Section 288 CrPC: Return of Commission | Section 323 BNSS
Section 288 of the Code of Criminal Procedure, 1973 (CrPC) sets out what happens after a commission to examine a witness has been executed. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 323.
Text of Section 288 CrPC - Return of commission
(1) After any commission issued under section 284 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the Court or Magistrate issuing the commission; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition so taken, if it satisfies the conditions prescribed by section 33 of the Indian Evidence Act, 1872 (1 of 1872), may also be received in evidence at any subsequent stage of the case before another Court.
Meaning and scope of Section 288 CrPC
A commission is an authority issued by a court to have a witness examined through another competent court, magistrate or authorised officer when the applicable legal requirements are met. A deposition is the testimony recorded from the witness in the course of that examination. A return of commission is the completed commission sent back with the recorded deposition and related return.
- Return to the issuing court: Once the commission has been executed, the commission and deposition must be returned to the court or magistrate that issued it.
- Inspection by parties: Both sides may inspect the commission, the return and the deposition at all reasonable times.
- Use as evidence: Either party may seek to read the deposition in evidence, subject to lawful objections and exceptions. The documents form part of the record.
- Use in another court: A deposition may also be received at a later stage before another court if the statutory conditions governing earlier testimony are satisfied.
Section 323 BNSS: Current corresponding provision
Section 323 BNSS retains the principal procedure for returning and inspecting an executed commission. The cross-references have changed to reflect the new procedural and evidence statutes.
| Subject | Earlier law | Current corresponding law |
|---|---|---|
| Return of commission | Section 288 CrPC | Section 323 BNSS |
| Power to issue a witness commission | Section 284 CrPC | Section 319 BNSS |
| Conditions for later use of earlier testimony | Section 33, Indian Evidence Act, 1872 | Section 27, Bharatiya Sakshya Adhiniyam, 2023 |
| Parties examining commissioned witnesses | Section 287 CrPC | Section 322 BNSS |
When can a deposition be used in later proceedings?
Section 27 BSA deals with the relevancy of testimony from an earlier judicial proceeding or testimony taken by a person legally authorised to record it. Among other conditions, the witness must be unavailable for a recognised reason, such as death, inability to be found or unreasonable delay or expense in securing attendance. The previous proceeding must have involved the same parties or their representatives in interest, the adverse party must have had a right and opportunity to cross-examine, and the issues must have been substantially the same.
Accordingly, the mere fact that a commission was executed does not mean that its deposition can automatically be used in any later case. The court must assess the applicable requirements and any objections.
Practical example
Suppose a witness cannot reasonably travel to the trial court and a lawful commission is issued to record testimony. The authorised officer records the deposition and returns it to the issuing court. Both prosecution and defence can inspect the returned documents. The deposition may be read in the original proceeding subject to valid objections. If the witness later becomes unavailable and the deposition is sought to be used before another court, the court must additionally consider Section 27 BSA or the applicable saved law.
Which law applies to pending proceedings?
Section 531 BNSS contains repeal and savings provisions. In particular, certain appeals, applications, trials, inquiries and investigations pending immediately before commencement on 1 July 2024 continue under the CrPC, subject to the statutory wording and applicable judicial interpretation. The governing evidence law should also be checked for the proceeding concerned.
Official legislation and further reading
- India Code - official central legislation portal (search for the Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023).
- Bharatiya Sakshya Adhiniyam, 2023 - official India Code PDF (Section 27).
- Code of Criminal Procedure - section-wise guide.
- Section 287 CrPC - Parties may examine witnesses.
Frequently asked questions
What is Section 288 CrPC?
Section 288 CrPC governs the return of a commission issued to record witness evidence, inspection of the commission and deposition, and the possible use of that deposition as evidence.
What is the corresponding BNSS section?
Section 323 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 288 CrPC. It refers to commissions under BNSS Section 319 and prior evidence under Section 27 of the Bharatiya Sakshya Adhiniyam, 2023.
Can parties inspect a returned commission?
Yes. The commission, return and witness deposition must be open to inspection by the parties at all reasonable times.
Can the deposition be used in another court?
It may be received at a subsequent stage before another court if the applicable conditions for former testimony under Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 are satisfied.
Does a commission deposition automatically become admissible?
No. Reading it in evidence is subject to just exceptions, and reuse in another court requires the additional statutory conditions.
Legal information updated for the BNSS and BSA framework as of October 2026. This article is for general information; consult the applicable statute, transitional provisions and court orders for a particular case.