Bharatiya Nagarik Suraksha Sanhita, 2023
Section 353 BNSS: Accused Person to Be Competent Witness
Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the right of an accused person to offer evidence as a defence witness. It makes the accused a competent witness, but testimony remains voluntary and the accused cannot be called as a witness unless the accused makes a written request.
Text of Section 353 BNSS
Section 353 - Accused person to be competent witness
353. (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal Court under section 101, or section 126, or section 127, or section 128, or section 129, or under Chapter X or under Part B, Part C or Part D of Chapter XI, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 127, section 128, or section 129, the failure of such person to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.
What Section 353 BNSS Means
Section 353 recognises that a person facing a criminal charge may enter the witness box for the defence and give evidence on oath. The provision is enabling rather than compulsory. An accused who wishes to testify can do so, but the Court cannot compel the accused to become a defence witness merely because the accused is facing trial.
The safeguard in clause (a) is important because the accused can be called as a witness only on the accused's own written request. Clause (b) further protects the choice not to testify by directing that such failure must not be made the subject of comment by the parties or the Court and must not create a presumption against the accused or a co-accused tried together.
The provision operates consistently with the constitutional protection against compelled self-incrimination under Article 20(3) of the Constitution of India. Section 353, however, specifically concerns the accused offering himself or herself as a witness for the defence in the circumstances stated in the section.
Key Safeguards Under Section 353
- Competent defence witness: An accused person before a Criminal Court may give evidence on oath for the defence.
- Written request required: The accused cannot be called as a witness except on the accused's own request in writing.
- No adverse comment for silence: Failure to give evidence cannot be used for prohibited comment or adverse presumption under Section 353(1)(b).
- Protection extends to co-accused: The statutory bar also protects a person charged together with the accused at the same trial.
- Specified proceedings covered: Sub-section (2) separately permits persons facing the proceedings identified there to offer themselves as witnesses, subject to the proviso.
Why the Written Request Matters
The written-request requirement provides a clear record that the decision to testify originates from the accused. It distinguishes voluntary defence evidence from compelled testimony and helps the Court record that the statutory condition in Section 353(1)(a) has been satisfied.
Section 353 and the Choice Not to Testify
An accused does not lose the protection of Section 353 merely by deciding not to enter the witness box. The section expressly restricts adverse comment and presumption arising from that choice in the situations covered by the provision. The prosecution must prove its case in accordance with law; the accused's decision not to testify cannot be treated as a substitute for proof of the charge.
Frequently Asked Questions
Can an accused person give evidence under Section 353 BNSS?
Yes. Section 353(1) expressly states that an accused person before a Criminal Court is a competent witness for the defence and may give evidence on oath in disproof of the charges.
Can the Court call the accused as a defence witness on its own?
No. The accused shall not be called as a witness except on the accused's own request in writing.
Does refusal or failure to testify create a presumption of guilt?
Section 353(1)(b) says that failure to give evidence shall not be made the subject of comment by the parties or the Court and shall not give rise to the presumption prohibited by that provision.
Does Section 353 apply only to a regular criminal trial?
No. Sub-section (2) also covers the proceedings specifically identified there, including proceedings under Sections 101, 126, 127, 128 and 129 and the stated Chapters and Parts of the BNSS.
Related BNSS Provisions
For the surrounding statutory scheme, see Section 351 - Power to examine accused, Section 352 - Oral arguments and memorandum of arguments, Section 354 - No influence to be used to induce disclosure, and Section 355 - Provision for inquiries and trial being held in absence of accused in certain cases.