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Section 266 BNSS - Evidence for Defence

Section 266 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the defence evidence stage in a warrant-case instituted on a police report. After prosecution evidence under Section 265 BNSS, the accused is called upon to enter the defence, produce evidence and, where necessary, seek process for attendance of witnesses or production of documents or other things.

Key rule: The accused must be given an opportunity to enter upon the defence and produce evidence. A request for process to compel a defence witness or production of material must ordinarily be issued unless the Magistrate records in writing that the request is intended for vexation, delay or defeating the ends of justice.

Text of Section 266 of the BNSS, 2023

266. Evidence for defence. - (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice:

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.

(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

Meaning and scope of Section 266 BNSS

Section 266 follows the prosecution evidence stage under Section 265 BNSS. It ensures that the accused has an opportunity to present the defence case, place a written statement on record, summon witnesses and seek production of documents or other material required for the defence.

1. Right to enter upon the defence

Subsection (1) requires the accused to be called upon to enter upon the defence and produce evidence. This is the stage at which the accused may adduce evidence in answer to the prosecution case.

2. Written statement becomes part of the record

If the accused submits a written statement, the Magistrate must file it with the record. The provision therefore expressly recognises a written defence statement as part of the case record.

3. Process for defence witnesses and documents

After entering upon the defence, the accused may apply for process compelling a witness to attend for examination or cross-examination. The accused may also seek production of a document or other thing. As a general rule, the Magistrate must issue the requested process.

4. When the Magistrate may refuse process

The Magistrate may refuse the defence application only where it is considered to have been made for vexation, delay or defeating the ends of justice. If process is refused on one of those grounds, the Magistrate must record the ground in writing.

5. Recall of a witness already cross-examined

Where the accused has already cross-examined, or had an opportunity to cross-examine, a witness before entering upon the defence, that witness is not ordinarily compelled to attend again. The Magistrate may nevertheless require attendance if satisfied that it is necessary for the ends of justice.

6. Audio-video electronic examination

Section 266 expressly allows examination of a witness under subsection (2) by audio-video electronic means at a designated place notified by the State Government. This enables defence witness examination to be conducted electronically where the statutory and notified arrangements are followed.

7. Reasonable witness expenses

Before summoning a witness on the accused's application, subsection (3) permits the Magistrate to require deposit in Court of the reasonable expenses incurred by that witness for attending the trial.

Procedure from prosecution evidence to defence evidence

  1. The prosecution evidence is taken under Section 265 BNSS.
  2. The accused is then called upon to enter upon the defence under Section 266.
  3. The accused may produce oral or documentary defence evidence.
  4. Any written statement submitted by the accused must be filed with the record.
  5. The accused may apply for process to compel attendance of a witness or production of a document or other thing.
  6. The Magistrate ordinarily issues the process unless statutory grounds for refusal exist and are recorded in writing.
  7. Defence witness examination may be conducted through audio-video electronic means at a State-notified designated place.
  8. The Magistrate may require reasonable witness attendance expenses to be deposited before issuing summons.

Protection against arbitrary refusal of defence process

An important feature of Section 266 is that refusal of process is not left to an unexplained discretion. The statute identifies the permissible grounds - vexation, delay or defeating the ends of justice - and requires the Magistrate to record the ground in writing. This creates a reasoned judicial record of any refusal.

Practical point: A defence application for summoning a witness or producing material should clearly identify the witness, document or thing sought and its relevance to the defence. The Magistrate's statutory power to refuse process is tied to the specific grounds stated in Section 266(2).

Relationship with the former CrPC provision

Section 266 BNSS broadly performs the function earlier dealt with by Section 243 of the Code of Criminal Procedure, 1973 in warrant-cases instituted on a police report. The BNSS provision additionally contains express language permitting examination of a witness by audio-video electronic means at a designated place notified by the State Government.

BNSS commencement

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act 46 of 2023. The Central Government appointed July 1, 2024 as the date on which the Sanhita came into force, 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 263 - Framing of charge, Section 264 - Conviction on plea of guilty, Section 265 - Evidence for prosecution, Section 267 - Evidence for prosecution in cases instituted otherwise than on police report, Section 268 - Discharge, Section 269 - Procedure where accused is not discharged, and Section 270 - Evidence for defence.