Witness Abroad or in Another State? Testimony by Video Under BNSS vs CrPC

A witness who cannot appear in person - because they are abroad, in another state, or otherwise unable to travel - can be examined by audio-video electronic means under the general framework of Section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), read with the specific witness, accused and successor-official provisions in Sections 265, 266, 308, 316 and 336; the CrPC allowed video testimony only through scattered, section-specific amendments such as the proviso to Section 275, in India.

The situation

A criminal case is proceeding, and a witness the prosecution or defence wants to examine is not available to attend court in person - perhaps living overseas, posted in another state, or unable to travel for health reasons. The parties want to know whether the law lets that witness testify by video, whether the accused can likewise be examined remotely, and what happens if the official whose report is in evidence cannot be traced.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 - Start with the general framework in Section 530 BNSS

Section 530 BNSS states that "all trials, inquiries and proceedings," including issuance and service of summons and warrants, examination of complainant and witnesses, recording of evidence, and appellate proceedings, "may be held in electronic mode, by use of electronic communication or use of audio-video electronic means." This is a single, standing authorisation across the whole life of a criminal case. No equivalent general provision was found in the CrPC sections read - the CrPC's video-testimony options existed only where specifically inserted into individual sections.

Step 2 - Check the specific provision for the stage you are at

Section 530 is general; the specific mechanics still sit in the section governing that stage of the case:

• Evidence in the accused's presence: Section 308 BNSS requires evidence to be taken in the accused's presence, or their advocate's, "including through audio-video electronic means at the designated place to be notified by the State Government." Section 273 CrPC required the same presence without that electronic-mode text built into its central text (a Gujarat State amendment added "Electronic Video Linkage" wording for that State).
• Prosecution and defence witnesses in a warrant case instituted on a police report: Section 265(3) and Section 266(2) BNSS each carry a proviso permitting the examination of a witness "by audio-video electronic means at the designated place to be notified by the State Government."
• Witness evidence recorded in a warrant case: the proviso to Section 310(1) BNSS, in the same words as the proviso to Section 275(1) CrPC, states that evidence of a witness "may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence."
• The accused's own examination: Section 316 BNSS governs how an accused's examination is recorded. Sub-section (4) adds: "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."

Step 3 - Note the new provision for a successor official's evidence

Section 336 BNSS addresses a specific practical problem: a public servant, scientific expert or medical officer whose report is in evidence has since been transferred, retired, died, cannot be found, or securing their presence would delay proceedings. In that situation, the Court secures the presence of the successor holding that post to depose on the document or report, and the second proviso states "the deposition of such successor public servant, expert or officer may be allowed through audio-video electronic means." The first proviso states that no public servant, scientific expert or medical officer "shall be called to appear before the Court unless the report ... is disputed by any of the parties of the trial or other proceedings." The nearest CrPC text, Section 293(3), let a summoned Government scientific expert depute a responsible officer working with him; it did not provide for a successor officer or for deposition by video.

Step 4 - The protection for vulnerable witnesses is unchanged in substance

Section 308 BNSS retains the CrPC's protective proviso for a minor rape or sexual-offence complainant: the Court may ensure she is "not confronted by the accused while at the same time ensuring the right of cross-examination of the accused." This is the same substance as the proviso to Section 273 CrPC.

Step 5 - Section 530 authorises the mode but sets no mechanics

Section 530 BNSS, as enacted, is a single provision with no proviso and no rule-making text. It authorises electronic mode but does not itself state the platform, identity verification, recording or preservation arrangements for a video hearing. The only location-related text in the sections read is the reference in Sections 265(3), 266(2) and 308 BNSS to "the designated place to be notified by the State Government."

What changed - and what did not

• New provision: Section 530 BNSS is a general, standing framework for electronic conduct of the entire proceeding - summons, examination, evidence, appeal - with no equivalent single provision in the CrPC sections read.
• New provision: Section 265(3) and Section 266(2) BNSS give an express audio-video option for prosecution and defence witness examination respectively in a warrant case on a police report, where the equivalent CrPC provisions (Sections 242(3) and 243(2)) did not.
• New provision: Section 316(4) BNSS's seventy-two-hour signature rule for a custodial accused examined through electronic communication has no counterpart in Section 281 CrPC, whose central text contains no electronic-mode text.
• New provision: Section 336 BNSS - securing a successor official's deposition, by video where the original cannot be traced or would cause delay - has no equivalent found in the CrPC.
• Modified: Section 308 BNSS carries forward Section 273 CrPC's core rule (evidence taken in the accused's presence) and its minor-witness proviso unchanged, but writes the audio-video option directly into the operative sentence.
• Identical, by amendment: Section 275(1) CrPC already permitted audio-video recording of warrant-case witness evidence "in the presence of the advocate of the person accused," inserted by a 2009 amendment, and Section 310(1) BNSS carries that proviso forward in the same words - so video testimony in warrant cases was not unknown to the CrPC by the time BNSS commenced; BNSS's contribution is to generalise the option across every stage via Section 530, rather than to introduce video evidence for the first time.

Which law applies to your case

Section 531(2)(a) BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before the BNSS came into force (1 July 2024) is to be disposed of, continued, held or made in accordance with the CrPC as in force immediately before that commencement, as if the BNSS had not come into force — so for such a pending proceeding the CrPC's provisions, including its narrower, section-specific video options, rather than Sections 308, 316, 336 or 530 BNSS, may govern. The full transition rule is set out in Which Law Applies to an Offence Before 1 July 2024. This article does not go beyond that reference.

Practical checklist

For a party or witness:

• Check whether the State Government has notified a designated place for audio-video examination under Section 265(3), Section 266(2) or Section 308 BNSS before assuming a home or office video call will suffice.
• If in custody and examined through electronic communication, note that the signature on the examination record is legally required within seventy-two hours under Section 316(4) BNSS.
• If a report's author cannot be traced, expect the Court to call a successor official under Section 336 BNSS rather than dispense with that evidence.

For the advocate:

• Cite the specific stage-provision (Section 265(3), Section 266(2), Section 308, Section 316 or Section 336) rather than Section 530 alone, since Section 530 is the general umbrella and the mechanics sit in the specific section.
• Where a minor sexual-offence complainant is to testify, confirm the Section 308 proviso protections are in place regardless of whether the hearing is physical or electronic - the proviso is unchanged from Section 273 CrPC.
• Track the State Government's notification of the designated place referred to in Sections 265(3), 266(2) and 308 BNSS; Section 530 itself contains no proviso or rule-making text setting safeguards or technical protocol.

Frequently asked questions

Can a witness give evidence by video conferencing under the new law?

Yes. Section 530 BNSS provides a general statutory framework under which the examination of witnesses, recording of evidence, and all trials, inquiries and proceedings may be held by audio-video electronic means. In a warrant case instituted on a police report, the provisos to Section 265(3) and Section 266(2) BNSS separately provide that the examination of a prosecution witness and a defence witness, respectively, "may be done by audio-video electronic means at the designated place to be notified by the State Government."

Did the CrPC allow video testimony at all?

In a limited way, yes, by amendment. Section 275(1) CrPC, as amended, carried a proviso permitting a warrant-case witness's evidence to be recorded by audio-video electronic means in the presence of the accused's advocate. Section 310(1) BNSS carries the same proviso in the same words. But the CrPC had no single, general provision covering every stage of a criminal proceeding - each electronic-mode option had to be inserted section by section. Section 530 BNSS supplies that general framework for the first time.

Can the accused themselves be examined by video?

Yes, and BNSS adds a specific safeguard for it. Section 316(4) BNSS states that where an accused in custody is examined through electronic communication, the accused's signature on the record of examination must be taken within seventy-two hours of that examination - a rule with no equivalent in Section 281 CrPC, whose central text contains no electronic-examination text.

What happens if the official who prepared a report cannot be found?

Section 336 BNSS is a new provision: where a public servant, scientific expert or medical officer who prepared a document or report has been transferred, retired, died, cannot be found, or securing their presence would cause delay, the Court secures the presence of the successor holding that post instead, and that successor's deposition may be allowed through audio-video electronic means. No corresponding provision was found in the CrPC sections read.

Does video testimony change the requirement that evidence be taken in the accused's presence?

No, the underlying requirement is unchanged, only the means of satisfying it has expanded. Section 308 BNSS requires evidence to be taken in the presence of the accused or their advocate, and now expressly adds "including through audio-video electronic means at the designated place to be notified by the State Government" - the same core rule as Section 273 CrPC, with the electronic option written directly into the text.

Is there a special rule for a woman testifying about rape or a sexual offence?

Yes, and it is carried forward, not new. Section 308 BNSS retains the same proviso as Section 273 CrPC: where the evidence of a woman below eighteen alleged to have been subjected to rape or another sexual offence is recorded, the Court may take appropriate measures so she is not confronted by the accused, while preserving the accused's right of cross-examination.

Related on Veritect

• Electronic Trials and Proceedings - BNSS Section 530 (New Provision)
• Specimen Signatures and Samples: Section 311A CrPC vs Section 349 BNSS
• Which Law Applies to an Offence Before 1 July 2024
• Seeking Discharge or Facing Charges? Deadlines Under Section 250-263 BNSS
• CrPC to BNSS: Complete Section Mapping
• Sections 238–250 CrPC vs Sections 261–273 BNSS — Trial of Warrant-Cases by Magistrates
• Sections 272–283 CrPC vs Sections 307–318 BNSS — Mode of Taking and Recording Evidence
• Sections 266–271 CrPC vs Sections 301–306 BNSS — Attendance of Persons Confined or Detained in Prisons

Statutory sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 265, Section 266, Section 308, Section 310, Section 316, Section 336, Section 530, Section 531 (read from BNSS_2023.md; cross-checked against the Gazette text CG-DL-E-25122023-250884)
• Code of Criminal Procedure, 1973 - Section 242, Section 243, Section 273, Section 275, Section 281, Section 293 (read from CrPC_1973.md)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.