CLAUSES 349,356,360 & 368 OF BNSS

 

 

CLAUSES 349,356,360 & 368 OF BNSS

Clause 349 - Power of Magistrate to order a person to give specimen signatures or handwriting If a Magistrate of the fi rst class is satisfi ed that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or fi nger impressions or handwriting or voice sample, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specifi ed in such order and shall give his specimen signatures or fi nger impressions or handwriting or voice sample: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding: Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested. Clause 356 - Inquiry trial or judgment in absentia of proclaimed offender (1) Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment: Provided that the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge. (2) The Court shall ensure that the following procedure has been complied with before proceeding under sub-section (1) namely:— (i) issuance of execution of two consecutive warrants of arrest within the interval of atleast thirty days; (ii) publish in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the Court for trial and informing him that in case he fails to appear within thirty days from the date of such publication, the trial shall commence in his absence; (iii) inform his relative or friend, if any, about the commencement of the trial; and (iv) affi x information about the commencement of the trial on some conspicuous part of the house or homestead in which such person ordinarily resides and display in the police station of the district of his last known address of residence. (3) Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State. (4) Where the Court, competent to try the case or commit for trial, has examined any witnesses for prosecution and recorded their depositions, such depositions shall be given in evidence against such proclaimed offender on the inquiry into, or in trial for, the offence with which he is charged: Provided that if the proclaimed offender is arrested and produced or appears before the Court during such trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. (5) Where a trial is related to a person under this section, the deposition and examination of the witness, may, as far as practicable, be recorded by audio-video electronic means preferably mobile phone and such recording shall be kept in such manner as the Court may direct. (6) In prosecution for offences under this Sanhita, voluntary absence of accused after the trial has commenced under sub-section (1) shall not prevent continuing the trial including the pronouncement of the judgment even if he is arrested and produced or appears at the conclusion of such trial. (7) No appeal shall lie against the judgment under this section unless the proclaimed offender presents himself before the Court of appeal: Provided that no appeal against conviction shall lie after the expiry of three years from the date of the judgment. (8) The State may, by notifi cation, extend the provisions of this section to any absconder mentioned in sub-section (1) of section 84 of this Sanhita. Clause 360 - Withdrawal from Prosecution The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,— (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Sanhita no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence— (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated under any Central Act, or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his offi cial duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution: Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case. Clause 368 - Procedure in case of person with mental illness tried before Court (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is suffering from mental illness and consequently incapable of making his defence, the Magistrate or Court shall, in the fi rst instance, try the fact of such mental illness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfi ed of the fact, he or it shall record a fi nding to that effect and shall postpone further proceedings in the case. (2) If during trial, the Magistrate or Court of Sessions fi nds the accused to be a person with mental illness, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from mental illness: Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of— (a) head of psychiatry unit in the nearest Government hospital; and (b) a faculty member in psychiatry in the nearest medical college. (3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person with mental illness, the Magistrate or Court shall further determine whether the mental illness renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a fi nding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court fi nds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 369: Provided that if the Magistrate or Court fi nds that a prima facie case is made out against the accused in respect of whom a fi nding of mental illness is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (4) If the Magistrate or Court fi nds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental illness, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 369.