Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 388
Code: BNSS Section 388
Explanation:
This section deals with the consequences of a witness or a person summoned to produce a document or object refusing to cooperate with the Criminal Court. The section states that if a witness or person:
- Refuses to answer questions posed to them.
- Refuses to produce a document or object in their possession or control that the Court requests.
- Fails to provide a reasonable excuse for their refusal after being given a reasonable opportunity to do so.
The Court can, in such a situation, take the following actions:
- Sentence the witness or person to simple imprisonment for a period not exceeding seven days. This sentence is to be recorded in writing, stating the reasons for the punishment.
- Commit the witness or person to the custody of a Court officer for a period not exceeding seven days. This is done through a warrant issued by the Presiding Magistrate or Judge.
The witness or person can avoid these consequences by:
- Consenting to be examined and answer the questions.
- Consenting to produce the document or object.
If the witness or person persists in their refusal even after these options are presented, they may be dealt with under the provisions of Section 384 or Section 385 of the BNSS.
Illustration:
During a trial, a witness is called to testify about a specific incident. The witness refuses to answer questions about their knowledge of the incident, claiming they have no memory of it. Despite being given a reasonable opportunity to recall, the witness maintains their stance. In this case, the Court, finding no genuine reason for the refusal, can choose to sentence the witness to simple imprisonment or commit them to the custody of a Court officer.
Common Questions and Answers:
Q: What is a “reasonable excuse” under this section?
A: A reasonable excuse would be a genuine reason for the refusal that is not simply a refusal to cooperate. Examples could include a medical condition that prevents the witness from answering questions, a threat to the witness’s safety, or a legally protected privilege.
Q: What are the provisions of Section 384 and Section 385 of the BNSS?
A: Section 384 deals with the consequences of a witness refusing to give evidence or produce documents due to fear of harm or for personal gain. Section 385 deals with the consequences of a witness refusing to answer questions on the grounds of religious or moral beliefs.
Q: Can the Court impose these penalties without a hearing?
A: No, the Court must provide the witness or person with an opportunity to be heard and explain their refusal. The decision to impose a penalty should be based on the facts of the case and a reasoned judgment.
