Section 355 of BNSS, 2023 — Provision for Inquiries and Trial Being Held in Absence of Accused in Certain Cases

Introduction

Section 355 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with situations where an inquiry or trial may proceed even when the accused is not personally present before the Court.

The provision gives the Judge or Magistrate discretion to dispense with the personal attendance of the accused when such attendance is not necessary in the interests of justice or when the accused persistently disturbs the proceedings. However, the accused must be represented by an advocate for the Court to proceed with the inquiry or trial in their absence.

Section 355 also recognises attendance through audio-video electronic means as personal attendance. This is one of the important procedural features expressly incorporated into the BNSS.

Meaning of Section 355

Section 355 allows a Court, in certain circumstances, to conduct an inquiry or trial without requiring the accused to be physically present in Court.

The provision is not a general power to conduct a criminal trial against an absent accused. Rather, it applies where the Court is satisfied that the accused’s personal attendance is unnecessary in the interests of justice or where the accused is persistently disturbing the proceedings.

The Court must record reasons for exercising this power.

Statutory Basis

Section 355 contains two sub-sections:

• Section 355(1) deals with dispensing with the personal attendance of the accused.
• Section 355(2) deals with situations where the accused is not represented by an advocate or where the Court considers the accused’s personal attendance necessary.
• The Explanation clarifies that personal attendance includes attendance through audio-video electronic means.

Section 355(1): When Can the Accused’s Attendance Be Dispensed With?

At any stage of an inquiry or trial, the Judge or Magistrate may dispense with the personal attendance of the accused if either of the following conditions exists:

1. Personal Attendance is Not Necessary in the Interests of Justice

The Court may decide that requiring the accused to appear personally is not necessary for the fair and proper conduct of the proceedings.

However, the Judge or Magistrate must be satisfied about this and must record reasons for the decision.

2. The Accused Persistently Disturbs the Proceedings

The Court may also dispense with the accused’s personal attendance where the accused persistently disturbs the proceedings in Court.

This provision prevents repeated disruption from unnecessarily delaying or obstructing the criminal proceeding.

Representation by an Advocate is Necessary

Even when the Court considers that the accused’s personal attendance can be dispensed with, Section 355(1) requires that the accused must be represented by an advocate.

Therefore, the Court may proceed with the inquiry or trial in the accused’s absence only when the accused has legal representation.

This ensures that the accused’s interests continue to be represented even when the accused is not personally present.

Power to Require Personal Attendance Later

Dispensing with personal attendance does not permanently exempt the accused from appearing before the Court.

Section 355(1) expressly allows the Judge or Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings.

Therefore, the Court retains control over the accused’s attendance throughout the inquiry or trial.

For example, if the Court initially permits the accused to remain absent but later considers the accused’s presence necessary, it may direct the accused to appear personally.

Section 355(2): When the Accused Has No Advocate

Section 355(2) deals with a situation where the accused is not represented by an advocate.

In such a case, the Judge or Magistrate may, if they think fit and for reasons to be recorded:

• adjourn the inquiry or trial; or
• order that the case of that accused be taken up or tried separately.

Thus, the Court cannot simply proceed against an unrepresented accused in the same manner as an accused who has legal representation.

When the Court Considers Personal Attendance Necessary

Section 355(2) also applies where the Judge or Magistrate considers the personal attendance of the accused necessary.

In such circumstances, the Court may:

• adjourn the inquiry or trial; or
• order that the case of that accused be taken up or tried separately.

The provision therefore gives the Court flexibility while ensuring that proceedings are not conducted inappropriately without the accused when their presence is considered necessary.

Explanation: Audio-Video Electronic Means

One important feature of Section 355 is the Explanation.

It provides that, for the purpose of this section, personal attendance of the accused includes attendance through audio-video electronic means.

This means that physical presence in the courtroom is not the only form of attendance recognised by the provision.

An accused appearing through an appropriate audio-video electronic mechanism can be treated as personally attending for the purposes of Section 355.

This reflects the BNSS’s recognition of electronic modes of criminal proceedings.

Conditions for Proceeding in the Absence of the Accused

The following conditions are important:

• The matter must be at the stage of an inquiry or trial.
• The Judge or Magistrate must be satisfied that personal attendance is unnecessary in the interests of justice, or that the accused persistently disturbs the proceedings.
• The Court must record reasons.
• The accused must be represented by an advocate.
• The Court may later require the accused’s personal attendance.
• Personal attendance includes attendance through audio-video electronic means.

Nature of Judicial Discretion

Section 355 uses the expression “may”, giving the Judge or Magistrate discretion.

However, this discretion is not completely unrestricted. The Court must:

• apply its mind to the circumstances;
• be satisfied that the statutory conditions exist;
• record reasons where required by the provision; and
• ensure that the proceedings remain fair.

The power should therefore be exercised judicially rather than mechanically.

Section 355 and the Right to a Fair Trial

The physical presence of an accused during criminal proceedings can be an important procedural safeguard. At the same time, requiring physical attendance in every situation may sometimes cause unnecessary delay or disruption.

Section 355 attempts to balance these considerations.

The provision allows proceedings to continue when the accused’s physical presence is unnecessary, while requiring legal representation and preserving the Court’s power to require attendance whenever necessary.

The provision therefore operates within the broader framework of a fair criminal trial under Article 21 of the Constitution.

Section 355 and Section 356 BNSS

Section 355 should not be confused with Section 356.

Section 355

Section 355 deals with dispensing with the personal attendance of an accused in certain circumstances during an inquiry or trial.

The accused may still be represented by an advocate, and the Court can later require personal attendance.

Section 356

Section 356 deals specifically with inquiry, trial or judgment in absentia of a proclaimed offender.

Section 356 creates a separate and more extensive statutory framework for proceedings against a proclaimed offender who has absconded to evade trial.

Therefore, ordinary proceedings in the absence of an accused under Section 355 are different from a trial in absentia under Section 356.

Section 355 and Section 351 BNSS

Section 351 deals with the power to examine the accused.

Section 355, on the other hand, deals with whether the personal attendance of the accused may be dispensed with during an inquiry or trial.

If the Court considers the accused’s personal presence necessary for a particular procedural purpose, it may require the accused to attend.

The two provisions therefore operate at different procedural stages and serve different purposes.

Section 355 and Section 340 BNSS

Section 340 recognises the right of a person against whom proceedings are instituted to be defended by an advocate of their choice.

Section 355 works consistently with this principle by requiring representation by an advocate when the Court proceeds with an inquiry or trial in the accused’s absence under Section 355(1).

The presence of legal representation helps protect the accused’s interests even when their personal attendance has been dispensed with.

BNSS and CrPC

The corresponding provision under the Code of Criminal Procedure, 1973 was Section 317.

Section 355 BNSS substantially carries forward the framework of Section 317 CrPC.

The major structural difference is that BNSS expressly adds an Explanation stating that personal attendance includes attendance through audio-video electronic means.

Thus, while the basic judicial power to dispense with personal attendance continues, BNSS expressly recognises electronic attendance.

Important Case Law

State of Punjab v. Hari Singh

The Supreme Court considered the principles surrounding proceedings conducted in the absence of an accused under the corresponding Section 317 of the CrPC.

The case is relevant to the principle that dispensing with the accused’s personal attendance is a judicial discretion that must be exercised in accordance with the statutory requirements and the interests of justice.

Since the decision concerned Section 317 CrPC, it remains relevant to Section 355 BNSS to the extent that the statutory framework is substantially similar.

Examples

Example 1: Attendance Not Necessary

A is facing a criminal trial. A is represented by an advocate and has been regularly cooperating with the proceedings. On a particular date, the Judge finds that A’s personal presence is not necessary for the proceeding.

The Judge may dispense with A’s personal attendance after recording the required reasons and allow the proceedings to continue through A’s advocate.

Example 2: Persistent Disturbance

A repeatedly interrupts the Court and disrupts the proceedings despite warnings.

The Judge may consider A’s persistent disturbance as a ground for dispensing with A’s personal attendance, provided the requirements of Section 355 are satisfied and A is represented by an advocate.

Example 3: Audio-Video Attendance

A is permitted to attend the proceedings through an audio-video electronic mechanism.

Under the Explanation to Section 355, such attendance is treated as personal attendance for the purpose of the provision.

Exceptions and Limitations

The Accused Has No Advocate

If the accused is not represented by an advocate, Section 355(2) applies. The Court may adjourn the proceeding or direct that the accused’s case be taken up or tried separately.

The Court Considers Personal Attendance Necessary

Even if the accused has an advocate, the Court may consider personal attendance necessary at a particular stage.

In such circumstances, the Court may require attendance rather than simply proceeding in the accused’s absence.

Later Direction for Personal Attendance

An order dispensing with attendance is not necessarily permanent. The Court may subsequently direct the accused to appear personally.

Important Distinctions

Absence under Section 355 and Trial in Absentia under Section 356

Section 355 allows the Court to dispense with the personal attendance of an accused in specified circumstances. The accused remains represented and the Court retains power to require attendance.

Section 356 deals with a proclaimed offender who has absconded to evade trial and provides a separate statutory mechanism for inquiry, trial or judgment in absentia.

Personal Attendance and Physical Presence

Personal attendance under Section 355 does not necessarily mean physical presence inside the courtroom. The Explanation expressly includes attendance through audio-video electronic means.

Adjournment and Separate Trial

Where the accused is not represented by an advocate, or where the Court considers personal attendance necessary, Section 355(2) permits the Court to adjourn the proceeding or order that the accused’s case be taken up or tried separately.

Common Confusions

Can every criminal trial proceed without the accused?

No.

Section 355 applies only when its statutory conditions are satisfied.

Can the Court dispense with the accused’s attendance when the accused has no lawyer?

Section 355(1) requires representation by an advocate for proceeding with the inquiry or trial in the accused’s absence. Where the accused is not represented, Section 355(2) provides for adjournment or separate proceedings, subject to the Court’s discretion and recorded reasons.

Can the Court later require the accused to appear?

Yes.

The Judge or Magistrate may direct the personal attendance of the accused at any subsequent stage.

Does personal attendance always require physical presence?

No.

The Explanation to Section 355 expressly includes attendance through audio-video electronic means.

Is Section 355 the same as trial in absentia?

No.

Section 355 deals with dispensing with personal attendance in certain cases. Section 356 specifically deals with inquiry, trial or judgment in absentia of a proclaimed offender.

Topic at a Glance

• Section: 355, BNSS, 2023
• Subject: Inquiry or trial in the absence of the accused in certain cases
• Corresponding CrPC provision: Section 317
• Authority: Judge or Magistrate
• Stage: Inquiry or trial
• Grounds: Personal attendance unnecessary in the interests of justice or persistent disturbance by the accused
• Requirement: Reasons must be recorded
• Legal representation: Accused must be represented by an advocate to proceed under Section 355(1)
• Electronic attendance: Audio-video electronic attendance is recognised as personal attendance
• Later attendance: Court may subsequently direct personal attendance
• Related provision: Section 356 BNSS, dealing with trial in absentia of proclaimed offenders

Quick Revision

• Section 355 BNSS permits an inquiry or trial to proceed without the personal attendance of the accused in certain circumstances.
• The Judge or Magistrate must record reasons.
• Personal attendance may be dispensed with when it is unnecessary in the interests of justice.
• Persistent disturbance of proceedings by the accused is another ground.
• The accused must be represented by an advocate.
• The Court may later direct the accused to appear personally.
• If the accused is not represented by an advocate, the Court may adjourn the proceedings or order a separate trial of that accused.
• The Explanation treats attendance through audio-video electronic means as personal attendance.
• Section 355 substantially corresponds to Section 317 of the CrPC.
• Section 355 should not be confused with Section 356, which specifically deals with inquiry, trial or judgment in absentia of a proclaimed offender.
• The provision seeks to balance the accused’s right to participate in proceedings with the need for efficient and orderly criminal trials.

ALSO READ: Section 354 – No influence to be used to induce disclosure

Conclusion

Section 355 BNSS provides a mechanism for continuing an inquiry or trial when the personal attendance of the accused is not necessary or when the accused persistently disrupts the proceedings. At the same time, the provision safeguards the accused by requiring representation through an advocate and allowing the Court to require personal attendance whenever necessary. The express recognition of audio-video electronic attendance is a significant procedural feature under the BNSS. The provision therefore facilitates efficient criminal proceedings while preserving judicial control and the accused’s right to proper representation.