Introduction
Section 389 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a summary procedure for punishing a witness who, without just excuse, fails to attend a Criminal Court in obedience to a summons requiring the witness to appear.
- Introduction
- Meaning of Section 389
- Statutory Basis
- Object and Purpose
- Essential Elements
- Summary Procedure
- Punishment
- Procedure
- Importance of “Just Excuse”
- Safeguard for Witnesses
- Example
- Section 389 and Witness Attendance
- BNSS and CrPC
- Important Distinctions
- Important BNSS Provisions
- Topic at a Glance
- Quick Revision
- Conclusion
The provision enables the Court to deal with such non-attendance through a simplified procedure rather than requiring a full trial in every case. It is intended to ensure compliance with summons issued to witnesses and prevent unnecessary obstruction or delay in criminal proceedings.
Meaning of Section 389
Section 389 applies where a witness has been duly summoned to appear before a Criminal Court and fails to attend without a just excuse.
Where the statutory conditions are satisfied, the Court may take cognizance of the failure and proceed summarily against the witness.
The provision therefore deals specifically with non-attendance by a witness despite a summons.
Statutory Basis
Section 389 of the BNSS provides a summary procedure for punishment of a witness who fails to attend a Criminal Court in obedience to a summons.
The provision operates in the broader context of ensuring attendance of witnesses and maintaining the orderly conduct of criminal proceedings.
Object and Purpose
The primary purposes of Section 389 are:
- to secure compliance with witness summonses;
- to prevent unjustified non-attendance by witnesses;
- to avoid unnecessary delay in criminal proceedings;
- to provide a simplified procedure for dealing with the specified default; and
- to protect the effective administration of criminal justice.
The section is therefore directed at ensuring that a witness does not disregard a lawful summons without sufficient justification.
Essential Elements
1. The Person Must Be a Witness
Section 389 specifically concerns a witness.
The provision is not a general summary punishment mechanism for every person who fails to attend Court.
2. A Summons Must Have Been Issued
The witness must have been summoned to appear before the Criminal Court.
The obligation to attend arises from the lawful summons issued by the Court.
3. The Summons Must Require Attendance
The summons must require the witness to appear before the Court.
The failure contemplated by Section 389 is therefore a failure to comply with the obligation of personal attendance created by the summons.
4. Failure to Attend
The witness must fail to attend the Court in obedience to the summons.
The section is concerned with non-attendance rather than merely with delay or some unrelated failure to comply with a Court direction.
5. Absence Must Be Without Just Excuse
The non-attendance must be without just excuse.
This is an important safeguard.
A witness who is unable to attend for a legally sufficient or otherwise justifiable reason is not in the same position as a witness who deliberately ignores the summons without justification.
The Court must therefore consider whether the witness had a just excuse for the absence.
Summary Procedure
The distinctive feature of Section 389 is that it permits a summary procedure.
A summary proceeding is a simplified form of criminal procedure in which the matter can be dealt with more expeditiously than through an ordinary full trial, subject to the safeguards prescribed by law.
The provision is designed for the particular misconduct of non-attendance by a witness in obedience to a summons.
Punishment
Where the requirements of Section 389 are satisfied, the Court may impose the punishment authorised by the provision.
The section provides for fine not exceeding five hundred rupees.
The limited nature of the punishment corresponds with the summary character of the proceeding.
Procedure
The procedure under Section 389 may be understood as follows:
- A witness is duly summoned to appear before a Criminal Court.
- The witness fails to attend in obedience to the summons.
- The Court considers whether the witness had a just excuse for the non-attendance.
- If there is no just excuse, the Court may proceed under the summary procedure prescribed by Section 389.
- The Court may impose the punishment authorised by the section.
The purpose of this procedure is to deal promptly with unjustified non-attendance.
Importance of “Just Excuse”
The expression “just excuse” is significant because it prevents punishment from becoming automatic whenever a witness fails to appear.
Circumstances such as a genuine inability to attend may, depending upon the facts, constitute a just excuse.
The Court must assess the circumstances surrounding the absence rather than treating every failure to appear as deliberate disobedience.
Safeguard for Witnesses
Section 389 does not make every absence punishable.
The requirement that the non-attendance must be without just excuse provides protection to witnesses who have a legitimate reason for not appearing.
The Court should therefore consider the explanation offered by the witness before imposing punishment under the section.
Example
Hypothetical example:
A witness receives a valid summons directing the witness to appear before a Criminal Court on a specified date. The witness does not appear and provides no reasonable explanation for the absence.
If the Court is satisfied that the witness had no just excuse for failing to attend, the Court may invoke the summary procedure under Section 389 and impose the punishment permitted by the provision.
On the other hand, if the witness was genuinely unable to attend for a justifiable reason, the statutory requirement for punishment may not be satisfied.
Section 389 and Witness Attendance
Witness attendance is essential for the effective conduct of criminal trials.
A witness who repeatedly or deliberately fails to comply with a lawful summons can cause:
- adjournment of proceedings;
- delay in examination of witnesses;
- inconvenience to the Court and parties; and
- disruption of the administration of criminal justice.
Section 389 provides a specific mechanism for addressing such unjustified non-attendance.
BNSS and CrPC
Section 389 of the BNSS corresponds to Section 350 of the Code of Criminal Procedure, 1973.
The basic principle has been retained under the BNSS.
The earlier CrPC provision also dealt with a summary procedure for punishing a witness who failed to attend in obedience to a summons without just excuse.
Under the BNSS, the corresponding provision is Section 389.
Important Distinctions
Non-Attendance vs Refusal to Answer
Section 389 concerns failure of a witness to attend Court in obedience to a summons.
Section 388, in contrast, deals with refusal to answer questions or refusal to produce a document or thing when required by the Court.
The two provisions address different forms of non-compliance.
Justified Absence vs Unjustified Absence
A witness who cannot attend because of a genuine and legally sufficient reason is different from a witness who deliberately ignores the summons without justification.
Section 389 targets non-attendance without just excuse.
Summary Procedure vs Ordinary Trial
A proceeding under Section 389 follows a summary procedure specifically provided for the type of default covered by the section.
It is therefore different from an ordinary criminal trial involving the full range of procedural stages.
Important BNSS Provisions
- 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.
- Section 391: Power to order costs.
Topic at a Glance
- BNSS Section: Section 389
- Subject: Summary punishment for non-attendance by a witness
- Person covered: Witness
- Requirement: Summons to appear before a Criminal Court
- Default: Failure to attend in obedience to the summons
- Condition: Non-attendance must be without just excuse
- Procedure: Summary procedure
- Maximum fine: Five hundred rupees
- Corresponding CrPC provision: Section 350
Quick Revision
- Section 389 deals with non-attendance by a witness in obedience to a summons.
- The witness must have been summoned to appear before a Criminal Court.
- Failure to attend must be without just excuse.
- The Court can use the summary procedure provided by the section.
- The punishment under the provision is a fine not exceeding five hundred rupees.
- A genuine or justifiable reason for absence may prevent punishment under the section.
- Section 389 corresponds to Section 350 of the CrPC.
- Section 389 deals with non-attendance, whereas Section 388 deals with refusal to answer questions or produce documents or things.
ALSO READ: Section 388 – Imprisonment or committal of person refusing to answer or produce document
Conclusion
Section 389 of the BNSS provides a focused and simplified mechanism for dealing with a witness who fails, without just excuse, to attend a Criminal Court in obedience to a summons. By permitting summary punishment, the provision seeks to ensure that witness summonses are respected while retaining protection for witnesses who have a genuine justification for their absence.
