Section 346, BNSS 2023 — the substance

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

Provided further that where witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.

And provided that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; and the fact that the advocate of a party is engaged in another Court shall not be a ground for adjournment.

And further: the inquiry or trial relating to the sexual offences the section specifies shall, as far as possible, be completed within two months from the date of filing of the charge sheet.

Where an adjournment is granted at the instance of a party, the Court may order costs occasioned by the adjournment to be paid by that party.

📖 State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667

Facts: Witnesses summoned by the prosecution attended the trial court on the dates fixed, and the court adjourned the case without examining them, repeatedly, on applications made by counsel. The witnesses eventually ceased to attend. The Supreme Court considered the practice of adjourning a case when witnesses are present.

Held: The Court held that the provision requiring the examination of witnesses to be continued from day to day until all the witnesses in attendance have been examined is a mandatory direction, and that the practice of adjourning a case when witnesses are present in court is indefensible. A witness who has travelled to court, often at his own expense and at the cost of a day’s earnings, and who is sent back unexamined, loses confidence in the system and frequently does not return — so that the adjournment does not merely delay the evidence, it destroys it. The Court held that a trial judge faced with a request for adjournment when witnesses are in attendance must examine them first, and that if an adjournment is genuinely unavoidable, the special reasons must be recorded in writing, the requirement being a real one and not a formula. It deprecated the routine grant of adjournments and directed that trial courts adhere to the statutory scheme.

Ratio: The requirement to continue the examination of witnesses from day to day until all witnesses in attendance are examined is mandatory. Adjourning a case when witnesses are present is indefensible: it does not delay the evidence, it destroys it.

📖 Vinod Kumar v. State of Punjab, (2015) 3 SCC 220

Facts: A trial was conducted over a long period, with the examination-in-chief of witnesses recorded on one date and cross-examination deferred to later dates at the request of the defence, the adjournments being granted as a matter of course. The Supreme Court examined the practice of deferring cross-examination and the grant of adjournments generally.

Held: The Court held that the routine deferment of cross-examination, and the grant of adjournments as a matter of course, erodes the quality of the evidence and is contrary to the statutory scheme of a day-to-day trial. A witness whose cross-examination is postponed for weeks or months is exposed in the meantime to pressure, inducement and the fading of memory, and the deferment is frequently sought for exactly that reason. The Court held that the provisions restricting adjournment are not idle formalities: the requirement that no adjournment be granted at the request of a party except where the circumstances are beyond the control of that party, and the express direction that an advocate being engaged in another Court is not a ground, must be applied. It observed that a trial judge who grants adjournments mechanically abdicates control of his own court, and issued directions for the expeditious conduct of trials.

Ratio: Deferring cross-examination and granting adjournments as a matter of course erodes the evidence and defeats the statutory scheme of a day-to-day trial. The restrictions on adjournment are to be applied, not treated as formalities.

⚠ Why default bail has no application after cognizance

The right under the proviso to section 187(3) arises from a failure to complete the investigation within the prescribed period. It is a sanction for delay by the investigating agency.

Once the report under section 193 is filed and the Court takes cognizance, the investigation is over and there is nothing left for the sanction to operate on. Detention thereafter is judicial custody during trial under section 346, and its justification is the pendency of the proceeding, not the progress of an investigation.

The accused is not without a remedy: he may apply for bail on the merits under Chapter XXXV at any stage, and the fifteen-day limit on each remand under section 346 requires the Court to apply its mind afresh at short intervals rather than remanding him indefinitely.

The position stated shortly

1. Section 346(1): every inquiry or trial shall be held as expeditiously as possible, and once the examination of witnesses has begun it shall be continued from day to day until all witnesses in attendance have been examined, unless adjournment is necessary for reasons recorded.

2. Section 346(2): the Court may, for reasons to be recorded, postpone or adjourn, and may by warrant remand the accused if in custody.

3. No Magistrate shall remand an accused to custody under this section for a term exceeding fifteen days at a time.

4. Where witnesses are in attendance, no adjournment shall be granted without examining them, except for special reasons to be recorded in writing.

5. No adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party; and an advocate being engaged in another Court is not a ground.

6. The trial of the sexual offences the section specifies shall, as far as possible, be completed within two months from the date of filing of the charge sheet.

7. Where an adjournment is granted at a party’s instance, the Court may order the costs occasioned by it to be paid by that party.

8. Adjourning a case when witnesses are present is indefensible: the adjournment does not delay the evidence, it destroys it, because the witness frequently does not return: Shambhu Nath Singh.

9. Routine deferment of cross-examination and mechanical adjournment erode the evidence and defeat the day-to-day scheme: Vinod Kumar.

10. Remand under section 346 is judicial custody during trial, limited to fifteen days at a time, with no default bail. Remand under section 187 is during investigation, may be police custody, and carries the default bail right on expiry of sixty or ninety days.