Breaking Down the Law

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a comprehensive code replacing the colonial-era Code of Criminal Procedure, modernises the procedural framework for the administration of criminal justice in India. Sections 352 to 366 of the BNSS encapsulate general provisions relating to inquiries and trials, ensuring procedural clarity, fairness, and efficiency in the judicial process. These provisions are vital for upholding the principles of natural justice and safeguarding the rights of individuals, whether accused or victims. They govern essential aspects such as trial conduct, procedures for witnesses, and adherence to legal standards, thereby fostering transparency and accountability in the justice delivery system.

Can a party to a proceeding address oral arguments after the closure of evidence?

Yes, any party to a proceeding may address concise oral arguments after the closure of evidence.

Is a party allowed to submit a memorandum of arguments?

Yes, before concluding oral arguments, a party may submit a memorandum to the Court concisely setting forth arguments under distinct headings.

Will the memorandum form part of the court record?

Yes, the memorandum will form part of the court record.

Should a copy of the memorandum be provided to the opposite party?

Yes, a copy must be simultaneously furnished to the opposite party.

Can proceedings be adjourned for filing written arguments?

No, adjournment for this purpose will not be granted unless the Court, for reasons recorded in writing, considers it necessary.

Can the Court regulate oral arguments?

Yes, if the Court finds oral arguments are not concise or relevant, it may regulate them.

Can an accused person testify as a witness in their defence?

Yes, an accused person is a competent witness for the defence and may give evidence on oath to disprove charges.

Under what condition can an accused person testify?

The accused must make a written request to be called as a witness.

Can failure to testify be used against the accused?

No, failure to testify cannot be commented on by any party or the Court and does not give rise to any presumption.

Can a person in proceedings under specific sections offer themselves as a witness?

Yes, persons involved in proceedings under certain sections may offer themselves as witnesses.

Can failure to testify in certain proceedings lead to adverse inferences?

No, failure to testify in certain proceedings shall not be commented on or give rise to presumption.

Can influence be used to induce disclosure by an accused?

No, except under certain provisions, no promise, threat, or other influence can be used to induce disclosure.

Under what circumstances can a trial proceed in the absence of the accused?

If the Judge or Magistrate records reasons that personal attendance is unnecessary or the accused disrupts proceedings, the trial may proceed in their absence, provided they are represented by an advocate.

Can the accused’s attendance be directed at a later stage?

Yes, the Court may direct personal attendance at any subsequent stage.

Does personal attendance include attendance through audio-video electronic means?

Yes, personal attendance includes attendance through audio-video electronic means.

Can a trial proceed in absentia for a proclaimed offender?

Yes, if a proclaimed offender has absconded to evade trial and there is no immediate prospect of arrest, the Court may proceed in their absence after recording reasons.

What conditions must be fulfilled before starting a trial in absentia?

The Court must issue two consecutive warrants at least 30 days apart, publish notices in newspapers, inform relatives or friends, and display information conspicuously.

Will a proclaimed offender be provided legal representation?

Yes, if not represented, an advocate will be provided at the State’s expense.

Can evidence recorded in the absence of the proclaimed offender be used against them?

Yes, deposition and examination of witnesses may be used against the proclaimed offender.

What happens if the offender is arrested during the trial?

The Court may allow examination of evidence taken during their absence, if necessary, in the interest of justice.

What happens if the accused cannot understand the proceedings?

The Court may proceed with the inquiry or trial, but in cases other than those before the High Court, any conviction must be forwarded to the High Court for final orders.

Can the Court proceed against persons not originally accused but appearing guilty?

Yes, the Court may proceed against such persons based on evidence.

What actions can the Court take if such a person is not present?

The person may be summoned or arrested as necessary.

Will proceedings against the newly accused start afresh?

Yes, proceedings will commence afresh, and witnesses will be re-heard.

Can the Public Prosecutor withdraw from prosecution?

Yes, with the Court’s consent, the Public Prosecutor may withdraw before judgment is pronounced.

What happens if withdrawal is before charges are framed?

The accused shall be discharged.

What if withdrawal occurs after charges are framed?

The accused will be acquitted.

Are there restrictions on withdrawing cases involving the Central Government?

Yes, prior permission from the Central Government is required for withdrawal of such cases.

Are Criminal Courts open to the public?

Yes, Criminal Courts are generally open to the public.

Can the Court restrict public access?

Yes, the presiding Judge or Magistrate may restrict access at any stage of proceedings.

Are trials for certain offences required to be in camera?

Yes, trials for offences like rape or certain offenses under child protection laws must be conducted in camera.

Can trial proceedings be published?

No, publication is prohibited without prior Court permission, especially in cases of rape, subject to maintaining confidentiality.

What is the purpose and need for a public trial?

A public trial ensures fairness and creates public confidence in the functioning of courts. It is a facet of the rule of law, as explained in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653.

Has the Supreme Court permitted live streaming of its proceedings?

Yes, in Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639, a writ petition seeking live streaming of important cases in the Supreme Court and framing guidelines for regulating the same was allowed.

How should courts approach the interpretation of statutes when the language is plain and unambiguous?

When the language of a statute is plain and unambiguous, courts should give effect to the same and must not go beyond the express language to add or subtract any words, as held in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92.

Therefore, Sections 352 to 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 reflect the evolving needs of India’s legal framework, aiming to make the justice system more accessible, efficient, and equitable. By emphasizing fairness and procedural rigor, these provisions ensure that the trials and inquiries under the BNSS uphold the rule of law while balancing the rights of the accused and the victims. Their implementation promises to reinforce public confidence in the judiciary and strengthen the criminal justice system, making it more responsive to contemporary challenges.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.