Section 326 BNSS: Deposition of Medical Witness
Section 326 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the use of a deposition made by a civil surgeon or other medical witness and explains when that medical witness must be summoned and examined by the Court.
In brief: a qualifying medical deposition recorded and attested by a Magistrate in the presence of the accused, or taken on commission under the relevant Chapter, may be read in evidence even if the medical deponent is not called. However, the Court retains power to summon the deponent and must do so when the prosecution or accused applies for such examination.
Text of Section 326 BNSS
326. Deposition of medical witness.
(1) The deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this Chapter, may be given in evidence in any inquiry, trial or other proceeding under this Sanhita, although the deponent is not called as a witness.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition.
Meaning and legal effect of Section 326
The provision creates a statutory exception to the ordinary need to secure the personal attendance of the medical witness in every case. If the prescribed conditions are satisfied, the deposition itself may be used in an inquiry, trial or other proceeding under the BNSS.
1. Whose deposition is covered?
Section 326 applies to the deposition of a civil surgeon or other medical witness. The provision is therefore directed to medical evidence that has been formally recorded in the manner contemplated by the section.
2. How must the deposition have been recorded?
The deposition must have been either:
- taken and attested by a Magistrate in the presence of the accused; or
- taken on commission under the relevant Chapter of the BNSS.
3. Can the deposition be used without calling the doctor?
Yes. Once the statutory conditions are met, the deposition may be given in evidence even though the medical deponent is not called as a witness.
4. Can the medical witness still be summoned?
Yes. The Court may summon and examine the deponent on its own if it considers such examination appropriate. More importantly, the language of sub-section (2) is mandatory where either the prosecution or the accused applies for the medical deponent to be summoned and examined on the subject matter of the deposition.
Section 326 BNSS and former Section 291 CrPC
Section 326 BNSS corresponds to Section 291 of the Code of Criminal Procedure, 1973, which also dealt with the deposition of a medical witness. The core wording and legal mechanism are substantially carried forward in Section 326.
| Current law | Earlier corresponding provision | Subject |
|---|---|---|
| Section 326, Bharatiya Nagarik Suraksha Sanhita, 2023 | Section 291, Code of Criminal Procedure, 1973 | Deposition of medical witness |
Commencement and pending proceedings
The BNSS was brought into force from 1 July 2024, subject to the notified exception relating to the First Schedule entry connected with Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
For transition cases, Section 531 BNSS contains the repeal and savings provisions. In general, an appeal, application, trial, inquiry or investigation that was already pending immediately before commencement is to continue under the Code of Criminal Procedure, 1973 as it stood immediately before commencement. The applicable procedural provision should therefore be identified with reference to the date and status of the proceeding.
Practical point: Section 326 does not make the medical deponent immune from examination. It permits use of the qualifying deposition without routine personal attendance, while preserving the right of the prosecution or accused to seek the deponent's examination under sub-section (2).