Section 265 BNSS - Evidence for Prosecution
Section 265 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs prosecution evidence in a warrant-case instituted on a police report where the accused refuses to plead, does not plead, claims trial, or is not convicted under Section 264 BNSS. It deals with fixing the witness-examination date, advance supply of police-recorded witness statements, summons to prosecution witnesses, cross-examination and audio-video examination.
Text of Section 265 of the BNSS, 2023
265. Evidence for prosecution. - (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 264, the Magistrate shall fix a date for the examination of witnesses:
Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination:
Provided further that the examination of a witness under this sub-section may be done by audio-video electronic means at the designated place to be notified by the State Government.
Meaning and scope of Section 265 BNSS
Section 265 begins the prosecution evidence stage after the accused has been called upon to plead to the charge. It applies where the accused refuses to plead, does not plead, claims to be tried, or where the Magistrate chooses not to convict on a guilty plea under Section 264 BNSS.
1. Magistrate must fix a date for examination of witnesses
Once the case enters the trial stage under Section 265, the Magistrate is required to fix a date for examination of witnesses. The provision therefore moves the proceeding from the plea stage to the evidentiary stage.
2. Advance supply of witness statements to the accused
The first proviso to subsection (1) requires the Magistrate to supply in advance to the accused the statements of witnesses recorded by the police during investigation. This requirement gives the accused access to the prosecution witness statements before their examination in court and supports effective preparation for cross-examination.
3. Summons to prosecution witnesses
Under subsection (2), the Magistrate may, on an application by the prosecution, issue summons to prosecution witnesses requiring them to attend court or to produce a document or other thing. The power is therefore available to secure both witness attendance and production of relevant material.
4. Recording prosecution evidence
On the date fixed, subsection (3) requires the Magistrate to take all evidence produced in support of the prosecution. This is the principal evidence-taking stage for the prosecution in the warrant-case procedure covered by this Chapter.
5. Deferring or recalling a witness for cross-examination
The Magistrate may permit cross-examination of a witness to be deferred until one or more other witnesses have been examined. The Magistrate may also recall a witness for further cross-examination. This gives the court procedural flexibility while preserving the opportunity of the defence to cross-examine prosecution witnesses.
6. Examination by audio-video electronic means
Section 265 expressly permits examination of a witness by audio-video electronic means at a designated place notified by the State Government. The BNSS defines "audio-video electronic" means broadly to include communication devices used for video conferencing and recording of evidence. The Ministry of Home Affairs has also stated that Section 265 is among the BNSS provisions enabling examination of witnesses through audio-video electronic means.
Procedure under Sections 263 to 266 BNSS
- The Magistrate frames and explains the charge under Section 263 BNSS.
- If the accused pleads guilty, the plea is dealt with under Section 264 BNSS.
- If the accused claims trial, refuses to plead, does not plead, or is not convicted under Section 264, the Magistrate fixes a date for prosecution witnesses under Section 265.
- Police-recorded witness statements must be supplied in advance to the accused.
- Prosecution witnesses may be summoned on prosecution application.
- The Magistrate records the prosecution evidence and regulates cross-examination.
- Witness examination may be conducted by audio-video electronic means at the designated place notified by the State Government.
- After the prosecution stage, the proceeding may move to the defence evidence stage under Section 266 BNSS.
Why advance witness statements matter
The express requirement to provide police-recorded witness statements before examination is an important procedural feature of Section 265. It enables the accused to know the prior statements attributed to prosecution witnesses and to prepare the defence and cross-examination before those witnesses are examined.
Practical point: Section 265 should be read with the preceding charge and plea provisions. It is triggered when the case proceeds to trial rather than ending in conviction on a guilty plea under Section 264.
BNSS commencement
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act 46 of 2023. It came into force on July 1, 2024, subject to the notified exception concerning the First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
Related BNSS provisions
Readers may also refer to Section 261 - Compliance with Section 230, Section 262 - When accused shall be discharged, Section 263 - Framing of charge, Section 264 - Conviction on plea of guilty, and Section 266 - Evidence for defence.