Section 317 CrPC vs Section 355 BNSS — Inquiry and Trial in the Absence of the Accused

In India, Section 355 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 317 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. A court may still proceed without the represented accused; a new Explanation says personal attendance includes attendance through audio-video electronic means.

At a glance

Section 355 is procedural and involves no First Schedule classification.

What changed

• Minor edit — Section 355(1): "under this Code" becomes "under this Sanhita"; "if the accused is represented by a pleader" becomes "if the accused is represented by an advocate". The two grounds — attendance "not necessary in the interests of justice" and the accused "persistently disturbs the proceedings in Court" — the duty to record reasons, and the power to "direct the personal attendance of such accused" at any subsequent stage are unchanged.
• Minor edit — Section 355(2): "not represented by a pleader" becomes "not represented by an advocate". The options — adjourn, or take up or try the accused's case separately — are unchanged.
• New — Explanation to Section 355: "For the purpose of this section, personal attendance of the accused includes attendance through audio-video electronic means." Section 2(1)(a) BNSS defines "audio-video electronic means" to include use of any communication device for video conferencing and other purposes the State Government may provide by rules.
• Heading — Minor edit: "in the absence of accused" becomes "in absence of accused".
• State amendment note: the India Code CrPC text prints a Gujarat amendment (Gujarat Act 31 of 2017) that added an Explanation to Section 317 including attendance "through the medium of Electronic Video Linkage as provided in section 273". The BNSS Explanation now applies across India.

Statutory text (relevant extract)

Extract, Section 317(1) CrPC (repealed from 1 July 2024):

At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence …

Extract, Section 355 BNSS, sub-section (2) and Explanation:

(2) If the accused in any such case is not represented by an advocate, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

Explanation.—For the purpose of this section, personal attendance of the accused includes attendance through audio-video electronic means.

How it works

The conditions in Section 355(1).

1. Stage — "any stage of an inquiry or trial" under the Sanhita, before a Judge or a Magistrate.
2. Ground — either (a) personal attendance "is not necessary in the interests of justice", or (b) the accused "persistently disturbs the proceedings in Court".
3. Reasons — the court must be satisfied "for reasons to be recorded".
4. Representation — the accused must be "represented by an advocate". Without an advocate, sub-section (1) does not apply and sub-section (2) governs.
5. Consequence — the court "may … dispense with his attendance and proceed with such inquiry or trial in his absence".
6. Recall — the court "may, at any subsequent stage of the proceedings, direct the personal attendance of such accused".

Section 355(2) — the fallback. Where the accused has no advocate, or the court considers attendance necessary, it may, for recorded reasons, adjourn, or separate the accused's case so that the trial of co-accused can proceed.

The Explanation. On a reading of the text, the Explanation works in both directions: an accused attending by video link is in "personal attendance" for the purposes of Section 355, and a court that "direct[s] the personal attendance" of the accused under the last limb of sub-section (1) may, on the same reading, be satisfied by attendance through audio-video electronic means. Section 530 BNSS separately allows all trials, inquiries and proceedings, including recording of evidence, to be held in electronic mode.

Neighbouring provisions.

What this means in practice

For the accused and defence advocate

• Apply for exemption under Section 355(1) BNSS (or Section 228 BNSS at the summons stage), stating why attendance is not necessary in the interests of justice — distance, health, employment or cost. Rameshwar Yadav set aside a refusal where the Magistrate had not considered grounds such as the accused living about 1,750 km away.
• Keep an advocate on record: Section 355(1) applies only "if the accused is represented by an advocate".
• Where the court insists on attendance, ask for it to be through audio-video electronic means; the Explanation treats that as personal attendance for the purpose of the section.
• Expect conditions. Bhaskar Industries says the benefit should be granted to an accused who undertakes not to dispute identity, to have counsel present, and not to object to evidence being taken in his absence (report page 227).

For the prosecution

• If the exempted accused's advocate does not appear or co-operate, ask the court to direct personal attendance under the last limb of Section 355(1) or Section 228(2) BNSS (Bhaskar Industries, report page 227).
• Where an accused "persistently disturbs the proceedings in Court", Section 355(1) allows the court to proceed in his absence, provided he is represented.

For the court

• Record reasons whether exemption is granted or refused, and whether the case of a particular accused is separated under Section 355(2).
• Section 308 BNSS allows evidence to be taken in the presence of the exempted accused's advocate, including through audio-video electronic means at a place notified by the State Government.

Judgments that still matter

M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. & Ors., [2001] Supp. 2 S.C.R. 219 (2001 INSC 399) — 27 August 2001. K.T. Thomas and K.G. Balakrishnan JJ. considered an exemption application in a summons case under Section 138 of the Negotiable Instruments Act, 1881. Reading Sections 205, 251, 273 and 317 CrPC together, the Court said that "in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel", that Section 317 empowers the court to dispense with personal attendance of a represented accused "even for proceeding with the further steps in the case", and that the benefit should be granted to an accused who undertakes not to dispute his identity, that counsel would be present, and that he has no objection to evidence being taken in his absence (report page 227). If counsel does not appear or co-operate, the Magistrate may direct personal attendance under Section 205(2) and the last limb of Section 317(1). The Court allowed the complainant's appeal, set aside the Sessions Judge's revisional order, and left the second accused free to apply afresh under Section 317 (report page 228). The report prints no paragraph numbers. Section 355(1) BNSS repeats the words construed.

Sri Rameshwar Yadav & Ors. v. The State of Bihar & Anr., [2018] 4 S.C.R. 1055 (2018 INSC 239) — 16 March 2018. A.K. Sikri and Ashok Bhushan JJ. set aside a Magistrate's refusal, affirmed by the High Court, to exempt parents-in-law and relatives accused under Section 498A IPC and Section 4 of the Dowry Prohibition Act from personal appearance. The High Court had said the remedy lay under Section 317, not Section 205; the Supreme Court held that the Magistrate "was not powerless to consider the prayer under Section 317 Cr.P.C." and found no impediment to considering the application (para 11). The Magistrate's reasons were held unfounded, and the Court, noting among other things the distance of about 1,750 km between the accused's residence and the trial court, found sufficient grounds for exemption (paras 12-13). The appeal was allowed and personal appearance exempted, without precluding orders under Section 205(2) when attendance is required (para 14). Sections 228 and 355 BNSS repeat the provisions construed.

Which law applies to your case

Section 531(2)(a) BNSS provides that an inquiry or trial pending immediately before 1 July 2024 is continued in accordance with the CrPC "as if this Sanhita had not come into force". On a reading of that text, exemption from attendance in such a trial is governed by Section 317 CrPC, which carries no audio-video Explanation (outside a State amendment such as Gujarat's); inquiries and trials begun on or after 1 July 2024 follow Section 355 BNSS. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 317 CrPC? Section 355 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 317 CrPC. At any stage of an inquiry or trial, a Judge or Magistrate who is satisfied, for reasons to be recorded, that the accused's personal attendance is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings, may dispense with attendance and proceed in the accused's absence if the accused is represented by an advocate.

What is new in Section 355 BNSS? Section 355 BNSS adds an Explanation: for the purpose of the section, personal attendance of the accused includes attendance through audio-video electronic means. The rest of the section repeats Section 317 CrPC, with 'advocate' in place of 'pleader' and 'Sanhita' in place of 'Code'.

Can a trial proceed if the accused has no advocate? Not under Section 355(1) BNSS, which allows the court to dispense with attendance only 'if the accused is represented by an advocate'. Under Section 355(2), if the accused is not represented, or the court considers attendance necessary, the court may, for recorded reasons, adjourn the inquiry or trial or order that the accused's case be taken up or tried separately.

What is the difference between Section 228 and Section 355 BNSS? Section 228 BNSS (Section 205 CrPC) lets a Magistrate who issues a summons dispense with the accused's personal attendance and permit appearance by an advocate. Section 355 BNSS (Section 317 CrPC) applies at any stage of an inquiry or trial, to a Judge or a Magistrate. In Rameshwar Yadav v. State of Bihar (2018) the Supreme Court held that the Magistrate was not powerless to consider an exemption application under Section 317 as well as Section 205.

Can evidence be recorded when the accused is exempted from attendance? Yes. Section 308 BNSS requires evidence to be taken in the presence of the accused or, when personal attendance is dispensed with, in the presence of the accused's advocate, including through audio-video electronic means at a designated place notified by the State Government. In Bhaskar Industries (2001) the Supreme Court said an exempted accused should undertake not to dispute identity and to have counsel present, and that he has no objection to evidence being taken in his absence.

Is Section 355 BNSS the same as trial in absentia of an absconder? No. Section 355(1) BNSS lets the court proceed without an accused who is represented by an advocate, on recorded reasons. Trial in absentia of a proclaimed offender who has absconded to evade trial is a separate, new procedure in Section 356 BNSS, with its own conditions, including that the trial shall not commence until ninety days have lapsed from the framing of the charge.

Which law applies to a trial pending on 1 July 2024? Section 531(2)(a) BNSS provides that a trial or inquiry pending immediately before 1 July 2024 is continued in accordance with the CrPC as if the BNSS had not come into force. On a reading of that text, exemption from attendance in such a trial is governed by Section 317 CrPC, which has no audio-video Explanation except where a State amendment, such as Gujarat's, added one.

Related

• Accused absconds: proclamation, attachment and trial in absence — BNSS 84 and 356
• Witness and accused by video conferencing — BNSS vs CrPC
• Electronic trials and proceedings — BNSS Section 530
• Section 204 CrPC vs Section 227 BNSS — Issue of Process
• Section 82 CrPC vs Section 84 BNSS — Proclamation and Attachment
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(a), 228, 308, 355, 356, 530 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 205, 273 and 317, with the Gujarat State amendment to Section 317.
• Judgments read in full text: M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. (S_2001_2_219_228_EN.md); Sri Rameshwar Yadav v. State of Bihar (2018_4_1055_1062_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.