text

Ministry of Home Affairs: Notification appointing 1 July 2024 as the commencement date

Section 308 forms part of Chapter XXV dealing with evidence in inquiries and trials. The neighbouring provisions cover the language of Courts and the manner in which evidence is recorded in different kinds of proceedings.

Section 307 - Language of Courts
Section 309 - Record in summons-cases and inquiries
Section 310 - Record in warrant-cases

Legal note: This page provides the statutory provision and a general explanation for legal information. For a particular criminal proceeding, the applicable procedural orders, State notifications, court rules and judicial directions should also be checked.