Section 266 BNSS: Evidence for defence (Formerly Section 247 CrPC)

Section 266 of Bharatiya Nagarik Suraksha Sanhita, 2023: Evidence for defence

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice:

Provided further that the examination of a witness under this sub-section may be done by audio-video electronic means at the designated place to be notified by the State Government.

(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 266

Section 266 regulates the stage of evidence for defence in warrant cases instituted on a police report, providing that the accused shall then be called upon to enter upon their defence and produce their evidence (replacing Section 243 CrPC).

Entering Defence: Commences after prosecution evidence and examination of accused under Section 351 BNSS.
Right to Summon Defence Witnesses: Accused applies to Magistrate to issue process for compelling attendance of witnesses or production of documents.
Strict Vexation Safeguard: Magistrate MUST issue process unless they consider that the application should be refused on the ground that it is made for the purpose of vexation or delay or defeating justice (reasons must be recorded in writing).

Key Landmark Precedents:

T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633: The Supreme Court held that the right of the accused to lead defence evidence under Section 243 CrPC (Section 266 BNSS) is an essential element of fair trial; the magistrate cannot arbitrarily refuse to summon defence witnesses or send disputed signatures to forensic experts.
Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258: The Supreme Court held that denying the accused opportunity to summon a handwriting expert violates principles of natural justice and Article 21.
State of M.P. v. Badri Yadav (2006) 9 SCC 549: Affirmed that the trial court must afford reasonable opportunity to produce defence witnesses.

Courtroom Practice & Strategic Litigation Guidance:

Linchpin defense right under *T. Nagappa* and *Kalyani Baskar*: If the Magistrate rejects your application to summon a defence witness (e.g., bank manager, alibi employer, or forensic expert) without recording that it was made for 'vexation or delay', file an immediate revision. The right to lead defence evidence is an integral part of Article 21.