SEMINAR

PRESENTATION

THEME – CHANLLENGES AND IMPLICATION

OF NEW CRIMINAL LAW REFORM
TOPIC
Legal framework for examination of
witness

BY YASHT THAKUR
LLM 1ST SEM
B248080180
 Examination of witness
 Examination of a witness is asking the witness questions regarding relevant
facts in the case and recording the statements of witnesses as evidence. There
are three parts to the examination of a witness and Section 138 of the
Evidence Act states that the witness must be examined in the following order:
 First, the party that called the witness examines him, this process is called
examination-in-chief as mentioned under Section 137 of the Indian Evidence
Act.
 After the completion of the examination-in-chief, if the opposite party wants to,
they can take over the witness and cross-question him about his previous
answers. The opposite party may ask him any question regarding all the
relevant facts and not merely the facts discussed during the examination-in-
chief. This process has been described in Section 137 of the act as cross-
examination.
 If the party that called the witness sees the need to examine the witness again
after cross-examination, they may examine the witness one more time. This
has been laid down as re-examination in Section 137 of the Indian Evidence
Act, 1872.
 Confession

 A confession is the acknowledgment of guilt, involving the admission or

implication of guilt by an accused individual made while in custody. As per
Justice Stephen, a “confession” is any admission made by a person facing
criminal charges, indicating or implying that they committed the alleged crime.

 According to Sir James Stephen “An admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed a
crime”.
 Though it an undiscovered fact that the term ‘confession’ is nowhere defined
or expressed in the Indian Evidence Act, but the inference explained under the
definition of admission in Section 17 of Indian evidence Act also applies to
confession in the same manner. Section 17 expressly provides that any
statement whether oral or in the form documentary which put forward for the
consideration of any conclusion to the fact in issue or to the relevant facts.
 Types of Confessions

 Formal Confession
 Informal Confession
 Retracted confession
 Judicial confession
 Extra-judicial confession
 Recording of confessions and statements
Under section 164 of CRPC

 [1] Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he

has jurisdiction in the case, record any confession or statement made to him
in the course of an investigation under this Chapter or under any other law
for the time being in force, or at any time afterwards before the
commencement of the inquiry or trial:
 [2] The Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him; and the Magistrate shall not
record any such confession unless, upon questioning the person making it, he
has reason to believe that it is being made voluntarily.
 [3]If at any time before the confession is recorded, the person appearing
before the Magistrate states that he is not willing to make the confession, the
Magistrate shall not authorise the detention of such person in police custody.
[4] Any such confession shall be recorded in the manner provided in section 281
for recording the examination of an accused person and shall be signed by the
person making the confession; and the Magistrate shall make a memorandum at
the foot of such record to the following effect:- “I have explained to (name) that he
is not bound to make a confession and that, if he does so, any confession he may
make may be used as evidence against him and I believe that this confession was
voluntarily made. It was taken in my presence and hearing, and was read over to
the person making it and admitted by him to be correct, and it contains a full and
true account of the statement made by him. (Signed) A.B. Magistrate”.

[5] Any statement (other than a confession) made under Sub-Section (1) shall be
recorded in such manner hereinafter provided for the recording of evidence as is,
in the opinion of the Magistrate, best fitted to the circumstances of the case; and
the Magistrate shall have power to administer oath to the person whose statement
is so recorded.

[6] The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.
Recording of confessions and statements Under section
183 of BNSS

 (1) Any Magistrate of the District in which the information about commission
of any offence has been registered, may, whether or not he has jurisdiction in
the case, record any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the time being in
force, or at any time afterwards but before the commencement of the inquiry or
trial:
 (2) The Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him; and the Magistrate shall not
record any such confession unless, upon questioning the person making it, he
has reason to believe that it is being made voluntarily.
 (3) If at any time before the confession is recorded, the person appearing
before the Magistrate states that he is not willing to make the confession, the
Magistrate shall not authorise the detention of such person in police custody.
 (4) Any such confession shall be recorded in the manner provided in section
316 for recording the examination of an accused person and shall be signed by
the person making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following effect:—
 (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter
provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the
case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
 (6) (a) In cases punishable under section 64, section 65, section 66, section 67, section 68, section 69, section 70,
section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya
Sanhita, 2023, the Magistrate shall record the statement of the person against whom such offence has been committed
in the manner specified in sub-section (5), as soon as the commission of the offence is brought to the notice of the
police:
 Provided that such statement shall, as far as practicable, be recorded by a woman Magistrate and in her absence by a
male Magistrate in the presence of a woman:
 Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or with
imprisonment for life or with death, the Magistrate shall record the statement of the witness brought before him by the
police officer:
 Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the
Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
 Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the
statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through
audio-video electronic means preferably by mobile phone;
 (b) a statement recorded under clause (a) of a person, who is temporarily or permanently, mentally or physically
disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 142 of the Bharatiya
Sakshya Adhiniyam, 2023 such that the maker of the statement can be cross-examined on such statement, without the
need for recording the same at the time of trial.
 (7) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the
case is to be inquired into or tried.
 Section 30 to Section 40 of BNSS (Provisions relating to Arrest starting from Section 35):
 Section 144-163 (Section 144,145,146 and 147 relate maintenance proceedings):
 Section 173-Section 187 (including section 173 relating to FIR):
 Section 188 to Section 209 (including section 193 relating to chargesheet/police report):
 Changes made in New criminal law

 Any district Magistrate where an offense is registered may

record confessions or statements via audio-video means in the
presence of the accused's advocate.
 Such statements should ideally be recorded by a female
Magistrate; if unavailable, a male Magistrate may record them
in the presence of a woman.
 In serious offenses, the Magistrate must record witness
statements presented by the police."
 These statements should ideally be recorded using audio-
video means, like a cell phone.
 SUGGESTIONS

 Clearer guidelines for victim support

 Provision for Intermediary or Advocate

 Eliminating Jurisdictional Confusion

 Timeline for Statement Recording

 Electronic Recording Standards

 CONCLUSION

 Compared to the IPC, the procedural law has undergone relatively

fewer changes both in terms of its content as well as reordering of the
existing sections. However, it does not mean that changes have not
been done.
 As discussed above, the new law does not have many inadvertent
errors, most notably the provision allowing discharge application after
framing of charges. These can be easily fixed by way of few
amendments to the text. By and large, most of the changes are well
meaning and much needed. The author would broadly group them
under five classifications: a. Removal of archaic and Insensitive terms
b. providing clarity in some procedures c. Providing progressive
safeguards and/or changes d. Provision of electronic/digital alternatives
for existing processes e. Expediting processes and/or making processes
time-bound.
Thank you