ACCUSED PERSON TO BE A COMPETENT WITNESS
Under Section 353(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—formerly Section 315 CrPC—, an accused person is recognized as a competent witness who can voluntarily submit a written request to testify under oath to rebut charges against themselves or a co-accused.
A fundamental safeguard of this provision ensures that if the accused chooses not to testify, their silence cannot be commented upon by the court or prosecution, nor can it give rise to any inference of guilt.
However, if the accused volunteers to testify, they assume the position of a standard witness subject to prosecution cross-examination; any incriminating evidence revealed can be used against a co-accused, thereby granting that co-accused the legal right to cross-examine them.
Unlike unsworn statements recorded without cross-examination under Section 351 BNSS (former Section 313 CrPC)—which do not constitute formal evidence—, testimony given under Section 353 BNSS is taken on oath, subject to cross-examination, and qualifies as fully admissible evidence under Section 2 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Furthermore, Section 354 BNSS explicitly prohibits using any threats, promises, or undue influence to extract or suppress information from an accused, maintaining absolute protection against coercion except under strict statutory provisions for conditional pardons under Sections 343 and 344 BNSS.
10. POWER OF THE COURT TO PROCEED AGAINST OTHER PERSONS APPEARING TO BE GUILTY OF AN OFFENCE
Section 358 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—formerly Section 319 of the Code of Criminal Procedure (CrPC)—empowers a court to proceed against any person who is not currently facing trial if the evidence produced during an inquiry or trial indicates they committed an offence for which they could be tried alongside the existing accused.
Under Section 358(1)–(3) BNSS, the court may issue a summons or arrest warrant to secure an absent suspect’s attendance or directly detain an individual present in court.
Upon joining a new accused, Section 358(4) BNSS mandates that proceedings against them must commence afresh and witnesses must be re-heard.
As interpreted by the Supreme Court in landmark decisions such as Hardeep Singh v. State of Punjab and Rajesh v. State of Haryana, the expression “any person not being the accused” applies broadly to anyone not currently before the court in that proceeding, including persons omitted from the FIR, individuals listed in Column 2 of the charge-sheet, suspects left un-charge-sheeted by police, or individuals previously discharged.
The threshold of “evidence” required to invoke Section 358 BNSS demands a strong prima facie case satisfying all statutory ingredients of the offence, though the court is not required to evaluate whether the evidence is sufficient for ultimate conviction.
Crucially, **the court need not wait for cross-examination and can invoke its discretionary power—either suo moto or on an application by any party—**based on statements made during examination-in-chief, corroborated by pre-trial inquiry materials recorded under Sections 180 and 183 BNSS.
This discretionary power cannot be exercised as a retaliatory measure, and the newly added accused can only be tried for the specific charge on which they were summoned.
Additionally, under Section 213 BNSS (former Section 193 CrPC) and the Dharam Pal precedent, a Sessions Court possesses independent authority upon case committal to take cognizance and summon non-named accused directly from police investigation papers without waiting for trial evidence to emerge under Section 358 BNSS.
11. ARGUMENTS: ORAL AND WRITTEN
Under Section 352 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), any party involved in a legal proceeding is permitted to present concise oral arguments immediately after closing their evidence stage; however, the court retains statutory authority to regulate these oral arguments if it deems them irrelevancies or overly protracted.
Prior to concluding oral submissions, a party may submit a structured written memorandum presenting their arguments concisely under distinct headings.
Once submitted, this memorandum becomes an official part of the judicial record and must be simultaneously provided to the opposing counsel.
To maintain court efficiency and prevent unnecessary delays, Section 352(3) BNSS explicitly prohibits granting adjournments solely for the purpose of drafting or filing written arguments, allowing an exception only when the court finds it strictly necessary and records its detailed reasons in writing.
12. PROCEEDINGS TO BE HELD EXPEDITIOUSLY, AND NOT TO BE ADJOURNED WITHOUT SPECIAL REASONS
Under Section 346 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), criminal proceedings must be conducted expeditiously to uphold the constitutional guarantee of a fair and speedy trial under Article 21 of the Constitution of India.
Once witness examination commences, the court is mandated to hold day-to-day proceedings until all present witnesses are examined, and trials concerning specified sexual offenses under Sections 64–68, 70, or 71 of the Bharatiya Nyaya Sanhita, 2023, must be completed within two months from charge-sheet filing.
To minimize delays, any adjournment requires written reasons, while adjourning when witnesses are physically present demands explicit special reasons.
Furthermore, adjournments requested by parties are strictly capped at two, allowed only for uncontrollable circumstances after hearing opposing objections, and an advocate’s engagement in another court is explicitly rejected as a valid excuse.
Should an advocate fail or refuse to examine a present witness, the court holds the discretion to record the testimony and dispense with cross-examination or examination-in-chief, alongside imposing monetary costs on delaying parties.
Finally, when proceedings involving an accused in custody are postponed, the court may order a remand to judicial custody (magisterial lock-up or jail) for a maximum of 15 days per order, ensuring the accused is free from police influence once an inquiry or trial is underway.
13. DECISION ON EVIDENCE PARTLY RECORDED BY ONE JUDGE OR MAGISTRATE AND PARTLY BY ANOTHER
While a fundamental principle of criminal procedure dictates that the judge who observes witness demeanor and hears the entire evidence should render the final verdict, Section 365 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—formerly Section 326 of the CrPC—allows a practical departure for procedural efficiency.
Under Section 365(1) BNSS, when a judge or magistrate ceases jurisdiction mid-proceeding due to transfer or succession, the incoming judge may base their decision on evidence recorded by their predecessor or combine it with evidence they record themselves.
If necessary in the interest of justice, Section 365(1) grants the successor judge full discretion to re-summon and re-examine any previously questioned witness.
Section 365(2) clarifies that formal case transfers between judges automatically trigger this succession rule.
However, Section 365(3) explicitly excludes summary trials and proceedings under Sections 361 and 364 from this framework because summary trials require rapid disposal and generate minimal written records.
Notably, if a potential summary case was instead fully tried using formal summons trial procedures, this exclusion does not apply, and the successor magistrate remains authorized to act on the predecessor’s recorded evidence.
14. SUMMARY PROCEDURE TO DEAL WITH CERTAIN CASES OF PERJURY AND CERTAIN KINDS OF CONTEMPT OF COURT
(1) Cases of perjury.
While offenses involving false or fabricated evidence are generally prosecuted through the standard procedure outlined in Sections 215 and 379–382 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 383 BNSS—formerly Section 344 of the CrPC—establishes a summary mechanism to swiftly punish blatant cases of perjury without compromising trial fairness.
Under Section 383(1) BNSS, if a Sessions Court or First-Class Magistrate notes in its final judgment that a witness knowingly gave or fabricated false evidence, the court may take cognizance, provide the witness a show-cause opportunity, and conduct a summary trial resulting in up to three months’ imprisonment, a fine of up to ₹1,000, or both.
For a charge to stand, the accused witness must receive adequate notice detailing the gist of the alleged offense.
Furthermore, under Section 383(4) BNSS, the summary perjury trial is automatically stayed if the underlying main judgment is challenged on appeal or revision, resuming only after that higher challenge is resolved.
Because Section 383 is discretionary, if the perjury involves complex legal issues or demands a harsher penalty, the court will defer to standard prosecution under Sections 379–382 BNSS; additionally, any summary conviction under Section 383 remains appealable under Section 390 BNSS to safeguard against arbitrary judicial action.
(2) Certain cases of contempt of court.
Under Section 384(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when offenses specified under Sections 210, 213, 214, 215, or 267 of the Bharatiya Nyaya Sanhita (BNS), 2023 are committed directly within the view or presence of any civil, criminal, or revenue court, the presiding court is empowered to immediately detain the offender and take formal cognizance of the act before rising for the day.
After affording the individual a reasonable opportunity to show cause, the court may summarily impose a fine of up to ₹1,000, with default non-payment resulting in simple imprisonment for up to one month.
Per Sections 384(2) and 384(3) BNSS, the court must officially record the detailed facts of the incident, any statement by the offender, the judicial finding, and sentence; specifically for offenses involving intentional insult or interruption under Section 267 BNS, the record must explicitly specify the stage of the proceedings and the precise nature of the disruption.
Any order issued under Section 384 BNSS can be appealed under Section 390 BNSS.
However, if the court determines that the misconduct warrants a penalty beyond the limits of Section 384 or is unsuited for summary resolution, it can invoke Section 385 BNSS to record the facts and forward the offender—either under custody or security—to a competent Magistrate to be tried as if on a police report.
Notably, under Section 387 BNSS, the court retains full discretionary authority to discharge the offender or remit any imposed punishment if the individual subsequently complies with the court’s directions or tenders a satisfactory apology.
(3) Person refusing to answer or to produce a document.
Under Section 388 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when a witness before a criminal court refuses to answer questions or produce a requested document or item in their possession without providing a reasonable excuse, the court is authorized to take direct action.
Upon recording its reasons in writing, the court may order the individual to undergo simple imprisonment or be detained in the custody of a court officer for up to seven days.
This detention serves a coercive purpose; if the individual consents to answer or produce the required material before the term ends, they are released.
However, if they persist in their refusal beyond this period, the court may initiate summary proceedings under Section 384 BNSS or transfer the case for formal trial under Section 385 BNSS.
To protect individuals against potential misuse of judicial discretion, any order handed down under Section 388 BNSS remains explicitly appealable under Section 390 BNSS.
(4) Non-attendance by a witness in obedience to summons.
Under Section 389(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), any witness who is legally bound by a summons to appear before a criminal court but neglects, refuses, or leaves early without a valid excuse can face immediate judicial consequences.
If the court determines that acting in the interest of justice is necessary, it may take cognizance of the non-attendance, grant the individual an opportunity to show cause, and summarily sentence them to a fine of up to ₹500.
Pursuant to Section 389(2) BNSS, the court must follow standard summary trial procedures as far as practical throughout this process.
Finally, to ensure fairness and prevent judicial arbitrariness, any conviction or penalty issued under Section 389 BNSS remains explicitly appealable under Section 390 BNSS.