Section 323 BNSS: Return of Commission
Section 323 of the Bharatiya Nagarik Suraksha Sanhita, 2023 explains what happens after a commission for examination of a witness has been duly executed. It governs return of the commission and deposition, inspection by the parties, use of the material in evidence, and use of the deposition at a later stage where the conditions of Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 are satisfied.
Current law: The Bharatiya Nagarik Suraksha Sanhita, 2023 is Central Act 46 of 2023. The Central Government appointed 1 July 2024 as the date on which the Sanhita came into force, subject to the exception stated in the commencement notification.
Text of Section 323 BNSS - Return of commission
323. (1) After any commission issued under section 319 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the Court or Magistrate issuing the commission; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition so taken, if it satisfies the conditions specified by section 27 of the Bharatiya Sakshya Adhiniyam, 2023, may also be received in evidence at any subsequent stage of the case before another Court.
Meaning and effect of Section 323 BNSS
Section 323 completes the procedural cycle of a commission issued under Section 319 BNSS. Once the witness has been examined under the commission, the executing authority does not retain the commission papers. The executed commission and the deposition are returned to the Court or Magistrate that issued the commission.
The provision also protects procedural access. The commission, its return and the deposition are open to inspection by the parties at all reasonable times. They become part of the record and, subject to lawful objections or exceptions, either party may rely on them in evidence.
Key point: Section 323 does not make every deposition recorded on commission automatically admissible in every later proceeding. Sub-section (2) expressly makes later use dependent on the conditions in Section 27 of the Bharatiya Sakshya Adhiniyam, 2023.
Procedure after a commission is executed
| Stage | Requirement under Section 323 |
|---|---|
| Execution completed | The commission must have been duly executed. |
| Return to issuing authority | The commission and the deposition of the examined witness are returned to the Court or Magistrate that issued the commission. |
| Inspection | The parties may inspect the commission, return and deposition at all reasonable times. |
| Use in the case | Subject to all just exceptions, either party may read the material in evidence, and it forms part of the record. |
| Use at a later stage or before another Court | The deposition may be received in evidence only if the requirements of Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 are fulfilled. |
Section 323 BNSS and Section 27 of the Bharatiya Sakshya Adhiniyam, 2023
Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the relevancy of evidence previously given by a witness for proving, in a subsequent judicial proceeding or at a later stage of the same proceeding, the truth of the facts stated in that evidence.
Broadly, Section 27 applies where the witness is unavailable for one of the reasons stated in that provision, such as death, inability to be found or give evidence, being kept out of the way by the adverse party, or where securing the witness would involve delay or expense considered unreasonable by the Court. The provision also contains safeguards concerning identity of parties or their representatives in interest, opportunity to cross-examine, and substantial similarity of the questions in issue.
Accordingly, when a deposition recorded under a commission is sought to be used at a subsequent stage before another Court, Section 323(2) BNSS must be read together with Section 27 BSA.
Practical summary
Section 323 BNSS ensures that evidence recorded through a commission returns to the issuing Court in an inspectable form and becomes part of the judicial record. It also establishes the statutory bridge for possible use of that deposition at a later stage or before another Court, provided the separate evidentiary requirements in Section 27 BSA are met.