Bharatiya Nagarik Suraksha Sanhita, 2023
Section 358
Power to proceed against other persons appearing to be guilty of offence
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then—
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
Why this exists
This provision lets a trial court act on evidence it hears, rather than being limited only to prosecuting the persons originally charged, ensuring that other apparent wrongdoers who surface during the proceedings can also be brought to justice within the same overall case, instead of requiring an entirely separate prosecution to be initiated from scratch by the police.
How courts read it
This provision, drawn from a well-known earlier Code of Criminal Procedure section, has been the subject of an important Constitution Bench ruling clarifying that a court can add a person as an accused at any stage of the trial, even after examination of witnesses, provided the evidence on record, not mere suspicion, discloses a strong and cogent case that this person could be tried together with the accused already before the court, and that this power should be exercised sparingly and only when the material is more than a bare prima facie case against the new person.
Common misconceptions
- Myth: A court can add anyone as a co-accused based on mere suspicion or a passing remark by a witness.
Fact: Courts have held this power should be used sparingly, only when the evidence on record shows a strong and cogent case against the new person, not just a bare possibility.