General Provisions as to Inquiries and Trials | BNSS 2023

General Provisions as to Inquiries and Trials: Chapter XXVI of the BNSS, 2023, Sections 337 to 366, Trial in Absentia, Compounding, Withdrawal and the Court’s Powers

Chapter XXVI collects the provisions that apply to every trial, whatever its form. It contains thirty sections, and they fall into four groups: the protections of the accused; the conduct of the prosecution; the court’s powers over the proceeding; and the provisions dealing with absence, openness and transfer.

Two changes in the Chapter are substantial. Section 356 is entirely new: it permits a proclaimed offender who has absconded to evade trial to be tried in his absence, subject to heavy safeguards. And section 360 now requires the victim to be given an opportunity of being heard before the Court consents to a withdrawal from prosecution — a right the Code of Criminal Procedure did not confer.

1. The Scheme

Figure 1: Chapter XXVI mapped

1.1 The protections of the accused

Provision	Content
Section 337	Person once convicted or acquitted not to be tried again. The statutory rule against double jeopardy, examined separately in this series
Section 340	The right to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted, may of right be defended by an advocate of his choice
Section 341	Legal aid at State expense. Where in a trial before a Court of Session the accused is not represented by an advocate, and where it appears that he has not sufficient means to engage one, the Court shall assign an advocate for his defence at the expense of the State. The High Court may make rules as to the mode of selection, the facilities to be allowed and the fees payable; and the State Government may extend the provision to any class of trials before other Courts
Section 351	Examination of the accused. The Court may at any stage, and shall after the prosecution witnesses have been examined and before he is called on for his defence, question the accused generally on the case so as to enable him personally to explain any circumstances appearing in the evidence against him. No oath is administered; his refusal to answer or false answers do not render him liable to punishment, though the Court may draw such inference as it thinks just. The examination may be conducted by audio-video electronic means
Section 353	The accused as a competent witness. Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges — but only on his own written request, and his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court, or give rise to any presumption against himself or any co-accused
Section 354	No influence to induce disclosure. Except as provided in the provisions relating to the tender of pardon, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge
Section 357	Where the accused does not understand the proceedings. If the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and in the case of a Court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances, and the High Court shall pass such order as it thinks fit

📖 Asraf Ali v. State of Assam, (2008) 16 SCC 328

Facts: The accused was convicted in a trial in which circumstances appearing in the evidence against him had not been put to him when he was examined under the provision corresponding to section 351. The question was the nature of that examination and the consequence of failing to put a material circumstance.

Held: The Supreme Court held that the examination of the accused is not an empty formality. Its object is to establish a direct dialogue between the Court and the accused and to give him an opportunity to explain the incriminating circumstances appearing against him, and the section is founded on the principle of natural justice — that no material should be used against a person without giving him an opportunity to explain it. It follows that each material circumstance appearing in the evidence must be put to him separately and distinctly, in a form he can understand; a compendious or omnibus question does not satisfy the section. Where a circumstance has not been put, it must be excluded from consideration in deciding the case. The Court held that whether the omission has caused prejudice depends on the facts, and that where it has, the proper course may be a remand for a fresh examination rather than an acquittal.

Ratio: The examination of the accused is not a formality. Each incriminating circumstance must be put separately and distinctly, and a circumstance not put to the accused cannot be used against him.

2. The Court’s Powers over the Proceeding

Provision	Content
Sections 343 to 345	Pardon to an accomplice. Section 343 permits the Chief Judicial Magistrate or a Magistrate of the first class, and at any stage of the investigation, inquiry or trial, to tender a pardon to a person supposed to have been directly or indirectly concerned in an offence, on condition of his making a full and true disclosure of the whole of the circumstances. Every person accepting a tender shall be examined as a witness, and shall, unless already on bail, be detained in custody until the termination of the trial. Section 344 permits the Court to direct the Public Prosecutor to tender a pardon. Section 345 governs the trial of a person who has not complied with the conditions of the pardon
Section 346	Postponement and adjournment. The Court may, if it thinks fit, and for reasons to be recorded, postpone or adjourn any inquiry or trial. Where witnesses are in attendance, no adjournment shall be granted without examining them, except for special reasons to be recorded in writing. 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 an advocate is engaged in another Court shall not be a ground for adjournment
Section 347	Local inspection. Any Judge or Magistrate may, at any stage of an inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, and shall without unnecessary delay record a memorandum of any relevant facts observed, which shall form part of the record
Section 348	Summoning a material witness, and recall. Any Court may, at any stage, summon any person as a witness, or examine any person in attendance though not summoned, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case
Section 349	Specimen signatures or handwriting. A Magistrate of the first class may, for the purposes of any investigation or proceeding, order any person to give specimen signatures or handwriting or finger impressions or voice samples, and may do so in respect of a person who has not been arrested, for reasons to be recorded
Section 358	Proceeding against other persons appearing guilty. Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which he could be tried together with the accused, the Court may proceed against such person for the offence he appears to have committed

📖 Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

Facts: A trial in a case of grave communal violence concluded in acquittals after a large number of witnesses turned hostile in circumstances suggesting intimidation, the prosecution was conducted without vigour, and the trial court did not use its powers to secure the truth. The Supreme Court considered what a fair trial requires of a court.

Held: The Court held that a fair trial means a trial fair to the accused, to the prosecution and to the victims and the society, and that a criminal trial is not a contest in which the court is a mere umpire. The judge is not a spectator: he has a duty to find the truth, and the Sanhita gives him the means — in particular the power to summon a material witness or recall and re-examine any person already examined, which the section makes a duty where the evidence appears essential to the just decision of the case. The Court held that where witnesses are intimidated or the prosecution is not conducted properly, the court must intervene rather than record an acquittal on a record it knows to be incomplete, and that failure to use these powers may itself vitiate the trial. It directed a retrial, observing that the principles of a fair trial are not satisfied by a proceeding that merely goes through the motions.

Ratio: A fair trial is fair to the accused, the prosecution, the victim and society. A judge is not a spectator: the power to summon or recall a witness becomes a duty where the evidence appears essential to the just decision of the case.

3. Compounding and Withdrawal

	Compounding · section 359	Withdrawal from prosecution · section 360
Who acts	The person specified in the table as competent to compound — ordinarily the victim	The Public Prosecutor or Assistant Public Prosecutor in charge of the case
Which offences	Only those listed in the table. Some may be compounded without the Court’s permission, others only with it	Any offence, at any time before the judgment is pronounced
The Court’s role	Permission where the table requires it. Composition of an offence in the second table without permission is ineffective	Consent of the Court is required, and it is not a formality: the Court must be satisfied that the withdrawal serves the ends of justice
The victim	He is the person who compounds	He must be given an opportunity of being heard — and that requirement is new
Effect	Composition has the effect of an acquittal of the accused	Before the charge, the accused is discharged; after the charge, or where no charge is required, he is acquitted
Attempt and abetment	The abetment of a compoundable offence, and an attempt to commit it, are compoundable in like manner	Does not arise
Who may not compound	Where the person is under eighteen, an idiot or a lunatic, any person competent to contract on his behalf may compound with the permission of the Court	Does not arise

⚠ The victim’s right to be heard on a withdrawal is new

Under the Code of Criminal Procedure, a withdrawal from prosecution was a matter between the Public Prosecutor and the Court. The victim had no statutory right to be heard, and frequently learnt of the withdrawal after it had been allowed.

Section 360 now provides that where the case relates to an offence affecting a victim, the Court shall give the victim an opportunity of being heard before according its consent. That is of a piece with the other provisions in the Sanhita giving the victim a standing — the free copy of the FIR under section 173(2), the progress update under section 193(3), the supply of documents under section 230, and participation in a plea-bargaining disposition under section 291.

The consent of the Court was never a formality even under the earlier law. The Court must apply its mind to whether the withdrawal advances the ends of justice, and must be satisfied that the Public Prosecutor has himself applied his mind rather than acting on an executive instruction.

4. Trial in Absentia: Section 356

Figure 2: The new provision, and its safeguards

Section 355 carries forward the earlier provision permitting an inquiry or trial to proceed in the absence of an accused whose personal attendance has been dispensed with and who is represented by an advocate, or who persistently disturbs the proceedings. Section 356 is entirely new, and it deals with a different situation: the accused who has been declared a proclaimed offender and has absconded to evade trial.

Section 356, BNSS 2023 — the substance

Notwithstanding anything contained in the Sanhita or in any other law, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he were present, and pronounce the judgment.

The Court shall not commence the trial unless a period of ninety days has elapsed from the date of framing of the charge.

The Court shall ensure that the following procedure has been complied with — the issue of two consecutive warrants of arrest within an interval of at least thirty days; publication in a national or local daily newspaper circulating in the place of his last known address, requiring him to appear within thirty days; informing his relatives or friends; and affixing information at a conspicuous part of the house or homestead in which he last resided and at the local police station.

Where the person has an advocate, he shall be heard through that advocate. Where he has none, an advocate shall be appointed at State expense from the legal aid panel.

The depositions and examination of witnesses may be recorded and, on the arrest of the person, may be used against him. Where the witness cannot be examined, the deposition may be recorded by audio-video electronic means.

No appeal shall lie against the judgment unless the proclaimed offender presents himself before the Court of appeal.

⚠ Why the safeguards are as heavy as they are

A trial in the absence of the accused is a departure from a principle the Sanhita otherwise insists on — section 308 requires evidence to be taken in his presence, and the right to be present is part of the right to defend.

Section 356 answers the case of the accused who defeats his own trial by staying away, and treats the absconding as a waiver. But it hedges the power about: the person must already be a proclaimed offender under section 84; ninety days must have passed since the charge; two warrants must have issued; the publication and the thirty days’ notice must have been given; his relatives must have been informed; he must be defended by an advocate, at State expense if necessary; and the Court must record its reasons.

And the route back is left open. No appeal lies unless the proclaimed offender presents himself before the appellate court — so a person tried in absence who later surrenders is not without a remedy, but he must appear to claim it.

5. Open Court: Section 366

Section 366 provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them. The presiding Judge or Magistrate may, if he thinks fit, order at any stage that the general public or any particular person shall not have access to, or be or remain in, the room or building used by the Court.

The in-camera requirement. The inquiry into and trial of rape and the other sexual offences the section specifies shall be conducted in camera. The Court may, on an application by either party, allow any particular person to have access to or be present in the Court.
A woman Judge or Magistrate. Where practicable, such an in-camera trial shall be conducted by a woman Judge or Magistrate.
The bar on publication. It shall not be lawful for any person to print or publish any matter in relation to such proceedings except with the previous permission of the Court; and such permission may be granted subject to the condition that the name and address of the parties shall not be disclosed.

6. Key Takeaways

The position stated shortly

1. Chapter XXVI applies to every trial, whatever its form, and covers the protections of the accused, the prosecution, the Court’s powers over the proceeding, and absence, openness and transfer.

2. Section 340: the accused may of right be defended by an advocate of his choice; section 341: where in a Sessions trial he is unrepresented and has not sufficient means, the Court shall assign an advocate at State expense.

3. Section 351: the Court shall, after the prosecution witnesses are examined, question the accused so as to enable him to explain the circumstances appearing against him. It may be conducted by audio-video electronic means.

4. That examination is not a formality: each material circumstance must be put separately and distinctly, and a circumstance not put cannot be used against him: Asraf Ali.

5. Section 353: the accused is a competent witness for the defence, but only on his own written request; his failure to give evidence is not the subject of comment and raises no presumption.

6. Section 346: no adjournment where witnesses are in attendance except for special reasons recorded; none at a party’s request except where the circumstances are beyond his control; and an advocate being engaged in another Court is not a ground.

7. Section 348: the Court may summon a material witness or recall and re-examine any person already examined, and shall do so where the evidence appears essential to the just decision of the case. A judge is not a spectator: Zahira Habibulla Sheikh.

8. Section 359 (compounding) ends in an acquittal and is the act of the person the table specifies. Section 360 (withdrawal from prosecution) is the act of the Public Prosecutor with the Court’s consent, producing a discharge before the charge and an acquittal after.

9. Section 360 now requires the victim to be given an opportunity of being heard before the Court consents to a withdrawal — which is new.

10. Section 356 is entirely new: a proclaimed offender who has absconded to evade trial may be tried in absence, subject to ninety days from the charge, two warrants, newspaper publication with thirty days’ notice, information to relatives, an advocate at State expense, and recorded reasons. No appeal lies unless he presents himself before the appellate court.

11. Section 366: a Criminal Court is an open Court; but the trial of rape and the specified sexual offences shall be in camera, conducted where practicable by a woman Judge or Magistrate, and publication requires the Court’s previous permission.

7. Frequently Asked Questions

What is the purpose of examining the accused under section 351?

To establish a direct dialogue between the Court and the accused and to give him an opportunity to explain personally the incriminating circumstances appearing in the evidence against him. Each material circumstance must be put separately and distinctly, and one not put cannot be used against him: Asraf Ali v. State of Assam.

Can an accused give evidence on oath?

Yes, under section 353, as a competent witness for the defence — but only on his own written request. His failure to give evidence shall not be made the subject of comment by any party or the Court, and gives rise to no presumption against him or any co-accused.

When must a court recall a witness?

Section 348 makes it a duty, not merely a power: the Court shall summon and examine, or recall and re-examine, any person if his evidence appears to it essential to the just decision of the case.

What is the difference between compounding and withdrawal from prosecution?

Compounding under section 359 is a settlement by the person the table specifies, and has the effect of an acquittal. Withdrawal under section 360 is the act of the Public Prosecutor with the Court’s consent, and produces a discharge if made before the charge and an acquittal if made after.

Does the victim have a say in a withdrawal from prosecution?

Yes, and the right is new. Section 360 requires the Court, where the case relates to an offence affecting a victim, to give the victim an opportunity of being heard before according its consent to the withdrawal.

Can a person be tried in his absence?

Yes, under the new section 356, where he has been declared a proclaimed offender and has absconded to evade trial with no immediate prospect of arrest. The absconding is deemed a waiver of his right to be present, but the Court must observe the safeguards the section prescribes, and no appeal lies against the judgment unless he presents himself before the appellate court.

Related Topics

Double Jeopardy under the BNSS, 2023: Section 337
Section 337 and Article 20(2) of the Constitution
Compounding of Offences under the BNSS, 2023: Section 359
Proclamation and Attachment: Sections 84 to 89, BNSS
The Public Prosecutor under the BNSS, 2023
Plea Bargaining: Sections 289 to 300, BNSS