Rethinking Section 350 BNSS: Ensuring Payment Of Reasonable Expenses To Complainants And Witnesses

While the discourse on the Witness Protection Scheme has evolved following the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, there is hardly any discussion on an equally important aspect, the payment of reasonable expenses to complainants and witnesses, despite courts repeatedly emphasising its significance. The financial burden of attending court continues to fall disproportionately on those least able to bear it. Section 350 of the BNSS seeks to address this concern, yet its promise remains largely unrealised.

Who should bear the cost of witnesses in Criminal Trials?

A 62-year-old widow and daily wage worker from a village in Theni, Tamil Nadu, lost her only son in a case of spousal homicide in 2021, where he was allegedly murdered by his wife and her paramour. Later that year, the accused wife, who had been released on bail, died by suicide. Left to pursue justice for her son, the elderly woman also became the sole caregiver of her six-year-old granddaughter.

During the trial, most of the prosecution witnesses were daily wage workers from socio-economically disadvantaged backgrounds. Each court appearance meant losing a day's wages in addition to incurring travel and other incidental expenses. The accused's side allegedly attempted to influence them to turn hostile by offering money. Determined to secure justice for her son, the elderly woman persuaded the witnesses to testify, bearing the costs of their transportation, meals, and lost wages. Yet, despite attending court, the witnesses were often made to wait for hours, only to be asked to return on another date.

To meet these recurring prosecution-related expenses, she exhausted the interim compensation awarded under the Tamil Nadu Victim Compensation Scheme for Women Victims/Survivors of Sexual Assault and Other Crimes, 2018, which had been equally disbursed between her and her granddaughter. Instead of serving its intended purpose of rehabilitation and financial security, the compensation was diverted towards sustaining the prosecution. Following the conviction of the accused, the authorities declined to release the remaining compensation after learning that the interim amount had already been spent, directing her to first recover the amount utilised before the balance could be disbursed.

If Section 350 BNSS empowers courts to order payment of reasonable expenses to complainants and witnesses, why are vulnerable victims still compelled to bear these costs of witnesses?

Section 350 of the Bharatiya Nagarik Suraksha Sanhita, 2023- Expenses of Complainants and witnesses: “Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of the Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Sanhita.”

Committee reports and Judicial Observations on Witness Expenses

The 14th Law Commission Report (1958) was among the earliest to draw attention to the plight of witnesses, recommending that courts provide proper facilities and ensure the payment of reasonable travelling and daily allowances. Building upon these recommendations, the 154th Law Commission Report (1996) further emphasized the need to provide witnesses with basic amenities, including drinking water, medical assistance, and adequate travelling allowances.

There's no judicial precedent in India which discusses the necessity of adequate payment to witnesses at length, only ancillary remarks. In Swaran Singh vs State of Punjab AIR 2000 SC 2017. court observed that:

“The witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned till the witness is tired and will stop coming to court. In this process lawyers also play an important role. Sometimes witness is threatened, maimed, or even bribed. The witnesses are not paid money within time. The High Courts must be vigilant in these matters and should avoid harassment in these matters by subordinate staff. The witnesses should be paid immediately irrespective of the fact whether he examines or the matter is adjourned.”

The Reason to witness turning to hostile observed in Krishna Mochi v. State of Bihar 2002 (6) SCC 81, Also in Ramesh and Other vs State of Haryana 2017 (1) SCC 529, that:

“One of the reasons may be that witness do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.”

A similar emphasis in Zahira Habibullah Sheikh vs State of Gujarat (2006) 3 SCC 374, the court highlighted in observation that:

“Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.”

Also, in State vs Sanjeev Nanda (2012) 8 SCC 450 court noted that:

“99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law, thereby eroding people's faith in the system.”

In the landmark decision of Mahendra Chawla v. Union of India 2019 (14) SCC 615, the Supreme Court described the condition of witnesses in India as “pathetic” and stressed the urgent need for a statutory witness protection framework. The Court observed that witnesses seldom retract or alter their statements voluntarily; rather, such changes are often the result of threats, coercion, intimidation, or the State's failure to provide adequate protection and support.

However, Studies have been conducted on the payment of expenses to witnesses; however, there is hardly any research examining the State-specific rules governing such payments. Section 350 of the Bharatiya Nagarik Suraksha Sanhita, 2023, expressly provides that the payment of reasonable expenses is "subject to any rules made by the State Government."

In K.V. Baby v. Food Inspector 1994 Cri LJ 3421, the Kerala High Court clarified that the power to award reasonable expenses to witnesses under Section 312 of the Code of Criminal Procedure (Section 350 BNSS) is discretionary and must be exercised in accordance with the rules framed by the State Government. The Court further held that where the State rules do not authorise payment from government funds, the Magistrate may, depending on the circumstances of the case and the applicable statutory provisions, direct the accused to bear the witness expenses. The decision underscores that courts must exercise their discretion on sound judicial principles while ensuring that financial constraints do not impede the administration of justice.

State rules on expenses of witnesses

States such as Tamil Nadu (Rule 18 of the Criminal Rules of Practice, 2025), Punjab and Haryana, Odisha, West Bengal, and Tripura have framed rules providing for diet allowance, conveyance, and compensation for loss of earnings but there is no uniform national framework, and no published data on how many states have insufficient rules for promoting witness testimony.

The disparity in witness allowances across States is evident from the existing rules framed under Section 350 BNSS. Under the Tripura Criminal Procedure (Payment of Expenses to Complainant and Witness) Rules, 1972, labourers, ordinary cultivators, and persons of similar status were entitled to Rs. 6 per day, while persons of better position were entitled to Rs. 10 per day. The West Bengal Rules, 1981, provided Rs. 4 per day for persons without income and agricultural labourers, up to Rs. 10 for those earning below Rs. 400 per month, up to Rs. 12 for those earning between Rs. 400 and Rs. 899, and up to Rs. 15 for those earning above Rs. 900 per month. The Odisha Rules, 2012, prescribed Rs. 100 for a general witness and Rs. 100 for retired Government servants and certain retired employees of public institutions appearing in connection with their official duties. They also mentioned witness does not testimony, they will not get paid the allowance.

In State of UP vs Shambhu Nath Singh and Ors AIR 2001 SC 1403 the court highlighted that the ordeal routinely faced by witnesses in criminal trials that witnesses often fear receiving court summons not because of examination or cross-examination, but because they are required to remain in court for several days, sacrificing their livelihood, only to be repeatedly asked to return without their evidence being recorded. Describing this as an unfortunate reality in many trial courts, the Court emphasised that witnesses should be treated as “guests invited” by the court to assist in the administration of justice. The Court further noted that when witnesses are made to endure repeated adjournments and are not examined despite attending court, the ultimate casualty is the criminal justice system itself.

Way forward

Therefore, the existing framework governing the payment of expenses to complainants and witnesses remains fragmented, outdated, and inadequate. Although Section 350 BNSS empowers courts to direct the payment of reasonable expenses, its implementation continues to depend on inconsistent State rules, many of which prescribe unrealistic allowances or fail to account for the practical hardships faced by witnesses. Financial constraints, repeated adjournments, and procedural delays continue to discourage participation in the criminal process.

A more effective framework is therefore necessary. State rules should classify witnesses not only on the basis of their economic vulnerability but also on the nature of their testimony, while ensuring realistic and timely reimbursement for every day they are required to attend court. Trial courts should proactively consider granting relief under Section 350 BNSS in appropriate cases, particularly where complainants and witnesses are economically vulnerable. Such reforms would reaffirm that access to justice should not depend upon one's financial capacity and would strengthen the fairness, efficiency, and credibility of the criminal justice system.

Author is an Advocate practicing at Madurai and Regional Coordinator in GNE-India. Views are personal.