Section 308 BNSS: Evidence to be taken in presence of accused (Formerly Section 273 CrPC)

Section 308 of Bharatiya Nagarik Suraksha Sanhita, 2023: Evidence to be taken in presence of accused

Official Bare Act Text

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

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 Commentary & Landmark Judgments: Section 308

Section 308 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 273 of the CrPC, 1973) cements the fundamental rule that all evidence taken in the course of the trial or proceeding shall be taken in the presence of the accused, while explicitly legitimizing audio-video electronic means.

Presence of Accused Mandatory: All evidence must be taken in the presence of the accused, or when attendance is dispensed with, in the presence of their advocate.
Audio-Video Electronic Integration: BNSS explicitly incorporates: 'including through audio-video electronic means' into the statutory text, granting full legal equivalence to video conferencing depositions.
Protection of Vulnerable Witnesses: Provisos allow screens or audio-video mechanisms to shield child sexual assault victims and vulnerable witnesses from direct confrontation with the accused.

Key Landmark Precedents:

State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601: The Supreme Court authoritatively held that recording evidence via video conferencing fulfills the requirement of 'presence of accused' under Section 273 CrPC / 308 BNSS.
Atma Ram v. State of Rajasthan, (2019) 20 SCC 481: Held that taking evidence in the absence of the accused without an exemption order is a grave illegality that vitiates the entire trial.

Courtroom Practice & Strategic Litigation Guidance:

If electronic evidence or video testimony is recorded, ensure the video link provides clear two-way visual and audio feed so that defence counsel can observe witness demeanour and consult with the accused in real time.