Sections 272–283 CrPC vs Sections 307–318 BNSS — Mode of Taking and Recording Evidence

In India, Sections 307 to 318 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 272 to 283 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Evidence may now be taken before the accused's advocate through audio-video means at a notified place, and an accused examined electronically must sign within 72 hours.

These twelve sections govern how a criminal court takes down evidence: the language of courts, the rule that evidence is taken in the accused's presence, the form of the record in summons-cases, warrant-cases and Sessions trials, interpretation, the witness's demeanour, and the record of the accused's own examination. The power to examine the accused is a separate provision — Section 351 BNSS, formerly Section 313 CrPC — with its own page. Section 316 governs how that examination is recorded.

At a glance

These are procedural sections; neither First Schedule classifies them.

What changed

Section 272 CrPC → Section 307 BNSS — Minor edit: "for purposes of this Code" → "this Sanhita".

Section 273 CrPC → Section 308 BNSS

• Expanded — main text: "in the presence of his pleader" → "in the presence of his advocate including through audio-video electronic means at the designated place to be notified by the State Government".
• Minor edit — proviso: "the court may take appropriate measures" → "the Court may take". The proviso itself — protecting a woman below eighteen alleged to have been subjected to rape or another sexual offence from confrontation by the accused, while ensuring cross-examination — was inserted into the CrPC by Act 13 of 2013 with effect from 3 February 2013 and is otherwise carried over word for word.
• Minor edit — Explanation: "proceeding under Chapter VIII has been commenced under this Code" → "Chapter IX … under this Sanhita" (security for keeping the peace and for good behaviour).
• The CrPC as printed carries a Gujarat amendment to Section 273 (Gujarat Act 31 of 2017) allowing evidence "through the medium of Electronic Video Linkage" when the court so directs. No BNSS State amendment was checked for this page.

Section 274 CrPC → Section 309 BNSS — Minor edit: inquiries "under sections 145 to 148" → "sections 164 to 167" (disputes over land or water likely to cause a breach of the peace); proceedings "under section 446" → "section 491" (forfeiture of bonds).

Section 275 CrPC → Section 310 BNSS — Identical. The proviso allowing a witness's evidence to be "recorded by audio-video electronic means in the presence of the advocate of the person accused" (inserted into the CrPC by Act 5 of 2009 with effect from 31 December 2009) is carried over word for word.

Section 276 CrPC → Section 311 BNSS — Identical.

Section 277 CrPC → Section 312 BNSS — Minor edit: "under section 275 or 276" → "under section 310 or section 311".

Section 278 CrPC → Section 313 BNSS — Minor edit: "section 275 or section 276" → "section 310 or section 311"; "or of his pleader, if he appears by pleader" → "or of his advocate, if he appears by an advocate". The CrPC carries a Gujarat amendment adding sub-sections (4) and (5) on evidence taken by Electronic Video Linkage.

Section 279 CrPC → Section 314 BNSS — Minor edit: "pleader" → "advocate" in the heading and in sub-section (2).

Section 280 CrPC → Section 315 BNSS — Identical.

Section 281 CrPC → Section 316 BNSS

• Omitted — sub-section (1) of Section 281 CrPC, under which a Metropolitan Magistrate made "a memorandum of the substance of the examination of the accused".
• Modified — "Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session" → "by any Magistrate, or by a Court of Session". The duty to record "the whole of such examination, including every question put to him and every answer given by him" in full now applies to every Magistrate.
• New — proviso to sub-section (4): "Provided that where the accused is in custody and is examined through electronic communication, his signature shall be taken within seventy-two hours of such examination."
• Minor edit — sub-sections (3) to (6) renumbered (2) to (5). The summary-trial exclusion is now Section 316(5). The CrPC carries a Gujarat amendment to Section 281(6) referring to examination "through the medium of Electronic Video Linkage".

Sections 282 and 283 CrPC → Sections 317 and 318 BNSS — Identical.

Statutory text (relevant extract)

Extract — Section 308 BNSS, main text:

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:

Extract — Section 273 CrPC, main text (old):

… shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:

Extract — Section 316(1) and the proviso to Section 316(4) BNSS:

(1) Whenever the accused is examined by any Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself … Provided that where the accused is in custody and is examined through electronic communication, his signature shall be taken within seventy-two hours of such examination.

How it works — the steps

1. Language (Section 307). The State Government determines the language of each Court in the State, other than the High Court.
2. Presence (Section 308). Unless the law expressly provides otherwise, evidence is taken in the accused's presence; where his personal attendance is dispensed with, in his advocate's presence, which may be through audio-video electronic means at a place the State Government notifies. For a woman below eighteen alleged to be a victim of rape or another sexual offence, the Court may prevent confrontation while preserving cross-examination.
3. Form of record by type of case. In summons-cases and in inquiries under Sections 164 to 167 and proceedings under Section 491, the Magistrate makes a memorandum of the substance (Section 309). In warrant-cases, the evidence is taken down in writing, and may also be recorded by audio-video means before the accused's advocate (Section 310). In Sessions trials, it is taken down in writing by or under the Judge (Section 311). Records under Sections 310 and 311 are ordinarily narrative, and are signed.
4. Language of the record (Section 312). Evidence given in the Court's language is recorded in it; otherwise in the witness's language where practicable, with a signed true translation. The Court may dispense with translation of English evidence if no party requires it.
5. Reading back (Section 313). Each witness's evidence is read over to him in the presence of the accused or his advocate and corrected if necessary; a disputed part may be noted as an objection with the Judge's remarks, and the record is interpreted to a witness who does not understand its language.
6. Interpretation to the accused (Section 314). Evidence the accused does not understand is interpreted to him in open Court; evidence not understood by his advocate is interpreted to the advocate. Interpretation of documents put for formal proof is discretionary.
7. Demeanour (Section 315). The Judge records material remarks on the witness's demeanour.
8. The accused's examination (Section 316). Every question and answer is recorded in full, in the language of examination if practicable, shown or read or interpreted to the accused, who may explain or add, and signed by him and the Judge with a certificate. If he is in custody and examined electronically, his signature is to be taken within seventy-two hours. The section does not apply to a summary trial.
9. Interpreters and High Courts (Sections 317–318). An interpreter is bound to state the true interpretation; each High Court may prescribe its own manner of recording by general rule.

What this means in practice

For the defence. Section 308 still requires presence — of the accused, or of his advocate where the accused's attendance is dispensed with. Where evidence is taken through audio-video means, check that it is taken "at the designated place to be notified by the State Government", and ask for the notification. No such notification was traced or checked for this page. When the record is read over under Section 313, raise any objection then, so that it is noted on the record.

For the prosecution and vulnerable witnesses. The proviso to Section 308 and the directions in Sakshi (below) support a screen or similar arrangement for child victims of sexual offences. Section 530 BNSS separately permits "recording of evidence in inquiries and trials" in electronic mode — see the electronic proceedings page.

For the court. After the accused's examination, the record must carry his signature and the Judge's certificate (Section 316(4)). Where he is examined from custody through electronic communication, the seventy-two-hour period runs "of such examination". Section 316 does not state what follows if the signature is not taken in time; on a reading of the text, the proviso regulates the procedure and does not itself say that the record is invalid.

For Metropolitan areas. With Section 281(1) CrPC omitted, a full question-and-answer record is required from every Magistrate, including one sitting in a metropolitan area, on a reading of Section 316(1).

Judgments that still matter

No Supreme Court judgment construing Sections 307 to 318 BNSS was found in the corpus searched for this page. The two judgments below construe Section 273 CrPC. Section 308 BNSS repeats its operative words and adds audio-video presence of the advocate, so, on a reading of the text, they remain relevant.

State of Maharashtra v. Dr. Praful B. Desai & Anr., [2003] 3 S.C.R. 244 — 1 April 2003. Bench of S.N. Variava and B.N. Agrawal JJ.; judgment by Variava J. The State sought to record the evidence of a doctor in the United States by video conferencing in a trial for an offence under Section 338 read with Sections 109 and 114 IPC; the High Court had held Section 273 required physical presence. The Supreme Court said that because Section 273 allows evidence in the pleader's presence when the accused's attendance is dispensed with, it "contemplates constructive presence", so "actual physical presence is not a must" (para 12). It held that "so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the 'presence' of the accused and would thus fully meet the requirements of Section 273" (para 19). It set aside the High Court's judgment and directed the Magistrate to record the evidence by video conferencing, laying down arrangements for doing so (paras 24–25). Section 308 BNSS now states expressly that the advocate's presence may be "through audio-video electronic means".

Sakshi v. Union of India & Ors., [2004] Supp. 2 S.C.R. 723 (2004 INSC 383) — 26 May 2004. Bench of Rajendra Babu CJ and G.P. Mathur J.; judgment by Mathur J. In a public-interest petition on the trial of sexual offences, the Court said that Section 273 "merely requires the evidence to be taken in the presence of the accused" and "does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses" (para 31). Because the sight of the accused may put the victim in fear, a screen or similar arrangement can be used (para 32). It disposed of the petition with directions that in trials of child sex abuse or rape a screen may be used so the victim or witnesses do not see the accused, cross-examination questions relating directly to the incident should be given in writing to the presiding officer, and the victim should be allowed breaks (para 34). The proviso later added to Section 273 in 2013, and carried into Section 308 BNSS, addresses the same concern for women below eighteen.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that text, evidence in a trial pending on that date is recorded under Sections 272 to 283 CrPC, without the audio-video wording of Section 308 or the seventy-two-hour proviso of Section 316. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What replaced Sections 272 to 283 CrPC?

Sections 307 to 318 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Part A of Chapter XXV) replaced Part A of Chapter XXIII of the Code of Criminal Procedure, 1973 from 1 July 2024. The mapping is one to one, from 272 to 307 through 283 to 318. Section 273 CrPC is now Section 308 BNSS and Section 281 is now Section 316.

Can evidence be recorded by video under Section 308 BNSS?

Section 308 BNSS keeps the rule that evidence is taken in the presence of the accused or, when his personal attendance is dispensed with, of his advocate, and adds 'including through audio-video electronic means at the designated place to be notified by the State Government'. In State of Maharashtra v. Dr. Praful B. Desai ([2003] 3 S.C.R. 244) the Supreme Court had already held that evidence by video conferencing satisfies Section 273 CrPC.

Must a child victim face the accused while testifying?

No. The proviso to Section 308 BNSS, repeating the 2013 proviso to Section 273 CrPC, lets the Court take appropriate measures so that a woman below eighteen alleged to have been subjected to rape or another sexual offence is not confronted by the accused, while preserving cross-examination. In Sakshi v. Union of India (2004) the Supreme Court directed that a screen or similar arrangement may be used in such trials.

What is the 72-hour rule in Section 316 BNSS?

The proviso to Section 316(4) BNSS says that where the accused is in custody and is examined through electronic communication, his signature on the record of examination 'shall be taken within seventy-two hours of such examination'. Section 281 CrPC had no such proviso.

Does a Metropolitan Magistrate still record only a memorandum of the accused's examination?

No. Section 281(1) CrPC let a Metropolitan Magistrate make a memorandum of the substance of the accused's examination. Section 316(1) BNSS omits that sub-section and requires every Magistrate, and a Court of Session, to record the whole examination, including every question and answer, in full.

How is a witness's evidence recorded in a Sessions trial?

Under Section 311 BNSS, identical to Section 276 CrPC, the evidence of each witness is taken down in writing as the examination proceeds, by the presiding Judge, by his dictation in open Court, or under his direction by an officer of the Court. It is ordinarily taken as a narrative, with question-and-answer form at the Judge's discretion, and is signed by the Judge.

Can the judge record a witness's demeanour?

Yes. Section 315 BNSS, which repeats Section 280 CrPC word for word, requires the presiding Judge or Magistrate who has recorded a witness's evidence also to record such remarks, if any, as he thinks material respecting the witness's demeanour while under examination.

Which law governs the recording of evidence in a trial pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial pending immediately before 1 July 2024 continues in accordance with the Code of Criminal Procedure, 1973 as if the BNSS had not come into force. On a reading of that text, evidence in such a trial is recorded under Sections 272 to 283 CrPC, without the 72-hour proviso of Section 316 BNSS.

Related

• Section 313 CrPC vs Section 351 BNSS — Examination of the accused
• Section 530 BNSS — Electronic mode and video evidence
• Witness and accused by video conferencing — BNSS vs CrPC
• Sections 266–271 CrPC vs Sections 301–306 BNSS — Attendance of prisoners
• Sections 251–259 CrPC vs Sections 274–282 BNSS — Trial of summons-cases
• CrPC to BNSS master comparison table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text, cross-checked against the official text): Sections 307 to 318, 530, 531(2)(a); headings of Sections 164, 167, 319, 351 and 491.
• Code of Criminal Procedure, 1973 (India Code original text, with footnotes and State amendments): Sections 272 to 283; headings of Sections 145, 148, 313 and 446.
• Supreme Court judgments read in full text: State of Maharashtra v. Dr. Praful B. Desai (2003_3_244_265_EN.md, report PDF checked); Sakshi v. Union of India (S_2004_2_723_758_EN.md, report PDF checked).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.