Section 296 CrPC: Evidence of Formal Character on Affidavit - Current Law under Section 332 BNSS

Section 296 of the Code of Criminal Procedure, 1973 permitted evidence of a formal character to be submitted through an affidavit, while preserving the right of the prosecution and accused to have the deponent examined in court. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 332.

Current legal position: The BNSS came into force on 1 July 2024 and repealed the CrPC, subject to the savings and transitional provisions in Section 531 BNSS. For proceedings covered by those savings, the former CrPC provisions may continue to apply. Section 332 BNSS carries forward the substance of Section 296 CrPC.

Section 296 CrPC - Statutory provision

Heading: Evidence of formal character on affidavit.

Sub-section (1): The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

Sub-section (2): The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

Section 332 BNSS - Present corresponding provision

Section 332 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled "Evidence of formal character on affidavit". Its two sub-sections preserve the same essential rules: formal evidence may be furnished by affidavit and read in evidence, subject to just exceptions; and the court may summon the person on its own initiative but must summon and examine the person when the prosecution or accused applies.

For the enacted text, see the BNSS, 2023 - government-hosted text (PDF). The India Code portal is also a primary reference for central legislation.

Meaning of evidence of a formal character

"Formal character" generally refers to evidence proving routine, procedural or non-contentious facts, rather than facts that require substantial examination of a contested issue. Whether evidence is sufficiently formal depends on the nature of the testimony and the issues in the particular case. The provision does not automatically make every affidavit admissible or conclusive.

For example, an affidavit might establish a routine fact about the receipt, custody or forwarding of a document or material object. If the factual foundation, accuracy or reliability is disputed, examination of the deponent may become important.

How the affidavit rule operates

Permission, not compulsion: Formal evidence may be presented by affidavit; the statute does not require all such evidence to be submitted this way.
Subject to just exceptions: The court must consider applicable legal objections, including relevance, admissibility and fairness.
Judicial discretion: The court may summon and examine the person who made the affidavit even without an application.
Mandatory examination on application: If the prosecution or accused applies, the court shall summon and examine that person regarding the facts stated in the affidavit.
No automatic proof of disputed facts: An affidavit remains subject to challenge and assessment along with the other evidence.

Section 333 BNSS - Authorities before whom affidavits may be sworn

Corresponding to Section 297 CrPC, Section 333 BNSS identifies persons before whom affidavits may be sworn or affirmed, including specified judges or magistrates, commissioners of oaths and notaries. It also addresses the distinction between personal knowledge and information based on belief, and permits the court to strike out or amend scandalous or irrelevant matter.

Section 330 BNSS - No formal proof of certain documents

Corresponding to Section 294 CrPC, this provision concerns admission or denial of the genuineness of documents and circumstances in which formal proof of a signature may be dispensed with. It is distinct from the use of an affidavit to present formal witness evidence.

Section 331 BNSS - Affidavit in proof of conduct of public servants

Corresponding to Section 295 CrPC, this provision addresses affidavit evidence relating to allegations concerning public servants made in applications during proceedings.

Does Section 296 CrPC still apply?

For criminal procedure generally, the BNSS replaced the CrPC from 1 July 2024. However, Section 531 BNSS contains savings for specified proceedings pending immediately before commencement. The applicable procedural law must therefore be determined from the proceeding's status and the transitional provision, rather than merely the date of the alleged offence.

Frequently asked questions

Can formal evidence be submitted without oral testimony?

Yes. Section 332 BNSS permits formal evidence to be given by affidavit, subject to just exceptions. However, the deponent may still be required to attend and be examined.

Can an accused demand examination of the affidavit witness?

Yes. Under Section 332(2) BNSS, the court shall summon and examine the person on the application of the accused or prosecution regarding the facts in the affidavit.

What is the new section corresponding to Section 296 CrPC?

Section 332 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Is an affidavit automatically accepted as true?

No. The affidavit may be read in evidence subject to legal objections, and the court must assess its evidentiary weight. The deponent may be examined where required.

Official legal references

This article is general legal information. For a particular case, verify the applicable statute, transitional provisions and relevant court orders.