Criminal procedure | Updated 18 October 2026
Section 273 CrPC: Evidence to Be Taken in Presence of Accused - Section 308 BNSS
Section 273 of the Code of Criminal Procedure, 1973 established the general rule that evidence in a criminal trial or other proceeding is recorded in the presence of the accused, or in the presence of the accused's pleader when personal attendance is dispensed with. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 308.
Section 273 CrPC - Statutory text
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 pleader:
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 VIII has been commenced under this Code.
The protective proviso was inserted by Act 13 of 2013, section 20, with effect from 3 February 2013.
Section 308 BNSS - Current corresponding provision
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.
Section 308 is contained in Chapter XXV, dealing with evidence in inquiries and trials. It expressly recognises the use of audio-video electronic means at a designated place notified by the State Government, subject to the statutory conditions and applicable court rules.
Meaning and legal effect
1. Presence of the accused
As a general rule, evidence must be recorded where the accused is present. This protects the opportunity to know the evidence being given and to instruct counsel. The opening words, "Except as otherwise expressly provided", recognise that specific statutory exceptions may apply.
2. Presence through an advocate
When a court lawfully dispenses with the personal attendance of the accused, the provision permits evidence to be recorded in the presence of the accused's pleader under the CrPC or advocate under the BNSS. Dispensation of attendance should not be confused with automatic denial of the opportunity to challenge testimony.
3. Audio-video electronic means
Section 308 BNSS expressly accommodates evidence-taking through audio-video electronic means at the designated place notified by the State Government. The court must also observe applicable video-conferencing rules and procedural safeguards so that the accused can participate meaningfully through counsel and cross-examination can be conducted effectively.
4. Safeguards for a minor complainant
Where evidence is given by a woman below eighteen years of age who is alleged to have suffered rape or another sexual offence, the court may arrange screening, separate seating or other appropriate protective measures to prevent direct confrontation with the accused. The provision expressly preserves the accused's right of cross-examination.
5. Meaning of accused in preventive proceedings
For this provision, the expression "accused" extends to persons facing proceedings under Chapter VIII of the CrPC or the corresponding Chapter IX of the BNSS, as applicable. This is an extended statutory meaning for the purpose of the section.
Historical State amendments under the CrPC
Gujarat: Gujarat Act 31 of 2017, section 2, inserted words in Section 273 CrPC permitting evidence through electronic video linkage where the court, on its own motion or on application, so directs in the interests of justice.
Jharkhand: Jharkhand Act 2 of 2016, section 3, provided for presence of the accused either in person or through electronic video linkage in the State's application of Section 273 CrPC.
These are historical State amendments to the CrPC. Their relevance to an individual proceeding after the BNSS commencement must be assessed with reference to the applicable savings provisions, current State notifications and court rules; they should not be assumed to amend Section 308 BNSS automatically.
Related procedural provisions
Section 530 BNSS enables specified trials, inquiries and proceedings to be held in electronic mode in accordance with the law. Sections 309 to 315 BNSS address recording and interpretation of evidence. Section 531 BNSS contains repeal and savings provisions relevant to the transition from the CrPC.
Frequently asked questions
Is the accused required to be physically present whenever evidence is recorded?
Not in every situation. Personal attendance may be dispensed with as permitted by law, and the applicable provision then requires the presence of the pleader or advocate. The BNSS also expressly recognises audio-video electronic means subject to the statutory requirements.
Can evidence be recorded by video conferencing under the BNSS?
Yes. Section 308 BNSS expressly refers to audio-video electronic means at the designated place to be notified by the State Government. The relevant court rules and directions must also be followed.
Does protecting a minor victim remove the right to cross-examine?
No. Both Section 273 CrPC and Section 308 BNSS require protective arrangements to preserve the accused's right of cross-examination.
Official legal references
National Crime Records Bureau - BNSS chapter-wise statutory text
Bureau of Police Research and Development - BNSS text and comparative reference (PDF)
This article provides general legal information. The governing law, court orders and procedural rules should be checked for the facts and stage of each case.