Section 388 of BNSS, 2023 — Imprisonment or Committal of Person Refusing to Answer or Produce Document

Introduction

Section 388 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a witness or other person who refuses to answer questions put by a Criminal Court or refuses to produce a document or thing which the Court requires him or her to produce.

The provision gives the Criminal Court the power to take immediate action against such refusal, subject to important safeguards. The person must first be given a reasonable opportunity to comply or to offer a reasonable excuse for the refusal.

If the refusal continues without a reasonable excuse, the Court may impose simple imprisonment or commit the person to the custody of an officer of the Court for a period not exceeding seven days.

Meaning of Section 388

Section 388 applies when a witness or another person appearing before a Criminal Court:

• refuses to answer questions put to that person; or
• refuses to produce a document or thing in that person’s possession or power which the Court requires to be produced; and
• fails to provide a reasonable excuse after being given a reasonable opportunity to do so.

In such circumstances, the Court may exercise the powers provided under the section.

The provision is intended to ensure that persons appearing before a Criminal Court do not obstruct the judicial process by unjustifiably refusing to answer lawful questions or produce documents or things required by the Court.

Statutory Basis

Section 388 provides for imprisonment or committal where a person refuses to answer questions or produce a document or thing required by a Criminal Court.

The provision operates within the broader group of provisions dealing with offences affecting the administration of justice.

Object and Purpose

The primary object of Section 388 is to protect the authority and functioning of Criminal Courts.

A criminal proceeding depends upon the ability of the Court to examine witnesses and obtain documents or things that are lawfully required for the proceedings.

At the same time, Section 388 contains procedural safeguards. A person cannot be punished merely because there has been an initial refusal. The person must first be given a reasonable opportunity and must fail to provide a reasonable excuse.

The provision therefore balances the authority of the Court with procedural fairness to the person concerned.

Essential Elements

1. There Must Be a Criminal Court Proceeding

Section 388 applies when a person is called before a Criminal Court.

The provision is specifically concerned with refusal occurring in the context of proceedings before such a Court.

2. The Person Must Be a Witness or a Person Called to Produce a Document or Thing

The provision covers:

• a witness who is required to answer questions; and
• a person called to produce a document or thing.

Therefore, its scope is not limited exclusively to witnesses giving oral evidence.

3. Refusal to Answer Questions

The person may refuse to answer questions put to him or her by the Court.

The provision concerns refusal to answer questions that are put to the person in the course of the proceedings.

4. Refusal to Produce a Document or Thing

The provision also applies where a person refuses to produce a document or thing that:

• is in that person’s possession or power; and
• the Court requires the person to produce.

Thus, the section specifically addresses documents or things within the person’s possession or power.

5. Reasonable Opportunity Must Be Given

Before exercising the power under Section 388, the Court must give the person a reasonable opportunity to comply with the requirement or to provide an explanation for the refusal.

This is an important procedural safeguard.

6. No Reasonable Excuse

The person must fail to offer a reasonable excuse for the refusal.

If a reasonable excuse is offered, the statutory conditions for exercising the power under Section 388 are not automatically satisfied.

The Court must consider whether the explanation constitutes a reasonable excuse in the circumstances.

Powers of the Court

Where the requirements of Section 388 are satisfied, the Criminal Court may:

• sentence the person to simple imprisonment; or
• by warrant under the hand of the Presiding Magistrate or Judge, commit the person to the custody of an officer of the Court.

The period of such custody cannot exceed seven days.

Requirement to Record Reasons

The Court may exercise the power to sentence the person to simple imprisonment only for reasons recorded in writing.

Recording reasons provides a safeguard against arbitrary exercise of the power.

The Court must therefore demonstrate the basis for exercising the statutory power.

Maximum Period of Custody

The period of committal under Section 388 cannot exceed seven days.

This is the maximum period specifically prescribed by the provision.

The person may, however, be released earlier from the consequence contemplated by the section if the person subsequently agrees to comply with the Court’s requirement.

Opportunity to Comply

Section 388 contains an important mechanism for ending the immediate consequence of the refusal.

If the person, during the relevant period:

• consents to be examined and answer the questions; or
• agrees to produce the document or thing,

the person may avoid continued custody under the provision.

The section therefore seeks compliance with the Court’s lawful requirement rather than punishment for its own sake.

What Happens if the Person Continues to Refuse?

If the person continues to refuse even after the opportunity provided under Section 388, the person may be dealt with according to Section 384 or Section 385.

This connects Section 388 with the provisions concerning contempt and conduct affecting the administration of justice.

Thus, persistent refusal can lead to further proceedings beyond the initial imprisonment or committal contemplated under Section 388.

Procedure

The operation of Section 388 can be understood step-by-step:

1. A witness or other person is called before a Criminal Court.
2. The Court requires the person to answer questions or produce a document or thing.
3. The person refuses to answer or produce the required material.
4. The Court gives the person a reasonable opportunity to comply or provide an explanation.
5. The person fails to offer a reasonable excuse for the refusal.
6. The Court records reasons in writing where required.
7. The Court may sentence the person to simple imprisonment or commit the person to the custody of an officer of the Court for a period not exceeding seven days.
8. If the person subsequently consents to answer the questions or produce the document or thing, the immediate consequence may come to an end.
9. If the refusal persists, the person may be dealt with under Section 384 or Section 385.

Important Safeguards

Reasonable Opportunity

The Court must provide a reasonable opportunity before exercising the power.

Reasonable Excuse

The person must be allowed an opportunity to offer a reasonable excuse for the refusal.

Written Reasons

The Court must record reasons in writing when exercising the relevant power of imprisonment.

Maximum Seven-Day Period

The committal contemplated by Section 388 cannot exceed seven days.

Possibility of Compliance

The provision allows the person to consent to examination or production of the required document or thing during the relevant period.

Important Limitations

Refusal Alone Is Not Enough

The mere fact that a person initially refuses to answer or produce something does not automatically justify action under Section 388.

The statutory requirements concerning reasonable opportunity and reasonable excuse must also be satisfied.

Document or Thing Must Be in the Person’s Possession or Power

The provision specifically refers to a document or thing in the possession or power of the person.

A person cannot ordinarily be treated as refusing to produce something that is not within his or her possession or power.

Court’s Requirement Must Be Present

The document or thing must be something which the Criminal Court requires the person to produce.

Maximum Period

The custody under Section 388 cannot exceed seven days.

Example

Hypothetical example:

A witness is appearing before a Criminal Court. The Court requires the witness to answer a particular question relevant to the proceedings. The witness refuses to answer and does not provide any reasonable explanation.

After giving the witness a reasonable opportunity to answer or explain the refusal, the Court may exercise its power under Section 388.

Similarly, if a person is called upon to produce a document in that person’s possession or power and unjustifiably refuses to produce it, Section 388 may apply.

If the person subsequently agrees to answer the questions or produce the document, the statutory consequence may come to an end as provided by the section.

Section 388 and Contempt

Section 388 is connected with the provisions dealing with contempt and offences affecting the administration of justice.

If the refusal persists, the section expressly provides that the person may be dealt with under Section 384 or Section 385.

Therefore, Section 388 provides an immediate mechanism for dealing with unjustified refusal, while persistent refusal may attract the further statutory procedure contemplated by those provisions.

BNSS and CrPC

Section 388 of the BNSS corresponds to Section 349 of the Code of Criminal Procedure, 1973.

The provision has been substantially retained under the BNSS.

The basic mechanism remains the same: where a witness or person called to produce a document or thing refuses to answer or produce it without a reasonable excuse after being given a reasonable opportunity, the Court may impose simple imprisonment or commit the person to custody for a period not exceeding seven days, subject to the statutory conditions.

The principal change is the corresponding section number under the BNSS.

Important Distinctions

Refusal to Answer vs Refusal to Produce a Document

Refusal to answer concerns questions put to a person before the Criminal Court.

Refusal to produce concerns a document or thing in the person’s possession or power which the Court requires to be produced.

Both forms of refusal can attract Section 388 when its statutory conditions are satisfied.

Imprisonment vs Committal

The Court may sentence the person to simple imprisonment.

Alternatively, the Presiding Magistrate or Judge may issue a warrant committing the person to the custody of an officer of the Court for a period not exceeding seven days.

These are distinct forms of action contemplated by the provision.

Reasonable Excuse vs Unjustified Refusal

A refusal accompanied by a reasonable excuse is different from a refusal for which no reasonable excuse is offered.

Section 388 is directed at refusal that continues after a reasonable opportunity has been provided and without a reasonable excuse.

Section 388 vs Section 384

Section 388 specifically addresses refusal by a witness or person called to answer questions or produce a document or thing.

Section 384 provides the procedure in certain cases of contempt.

Where the refusal persists, Section 388 itself permits the person to be dealt with under Section 384 or Section 385.

Important BNSS Provisions

• Section 384: Procedure in certain cases of contempt.
• Section 385: Procedure where Court considers that case should not be dealt with under Section 384.
• Section 387: Discharge of offender on submission of apology.
• Section 388: Imprisonment or committal of person refusing to answer or produce document.
• Section 389: Summary procedure for punishment for non-attendance by a witness in obedience to summons.
• Section 390: Appeals from convictions under Sections 383, 384, 388 and 389.

Topic at a Glance

• BNSS Section: Section 388
• Subject: Imprisonment or committal of person refusing to answer or produce document
• Authority: Criminal Court
• Persons covered: Witness or person called to produce a document or thing
• Ground: Refusal to answer questions or produce a required document or thing
• Safeguard: Reasonable opportunity must be given
• Excuse: No reasonable excuse for refusal
• Maximum committal: Seven days
• Written reasons: Required for the Court’s exercise of the relevant sentencing power
• Further consequence: Persistent refusal may attract Sections 384 or 385
• Corresponding CrPC provision: Section 349

Quick Revision

• Section 388 applies to a witness or person called to produce a document or thing before a Criminal Court.
• The person may come within the provision by refusing to answer questions or refusing to produce a required document or thing.
• The document or thing must be in the person’s possession or power.
• The Court must give a reasonable opportunity to comply or provide an explanation.
• The person must fail to offer a reasonable excuse for the refusal.
• The Court may impose simple imprisonment or commit the person to the custody of an officer of the Court.
• The maximum period of committal is seven days.
• Reasons must be recorded in writing for the exercise of the relevant power.
• If the person subsequently consents to answer or produce the document or thing, the immediate consequence may come to an end.
• Persistent refusal may result in the person being dealt with under Section 384 or Section 385.
• Section 388 corresponds to Section 349 of the CrPC.

ALSO READ: Section 387 – Discharge of offender on submission of apology

Conclusion

Section 388 of the BNSS ensures that a Criminal Court can effectively deal with unjustified refusal by a witness or other person to answer questions or produce documents or things required by the Court. At the same time, the provision incorporates important safeguards by requiring a reasonable opportunity and consideration of any reasonable excuse. The power of imprisonment or committal is therefore subject to statutory conditions and is limited to the period prescribed by law.