In a criminal trial the record of evidence is not a clerical by-product — it is the trial. The appellate court that decides life and liberty years later never hears the witness; it reads the deposition the trial judge dictated. Chapter XXIII of the Code of Criminal Procedure, 1973 (Sections 272 to 299), now re-enacted as Chapter XXV of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 307 onwards), lays down with deliberate precision who must be present when evidence is taken, in what language it is recorded, in what form for each class of case, how it is read back and authenticated, and when a court may take evidence on commission or in the accused's absence. These notes work through those provisions clause by clause, anchoring each to the controlling authority — from State of Maharashtra v. Praful B. Desai on constructive presence to Atma Ram v. State of Rajasthan on the consequences of recording evidence behind the accused's back — so that a candidate can both state the rule and explain why it bites.
Where the Recording Provisions Sit
Recording of evidence is governed by Chapter XXIII of the Code of Criminal Procedure, 1973, headed ‘Evidence in Inquiries and Trials’, running from Section 272 to Section 299. The Bharatiya Nagarik Suraksha Sanhita, 2023, carries the same architecture forward in Chapter XXV: Section 273 CrPC becomes Section 308 BNSS, Section 274 becomes 309, Section 275 becomes 310, Section 276 becomes 311, Section 278 becomes 313, Section 279 becomes 314, Section 280 becomes 315 and Section 281 becomes 316. The renumbering is near-mechanical — the substance is untouched — so authorities decided under the Code remain good law for the Sanhita, and a candidate should cite both numbers.
The chapter sits downstream of charge framing and upstream of the examination of the accused under Section 313 CrPC / Section 351 BNSS. Once the charge is read and the accused pleads not guilty, the prosecution leads its evidence; everything in these provisions controls how that evidence enters the record. The governing principle, repeated across the sections, is that a criminal trial is conducted in the presence of the accused and on a record the accused has heard and the witness has affirmed.
Section 272 -- Language of the Court
Section 272 CrPC (Section 307 BNSS) empowers the State Government to determine the language of each court within the State, other than the High Court. This is the silent premise of the whole chapter: evidence is recorded in the language so determined, and the machinery of translation and interpretation in Sections 277 to 279 exists precisely because witnesses, the accused and the record may not all speak that language. The High Court's language is fixed under Article 348 of the Constitution — English, subject to authorisation of Hindi or a State language under Article 348(2).
The choice of court language is not a formality. Where evidence is given in a language the accused does not follow, Section 279 makes interpretation in open court mandatory; failure goes to the fairness of the trial itself, because an accused who cannot understand the testimony against him cannot meaningfully instruct counsel to cross-examine. The provision also explains why the Criminal Rules of Practice of each High Court devote detailed rules to translation of depositions.
Section 277 CrPC (Section 312 BNSS) carries this through to the record itself. If the witness gives evidence in the language of the court, it is taken down in that language; if he gives evidence in another language it may, if practicable, be taken down in that language, failing which a true translation in the language of the court is prepared as the examination proceeds, signed by the presiding officer, and made part of the record. Where the deposition is recorded in a language other than English, a true English translation is prepared if the accused or the prosecution so requires. The object is a record that is faithful to what the witness actually said and intelligible to every court that will later read it — the cold print on which an appellate bench, years later, will reconstruct the trial.
Section 273 -- Evidence in the Presence of the Accused
Section 273 CrPC (Section 308 BNSS) is the cornerstone: ‘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 pleader.’ The rule guarantees the accused the right to watch the witness depose and to have that testimony tested by cross-examination as it is recorded — a facet of the fair-trial guarantee under Article 21.
That the requirement is mandatory was driven home in Atma Ram v. State of Rajasthan (2019), where the Supreme Court found that several prosecution witnesses had been examined without the accused or their pleader present. The Court held the resulting depositions could not be read against the accused and directed the trial court to re-record that evidence de novo, with presence ensured. The case is the standard authority for the proposition that evidence taken behind the accused's back is a nullity to that extent, curable only by fresh recording. The proviso to Section 273 (carried into Section 308 BNSS) permits, in cases of sexual offences against a person under eighteen, recording measures that ensure the victim is not confronted by the accused — a statutory echo of the witness-protection directions in Sakshi v. Union of India (2004).
Constructive Presence and Video Conferencing
Does ‘presence’ in Section 273 mean physical presence? In State of Maharashtra v. Praful B. Desai (2003) 4 SCC 601 the Supreme Court answered no. Recording the evidence of a witness (there, a doctor in the United States) through video conferencing satisfies Section 273 because the section contemplates constructive presence: the accused and his pleader can see and hear the witness, and cross-examine in real time, as clearly as if the witness were in the dock — indeed, the Court observed, often more clearly than across a crowded courtroom. The evidence so recorded is ‘evidence’ within Section 3 of the Evidence Act. The decision is the foundational authority for remote testimony and now underpins the express recognition of audio-video electronic means throughout the BNSS.
Praful Desai was complemented by Sakshi v. Union of India (2004), which permitted screens and video links so that a vulnerable witness, particularly a child victim of sexual abuse, need not face the accused while deposing, with cross-examination routed in writing through the presiding officer. Read together, the two decisions show that Section 273 protects the accused's right to confront the evidence without requiring a physical face-off that would traumatise the witness.
Section 274 -- Record in Summons Cases and Inquiries
Section 274 CrPC (Section 309 BNSS) governs the lightest form of record. In summons cases tried by a Magistrate, and in inquiries under Chapter XII, the Magistrate is not required to take down the evidence verbatim; he prepares a memorandum of the substance of what each witness deposes, in the language of the court, and signs it, and the memorandum forms part of the record. The rationale is proportionality: summons cases concern the least serious offences, where the stakes do not justify a full deposition. The memorandum must nevertheless capture the substance accurately, because it is what the appellate or revisional court will read. The contrast with the warrant-case and sessions regimes below is a favourite examiners' point: the gravity of the case dictates the fullness of the record.
Section 275 -- Record in Warrant Cases
Section 275 CrPC (Section 310 BNSS) raises the standard for warrant cases tried by a Magistrate. Here the evidence of each witness ‘shall be taken down in writing either by the Magistrate himself or by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him.’ The evidence is ordinarily recorded in the form of a narrative, though the Magistrate may, in his discretion, take down any part in the form of question and answer. The sub-section also expressly allows the record to be made by audio-video electronic means in the presence of the advocate of the accused — an amendment that the BNSS retains and extends, reflecting the trajectory begun in Praful Desai.
The signature requirement matters: the record so taken is signed by the Magistrate and forms part of the record. The narrative form is deliberate — it produces a continuous, readable account rather than a fragmented question-and-answer — but the discretion to switch to question-and-answer exists for passages where the precise words matter, such as an admission or a contradiction being put to the witness under Section 145 of the Evidence Act.
Section 276 -- Record in Sessions Trials
Section 276 CrPC (Section 311 BNSS) applies to trials before a Court of Session, the most serious class. The evidence of each witness is taken down in writing by the presiding judge himself, or by his dictation in open court, or under his direction and superintendence by an officer of the court. As in warrant cases, the record is ordinarily a narrative, with discretion to record any part in question-and-answer form. Section 276(3) adds a power peculiar to sessions trials: the presiding judge may, on a point of importance, record not only the substance but the actual words of the witness — the device by which a judge preserves the exact phrasing of a crucial admission or an evasive answer for appellate scrutiny.
Because the Sessions Judge personally records the evidence, the deposition carries the imprimatur of the judge who saw the witness depose — which is why appellate courts give weight to the trial court's assessment of credibility even though they read only the cold record. The graded scheme across Sections 274, 275 and 276 repays close study for an examiner's question: a memorandum of substance in summons cases, a full narrative in warrant cases, and a full narrative by the judge's own hand with a power to capture the actual words in sessions trials. The fullness of the record tracks the gravity of the offence and the consequences of error, so that the gravest cases produce the most complete and most personally authenticated record.
Section 278 -- Reading Over and Correction
Section 278 CrPC (Section 313 BNSS) is the authentication step. As the evidence of each witness taken under Section 275 or Section 276 is completed, it ‘shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.’ If the witness denies the correctness of any part, the judge may, instead of altering the record, make a memorandum of the objection and add such remarks as he thinks fit. Where the record is in a language the witness does not understand, it is interpreted to him.
The object of reading over is accuracy and accountability, not a licence to revise testimony. The Orissa High Court, construing Section 278, held that once the deposition has been read over and the witness has signed it, he cannot later seek to modify or correct his recorded statements — the section secures the integrity of the record, it does not let a witness change his story after the event. Reading over here is the analogue of the reading-over-and-correction discipline that governs charge framing: in both, the formal act of reading back and authenticating is what converts a draft into a binding court record.
Sections 279 and 282 -- Interpretation to the Accused
Section 279 CrPC (Section 314 BNSS) protects the accused's comprehension. Whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it must be interpreted to him in open court in a language he understands. If he appears by pleader and the evidence is in a language other than the language of the court, and not understood by the pleader, it is interpreted to the pleader. The provision is the practical guarantee behind the fair-trial logic of Section 273: presence is meaningless if the accused cannot follow what is being said. Interpretation in open court — not whispered or deferred — is the statutory command.
Section 282 CrPC (Section 317 BNSS) makes that machinery trustworthy. When the services of an interpreter are required by any criminal court for the interpretation of any evidence or statement, the interpreter is bound to state the true interpretation of the evidence or statement; he thereby comes under a duty of truth enforceable by the penal law on false evidence, and a deliberately false interpretation is itself an offence. Because Sections 277, 278 and 279 all depend on accurate translation, the binding duty in Section 282 is the keystone that holds the language provisions of the chapter together.
Section 280 -- Remarks on Demeanour
Section 280 CrPC (Section 315 BNSS) allows the presiding judge or Magistrate, when recording the evidence of a witness, to record such remarks as he thinks material respecting the demeanour of the witness while under examination. Demeanour — hesitation, evasiveness, composure under cross-examination — is something only the trial judge observes and the appellate court can never see. A contemporaneous note under Section 280 preserves that fleeting impression and is one reason appellate courts are slow to overturn a trial court's assessment of a witness's credibility. The remark must be material and recorded at the time, not reconstructed in the judgment.
Section 281 -- Record of Examination of the Accused
Section 281 CrPC (Section 316 BNSS) governs how the accused's own examination is recorded — the bridge to the dedicated examination of the accused under Section 313 CrPC / Section 351 BNSS. When a Metropolitan Magistrate examines the accused, he records only a memorandum of the substance. But where the accused is examined by any other Magistrate or by a Court of Session, ‘the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full’ by the presiding officer himself or by his dictation. The full record is then shown or read to the accused, or interpreted in a language he understands, he is at liberty to explain or add to his answers, and the record is signed by the accused and the judge or Magistrate, who certifies that it contains a true and full account of the accused's statement.
The insistence on a full, verbatim, signed record reflects the special character of the Section 313 examination: it is the accused's unsworn opportunity to explain the incriminating circumstances, and a defective record can vitiate the trial. The fair-opportunity principle running through Section 281 connects to the accused's right to a meaningful defence recognised in Kalyani Baskar v. M. S. Sampoornam (2007), where the Supreme Court treated the accused's procedural rights at trial as substantive, not formal.
Section 283 -- Record in the High Court
Section 283 CrPC (Section 318 BNSS) leaves the manner of recording evidence in cases coming before a High Court to that court's own general rules. This is why the recording chapter must be read alongside each High Court's Criminal Rules of Practice and Circular Orders, which prescribe the form of depositions, the marking of exhibits, pagination and authentication of the record — the practical detail the Code leaves to the courts. For a Criminal Rules of Practice paper the bare Code sections are the skeleton; the High Court rules made under Section 283, traced from the constitution and sittings of criminal courts, are the flesh.
Sections 284 to 291 -- Evidence on Commission
Sections 284 to 291 CrPC (Sections 319 onwards in the BNSS) provide the exception to live testimony in court. Under Section 284, where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances, is unreasonable, the court may dispense with attendance and issue a commission to examine the witness — subject to the proviso that where the witness is the accused, the commission may not issue at the prosecution's instance unless the accused is also given the opportunity. Section 285 directs the commission to the appropriate Magistrate depending on whether the witness is within India, in another part of India, or in a country with reciprocal arrangements. Section 286 imports the warrant-case procedure for taking the evidence; Section 287 secures the parties' right to forward written interrogatories and to appear by counsel to examine, cross-examine and re-examine.
Section 288 provides that the executed commission, with the deposition, is returned to the court that issued it, becomes open to inspection by the parties, and ‘may, subject to all just exceptions, be read in evidence in the case’ — the deposition stands in for live testimony. Section 289 mandates adjournment to allow the commission to be executed and returned. Section 291 separately allows the deposition of a civil surgeon or other medical witness, taken before a Magistrate or on commission, to be used as evidence even though the deponent is not called, with a discretion in the court to summon and examine him. These provisions are a measured departure from the Section 273 norm of presence, justified by necessity and hedged with safeguards.
Section 299 -- Evidence of an Absconding Accused
Section 299 CrPC is the narrowest exception to presence. Where it is proved that an accused has absconded and there is no immediate prospect of arresting him, the court competent to try or commit him may, in his absence, examine the witnesses produced on behalf of the prosecution and record their depositions. Such a deposition may, on the arrest of the accused, be given in evidence against him on the inquiry into or trial for the offence — but only if the deponent is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without an amount of delay, expense or inconvenience which is unreasonable. Section 299 thus admits evidence recorded without the accused present, but confines its later use to strict conditions that mirror Section 33 of the Evidence Act. It is the statutory recognition that an accused cannot defeat a trial indefinitely by absconding, balanced against his right to confrontation once he is before the court. The conditions are not a formality: the prosecution must prove both the abscondence and the later unavailability of the deponent before a Section 299 deposition can be used, and the section is to be construed strictly because it deprives the accused of the cross-examination that Section 273 ordinarily guarantees.
Objections to Admissibility and a Clean Record
A practical question that recurs in recording evidence is what the trial judge should do when an objection to the admissibility of a document or answer is raised mid-deposition. In Bipin Shantilal Panchal v. State of Gujarat (2001) the Supreme Court deprecated the old practice of stopping to rule on every objection, holding that the trial court should ordinarily admit the evidence subject to objection, record it, mark the exhibit with a note that it is objected to, and decide the objection at the stage of final judgment. This saves judicial time, spares witnesses repeated recall, and lets the appellate court review the disputed material on a complete record. The Court carved out one exception — an objection that a document is inadmissible for want of proper stamp duty must be decided then and there, because admission of an insufficiently stamped instrument is itself barred. Bipin Panchal is therefore the working rule that keeps the recording of evidence flowing while preserving every objection for later decision, and it dovetails with the filing discipline traced from complaints, FIRs and charge-sheets onward.
Frequently asked questions
Does Section 273 CrPC require the physical presence of the accused?
No. In State of Maharashtra v. Praful B. Desai (2003) 4 SCC 601 the Supreme Court held that ‘presence’ under Section 273 (now Section 308 BNSS) includes constructive presence, so evidence may be recorded by video conferencing provided the accused and his pleader can see, hear and cross-examine the witness in real time. Physical presence is the norm but not an inflexible requirement.
What happens if evidence is recorded without the accused present?
That evidence cannot be read against the accused. In Atma Ram v. State of Rajasthan (2019) the Supreme Court directed de novo re-recording of witness statements that had been taken in the accused's absence, treating the breach of Section 273 as fatal to that part of the record unless cured by fresh recording in his presence.
How does the form of record differ across summons cases, warrant cases and sessions trials?
Under Section 274 the Magistrate in a summons case records only a memorandum of the substance of the evidence. Under Section 275 in a warrant case the evidence is taken down in full, usually in narrative form, by or under the direction of the Magistrate. Under Section 276 in a sessions trial the presiding judge personally records the evidence, with power under Section 276(3) to record the actual words on important points.
What is the purpose of reading over evidence under Section 278?
Section 278 requires the completed deposition to be read over to the witness in the presence of the accused or his pleader and corrected if necessary. The object is accuracy and accountability of the record, not to let a witness rewrite his testimony — once read over and signed, the High Courts have held the witness cannot later seek to modify the recorded statement.
When can a court take evidence on commission instead of in open court?
Under Section 284 CrPC a court may dispense with a witness's attendance and issue a commission where securing attendance would involve unreasonable delay, expense or inconvenience. The executed commission is returned, opened to the parties under Section 288, and may be read in evidence subject to just exceptions, with the parties' cross-examination rights preserved by Section 287.
How should a trial judge handle an objection to admissibility while recording evidence?
Per Bipin Shantilal Panchal v. State of Gujarat (2001), the judge should admit the evidence subject to objection, mark it as objected to, continue recording, and decide the objection in the final judgment — except an objection based on insufficient stamp duty, which must be decided immediately because an unstamped instrument cannot be admitted at all.