Bharatiya Nagarik Suraksha Sanhita, 2023

Section 228 BNSS - Magistrate May Dispense With Personal Attendance of Accused

Section 228 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Magistrate who issues a summons to dispense with the personal attendance of the accused and permit appearance through an advocate, where the Magistrate sees sufficient reason to do so.

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act 46 of 2023. It came into force on 1 July 2024, subject to the notified exception concerning the First Schedule entry relating to section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

Text of Section 228 BNSS

228. Magistrate may dispense with personal attendance of accused.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his advocate.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

Meaning of Section 228 BNSS

Section 228 gives the Magistrate discretion to excuse an accused from appearing personally when a summons has been issued. Instead of appearing on every date, the accused may be permitted to be represented by an advocate.

The exemption is not absolute. Sub-section (2) preserves the Magistrate's power to require the accused to attend personally at any stage of the inquiry or trial. If necessary, that attendance may be enforced in accordance with the BNSS.

When Can Personal Attendance Be Dispensed With?

The statutory condition is that the Magistrate must see reason to dispense with the accused's personal attendance. The provision therefore creates a judicial discretion rather than an automatic right to exemption.

Stage of application The power arises when the Magistrate issues a summons to the accused.
Mode of appearance If exemption is granted, the accused may appear through an advocate.
Nature of power The Magistrate exercises judicial discretion based on the circumstances of the case.
Later personal appearance The Court may subsequently direct the accused to appear personally at any stage.

Appearance Through an Advocate

Section 228 expressly permits the accused to appear by an advocate when personal attendance is dispensed with. The advocate may represent the accused subject to the directions of the Court and the requirements of the proceedings.

Dispensing with personal attendance does not mean that the accused is permanently exempt from appearing before the Court. The Magistrate retains control over the proceedings and may require personal presence when considered necessary.

Power to Recall the Accused for Personal Attendance

Under Section 228(2), the Magistrate conducting the inquiry or trial may direct personal attendance at any stage. The wording makes clear that an earlier exemption can be reconsidered if the needs of the proceeding require the accused to be personally present.

Relationship With Section 227 BNSS

Section 227 BNSS deals with issue of process after the Magistrate finds sufficient ground for proceeding. Section 228 follows that provision and specifically addresses the situation where summons has been issued and the Magistrate considers whether the accused must attend personally or may appear through an advocate.

Relationship With Section 229 BNSS

Section 229 BNSS contains a special procedure for summons in petty offence cases. Section 228 is broader and concerns the Magistrate's general discretion to dispense with personal attendance when a summons has been issued.

Corresponding Provision Under the CrPC

Section 228 BNSS broadly corresponds to Section 205 of the Code of Criminal Procedure, 1973. The structure and substance remain substantially similar. One drafting change is that Section 228 BNSS uses the term "advocate", whereas Section 205 CrPC used the term "pleader".

Key Points Under Section 228

  • The provision applies where a Magistrate issues a summons.
  • The Magistrate may dispense with personal attendance if there is reason to do so.
  • The accused may be permitted to appear through an advocate.
  • The exemption is discretionary and is not an automatic entitlement.
  • The Magistrate may later require personal attendance at any stage of the proceeding.
  • If necessary, the Court may enforce the accused's attendance in accordance with law.
Practical note: Whether personal attendance should be dispensed with depends on the facts, the nature of the proceeding, the purpose for which presence may be required, and any directions passed by the Court. The complete case record should be considered before relying on Section 228 in a pending matter.