Section 388 BNSS - Refusal to Answer or Produce a Document

Section 388 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a witness or other person who, without a reasonable excuse, refuses before a Criminal Court to answer a question or to produce a document or thing that the Court requires.

Law Bharatiya Nagarik Suraksha Sanhita, 2023
Provision Section 388
In force 1 July 2024

Text of Section 388 BNSS

388. If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 384 or section 385.

Meaning and Scope of Section 388

The provision gives a Criminal Court a limited coercive power when a witness or person lawfully required to answer or produce material refuses to comply. The power is not automatic. The Court must first give the person a reasonable opportunity to comply and consider whether there is a reasonable excuse for the refusal.

  • The person must be a witness or a person called to produce a document or thing before a Criminal Court.
  • The refusal must concern a question put by the Court or a document or thing within the person's possession or power that the Court requires to be produced.
  • A reasonable opportunity to answer or produce the material must be given.
  • The Court must consider whether a reasonable excuse has been offered.
  • If the Court acts under Section 388, its reasons must be recorded in writing.
  • The Court may impose simple imprisonment or commit the person to the custody of an officer of the Court for a term not exceeding seven days.
  • If the person agrees in the meantime to answer or produce the document or thing, the coercive custody contemplated by the section does not continue merely for punishment.
  • If the refusal persists, further action may be taken under Section 384 or Section 385, as applicable.

Relationship with Sections 384 and 385 BNSS

Section 388 expressly refers to Sections 384 and 385 where the person continues to refuse. Section 384 deals with procedure in certain cases of contempt, while Section 385 applies where the Court considers that the matter should not be dealt with under Section 384.

Read Section 384 BNSS Read Section 385 BNSS

BNSS Commencement and Pending CrPC Proceedings

The BNSS came into force on 1 July 2024. Section 531 repealed the Code of Criminal Procedure, 1973, but preserves the application of the CrPC to an appeal, application, trial, inquiry or investigation that was already pending immediately before commencement of the BNSS. Therefore, the applicable procedural provision may depend on when the proceeding began.

Practical note: Section 388 is a procedural coercive provision. Before relying on it in a particular case, the Court record, the nature of the question or production order, the opportunity given to comply, any claimed privilege or legal excuse, and the transitional effect of Section 531 should be examined.

Official Source

For the authoritative statutory text and the current arrangement of the Bharatiya Nagarik Suraksha Sanhita, 2023, refer to the India Code BNSS page.