Section 228 of BNSS, 2023 — Magistrate May Dispense with Personal Attendance of Accused

Introduction

Section 228 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Magistrate to dispense with the personal attendance of the accused at a particular stage of criminal proceedings.

The provision recognises that personal appearance of the accused may not always be necessary for conducting proceedings efficiently. Where the Magistrate considers it appropriate, the accused may be permitted to appear through an advocate instead of being personally present.

The provision is therefore intended to balance the requirement of the accused’s presence before the Court with the need to avoid unnecessary personal appearances.

Meaning of Section 228

Section 228 provides that whenever a Magistrate issues a summons, the Magistrate may, if he sees reason to do so, dispense with the personal attendance of the accused.

The accused may then appear through an advocate.

However, the Magistrate retains the power to require the accused to appear personally at any subsequent stage of the proceedings.

Thus, dispensing with personal attendance does not permanently exempt the accused from appearing before the Court.

Statutory Basis

Section 228 of the BNSS deals with dispensing with the personal attendance of an accused who has been summoned by a Magistrate.

The provision operates in the context of proceedings where a summons has been issued and provides flexibility regarding the accused’s physical presence.

Object and Purpose

The main purposes of Section 228 are:

• To avoid unnecessary personal appearance of the accused.
• To facilitate efficient conduct of criminal proceedings.
• To reduce inconvenience and expense caused by repeated appearances.
• To permit representation through an advocate where personal attendance is not considered necessary.
• To preserve the Magistrate’s authority to require personal attendance whenever necessary.

Essential Elements

1. Summons Must Have Been Issued

Section 228 applies where the Magistrate has issued a summons to the accused.

2. Magistrate Must See Reason to Dispense with Attendance

The Magistrate has discretion to dispense with the personal attendance of the accused where the Magistrate considers that there is sufficient reason to do so.

The power is therefore not automatic.

3. Appearance Through Advocate

Where personal attendance is dispensed with, the accused may appear through an advocate.

The advocate represents the accused for the purposes permitted by the Court.

4. Power to Require Personal Attendance Later

Even after dispensing with personal attendance, the Magistrate may subsequently require the accused to appear personally.

Therefore, the exemption can be withdrawn or limited whenever personal presence becomes necessary.

Procedure under Section 228

The procedure can be understood as follows:

1. The Magistrate issues a summons to the accused.
2. The accused seeks permission to be represented without personal attendance, or the Magistrate considers such dispensation appropriate.
3. The Magistrate considers whether there is sufficient reason to dispense with personal attendance.
4. If satisfied, the Magistrate permits the accused to appear through an advocate.
5. Proceedings may continue without the accused being personally present.
6. If necessary, the Magistrate may subsequently require the accused to appear personally.

Powers of the Magistrate

The Magistrate has discretion to:

• dispense with the personal attendance of the accused;
• permit the accused to appear through an advocate;
• subsequently require the accused to appear personally.

The power allows the Magistrate to ensure that personal attendance is required whenever the interests of justice or the circumstances of the case make it necessary.

Rights and Position of the Accused

Section 228 provides procedural convenience to the accused by allowing representation through an advocate when personal attendance is dispensed with.

However, this does not create an absolute right to remain absent throughout the proceedings.

The accused remains subject to the jurisdiction and directions of the Magistrate and may be required to appear personally at any stage.

Important Distinctions

Dispensing with Personal Attendance vs Permanent Exemption

Dispensing with personal attendance under Section 228 is not a permanent exemption.

The Magistrate can subsequently require the accused to appear personally.

Personal Attendance vs Representation Through Advocate

Personal attendance means that the accused is physically present before the Court.

Where attendance is dispensed with, the accused may appear through an advocate in accordance with the permission granted by the Magistrate.

Summons vs Warrant

Section 228 specifically operates where a summons has been issued.

It should therefore not be treated as a general provision authorising an accused against whom a warrant has been issued to remain absent without complying with the applicable procedure.

BNSS and CrPC

Section 228 of the BNSS corresponds to Section 205 of the Code of Criminal Procedure, 1973.

The basic principle has been retained.

Under both provisions, when a Magistrate issues a summons, the Magistrate may dispense with the personal attendance of the accused where there is sufficient reason and permit the accused to appear through an advocate.

The Magistrate may also subsequently direct the accused to appear personally.

The principal change is the renumbering of the provision from Section 205 CrPC to Section 228 BNSS.

Relationship with Other BNSS Provisions

Section 227 — Issue of Process

Section 227 deals with the issue of process against the accused.

Section 228 becomes relevant where the process issued by the Magistrate is a summons and the Magistrate considers whether the accused’s personal attendance should be dispensed with.

Personal Appearance During Proceedings

Even where personal attendance has initially been dispensed with, the Magistrate retains the authority to require personal appearance later when necessary.

Example

A Magistrate issues a summons to an accused in a complaint case.

The accused requests that personal attendance be dispensed with because repeated physical appearances would cause unnecessary hardship. The Magistrate considers the circumstances and permits the accused to appear through an advocate.

If the Magistrate later considers the accused’s personal presence necessary for a particular stage of the proceedings, the Magistrate may direct the accused to appear personally.

Common Confusions

Is personal attendance automatically dispensed with whenever a summons is issued?

No.

The Magistrate must see reason to dispense with personal attendance. The accused cannot assume that the summons itself permits representation through an advocate without personal appearance.

Can the accused remain absent throughout the case?

Not necessarily.

The Magistrate may subsequently require the accused to appear personally.

Does dispensing with personal attendance mean that the case is stayed?

No.

It only concerns the physical presence of the accused. The criminal proceedings may continue in accordance with law.

Can the accused be represented by an advocate?

Yes.

Where the Magistrate dispenses with personal attendance, the accused may appear through an advocate.

Topic at a Glance

• BNSS Section: 228
• Subject: Dispensing with personal attendance of accused
• Applicable situation: Magistrate has issued a summons
• Authority: Magistrate
• Effect: Accused may appear through an advocate instead of personally appearing
• Nature: Discretionary power of Magistrate
• Limitation: Magistrate may later require personal attendance
• Corresponding CrPC provision: Section 205
• Related provision: Section 227 concerning issue of process

Quick Revision

• Section 228 deals with dispensing with the personal attendance of the accused.
• It applies when a summons has been issued.
• The Magistrate may dispense with personal attendance if there is sufficient reason.
• The accused may then appear through an advocate.
• Dispensation of personal attendance is not permanent.
• The Magistrate may subsequently require the accused to appear personally.
• Section 228 BNSS corresponds to Section 205 CrPC.
• The provision is intended to prevent unnecessary personal appearances while preserving the Court’s control over the proceedings.

ALSO READ: Section 227 – Issue of process

Conclusion

Section 228 of the BNSS provides procedural flexibility by allowing a Magistrate to dispense with the personal attendance of an accused who has been summoned and to permit representation through an advocate. At the same time, the Magistrate retains the power to require personal attendance whenever necessary. The provision therefore facilitates efficient criminal proceedings without removing the Court’s authority to secure the accused’s personal presence.