Evidence That Needs No Formal Proof

The proviso matters. Where the report contains a statement of a suspect or witness to which sections 19, 26, 27, 158 or 160 of the Bharatiya Sakshya Adhiniyam, 2023 apply, that statement shall not be used under this sub-section except in accordance with those sections. In other words the identification report is admitted as a report; it is not a back door for statements that the law of evidence restricts.

Sub-section (2) is the same summoning rule as section 326: may if it thinks fit, shall on the application of either side.

Section 328, Mint and forensic officers. A report under the hand of a gazetted officer of a Mint, a Note Printing Press, a Security Printing Press including the office of the Controller of Stamps and Stationery, a Forensic Department or Division of a Forensic Science Laboratory, or a Government or State Examiner of Questioned Documents as the Central Government notifies, upon a matter duly submitted to him for examination and report in the course of a proceeding, may be used as evidence although he is not called.

Sub-section (2): the Court may if it thinks fit summon and examine him. Note the difference from sections 326 and 327: here there is no "shall on the application". And the proviso: no such officer shall be summoned to produce any records on which the report is based.

Sub-section (3): without prejudice to sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, such an officer may not, except with the permission of the General Manager or officer in charge of the establishment concerned, (a) give evidence derived from unpublished official records on which the report is based, or (b) disclose the nature or particulars of any test he applied.

Section 329, Government scientific experts. A report under the hand of a Government scientific expert to whom the section applies, upon a matter duly submitted to him for examination or analysis and report, may be used as evidence, sub-section (1). The Court may if it thinks fit summon and examine him, sub-section (2).

Sub-section (3) is the deputation rule. Where such an expert is summoned and is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute a responsible officer working with him who is conversant with the facts and can satisfactorily depose on his behalf.

Sub-section (4), the list, which is asked as a short question. The section applies to:

(a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Controller of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director of a Central or State Forensic Science Laboratory; (f) the Serologist to the Government; (g) any other scientific expert specified or certified by notification by the State Government or the Central Government.

Section 330: documents nobody disputes

This section was rewritten and it now has a timetable.

Sub-section (1). Where a document is filed before a Court by the prosecution or the accused, the particulars of every such document shall be included in a list, and the party or his advocate shall be called upon to admit or deny the genuineness of each document, soon after the supply of the documents, and in no case later than thirty days after such supply.

First proviso: the Court may in its discretion relax the time limit, with reasons recorded in writing.

Second proviso, and it is new and important: no expert shall be called to appear before the Court unless the report of that expert is disputed by any of the parties to the trial.

Sub-section (2). The list is in the form the State Government provides by rules.

Sub-section (3). Where the genuineness of a document is not disputed, it may be read in evidence without proof of the signature of the person by whom it purports to be signed. Proviso: the Court may in its discretion require the signature to be proved.

So the design is: the parties are made to say early, within thirty days, what they actually dispute; and expert time is spent only on what is disputed.

Sections 331 to 333: affidavits

Section 331, allegations against public servants. Where an application made in the course of a proceeding makes allegations respecting a public servant, the applicant may give evidence of the facts alleged by affidavit, and the Court may if it thinks fit order that evidence relating to those facts be so given.

Section 332, formal evidence. The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence. Sub-section (2): the Court may if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine him on the facts in his affidavit.

Section 333, where an affidavit is sworn. Affidavits used before a Court under the Sanhita may be sworn or affirmed before:

(a) any Judge or Judicial or Executive Magistrate; (b) any Commissioner of Oaths appointed by a High Court or Court of Session; (c) any notary appointed under the Notaries Act, 1952.

Sub-section (2): affidavits shall be confined to, and shall state separately, the facts the deponent can prove from his own knowledge and those he has reasonable ground to believe to be true, and in the second case he shall clearly state the grounds of his belief.

Sub-section (3): the Court may order any scandalous and irrelevant matter to be struck out or amended.

Sections 334 and 335: previous convictions, and the absconder

Section 334, proving a previous conviction or acquittal. In addition to any other mode provided by law, it may be proved:

(a) by an extract certified under the hand of the officer having custody of the records of the Court where the conviction or acquittal was held, to be a copy of the sentence or order; or (b) in the case of a conviction, either by a certificate signed by the officer in charge of the jail where the punishment or part of it was undergone, or by production of the warrant of commitment under which the punishment was suffered,

together with, in each case, evidence as to the identity of the accused with the person so convicted or acquitted.

That last clause is the answer to the standing question. The record proves the conviction; it does not prove that this man is the man convicted. Identity must be separately proved.

Section 335, recording evidence when the accused has absconded.

Sub-section (1). If it is proved that an accused has absconded and that there is no immediate prospect of arresting him, the Court competent to try or commit him may, in his absence, examine the witnesses produced for the prosecution and record their depositions. On his arrest, such a deposition may be given in evidence against him if the deponent is dead, or incapable of giving evidence, or cannot be found, or his presence cannot be procured without unreasonable delay, expense or inconvenience.

Sub-section (2), the offender unknown. Where it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct a Magistrate of the first class to hold an inquiry and examine any witnesses who can give evidence concerning the offence. Those depositions may be given in evidence against any person subsequently accused of the offence, if the deponent is dead, incapable of giving evidence, or beyond the limits of India.

Do not confuse section 335 with section 356. Section 335 preserves evidence while the accused is absent; section 356 permits the trial and judgment itself in his absence. That is the next chapter but one.

Section 336: the successor officer

This is the new section, and it solves an old, ordinary problem: the doctor who did the post-mortem in 2019 has retired, and the trial is in 2026.

Where a document or report prepared by a public servant, scientific expert or medical officer is to be used as evidence, and:

(i) he is transferred, retired, or died; or (ii) he cannot be found or is incapable of giving deposition; or (iii) securing his presence is likely to cause delay in the inquiry, trial or proceeding,

the Court shall secure the presence of the successor officer holding that post at the time of the deposition, to depose on that document or report.

First proviso: no public servant, scientific expert or medical officer shall be called to appear unless the report is disputed by any of the parties.

Second proviso: the deposition of the successor may be allowed through audio-video electronic means.

Note what section 336 does and does not do. It does not make the report inadmissible without the successor; it directs the Court, in the listed situations, to secure the successor so that the report can be spoken to by somebody who holds the post. And it is expressly limited by the first proviso to disputed reports.

A worked example

A trial for culpable homicide. The prosecution files the post-mortem report, a Forensic Science Laboratory report on bloodstains, an Executive Magistrate's identification report, and the seizure documents.

Documents. All of them go into a list, and both sides are called upon to admit or deny genuineness within thirty days of supply, section 330(1). The defence disputes only the FSL report.

What follows from that. The undisputed documents may be read in evidence without proof of signature, section 330(3). And no expert is called on them at all, because the second proviso to section 330(1) says an expert appears only where his report is disputed.

The post-mortem doctor has been transferred to another State. Section 336 applies: the Court shall secure the presence of the successor holding that post, and his deposition may be taken through audio-video electronic means.

The FSL report, which is disputed. The Director of the State Forensic Science Laboratory is a Government scientific expert under section 329(4)(e). The Court may summon and examine him, section 329(2). He is on tour and cannot attend; he may depute a responsible officer conversant with the facts, section 329(3), unless the Court has expressly directed him to appear personally.

The defence asks that he produce the laboratory's internal records. If the officer falls under section 328, the proviso to section 328(2) is a flat bar: he shall not be summoned to produce the records on which the report is based; and section 328(3) bars evidence from unpublished official records or disclosure of the tests applied, except with the permission of the officer in charge.

The identification report. Usable although the Executive Magistrate is not called, section 327(1); but a suspect's statement inside it may be used only in accordance with the Bharatiya Sakshya Adhiniyam sections named in the proviso. Either side may insist on summoning the Magistrate: section 327(2) says the Court shall do so on application.

The prosecution wants to prove that the accused has an earlier conviction. A certified extract of the sentence or order, or a jail certificate or the warrant of commitment, plus evidence identifying this accused as that convict, section 334.

Now change the facts. The accused absconds before the trial and there is no immediate prospect of arrest. The Court may examine the prosecution witnesses in his absence and record their depositions, section 335(1); those depositions may be used against him after arrest only if the deponent is dead, incapable, untraceable, or unprocurable without unreasonable delay, expense or inconvenience.

Distinctions

What this does NOT mean

It does not mean these documents cannot be challenged. Every one of sections 326, 327, 328, 329 and 332 carries a power to summon the maker, and in three of them the Court must do so if a party applies.

It does not mean a party may sit on its objections. Section 330(1) puts a thirty day clock on admitting or denying genuineness, relaxable only by the Court, for reasons in writing.

Section 330(3) does not make an undisputed document conclusive. It dispenses with proof of the signature, and even that is subject to the Court's discretion to require it.

Section 334 does not prove identity. A certified extract or jail certificate proves the conviction; evidence of identity is separately required.

And section 336 does not admit anything new. It tells the Court whom to bring, in place of an officer who has gone, and its first proviso limits the whole exercise to disputed reports.

Quick revision

• 326: a medical witness's deposition, attested by a Magistrate in the accused's presence or taken on commission, is evidence without calling him; Court shall summon him on either party's application.
• 327: an Executive Magistrate's identification report is evidence without calling him; statements inside it are governed by the named Bharatiya Sakshya Adhiniyam sections; Court shall summon on application.
• 328: reports of Mint, note and security press, forensic and questioned-document officers; Court may summon; never to produce the underlying records; no unpublished records or test particulars without permission of the officer in charge.
• 329: reports of Government scientific experts, the seven-entry list in sub-section (4); Court may summon; he may depute a responsible officer unless expressly directed to attend personally.
• 330: documents go into a list; genuineness admitted or denied within thirty days of supply, relaxable with reasons; an expert appears only if his report is disputed; undisputed documents read without proof of signature.
• 331 to 333: affidavits, for allegations against public servants and for formal evidence; sworn before a Judge, Magistrate, Commissioner of Oaths or notary; knowledge and belief stated separately, with grounds of belief; scandalous matter struck out.
• 334: previous conviction or acquittal by certified extract, or, for a conviction, by jail certificate or warrant of commitment, plus evidence of identity.
• 335: where the accused has absconded, prosecution evidence may be recorded in his absence and used later only if the deponent is dead, incapable, untraceable or unprocurable; where the offender is unknown in a death or life case, a first class Magistrate may hold an inquiry on the direction of the High Court or Sessions Judge.
• 336: where the maker is transferred, retired, dead, untraceable, incapable, or would delay the trial, the Court shall secure the successor to depose, only if the report is disputed, and the deposition may be by audio-video electronic means.

Test yourself

1. Can a post-mortem report be read without calling the doctor? His deposition can, if it was taken and attested by a Magistrate in the presence of the accused or taken on commission, section 326(1); and either party may insist that he be summoned, section 326(2).

2. Which officers may not be asked to produce the records their report rests on? The officers listed in section 328, by the proviso to sub-section (2); and by sub-section (3) they may not give evidence from unpublished official records or disclose the tests applied, without the permission of the officer in charge.

3. A Chemical Examiner to Government is summoned but cannot attend. What may he do? Unless the Court has expressly directed him to appear personally, he may depute a responsible officer working with him who is conversant with the facts and can satisfactorily depose on his behalf, section 329(3).

4. By when must a party say whether it disputes a filed document? Soon after supply and in no case later than thirty days after supply, section 330(1); the Court may relax that in its discretion for reasons recorded in writing.

5. When must an expert be called to court at all? Only when his report is disputed by a party, second proviso to section 330(1), repeated in the first proviso to section 336.

6. How is a previous conviction proved? By a certified extract of the sentence or order, or by a certificate of the officer in charge of the jail or the warrant of commitment, in each case together with evidence identifying the accused as the person convicted, section 334.

7. The doctor who made the report has died. What does the Court do? Where the report is disputed, section 336 directs the Court to secure the presence of the successor officer holding that post to depose on the report, and permits that deposition through audio-video electronic means.