Section 233 CrPC - Entering Upon Defence: Meaning, Procedure and BNSS Section 256
Section 233 of the Code of Criminal Procedure, 1973 governs the opportunity of an accused person to present defence evidence during a trial before a Court of Session. Its corresponding provision under the current law is Section 256 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Section 233 CrPC - Statutory text
The provision, titled Entering upon defence, forms part of the procedure for trials before a Court of Session.
Section 233(1): Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
Section 233(2): If the accused puts in any written statement, the Judge shall file it with the record.
Section 233(3): If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, 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.
Section 256 BNSS - Current corresponding provision
Section 256(1) BNSS provides that where an accused is not acquitted under Section 255 BNSS, the accused shall be called upon to enter on the defence and adduce any evidence in support of it.
Section 256(2) BNSS requires the Judge to file any written statement submitted by the accused with the record. Section 256(3) BNSS ordinarily requires the Judge to issue process sought for defence witnesses or documents, subject to the same narrowly expressed grounds of refusal and the requirement to record reasons.
These provisions govern the defence stage in a Sessions trial; they do not themselves prescribe a general deadline for presenting all defence evidence.
Procedure for entering upon defence
- Completion of prosecution evidence: The prosecution presents its evidence under the applicable trial procedure.
- Consideration of acquittal: The Judge considers whether an order of acquittal should be recorded at the stage contemplated by Section 232 CrPC or Section 255 BNSS.
- Opportunity to defend: If the accused is not acquitted at that stage, the Judge calls upon the accused to enter the defence.
- Defence evidence: The accused may produce relevant witnesses, documents and other admissible evidence.
- Written statement: Any written statement submitted by the accused is filed in the court record.
- Next stage: After defence evidence, if any, is complete, the trial proceeds to arguments under Section 234 CrPC or Section 257 BNSS.
The opportunity to lead defence evidence is part of a fair criminal trial. It does not shift the ordinary burden of proving guilt beyond reasonable doubt from the prosecution to the accused, although particular statutory defences or presumptions may carry their own evidentiary rules.
Can the accused summon witnesses or documents?
Yes. Under Section 233(3) CrPC and Section 256(3) BNSS, the accused may apply for process compelling a witness to attend or requiring production of a document or other thing. The Judge is generally required to issue the requested process.
The court may refuse an application if it finds that the request is intended for vexation (harassment or needless trouble), delay (improper postponement of proceedings), or defeating the ends of justice (undermining fair adjudication). Reasons for refusal must be recorded.
Practical illustration
Suppose an accused disputes being present at the scene of an alleged offence and wishes to call an independent witness and produce relevant attendance records. At the defence stage, the accused may request the court to summon that witness or obtain the records. The court considers the application under the statutory test; it should not reject a genuine request merely because the evidence is offered by the defence.
Section 233 CrPC and Section 256 BNSS compared
| Issue | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Provision | Section 233 | Section 256 |
| Heading | Entering upon defence | Entering upon defence |
| Acquittal cross-reference | Section 232 | Section 255 |
| Written defence statement | Filed with record | Filed with record |
| Process for witnesses or documents | Ordinarily issued; refusal requires recorded reasons on specified grounds | Same substantive rule |
Applicability after 1 July 2024
The BNSS replaced the CrPC from 1 July 2024. Section 531 BNSS contains repeal and savings rules, including for specified pending appeals, applications, trials, inquiries and investigations. Consequently, the applicable procedural code depends on the nature and status of the particular proceeding; it is not correct to assume that every case involving an older incident must follow the old Code.
Frequently asked questions
What is Section 233 CrPC?
It gives an accused who is not acquitted at the close of the prosecution case the opportunity to enter upon the defence, submit evidence and seek court process for defence witnesses or documents.
What is the corresponding BNSS provision?
Section 256 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 233 CrPC. It refers to acquittal under BNSS Section 255.
Can the court refuse to summon a defence witness?
Yes, but only where the judge records reasons for finding that the request is for vexation, delay or defeating the ends of justice.
Is a written defence statement permitted?
Yes. When the accused submits a written statement, the judge must place it on the case record.
Does the accused have to prove innocence?
The prosecution generally bears the burden of proving the charge beyond reasonable doubt. The accused may adduce evidence to rebut the prosecution case or establish a relevant defence.
Official statutory sources
- India Code - Code of Criminal Procedure, 1973
- Bureau of Police Research and Development - BNSS, 2023 (PDF)
- Uttar Pradesh Police - CrPC and BNSS comparative statutory reference (PDF)
This article explains statutory procedure for general information. Individual cases require examination of the charge, evidence, procedural stage and applicable law.