The Court's General Powers During a Trial

The provisos, and these are the examinable part.

• No remand under this section for a term exceeding fifteen days at a time.
• When witnesses are in attendance, no adjournment without examining them, except for special reasons recorded in writing.
• No adjournment merely to enable the accused to show cause against the proposed sentence.
• And the four-clause proviso:

(a) no adjournment at the request of a party except where the circumstances are beyond that party's control; (b) where they are, not more than two adjournments, after hearing the other party's objections and for reasons recorded in writing; (c) the fact that a party's advocate is engaged in another Court is NOT a ground for adjournment; (d) where a witness is present but a party or his advocate is absent, or present but not ready to examine or cross-examine, the Court may record the witness's statement and dispense with the examination-in-chief or the cross-examination, as the case may be.

Explanation 1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, that is a reasonable cause for a remand.

Explanation 2. The terms of an adjournment may include, in appropriate cases, the payment of costs by the prosecution or the accused.

Sections 347 to 350: seeing, summoning, sampling, paying

Section 347, local inspection. Any Judge or Magistrate may, at any stage, after due notice to the parties, visit and inspect the place where the offence is alleged to have been committed, or any other place he thinks necessary to view for properly appreciating the evidence, and shall without unnecessary delay record a memorandum of any relevant facts observed.

Sub-section (2). That memorandum forms part of the record, and if the prosecutor, complainant, accused or any other party desires, a copy shall be furnished free of cost.

Section 348, the material witness. 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, if his evidence appears to it to be essential to the just decision of the case.

One section, two halves. The first is a discretion; the second is a duty, and the test of the duty is essential to the just decision of the case.

Section 349, specimens and samples. If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, he may so order, and the person shall be produced or shall attend at the time and place specified and shall give them.

First proviso: no such order unless the person has at some time been arrested in connection with the investigation or proceeding. Second proviso: the Magistrate may, for reasons recorded in writing, order any person to give such specimen or sample without him being arrested.

Section 350, expenses. Subject to State Government rules, any Criminal Court may, if it thinks fit, order payment by the Government of the reasonable expenses of any complainant or witness attending an inquiry, trial or other proceeding.

Section 351: the examination of the accused

This is the section the whole trial turns on, and its five sub-sections should be known in order.

Sub-section (1), the purpose and the two powers. In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court:

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; and (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

The proviso: in a summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

Learn the difference between (a) and (b). Clause (a) is may, at any stage, on such questions as the Court considers necessary. Clause (b) is shall, at a fixed point, generally on the case. Clause (b) is what makes the examination a right of the accused and not merely a power of the Court.

Sub-section (2). No oath shall be administered to the accused when he is examined under sub-section (1).

Sub-section (3). The accused shall not render himself liable to punishment by refusing to answer, or by giving false answers.

Sub-section (4). His answers may be taken into consideration in that inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for any other offence which those answers may tend to show he has committed.

Sub-section (5), which is new. The Court may take the help of the Prosecutor and Defence Counsel in preparing the relevant questions, and may permit the filing of a written statement by the accused as sufficient compliance with this section.

Sections 352 to 354: arguments, the accused as witness, and no inducement

Section 352, arguments. A party may, as soon as may be after the close of his evidence, address concise oral arguments, and before concluding them may submit a memorandum setting out the arguments concisely and under distinct headings, which forms part of the record, sub-section (1). A copy shall be simultaneously furnished to the opposite party, sub-section (2). No adjournment shall be granted for filing written arguments unless the Court, for reasons recorded in writing, considers it necessary, sub-section (3). And the Court may regulate oral arguments it considers not concise or relevant, sub-section (4).

Section 353, the accused as a witness.

Sub-section (1). Any person accused of an offence shall be a competent witness for the defence and may give evidence on oath in disproof of the charges against him or any person charged together with him at the same trial.

Proviso (a): he shall not be called as a witness except on his own request in writing. Proviso (b): his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court, nor give rise to any presumption against himself or any co-accused at the same trial.

Sub-section (2). A person against whom proceedings are instituted under section 101, 126, 127, 128 or 129, or under Chapter X, or under Part B, Part C or Part D of Chapter XI, may offer himself as a witness. Proviso: in proceedings under sections 127, 128 or 129, his failure to give evidence shall not be commented on or give rise to any presumption against him or anybody proceeded against with him.

Section 354, no inducement. Except as provided in sections 343 and 344, 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.

That single sentence is the boundary of the whole Part. The Court may ask; nobody may pressure. And the only lawful inducement in the Sanhita is the tender of pardon, which is why sections 343 and 344 are named.

A worked example

A Sessions trial for rape. The chargesheet was filed on 1 March.

How fast must it go? Section 346(1) requires proceedings from day to day until the witnesses in attendance are examined, and the proviso requires the trial of an offence under BNS section 64 to be completed within two months of the filing of the chargesheet.

The defence advocate is engaged in the High Court and seeks an adjournment. Refused: clause (c) of the fourth proviso to section 346(2) says an advocate's engagement in another Court is not a ground.

A witness has come from Nanded and the defence is not ready to cross-examine. The Court may record her statement and dispense with the cross-examination, clause (d).

The party then pleads a genuine emergency. Adjournment is possible, because the circumstances are beyond its control, but not more than two such adjournments, and only after hearing the other side and recording reasons, clauses (a) and (b).

The accused is in custody and the Court adjourns. It may remand him by warrant, but not more than fifteen days at a time, first proviso to section 346(2).

The evidence about distances is confusing. The Judge may, after notice to the parties, visit the place and record a memorandum, which becomes part of the record and of which the parties may have free copies, section 347.

A person present in court saw the incident but was cited by neither side. The Court may examine him though not summoned; and if his evidence appears essential to the just decision of the case, the Court shall, section 348.

A voice recording is disputed. A first class Magistrate may order the accused to give a voice sample, section 349. If the person is not an accused and has never been arrested, the order is still possible under the second proviso, for reasons recorded in writing.

The prosecution closes. Before the defence begins, the Court shall question the accused generally on the case, section 351(1)(b): without oath, section 351(2), with no liability for refusing or for false answers, section 351(3). His answers may be considered in this trial and used in another, section 351(4). The Court may take the help of both counsel in framing the questions, and may accept a written statement as compliance, section 351(5).

The accused now wishes to testify. He may, but only on his own request in writing, and on oath, section 353(1). If he chooses not to, neither the prosecutor nor the Court may comment on it, and no presumption arises against him or his co-accused.

The investigating officer offers him a lighter charge if he speaks. Forbidden. Section 354 bars any influence by promise or threat, except the tender of pardon under sections 343 and 344.

Both sides close. They address concise oral arguments and may file a memorandum under distinct headings, copies simultaneously to the other side, and no adjournment for filing it unless the Court records reasons, section 352.

Distinctions

What this does NOT mean

The day-to-day rule is not a formality. It is the rule, and departure from it requires reasons to be recorded; for the sexual offences named in the proviso there is a two month outer limit from the chargesheet.

A local inspection is not evidence. The judge records a memorandum of facts observed, which forms part of the record; it does not replace the testimony of witnesses.

Section 349 is not confined to the accused. It says "any person, including an accused person", and the second proviso extends it to a person never arrested, on reasons recorded in writing.

Section 351 is not a substitute for evidence against the accused. Its stated purpose is to enable him personally to explain circumstances appearing in the evidence against him; and section 351(5)'s written statement is a mode of compliance, not a waiver of the exercise.

And section 353 does not let the prosecution put the accused in the box. He is a competent witness for the defence, and only on his own written request; his silence is not to be commented on and raises no presumption.

Quick revision

• 346: day to day until witnesses in attendance are examined; two months from chargesheet for BNS ss.64 to 68, 70, 71; remand not over fifteen days at a time; witnesses in attendance to be examined first; no adjournment to show cause against sentence; party adjournments only for circumstances beyond control, at most two; counsel busy elsewhere is no ground; an unready party may lose the examination or cross-examination; costs may be a term.
• 347: local inspection after notice, memorandum recorded, part of the record, free copies.
• 348: may summon, examine a person present, or recall; shall, if the evidence is essential to the just decision of the case.
• 349: a first class Magistrate may order specimen signatures, finger impressions, handwriting or voice sample; ordinarily the person must have been arrested, but the Magistrate may order it without arrest for reasons in writing.
• 350: the Court may order the Government to pay a complainant's or witness's reasonable expenses.
• 351: examination of the accused, may at any stage without warning, shall after prosecution evidence and before the defence; no oath; no liability for refusal or falsehood; answers usable here and in another trial; counsel may help frame questions and a written statement may suffice.
• 352: concise oral arguments and a memorandum under distinct headings, copy to the other side, no adjournment to file it without recorded reasons; the Court may regulate arguments.
• 353: the accused is a competent witness for the defence, on oath, only on his own written request; no comment and no presumption from his silence.
• 354: no promise or threat to induce disclosure or withholding, except sections 343 and 344.

Test yourself

1. In which cases must the trial be completed within two months of the chargesheet? Where the inquiry or trial relates to an offence under section 64, 65, 66, 67, 68, 70 or 71 of the Bharatiya Nyaya Sanhita, 2023, proviso to section 346(1).

2. Is an advocate's engagement in another Court a ground for adjournment? No. Clause (c) of the fourth proviso to section 346(2) says expressly that it is not.

3. When must a Court summon a witness nobody has cited? When his evidence appears to the Court to be essential to the just decision of the case; section 348 makes that limb a duty.

4. Can a Magistrate order a voice sample from a person who has never been arrested? Yes, under the second proviso to section 349, for reasons to be recorded in writing. The first proviso otherwise requires that the person has at some time been arrested.

5. Is the accused on oath when the Court examines him under section 351? No. Section 351(2) forbids administering an oath, and section 351(3) protects him from punishment for refusing to answer or for giving false answers.

6. Can the prosecution call the accused as a witness? No. Under section 353(1) he is a competent witness for the defence and may be called only on his own request in writing.

7. What is the only lawful inducement to an accused to disclose what he knows? The tender of pardon under sections 343 and 344; section 354 forbids every other influence by promise, threat or otherwise.