Section 389 BNSS: Summary Punishment for Non-Attendance by a Witness
Bharatiya Nagarik Suraksha Sanhita, 2023 - procedure where a summoned witness, without just excuse, fails to attend or leaves before being lawfully permitted to depart.
In brief: Section 389 empowers the Criminal Court before which a witness was summoned to take cognizance and deal summarily with unjustified non-attendance when the Court considers such action expedient in the interests of justice. Before punishment, the witness must be given an opportunity to show cause. The maximum fine under the section is Rs. 500.
What Section 389 BNSS means
Section 389 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a witness who has been summoned to appear before a Criminal Court and is legally bound to attend at the specified place and time. It applies where, without a just excuse, the witness neglects or refuses to attend, or leaves the place of attendance before the time at which it is lawful to depart.
The provision does not make punishment automatic. The Court must be satisfied that summary action is expedient in the interests of justice, and the witness must first receive an opportunity to explain why punishment should not be imposed.
Text of Section 389 BNSS
389. Summary procedure for punishment for non-attendance by a witness in obedience to summons.
(1) If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such a witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding five hundred rupees.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
Essential requirements of Section 389
- A witness must have been summoned to appear before a Criminal Court.
- The witness must be legally bound to attend at the stated place and time.
- The witness must, without just excuse, neglect or refuse to attend, or leave prematurely.
- The Court must consider summary action expedient in the interests of justice.
- The witness must be given an opportunity to show cause before punishment is imposed.
- The fine cannot exceed Rs. 500.
- The Court must follow, as nearly as practicable, the procedure prescribed for summary trials.
Meaning of important expressions
"Without just excuse"
This expression makes the existence of a reasonable explanation material. Because the statute expressly requires an opportunity to show cause, the Court must consider the explanation offered by the witness before deciding whether punishment under Section 389 is justified.
"Tried summarily"
A summary trial is a simplified form of criminal trial used for matters that the law permits to be dealt with more expeditiously. Section 389(2) expressly directs the Court to follow the prescribed summary-trial procedure as nearly as practicable.
"Expedient in the interests of justice"
The Court must form the view that using the summary power is appropriate in the interests of justice. Mere absence does not dispense with this statutory requirement or the show-cause opportunity.
Penalty under Section 389 BNSS
The maximum sentence specified by Section 389(1) is a fine not exceeding Rs. 500. The provision itself does not prescribe imprisonment as the punishment under this summary procedure.
Corresponding provision under the Code of Criminal Procedure, 1973
| BNSS, 2023 | Earlier CrPC provision | Subject |
|---|---|---|
| Section 389 | Section 350 CrPC | Summary procedure for punishment for non-attendance by a witness in obedience to summons |
The BNSS came into force on 1 July 2024. For older proceedings, the applicable law may depend on the commencement and saving provisions and on the facts and procedural stage of the case.
Appeal from a conviction under Section 389
Section 390 BNSS specifically deals with appeals from convictions under Sections 383, 384, 388 and 389. A person affected by an order under Section 389 should therefore also examine the appellate provision and the facts of the particular case.
Related BNSS provisions
Section 389 forms part of a group of provisions dealing with conduct affecting proceedings before Courts. Relevant nearby provisions include Section 388, concerning refusal to answer or produce a document or thing, and Section 390, concerning appeals from specified convictions.
Practical point: The statutory safeguards should be visible from the Court record: the summons and legal obligation to attend, the alleged default, consideration of any just excuse, the reason for using summary procedure in the interests of justice, and the opportunity given to the witness to show cause.
Frequently asked questions
Can a witness be punished merely because he or she was absent?
No. Section 389 is framed around absence or premature departure without just excuse, and it requires the Court to provide an opportunity to show cause before imposing punishment.
What is the maximum fine under Section 389?
The statutory maximum is Rs. 500.
Does the Court follow an ordinary full trial?
Section 389(2) requires the Court to follow, as nearly as may be practicable, the procedure prescribed for summary trials.
Is an appeal available?
Section 390 BNSS deals with appeals from convictions under, among other provisions, Section 389.
Disclaimer: This page is a general legal-information resource and is not a substitute for advice on the facts of a particular proceeding.