Section 308 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Section 308 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mandates that all evidence presented during a trial or legal proceeding must be recorded in the presence of the accused. If the accused's personal attendance is excused, their advocate must be present, which can include participation via audio-video means at a location designated by the State Government. This ensures transparency and the accused's right to a fair trial.(
📜 Text of Section 308
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.(
⚖️ Legal Context
Section 308 aligns with Section 273 of the Indian Criminal Procedure Code (Cr.P.C.), which similarly requires that evidence be recorded in the presence of the accused. This provision upholds the principles of natural justice, ensuring the accused is aware of and can respond to the evidence presented against them.
🧭 Practical Implications
Transparency in Proceedings: Recording evidence in the presence of the accused ensures that the trial is conducted openly, allowing the accused to hear and challenge the evidence.
Protection of Vulnerable Witnesses: The proviso allows for special measures when recording the testimony of minors or victims of sexual offenses, balancing the protection of vulnerable individuals with the accused's right to cross-examine.
Adaptability: The provision for audio-video recording accommodates modern technological advancements, facilitating proceedings when the physical presence of the accused is not feasible.
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