Section 350 CrPC and Section 389 BNSS: Non-Attendance of Witness After Summons
Section 350 of the Code of Criminal Procedure, 1973 provided a summary procedure for dealing with a witness who failed to attend a criminal court despite being legally bound by a summons. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 389 BNSS, effective from 1 July 2024.
What does Section 389 BNSS provide?
Section 389(1) applies when a witness summoned before a criminal court is legally required to appear at a specified time and place but, without just excuse, fails or refuses to attend or leaves before being lawfully permitted to depart. If the court considers summary proceedings expedient in the interests of justice, it may take cognizance of the offence, provide the witness an opportunity to explain the conduct, and impose a fine not exceeding Rs. 500.
Section 389(2) requires the court, as nearly as practicable, to follow the procedure prescribed for summary trials.
Conditions for summary punishment
- The person must be a witness summoned to appear before a criminal court and legally bound to attend.
- The witness must have neglected or refused to attend at the required time and place, or departed prematurely.
- The absence or departure must be without a just excuse.
- The court must be satisfied that a summary proceeding is expedient in the interests of justice.
- The witness must receive an opportunity to show cause before any fine is imposed.
- The court must follow the prescribed summary-trial procedure as nearly as practicable.
Section 350 CrPC: Earlier statutory provision
Under Section 350(1) of the Code of Criminal Procedure, 1973, a criminal court could take cognizance where a witness legally bound to appear under a summons, without just excuse, neglected or refused to attend at the specified place and time or departed before being lawfully allowed to leave. If the court considered summary trial expedient in the interests of justice, it could, after allowing the witness to show cause, impose a fine not exceeding Rs. 100.
Section 350(2) CrPC required the court to follow, as nearly as practicable, the procedure prescribed for summary trials. The substance of this procedural safeguard continues under Section 389(2) BNSS.
Section 350 CrPC and Section 389 BNSS: Key provisions
| Issue | Section 350 CrPC | Section 389 BNSS |
|---|---|---|
| Subject | Witness non-attendance despite summons | Witness non-attendance despite summons |
| Maximum fine | Rs. 100 | Rs. 500 |
| Opportunity to show cause | Required | Required |
| Procedure | Summary-trial procedure, as nearly as practicable | Summary-trial procedure, as nearly as practicable |
| Legal status | Repealed subject to applicable savings and transitional provisions | In force from 1 July 2024 |
What is a just excuse for not attending court?
The provision does not exhaustively define a "just excuse". Whether an explanation is sufficient depends on the facts and evidence before the court. Serious illness, lack of effective notice, or an unavoidable emergency may be relevant, but none automatically excuses attendance. A summoned witness should promptly notify the court, provide supporting documents where appropriate, and seek directions rather than simply remain absent.
Can a witness be punished without being heard?
No. The court must give the witness an opportunity to show cause why punishment should not be imposed. The court must also determine whether the absence was without just excuse and whether summary proceedings are expedient in the interests of justice. A fine is not automatic merely because the witness was absent.
Appeals and related legal provisions
Section 390 BNSS addresses appeals from convictions under Sections 383, 384, 388 and 389 BNSS. The corresponding earlier appeal provision was Section 351 CrPC. The availability and manner of an appeal depend on the statutory requirements and the order passed.
Related provisions include Section 349 CrPC (corresponding to Section 388 BNSS), dealing with refusal to answer questions or produce documents, and Section 345 CrPC (corresponding to Section 384 BNSS), dealing with certain offences affecting proceedings in court.
Official statutory references
- Bureau of Police Research and Development: BNSS text and comparative material (PDF)
- National Crime Records Bureau: BNSS provisions, including Section 389
- BPR&D: Comparison of new criminal laws and the CrPC (PDF)
- India Code: Central legislation repository
Frequently asked questions
Which BNSS section corresponds to Section 350 CrPC?
Section 389 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
What is the maximum fine for a witness who fails to attend without just excuse?
The maximum fine under Section 389 BNSS is Rs. 500. Under the earlier Section 350 CrPC, it was Rs. 100.
Does the court have to hear the witness before imposing a fine?
Yes. Section 389(1) BNSS expressly requires an opportunity to show cause.
Is every absence from court punishable under Section 389?
No. The statutory conditions must be satisfied, including absence without just excuse and the court's assessment that summary proceedings are expedient in the interests of justice.
Updated: 18 October 2026. This article provides general legal information. For proceedings arising before 1 July 2024, the repeal, savings and transitional provisions must be considered.