Section 358 of BNSS, 2023 — Power to Proceed Against Other Persons Appearing to Be Guilty of Offence

Introduction

Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives the Court the power to proceed against a person who is not already an accused but who appears, from the evidence recorded during an inquiry or trial, to have committed an offence for which that person could be tried together with the existing accused.

The provision is intended to ensure that a person who appears to be involved in the offence is not left outside the proceedings merely because that person was not originally named or charged as an accused.

Section 358 substantially corresponds to Section 319 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Section 358

Section 358 enables a Court, during an inquiry or trial, to bring an additional person into the criminal proceedings when the evidence before the Court indicates that such person has committed an offence and that person could legally be tried together with the existing accused.

The power is exercised by the Court itself. It is therefore different from the ordinary process by which an investigating agency initially identifies and charges an accused.

Statutory Basis

Section 358, BNSS, 2023 — Power to proceed against other persons appearing to be guilty of offence

The provision contains four principal parts:

• Sub-section (1): Power of the Court to proceed against a person who is not already an accused.
• Sub-section (2): Arrest or summons where that person is not attending the Court.
• Sub-section (3): Detention of a person who is attending the Court even though not under arrest or summons.
• Sub-section (4): Fresh commencement of proceedings and rehearing of witnesses after the Court proceeds against the additional person.

Object and Purpose

The principal object of Section 358 is to ensure that criminal proceedings are not restricted only to the persons originally arrayed as accused when evidence subsequently reveals the involvement of another person.

The provision serves to:

• prevent an apparently guilty person from escaping the criminal process merely because the person was not originally made an accused;
• enable the Court to act on evidence emerging during the inquiry or trial;
• promote a complete adjudication of the offence;
• prevent miscarriage of justice;
• ensure that the criminal trial reflects the evidence actually placed before the Court.

The power is therefore an important judicial safeguard against omissions in the initial identification or prosecution of offenders.

Nature of the Power

The power under Section 358 is a judicial power exercised by the Court during an inquiry or trial.

It is not an automatic consequence of a person being named by a witness.

The statutory requirement is that it must appear from the evidence that the person has committed an offence for which the person could be tried together with the existing accused.

The Court therefore has to apply its judicial mind to the evidence before invoking the provision.

Essential Elements

1. There must be an inquiry or trial

Section 358 operates in the course of an inquiry into, or trial of, an offence.

The provision is therefore connected with the judicial proceedings before the Court and is not simply an alternative method of conducting police investigation.

2. Evidence must indicate involvement of another person

The Court must find from the evidence that a person who is not already an accused has committed an offence.

The power is consequently based on evidence before the Court, rather than merely on suspicion or an unsupported allegation.

3. The person must not already be an accused

The provision specifically concerns a person not being the accused.

It allows the Court to bring that person into the proceedings when the evidence warrants such action.

4. The person must be capable of being tried together with the existing accused

The offence must be one for which the additional person could be tried together with the accused already before the Court.

Thus, Section 358 is not an unrestricted power to add any person in any circumstances.

5. The Court may proceed against the person

Where the statutory conditions are satisfied, the Court may proceed against such person for the offence which the evidence indicates that person has committed.

The use of the word “may” reflects the Court’s judicial discretion.

Procedure Under Section 358

Step 1: Evidence emerges during inquiry or trial

During the course of an inquiry or trial, evidence comes before the Court indicating that a person who is not currently an accused has committed an offence.

Step 2: Court considers whether Section 358 applies

The Court considers whether:

• the person is not already an accused;
• the evidence indicates commission of an offence by that person; and
• the person could be tried together with the existing accused.

Step 3: Court proceeds against the additional person

If the requirements are satisfied, the Court may proceed against that person for the offence appearing to have been committed.

Step 4: Person is brought before the Court

If the person is not attending the Court, the Court may:

• arrest the person; or
• summon the person,

depending on the circumstances of the case.

Step 5: Detention where the person is already attending Court

If the person is attending the Court even though the person is not under arrest and has not been summoned, the Court may detain that person for the purpose of the inquiry or trial concerning the offence.

Step 6: Proceedings commence afresh

Once the Court proceeds against the additional person under Section 358(1), the proceedings in respect of that person must be commenced afresh and the witnesses must be re-heard.

Step 7: Case proceeds as if the person had been an accused from the beginning

Subject to the requirement of commencing the proceedings afresh and rehearing witnesses, the case may proceed as though the additional person had been an accused when the Court originally took cognizance of the offence.

Powers of the Court

Section 358 gives the Court the power to:

• proceed against a person who was not originally an accused;
• order the arrest of that person where the person is not attending the Court;
• summon that person;
• detain a person who is already attending the Court;
• require the proceedings concerning the newly added person to commence afresh;
• require witnesses to be reheard.

These powers are intended to ensure that the additional accused receives the procedural opportunity required by law after being brought into the case.

Safeguard of Fresh Proceedings

One of the most significant safeguards under Section 358 is contained in sub-section (4)(a).

When the Court proceeds against a person under Section 358(1), the proceedings concerning that person must be commenced afresh and the witnesses reheard.

This prevents a newly added accused from being subjected to a trial based simply on evidence recorded before that person became an accused without giving the person the procedural opportunity available to an accused.

Important Distinctions

Section 358 BNSS and Ordinary Summoning of an Accused

Section 358 is not merely an ordinary summons provision.

Its purpose is to bring into the proceedings a person who was not originally an accused but whose involvement appears from the evidence during the inquiry or trial.

Section 358 BNSS and Police Investigation

Police investigation ordinarily determines who is to be sent up for trial based on the material collected during investigation.

Section 358 operates on the evidence emerging before the Court during the inquiry or trial and gives the Court an independent power to proceed against an additional person.

Section 358 BNSS and Section 356 BNSS

Section 356 concerns trial in absentia in the circumstances specified by that provision.

Section 358, by contrast, concerns bringing an additional person into an existing inquiry or trial when evidence indicates that the person has committed an offence.

The two provisions therefore deal with different procedural situations.

BNSS and CrPC

Section 358 BNSS substantially corresponds to Section 319 CrPC.

The core mechanism has been retained:

• CrPC: Section 319
• BNSS: Section 358
• Both provisions empower the Court to proceed against a person not already an accused when evidence during the inquiry or trial indicates that the person has committed an offence for which the person could be tried together with the existing accused.
• Both provide for arrest or summons of a person not attending the Court.
• Both permit detention of a person attending the Court.
• Both require fresh proceedings and rehearing of witnesses when the Court proceeds against the additional person.

The principal change is the statutory renumbering within the new procedural code. The substantive framework is substantially continued under BNSS.

Case Law

Hardeep Singh v. State of Punjab

The Constitution Bench of the Supreme Court considered the corresponding Section 319 CrPC and laid down important principles concerning the Court’s power to proceed against persons who appear to be guilty from the evidence.

The decision is particularly important because Section 358 BNSS substantially carries forward the same statutory mechanism.

The Court recognised that the power is discretionary and extraordinary in nature and must be exercised judicially on the basis of the evidence before the Court.

Since Hardeep Singh was decided under Section 319 CrPC, its principles must be applied to Section 358 BNSS with regard to the substantial similarity between the two provisions.

Manjit Singh v. State of Haryana

The Supreme Court has also considered the scope and evidentiary threshold applicable to the corresponding power under Section 319 CrPC.

The decisions under Section 319 remain important for understanding Section 358 because the BNSS provision substantially retains the earlier statutory framework.

Common Confusions

Can the Court add a person as an accused even if the police did not charge that person?

Yes.

Section 358 allows the Court to proceed against a person who was not originally an accused if the required conditions are satisfied and the evidence during the inquiry or trial indicates that the person committed an offence for which that person could be tried together with the existing accused.

Is merely naming a person by a witness enough?

Not necessarily.

The Court must consider the evidence and determine whether the statutory requirements for exercising the power under Section 358 are satisfied.

Can a person who is already present in Court be detained?

Yes.

Under Section 358(3), a person attending the Court, even though not under arrest or upon a summons, may be detained by the Court for the purpose of the inquiry or trial concerning the offence.

Are the earlier witnesses automatically treated as having been examined against the newly added accused?

No.

Section 358(4)(a) requires the proceedings concerning the newly added person to be commenced afresh and the witnesses to be reheard.

Is Section 358 the same as a police officer filing a charge-sheet against someone?

No.

Section 358 concerns a judicial power exercised during the inquiry or trial on the basis of evidence before the Court.

Example

A and B are facing trial for an offence. During the examination of a prosecution witness, evidence emerges indicating that C also participated in the commission of the offence.

C was not originally an accused.

If the Court is satisfied that the evidence indicates that C committed an offence for which C could be tried together with A and B, the Court may proceed against C under Section 358.

If C is not attending the Court, C may be arrested or summoned. If C is already present in Court, the Court may detain C for the purpose of the proceedings.

Once the Court proceeds against C, the proceedings concerning C must commence afresh and the witnesses must be reheard.

Relationship with BNS and BSA

The three new criminal laws perform different functions:

• Bharatiya Nyaya Sanhita, 2023 (BNS) defines substantive criminal offences.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework for criminal inquiries and trials.
• Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 358 is a procedural provision under BNSS. The evidence on the basis of which the Court exercises the power is governed by the applicable law of evidence.

Important BNSS Provisions

Section 356: Trial in absentia in specified circumstances.

Section 357: Procedure where the accused does not understand proceedings.

Section 358: Power to proceed against other persons appearing to be guilty of offence.

Section 359: Compounding of offences.

Topic at a Glance

• Topic: Power to proceed against other persons appearing to be guilty of offence
• BNSS Section: 358
• Corresponding CrPC provision: Section 319
• Authority: Court conducting the inquiry or trial
• Trigger: Evidence appearing during the inquiry or trial
• Person concerned: Person who is not already an accused
• Condition: The person appears to have committed an offence for which the person could be tried together with the existing accused
• Person absent from Court: May be arrested or summoned
• Person attending Court: May be detained
• After addition: Proceedings commence afresh and witnesses are reheard
• Nature: Judicial and discretionary power

Quick Revision

• Section 358 BNSS = Section 319 CrPC.
• It allows the Court to proceed against a person who is not already an accused.
• The power must arise during an inquiry or trial.
• The basis must be evidence before the Court.
• The person must appear to have committed an offence for which the person could be tried together with the existing accused.
• An absent person may be arrested or summoned.
• A person attending Court may be detained.
• Once proceedings are initiated against the additional person, the proceedings concerning that person must commence afresh.
• The witnesses must be reheard.
• The provision is designed to prevent an apparently guilty person from escaping the criminal process merely because the person was not originally made an accused.
• Important Supreme Court interpretation under the corresponding provision includes Hardeep Singh v. State of Punjab.

ALSO READ: Section 357 – Procedure where accused does not understand proceedings

Conclusion

Section 358 BNSS gives the criminal Court an important power to bring an additional person into an ongoing inquiry or trial when the evidence indicates that the person has committed an offence for which the person could be tried together with the existing accused. At the same time, the requirement of fresh proceedings and rehearing of witnesses protects the procedural rights of the newly added accused. The provision substantially continues the framework of Section 319 CrPC and remains an important mechanism for ensuring that the final criminal adjudication reflects the evidence emerging before the Court.