Section 353 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
Code: Section 353 BNSS
(1) Accused as a Competent Witness
Any person accused of an offence before a Criminal Court is a competent witness for the defence and may give evidence on oath to disprove the charges against himself or any co-accused in the same trial.
Conditions:
- (a) The accused shall not be called as a witness unless he voluntarily requests to testify in writing.
- (b) If the accused chooses not to testify, no party (including the prosecution, defence, or court) can comment on this fact, and no presumption of guilt can be drawn against him or any co-accused.
(2) Accused in Certain Proceedings Can Testify
A person against whom proceedings are initiated under:
- Section 101 (offence-related provision)
- Sections 126, 127, 128, 129 (likely related to public nuisance or security orders)
- Chapter X (Offences against public tranquillity, unlawful assembly, rioting, etc.)
- Part B, Part C, Part D of Chapter XI (Offences against public order, national security, etc.)
…may offer himself as a witness in such proceedings.
Condition in Maintenance & Security Proceedings:
- If the person chooses not to testify in proceedings under Sections 127, 128, or 129, no party (including the prosecution, defence, or court) can comment on this refusal, and no presumption can be made against him or others facing the same inquiry.
Explanation & Purpose of Section 353 BNSS
1. Right to Testify but Not Forced to Do So
- The accused has the right to defend himself by testifying, but the prosecution or court cannot compel him to testify.
- This aligns with the right against self-incrimination under Article 20(3) of the Indian Constitution.
2. Protection from Negative Inference
- If the accused chooses not to testify, it cannot be used against him.
- This prevents unfair pressure on the accused to take the stand.
3. Special Provisions for Security & Public Order Cases
- Accused persons in public order-related proceedings can testify if they wish.
- In certain cases like maintenance and security proceedings (Sections 127-129 BNSS), refusal to testify cannot be used to infer guilt or wrongdoing.
Illustrations & Examples
Example 1: Accused Opting to Testify
Rahul is charged with theft but claims he was at work during the crime. He chooses to testify in his defence, presenting witnesses and CCTV footage to prove his innocence.
Example 2: Accused Choosing Not to Testify
Meera is accused of fraud. Her lawyer advises her not to testify, fearing cross-examination might weaken her defence. The court cannot hold her silence against her.
Example 3: No Negative Inference in Security Proceedings
Arun is facing proceedings under Section 127 BNSS for being a security risk. He chooses not to testify. The court cannot assume he is guilty just because he stayed silent.
Common Questions on Section 353 BNSS
1. Can the prosecution force the accused to testify?
No. The accused can testify only if he voluntarily requests to do so in writing.
2. If the accused does not testify, will the court assume he is guilty?
No. No negative inference can be drawn from the accused’s silence.
3. Can an accused person testify on behalf of a co-accused?
Yes, an accused can give evidence not only for himself but also to disprove charges against a co-accused.
Conclusion
Section 353 BNSS safeguards an accused person’s right to testify without coercion and ensures that silence cannot be used as evidence of guilt. This provision protects fairness in trials and upholds the principle of voluntary testimony.