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
Bharatiya Nagarik Suraksha Sanhita
Section 308
Evidence to be taken in presence of accused
⚡ Quick Answer Reference: Section 308 BNSS
- Provision: Section 308 of BNSS
- Act: Bharatiya Nagarik Suraksha Sanhita
- Classification: EVIDENCE IN INQUIRIES AND TRIALS
- Jurisdiction: India
- Summary: This section requires that all evidence in a trial or proceeding be taken in the presence of the accused or their advocate, unless otherwise specified, with special considerations for victims of sexual offences.
What does Section 308 of BNSS say?
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What does Section 308 of BNSS mean?
Plain English Explanation
This section requires that all evidence in a trial or proceeding be taken in the presence of the accused or their advocate, unless otherwise specified, with special considerations for victims of sexual offences.
Practical Interpretation
In practice, this means that the accused or their lawyer must be present when evidence is being recorded, ensuring the right to cross-examine, with exceptions for protecting vulnerable witnesses like minors who are victims of sexual crimes.
Core Legal Purpose
The core purpose is to balance the right of the accused to a fair trial, including cross-examination, with the need to protect vulnerable witnesses, particularly in cases of sexual offences, ensuring justice is served while respecting the rights and dignity of all parties involved.
- •The evidence must be taken in the presence of the accused or their advocate.
- •Exceptions can be made for the personal attendance of the accused, with their advocate present instead.
- •A key legal test is ensuring the accused's right to cross-examination is maintained.
- •A key exception is for the evidence of a woman below eighteen years old who is a victim of rape or other sexual offences, where the court may take measures to prevent confrontation with the accused.
Practical Example of Section 308 BNSS
In a case where Priya, a 16-year-old, alleges she was raped by Rajesh, the court may decide to record her evidence in a way that prevents her from being confronted by Rajesh, while still allowing Rajesh's advocate to cross-examine her, possibly through audio-video means, to protect Priya's dignity and well-being while upholding Rajesh's right to a fair trial.
Frequently Asked Questions about Section 308 BNSS
Q: What is the punishment or consequence under Section 308 of BNSS?
This section is a procedural provision and does not prescribe a penal punishment.
Q: Does this section apply to private individuals or public entities?
This section applies to the procedure of taking evidence in trials or proceedings, which can involve both private individuals and public entities as parties to the case.
Q: Is an offence under this section bailable or cognizable?
This section does not deal with offences in the traditional sense but rather with procedural aspects of evidence collection, thus it does not classify an offence as bailable or cognizable.
Common Questions about Section 308 BNSS
What is Section 308 of BNSS?
Section 308 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) defines and regulates "Evidence to be taken in presence of accused". In plain terms: This section requires that all evidence in a trial or proceeding be taken in the presence of the accused or their advocate, unless otherwise specified, with special considerations for victims of sexual offences.
What is the punishment under Section 308 of BNSS?
Section 308 of BNSS does not prescribe a specific criminal punishment, or it is a procedural provision.
Is Section 308 of BNSS bailable or non-bailable?
Whether Section 308 of BNSS is bailable or non-bailable depends on the schedule classification.
What are the elements of Section 308 of BNSS?
The essential elements of Section 308 of BNSS are: The evidence must be taken in the presence of the accused or their advocate.; Exceptions can be made for the personal attendance of the accused, with their advocate present instead.; A key legal test is ensuring the accused's right to cross-examination is maintained..
Landmark Judgments under Section 308 BNSS
Sections commonly cited alongside Section 308
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