Code: Section 309 BNSS
309. (1) In all summons-cases tried before a Magistrate, in all inquiries under sections 165 to 168 (both inclusive), and in all proceedings under section 493 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.
Explanation of Section 309 BNSS
Section 309 BNSS mandates the recording of a memorandum summarizing the substance of the evidence as each witness is examined in certain types of proceedings. This requirement applies to:
- Summons-Cases:
Trials before a Magistrate where the case is initiated by a summons. - Inquiries Under Sections 165 to 168:
These sections generally relate to preliminary inquiries or investigations conducted by the Magistrate. - Proceedings Under Section 493 (Except during a Trial):
Proceedings that fall under Section 493 but are not part of a full trial process.
Key Points:
- Language of the Record:
The memorandum must be made in the language of the Court. This ensures consistency and comprehensibility of the official record. - Responsibility of the Magistrate:
The Magistrate is primarily responsible for making this memorandum as the evidence is given. However, if he is unable to do so—due to physical or other incapacity—he must record the reason for his inability and then ensure that the memorandum is prepared either in writing or by dictation in open Court. - Incorporation into the Record:
Once prepared, the memorandum must be signed by the Magistrate. This signed memorandum becomes an integral part of the official record of the proceedings, serving as a concise summary of the witness’s evidence.
This provision aims to maintain a clear and accurate record of the evidence presented, thereby facilitating transparency and aiding later review or appeal processes.
Illustration
Example 1: Standard Memorandum in a Summons-Case
In a summons-case, a witness is examined by the Magistrate. As the witness gives evidence, the Magistrate records a memorandum of the substance of the testimony in the official language of the Court. After the examination is complete, the Magistrate signs the memorandum, and it becomes part of the case record.
Example 2: Use of Dictation When the Magistrate is Unable to Write
During an inquiry under Section 166, the Magistrate experiences temporary physical difficulty and is unable to write the memorandum himself. He records the reason for his inability in open Court and directs an officer to take down the memorandum by dictation. Once the memorandum is prepared, the Magistrate reviews, signs it, and it is then filed as part of the record.
Common Questions and Answers on Section 309 BNSS
1. In which types of proceedings is the memorandum required?
- Answer:
The memorandum is required in all summons-cases tried before a Magistrate, in all inquiries under sections 165 to 168, and in all proceedings under section 493 that are not part of a trial.
2. What language must be used for the memorandum?
- Answer:
The memorandum must be made in the language of the Court.
3. What should the Magistrate do if he is unable to record the memorandum himself?
- Answer:
If the Magistrate is unable to record the memorandum himself, he must record the reason for his inability and then cause the memorandum to be made in writing or by dictation in open Court.
4. How is the authenticity of the memorandum ensured?
- Answer:
The memorandum is signed by the Magistrate, thereby certifying that it accurately reflects the substance of the evidence and forms an integral part of the official record.
Conclusion
Section 309 BNSS ensures that during certain types of judicial proceedings, a clear, concise, and accurate memorandum of the substance of each witness’s evidence is maintained. By requiring that the memorandum be recorded in the language of the Court and signed by the Magistrate, this provision upholds the integrity and transparency of the judicial record. For further legal insights and detailed guidance on evidentiary procedures, visit ApniLaw.
