Section 243 CrPC - Evidence for Defence and Section 266 BNSS
Section 243 of the Code of Criminal Procedure, 1973 governs the opportunity of an accused to present defence evidence in a warrant case instituted on a police report. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 266.
Section 243 CrPC - Original statutory provision
Heading: Evidence for defence. This provision formed part of Chapter XX, relating to trials of warrant cases by Magistrates, in cases instituted on police reports.
(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.
(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.
Section 266 BNSS - Evidence for defence
Section 266 of the Bharatiya Nagarik Suraksha Sanhita, 2023 retains the essential protections of Section 243 CrPC and expressly permits examination of a witness through audio-video electronic means at a designated place notified by the State Government.
Sub-section (1): The accused is called upon to enter upon the defence and produce evidence. Any written statement submitted by the accused must be filed with the court record.
Sub-section (2): On an application by the accused, the Magistrate ordinarily issues process for attendance of witnesses or production of documents or things. Refusal is permitted where the application is intended for vexation, delay or defeating the ends of justice; reasons must be recorded in writing.
First proviso: A witness already cross-examined, or whom the accused had an opportunity to cross-examine, is not ordinarily compelled to attend again unless necessary for the ends of justice.
Second proviso: Examination of a witness under this sub-section may take place through audio-video electronic means at a place designated by the State Government.
Sub-section (3): The Magistrate may require deposit of reasonable witness-attendance expenses before issuing summons.
How the defence evidence procedure works
1. Opportunity to present a defence
After the prosecution evidence stage in a warrant case on a police report, the accused must have an opportunity to produce relevant defence evidence. The accused may also submit a written statement, which the Magistrate must place on record. This is an opportunity, not a requirement that the accused prove innocence.
2. Summoning witnesses and documents
The accused can request court process to compel a witness to attend or to produce relevant documents or other material. The Magistrate must ordinarily issue the process; an application cannot be refused merely because the defence wishes to challenge the prosecution case.
3. Grounds for refusing process
Refusal is permissible when the application is made for vexation, delay or defeating the ends of justice. The Magistrate must record the grounds in writing, enabling scrutiny of the decision in accordance with applicable law.
4. Recall and further cross-examination
Where a witness has already been cross-examined or the opportunity was available, repeat attendance is not automatic. The court must be satisfied that recall is necessary for the ends of justice.
5. Reasonable expenses and electronic testimony
The court may direct deposit of reasonable expenses for a defence witness. Under Section 266 BNSS, audio-video examination is expressly contemplated at a designated location notified by the State Government.
Section 243 CrPC and Section 266 BNSS: Key differences
| Issue | Section 243 CrPC | Section 266 BNSS |
|---|---|---|
| Defence evidence and written statement | Permitted; written statement filed on record | Retained |
| Witness summons and documents | Process ordinarily issued subject to specified refusal grounds | Retained |
| Recall of previously cross-examined witness | Requires necessity for ends of justice | Retained |
| Audio-video witness examination | No express corresponding proviso in this section | Expressly permitted at designated notified place |
| Witness expenses | Reasonable expenses may be deposited | Retained |
Frequently asked questions
What is Section 243 CrPC?
It provides for defence evidence, written statements, summoning of witnesses and production of documents in warrant cases instituted on police reports.
What is the corresponding BNSS section?
Section 266 BNSS, titled "Evidence for defence", corresponds to Section 243 CrPC.
Can a Magistrate reject a defence witness summons?
Yes, on the specified grounds of vexation, delay or defeating the ends of justice, with written reasons. Recall of a previously cross-examined witness has an additional necessity requirement.
Can defence witnesses be examined by video conference?
Section 266(2) BNSS expressly allows audio-video examination at a place designated through State Government notification.
Does CrPC still apply to pending cases?
Section 531 BNSS contains saving provisions for appeals, applications, trials, inquiries and investigations pending immediately before the BNSS commenced. Applicability depends on the procedural history of the particular case.
Official statutory references
For the authoritative text, consult the India Code official legislation portal and the Bureau of Police Research and Development BNSS reference PDF. Search for Section 243 in the CrPC and Section 266 and Section 531 in the BNSS.
Related reading: Section 242 CrPC - Evidence for prosecution and Section 244 CrPC - Evidence for prosecution in complaint cases.
Legal information only. The applicable procedural law and judicial directions should be checked for the specific case.