Bharatiya Nagrik Suraksha Sanhita 2023

By innovative Judiciary

Bharatiya Nagrik Suraksha Sanhita 2023

INTELLECTUAL PROPERTY DISCLAIMER

The following document titled " Bharatiya Nagrik Suraksha Sanhita 2023"
has been prepared by INNOVATIVE JUDICIARY for the benefit of students
seeking to understand and memorize the provisions of the BNsS 2023. This
document is intended to aid students in their studies and is strictly meant
for educational purposes.

OWNERSHIP:
The content and materials presented in this document are the intellectual
property of INNOVATIVE_JUDICIARY.IN. All rights are reserved.

PERMITTED USE:
This document is solely intended for personal and educational use by
students. It may be used for individual study, reference, and to assist in
memorization exercises related to the Bharatiya Nagrik Suraksha Sanhita
2023.

PROHIBITED USE:
Any unauthorized reproduction, distribution, or public sharing of this
document is strictly prohibited. It is not permissible to sell, rent, lease, or
otherwise exploit this document for commercial purposes.

NO LEGAL ADVICE:
The information provided in this document is for general informational
purposes only and should not be considered as legal advice. It is not a
substitute for consulting official legal sources or seeking guidance from
qualified legal professionals.

VALIDITY:
While every effort has been made to ensure the accuracy and completeness
of the content, laws and regulations are subject to change, and the
document may not always reflect the most current legal developments.

DISCLAIMER OF LIABILITY:
INNOVATIVE_JUDICIARY.IN shall not be held liable for any loss, damage, or
injury arising from the use or reliance on the information contained in this
document. Users are responsible for their own interpretation and
application of the content.
MODIFICATIONS:
This document may not be modified, altered, or edited without the express
written consent of INNOVATIVE_JUDICIARY.IN

1
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

INDEX

Chapter Number Chapter Title Section Range

Chapter I Preliminary Sections 1 - 5
Chapter II Constitution of Criminal Courts and Offices Sections 6 - 20
Chapter III Power of Courts Sections 21 - 29
Powers of Superior Officers of Police and Aid to the
Chapter IV Sections 30 - 34
Magistrates and the Police
Chapter V Arrest of Persons Sections 35 - 62
Chapter VI Processes to Compel Appearance
- Part A: Summons Sections 63 – 71
- Part B: Warrant of Arrest Sections 72 – 83
- Part C: Proclamation and Attachment Sections 84 – 89
- Part D: Other Rules Regarding Processes Sections 90 – 93
Chapter VII Process to Compel the Production of Things
- Part A: Summons to Produce Sections 94 – 95
- Part B: Search-Warrants Sections 96 - 104
- Part C: Miscellaneous Sections 105 - 110

Reciprocal Arrangements for Assistance in Certain

Chapter VIII Matters and Procedure for Attachment and Sections 111 - 124
Forfeiture of Property

Security for Keeping the Peace and for Good

Chapter IX Sections 125 - 143
Behaviour

Order for Maintenance of Wives, Children and

Chapter X Sections 144 - 147
Parents

Chapter XI Maintenance of Public Order and Tranquility

- Part A: Unlawful Assemblies Sections 148 - 151

- Part B: Public Nuisances Sections 152 - 162
- Part C: Urgent Cases of Nuisance or Apprehended
Sections 163
Danger

- Part D: Disputes as to immovable property Sections 164-167

Chapter XII Preventive Action of the Police Sections 168 - 172

Information to the Police and Their Powers to
Chapter XIII Sections 173 - 196
Investigate

Jurisdiction of the Criminal Courts in Inquiries and

Chapter XIV Sections 197 - 209
Trials

Chapter XV Conditions Requisite for Initiation of Proceedings Sections 210 - 222

Chapter XVI Complaints to Magistrates Sections 223 - 226

Chapter XVII Commencement of Proceedings Before Magistrates Sections 227 - 233

Chapter XVIII The Charge Sections 234 - 247

Chapter XIX Trial Before a Court of Session Sections 248 - 260

2
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XX Trial of Warrant-Cases by Magistrates

- Part A: Cases Instituted on a Police Report Sections 261 - 266
- Part B: Cases Instituted Otherwise than on Police
Sections 267 - 270
Report
- Part C: Conclusion of Trial Sections 271 - 273
Chapter XXI Trial of Summons-Cases by Magistrates Sections 274 - 282
Chapter XXII Summary Trials Sections 283 - 288
Chapter XXIII Plea Bargaining Sections 289 - 300
Attendance of Persons Confined or Detained in
Chapter XXIV Sections 301 - 306
Prisons
Chapter XXV Evidence in Inquiries and Trials

- Part A: Mode of Taking and Recording Evidence Sections 307 - 318

- Part B: Commissions for the Examination of

Sections 319 - 336
Witnesses

Chapter XXVI General Provisions as to Inquiries and Trials Sections 337- 366

Chapter XXVII Provisions as to Accused Persons of unsound mind Sections 367 - 378

Provisions as to Offences Affecting the

Chapter XXVIII Sections 379 - 391
Administration of Justice

Chapter XXX The Judgement Sections 392-406

Chapter XXX Submission of Death Sentences for Confirmation Sections 407 - 412

Chapter XXXI Appeals Sections 413 – 435

Chapter XXXII Reference and Revision Sections 436 - 445
Chapter XXXIII Transfer of Criminal Cases Sections 446 - 452
Execution, Suspension, Remission and
Commutation of Sentences
- Part A: Death Sentences Sections 453 - 456
- Part B: Imprisonment Sections 457 - 460
- Part C: Levy of Fine Sections 461 - 464

Chapter XXXIV - Part D: General Provisions Regarding Execution Sections 465 - 477

Chapter XXXV Provisions as to Bail and Bonds Sections 478- 496

Chapter XXXVI Disposal of Property Sections 497 - 505
Chapter XXXVII Irregular Proceedings Sections 506 - 512
Limitation for Taking Cognizance of Certain
Chapter XXXVIII Sections 513 - 519
Offences
Chapter XXXIX Miscellaneous Sections 520 - 531

3
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Bharatiya Nagrik Suraksha Sanhita 2023

ACT NO: Act No 46 of 2023

Enactment Date: 25th Dec 2023

Enforcement Date: 01July 2024

It’s a procedural law.

531 sections & 39 chapters

Territorial extent: Whole over INDIA (SOME Exceptions are in Sec 1)

BNSS 2023

531 Sections 39 chapters

Classification (1) offences

under BNS 2023
First Schedule
Classification (2) offences
Two schedules against other laws

Second schedule 58 Forms

Chapter I

(Sections 1 – 5)

Preliminary

Section 1 Short Title, Extent, and Commencement

Short Title This Act may be called the Bharatiya Nagarik Suraksha Sanhita, 2023.

- Not applicable to State of Nagaland and tribal areas (Except Chapters

IX, XI, XII).
Extent

- State Government can apply with modifications via notification.

4
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

"tribal areas" means the territories which immediately before the 21st day
of January, 1972, were included in the tribal areas of Assam, as referred
to in paragraph 20 of the Sixth Schedule to the Constitution,excluding
Shillong municipality.

The Act will come into force on a date appointed by the Central
Commencement
Government via notification in the Official Gazette.
Follow us on instagram@innovative_judiciary.in

DEFINITIONS (THE FOLLOWING WORD ARE DEFINED UNDER THIS

SECTION 2
SECTION)
2(1)(a) Audio-video 2(1)(c) Bailable and
2(1)(b) Bail 2(1)(d) Bail bond
electronic means non-bailable offence

2(1)(g) Cognizable
2(1)(e) Bond 2(1)(f) Charge 2(1)(h) Complaint
offence and case

2(1)(i) Electronic
2(1)(j) High Court 2(1)(k) Inquiry 2(1)(l) Investigation
communication
2(1)(o) Non-
2(1)(m) Judicial 2(1)(n) Local
cognizable offence 2(1)(p) Notification
proceeding jurisdiction
and case

2(1)(r) Officer in
2(1)(q) Offence charge of a police 2(1)(s) Place 2(1)(t) Police report
station

2(1)(v) Public
2(1)(u) Police station 2(1)(w) Sub-division 2(1)(x) Summons-case
Prosecutor
2(2) Words from IT
Act, 2000 and
2(1)(y) Victim 2(1)(z) Warrant-case
Bharatiya Nyaya
Sanhita, 2023

IMPORTANT DEFINITIONS

Section 2:Definitions
1. In this Sanhita, unless the context otherwise requires:
2(1)(a) "Audio-video electronic means"-

• The use of any communication device for the purposes of:

• Video conferencing
• Recording of processes of identification
• Search and seizure
• Evidence transmission
• Other purposes and by such means as the State Government may provide by rules.(Newly
ADDED)

2(1)(b) "Bail"

• Release of a person accused or suspected of the commission of an offence from custody of law
upon conditions imposed by an officer or Court on execution of a bond or bail bond.(Newly
ADDED)

5
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

▪ Motiram v. State of MP 1978: J. Krishna Iyer said that bail is a rule &
imprisonment is an exception.

2(1)(c) "Bailable offence"/Non Bailable offence

• An offence shown as bailable in the First Schedule, or made bailable by any other law.

• "Non-bailable offence" means any other offence.

Category Bailable Offence Non-Bailable Offence

An offence shown as bailable

in the First Schedule of BNSS Any offence not classified as bailable
Definition 2023 or made bailable by any in the First Schedule or by other laws
other law for the time being in is non-bailable.
force.

The accused has the right to

be released on bail after No right to bail. The bail is at the
arrest. The bail must be discretion of the court, which may
Right to Bail
granted as a matter of right, grant or refuse it based on the gravity
either by the police officer or of the offence.
by the court.

Typically minor offences, such

Serious offences, such as:
as:
- Petty theft - Murder
Examples of Offences
- Public nuisance - Rape
- Simple hurt - Kidnapping
- Defamation - Terrorism-related offences

Conditions for Bail Discretion to grant bail in non bailable

offences should be exercised with great
Right to claim bail in a care and caution by balancing valuable
bailable offence is an absolute right of liberty of an individual and the
& indefeasible right interest of society at large

Ensures the accused's right Protects public safety by denying bail

to liberty for minor offences for serious crimes, ensuring that the
Purpose
and avoids unnecessary pre- accused does not pose a threat or flee
trial detention. justice.

2(1)(d) "Bail bond"

• An undertaking for release with surety.(new Added)

2(1)(e) "Bond"

• A personal bond or an undertaking for release without surety.(new Added)

2(1)(f) "Charge"

• Includes any head of charge when the charge contains more than one head.

6
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

▪ This is not full definition , it’s an inclusive definition , the general meaning of
charge is "a written accusation or allegation made by the court."

2(1)(g) "Cognizable offence"

• An offence for which a police officer may arrest without a warrant in accordance with the First
Schedule or any other law.

2(1)(o) "Non-cognizable offence"

• An offence for which a police officer has no authority to arrest without a warrant

Category Cognizable Offence Non-Cognizable Offence

An offence in which a police

officer can arrest without a An offence where a police officer cannot
Definition warrant as per the First arrest without a warrant and requires court
Schedule of BNSS 2023 or any permission to proceed with the investigation.
other law.

The police have the authority to The police require permission from a
Police Authority arrest and investigate without Magistrate to investigate and arrest the
a warrant. accused.

These offences typically involve

serious crimes that pose a These are minor offences and do not usually
Severity of Offence
threat to society or public require immediate police action.
safety.

The police cannot file an FIR directly.

Instead, they make a complaint, and the
Filing of FIR For a cognizable offence , one Magistrate’s approval is needed to begin an
can file FIR or make a investigation.
complaint to the magistrate.
Examples of cognizable Examples of non-cognizable offences
offences include: include:
- Murder - Defamation
Examples of
- Rape - Public nuisance
Offences
- Kidnapping - Simple assault
- Theft - Forgery
- Rioting

The police can begin an

Investigation investigation immediately The police must seek permission from the
Process without prior permission from a Magistrate before starting an investigation.
Magistrate.
Follow us on instagram@innovative_judiciary.in

2(1)(h) "Complaint"

• Any allegation made orally or in writing

• to a Magistrate, with the intention of action being taken under this Sanhita,

• that a person whether known or unknown has committed an offence,

• but does not include a police report.

7
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Explanation-A report made by a police officer in a case disclosing a non-cognizable offence

after investigation is deemed a complaint.
• The police officer by whom such a report is made is deemed the complainant.

Category FIR (First Information Report) Complaint

A formal report of a cognizable A formal allegation made to a

offence registered by the police upon Magistrate regarding any offence, either
Definition receiving information.(Not cognizable or non-cognizable, made
defined,but relevant provision orally or in writing.(Sec 2(1) h BNSS
related definition in Sec 173 BNSS)) 2023

Typically filed for cognizable

offences where the police have the Can be filed for both cognizable and
Offence Type
authority to arrest without a non-cognizable offences.
warrant.

Filed with the police. The police

Filed directly with a Magistrate by an
are obligated to register an FIR for
Filing Authority individual, who is the complainant, and
cognizable offences when they
can be oral or written.
receive credible information.

Mandatory for the police to register A Magistrate may or may not take action
Legal Obligation to
an FIR when a cognizable offence is on a complaint based on their discretion
Register
reported. or after examining the facts.

Contains information about:

- The offence committed
Contains a formal allegation that a
- Date, time, and place of the specific person has committed an
Content occurrence offence. It does not need as much detail
as an FIR but must make out a case for
- Details of the accused (if known) action.

- Any witnesses
The Magistrate decides whether to act
The police are obligated to register on the complaint. If needed, the
Role of Police
the FIR and start the investigation. Magistrate may direct the police to
investigate.

2(1)(i) "Electronic communication"

• The communication of any written, verbal, pictorial information, or video content transmitted
or transferred:
• From one person to another
• From one device to another
• From a person to a device
• From a device to a person
• By any electronic device such as telephones, mobile phones, computers, or other electronic
devices as specified by the Central Government.

2(1)(k) "Inquiry"

• Every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court.

8
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

2(1)(l) "Investigation"

• Includes all proceedings under this Sanhita

• for the collection of evidence conducted by:

• A police officer
• Any person (other than a Magistrate) authorized by a Magistrate in this behalf.

Category Investigation Inquiry Trial

Investigation
includes all
proceedings under this
Sanhita for the Trial is the judicial
collection of evidence, Inquiry refers to any proceeding
process where the guilt or
conducted by: conducted by a Magistrate or
innocence of the accused
Definition Court, other than a trial, to
• A police officer is determined based on
determine facts or gather
• Any person (other evidence presented in a
evidence.
than a Magistrate) court of law.
authorized by a
Magistrate in this
behalf.
To collect evidence To ascertain facts and To decide on the guilt or
and establish the facts determine whether there is innocence of the accused
Purpose of the case, identify sufficient evidence to proceed based on the evidence and
suspects, and arrest with the case, but does not arguments presented by
them if necessary. involve final adjudication. both sides.
Conducted by the
Conducted by a Judge or
Who police or other Conducted by a Magistrate or
Magistrate in a court of
Conducts It investigating Court.
law.
agencies.
Preliminary process Judicial in nature. It is a
to gather facts. It is formal legal proceeding
Nature of Judicial in nature. It is a formal
non-judicial, and aimed at determining the
Proceedings legal process, but it is not a trial.
focuses on evidence guilt or innocence of the
collection. accused.
Takes place at the Conducted after investigation Occurs after inquiry (if
Stage of
initial stage of the but before the trial, to assess if necessary) and involves
Criminal
criminal justice there is sufficient evidence to the presentation of
Process
process, proceed with prosecution. evidence and witnesses.
Leads to the
collection of
Leads to the conviction
evidence, Can lead to either the framing
or acquittal of the
identification of the of charges (if sufficient evidence
Result accused, based on the
accused, and a final is found) or the discharge of the
evidence presented during
report (chargesheet) accused if no case is made out.
the trial.
being filed before the
court.
Follow us on instagram@innovative_judiciary.in

2(1)(m) "Judicial proceeding"

• Includes any proceeding during which evidence is or may be legally taken on oath.

2(1)(n) "Local jurisdiction"

• Refers to the local area within which a Court or Magistrate may exercise all or any of their
powers under this Sanhita.
• The local area may comprise the whole State or any part of the State as specified by the
State Government by notification.

2(1)(q) "Offence"

9
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Any act or omission punishable by any law for the time being in force.
• It includes any act in respect of which a complaint may be made under Section 20 of the
Cattle Trespass Act, 1871.

2(1)(r) "Officer in charge of a police station"

• When the officer in charge of the police station is absent from the station-house or unable due
to illness or other cause to perform their duties,

• the officer present at the station-house who is next in rank and is above the rank of
constable takes charge.

• If directed by the State Government, any other police officer present may be designated.

2(1)(t) "Police report"

• A report forwarded by a police officer to a Magistrate under subsection (3) of Section 193.

2(1)(v) "Public Prosecutor"

• Any person appointed under Section 18 and includes any person acting under the directions
of a Public Prosecutor. Follow us on instagram@innovative_judiciary.in

2(1)(x) "Summons-case"

• A case relating to an offence, not being a warrant-case.

2(1)(z) "Warrant-case"

• A case relating to an offence punishable with:

• Death
• Imprisonment for life
• Imprisonment for a term exceeding two years.

Category Summon-case Warrant-case

S. 2(1)(x) defines summons case as a case

relating to an offence, and not being a 2(1)(z) A warrant-case is a case
warrant-case. So A summon-case is a case relating to an offence punishable with
Definition
relating to an offence that is not punishable death, life imprisonment, or
by death, life imprisonment, or imprisonment exceeding two years.
imprisonment exceeding two years.

Seriousness of Summon-cases involve less serious Warrant-cases involve serious

Offence offences (minor offences). offences (major crimes).
Magistrate can convert a summons case into
Convet a warrant case. (S. 259 CrPC)(Sec 282 A warrant case cannot be converted
BNSS) into a summons case.
Trial procedures in warrant-cases are
Trial procedures in summon-cases are
Trial Procedure more elaborate, ensuring a more
simpler and quicker, with fewer steps.
thorough examination of evidence.

In a warrant-case, even if the accused

If the accused pleads guilty in a summon-
pleads guilty, the court will still
Plea by Accused case, the court may convict the accused
conduct a detailed examination of
immediately.
evidence before conviction.

10
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

In a warrant-case, the accused can be

Discharge of In a summon-case, the accused may be discharged only after a detailed
Accused discharged if no sufficient evidence is found. hearing and if the court is satisfied
that there is no prima facie case.

Formal Charge In summon case, framing of a formal charge In warrant case, framing of a formal
is not necessary. charge is necessary.

2(1)(y) "Victim"

• A person who has suffered any loss or injury caused by the act or omission of the accused
person.
• It includes the guardian or legal heir of such a victim.

2(2) Words and expressions

• Words and expressions used herein, but not defined, will have the meanings assigned to them
in:
• The Information Technology Act, 2000
• The Bharatiya Nyaya Sanhita, 2023.

Category Discharge Acquittal

1. Stage Happens before the trial begins. Happens after the trial concludes.

Based on insufficient evidence to proceed Based on failure to prove guilt

2. Reason
to trial. during the trial.

The accused can be retried if new evidence The accused cannot be retried for
3. Legal Effect
emerges. the same offence (double jeopardy).

4. Finality Not a final determination of innocence. A final determination of innocence.

Section 3: Construction of References

1. Magistrate Reference:

o Any reference in any law to a "Magistrate," "Magistrate of the first class," or

"Magistrate of the second class" is construed as a reference to Judicial Magistrates
of the respective class, depending on the jurisdiction of the area.

2. Functions of Magistrates:

o Judicial Magistrate: Handles matters that involve:

▪ Evaluating or shifting evidence,

▪ Making decisions that may result in punishment, penalty, detention, or

sending someone for trial.

11
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o Executive Magistrate: Handles matters that are administrative or executive in

nature, such as:

▪ Granting, suspending, or cancelling licenses,

▪ Sanctioning or withdrawing prosecution.

SECTION 4 Trial of Offences under Bharatiya Nyaya Sanhita, 2023 and Other Laws:
All offences under the Bharatiya Nyaya Sanhita, 2023 shall be:
Section 4(1) -
Offences under BNS - Investigated
2023 - Inquired into
- Tried
- Otherwise dealt with, according to the provisions of the BNSS 2023.

Offences under other laws shall also be:

Section 4(2) -
Offences under - Investigated
Other Laws - Inquired into
- Tried

- Otherwise dealt with according to BNSS 2023 provisions, unless a specific

law regulates the process or place for dealing with such offences.

Section 5 - Saving

Nothing in this Sanhita shall, in the absence of a specific provision to the contrary, affect:

1. Any special or local law that is currently in force.

2. Any special jurisdiction or power. Follow us on instagram@innovative_judiciary.in

3. Any special form of procedure prescribed by any other law.

CHAPTER -II

Sections 6 - 20

CONSTITUTION OF CRIMINAL COURTS AND OFFICES

Section 6

Classes of Criminal Courts

Besides the High Courts and the Courts constituted under any law, other than this Sanhita, there
shall be, in every State, the following classes of Criminal Courts:

Judicial Judicial
Courts of Executive
Magistrates of Magistrates of
Session; Magistrates.
the first class; the second class;

Section 7 –

Territorial Divisions:

Level Description
State The entire State shall either be a sessions division or consist of multiple
sessions divisions.
Sessions Division A sessions division shall either be a single district or consist of multiple
districts.

12
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

District Each district can be further divided into sub-divisions.

Sub-Division A sub-division is a further division within a district. The limits or number
can be altered by the State Government after consultation with the High
Court.
The sessions divisions, districts, and sub-divisions that exist at the
Existing Divisions commencement of this Sanhita are deemed to have been formed under this
section.

Section 8 –

Court of Sessions

The State Government shall establish a Court of Session for every sessions division.

Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.

The High Court has the authority to appoint Additional Sessions Judges to assist in the jurisdiction
of a Court of Session.

Handling Urgent Matters:

• If the office of the Sessions Judge is vacant, urgent applications can be dealt with by an
Additional Sessions Judge or the Chief Judicial Magistrate.(High court may make an
arrangement)

Sittings of the Court:

• The Court of Session usually holds its sittings at places notified by the High Court. It can,
however, sit at other places with the consent of both the prosecution and the accused.

▪ Kehar Singh ▪ it was held that a

v notification by the High Court for
The State (Delhi Admn.), 1989 holding the sittings of the Sessions
Court in Tihar Jail was not illegal as
the notification amounted to
declaring Tihar Jail as a place in
addition to Tis Hazari and the
Sessions Court held its sittings.

Distribution of Business:

• The Sessions Judge has the authority to allocate cases and distribute work among the
Additional Sessions Judges.

Urgent Applications During Absence:

• In case the Sessions Judge is absent or unable to act, urgent applications can be handled by
an Additional Sessions Judge or the Chief Judicial Magistrate.(Session judge may make
arrangements)

13
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Courts of Judicial Magistrates

Section Provision
The State Government shall establish Courts of Judicial Magistrates of the
first and second class in every district, at places specified in consultation with
the High Court. Presiding officers shall be appointed by the High Court.
Section 9 - Courts of
The High Court may, whenever it appears to it to be expedient or necessary,
Judicial Magistrates
confer the powers of a Judicial Magistrate of the first class or of the second class
on any member of the Judicial Service of the State, functioning as a Judge in a
Civil Court.

In every district, the High Court shall appoint a Judicial Magistrate of the first
Section 10 - Chief Judicial
class as Chief Judicial Magistrate. The High Court may also appoint
Magistrate and Additional
Additional Chief Judicial Magistrates and designate Sub-divisional Judicial
Chief Judicial Magistrate
Magistrates.

The High Court may, upon request from the Central or State Government, confer
Section 11 - Special Judicial Judicial Magistrate powers on persons who have held government posts(having
Magistrates legal knowledge), for specific cases or classes of cases, with a term not exceeding
one year.

Section 12 - Local The Chief Judicial Magistrate may define the local limits of jurisdiction for
Jurisdiction of Judicial Magistrates under Sections 9 and 11. The Court of Special Judicial Magistrates
Magistrates may hold sittings within its local area.

Every Chief Judicial Magistrate is subordinate to the Sessions Judge, and other
Section 13 - Subordination Judicial Magistrates are subordinate to the Chief Judicial Magistrate subject to
of Judicial Magistrates the general control of Court of Sessions. The Chief Judicial Magistrate can issue
rules for distributing business among Magistrates.

Supreme
court of India

High Courts

Courts of
Session

CJM

Judicial
Magistrate

14
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Courts of Executive Magistrates

Section Summary

The State Government may appoint as many Executive Magistrates as

Section 14 - Executive
necessary and shall appoint one to be the District Magistrate. Additional
Magistrates
District Magistrates may also be appointed to exercise certain powers.

The State Government may appoint Executive Magistrates or any police officer
not below the rank of Superintendent of Police or equivalent, to be known as
Section 15 - Special
Executive Magistrates Special Executive Magistrates for specific areas or specific functions. These
Magistrates can be conferred the powers of an Executive Magistrate for particular
cases or areas.
The District Magistrate can define the local limits within which Executive
Magistrates may exercise their powers. The jurisdiction and powers of an
Section 16 - Local
Executive Magistrate
Jurisdiction of Executive
Magistrates
generally, extend throughout the district unless otherwise defined.

All Executive Magistrates are subordinate to the District Magistrate.

Section 17 - Subordination
Executive Magistrates in sub-divisions are subordinate to the Sub-divisional
of Executive Magistrates
Magistrate, subject to the general control of the District Magistrate.

Section 18

Public Prosecutors

Subsection (1)

For conducting
Central or State
prosecutions, appeals, or
for every High Court Government, after
other proceedings on behalf
consultation with the High
of the Central or State
Court
Government.

Shall appoint
•A Public Prosecutor

may appoint
•one or more
Additional Public
Prosecutors

Provided that for the National Capital Territory of Delhi, the Central Government shall, after
consultation with the High Court of Delhi, appoint the Public Prosecutor or Additional Public
Prosecutors for the purposes of this sub-section.

15
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Subsection (2)

for the purpose of

Central Government conducting any case
for district Court
may appoint in any case in any
district or local area

one or Public
Prosecutor

Subsection (3)

For conducting
for every State
prosecutions, in
District Government
district courts.

Shall appoint
•A Public Prosecutor

may appoint
•one or more
Additional Public
Prosecutors

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be
appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for
another district.

Subsection (4)

fit to be appointed as
The District Magistrate prepare a panel of Public Prosecutors or
shall, in consultation names of persons, who Additional Public
with the Sessions Judge are, in his opinion Prosecutors for the
district

16
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Subsection (5)

No person shall be appointed unless his name appears in the panel of names prepared by the DM.

Subsection (6)

where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall
appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons
constituting such Cadre.

If no person suitable person, then from panel.

Subsection (7) Follow us on instagram@innovative_judiciary.in

Eligible- if he has been in practice as an advocate for not less than seven years.

Subsection (8) The Central Government or the State Government may appoint, for the purposes of
any case or class of cases, a person who has been in practice as an advocate for not less than ten
years as a Special Public Prosecutor,

Provided that the Court may permit the victim to engage an advocate of his choice to assist
the prosecution under this sub-section.

Question-Who appoints assistant public prosecutor? Whether a police officer may be appointed
as an assistant public prosecutor?
Section 19

Assistant Public Prosecutors

Section
Who Whom For Which
No.

State Government Conducting prosecutions in the

One or more Assistant
19(1) SHALL APPOINT Courts of Magistrates in
Public Prosecutors
districts

Central Government
Conducting any case or class of
MAY APPOINT One or more Assistant
19(2) cases in the Courts of
Public Prosecutors
Magistrates

Appointed as APP for a

particular case when no
District Magistrate
19(3) Any other person Assistant Public Prosecutor is
May
available, with 14 days’ notice
to the State Government

If the officer has taken part in

19 Proviso the investigation into the
(Ineligible) Police Officer
(3)(a) offence with respect to which
the accused is being prosecuted

17
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

19
If the officer is below the rank
Proviso(3) Police Officer
of Inspector
(b)

Section 20: Directorate of Prosecution

Sub-
Section
The State Government ⟶ (a) Directorate of Prosecution ⟶ every state ⟶ Director of
Prosecution and as many Deputy Directors as deemed fit. (b) District Directorate of
20(1) Prosecution ⟶ every district ⟶ as many Deputy Directors and Assistant Directors as
deemed fit.

(a) Director or Deputy Director of Prosecution ⟶ practiced as

advocate for at least 15 years or is/has been Sessions Judge.
20(2)
(b) Assistant Director of Prosecution ⟶ practiced as advocate for at
least 7 years or is/has been Magistrate of first class.

Directorate of Prosecution ⟶ headed by Director of Prosecution ⟶ under

20(3)
administrative control of Home Department.

(a) Deputy Directors and Assistant Directors ⟶ subordinate to Director of Prosecution.

20(4)
(b) Assistant Directors ⟶ subordinate to Deputy Directors.
Public Prosecutors, Additional Public Prosecutors, and Special Public Prosecutors ⟶
20(5) appointed by State Government for High Court cases ⟶ subordinate to Director of
Prosecution.

Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors, and

20(6) Assistant Public Prosecutors ⟶ appointed for District Court cases ⟶ subordinate to
Deputy Director or Assistant Director of Prosecution.

Director of Prosecution ⟶ monitors cases with imprisonment of 10 years or more, life

20(7)
imprisonment, or death ⟶ expedites proceedings and gives opinions on appeals.
Deputy Director of Prosecution ⟶ monitors cases with imprisonment of 7 years or more,
20(8) but less than 10 years ⟶ ensures expeditious disposal.

Assistant Director of Prosecution ⟶ monitors cases with imprisonment of less than 7

20(9)
years.
Director, Deputy Director, or Assistant Director of Prosecution ⟶ responsible for all
20(10)
proceedings under this Sanhita.

State Government ⟶ specifies by notification powers, functions, and areas for Directors,
20(11)
Deputy Directors, and Assistant Directors.

Provisions ⟶ do not apply to Advocate General while performing functions of Public

20(12)
Prosecutor.

18
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(Chapter III)

Sections 21 - 29

Powers of Courts

Section
Section Name Provisions
Number
(a) Any offence under Bharatiya Nyaya Sanhita, 2023 ➔ may be
tried by:
(i) High Court;
(ii) Court of Session;
(iii) Any other Court as per First Schedule.
Courts by which Proviso: Offences under sections 64-71(rape cases) ➔ to be tried by a
Section 21
offences are triable Court presided over by a woman (as far as practicable).
(b) Offences under any other law ➔ shall be tried by the Court
mentioned in such law. If no Court is mentioned ➔ may be tried by:
(i) High Court;
(ii) Any Court mentioned in First Schedule.

(1) High Court ➔ may pass any sentence authorised by law.

Sentences which
High Courts and (2) Sessions Judge/Additional Sessions Judge ➔ may pass any
Section 22
Sessions Judges sentence authorised by law ➔ death sentence requires confirmation
may pass by High Court.

(1) Chief Judicial Magistrate's Court ➔ may pass any sentence

except ➔ death, life imprisonment, or imprisonment exceeding7
years.
(2) Magistrate of First Class ➔ may pass:
(i) Imprisonment up to 3 years;
Sentences which (ii) Fine up to ₹50,000;
Section 23 Magistrates may (iii) Community service.
pass (3) Magistrate of Second Class ➔ may pass:
(i) Imprisonment up to 1 year;
(ii) Fine up to ₹10,000;
(iii) Community service.
Explanation: Community service ➔ work benefiting the community
without remuneration.
Q. What are the provisions in BNSS for passing sentence of imprisonment in default of fine?
(1) Magistrate ➔ may award imprisonment in default of fine ➔
subject to:
(a) is not in excess of the powers of the Magistrate u/s 23;
(b) shall not, where imprisonment has been awarded as part of the
Sentence of
substantive sentence, exceed one-fourth of the term of imprisonment
Section 24 imprisonment in
which the Magistrate is competent to inflict as punishment for the
default of fine
offence otherwise than as imprisonment in
default of payment of the fine.
(2) Imprisonment in default ➔ may be in addition to substantive
sentence.
Provision given in Bharatiya Nyaya Sanhita in section 8(3)

The term for which the Court can order imprisonment in default of payment of afine shall not
exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if
the offence be punishable with imprisonment as well as fine.
For Example, if the maximum term of imprisonment provided for an offence is one year, the term of
imprisonment in default of payment of fine can never exceed three months which is the one-fourth of
one year.(12*1/4=3 months)

19
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

There Is difference between BNS and BNSS provision , Butin case of confliction , accused person shall
have benefit(whichever is lower)

Q. Explain the law under BNSS 2023 relating to sentence in case of conviction of several offences at
a trial?

(1) When convicted at one trial for two or more offences ➔ Court may:
(i) Pass several punishments for such offences;
(ii) Order punishments to run concurrently or consecutively based on
gravity.
(2) in case of Consecutive sentences ➔ Not necessary to send to the
Sentence in cases
higher court, if aggregate punishment excess from the punishment
of conviction of
Section 25
several offences at which a magistrate may inflict for single ➔
one trial
Proviso:
(a) Imprisonment shall not exceed 20 years;
(b) Aggregate punishment shall not exceed twice the punishment for a
single offence which a magistrate could inflict.
(3) For appeal ➔ consecutive sentences treated as a single sentence.
(1) High Court or State Government ➔ may empower persons by
Mode of conferring
Section 26 name or by virtue of office with powers under this Sanhita.
powers
(2) Order takes effect from the date it is communicated.
Government officers ➔ invested with powers under this Sanhita ➔ if
Section 27
Powers of officers appointed to equal or higher office within the same local area ➔ shall
appointed exercise same powers unless otherwise directed by the High Court or
State Government.
(1) High Court or State Government ➔ may withdraw powers
Withdrawal of conferred under this Sanhita.
Section 28
conferred powers (2) Chief Judicial Magistrate or District Magistrate ➔ may
withdraw powers they conferred.
(1) Powers and duties of a Judge or Magistrate ➔ may be exercised
by their successor-in-office.
(2) When doubt arises on succession ➔ Sessions Judge shall decide
Section 29 Succession of powers by written order.
(3) If there is doubt about the successor of a Magistrate ➔ Chief
Judicial Magistrate or District Magistrate shall determine
successor by written order.

Chapter IV:

Sections 30 - 34

Powers of Superior Officers of Police and Aid to the Magistrates and the Police

Section 30: Powers of superior officers of police

• Police officers superior in rank to the officer in charge of a police station have the same
powers throughout the local area where they are appointed, as the officer in charge has
within the limits of his station.

Aid to the magistrates and the police

Section 31: Public when to assist Magistrates and police

• Every person is bound to assist a Magistrate or police officer when reasonably

demanded to do so. Assistance is required:

20
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(a) In the arrest or prevention of the escape of any person authorized to be arrested.

(b) In the prevention or suppression of a breach of peace.

(c) In the prevention of any injury attempted to be committed to public property.( The words
"railway, canal, telegraph or" were in crpc)

* S. 222 of BNS punishes those who are bound by the law to assist a public servant intentionally
omits it to do so. Punishment: simple imprisonment up to 1 month or with fine up to 2500/- Rs
or with both.

Follow us on instagram@innovative_judiciary.in

Section 32: Aid to person, other than police officer, executing warrant

• When a warrant is directed to a person who is not a police officer, any other person may aid
in executing the warrant if the person to whom the warrant is directed is nearby and acting
to execute it.

Section 33: Public to give information of certain offences

• (1) Any person who becomes aware of the commission or intention of others to commit offences
under certain sections of the BNS, 2023, must provide this information to the nearest
Magistrate or police officer, unless they have a reasonable excuse.

o Offences include sections: BNS 2023

▪ 103-105

▪ 111-113

▪ 140-144

▪ 147-154, 158

▪ 178-182

▪ 189, 191

▪ 274-280

▪ 307

▪ 309-312

▪ 326-328

▪ 331, 332

• (2) This section applies to offences committed outside India that would be considered offences
if committed within India.

• If a person bound u/s 33 of BNSS 2023 to give information omits, then he will be liable
u/s 211 or 239 of BNS 2023.

Section 34: Duty of officers employed in connection with affairs of a village to make certain
reports

• (1) Every officer connected with village affairs and residents of the village must communicate
certain information to the nearest Magistrate or police officer, such as:

21
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(a) Presence of notorious receivers or sellers of stolen goods.

(b) Knowledge or suspicion of robbers, escaped convicts, or proclaimed offenders.
(c) Any non-bailable offence or specific offences under sections 189 and 191 of BNS, 2023.
(d) Suspicious deaths or discovery of corpses in or near the village.
(e) Offences committed outside India, near the village, which would be punishable under BNS,
2023.
(f) Any matter affecting law and order or public safety as directed by the District Magistrate.

Chapter V:

Sections 35 - 62

Arrest of Persons

Article 21 of Indian constitution states that no person shall be deprived of his

life or personally liberty except procedure
established by law. Arrest violates the right to
personal liberty but if the arrest is made in
accordance with the sound provisions contained
in BNSS, it would fall within the exception of
Article 21 i.e., procedure established by law and
would be justified.

This judgment highlighted that the power of arrest

must not be arbitrary. Under the Customs Act, an
Romesh Chandra Mehta Case officer can only arrest a person when there is a
"reason to believe" that an offence has been
committed.

In this case, the Supreme Court granted regular

bail to Teesta Setalvad, reinforcing the principle that
arrests should not be made arbitrarily. The Court
Teesta Setalvad Case (2023) emphasized the importance of judicial scrutiny in
cases involving arrests without clear grounds

Q. under what circumstances a police officer may arrest without warrant?

S 2(1)(g) of BNSS 2023 states that – In case of Cognizable offence, a police officer may, arrest
without warrant.

There are following provisions in BNSS, which describes the circumstances where a police officer may
arrest without warrant-
Follow us on instagram@innovative_judiciary.in

Section 35:When Police May Arrest Without Warrant

1. Any police officer may, without an order from a Magistrate and without a warrant, arrest any
person:

o (a) Who commits a cognizable offence in the presence of a police officer.

o (b) Against whom a reasonable complaint has been made, credible information has
been received, or reasonable suspicion exists of having committed a cognizable
offence punishable with imprisonment for a term up to seven years, provided:

▪ The police officer has reason to believe the offence was committed.

▪ Arrest is necessary to:

▪ Prevent further offences.

22
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

▪ Ensure proper investigation.

▪ Prevent evidence tampering.
▪ Prevent inducement, threat, or promise to
witnesses.
▪ Ensure the person’s presence in court.
▪ The police officer shall record the reasons for making or not making the
arrest.

o (c) Against whom credible information has been received for committing a cognizable
offence punishable with more than seven years, or death sentence.

o (d) Who is proclaimed an offender under this Sanhita or by the State Government.

o (e) Found in possession of suspected stolen property.

o (f) Obstructing a police officer in duty or escaping custody.

o (g) Suspected of desertion from the Armed Forces.

o (h) Having committed an extraditable offence outside India.

o (i) A released convict breaching rules under Section 394(5).

o (j) For whose arrest requisition has been made by another police officer.

2. No person involved in a non-cognizable offence shall be arrested without a warrant or

Magistrate’s order.

Notice of appearance before police officer.—

3. For offences not requiring arrest under sub sec 1, police may issue a notice to appear.
Compliance with the notice prevents arrest unless otherwise recorded.

4. Where such a notice is issued to any person, it shall be the duty of that person to comply with
the terms of the notice.

5. Where such person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for reasons to be recorded

6. Where such person, at any time, fails to comply with the terms of the notice or is unwilling to
identify himself, the police officer may, subject to such orders as may have been passed by a
competent Court in this behalf, arrest him for the offence mentioned in the notice.

7. No arrest shall be made without prior permission of an officer not below the rank of Deputy
Superintendent of Police in case of an offence which is punishable for imprisonment of less
than three years and such person is infirm or is above sixty years of age.

23
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 36:Procedure of arrest and duties of officer making arrest.—

EVERY POLICE
OFFICER WHILE
MAKING
ARREST

prepare a
bear an memorandum
accurate, visible of arrest which
and clear shall be—
identification of (c) inform the person arrested,
his name which unless the memorandum is
will facilitate attested by a member of his
(i) attested by at family, that he has a right to
easy least one
identification; have a relative or a friend or any
witness, who is other person named by him to
a member of be informed of his arrest.
the family of the
person arrested
or a respectable
member of the
locality where
the arrest is
made

(ii)
countersigned
by the person
arrested; and

Section 37: Designated Police Officer

The State Government shall:

• Establish police control rooms at district and State levels.

• Designate a police officer not below the rank of Assistant Sub-Inspector of Police responsible
for maintaining arrest records, including names, addresses, and nature of offenses, and ensure
the information is prominently displayed.

Section 38: Right of arrested person to meet an advocate of his choice during interrogation:

• When any person is arrested and interrogated by the police,

• he shall be entitled to meet an advocate of his choice during interrogation, though not
throughout interrogation.

Section 39: Arrest on refusal to give name and residence. —

2(1)(o) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a
case in which, a police officer has no authority to arrest without warrant;

(1) When any person who, in the presence of a police officer, has committed or has been accused of
committing a non-cognizable offence refuses on demand of such officer to give his name and residence
or gives a name or residence which such officer has reason to believe to be false, he may be arrested
by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be released on
a bond or bail bond, to appear before a Magistrate if so required: Provided that if such person is not
resident in India, the bail bond shall be secured by a surety or sureties resident in India.

24
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) If the true name and residence of such person is not ascertained within twenty-four hours from the
time of arrest or if he fails to execute the bond or bail bond, or, if so required, to furnish sufficient
sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

Right to Speedy Trial…. Hussainara Khatoon v.

State of Bihar, 1979

Right to free legal aid Ajmal Kasab v. State of

Maharashtra 2012

Rights of arrested person

(Some of the Rights) Right against custodial torture or death
Nilabati Behra v. State of Orissa, 1993

Rights under Article 21 could not be denied to

convicts, under-trials, and other prisoners
procedure established by law D. K. Basu v.
State of West Bengal AIR 1997

Right to meet an advocate of his choice during

interrogation & right to be defended by a
lawyer of his own choice…... Sec. 38 of BNSS &
Article 22(1) of Constitution respectively.

Right to know grounds of arrest Article 22(1)

of Constitution.

Right to be medically examined Sheela Barse

v. State of Maharashtra, 1983

Q. when can any private person or magistrate may arrest any person?

ANSWER-

Section 40: Arrest by Private Person and Procedure on Such Arrest

(1) Any private person may arrest or cause to be arrested any person who in his presence commits a
non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay,
but within six hours from such arrest, shall make to a police officer, or, in the absence of a police officer,
take such person or cause him to be taken in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of sub-section (1) of Section
35, a police officer shall take him in custody.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on
the demand of a police officer to give his name and residence, or gives a name or residence which
such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 39;
but if there is no sufficient reason to believe that he has committed any offence, he shall be at once
released.

Section 41:Arrest by Magistrate

(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial,
within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may
thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his
presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and
in the circumstances to issue a warrant.

25
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 42:Protection of Members of Armed Forces from Arrest

No member of the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of the Central
Government.

Section 43: Arrest How Made

(1) In making an arrest, the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by word or
action:

Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her
submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances
otherwise require or unless the police officer is a female, the police officer shall not touch the person of
the woman for making her arrest.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest.

(3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while
making the arrest of a person or while producing such person before the court

• who is a habitual or repeat offender,

• or who escaped from custody,
• or who has committed offence of organised crime, terrorist act, drug-related crime,
• or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of
coins and currency-notes, human trafficking, sexual offence against children, or offence
against the State.

(4) Nothing in this section gives a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life.

(5) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and
where such exceptional circumstances exist, the woman police officer shall, by making a written report,
obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the
offence is committed or the arrest is to be made.

Section 44:Search of Place Entered by Person Sought to be Arrested

1. A person in charge of a premises must allow entry and provide facilities for search if
the police or an authorized person believes the suspect is inside.
2. If access is denied, officers may break doors or windows to enter after notifying their
authority and purpose. Follow us on instagram@innovative_judiciary.in

Provided that If the premises are occupied by a woman (not the suspect) who does not appear in public
due to cutoms, officers must give notice and allow her to withdraw before entering.

3. Officers lawfully inside a premises can break out if detained while making an arrest.

Section 45: Pursuit of Offenders into Other Jurisdictions

A police officer may, for the purpose of arresting without warrant any person whom he is authorised to
arrest, pursue such person into any place in India.

Section 46: No Unnecessary Restraint

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Section 47: Person Arrested to Be Informed of Grounds of Arrest and of Right to Bail

26
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(1) Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds for such
arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-
bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that
he may arrange for sureties on his behalf.

Section 48: Obligation of Person Making Arrest to Inform About Arrest to Relative or Friend

(1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the
information regarding such arrest and place where the arrested person is being held to any of his
relatives, friends, or such other persons as may be disclosed or nominated by the arrested

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he
is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a
book to be kept in the police station in such form as the State Government may, by rules, provide.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced to satisfy himself
that the requirements have been complied.

Section 49:Search of Arrested Person

• A person arrested under a warrant that does not provide for bail, or one who cannot furnish
bail, may be searched by the officer making the arrest.
• If a person is arrested without a warrant or by a private individual under a warrant and cannot
legally be admitted to bail or is unable to furnish bail, the officer receiving custody of the
arrested person may conduct a search.
• All articles, except necessary wearing apparel, found during the search are to be placed in safe
custody.
• A receipt for any seized articles must be provided to the arrested person.
• If the arrested person is female, the search must be conducted by another female, ensuring
strict regard for decency.

Section 50: Power to Seize Offensive Weapons

• The police officer or other person making any arrest under this Sanhita may, immediately after
the arrest is made, take from the person arrested any offensive weapons which he has about
his person and shall deliver all weapons so taken to the Court or officer before which or whom
the officer or person making the arrest is required by this Sanhita to produce the person
arrested.

27
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Custodial violence and abuse by

police constitute a gross
violation of human rights and
fundamental rights.

Procedural safeguards were

established to protect arrested
persons from torture and ill-
treatment.

Police officers are personally

liable for any violations of the
guidelines or fundamental
rights.

An arrest memo must be prepared at the

time of arrest, signed by the arrested
person and a witness, preferably a family

D.K. Basu member or neutral third party.

Arrested persons have the right to

v. have their friend, relative, or well-

wisher informed about their arrest
and place of detention.

State of A thorough medical examination of

the detainee must be conducted by a

West certified doctor at regular intervals, at

least every 48 hours.

Bengal Magistrates must ensure compliance

with all guidelines during the
production of the arrested person
before them.

All details of the arrest, including

time, date, and reasons, must be
recorded in the police station
diary.

Monetary compensation can be

awarded for the violation of
fundamental rights due to custodial
torture or death.

The guidelines issued are

mandatory, and non-compliance
amounts to contempt of court.

Follow us on instagram@innovative_judiciary.in

28
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 51: Examination of Accused by Medical Practitioner at Request of Police Officer

• When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances
• that there are reasonable grounds for believing that an examination of his person will afford
evidence as to the commission of an offence,
• it shall be lawful for a registered medical practitioner, acting at the request of any police officer
• make such an examination of the person arrested as is reasonably necessary in order to
ascertain the facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose..
• Medical examination of female shall be made only by, or under the supervision of, a female
RMP.
• The registered medical practitioner shall, without any delay, forward the examination report to
the investigating officer.

Explanation:

(a) "Examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual
offences, sputum and sweat, hair samples, and fingernail clippings by the use of modern and scientific
techniques, including DNA profiling and such other tests which the registered medical practitioner
thinks necessary in a particular case;

(b) "Registered medical practitioner" means a medical practitioner who possesses any medical
qualification recognized under the National Medical Commission Act, 2019, and whose name has been
entered in the National Medical Register or a State Medical Register under that Act.

Art. 20(3) of Constitution No Self-Incrimination: No person (accused of any offence), shall be

compelled to be a witness against himself.

The accused is presumed to be innocent till his guilt is proved.23 It is the duty of the prosecution to
establish his guilt. So, no man is bound to accuse himself.

State of Bombay The obtaining of evidence by medically examined

vs the accused is not violative of Article 20(3) of the
Kathi Kalu Oghad, 1961 Constitution which grants protection against self
incrimination.

Nandini Satpathy SC held that protection of Art. 20(3) is available

v. from the stage of police interrogation.
P. L. Dani, 1977
SC has put restrictions on narco analysis and
brain mapping. And held that it should be
administered only with the consent of the
Selvi accused. If it administered without the consent of
vs. accused then it will be violative of Art. 20(3).
State of Karnataka, 2010 However, it does not extend to compulsory
production of any material objects or give thumb
impression, specimen signature, blood
specimens etc.

Section 52: Examination of Person Accused of Rape Section 184: Medical examination of victim of
by Medical Practitioner rape.
• When a person is arrested on a charge of
committing an offence of rape or an attempt to • (1) Where, during the stage when an offence of
commit rape and committing rape or attempt to commit rape is
• there are reasonable grounds for believing that under investigation,
an examination of his person will afford • it is proposed to get the person of the woman
evidence with whom rape is alleged or attempted
• it shall be lawful for a registered medical examined by a registered medical practitioner
practitioner employed in a hospital run by the employed in a hospital run by the Government

29
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Government or by a local authority, and in the or a local authority and in the absence of such
absence of such a practitioner within the a practitioner, by any other registered medical
radius of sixteen kilometers from the place practitioner,
where the offence has been committed, by • with the consent of such woman or of a person
any other registered medical practitioner, competent to give such consent on her behalf
• acting at the request of any police officer, • and such woman shall be sent to such
• make such an examination of the arrested registered medical practitioner within twenty-
person and to use such force as is reasonably four hours from the time of receiving the
necessary for that purpose. information relating to the commission of such
The registered medical practitioner conducting such offence,Who without delay, examine her
examination shall, without any delay, examine such person and prepare a report of his
person and prepare a report of his examination giving examination giving the following particulars,
the following particulars, namely: namely:— (i) the name and address of the
(i) The name and address of the accused and of the woman and of the person by whom she was
person by whom he was brought; brought;
(ii) The age of the accused; (ii) the age of the woman;
(iii) Marks of injury, if any, on the person of the accused; (iii) the description of material taken from the
(iv) The description of material taken from the person of person of the woman for DNA profiling;
the accused for DNA profiling; and (iv) marks of injury, if any, on the person of the
(v) Other material particulars in reasonable detail. woman;
• The report shall state precisely the reasons for (v) general mental condition of the woman; and
each conclusion arrived at. (vi) other material particulars in reasonable
The exact time of commencement and completion of the detail.
examination shall also be noted in the report. • The report shall state precisely the reasons for
The registered medical practitioner shall, without any each conclusion arrived at.
delay, forward the report to the investigating officer, • The report shall specifically record that the
who shall forward it to the Magistrate referred to in consent of the woman or of the person
Section 193 as part of the documents referred to in competent.
clause (a) of sub-section (6) of that section. • The exact time of commencement and
completion of the examination shall also be
noted in the report.

The registered medical practitioner shall,

within a period of seven days forward the
report to the investigating officer who shall
forward it to the Magistrate referred to in
section 193 as part of the documents referred
to in clause (a) of sub-section (6) of that
section. (7)
Nothing in this section shall be construed as
rendering lawful any examination without the
consent of the woman or of any person
competent to give such consent on her behalf.

Section 53: Examination of Arrested Person by Medical Officer

• When any person is arrested, he shall be examined by a medical officer and in case the medical
officer is not available, by a registered medical practitioner soon after the arrest is made:
• Provided that if the medical officer or the registered medical practitioner is of the opinion that
one more examination of such person is necessary, he may do so.
Provided further that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female medical officer, and in case the female
medical officer is not available, by a female registered medical practitioner.

Report mentioning therein any injuries or marks of violence upon the person arrested, and the
approximate time when such injuries or marks may have been inflicted.

Where an examination is made under sub-section (1), a copy of the report of such examination shall be
furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested
person or the person nominated by such arrested person.

30
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section54:Identification of person arrested-

• Where a person is arrested on a charge of committing an offence, and his identification by

another person is necessary for investigation,
• the Court having jurisdiction may, upon the request of the officer in charge of a police
station, direct the arrested person to undergo identification.
Proviso: If the identifier is mentally or physically disabled, the process shall occur under the
supervision of a Magistrate, ensuring the identifier's comfort. The process shall be recorded via
audio-video means.

Section 55: Procedure When Police Officer Deputes Subordinate to Arrest Without Warrant- Any
person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make
the arrest an order in writing.

Section 56: Health and safety of an accused Person: custodian of an accused must ensure the
reasonable care of the accused's health and safety.

Section 57:Person Arrested to Be Taken Before Magistrate or Officer in Charge of Police Station
A person arrested without a warrant must be presented before a Magistrate or an officer in charge of a
police station without unnecessary delay, subject to bail provisions.

Section 58: Person Arrested Not to Be Detained More Than 24 Hours

Detention of an arrested person must not exceed 24 hours without the Magistrate's special order under
Section 187, excluding journey time to the Court.

Section 59: Police to Report Apprehensions

Police officers in charge of stations must report all arrests without warrants to the District Magistrate
or Sub-divisional Magistrate as directed.

Section 60: Discharge of Person Apprehended

A person arrested may only be discharged

• on bond,
• bail bond,
• or by special order of a Magistrate.

Section 61: Power to Pursue and Retake on Escape

1. If a person in lawful custody escapes, the custodian may pursue and arrest them anywhere in
India.

Section 62: Arrest to Be Made Strictly According to Sanhita

No arrest shall be made except as per the Sanhita or other applicable laws.

Follow us on instagram@innovative_judiciary.in

31
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER VI

Sections 63 - 93
PROCESSES TO COMPEL APPEARANCE

Various processes to compel appearance of a person in the Court

Summons Warrant of Proclamation & Warrant in lieu Bond with or

Arrest Attachment or in addition to without
summons Sureties

Summon Sections 63 - 71
Summons is a legal document issued by a court on a person involved in a legal proceeding like accused
or witness. Basically, it is issued for compelling-

• the attendance of accused or witness

• production of any document or things

Section 227(1) states if in the opinion of a Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be—

- a summons-case, he shall issue his summons for the attendance of the accused, or
- a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused
to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction
himself) some other Magistrate having jurisdiction.
- Provided that summons or warrants may also be issued through electronic means.

Section 63: Form of Summons:

Summons issued under this Sanhita shall:

1. Be in

▪ writing,
▪ in duplicate,
▪ signed by the presiding officer,
▪ and bear the Court's seal.

2. Be in an encrypted or any other form of electronic communication and shall bear the image of
the seal of the Court or digital signature.

32
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

by personal service u/s 64

Different Modes of service of

by service on corporate bodies and
societies u/s 65

extended service on adult member

summons of the family, but not on a servant
(when a person summons cannot be
found) u/s 66

by substituted service u/s 67

by service on government servant

u/s 68

by service of summons outside local

limits u/s 69

Section 64: Summons How Served: Follow us on instagram@innovative_judiciary.in

1. Summons may be served by police officer or other authorized officers. Provided Police stations
or Court registrars must maintain a detailed register.

2. The summons shall, if practicable, be served personally on the person summoned, by delivering
or tendering to him one of the duplicates of the summons,

Provided that summons bearing the image of Court's seal may also be served by electronic.
Recipients of personal service must sign a receipt if required.

Section 65: Service of Summons on Corporate Bodies, Firms, and Societies

1. Service on companies is affected by serving designated officers (Director, Manager, Secretary or

other officer) or via registered post addressed to the Director, Manager, Secretary or other
officer.

2. For firms or associations, service may be made to partners or via registered post.

Section 66: Service When Persons Summoned Cannot Be Found

If the summoned person cannot be found, the summons may be left with an adult family member,
excluding servants, residing with the person.

Section 67: Procedure When Service Cannot Be Effected as Provided

When service under Sections 64-66 fails, the summons may be affixed conspicuously on the person’s
residence. The Court may declare the summons served or order fresh service.

33
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 68: Service on Government Servants

The summons is sent to the head of the Government office where the person works, who shall
ensure service and return proof.

Section 69: Service of Summons Outside Local Limits

Summons outside local jurisdiction are sent to a Magistrate within whose local jurisdiction the person
summoned resides, or is, to be there served.

Section 70: Proof of service in such cases and when serving officer not present.
Proof includes an affidavit and endorsements on duplicates of summons, deemed valid unless proven
otherwise.

Section 71: Service of Summons on Witness

• A Court issuing a summons to a witness may, in addition to and simultaneously with the
issue of such summons, direct a copy of the summons to be served by electronic
communication or by registered post addressed to the witness at the place where he
ordinarily resides or carries on business or personally works for gain.
• When an acknowledgement purporting to be signed by the witness or an endorsement
purporting to be made by a postal employee that the witness refused to take delivery of the
summons has been received or on the proof of delivery of summons under sub-section (3) of
section 70 by electronic communication to the satisfaction of the Court, the Court issuing
summons may deem that the summons has been duly served.

Warrant of Arrest Sections 72 - 83

• Bailable warrant- Bailable warrants are issued in bailable cases,

• Non-bailable warrant-Bailable or non-bailable warrants can be issued in non-bailable
cases.

Section 72: Form of Warrant and Duration

1. Warrants must be in

▪ writing,
▪ signed by the presiding officer of such Court
▪ and bear the Court's seal.

2. Every Warrants shall remain in force until

▪ It is executed or
▪ until it is cancelled by the Court which issued it

Section 73:Power to direct security to be taken. —

(1) Any Court issuing a warrant for the arrest may in its discretion direct by endorsement on the warrant
that, if such person executes a bond with sufficient sureties for his attendance before the Court
at a specified time ,the officer to whom the warrant is directed shall take such security and shall
release such person from custody.

(2) The endorsement shall state—

(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively
bound;

(c) the time at which he is to attend before the Court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall
forward the bond to the Court.

34
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q. To whom warrant can be directed?

Section 74 Warrants to whom directed.—

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing
such a warrant may, if its immediate execution is necessary and no police officer is immediately
available, direct it to any other person or persons, and such person or persons shall execute the
same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by
any one or more of them.

Section 75 Warrant may be directed to any person.—

(1) The CJM or a a Magistrate of the first class may direct a warrant to any person within his local
jurisdiction for the arrest of any

➔ escaped convict,

➔ proclaimed offender or

➔ any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the
person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the
warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having
jurisdiction in the case, unless security is taken.

Section 76 Warrant directed to police officer-

A warrant directed to any police officer may also be executed by any other police officer whose name is
endorsed upon the warrant by the officer to whom it is directed or endorsed.

Section 77:Notification of substance of warrant-

The police officer or other person executing a warrant of arrest shall notify the substance thereof to
the person to be arrested, and, if so required, shall show him the warrant.

Section 78:Person arrested to be brought before Court without delay.—

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section
73 as to security) without unnecessary delay bring the person arrested before the Court before which
he is required by law to produce such person:

Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate’s Court.

Execution of arrest warrant:

• According to Section 79 a warrant of arrest may be executed at any place in India.

Execution of warrant outside jurisdiction of issuing court (S.80-83) –

Section 80:Warrant forwarded for execution outside jurisdiction.—

(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it,
such Court may, instead of directing the warrant to a police officer within its
jurisdiction, forward it by post or otherwise to any
▪ Executive Magistrate or
▪ District Superintendent of Police or
▪ Commissioner of Police within the local limits of whose jurisdiction
it is to be executed; and they shall endorse his name thereon, and if

35
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

practicable, cause it to be executed in the manner hereinbefore

provided.

(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the
substance of the information against the person to be arrested together with such documents, if any,
as may be sufficient to enable the Court to decide whether bail should or should not be granted to the
person.

Section 81: Warrant directed to police officer for execution outside jurisdiction.—

(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court
issuing, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police
officer not below the rank of an officer in charge of a police station,within the local limits of whose
jurisdiction the warrant is to be executed.

(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be
sufficient authority to the police officer to whom the warrant is directed to execute the same, and the
local police shall, if so required, assist such officer in executing such warrant.

(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the
Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent
such execution, the police officer to whom it is directed may execute the same without such
endorsement in any place beyond the local jurisdiction of the Court which issued it.

Section 82:

Procedure on arrest of person against whom warrant issued.—

unless the Court

which issued the
warrant
• is within 30 kilometres of
When a warrant of the place of arrest be taken before such
arrest is executed • or -is nearer than the Magistrate or District
outside the district in Executive Magistrate or Superintendent or
which it was issued, the District Superintendent
Commissioner
person arrested shall of Police or
Commissioner of Police
within the local limits of
whose jurisdiction the
arrest was made
• or unless security is taken

(2) On the arrest of any person referred to in sub-section (1), the police officer shall forthwith give the
information regarding such arrest and the place where the arrested person is being held to the
designated police officer in the district and to such officer of another district where the arrested person
normally resides.

Question-What is transit remand?

A transit remand is a magistrate's order that allows the police to move an arrested person to another
state while keeping them in custody. This is done when the police need to take the accused to another

36
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

state for further investigation. section 83 deals with the transit remand which means taking out an
accused by police from one state to another state. Follow us on instagram@innovative_judiciary.in

Section 83: Procedure by Magistrate before whom such person arrested is brought.—

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the
person arrested appears to be the person intended by the Court which issued the warrant, direct his
removal in custody to such Court:

Exception 1: the Magistrate, District Superintendent or Commissioner shall take bail or security in
following circumstances and forward the bond, to the Court which issued the –

➔ the offence is bailable, and such person is ready and willing to give bail to the satisfaction of any of
them, or

➔ a direction has been endorsed on the warrant and such person is ready and willing to give the security
required by such direction.

2nd: if the offence is a non-bailable one, it shall be lawful for

• CJM or
• the Sessions Judge, of the district in which the arrest is made on consideration of the
information and the documents,to release such person on bail.

(2) Nothing in this section shall be deemed to prevent a police officer from taking security.

Proclamation and Attachment Sections 84 - 89

Q. What are the provisions relating to proclamation & attachment, State the procedure of
attachment of property of person absconding in BNSS?

Section 84.Proclamation for Absconding Persons

(1) If a Court believes, based on evidence or otherwise, that a person against whom a warrant has
been issued is absconding or concealing himself to evade execution, it may publish a proclamation
requiring the person to appear at a specified place and time, not less than 30 days from the date of
publication.

(2) The proclamation shall be published as follows:

(i) (a) It shall be read publicly in a conspicuous area of the town or village where the person resides.
(b) It shall be affixed to a prominent part of the person's residence or in a visible location in the town
or village.
(c) A copy shall be displayed in a prominent area of the Court-house.
(ii) The Court may also direct publication in a daily newspaper circulating in the area of the person's
residence.

(3) A written statement by the Court that the proclamation was published on a specified date as per
sub-section (2) shall be conclusive evidence of compliance.

(4) For offences punishable with imprisonment of 10 years or more, life imprisonment, or death, if the
person fails to appear, the Court may declare them a proclaimed offender after due inquiry.(who is
proclaimed offender)

• Read with Sec 209 of BHARATIYA NYAYA SANHITA - Non-appearance in response to a

proclamation under section 84 of Bharatiya Nagarik Suraksha Sanhita,2023.

Section 85.

Attachment of Property of Absconding Persons:

(1) The Court issuing a proclamation under section 84 may, for reasons to be recorded in writing, at
any time after the issue of the proclamation, order the attachment of any property, movable or
immovable, or both, belonging to the proclaimed person:

37
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or
otherwise, that the person in relation to whom the proclamation is to be issued,—

(a) is about to dispose of the whole or any part of his property; or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

it may order the attachment of property simultaneously with the issue of the proclamation.

(2) The attachment order applies to property within the district and may extend to property outside the
district upon endorsement by the relevant District Magistrate.

(3) If the property is movable/debt, attachment may involve:

(a) Seizure,
(b) Appointment of a receiver,
(c) A written order prohibiting transfer of the property, or
(d) Any combination of the above.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the
case of land paying revenue to the State Government, be made through the Collector of the district in
which the land is situate, and in all other cases—

(a) Taking possession,

(b) Appointment of a receiver,
(c) Prohibiting payment of rent or transfer, or
(d) Any combination of the above.

(5) For perishable or live-stock property, immediate sale may be ordered, with proceeds subject to
the Court's decision.

(6) A receiver appointed under this section shall have the same powers and liabilities as one under the
Code of Civil Procedure, 1908.(Order 40 CPC)

• Read with Sec. 507(a) of BNSS: irregularities in attachment & sale u/s 85 vitiates
proceedings.

Section 86 (Newly added)Identification and attachment of property of proclaimed person.

• The Court may, on the written request from a police officer not below the rank of the
Superintendent of Police or Commissioner of Police, initiate the process of requesting
assistance from a Court or an authority in the contracting State for identification, attachment
and forfeiture of property belonging to a proclaimed person in accordance with the procedure
provided in Chapter VIII.

Section 87 : Claims and objections to attachment.—

(1) If any claim is preferred to, or objection made to the attachment of, any property attached within 6
months from the date of such attachment, by any person other than the proclaimed person, on the
ground that the claimant or objector has an interest in such property, & that such interest is not liable
to attachment, the claim or objection shall be inquired into, and may be allowed or disallowed in whole
or in part.

(2) place of claims & objection: Claims or objections may be preferred or made in the Court by which
the order of attachment is issued, or, If the attached property is situated outside the district as
mentioned u/s 85(2), in the Court of CJM of that district.

(3) inquiry of claim and objection: Every such claim or objection shall be inquired into by the Court in
which it is preferred or made.

(4) institution of suit within one year: Any person whose claim or objection has been disallowed,
within a period of one year from the date of such order, institute a civil suit to establish the right

38
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the
order shall be conclusive.

Section 88: Release, sale and restoration of attached property.—

(1) release: If the proclaimed person appears within the time specified in the proclamation, the Court
shall make an order releasing the property from the attachment.

(2) sale: If the proclaimed person does not appear within the time specified in the proclamation, the
property under the attachment shall be at the disposal of the State Govt; but it shall not be sold

➔ until the expiration of 6 months from the date of the attachment and

➔ until any claim preferred or objection made u/s 87 has been disposed of under that section,

➔ unless it is subject to speedy and natural decay, or the Court considers that the sale would be
for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever
it thinks fit.

(3) restoration of attached property: If, within 2 years from the date of the attachment, any person
whose property is or has been at the disposal of the State Govt, under sub-section (2), appears
voluntarily or is apprehended and brought before the Court and proves to the satisfaction of such Court
that –

➔ he did not abscond or conceal himself for the purpose of avoiding execution of the warrant,
and ➔ he had not such notice of the proclamation as to enable him to attend within the time
specified therein,

such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has
been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom
all costs incurred in consequence of the attachment, be delivered to him.

Section 89:Appeal from order rejecting application for restoration of attached property.—

Any person referred to in section 88(3), who is aggrieved by any refusal to deliver property or the
proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the
sentences of the 1st-mentioned Court.

Other rules regarding processes Sections 90 - 93

Q. When can warrant be issued by a court in lieu of summons?

Ans –Section 90:

Issue of warrant in lieu of, or in addition to, summons.—

A Court may, in any case in which it is empowered to issue a summons for the appearance of any
person, issue, after recording its reasons in writing, a warrant for his arrest—

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed
for his appearance, the Court sees reason to believe that he has absconded or will not obey the
summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to
admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

Section 91:Power to take bond for appearance. — When any person for whose appearance or arrest
the officer presiding in any Court is empowered to issue a summons or warrant, is present in such
Court, such officer may require such person to execute a bond, with or without sureties, for his
appearance

39
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

in such Court, or any other Court to which the case may be transferred for trial.

Section 92 :Arrest on breach of bond or bail bond for appearance..—

• When any person who is bound by any bond or bail bond taken under BNSS to appear before
a Court does not appear the officer presiding in such Court may issue a warrant directing that
such person be arrested and produced before him.

• Section 269 of BNS 2023 punishes those who fails without sufficient cause to appear in Court in
accordance with the terms of the bail or bond.

Section 93: The provisions contained in this Chapter relating to a summons & warrant, and their issue,
service and execution, shall, so far as may be, apply to every summons & every warrant of arrest issued
under BNSS.

CHAPTER VII

PROCESSES TO COMPEL THE PRODUCTION OF THINGS

Sections 94 - 110
A. Summons to Produce document Sections 94 - 95

Section 94. Summons to produce document or other thing.

• Whenever any Court or officer in charge of a police station considers that the production of
any document, electronic communication, including communication devices, which is likely to
contain digital evidence or other things is necessary or desirable for the purposes of any
investigation, inquiry, trial, or other proceeding under this Sanhita by or before such Court or
officer,
• such Court may issue a summons,or such officer may, by a written order, either in physical
form or in electronic form, require the person in whose possession or power such document or
thing is believed to be, to attend and produce it, or to produce it at the time and place stated in
the summons or order.

Nitya Dharmananda @ K. Lenin It is well-settled that at the stage of framing of

v. charge or taking cognizance, accused cannot
Sri Gopal Sheelum Reddy (2017) invoke Section 94 (Section 91 CRPC)to seek
production of any document to show his
innocence.

(2) Any person required under this section merely to produce a document or other thing shall be deemed
to have complied with the requisition if he causes such document or thing to be produced instead of
attending personally to produce the same.

Section 144 of BSA 23: a person summoned to produce a document does not become a witness by the
mere fact that he produces it, and cannot be cross-examination, unless and until he is called as a
witness.

(3) Nothing in this section shall be deemed—

• (a) to affect Sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023, or the Bankers'
Books Evidence Act, 1891; or

• (b) to apply to a letter, postcard, or other document or any parcel or thing in the custody of the
postal authority.

40
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 95.

Procedure as to letters and telegrams.—

(1) If any document, parcel, or thing in the custody of a postal authority is, in the opinion of the District
Magistrate, Chief Judicial Magistrate, Court of Session, or High Court wanted for the purpose of
any investigation, inquiry, trial, or other proceeding, such Magistrate or Court may require the postal
authority to deliver the document, parcel, or thing to such person as the Magistrate or Court directs.

(2) If any such document, parcel, or thing is, in the opinion of any other Magistrate, whether Executive
or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any
such purpose, he may require the postal authority to cause search to be made for and to detain such
document, parcel, or thing pending the order of a District Magistrate, Chief Judicial Magistrate, or
Court under sub-section (1).

B. Search-Warrants Sections 96 - 104

Section 96:When search-warrant may be issued.—

(1) Where—

• (a) any Court has reason to believe

o that a person to whom a summons under Section 94 or a requisition under sub-section

(1) of Section 95 has been, or might be, addressed, will not or would not produce the
document or thing as required by such summons or requisition; or

• (b) such document or thing is not known to the Court to be in the possession of any person; or

• (c) the Court considers that the purposes of any inquiry, trial, or other proceeding under this
Sanhita will be served by a general search or inspection,

it may issue a search-warrant.

(2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to
which only the search or inspection shall extend; and the person charged with the execution of such
warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate
or Chief Judicial Magistrate to grant a warrant to search for a document, parcel, or other thing
in the custody of the postal authority.

Section 97:Search of place suspected to contain stolen property, forged documents, etc.—

(1) If a District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class, upon
information and after such inquiry as he thinks necessary, has reason to believe that any place is used

• for the deposit or sale of stolen property,

• or for the deposit, sale, or production of any objectionable article to which this
section applies,
• or that any such objectionable article is deposited in any place,

he may by warrant authorise any police officer (above the rank of a constable)—

a) enter, if necessary, with assistance, such place;

b) search the same as provided in the warrant;

c) take possession of the stolen or the objectionable article;

d) convey the same to the Magistrate or otherwise keep the article safely;

and e) take into custody every person found in the place who appears to be suspect and produce them
before the Magistrate.

41
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(2) The objectionable articles to which this section applies are—

• (a) counterfeit coin;

• (b) pieces of metal made in contravention of the Coinage Act, 2011, or brought into India in
contravention of any notification for the time being in force issued under Section 11 of the
Customs Act, 1962;

• (c) counterfeit currency note; counterfeit stamps;

• (d) forged documents;

• (e) false seals;

• (f) obscene objects referred to in Section 294 of the Bharatiya Nyaya Sanhita, 2023;

• (g) instruments or materials used for the production of any of the articles mentioned in clauses
(a) to (f).

Section 98:Power to Declare Certain Publications Forfeited and to Issue Search Warrants for the
Same Follow us on instagram@innovative_judiciary.in

• The State Government can declare any printed matter in newspapers, books, or documents
forfeited if it contains content punishable under Sections 152, 196, 197, 294, 295, or 299
of the Bharatiya Nyaya Sanhita, 2023.
• A notification must be issued, stating the grounds for such forfeiture.
• Police officers are empowered to seize these materials anywhere in India.
• Any Magistrate may by warrant authorize a police officer (not below the rank of sub-
inspector) to search for and seize such materials from suspected premises.
• The terms "newspaper" and "book" are as defined in the Press and Registration of Books Act,
1867.
• "Document" includes paintings, drawings, photographs, or other visible representations.
• Actions or orders under this section can only be challenged as per the provisions of Section 99.

Section 99:Application to High Court to Set Aside Declaration of Forfeiture

• Any person with an interest in a newspaper, book, or document declared forfeited under Section
98 may apply to the High Court within two months of the declaration's publication in the Official
Gazette to have it set aside.
• The application must argue that the forfeited material does not contain the objectionable matter
referred to in Section 98(1).
• If the High Court has three or more Judges, a Special Bench of three Judges will hear the case.
For smaller High Courts, the entire bench will hear it.
• During the hearing, copies of the newspaper can be submitted as evidence to assess the nature
or tendency of the content in question.
• The High Court will set aside the forfeiture if it is not satisfied that the material contained the
alleged objectionable matter.
• In case of differing opinions among Judges in the Special Bench, the majority decision will
prevail.

Section 100:Search for Persons Wrongfully Confined

• Any District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class who
believes that a person is confined in circumstances constituting an offence can issue a search
warrant.
• The recipient of the warrant is authorized to search for the confined person in accordance
with the warrant's terms.
• If the person is found, they must be brought immediately before a Magistrate.

42
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• The Magistrate will issue an appropriate order based on the circumstances of the case.

Section 101:Power to Compel Restoration of Abducted Females

A complaint on oath regarding the abduction or unlawful detention of a woman or female child for any
unlawful purpose can prompt action by a District Magistrate, Sub-divisional Magistrate, or
Magistrate of the first class.

The Magistrate may order the immediate restoration of:

• The woman to her liberty, or

• The female child to her parent, guardian, or lawful custodian.

The Magistrate is empowered to enforce compliance with the order, using necessary force if required.

- Above 100 and 101 sections are identical with Art. 32 of the Constitution of India as they
are concerned with life & liberty of the person which be secured by issuing writ of Habeas
corpus.

General Provisions Relating to Searches

Follow us on instagram@innovative_judiciary.in

Section 102:Direction, etc., of search warrants.

• Provisions of Sections 32, 72, 74, 76, 79, 80, and 81 apply to search warrants issued under
Sections 96, 97, 98, and 100.

• Ensures uniformity and adherence to procedural safeguards.

Section 103:Persons in charge of closed place to allow search.

• If a place liable to search is closed, the person in charge must:

o Allow entry and provide facilities upon warrant presentation.

o If access is denied, the officer may proceed under Section 44(2).

• If someone is suspected of concealing articles, they may be searched, with women being
searched by another woman in a decent manner.

• At least two independent and respectable locals must witness the search or persons from
another locality if locals are unavailable.

• A list of items seized and their locations is prepared and signed by witnesses.

• Occupants or representatives are permitted to attend during the search, and they are given a
signed copy of the list.

• Refusal to attend and witness the search without valid reasons is an offense under Section 222.

Section 104:Disposal of Things Found Beyond Jurisdiction

• Items found during searches beyond the issuing court’s jurisdiction must be presented to the
issuing court. unless-

43
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the
list and things shall be immediately taken before such Magistrate; and, unless there be good cause to
the contrary, such Magistrate shall make an order authorising them to be taken to such Court.

Section 105:Recording of search and seizure through audio video electronic means.

• Search and seizure processes, including preparation of the list of seized items, must be recorded
through audio-video means (preferably via mobile phone).

• The recording must be forwarded to the District Magistrate, Sub-Divisional Magistrate, or

Judicial Magistrate of the First Class.

Section 106:Power of Police to Seize Property

• Any Police may seize property suspected to be stolen or found under suspicious circumstances.

• Seizures must be reported to:

o The officer in charge of the police station if the seizing officer is subordinate.
o The jurisdictional magistrate.

• If the property cannot be conveniently transported or retained in police custody:

o It may be given to a person upon executing a bond to produce the property before the
court.

o Perishable items below ₹500 in value may be auctioned under the Superintendent of
Police’s orders. Proceeds are handled as per Sections 503 and 504.

Section 107:Attachment, forfeiture or restoration of property.(Newly added)

1. A police officer making an investigation, with the approval of the Superintendent or

Commissioner of Police, can apply to the Court or Magistrate for attachment of property
derived from criminal activity or offense.
2. If the Court or Magistrate believes the property constitutes proceeds of crime, they can
issue a notice to the individual to show cause within 14 days why the property should
not be attached.
3. A copy of the notice is also served to any person holding the property on behalf of the
individual.
4. After considering the response and available evidence, the Court or Magistrate may pass
an attachment order for properties identified as proceeds of crime.
5. If the individual fails to respond within 14 days, the Court or Magistrate may issue an
ex parte attachment order.
6. In cases where notice might defeat the purpose, an interim ex parte order for attachment
or seizure can be issued, remaining in effect until a final decision.
7. If the property is confirmed as proceeds of crime, the Court or Magistrate directs the
District Magistrate to distribute the proceeds to affected persons within 60 days.
8. Any surplus or unclaimed proceeds are forfeited to the Government.

Section 108: Magistrate May Direct Search in His Presence

Any Magistrate may direct a search to be made in his presence of any place for which he is competent
to issue a search warrant.

Section 109: Power to Impound Documents or Things Produced

Any Court may impound any document or thing produced before it under this Sanhita.

44
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 110: Reciprocal Arrangements Regarding Processes

1. Where a Court in the territories desires a summons, warrant for arrest, summons for
production of a document or item, or search warrant at any place:

▪ A Court in another State or area in India (where this Sanhita does not extend),
and contracting state(where arrangements exist with the Central Government
for criminal matters) send above these by post or otherwise in duplicate to
appropriate authority.

2. When a Court in the said territories (where this Sanhita extends )receives summons, warrant
for arrest, summons for production of a document or item, or search warrant issued by:

▪ (I) A Court in any State or area in India outside the said territories, or

▪ (II) A Court, Judge, or Magistrate in a contracting State, it shall serve or execute

it as if received from another Court in the said territories.

3. In cases where:

o (i) A warrant of arrest is executed, the arrested person shall be dealt with per Sections
82 and 83.

o (ii) A search warrant is executed, items found shall be dealt with as per Section 104.
4. If a summons or search warrant from a contracting State is executed, documents or items
produced or found shall be forwarded to the issuing Court through the authority specified by
the Central Government.

Follow us on instagram@innovative_judiciary.in

45
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER VIII

RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERTAIN MATTERS AND PROCEDURE

FOR ATTACHMENT AND FORFEITURE OF PROPERTY

Sections 111 - 124

Section 111: Definitions

Defines key terms like

• "Contracting State" (countries with reciprocal arrangements),

• "Identifying" (proving property links to crimes),
• "Proceeds of Crime" (property from criminal activity),
• "Property" (assets in all forms), and
• "Tracing" (determining property details).

Section 112: Letter of request to competent authority for investigation in a country or place
outside India

• During Investigation if necessary, Criminal Court can issue a a letter of request to authorities
abroad for evidence collection, oral examination, or document production during an
investigation.

• Evidence collected is treated as evidence under this Sanhita.

Section 113:Letter of request from a country or place outside India to a Court or an authority
for investigation in India.

Central Government can forward requests for examination, investigation, or document production to
appropriate Magistrates or police officers.

• Evidence collected is sent back to the foreign authority.

Section 114:Assistance for Transfer of Persons

• Courts may issue arrest warrants or summons for individuals in contracting states and can
receive it too.

• Ensures compliance with conditions for the transfer of prisoners or persons under
investigation.

Section 115:Assistance in relation to orders of attachment or forfeiture of property.

• Court can order attachment/forfeiture of property linked to crimes.

• If the property is located in a contracting state, requests can be made for

attachment/forfeiture.

Section 116: Identifying Unlawfully Acquired Property

• Police, under Court direction, can trace and identify property linked to criminal activity
through inquiry, investigation, or surveys.

• Includes checks on documents, assets, or financial accounts.

Section 117: Seizure or Attachment of Property

• Property likely to be concealed or transferred can be seized or attached temporarily by

investigating officers.

46
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Orders must be confirmed by the Court within 30 days.

Section 118: Management of Seized/Forfeited Property

• District Magistrate or a nominated officer is appointed as Administrator to manage and

dispose of forfeited property under Central Government directions.

Section 119: Notice of Forfeiture

• Court issues a notice to the person affected, asking them to explain the source of income or
assets and to show cause why the property should not be forfeited.

Section 120: Forfeiture of Property

• After hearing the explanation, the Court may declare property as proceeds of crime and forfeit
it to the Central Government.

• Forfeiture includes shares, which are registered in favor of the Central Government.

Section 121:Fine in Lieu of Forfeiture

• Affected persons can opt to pay a fine equal to the market value of the property instead of
forfeiture.

• Upon payment, the property is released.

Section 122:Certain Transfers Null and Void

• Transfers made after seizure orders or notices are ignored.

• If property is forfeited later, such transfers are declared null and void.

Section 123/124:Procedure for Letters of Request/ Application of Chapter

• Central Government prescribes the form and manner for transmitting or receiving letters,
summons, or warrants between India and contracting states.

Follow us on instagram@innovative_judiciary.in

47
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER IX

Security for keeping the peace & for good behaviour

Sections 125 – 143

QUESTION-What provisions have been made for security for keeping the peace in BNSS?(Sec
125,126)

Section 125 :Security for keeping the peace on conviction. —

(1) When a Court of Session or Magistrate of the first class convicts a person of any of the offences
specified in sub-section (2) or of abetting any such offence & is of opinion that it is necessary to take
security from such person for keeping the peace, the Court may, at the time of passing sentence on
such person, order him to execute a bond or bail bond for keeping the peace for such period, not
exceeding three years, as it thinks fit.

(2) The offences referred to in sub-section (1) are—

(a) any offence punishable under Chapter XI of the Bharatiya Nyaya Sanhita, 2023, other than an
offence punishable under sub-section (1) of section 193 or section 196 or section 197 thereof;

(b) any offence which consists of, or includes, assault or using criminal force or committing mischief;

(c) any offence of criminal intimidation;

(d) any other offence which caused, or was intended or known to be likely to

cause, a breach of the peace.

(3) If the conviction is set aside on appeal or otherwise, the bond or bail bond so executed shall
become void.

(4) An order under this section may also be made by an Appellate Court or by a Court when
exercising its powers of revision.

REQUIREMENTS

➔ there should be an order of conviction of a person.

➔ that order must have been passed by Court of Session or Magistrate of 1st class.

➔ an Appellate Court or by a Revisional Court may also pass an order under section 125.

➔ duration of the bond being executed for keeping peace u/s 125 should not be more than 3 years.

Section 126:Security for keeping peace in other cases:

(1) When an Executive Magistrate receives information that

- any person is likely to commit a breach of the peace or

disturb the public tranquillity or to do any wrongful act

require such person to show cause why he should not be ordered to execute a bond or bail bond for
keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate

- when either the place where the breach of the peace or disturbance is apprehended is within his local
jurisdiction or

- there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the
public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

48
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q- Under what circumstances can a magistrate demand security for good behaviour?

Section 127:Security for good behaviour from persons disseminating certain matters.

When an Executive Magistrate receives information that there is within his local jurisdiction any
person who, within or without such jurisdiction,—

(i) either orally or in writing or in any other manner, intentionally disseminates or attempts to
disseminate or abets the dissemination of,—

(a) any matter the publication of which is punishable under section 152 or section 196 or
section 197 or section 299 of the Bharatiya Nyaya Sanhita, 2023; or

(b) any matter concerning a Judge acting or purporting to act in the discharge of his official
duties which amounts to criminal intimidation or defamation under the Bharatiya Nyaya
Sanhita, 2023; Follow us on instagram@innovative_judiciary.in

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire,
distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as
is referred to in section 294 of the Bharatiya Nyaya Sanhita, 2023.

Section128:Security for good behaviour from suspected persons.

When an Executive Magistrate receives information

- that there is within his local jurisdiction a person taking precautions to conceal his presence
and that there is reason to believe that he is doing so with a view to committing a cognizable
offence,

in both sec 127/128 the Magistrate may, in the manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a bond or bail bond for his
good behaviour for such period, not exceeding one year, as the Magistrate thinks fit

Section129:Security for good behaviour from habitual offenders

When an Executive Magistrate receives information that there is within his local jurisdiction a person
who—

49
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(a) a robber, house-breaker, thief, or forger;

or

(b) a receiver of stolen property knowing the

same to have been stolen;

(a) the Drugs and Cosmetics Act, 1940;

Habitually

(c) protects or harbours thieves, or aids in the

concealment or disposal of stolen property;

(b) the Foreigners Act, 1946;

(d) commits, or attempts to commit, or abets
the commission of, the offence of
kidnapping, abduction, extortion, cheating or
mischief, or any offence punishable under
Chapter X,178,-181 BNS
(c) the Employees' Provident Fund and
Miscellaneous Provisions act 1952

habitually commits, or attempts to commit, or

abets the commission of offences, involving a
breach of the peace;

(d) the Essential Commodities Act, 1955;

(F) Habitually commits OFFENCE UNDER

(e) the Protection of Civil Rights Act, 1955;

is so desperate and dangerous as to render

his being at large without security hazardous
to the community,

(f) the Customs Act, 1962;

(g) the Food Safety and Standards Act, 2006;

ii hoarding or profiteering or of adulteration

of food or drugs or of corruption

such Magistrate may, require such person to show cause why he should not be ordered to execute a
bail bond, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks
fit.

Section 130(imp):Order to be made

When a Magistrate acting u/s 126,127,128,129, deems it necessary to require any person to show
cause under such section, he shall make an order in writing,

50
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

setting forth –

• the substance of the information received,

• the amount of the bond to be executed,
• the term for which it is to be in force, and
• the number, character and class of sureties (if any) required.

Section 131:Procedure in respect of person present in Court. —

• If the person in respect of whom such order is made is present in Court, it shall be read over to
him, or, if he so desires, the substance thereof shall be explained to him.

Section 132:Summons or warrant in case of person not so present.—

If such person –

• is not present in Court, the Magistrate shall issue a summons requiring him to appear, or,
• is in custody, the Magistrate shall issue a warrant directing the officer in whose custody he is
to bring him before the Court:

Provided that whenever it appears to such Magistrate,

➔ upon the report of a police officer or upon other information that there is reason to fear the
commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise
than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his
arrest.

Section 133:Copy of order to accompany summons or warrant issued under sec 132.

Section 134: Power to dispense with personal attendance.

The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person
called upon to show cause. Follow us on instagram@innovative_judiciary.in

Section 135:Inquiry as to truth of information.—

(1)the Magistrate shall proceed to inquire into the truth of the information upon which action has been
taken, and to take such further evidence

(2) Such inquiry shall be made in conducting trial and recording evidence in summons-cases.

(3) interim bond: After the commencement, & before the completion, of the inquiry u/s 116(1),the
Magistrate, if he considers that immediate measures are necessary ➔ for the prevention of – a breach
of the peace or disturbance of the public tranquility or the commission of any offence or for the
public safety, may, for reasons to be recorded in writing, direct the person to execute interim bond
until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in
default of execution, until the inquiry is concluded:

• the conditions of such bond or bail bond shall not be more onerous than those specified in the
order u/s 130.

If person is a habitual offender or is so desperate and dangerous as to render his being at large without
security hazardous to the community may be proved by evidence of general repute or otherwise.

Where two or more persons have been associated together in the matter under inquiry, they may be
dealt with in the same or separate inquiries as the Magistrate shall think just.

Period for completing inquiry: 6 months from the date of commencement of inquiry, and if such
inquiry is not completed within 6 months, the proceedings stand terminated unless, for special reasons
to be recorded in writing, the Magistrate otherwise directs.

51
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Proviso: where any person has been kept in detention pending such inquiry, the proceeding against
that person, unless terminated earlier, shall stand terminated on the expiry of a period of 6 months of
such detention.

Where any direction is made permitting the continuance of proceedings the Sessions Judge may, on an
application made to him by the aggrieved party, vacate such direction.

Section 136:Order to give security (final order).—

If, upon inquiry u/s 135, it is proved that it is

necessary for keeping the peace or maintaining good behaviour,the Magistrate shall make an order
accordingly:

Provided that—

a) no person shall be ordered to give security of a nature different from, or of an amount larger than,
or for a period longer than, that specified in the order made u/s 130;

b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall
not be excessive;

c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only
by his sureties.

Section 137 :Discharge of person informed against.—

If, upon an inquiry u/s 135, it is not proved person should execute a bond, the Magistrate shall make
an entry on the record to that effect, and

➢ if such person is in custody only for the purposes of the inquiry, shall release him, or,

➢ if such person is not in custody, shall discharge him.

Section 138:Commencement of period for which security is required. —

(1) If any person, in respect of whom an order requiring security is made under

section 125 or section 136, is at the time such order is made, sentenced to, or undergoing a
sentence of, imprisonment, the period for which such security is required shall commence- on the
expiration of such sentence.

(2) In other cases such period shall commence on the date of such order unless the Magistrate, for
sufficient reason, fixes a later date.

Section 139: Contents of bond or bail bond.

The bond or bail bond to be executed by any such person shall bind him to keep the peace or to be of
good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or
the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a
breach of the bond.

Section 140: Power to reject sureties.

• A Magistrate can refuse to accept or reject a previously accepted surety if found unfit for the
bail bond.
• The Magistrate must hold an inquiry on oath or delegate it to a subordinate Magistrate, who
will provide a report. Reasonable notice must be given to both the surety and the person
offering the surety. The substance of the evidence presented during the inquiry must be
recorded.

52
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Sec 140(3) Before rejecting a previously accepted surety, the Magistrate must issue a summons
or warrant and ensure the person for whom the surety is bound appears before him.

Section 141:Imprisonment in default of security.

• Failure to give security under sections 125 or 136 results in imprisonment until the security is
provided or the period expires.
• Breach of bond or bail bond allows the Magistrate to order arrest and detention for the bond
period, along with other penalties.
• For security exceeding one year, the case is referred to the Sessions Judge, with detention
pending orders. but imprisonment limit for failure to provide security is a maximum of three
years.
• Imprisonment type:

• For keeping the peace: for sec 125/126 Simple imprisonment.

• For good behaviour: for 127 Simple, for 128,129 simple or rigorous, as directed by the Court
or Magistrate.

• The Sessions Judge may transfer proceedings to an Additional Sessions Judge for further
action.

Section 142:Power to release persons imprisoned for failing to give security.

• District Magistrate (for Executive Magistrate orders under section 136) or Chief Judicial
Magistrate (in other cases) may order the release of a person imprisoned for failing to give
security if it is deemed safe for the community.
• The High Court, Court of Session, District Magistrate, or Chief Judicial Magistrate may
reduce the amount of security, the number of sureties, or the duration for which security is
required.
• A discharge order can be unconditional or conditional,The State Government may prescribe
rules for conditional discharge.
• If a condition of discharge is not fulfilled, the District Magistrate or Chief Judicial
Magistrate may cancel the discharge order.Upon cancellation, the person can be arrested
without a warrant and produced before the appropriate Magistrate.Unless the person fulfills
the original security conditions for the remaining term, they may be remanded to prison for
the unexpired period.
• A person remanded to prison can be released at any time by providing security for the
remaining period as per the original order.
• The High Court, Court of Session, District Magistrate, or Chief Judicial Magistrate can
cancel any bond for keeping peace or good behavior for sufficient reasons.
• 142(10)Sureties may apply to cancel their bond, and the Court must summon or warrant the
person for whom the surety was provided.

Section 143:Security for unexpired period of bond or bail bond.

• When a person appears or is brought before the Magistrate or Court after a summons or
warrant under section 140(3) or section 142(10), the existing bond or bail bond is cancelled.
• The person must provide fresh security of the same type as the original for the remaining
term of the bond.
• Such an order is treated as one made under section 125 or section 136 for the purposes of
sections 139 to 142.

53
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Full procedure in chart

Section 130

Section 131 Section 132

Section 133

Section 134

Section 135

Section 136 Section 137

Section 138

Section 139

Chapter X:

Order for Maintenance of Wives, Children, and Parents

Sections 144 – 147

Section 144:Order for maintenance of wives, children and parents.

(1) If a person with sufficient means neglects or refuses to maintain a Magistrate of the
first class may order a monthly allowance. This applies to:
(a) A wife unable to maintain herself.

(b) Legitimate or illegitimate children whether married or not, unable to maintain themselves.

(c) Legitimate or illegitimate Major children (not married daughters) with physical or mental
disability unable to maintain themselves.

(d) Father or mother unable to maintain themselves.

Provided that the Magistrate may order the father of a female child referred to in clause (b) to make
such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such
female child, if married, is not possessed of sufficient means.

Interim maintenance & expenses of proceeding: The Magistrate may direct the payment of interim
maintenance during proceedings, Such application the interim maintenance and expenses of

54
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

proceeding shall, as far as possible, be disposed of within 60 days from the date of the service of notice
of the application to such person.

Explanation-

“wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and
has not remarried.

Savithramma (Smt) v Ramanarasimhaiah, (1963) / Dinanath v. Anusuya Bai (1990)

Wife means only a legitimate wife or legally wedded wife of any age & of any religion

Chaturbhuj v. Sita Bai (2008)

A wife is entitled to maintenance even if she resides separately, provided she has valid reasons for doing
so.

Agreement or condition in Talaknaama that the wife shall not claim maintenance will not bar
the right u/s 144. Such an agreement will be void because it is against public policy.

Applicability of Section 144 BNSS to Muslim Women:

1. Shah Bano Case (1985):

o Section 125 CrPC(now 144 BNSS) applies to Muslim women for maintenance post-
divorce.

o Overrules personal laws where maintenance is concerned.

2. Muslim Women (Protection of Rights on Divorce) Act, 1986:

o Limits maintenance to the iddat period but mandates "reasonable and fair
provision" for the woman’s future.

3. Danial Latifi Case (2001):

o Maintenance under the 1986 Act extends beyond the iddat period.

o Ensures no destitution for divorced women.

4. Shabana Bano Case (2010):

o Muslim women can claim maintenance under Section 125 CrPC(now 144 BNSS)
if unable to maintain themselves post-divorce.

5. Iqbal Bano Case (2007):

o Section 125 CrPC (now 144 BNSS) applies unless the husband fulfills obligations
under the 1986 Act.

Conclusion:
Section 125 CrPC (now 144 BNSS) remains a secular remedy for Muslim women, ensuring
sustenance irrespective of personal laws.

*Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai [1987] that the word "his" in clause (d) includes
both male and female children. Therefore, a married daughter with independent sufficient means of her
own is liable to maintain her parents.

(2) Date from which the order is to be effective: Any such allowance for the maintenance or interim
maintenance & expenses of proceeding shall be payable –

➔ from the date of the order, or,

➔ if so ordered, from the date of the application thereof.

55
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) Warrant for levying the amount: If any person so ordered fails without sufficient cause to comply
with the order, any such Magistrate may, for every breach of the order, issued a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such person, for the whole or
any part of each month’s allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to 1 month or until payment if sooner made: Follow us on
instagram@innovative_judiciary.in

1st Proviso: Limitation, "1 year from the date on which it became due": no warrant shall be issued for
the recovery of any amount due under this section unless application be made to the Court to levy such
amount within a period of 1 year from the date on which it became due:

2nd Proviso: "Offers to maintain his wife": if such person offers to maintain his wife on condition of her
living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied
that there is just ground for so doing

Explanation: following shall be considered to be just ground for his wife’s refusal to live with her
husband –

➔ he contracted marriage with another woman or

➔ he keeps a mistress,

Q. Can a magistrate refused to grant maintenance to a wife? if so under what circumstances?

144(4) No wife shall be entitled to receive an allowance for the maintenance

or the interim maintenance and expenses of proceeding, as the case may be, from her husband u/s 144
–

➔ if she is living in adultery, or

➔ if, without any sufficient reason, she refuses to live with her husband, or

➔ if they are living separately by mutual consent.

(5) Cancellation of maintenance: The magistrate shall cancel the order on the proof that any wife in
whose favour an

order has been made u/s 144 –

➔ is living in adultery, or

➔ without sufficient reason refuses to live with her husband, or

➔ they are living separately by mutual consent.

Section 145: Procedure

Proceedings under section 144 may be taken against any person in any

district—

(a) where he is; or

(b) where he or his wife resides; or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate
child; or

(d) where his father or mother resides.

56
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Evidence must be recorded in the presence of the respondent or their advocate.

• Ex-parte orders may be passed if the respondent avoids or neglects to attend court but can be
set aside for valid reasons on an application made within 3 months from the date. Magistrates
may order costs as deemed just.

Q. Can the magistrate alter in allowance ordered under section 144?

Section 146: Alteration in Maintenance

Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving,
u/s 144 a monthly allowance for the maintenance or interim maintenance, or ordered under the same
section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child,
father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the
allowance for the maintenance or the interim maintenance, as the case may be.

(2) Effect of Civil Court decision: Where it appears to the Magistrate that, in consequence of any
decision of a competent Civil Court, any order made u/s 144 should be cancelled or varied, he shall
cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made u/s 144 in favour of a woman who has been divorced by, or
has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

a) Remarriage: the woman has, after the date of such divorce, remarried, cancel such order as from
the date of her remarriage;

b) the woman has been divorced by her husband and that she has received, whether before or after the
date of the said order, the whole of the sum which, under any customary or personal law applicable to
the parties, was

payable on such divorce, cancel such order,—

i. in the case where such sum was paid before such order, from the date on which such order was made;

ii. in any other case, from the date of expiry of the period, if any, for which maintenance has been
actually paid by the husband to the woman;

c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her
rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order
from the date thereof.

(4) Civil Court to take account of order under the section: the Civil Court shall take into account
the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance
and interim maintenance or any of them, as the case may be, in pursuance of the said order.

Section 147: Enforcement of order of maintenance.— A copy of the order of maintenance or

interim maintenance and expenses of proceedings, as the case may be, shall be given without
payment –

➢ to the person in whose favour it is made, or

➢ to his guardian, if any, or

➢ to the person to whom the allowance for the maintenance or the allowance for the interim
maintenance & expenses of proceeding, as the case may be, is to be paid.

and such order may be enforced by any Magistrate in any place where the person against whom it is
made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment
of the allowance, or as the case may be, expenses, due.

57
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XI

MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY

Sections 148 – 167

A.—Unlawful assemblies Sections 148 – 151

Section 148:Dispersal of assembly by use of civil force.

Members of the
assembly must
disperse upon
Command applies command.
to unlawful Assistance can be
Executive Magistrate, officer If assembly does not
in charge of a police station, assemblies or sought from any
disperse, force may be
or police officer not below assemblies of 5 or used by the authorized person, excluding
the rank of sub-inspector can
command dispersal.
more likely to officers. armed forces or
disturb public their members.
peace. Arrest and confinement may
be done to disperse the
assembly or ensure
punishment according to
law.

Section 149:Use of armed forces to disperse assembly.

If an assembly under Section

148(1) cannot be dispersed
otherwise, the District
Magistrate or authorized
Executive Magistrate may
disperse it using armed forces.

Disperse the assembly.

The Magistrate can direct any
officer commanding armed forces
to:
Arrest and confine persons as Take necessary action to ensure
directed by the Magistrate. punishment according to law.

Cause as little injury to person

Armed forces officers must obey and property as possible, while
Use minimal force.
the requisition but should: dispersing the assembly and
handling arrests.

Section 150:Power of certain armed force officers to disperse assembly

58
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

When public security is clearly Disperse the assembly with the help of armed
endangered by an assembly and no forces under their command.Arrest and
Executive Magistrate is reachable, a confine persons forming part of the assembly
commissioned or gazetted officer of the to disperse it or ensure punishment according
armed forces may: to law.

The officer must establish contact with the

If communication with an Executive
Magistrate.The officer must obey the
Magistrate becomes possible during such
Magistrate's instructions on whether to
action:
continue or stop the action.

Section 151:Protection against prosecution for acts done under sections 148, 149 and 150

(1) No prosecution against any person for any act purporting to be done under section 148, section 149
or section 150 shall be instituted in any Criminal Court except—

(a) with the sanction of the Central Government where such person is an officer or member of the
armed forces;

(b) with the sanction of the State Government in any other case.

B.—Public nuisances 152 – 162

Section 152:Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive

Magistrate specially empowered in this behalf by the State Government, on receiving the report of
a police officer or other information and on taking such evidence (if any) as he thinks fit, considers

(a) that any (b) that the (c) that the (d) that any (e)that any f) that any
unlawful conduct of any construction building, tent tank, well or dangerous
obstruction trade or of any or excavation animal should
or nuisance occupation,is building, or, structure,tree adjacent be destroyed,
should be injurious to the disposal is is likely to should be
removed from the health or of any fall and fenced in such
any public physical substance,is thereby cause manner as to
place or comfort of the likely to injury to prevent danger
way,river or community & occasion persons living arising to the
channel; it needs to be conflagration neighbourhood public; or
prohibited or or explosion, or passing by,
regulated. should be it needs to be
prevented repaired ,
removed.
such Magistrate may make a conditional order to concerned person do the above or or, if he objects so
to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and
place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order
should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Service or notification of order. (Section 153)

• Serve the order in the manner provided for summons, if practicable.
• If service is not possible, notify through a proclamation as directed by State Government.
• Stick a copy of the order at suitable locations

Person to whom order is addressed to obey or show cause.—

(Section 154)
• Person must:

59
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o Perform the act directed within the specified time and manner, or
o Appear and show cause (can be via audio-video conferencing).

Consequences of his failing to do so. (Section 155)

• If the person fails to comply or appear, they:
o Are liable for penalties under Section 223 of the Bharatiya Nyaya Sanhita, 2023.
o The order becomes absolute.

Procedure where existence of public right is denied.— (Section 156)

• Magistrate questions the person about denial of public rights related to way, river, channel,
or place.
• Inquiry initiated if denial is made:
o Proceedings stayed if reliable evidence supports the denial until resolved by a
competent court.
o If no reliable evidence, proceedings continue under Section 157.

Procedure where he appears to show cause.— (Section 157)

• Person appears to show cause, and Magistrate takes evidence.
• Magistrate may:
o Make the order absolute (with or without modifications).
o Dismiss the case if not satisfied.
• Proceedings must be completed within 90 days (extendable to 120 days with reasons).
Power of Magistrate to direct local investigation & examination of an expert. (Section 158)
• Magistrate may:
o Order a local investigation.
o Summon and examine an expert.

Power of Magistrate to furnish written instructions, etc (Section 159)

• Provide written instructions to the investigator.
• Declare payment of investigation expenses.
• Use the investigator's report or expert's examination as evidence.

Procedure on order being made absolute & consequences of disobedience (Section 160)
• Magistrate informs the person to comply within a fixed time.
• If the act is not performed, the Magistrate may:
o Perform the act themselves.
o Recover costs through property sale or distress.
• No suits allowed for actions done in good faith.

Injunction pending inquiry. (Section 161)

• Magistrate may issue an immediate injunction to prevent imminent danger or serious injury.
• If the person disobeys, the Magistrate may act directly to prevent danger or injury.
• No suits allowed for actions done in good faith

Section 162:Magistrate may prohibit repetition or continuance of public nuisance.

A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy

Commissioner of Police empowered by the State Government or the District Magistrate in this
behalf,

may order any person not to repeat or continue a public nuisance, as defined in the Bharatiya Nyaya
Sanhita, 2023, or any special or local law.

Q. who has the Power to issue order in urgent cases of nuisance or apprehended danger?

Section 163(144 CRPC):Power to issue order in urgent cases of nuisance or apprehended danger.

1. Authority to Issue Orders

60
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• District Magistrate, Sub-Divisional Magistrate, or other Executive Magistrate specially

empowered by the State Government can issue written orders.

• Must be based on sufficient grounds for immediate prevention or speedy remedy.

2. Purpose of the Orders

1. Prevent obstruction, annoyance, or injury to persons lawfully employed.

2. Avert danger to human life, health, or safety.

3. Maintain public tranquillity and

4. prevent riots

5. Prevent affrays.

3. Mode of Service

• Orders must state material facts and be served in the manner provided under Section 153.

4. ex parte orders

• Orders can be passed ex parte in emergencies or when notice cannot be served in time.

• Orders may be directed to:

o Specific individuals.

o Persons in a particular place or area.

o The public frequenting or visiting specific areas.

6. Duration of Orders

• Orders remain in force for a maximum of two months.

• In Avert danger to human life, health, or safety, prevent riots, Prevent affrays, State
Government can extend the duration for up to six months if necessary, by notification.

7. Modification or Rescission of Orders

• Magistrates:

o Can rescind or alter orders made by themselves, subordinate Magistrates, or

predecessors.

• State Government:

o Can rescind or alter orders extended by itself under the proviso to sub-section (4).

8. Right of Hearing Follow us on instagram@innovative_judiciary.in

• Applications for rescission or alteration:

o Applicant is given an opportunity to present their case in person or through an

advocate.

Rejection of the application, wholly or in part, must include recorded reasons.

In Madhu Limaye v. SDM, Monghyr & Ors. [1970], a 7-judge bench of the Supreme Court, headed
by Chief Justice M. Hidayatullah, upheld the constitutionality of Section 144 of the CrPC. The Court
held that the imposition of Section 144 falls within the scope of "reasonable restrictions" under Article
19(2) of the Constitution. Therefore, the provisions of Chapter 8 of the CrPC, aimed at safeguarding
public interest, are not violative of Article 19 of the Indian Constitution.

61
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Gaurav Sureshbhai Vyas v. State of Gujarat (2017)

o Section 163(144 crpc) orders must not be arbitrary and should be based on material
facts.

o Preventive measures under Section 163(144 CRPC) should be used sparingly and only
in cases of emergency or public danger.

Anuradha Bhasin v. Union of India, 2020: indefinite suspension of Internet is not permissible and
that repeated orders u/s Section 163(144 of CrPC)will amount to abuse of power .

D.Disputes as to immovable property(Sections 164-167)

Section 164: Procedure where dispute concerning land or water is likely to cause breach of
peace.—

164(1)Whenever an Executive Magistrate is satisfied from a report of a police officer or upon

other information that a dispute likely to cause a breach of the peace exists concerning any
land or water or the boundaries thereof, within his local jurisdiction, about a likely breach of
peace concerning land, water, or boundaries.Written order is issued, requiring parties to submit
written claims regarding possession.
• Order served as summons and a copy affixed near the disputed property.
• Magistrate examines evidence to determine possession at the time of the initial order.
• Forcible dispossession within two months prior to the report can result in treating the
dispossessed party as in possession.
• Nothing in this section shall preclude any party so required to attend, or any other person
interested, from showing that no such dispute as aforesaid exists or has existed;
• Wrongfully dispossessed parties may be restored to possession.
• Legal representatives of deceased parties can be substituted.
• Magistrate can make orders for decaying property and issue summons for witnesses.

Section 165:Power to attach subject of dispute and to appoint receiver.—

1. Conditions for Attachment:

o Case of emergency.

o None of the parties found in possession.

o Magistrate unable to determine possession.

2. Attachment Details:

o Property remains attached until a competent court decides on the rights.

o Attachment can be withdrawn if the risk of breach of peace subsides.

3. Appointment of Receiver:

o Magistrate may appoint a receiver to manage the property if no civil court receiver
exists.

o Receiver must hand over the property if a civil court appoints one later.

Section 166:Dispute concerning right of use of land or water.—

• An Executive Magistrate, upon being satisfied from a police report or other information that a
dispute likely to cause a breach of peace exists regarding the right of user of any land or
water within their jurisdiction, may issue a written order.

62
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• The written order must state the grounds of satisfaction and require the parties involved to
attend the court in person or through an advocate on a specified date and submit written
statements of their respective claims.The expression "land or water" includes the definition
provided in Section 164(2).
• The Magistrate must peruse the statements, hear the parties, consider all evidence presented,
and take further evidence if deemed necessary.
• The Magistrate should attempt to decide whether the alleged right exists, applying the
provisions of Section 164 as far as applicable.
• If the Magistrate concludes that such a right exists, they may issue an order prohibiting
interference with the exercise of such a right and, where necessary, order the removal of any
obstruction in exercising the right.
• No order shall be made where the right is exercisable at all times of the year unless the
right has been exercised within three months prior to receiving the report or information.
• If the right is exercisable only in particular seasons or on specific occasions, the right
must have been exercised during the last season or occasion before the report or
information was received.
• If the Magistrate determines during proceedings under Section 164(1) that the dispute pertains
to the alleged right of user of land or water, they may continue the proceedings under this
section after recording reasons.
• Conversely, if proceedings under this section reveal that the dispute should be dealt with under
Section 164, the Magistrate may continue proceedings under Section 164(1) after recording
reasons.
• Note: Orders made u/s 164 or 166 are limited to preventing breach of peace. These orders are
temporary in nature

Section 167:Local Inquiry

o District or Sub-Divisional Magistrate may assign a subordinate Magistrate for inquiry.

o Written instructions and payment arrangements for inquiry expenses are provided.

o The report may be used as evidence.

o Magistrate may decide cost allocation among parties, including witness expenses and
reasonable advocate fees.

Follow us on instagram@innovative_judiciary.in

63
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XII

PREVENTIVE ACTION OF THE POLICE

Sections 168 - 172

Q. Describe the preventive measures that can be adopted by police?

Trick To learn -PDAI

Section 168

Police to prevent cognizable offences.(P-Prevent)

Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability,
prevent, the commission of any cognizable offence.

Section 169.

Information of design to commit cognizable offences.(D-Design)

Every police officer receiving information of a design to commit any cognizable offence shall
communicate such information to the police officer to whom he is subordinate, and to any other officer
whose duty it is to prevent or take cognizance of the commission of any such offence.

Section 170.

Arrest to prevent commission of cognizable offences.(A-Arrest)

(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders
from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the
commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding
twenty-four hours from the time of his arrest unless his further detention is required or authorised
under any other provisions of this Sanhita or of any other law for the time being in force.

Section 171.

Prevention of injury to public property.(I-Injury)

A police officer may of his own authority interpose to prevent any injury attempted to be committed in
his view to any public property, movable or immovable, or the removal or injury of any public landmark,
buoy or other mark used for navigation.

Section 172.

(1) All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment
of any of his duty under this Chapter.
(2) A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to
conform to any direction given by him under sub-section (1) and may either take such person before a
Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four
hours.

Follow us on instagram@innovative_judiciary.in

64
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XIII

INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

Sections 173 – 196

Question-What is first information report? What is the effect of delay in filing FIR?

A FIR means the information, by whomsoever given, to the officer in charge of a police station in
relation to the commission of a cognizable offence and which is first in point of time and on the strength
of which the investigation into that offence is commenced.

FIR is nowhere defined in BNSS, but Section 173 deals with FIR because under this section the
FIR is filed. So, in context of section 173, FIR means –

• information given in earliest or first in the point of time,

• either in writing or orally or through electronic communication, to the officer-in-charge of the
police station (SHO)
• relating to the commission of a cognizable offence by any person

Follow us on instagram@innovative_judiciary.in

Section 173-

Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, irrespective of the area
where the offence is committed, may be given orally or by electronic communication to an officer in
charge of a police station, and if given—

(i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant;
and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed
by the person giving it;

(ii) by electronic communication, it shall be taken on record by him on being

signed within three days by the person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may by rules prescribe in this behalf:

1st Proviso: Provided that if the information is given by the woman against whom an offence sec 64-
71,74-79 section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or
attempted, then such information shall be recorded, by a woman police officer or any woman officer:

2nd Proviso: Provided further that—

(a) in the event that the person against whom an offence under sec 64-71,74-79 section 124 of the
Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or
permanently mentally or physically disabled, then such information shall be recorded by a police
officer, at the residence of the person seeking to report such offence or at a convenient place of such
person's choice, in the presence of an interpreter or a special educator, as the case may be;

(b) the recording of such information shall be videographed;

(c) the police officer shall get the statement of the person recorded by a

Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost,
to the informant or the victim.

65
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to
the commission of any cognizable offence, which is made punishable for three years or more but less
than seven years, the officer in charge of the police station may with the prior permission from an officer
not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the
offence,—

(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for
proceeding in the matter within a period of fourteen days; or

(ii) proceed with investigation when there exists a prima facie case.

(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the
information referred to in sub-section (1), may send the substance of such information, in writing and
by post, to the Superintendent of Police concerned who, if satisfied that such information discloses
the commission of a cognizable offence, shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him, in the manner provided by this
Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation
to that offence failing which such aggrieved person may make an application to the Magistrate.

Q-Write notes on ZERO FIR?

The statement u/s 173(1) relates to the principle that any information about a cognizable offense,
regardless of the jurisdiction or area where the offense occurred u/s can be reported to the officer in
charge of any police station. This concept supports the registration of FIRs without delay, even if the
police station receiving the information lacks jurisdiction. This forms the basis for the concept of Zero
FIR. Follow us on instagram@innovative_judiciary.in

No regular FIR number is given. After receiving the Zero FIR, the concerned police station registers a
fresh FIR and starts the investigation.

Zero FIR:

• Concept: Zero FIR allows an FIR to be filed at any police station, irrespective of territorial
jurisdiction. It is later transferred to the appropriate jurisdictional police station for
investigation.

• Purpose: To ensure no delay in initiating the process of justice and prevent harassment of the
victim.

• Key Case: Lalita Kumari v. Government of Uttar Pradesh (2013) – Supreme Court mandated
the registration of FIR for cognizable offenses.

C. Mangesh v. State of Karnataka, 2010 it was held that the FIR is not a substantive
piece of evidence but a confirmation factor. It
can only be used to confirm or rebut the
evidence of informant or to confirm the maker
of FIR. It means it can be used to corroborate
the informant & to contradict the informant

E. Palani v. State of Tamil Nadu, 2020 Delay in lodging FIR is the normally viewed by
the court in suspicious because there is
possibility of concoction of evidence against the
accused. It is the duty of prosecution to
satisfactorily explain the delay and afford
plausible explanation

66
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

State of Haryana v. Bhajan Lal (1992) Laid down guidelines for the registration of FIR
and circumstances under which FIR can be
quashed. It emphasized that malafide FIRs
should be scrutinized but genuine cases should
not be hindered.

Ramesh Kumari v. State (NCT of Delhi) (2006) The Supreme Court held that non-registration of
FIR by the police in a cognizable case is a serious
violation of the rights of the informant.

Anju Chaudhary v. State of Uttar Pradesh Multiple FIRs on the same facts are not
(2013) permissible. If a fresh offense is disclosed during
the investigation, a new FIR can be registered.

Satvinder Kaur v. State (1999) FIR can be registered irrespective of territorial

jurisdiction; investigation can later be
transferred to the concerned jurisdiction.

Investigation

“investigation” includes all the proceedings for the collection of evidence conducted by a police officer
or by any person(except a Magistrate)who is authorised by a Magistrate in this behalf.

Section 174: Information as to non-cognizable cases & investigation of such cases.—

(1) When information is given to an officer in charge of the commission non-cognizable offence within
the limits of his station, he shall enter or cause to be entered the substance of the information in a
book to be kept by such officer in such form as the State Govt may prescribe in this behalf, and refer
the informant to the Magistrate.(ii) forward the daily diary report of non-cognizable cases
fortnightly to the Magistrate.

(2) Investigation after Magistrate's order: No police officer shall investigate a non-cognizable case
without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Powers of investigation after Magistrate's order: Any police officer receiving such order may
exercise the same powers in respect of the investigation (except the power to arrest without warrant)
as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be
deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. (And the
sanction of the Magistrate is not required to proceed with the investigation in such a cases.)

Section 175: Police officer’s power to investigate cognizable case.—

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits of such
station would have power to inquire into or try.

Provided that considering the nature and gravity of the offence, the Superintendent of Police may
require the Deputy Superintendent of Police to investigate the case.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the
ground that the case was one which such officer was not empowered under this section to investigate.

* It makes it clear that any irregularity in investigation will not vitiate the trial.

(3) Any Magistrate empowered under section 210 may, after considering the application supported by
an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks

67
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

necessary and submission made in this regard by the police officer, order such an investigation as
above-mentioned.

(4) Any Magistrate empowered under section 210, may, upon receiving a complaint

against a public servant arising in course of the discharge of his official duties, order

investigation, subject to—

(a) receiving a report containing facts and circumstances of the incident from

the officer superior to him; and

(b) after consideration of the assertions made by the public servant as to the

situation that led to the incident so alleged.

• READ WITH Sec 225 BNSS

Q-How a complaint become an FIR?

A magistrate can order investigation u/s 175(3)(4)BNSS, even if offence is exclusively triable by the
court of Session. And when a magistrate directs an SHO to investigate an offence, he must record the
reasons for doing so. In this way, a complaint becomes a FIR when it is sent to police for investigation
175(3)(4)BNSS.

difference between Police investigation ordered u/s 175(3)(4) & u/s 225 BNSS has been explained as
follows –

Police investigation ordered u/s 175(3)(4) Police investigation ordered u/s 225 BNSS
Section 175(3)(4) occurs in Chapter XIII, under Section 225 is in Chapter XVI which bears the
the caption: "Information to the Police and their heading "Of complaints to Magistrates".
powers to investigate"
This power of investigation is exercisable at the This power of investigation is exercisable at the
pre-cognizance stage. So, the power under this post-cognizance stage when the Magistrate is
sec can be invoked by the Magistrate before he inquiring the case.
takes cognizance of the offence.

Vinubhai Haribhai Malaviya v. State of Gujarat, 2019 Supreme Court held that a Magistrate has
power to order further investigation into an offence u/s 175(3)BNSS (156 (3) of CrPC)post cognizance
until the commencement of trial. Follow us on instagram@innovative_judiciary.in

Section 176:Procedure for investigation.

If an officer in charge of a police station suspects the commission of an offence that they are authorized
to investigate under Section 175, they must:

1. Report to Magistrate: Immediately send a report to a Magistrate empowered to take cognizance

of the offence based on a police report.

2. Investigate the Case: Either personally proceed to the spot or assign a subordinate officer (not
below the prescribed rank) to:

o Investigate the facts and circumstances.

o Take necessary actions for discovering and arresting the offender.

Provided that—

Clause (a): Minor Offences with Named Accused

• If the offence is not serious and the accused is specifically named in the information, the officer
in charge need not personally investigate or assign a subordinate officer to investigate the
spot.

68
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Clause (b): Lack of Grounds for Investigation

• If the officer in charge concludes that there are insufficient grounds to proceed, they are not
required to investigate the case.

Provided further that For offences of rape, special procedures are prescribed for recording the victim's
statement to ensure sensitivity and comfort:

1. At the victim's residence or a place of her choice.

2. Preferably by a woman police officer.

3. In the presence of parents, guardian, near relatives, or a social worker from the locality.

4. Statement can also be recorded through audio-video electronic means, including mobile
phones.

(2) In cases under clauses (a) and (b) of the first proviso to sub-section (1):

1. The officer in charge of the police station must:

o Record the reasons for not fully complying with the requirements of the sub-section in
their report.

o Forward the daily diary report fortnightly to the Magistrate.

2. In cases under clause (b):

o The officer must immediately notify the informant, if any, in a manner prescribed
by the rules made by the State Government.

(3) On receiving information about an offence punishable with imprisonment of seven years or more the
officer in charge of a police station shall, from such date as may be notified within a period of five years
by the State Government in this regard

• A forensic expert must visit the crime scene to collect forensic evidence.

• The process must be videographed using a mobile phone or any other electronic device.

If forensic facilities are unavailable in the State:

• The State Government must notify the use of forensic facilities in another State.

• This arrangement will continue until local facilities are developed.

Section 177:Report how submitted.

Every report sent to a Magistrate under Section 176 must be submitted through a superior police officer
if directed by the State Government via a general or special order.

The superior officer may:

• Issue instructions to the officer in charge of the police station as deemed fit.

• Record these instructions on the report and transmit it without delay to the Magistrate.

Section 178:Power to hold investigation or preliminary inquiry.

Upon receiving a report under Section 176, the Magistrate may:

• Direct an investigation.

• Immediately proceed to hold a preliminary inquiry.

69
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Delegate the task to a subordinate Magistrate to hold a preliminary inquiry or dispose of the
case.

The case must be dealt with in accordance with the procedures provided in this Sanhita.

Section 179:Police officer's power to require attendance of witnesses

(1) A police officer conducting an investigation under this Chapter may issue a written order requiring
the attendance of any person:

• Within the limits of their own or any adjoining police station.

• If the person appears to be acquainted with the facts and circumstances of the case based on
information or otherwise.

• The person must comply and attend as required.

Provided that the following persons cannot be required to attend any place other than their residence:

• Male persons under 15 years or above 60 years of age.

• Women.

• Mentally or physically disabled persons. Follow us on instagram@innovative_judiciary.in

• Persons with acute illness.

However, if such a person is willing to attend the police station, they may be permitted to do so.

(2)The State Government may make rules to ensure payment of reasonable expenses by the police
officer to individuals attending under sub-section (1) at any place other than their residence.

Section 180:Examination of witnesses by police.

(1) Investigating police officer and any person who is believed to be

Police officer of prescribed rank (as may examine orally acquainted with the facts and
per State Government order). circumstances of the case

Note: No oath or affirmation is required

(2) Such person shall be bound to answer truly all questions relating to such case. [Refusal to answer
questions put to him is an offence u/s 214 of BNS 23.]

But he may refuse to answer questions put by police officer if such answer would have a tendency

➢ to expose him to a criminal charge

➢ to expose him a penalty

➢ to expose him to a forfeiture.

Nandini Satpathy v. PL Dani 1978: Person has a right to protection u/s 161(2) of CrPC [180(2) of BNS
23 against question, the answer of which would have a tendency to a criminal charge. S. 180 (2) and
Art. 20 (3) immune the witness from being forced to answer incriminatory questions at the investigation
stage.

(3) * Statements made during examination may be recorded in writing.

* Audio-video electronic recording of the statement is also permissible.

* An accurate and separate record must be created for each individual whose statement is taken.

70
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

* Statements of women, especially in cases involving offences under sections (64-71 ,74-79 , 124 of the
Bharatiya Nyaya Sanhita, 2023, must be recorded by a woman police officer or any woman officer.

Question-what is the evidentiary value of statement recorded u/s 180 of BNSS 23?

Section 181:Statements to police and use thereof.

1.Statements made to a police officer during an investigation, if reduced to writing, shall not be signed
by the person making them.

• Such statements or their records, whether in a police diary or otherwise, shall not be used for
any purpose in an inquiry or trial of the offence being investigated, except as specifically
provided hereinafter.

Provided that when a witness for the prosecution, whose statement has been reduced to writing, is
called in an inquiry or trial:

• The accused may use any part of that statement, if duly proved, to contradict the witness.

• The prosecution, with the Court's permission, may also use the statement to contradict the
witness.

• Such contradiction must be conducted in the manner prescribed under Section 148 of the
Bharatiya Sakshya Adhiniyam, 2023.

• If any part of the statement is used during cross-examination, any part of it may also be used
in re-examination of the witness, but solely to clarify matters raised during cross-examination.

(2) Nothing in this section shall apply to any statement falling within the provisions of clause (a) of
section 26 of the Bharatiya Sakshya Adhiniyam, 2023, or affect the provisions of the proviso to sub-
section (2) of section 23 of that Adhiniyam.

Explanation An omission to state a fact or circumstance in the statement referred to in sub-section (1)
may be considered a contradiction if:

• The omission appears significant and relevant in the given context.

Determining whether an omission amounts to a contradiction in a specific context shall be treated as a

question of fact.

Section 182:No inducement to be offered.

• No police officer or any other authority shall offer, make, or instigate any inducement, threat,
or promise as referred to in Section 22 of the Bharatiya Sakshya Adhiniyam, 2023.
• However, no police officer or authority shall prevent any person from voluntarily making a
statement of their own free will during an investigation:

• This includes preventing such statements by caution or other means.

• Provided that this does not affect the provisions of sub-section (4) of Section 183.

Section 183:Recording of confessions and statements.

(1) Any Magistrate of the district in which information about the commission of any offence has
been registered may, whether or not he has jurisdiction in the case, record any confession or
statement made to him

• during an investigation
• at any time afterward but before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded through
audio-video electronic means in the presence of the advocate of the person accused of the offence:

71
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Provided that No confession shall be recorded by a police officer empowered as a Magistrate under any
prevailing law.

(2) Before recording a confession, the Magistrate must inform the person that making it is not
mandatory and that it may be used as evidence against them. The Magistrate shall record the confession
only if satisfied that it is made voluntarily.

(3) If a person informs the Magistrate, before their confession is recorded, that they are unwilling to
confess, the Magistrate shall not order their detention in police custody.

(4) The confession shall be recorded as per the procedure under Section 316 for examining an accused,
signed by the person making it, and include a memorandum by the Magistrate complying above
compliances.

•  Magistrate should be first satisfied that it is being made voluntarily.

•  Magistrate should give a statutory warning that the accused is not bound to make a
confession, if he does so, it may be used as evidence against him.
• No oath administered before recording a confessional statement.

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such
manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best
fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the
person whose statement is so recorded.

Note: Administering of oath is barred in the recording of a confessional statement but not in the
recording of a non-confessional statement. If a magistrate administers oath before recording the
confession of an accused, such confessional statement is bad in law and inadmissible in evidence.

(6)For cases punishable under Sections 64-71, 74-79, or 124 of the Bharatiya Nyaya Sanhita, 2023, the
Magistrate must record the statement of the person against whom the offence has been committed as
soon as the commission of the offence is brought to the notice of the police.

• The statement should, as far as practicable, be recorded by a woman Magistrate, and in her
absence, by a male Magistrate in the presence of a woman.
• In cases related to offences punishable with imprisonment for ten years or more, life
imprisonment, or the death penalty, the Magistrate must record the statement of the witness
brought by the police officer.
• If the person making the statement is temporarily or permanently mentally or physically
disabled:

• The Magistrate shall seek the assistance of an interpreter or special educator.

• The statement shall be recorded through audio-video electronic means, preferably by mobile
phone.

• A recorded statement of a person with a disability shall be treated as examination-in-chief

under Section 142 of the Bharatiya Sakshya Adhiniyam, 2023.
• This allows the maker of the statement to be cross-examined based on the recorded statement
without the need for it to be repeated during the trial.

(7) The Magistrate recording a confession or statement under this section shall forward it to the
Magistrate responsible for inquiring into or trying the case.

Section 185:Search by police officer. Follow us on instagram@innovative_judiciary.in

A police officer in charge of a police station or conducting an investigation can conduct a search within
their jurisdiction if they believe evidence crucial to the investigation cannot be obtained without undue
delay.

The officer must record the grounds for the search in writing in the case diary, specifying the location
and the object of the search.

72
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

The search should be conducted personally by the officer, if practicable, and must be recorded via
audio-video electronic means, preferably using a mobile phone.

If the officer cannot conduct the search personally, they may delegate the task to a subordinate officer
through a written order specifying the details of the search.

The provisions of section 103 and general rules on search warrants apply to searches conducted under
this section.

Copies of records related to the search must be sent to the nearest Magistrate within 48 hours, and the
owner or occupier of the searched premises can request a free copy of the records from the Magistrate.

Section 186:When officer in charge of police station may require another to issue search warrant.

• An officer in charge of a police station or a police officer not being below the rank of sub-
inspector making an investigation may request the officer in charge of another police station to
conduct a search outside their jurisdiction.
• The officer receiving such a request must follow the procedure outlined in section 185 and
forward any evidence found to the requesting officer.
• In cases where delay in seeking assistance might result in the destruction or concealment of
evidence, the officer can directly conduct the search in another jurisdiction as if it were within
their own limits.
• The officer conducting a search in another jurisdiction must notify the officer in charge of that
jurisdiction and send copies of relevant records to the Magistrate and the jurisdictional police
officer.
• The owner or occupier of the searched premises can request and receive a free copy of the
search records sent to the Magistrate.

Q. What is the remedy of an investigating police officer in case he wants to detain a person
arrested for more than 24 hours?

SEC 187. Procedure when investigation cannot be completed in twenty-four hours

(1) If investigation cannot be completed within 24 hours (Sec. 58),the officer in charge of the police
station or the police officer making the investigation, if he is not below the rank of sub-inspector,
▪ Transmit a copy of the case diary to the nearest Magistrate.
▪ Forward the accused to the Magistrate.
(2) The Magistrate to whom an accused person is forwarded irrespective of whether he has or has
no jurisdiction to try the case, after taking into consideration whether such person has not
been released on bail or his bail has been cancelled, authorise, from time to time, the detention
of the accused in such custody as such Magistrate thinks fit,
▪ for a term not exceeding fifteen days in the whole, or in parts, at any time
during the initial forty days or sixty days out of detention period of sixty days
or ninety days, as provided in sub section (3),
▪ and if he has no jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction.
(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen
days, if he is satisfied
▪ that adequate grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody for a total period exceeding—
▪ (i) ninety days- where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of ten years or more;
▪ (ii) sixty days, where the investigation relates to any other
offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and does furnish bail, and every person released on

73
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for
the purposes of that Chapter.(Q.-WHAT IS DEFAULT BAIL?)

Sanjay Dutt v. State (1994): It was clarified that if the accused fails to apply for bail after the
prescribed period and subsequently a chargesheet is filed, the right to 'default bail' is
extinguished.

Rakesh Kumar Paul v. State of Assam (2017): The Supreme Court reiterated that the right
to statutory bail is fundamental and cannot be suspended even during extraordinary situations,
such as delays in judicial proceedings.
Follow us on instagram@innovative_judiciary.in

(4) Production Before Magistrate FOR authorise detention:

• POLICE CUSTODY : in person for the first time and subsequently every time till the accused
remains in the custody.

• JUDICIAL CUSTODY-: further detention either in person or via audio-video electronic means

(5)Magistrate of the second class requires High Court authorization to authorize detention In police
custody.

Explanation I clarifies that even after the expiry of the detention period specified under sub-section
(3) (90 or 60 days), the accused shall remain in custody until bail is furnished.

Explanation II provides that the production of the accused before the Magistrate, as required under
sub-section (4), can be proven either by:

• The accused's signature on the detention order, or

• A certified order by the Magistrate confirming the accused's production via audio-video
electronic means.

Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be
in the custody of a remand home or recognised social institution

Provided further that no person shall be detained otherwise than in police station under police custody
or in prison under judicial custody or a place declared as prison by the Central Government or the State
Government.

(6) If a Magistrate is unavailable, a police officer (not below sub-inspector rank) may send the case diary
and the accused to the nearest Executive Magistrate. The Executive Magistrate can authorize detention
for up to 7 days, recording reasons in writing. Before this period ends, the records must be sent to the
nearest Judicial Magistrate. The detention period under the Executive Magistrate is counted towards
the 60 or 90-day limit under sub-section (3).

(7) The reasons for authorizing police custody must be recorded in writing by the Magistrate.

(8) Copies of orders for detention must be sent to the Chief Judicial Magistrate if issued by another
Magistrate.

(9) For summons cases, if the investigation is not concluded within six months, the Magistrate must
stop the investigation unless special reasons for continuation are shown.

(10) A Sessions Judge may vacate an order stopping the investigation and direct further investigation
if satisfied that it is necessary.

Section 188:Report of Investigation by Subordinate Police Officer

• When any subordinate police officer has made any investigation under this Chapter
• he shall report the result of such investigation to the officer in charge of the police station.

74
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 189: Release of Accused When Evidence is Deficient(closure report/refer report).

• If, upon an investigation under this Chapter, it appears to the officer in charge of the police
station
• that there is not sufficient evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate,
• such officer shall, if such person is in custody, release him on his executing a bond or bail
bond, if and when so required, before a Magistrate empowered to take cognizance of the offence
on a police report, and to try the accused or commit him for trial.

When closure report has been filed u/s 189 before magistrate, he has 3 options

➔ he may accept the report and drop the proceedings; or

➔ he may disagree with the report and ignoring the conclusion drawn by the police, independently
apply his mind to the fact emerging from the investigation and u/s 210 (1)(c) take cognizance of the
offence.

➔ he may order further investigation u/s 193(3) and direct the police to file a further report.

Section 190:

Cases to be Sent to Magistrate When Evidence is Sufficient

The officer in charge must forward the

accused in custody to a Magistrate
empowered to take cognizance of the
offence on a police report.

If the offence is bailable and the accused

If sufficient evidence or reasonable grounds are found can provide security, the officer shall take
during the investigation: security for the accused's appearance
before the Magistrate on a fixed date.

The accused must continue to attend before

the Magistrate daily until otherwise
directed.

Follow us on instagram@innovative_judiciary.in

Provided that if the accused is not in custody, the police officer shall take security from such person
for his appearance before the Magistrate and the Magistrate to whom such report is forwarded shall not
refuse to accept the same on the ground that the accused is not taken in custody.

(2) OIC shall require the complainant (if any) and so many of the persons who appear to such officer to
be acquainted with the facts and circumstances of the case as he may think necessary, to execute a
bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case
may be) in the matter of the charge against the accused.

(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to
include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable
notice of such reference is given to such complainant or persons.

75
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons
who executed it, and shall then send to the Magistrate the original with his report.

Section 191: Complainant and Witnesses Not to be Required to Accompany Police Officer and
Not to be Subject to Restraint
No complainant or witness traveling to any Court shall:

• Be required to accompany a police officer.

• Be subjected to unnecessary restraint or inconvenience.

• Be required to provide security for their appearance other than their own bond.

If a complainant or witness refuses to attend or execute a bond as directed under Section 190:

• The officer in charge may forward them in custody to the Magistrate.

• The Magistrate may detain them in custody until they execute the bond or until the case hearing
is completed.

Q. What is police diary? evidentiary Value?

Section 192:Diary of Proceedings in Investigation

(1) Every police officer conducting an investigation must maintain a daily diary that includes:

• The time the information was received.

• The time the investigation began and ended.

• The places visited during the investigation.

• A statement of the circumstances ascertained during the investigation.

(2) Statements of witnesses recorded under Section 180 must be included in the case diary

(3) The diary referred to in sub-section (1) shall be a volume and duly paginated.
Follow us on instagram@innovative_judiciary.in

USE of Police diary

(4)Any Criminal Court may call Neither the accused nor his but, if they are used by the
for police diaries related to a agents shall be entitled to call police officer who made them
case under inquiry or trial and for such diaries, nor shall he or to refresh his memory, or if the
use them only as an aid, not as they be entitled to see them Court uses them for the
evidence merely because they are purpose of contradicting such
referred to by the Court police officer, Section 148 or
Section 164, BSA 23 apply

Section 193:Report of Police Officer on Completion of Investigation

1. Timely Completion of Investigation

- Every investigation under this Chapter shall be completed without unnecessary delay.

76
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

2. Time-bound Investigations for Specific Offences

- Investigation related to offences under sections 64-71 of the Bharatiya Nyaya Sanhita, 2023, or
sections 4, 6, 8, or section 10 of the Protection of Children from Sexual Offences Act, 2012, must be
completed within two months from the date the information was recorded by the officer in charge.

3. Submission of Report to Magistrate

- Upon completion, the officer in charge must forward a report to the Magistrate empowered to take
cognizance, detailing:

- (a) Names of the parties.

- (b) Nature of the information.

- (c) Names of persons acquainted with case circumstances.

- (d) Whether any offence appears to have been committed and by whom.

- (e) Whether the accused has been arrested.

- (f) Whether the accused has been released on bond or bail.

- (g) Whether the accused has been forwarded in custody under section 190.

- (h) Whether a medical examination report of a woman has been attached (for relevant offences).

- (i) Sequence of custody in electronic device cases.

(4) Where a superior officer of police has been appointed under section 177, the report shall, in any
case in which the State Government by general or special order so directs, be submitted through that
officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police
station to make further investigation.

(5) Whenever it appears from a report forwarded under this section that the accused has been
released on his bond or bail bond, the Magistrate shall make such order for the discharge of such
bond or bail bond or otherwise as he thinks fit.

(6) When such report is in respect of a case to which section 190 applies, the police officer shall forward
to the Magistrate along with the report— (a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b)
the statements recorded under section 180 of all the persons whom the prosecution proposes to examine
as its witnesses.

(7) If the police officer is of opinion that any part of any such statement is not relevant to the subject
matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice
and is inexpedient in the public interest, he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating
his reasons for making such request.

(8) Subject to the provisions contained in sub-section (7), the police officer investigating the case shall
also submit such number of copies of the police report along with other documents duly indexed to the
Magistrate for supply to the accused as required under section 230.

Provided that supply of report and other documents by electronic communication shall be considered
as duly served.

4. Informing Progress and Actions

- The police officer must:

- (i) Inform the progress of the investigation to the informant or victim within 90 days.

- (ii) Communicate actions taken to the informant or the person who first reported the offence.

77
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

5. Further Investigations and Permissions

Further investigation can be conducted after submitting the initial report to the Magistrate. During
the trial, further investigations require the Court’s permission and must be completed within 90 days,
extendable with the Court's consent.

Rajesh Yadav v. State of UP, 2022: Police report is only opinion of investigating officer on the
material collected by him. It is not a substantive piece of evidence.

Devendra Nath Singh v. State of Bihar, 2022: Supreme Court has held that High Court in exercise of
its inherent power can direct further investigation or reinvestigation in appropriate cases.

Holding of INQUEST

Q. Explain the duties and rights of investigation of SHO in a case of death in accident or suicide?

Section 194 :Police to Enquire and Report on Suicide or Suspicious Deaths

1. Immediate Intimation to Magistrate

- Upon receiving information about a suicide, killing, or suspicious death, the police officer must
inform the nearest Executive Magistrate empowered to hold inquests. unless otherwise directed by
any rule prescribed by the State Govt, or by any general or special order of the DM or SDM

2. Investigation at the Scene

- The officer must:

- (i) Investigate the scene with two or more respectable locals.

- (ii) Report the apparent cause of death, describing injuries and possible weapons or instruments
used in death.

The report shall be signed by such police officer and other persons, or by so many of them as concur
therein, and shall be forthwith forwarded to DM or SDM.

3. Forwarding Body for Examination

When—

i. the case involves suicide by a woman within 7 years of her marriage; or

ii. the case relates to the death of a woman within 7 years of her marriage in any circumstances
raising a

reasonable suspicion that some other person committed an offence in relation to such woman; or

iii. the case relates to the death of a woman within 7 years of her marriage and any relative of the
woman has made a request in this behalf; or

iv. there is any doubt regarding the cause of death; or

v. the police officer for any other reason considers it expedient so to do,

he shall, subject to any State Govt Rules, forward the body for examination to the nearest Civil
Surgeon or other qualified medical man appointed by the State Govt, if the state of the weather and
the distance admit of its being so forwarded without risk of such putrefaction on the road as would
render such examination useless.

4.Magistrates Empowered to Hold Inquests

- District Magistrates, Sub-divisional Magistrates, and specially empowered Executive Magistrates

can hold inquests.

Section 195:Power to Summon Persons

78
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

1.Summoning for Investigation

- Police officers may summon individuals for investigation, ensuring their attendance and truthful
responses, except in self-incriminating matters.

2.Provisions for Vulnerable Persons

- Male persons under 15 or above 60 years, women, or persons with disabilities or acute illness
need not attend beyond their residence unless they consent.

3.Non-cognizable Offences

- Individuals cannot be compelled to attend Magistrate’s Court if the facts do not disclose a cognizable
offence.

Section 196:Inquiry by Magistrate into Cause of Death

1. (1) When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section
194, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in
sub-section (1) of section 194, any Magistrate so empowered may hold an inquiry into the cause of
death either instead of, or in addition to, the investigation held by the police officer; and if he does so,
he shall have all the powers in conducting it which he would have in holding an inquiry into an
offence.

2. Special Cases

- An inquiry must be conducted when:

- (i) Death or disappearance occurs in police or authorized custody.

- (ii) Rape allegations are made against a woman in custody.

by the Magistrate or the Court, under this Sanhita in addition to the inquiry or investigation held by
the police, an inquiry shall be held by the Magistrate within whose local jurisdiction the offence has
been committed.

3. - Magistrates may order disinterment of a body for examination to discover the cause of death.

4.- Relatives of the deceased must be informed and allowed to be present during the inquiry, wherever
practicable.

5.Forwarding Body for Examination-

- The body must be sent for examination within 24 hours of death unless impracticable, with
reasons recorded in writing.

Follow us on instagram@innovative_judiciary.in

79
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XIV

Jurisdiction of criminal courts in inquiries & trials

197 – 209
Q.“Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.” Are there any exceptions to this rule?

Ans.

Sec 197:Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it
was committed.

Exception to above general principle

Sec 198:Place of inquiry or trial-

Trick to learn -UPCS

(a) When it is uncertain in which of several local areas an offence was committed; or
(b) Where an offence is committed partly in one local area and partly in another; or
(c) Where an offence is a continuing one, and continues to be committed in more local areas than one;
or
(d) Where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Sec 199:Offence triable where act is done or consequence ensues

When an act is an offence by reason of anything which has been done and of a consequence which
has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction

• such thing has been done or

• such consequence has ensued.

Sec 200. Place of trial where act is an offence by reason of relation to other offence

When an act is an offence by reason of its relation to any other act which is also an offence or which
would be an offence if the doer were capable of committing an offence, the first-mentioned offence may
be inquired into or tried by a Court within whose local jurisdiction either act was done.

Illustration: A charge of abetment may be inquired into or tried either

➔ by the Court within the local limits of whose jurisdiction the abetment was committed or

➔ by the Court within whose local limits the offence abetted was committed.

Sec 201:Place of trial in case of certain offences

Offence inquired into or tried by a Court

(1) Any offence of dacoity, or of dacoity with within whose local jurisdiction
murder, of belonging to a gang of dacoits, or of • the offence was committed
escaping from custody, may be • or the accused person is found.
(2) Any offence of kidnapping or abduction of a within whose local jurisdiction
person may be • the person was kidnapped or abducted
or
• was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may within whose local jurisdiction
be • the offence was committed or

80
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• the stolen property which is the subject

of the offence was possessed by any
person committing it or by any person
who received or retained such property
knowing or having reason to believe it to
be stolen property.
(4) Any offence of criminal misappropriation or within whose local jurisdiction
of criminal breach of trust may be • the offence was committed
• or any part of the property which is the
subject of the offence was received
• or retained, or
• was required to be returned or
accounted for, by the accused person.
(5) Any offence which includes the possession of within whose local jurisdiction
stolen property may be • the offence was committed or
• the stolen property was possessed by
any person who received or retained it
knowing or having reason to believe it to
be stolen property.
Sec 202:Offences committed by means of electronic communications, letters, etc.

(1) Jurisdiction Based on Electronic Communication

• If deception is conducted through electronic communication, letters, or telecommunication

messages, the offence can be inquired into or tried by a court within whose jurisdiction:

o The electronic communication or message was sent, or

o The electronic communication or message was received.

Jurisdiction in Cheating Involving Property

• In cases of cheating and dishonestly inducing delivery of property, the court's jurisdiction
applies to the place where:

o The property was delivered by the deceived person, or

o The property was received by the accused.

(2) Any offence punishable under section 82 (Biagamy) of the Bharatiya Nyaya Sanhita, 2023, may be
inquired into or tried by a court within whose local jurisdiction:

• The offence was committed.

• The offender last resided with their spouse from the first marriage.

• The wife from the first marriage has taken up permanent residence after the commission of
the offence.

Sec 203:Offence committed on journey or voyage

When an offence is committed during a journey or voyage, involving a person or thing by or against
whom the offence is committed, the offence may be inquired into or tried by a court within whose local
jurisdiction:

• The person or thing passed during the journey or voyage.

Ill.- Imagine A, a passenger on a train journey from Jaipur to Mumbai, slyly steals another passenger's
phone while the train is traveling between Jaipur and Vadodara. After committing the theft, A gets off
the train at Vadodara station, confident he won’t be caught.Meanwhile, the victim continues their
journey on the same train all the way to Mumbai. In this scenario, the offence can be tried in the court
of any place between Jaipur and Vadodara, where the theft took place. However, since the victim’s

81
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

journey extended up to Mumbai, the case can also be tried in any court between Jaipur and Mumbai,
covering the full extent of the victim's travel route.

Sec 204:Place of trial for offences triable together

Offences may be inquired into or tried by any court competent to inquire into or try any of the
offences if:

• (a) The offences are committed by a person and can be charged and tried together under
sections 242, 243, or 244.

• (b) The offences are committed by several persons and can be charged and tried together
under section 246.

Sec 205:Power to order cases to be tried in different sessions divisions

• The State Government may direct that any case or class of cases committed for trial in a
district may be tried in any sessions division.
• Such a direction must not conflict with any prior direction issued by the High Court or the
Supreme Court under the Constitution, this Sanhita, or any other applicable law.

Sec 206:High Court to decide, in case of doubt, district where inquiry or trial shall take place

Where two or more Courts have taken cognizance of the same offence and a question arises as to
which of them ought to inquire into or try that offence, the question shall be decided—

(a) If the Courts are subordinate to the same by that High Court;
High Court

(b) If the Courts are not subordinate to the same by the High Court within the local limits of
High Court whose appellate criminal jurisdiction the
proceedings were first commenced,

and thereupon all other proceedings in respect of that offence shall be discontinued.

Sec 207:Power to issue summons or warrant for offence committed beyond local jurisdiction

This section empowers the Magistrate of the first class to inquire into an offence committed outside
the local limits of his jurisdiction (which may also be outside India) by a person found within his
jurisdiction and to send such person to the Magistrate having jurisdiction to inquire into or try such
offence.

Sec 208:Offence committed outside India

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt
with in respect of such offence as if it had been committed at any place within India at which he may
be found d or where the offence is registered in India.

Proviso: no such offence shall be inquired into or tried in India except with the previous sanction of
the Central Govt.

Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh, 2021: the proviso only imposes a bar
to inquire into the offence or trial of the said offence in India without previous sanction of the Central
Govt. The proviso did not impose any bar for registration and investigation of such offence. Only after
the final report is filed and when the Court takes cognizance of the said matter, then the sanction of
the Central Govt to try the case is required.

Sec 209:Receipt of evidence relating to offences committed outside India-For offences

committed outside India tried under Section 208, the Central Government may direct that depositions

82
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

or exhibits from judicial officers or Indian diplomatic representatives abroad be accepted as evidence
by the Court.

CHAPTER XV

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

Sections 210 – 222

Q. What do you mean by taking cognizance of an offence?

when the magistrate takes judicial notice of an offence with the view to initiate criminal proceedings.

Q. How cognizance of offence is taken by magistrate?

Section 210: Cognizance of Offences by Magistrate

(1) Any Magistrate of the first class, and any Magistrate of the second class specially empowered by
CJM in this behalf under sub-section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised
under any special law, which constitutes such offence;

(b) upon a police report (submitted in any mode including electronic mode) of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge,
that such offence has been committed.

Irregularities in cognizance: Follow us on instagram@innovative_judiciary.in

• cognizance of an offence by a magistrate not empowered u/s 210(1)(a) or 210(1)(b) is an

irregularity which does not vitiate the proceeding.
• cognizance of an offence by a magistrate not empowered u/s 210(1)(c) is an irregularity which
vitiates the proceeding.

Q. When a complaint is presented before the magistrate, what actions could be taken by him?

When a complaint is presented before the magistrate then he may –

➔ Order investigation by police u/s 174(2) in non-cognizable cases;

➔ Order investigation by police u/s 175(3) in cognizable cases before the commencement of trial. In
this way, complaint becomes FIR; or

➔ Take the cognizance of the offence u/s 210(1)(a) & proceed under Chapter 16 (S. 223-226) of
BNSS where u/s 225(1) he may also order limited investigation by a police officer or by other person as
he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

• If he is not competent to take cognizance, he shall u/s 224 return the complaint for
presentation in proper forum.
• If after taking cognizance he found no sufficient ground for proceeding he shall dismiss
the complaint u/s 226.

Section 211: Transfer on Application of Accused

When a Magistrate takes cognizance of an offence under Section 210(1)(c):

• The accused must be informed of their right to request a different Magistrate for inquiry or
trial.

83
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

If the accused (or any of the accused in case of multiple accused) objects to the proceedings:

• The case shall be transferred to another Magistrate specified by the Chief Judicial Magistrate.

Section 212: Making Over of Cases to Magistrates

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for
inquiry or trial to any competent Magistrate subordinate to him.
(2) A Magistrate of the first class, empowered by the Chief Judicial Magistrate, can transfer a case for
inquiry or trial to another competent Magistrate specified by the Chief Judicial Magistrate, ensuring
efficient case management after cognizance is taken.

Q. A court of session judge cannot take direct cognizance of an offence? any exception.

Section 213:Cognizance of Offences by Court of Session

• no Court of Session shall take cognizance of any offence as a Court of original jurisdiction
unless the case has been committed to it by a Magistrate under this Sanhita.

Although S. 222(2) of BNSS acts as an exception to this where a Court of Sessions may directly take
cognizance of an offence a upon written complaint without the case being committed to it in case of
defamation of high dignitaries and public servants under certain circumstances.

Section 214: Additional Sessions Judges to Try Cases Made Over to Them

An Additional Sessions Judge shall try such cases as the Sessions Judge of the division may, by general
or special order, make over to him for trial or as the High Court may, by special order, direct him to
try. Follow us on instagram@innovative_judiciary.in

Q. What are the exceptions to the general rule of law that any citizen can set the machinery of
criminal law in motion?

ANSWER- The general rule is that any person, having knowledge of the commission of an offence,
may set the law in motion by a complaint/FIR, even though he is not personally interested or
affected by the offence. some of the exceptions are there

Section 215:Prosecution for Contempt of Lawful Authority of Public Servants, Offences Against
Public Justice, and Offences Relating to Documents Given in Evidence

(1) No Court shall take cognizance—

Clause (a):

o Covers offences under Sections 206–223 (except Section 209) of the Bharatiya Nyaya
Sanhita, 2023.( Contempt of Lawful Authority of Public Servants)

o Includes abetment, attempt, or criminal conspiracy related to these offences.

o Requires a complaint in writing by:

▪ The concerned public servant, or

▪ Another public servant subordinate to or authorized by the concerned

public servant.

• Clause (b):

o Covers offences under Sections 229–233, 236, 237, 242–248, and 267, and offences
under Section 336(1), 340(2), or 342.

o These offences must relate to proceedings or documents produced in a Court.

o Complaints must be made by:

▪ The Court itself, or

84
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

▪ An officer authorized by the Court, or

▪ Another Court to which the concerned Court is subordinate.

2. Withdrawal of Complaints (Sub-section 2)

• Complaints made under clause (a) can be withdrawn by an authority superior to or authorizing
the public servant.

• Withdrawal is disallowed after the trial in the Court of first instance has concluded.

Section 216:Procedure for Witnesses in Case of Threatening, etc.

A witness or any other person may file a complaint in relation to an offence under section 232 of the
Bharatiya Nyaya Sanhita, 2023.

Section 217:Prosecution for Offences Against State and for Criminal Conspiracy to Commit Such
Offence

No Court shall take cognizance of—

Sub-
Offences Covered Approval Authority Required
section
- Offences under Chapter VII.
Central Government or State
-1 - Sections 196, 299, or 353(1).
Government
- Criminal conspiracy or abetment (Sec. 47).

- Offences under Section 197 or 353(2) or

353(3). Central Government, State Government,
-2
or District Magistrate
- Criminal conspiracy to commit these
offences.

- Criminal conspiracy under Section 61(2),

except those punishable by death, life
-3 State Government or District Magistrate
imprisonment, or rigorous imprisonment for
2+ years.

- Preliminary investigation for offences

-4 As per sub-sections (1), (2), and (3).
covered under sub-sections (1), (2), or (3).

Section 218: Prosecution of Judges and Public Servants

Sanction for Judges, Magistrates, and Public Servants (Sub-section 1):

• Cognizance requires prior sanction:

o Union Affairs: Central Government.

o State Affairs: State Government (except during President's Rule, where the Central
Government grants sanction).

• Sanction decision within 120 days; deemed granted if delayed.

• No sanction required for specific offences under Sections 64–79, 143, 199, and 200 of the
Bharatiya Nyaya Sanhita, 2023.

85
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 219: Prosecution for Offences Against Marriage

Sub-
Key Provision Details
section

No cognizance of offences under Sections 81–84

-1 Complaint requirement
unless a complaint is made by the aggrieved person.

Exceptions - Complaint on behalf of:

(a) Child, person of unsound mind, infirm person, or

woman (as per local customs) with Court's leave.

(b) Armed Forces personnel through an authorized

person, with proper certification.

(c) Wife for Section 82(BIAGAMY) offences by

complaint may be made on her behalf by her father,
mother, brother, sister, son or daughter or by her
father's or mother's brother or sister, or, with the
leave of the Court, by any other person related to her
by blood, marriage or adoption.
Only the husband of the woman can file a complaint
-2 Aggrieved person for Section 84
for offences under Section 84.

If a complaint is made on behalf of a child or person

-3 Notice to guardians of unsound mind by a non-guardian, the Court must
notify the appointed guardian and hear them.

-4 Armed Forces authorization Authorization for Armed Forces personnel must:

- Be written, signed, or attested by the husband.

- Contain a statement showing the husband is aware
of the allegations.
- Be countersigned by the Commanding Officer.
- Include a certificate that leave cannot be granted for
the husband to make the complaint in person.
Documents of authorization and certification for
-5 Document presumption Armed Forces personnel are presumed genuine
unless proven otherwise.
Cognizance is barred if the offence involves sexual
-6 Time limit for Section 64 offence intercourse with a wife under 18 and is reported
more than 1 year after the incident.
The provisions of this section apply to abetment and
-7 Applicability to abetment attempt to commit offences in the same manner as
the offences themselves.
Follow us on instagram@innovative_judiciary.in

Section 220: Prosecution of Offences Under Section 85 of Bharatiya Nyaya Sanhita, 2023

No Court shall take cognizance of an offence punishable under section 85 of the Bharatiya Nyaya
Sanhita, 2023 except upon a police report of facts which constitute such offence or upon a complaint

86
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

made by the person aggrieved or by her father, mother, brother, sister, or by her father's or mother's
brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage,
or adoption.

Section 221:Cognizance of offence.

No Court shall take cognizance of an offence under Section 67 of the Bharatiya Nyaya Sanhita, 2023
in cases where the parties are in a marital relationship.Cognizance can only be taken upon the prima
facie satisfaction of the facts constituting the offence.

• A complaint must be filed or made by the wife against the husband.

Section 222 –Prosecution for Defamation or Related Offences

Sub-
Provision Details
section
Cognizance of offence under Section Cognizance only upon a complaint by the aggrieved
-1
356 person.
Exceptions Complaints can be made on behalf of:
- A child, person of unsound mind, or someone with
intellectual disability.
- A person unable to complain due to sickness or
infirmity.
- A woman (due to local customs), with Court's leave.

Direct cognizance by court of session (COS):

Courts of Session can take cognizance directly (without

Special provision for high-ranking
(2) commitment) upon a written complaint by the Public
public officials
Prosecutor if the offence involves:

- The President, Vice-President, Governor,

Administrator of a Union Territory, or Ministers.

- Public servants in connection with their official

duties.
-3 Contents of the complaint Complaint must include:

- Facts constituting the offence.

- Nature of the offence and sufficient particulars to give
notice to the accused.

Sanction requirement for

-4 Public Prosecutor requires prior sanction:
complaints by the Public Prosecutor

- From State Government for:

(i) Governor or Minister of the State Government.

(ii) Other public servants employed in State affairs.

- From Central Government in all other cases.

Time limit for complaints under Complaint must be filed within 6 months of the alleged
-5
sub-section (2) offence.
Aggrieved person retains the right to file a complaint
Independent right of the aggrieved
-6 before a Magistrate with jurisdiction, and the
person
Magistrate retains the power to take cognizance.

87
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XVI

COMPLAINTS TO MAGISTRATES

Sections 223 – 226

Q. What is complaint ?
Ans. 2(1)(h) "complaint" means any allegation made orally or in writing to a Magistrate,
• with a view to his taking action under this Sanhita,
• that some person, whether known or unknown, has committed an offence, but does not include
a police report.
Explanation.—A report made by a police officer in a case which discloses,
after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and
the police officer by whom such report is made shall be deemed to be the complainant

Q. When a complaint is presented before the magistrate, what actions could be taken by him?

When a complaint is presented before the magistrate then he may –

➔ Order investigation by police u/s 174(2) in non-cognizable cases;

➔ Order investigation by police u/s 175(3) in cognizable cases before the commencement of trial. In
this way, complaint becomes FIR; or

➔ Take the cognizance of the offence u/s 210(1)(a) & proceed under Chapter 16 (S. 223-226) of BNSS
where u/s 225(1) he may also order limited investigation by a police officer or by other person as he
thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

• If he is not competent to take cognizance, he shall u/s 224 return the complaint for
presentation in proper forum.
• If after taking cognizance he found no sufficient ground for proceeding he shall dismiss
the complaint u/s 226.

Section 223: Examination of Complainant

1. A Magistrate with jurisdiction taking cognizance of an offence on complaint must:
o Examine the complainant and witnesses (if present) on oath.
o Reduce the substance of the examination to writing.
o The record must be signed by the complainant, witnesses, and Magistrate.
Provisos:
• Cognizance cannot be taken without giving the accused an opportunity to be heard.
• If the complaint is in writing, the Magistrate need not examine:
a. When a public servant or Court makes the complaint.
b. If the Magistrate hands over the case to another Magistrate under Section 212.
• If a case is transferred under Section 212 after examining complainants and witnesses, the
new Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence
alleged to have been committed in course of the discharge of his official functions or duties unless—
(a) such public servant is given an opportunity to make assertions as to the situation that led to
the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such
public servant is received.(newly added).

Section 224: Procedure by Magistrate Not Competent to Take Cognizance

• If the Magistrate cannot take cognizance:
o Written complaint: Return it for presentation to the proper Court with an
endorsement.
o Oral complaint: Direct the complainant to the proper Court.

Section 225:Postponement of Issue of Process

1. A Magistrate receiving a complaint (or a case made over under Section 212) may:

88
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o Postpone issuing process. if he thinks fit

Shall in a case where the accused is residing at a place beyond the area in which he
exercises his jurisdiction
o Inquire into the case himself or direct an investigation (police officer or other person).
o This is to decide if there is sufficient ground to proceed.
Provisos:
• No investigation direction when:
a. The offence is exclusively triable by the Court of Session.
b. Complaint is not made by a Court unless complainant and witnesses are examined on
oath under Section 223.
2. During the inquiry:
o The Magistrate may take evidence of witnesses on oath.
o If the offence is exclusively triable by the Court of Session, the Magistrate must call
upon the complainant to produce and examine all witnesses on oath.
3. For investigations by a non-police officer:
o The person shall have the powers of an officer in charge of a police station, except the
power to arrest without warrant.

Section 226: Dismissal of Complaint

• After considering:
o Statements on oath of the complainant and witnesses.
o Result of inquiry/investigation under Section 225.
• If the Magistrate finds no sufficient ground to proceed:
o He shall dismiss the complaint.
o Reasons for dismissal must be briefly recorded.

Samta Naidu v. State of MP, 2020 If 1st complaint of the complainant was dismissed by the
Magistrate u/s 203, a 2nd complaint may be filed by the complainant on the same fact only under
exceptional circumstances.

Follow us on instagram@innovative_judiciary.in

89
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XVII
COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES

Sections 227 – 233

Section 227: Issue of process.—
1. If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be
• Summons-case: Magistrate issues summons to the accused.
• Warrant-case: Magistrate may issue a warrant or if he thinks fit, a summons
o Electronic Means: Summons or warrant may also be issued electronically.

2. Prosecution Witnesses:

o No summons or warrant shall be issued until a list of prosecution witnesses is filed.

3. Copy of Complaint:

o In a proceeding on a written complaint, summons or warrant must be accompanied

by a copy of the complaint.

4. Process Fees:

o Process will not be issued until fees (if payable) are paid.

o If fees are unpaid within a reasonable time, the complaint may be dismissed.

o This section does not affect the provisions of Section 90.

Section 228: Magistrate May Dispense with Personal Attendance of Accused

o Magistrate may allow the accused to appear through an advocate instead of personal
attendance.

o At any stage, the Magistrate may direct the personal attendance of the accused and
enforce it if necessary.

Section 229:Special Summons in Cases of Petty Offence

1. Summary Disposal:

o For petty offences, Magistrate may issue summons requiring the accused to:

▪ Appear in person or through an advocate, or

▪ Plead guilty by submitting a written plea and fine before the specified date.

2. Definition of Petty Offence:

o An offence punishable only with a fine not exceeding ₹5000.

o Excludes offences under the Motor Vehicles Act, 1988, or other laws allowing
conviction in absentia.

3. State Government Notification:

o State Govt may, by notification, specially empower any Magistrate to deal with
compoundable offences or offences punishable with imprisonment of up to three
months or fine, or both.

Section 230: Supply to Accused of Copy of Police Report and Other Documents

1. In cases instituted on a police report, the Magistrate shall provide the accused and the
victim (if represented by an advocate):

90
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o Copy of the police report.

o Copy of the FIR recorded under Section 173.

o Statements of witnesses under Section 180(3), excluding parts requested for

exclusion.

o Confessions and statements under Section 183.

o Other documents forwarded under Section 193(6).

Provisos:

• The Magistrate may exclude portions of statements after considering police requests.(If he
thinks fit can give)

• Voluminous documents may be provided electronically or through inspection.

• Supply of electronic copies is deemed as duly furnished.

P Gopalakrishnan v. State of Kerala, 2020 Furnishing of documents required u/s 207 CRPC (230
BNSS)is a facet of right of accused to a fair trial under article 21 of constitution.

Section 231:Supply of Copies of Statements and Documents to Accused in Other Cases Triable
by Court of Session

1. In non-police report cases(Complaint case+Cos trible):

o Magistrate shall furnish the accused with:

▪ Statements under Sections 223 or 225.

▪ Statements and confessions under Sections 180 or 183.

▪ Documents relied upon by the prosecution.

Provisos: Follow us on instagram@innovative_judiciary.in

• Voluminous documents may be provided electronically or through inspection.

• Supply of electronic copies is deemed as duly furnished.

Section 232:Commitment of Case to Court of Session When Offence is Triable Exclusively by It

1. When the offence is exclusively triable by the Court of Session, the Magistrate shall:

o Commit the case to the Court of Session.

o subject to the provisions of this Sanhita relating to bail, remand the accused to
custody during, and until the conclusion of, the trial;

o Send the record of the case, documents, and evidence articles to the Court of
Session.

o Notify the Public Prosecutor of the commitment.

Time Limit:

• Proceedings must be completed within 90 days from cognizance.

• Extendable up to 180 days for recorded reasons.

Forwarding Applications:

91
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Applications by the accused, victim, or authorized persons must be forwarded to the Court of
Session.

Section 233: Stay of Proceedings in Complaint Case When Police Investigation is in Progress

1. Stay of Inquiry/Trial:

o When in a complaint case, it is made to appear to the Magistrate, during the course of
the inquiry or trial held by him that a police investigation is in progress regarding the
same offence, the Magistrate shall stay proceedings and call for a police report.

2. Joint Inquiry or Trial:

o If the police report leads to cognizance against the same accused, the Magistrate shall
inquire or try both cases together as police report cases.

3. Resumption of Proceedings:

o If the police report does not involve the accused or if no cognizance is taken, the
Magistrate shall proceed with the stayed trial or inquiry.

Follow us on instagram@innovative_judiciary.in

92
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XVIII
The Charge

Sections 234 – 247

Q. What do you mean by charge?

Statutory meaning: As per S 2(1)(f) of "charge" includes any head of charge when the charge contains
more heads than one.

General meaning -"a written formal accusation or allegation made by the court."

Section 234:Contents of Charge

Charge Must State the

Offence

Specific Name:if offence has

Definition if No Specific
Name: to give notice to
accused

Contents The relevant section of the

of Charge law

that all legal conditions for

the offence have been
fulfilled.

The charge must be written

in the language of the Court. If enhanced punishment is
based on a prior conviction,
details like fact, date, and
place of previous conviction
PREVIOUS CONVICTION must be mentioned.

The Court may add this at

any time before sentencing if
omitted earlier.

Follow us on instagram@innovative_judiciary.in

Section 235:Particulars as to Time, Place, and Person

93
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

1. The charge must include sufficient particulars:

o Time and place of the alleged offence.

o Person or thing involved, to give notice to the accused.

2. Criminal Breach of Trust or Misappropriation:

o It is sufficient to state:

▪ The gross sum or describe the movable property.

▪ The dates (not exceeding one year) within which the offence was committed.

Section 236:When Manner of Committing Offence Must Be Stated

• If Sections 234 and 235 are insufficient to give notice to the accused, the charge must state
the manner in which the offence was committed.

Illustrations:

• Theft, cheating, false evidence, obstructing a public servant, murder, disobedience to law.

Section 237: Words in Charge Taken in Sense of Law Under Which Offence is Punishable

• Words in a charge describing an offence must be understood as per their legal definition
under the relevant law.

Q.) Is a defective charge necessarily fatal to conviction?

Section 238: Effect of Errors

1. Errors or omissions in stating the offence or particulars are immaterial unless:

o The accused was misled.

o A failure of justice occurred.

Illustrations:

(d) A is charged with the murder of Khoda Baksh on the 21st January, 2023. In fact, the murdered
person's name was Haidar Baksh, and the date of the murder was the 20th January, 2023. A was
never charged with any murder but one, and had heard the inquiry before the Magistrate, which
referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not
misled, and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 2023, and Khoda Baksh (who
tried to arrest him for that murder) on the 21st January, 2023. When charged for the murder of
Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were
witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the
error was material.

Alteration or Addition of Charge: [Sections 239 & 240]

Q. Can a court alter the charge? If so how and up to what stage?

Section 239: Court May Alter Charge

1. The Court may alter or add to any charge at any time before judgment.

94
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Procedure after amending the charge -

2. The altered charge must be read and explained to the accused.

3. If no prejudice is caused, the trial may proceed as if the altered charge was original.

4. If prejudice is likely, the Court may:

o Adjourn the trial, or

o Direct a new trial.

5. Previous Sanction:

o If the altered charge requires prior sanction, the case cannot proceed without it.

Section 240: Recall of Witnesses When Charge Altered

1. Upon alteration of a charge, the prosecutor and accused may:

o Recall or re-examine witnesses related to the altered charge.

o Call additional witnesses if material.

2. Recall requests may be denied if found vexatious or delaying justice.

Note: There is a system of framing of charges in the Criminal Court, whereas in the Civil Court, issues
are framed under Order 14 of CPC. In BNSS, the power to amend charges before pronouncing the
judgment, is given u/s 239. whereas in CPC Court may at any time before passing a decree amend &
strike out issues under Order 14 Rule 5.

JOINDER OF CHARGES

"For Every distinct offence of which any person is accused, there shall be a separate charge and
every charge shall be tried separately". State the exception to this Rule.

Section 241: Separate Charges for Distinct Offences

1. For every distinct offence, a separate charge must be framed and tried.

2. Exception:

o The accused may request a joint trial if no prejudice is caused.

3. Other Sections:

o Section 242, 243, 244, and 246 remain unaffected.

Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC 1248- The provisions regarding the
exceptions have only enabling nature, and it is at the discretion of the Courts whether to apply them to
a particular case. The accused has not been given this right to resort to joinder of charges.

Section 242: Offences of Same Kind Within Year May Be Charged Together

1. A person accused of more offences of the same kind (within 12 months) may be charged and
tried for up to five offences at one trial.

2. Offences of Same Kind:

o Punishable under the same section.

o Sections 303(2) and 305, BNS 23, refer to theft and theft in a building and are
deemed to be offences of the same kind.

o Attempt to commit the offence is treated as the same kind.

95
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 243:Trial for More Than One Offence

1. A person may be charged for all offences arising out of a single transaction.

ILLUS-A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a
constable in whose custody B was. A may be charged with, and convicted of, offences under
sub-section (2) of section 121 and section 263 of the Bharatiya Nyaya Sanhita, 2023.

Naresh Kakkar v State, 1995: Where some heroin was recovered from the attachi being taken
by the accused on the road and subsequently 2 kg more heroin was recovered from his house
on his disclosure statement, it was held that both the recoveries formed one single transaction
and both the charges be clubbed together and single composite trial be held.

2. For criminal breach of trust or misappropriation:

o Falsification of accounts to facilitate the offence may also be tried.

3. Offences falling in one or more definitions: The subsection refers to a totality of acts some of
which bring the case under one definition of an offence and some under another. & the person
accused of them may be charged with, and tried at one trial for, each of such offences.

ILLUS: Several stolen sacks of corn are made over to A and B, who knew they are stolen property, for
the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks
at the bottom of a grain-pit. A and B may be separately charged with, and convicted of, offences under
sub-sections (2) and (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023.

4. Acts constituting different offences when combined:

➢ If several acts, of which one or more than one would by itself or themselves constitute an
offence,
➢ constitute (when combined) a different offence,
➢ the person accused of them may be charged with and tried at one trial for the offence
constituted by such acts when combined, and for any offence constituted by anyone, or more,
of such acts.
Illus- A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately
charged with, and convicted of, offences under sub-section (2) of section 115 and sub-sections (2)
and (4) of section 309 of the Bharatiya Nyaya Sanhita, 2023.

5. Nothing contained in this section shall affect section 9 of the Bharatiya Nyaya Sanhita,
2023.

Section 244:Where it is Doubtful What Offence Has Been Committed

1. If facts make it unclear which offence occurred, the accused may:

o Be charged with all possible offences.

o Be charged in the alternative.

Illustration (a) A is accused of an act which may amount to theft, or receiving stolen property, or
criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal
breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen
property, or criminal breach of trust or cheating.

Illustration (c) A states on oath before the Magistrate that he saw B hit C with a club. Before the
Sessions Court, A states on oath that B never hit C., A may be charged in the alternative and
convicted of intentionally giving false evidence, although it cannot be proved which of these
contradictory statements was false.

96
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

2. If in such a case the accused is charged with one offence, and it appears in evidence that he
committed a different offence for which he might have been charged under the provisions of
sub-section (1), he may be convicted of the offence which he is shown to have committed,
although he was not charged with it.

Illustration (b) In the case mentioned in illustration (a), A is only charged with theft. It appears that he
committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted
of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged
with such offence.

Section 245: When Offence Proved is Included in Offence Charged

1. When a person is charged with an offence consisting of several particulars,

• a combination of some only of which constitutes a complete minor offence,

• and such combination is proved,
• but the remaining particulars are not proved,
• he may be convicted of the minor offence, though he was not charged with it.

Robbery is minor offence as compared to the Dacoity.

Q.can a person charged with an offence, which on facts proved reduces it to a minor offence, be
convicted of that minor offence although he was not charged with it? 245(2)

2. When a person is charged with an offence and

➢ facts are proved which reduce it to a minor offence,

➢ he may be convicted of the minor offence, although he is not charged with it.

ILLUS- (b) A is charged, under sub-section (2) of section 117 of the Bharatiya Nyaya Sanhita, 2023,
with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be
convicted under sub-section (2) of section 122 of that Sanhita.

3. A conviction for an attempt is possible even if it is not separately charged.

4. Nothing in this section shall be deemed to authorise a conviction of any minor offence where
the conditions requisite for the initiation of proceedings in respect of that minor offence have
not been satisfied

Section 246: What Persons May Be Charged Jointly

• Persons may be tried jointly for:

o Same offence in the same transaction.

o Offence and its abetment or attempt.

o Joint offences of the same kind (within 12 months).

o Different offences in the same transaction.

o Offences like theft, extortion, and persons accused of receiving or retaining, or

assisting in the disposal or concealment of, property possession

o persons accused of offences under sub-sections (2) and (5) of section 317 of the
Bharatiya Nyaya Sanhita, 2023 or either of those sections in respect of stolen
property the possession of which has been transferred by one offence

o persons accused of any offence under Chapter X of the Bharatiya Nyaya Sanhita,
2023 relating to counterfeit coin and persons accused of any other offence under the
said Chapter relating to the same coin, or of abetment of or attempting to commit any

97
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

such offence; and the provisions contained in the former part of this Chapter shall, so
far as may be, apply to all such charges.

Proviso:

• Accused persons not falling within these categories may jointly request a trial, subject
to no prejudice.

Section 247: Withdrawal of Remaining Charges on Conviction on One of Several Charges

1. If a conviction occurs for one or more charges, the remaining charges may be:

o Withdrawn with Court consent.

o Stayed by the Court.

2. Withdrawal is treated as acquittal unless the conviction is set aside.

Follow us on instagram@innovative_judiciary.in

98
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Different kinds of trials

Trial: The proceeding commence after the framing of charges is known as trial.

Types of Trial
procedures

Trial of Warrant
Trial before a Trial of Summons
cases by
Sessions Court cases by Magistrates Summary Trials
Magistrates(Warrant
(Sessions Trial), (Summons Trial)
Trial)

Chapter 19 Chapter 20 Chapter 21 Chapter 22

warrant cases
warrant cases
instituted otherwise
instituted on Police
than on a Police
Report
Report.

Trial Before Trial Before Magistrate

Particulars COS Magistrate (Instituted (Otherwise on Police Summon Case
on Police Report) Report)

Public
Who will Prosecutor
APP APP APP
present (Sec 248,
249)

Substance of
- - - Sec 274(1)
accusation

Discharge Sec 250 Sec 262 Sec 268(1), 268(2) Sec Sec 274(2)

Framing
Sec 251 Sec 263 Sec 269(1), 269(2) -
Charge

99
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Conviction
on plea of Sec 252 Sec 264 Sec 269(3) Sec 275/276
guilty

Prosecution Sec Sec 267(1), 267(2)(pre

Sec 265 Sec 277
Evidence 253/254 charge evidence)

Acquittal Sec 255 - -

(Examine
Sec 351 Sec 351 Sec 351 Sec 351
Accused)

Defence
Sec 256 Sec 266 Sec 270 Sec 277
Evidence

Argument Sec 257 Sec 352 Sec 352 Sec 257

Judgment
(Acquittal or Sec 258 Sec 271 Sec 271 Sec 278
Conviction)

Follow us on instagram@innovative_judiciary.in

Chapter XIX
Trial Before a Court of Session

Sections 248 – 260

Q. Briefly describe the procedure for trial before the court of session.

• in cases where an offence is exclusively tried by Sessions Court, it cannot take cognizance of
such an offence. (Sec 213)
• According to Section 232, A competent Magistrate may take cognizance of such an offence and
then commit the case to the Court of Sessions for Trial.
• Although S. 222(2) acts as an exception to this where a Court of Sessions may directly take
cognizance of an offence without the case being committed to it in case of defamation of high
dignitaries and public servants.

PROCEDURE BEFORE COS’s TRIAL

Section Heading Details

The trial must be initiated and conducted by

248 Trial to be conducted by Public Prosecutor
the Public Prosecutor.

100
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

the prosecutor shall open his case by

describing the charge brought against the
249 Opening case for prosecution
accused and stating by what evidence he
proposes to prove the guilt of the accused.
The accused may prefer an application for
discharge within a period of sixty days from
the date of commitment of the case under
250 Discharge of accused section 232
If the Judge finds insufficient grounds to
proceed, the accused is discharged with
reasons recorded.
- Not exclusively triable by the Court of
251 Framing of charge Session: Charge is framed and case transferred
TO CJM or any competent JM 1

- Exclusively triable by the Court of Session:

Charge is framed within 60 days of the first
hearing.

Charge is read to the accused (physically or

Charge explained to the accused via electronic means), and they are asked to
plead guilty or claim trial.

If the accused pleads guilty, the Judge records

252 Plea of guilty(CONVICTION)
the plea and may convict them.

A date is fixed for presenting evidence by the

253 Date for prosecution evidence
prosecution.

Prosecution presents and examines evidence

to prove their case.may be recorded by audio
video means.
254 Evidence for prosecution
The deposition of evidence of any public
servant may be taken through audio-video
electronic means.
If there is no evidence against the accused,
255 Acquittal
the Judge records an order of acquittal.

351
Power to examine accused.

The defence presents its evidence and

256 Entering upon defence
arguments.
Both sides present their final arguments and
257 Arguments
legal points.
258 Judgment Judgment is delivered:
- Within 30 days of arguments completion.
which may be extended to a period of forty-five
days for reasons to be recorded in writing.
If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 401, hear the accused on
the questions of sentence

101
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 259

Previous conviction.

• When a previous conviction is alleged under Section 234(7) and denied by the accused, the
Judge may take evidence regarding the prior conviction only after the accused is convicted
under Section 252 or Section 258.
• The Judge must record a finding on the alleged previous conviction after considering the
evidence.
• The charge of the prior conviction cannot be:

o Read out by the Judge.

o Referred to by the prosecution or its evidence.

o Plead to by the accused before conviction under Section 252 or Section 258.

Section 260:Procedure in cases instituted under sub-section (2) of section 222.

• Sessions Court tries offences under Section 222(2) as warrant-cases (not on police reports).

• Victim is generally examined as a prosecution witness unless otherwise directed by the Court.

• Trial can be held in camera if either party requests or the Court deems fit.

• If accused are discharged/acquitted and the accusation is baseless, the Court may direct the
victim to show cause for paying compensation up to ₹5,000.

• Compensation is treated as a fine and does not exempt civil/criminal liability.

• Appeals against compensation orders can be filed in the High Court.

• Compensation is withheld until the appeal period ends or the appeal is resolved.
Follow us on instagram@innovative_judiciary.in

CHAPTER XX

TRIAL OF WARRANT-CASES BY MAGISTRATES

Sections 261 - 273

A. Cases instituted on police report Sections 261 - 266

Follow us on instagram@innovative_judiciary.in

Sec 193 requires a final report of the police officer as soon as investigation is completed to the
Magistrate. The report u/s 173(3) is called Completion Report or Charge Sheet.

Sections 261 to 266 deals with the procedure of trial of warrant-case instituted on a police
report

Section Section Heading Key Provisions

261 Compliance with Section 230 Magistrate must ensure compliance with Section 230 (copy
of documents to accussed/victim)

102
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

262(1) Application for Discharge Accused can apply for discharge within 60 days from
receiving documents under Section 230.

262(2) Discharge of Accused If the charge is groundless, the Magistrate will discharge
the accused, recording reasons after considering evidence
and hearings.

263(1) Framing of Charge If there are grounds to presume the accused has
committed an offence, the Magistrate will frame charges in
writing within 60 days.

263(2) Explanation of Charge Charges are read and explained to the accused, who must
plead guilty or claim trial.

264 Plea of Guilty and Conviction If the accused pleads guilty, the Magistrate may record the
plea and convict the accused at his discretion.

265(1) Fixing Date for Examination of If the accused does not plead guilty or claims trial, the
Witnesses Magistrate will fix a date for examining witnesses.

265(2) Supply of Witness Statements Witness statements recorded during the investigation
must be supplied to the accused in advance.

265(3) Summoning of Witnesses and Prosecution witnesses may be summoned, and evidence
Evidence Recording will be recorded; cross-examination and recall allowed as
needed.

351.Power to examine accused.

266(1) Call for Defence Evidence Accused will be called to present their defence and may
submit written statements to the record.

266(2) Request for Summoning Accused may request the Magistrate to summon witnesses
Defence Witnesses/Documents or documents unless it is vexatious or delays justice.
Dharamrajan v. State of Kerala 2002: The accused
submitted a list of 45 defence witnesses; the court allowed
12, rejecting the rest with valid reasons, as the list
appeared intended to delay proceedings. The rejection was
held proper.
266(3) Expenses for Witness Magistrate may require deposition of reasonable expenses
Attendance for witnesses summoned for the trial.

271 Judgment (Acquittal or If the Magistrate finds the accused not guilty, an order of
conviction) acquittal is recorded.
If the accused is found guilty, the Magistrate, after
hearing the accused on the question of sentence, shall
pass sentence according to law (unless Sections 364 or
401 apply).
If a previous conviction is alleged under Section 234(7)
and the accused denies it:
• Evidence of the previous conviction is considered
only after conviction for the current charge.
• No reference to the prior conviction is allowed
before the current conviction, including reading
the charge, asking the accused to plead, or
evidence by the prosecution.

103
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

B. Cases instituted otherwise than on police report –

S. 268 to 270 provide for trial on this point.

Section Section Heading Key Provisions

Evidence for Prosecution(Pre Magistrate hears the prosecution and records all evidence
267(1)
charge evidence) produced in support of the prosecution.

Magistrate may, on the prosecution’s application, summon

267(2) Summoning Witnesses witnesses to attend or produce documents or other
materials.

If evidence shows no case against the accused that would

268(1) Discharge of Accused warrant conviction, the Magistrate shall discharge the
accused and record reasons.

Magistrate may discharge the accused at any earlier stage

268(2) Early Discharge if the charge is found to be groundless, with reasons
recorded.

If evidence suggests grounds for presuming the accused

269(1) Framing of Charge has committed an offence, the Magistrate frames a written
charge.

The charge is read and explained to the accused, who is

269(2) Explanation of Charge
asked to plead guilty or present a defence.

If the accused pleads guilty, the Magistrate records the

269(3) Conviction on Plea of Guilty
plea and may convict the accused at discretion.

If the accused refuses to plead or claims trial, the

269(4) Refusal to Plead Magistrate will determine if the accused wants to cross-
examine witnesses from the prosecution's evidence.
Witnesses named by the accused for cross-examination
Cross-Examination of
269(5) are recalled, cross-examined, re-examined, and
Witnesses
discharged.
Remaining Prosecution Remaining prosecution witnesses are examined, cross-
269(6)
Evidence examined, re-examined, and discharged.

If prosecution witnesses cannot be secured despite efforts,

Unavailable Prosecution
269(7) their evidence is deemed unexamined, and the Magistrate
Witnesses
proceeds with the case based on available material.

Personal examination of the Accused - According to section 351, the court shall conduct a personal
examination of the accused immediately after the prosecution's evidence is over.

Accused is called upon to present their defence, and

270 Evidence for Defence
Section 266 provisions apply.
271 Judgment (Acquittal or If the Magistrate finds the accused not guilty, an order of
conviction) acquittal is recorded.
If the accused is found guilty, the Magistrate, after
hearing the accused on the question of sentence, shall
pass sentence according to law (unless Sections 364 or
401 apply).
If a previous conviction is alleged under Section 234(7)
and the accused denies it:
• Evidence of the previous conviction is considered
only after conviction for the current charge.

104
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• No reference to the prior conviction is allowed

before the current conviction, including reading
the charge, asking the accused to plead, or
evidence by the prosecution.

Sec 272:Absence of complainant in warrant cases- Follow us on instagram@innovative_judiciary.in

In warrant cases instituted upon a complaint, If the offence is compoundable or not cognizable and
the complainant remains absent on the hearing date:

• The Magistrate may grant 30 days for the complainant to appear.

• The Magistrate may, at their discretion, discharge the accused, provided no charge has been
framed.

Sec 273:Compensation for accusation without reasonable cause.

(1): If the accused is discharged or acquitted and there was no reasonable ground for the accusation,
the Magistrate may order the complainant/informant to show cause why compensation should not be
paid to the accused.

(2): The Magistrate, upon finding no reasonable ground for the accusation, may order the
complainant/informant to pay compensation (not exceeding the fine amount the Magistrate is
empowered to impose), with reasons recorded.

(3): In default of payment, the Magistrate may order the complainant/informant to undergo simple
imprisonment for up to 30 days.

(5): Payment of compensation under this section does not exempt the complainant/informant from
civil or criminal liability, but any amount paid is considered in subsequent civil suits.

(6): If the compensation ordered exceeds ₹2,000 by a Magistrate of the second class, the
complainant/informant may appeal as if convicted.

(7): Compensation to the accused is withheld until the appeal period ends or, if an appeal is filed,
until the appeal is decided. If no appeal applies, payment is delayed by one month from the order
date.

(8): The section applies to both summons-cases and warrant-cases.

Follow us on instagram@innovative_judiciary.in

CHAPTER XXI

TRIAL OF SUMMONS-CASES BY MAGISTRATES

Sections 274 – 282

• in summon cases, punishment shall not exceed imprisonment for 2 years.

Section Section Heading Key Provisions

Substance of Accusation to be - Accused is informed of the particulars of the offence and
274
Stated asked to plead guilty or present a defence.
- No formal charge is required.

- If the accusation is groundless, the Magistrate may

release the accused, with such release having the effect of
discharge.

105
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

- If the accused pleads guilty, the plea is recorded as

275 Conviction on Plea of Guilty
nearly as possible in the accused's words.

- Magistrate may, at discretion, convict the accused based

on the plea.
Conviction on plea of guilty in
- Accused may plead guilty by sending a letter and fine
276 absence of accused in petty
amount to the Magistrate u/s 229.
cases.
- Magistrate may convict the accused in their absence or
accept a plea made by an authorized advocate and convict
accordingly.

- If the accused is not convicted under Section 275 or 276,

277(1) Procedure When Not Convicted the Magistrate proceeds to hear evidence from both
prosecution and defence.

- Magistrate may issue summons to witnesses for

277(2) Summoning Witnesses attendance or production of documents at the request of
prosecution or accused.

- Magistrate may require expenses for summoned

277(3) Witness Expenses
witnesses to be deposited in Court.

- If evidence shows the accused is not guilty, the

278(1) Acquittal
Magistrate records an order of acquittal.

- If the Magistrate finds the accused guilty, a sentence is

278(2) Conviction and Sentence
passed according to law.

Section 279: Non-appearance or death of complainant.—

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the
accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does
not appear, after giving thirty days' time to the complainant to be present

the Magistrate

• acquit the accused,

• adjourn the hearing of the case to some other day:
• Proviso: where the complainant is represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of opinion that the personal attendance of the
complainant is not necessary, the Magistrate may, dispense with his attendance and proceed
with the case.
• (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-
appearance of the complainant is due to his death.

Section 280:Withdrawal of complaint.

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies
the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against
the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit
him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so
withdrawn.

Section 281:Power to stop proceedings in certain cases.

• Applicable to summons-cases not instituted on a complaint.

• Magistrate of the first class or any other Judicial Magistrate (with prior sanction of the Chief
Judicial Magistrate) may stop proceedings at any stage.

106
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Reasons for stopping proceedings must be recorded.

If proceedings are stopped after recording evidence of principal witnesses:

• Judgment of acquittal is pronounced.

If proceedings are stopped before recording principal witnesses' evidence:

• Accused is released, with the release having the effect of discharge.

Section 282:Power of Court to convert summons-cases into warrant-cases.—

When in the course of the trial of a summons-case relating to an offence punishable with imprisonment
for a term exceeding 6 months, it appears to the Magistrate that in the interests of justice, the offence
should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate

➔ may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases
and

➔ may re-call any witness who may have been examined.

Follow us on instagram@innovative_judiciary.in

CHAPTER XXII

SUMMARY TRIALS

Sections 283 - 288

Section 283:Power to Try Summarily

1. Magistrates Empowered:

o Chief Judicial Magistrates.

o Magistrates of the First Class.

2. Offences Triable in Summary Way:

o Theft under sections 303(2), 305, or 306 if value ≤ ₹20,000.

o Receiving or retaining stolen property under section 317(2) if value ≤ ₹20,000.

o Assisting concealment/disposal of stolen property under section 317(5) if value

≤ ₹20,000.

o Offences under sections 331(2) and 331(3).(House trespass & house breaking
related)

o Insult to provoke breach of peace (Section 352) or criminal intimidation

(Sections 351(2), 351(3)).

o Abetment or attempt to commit the above offences.

o Offences under Section 20 of the Cattle-trespass Act, 1871.

3. General Powers:

o Any offence not punishable with death, life imprisonment, or imprisonment > 3
years can also be tried summarily if deemed fit (reasons to be recorded).

o Proviso: No appeal against the decision to try summarily.

4. Transfer to Regular Trial:

107
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o If the Magistrate deems summary trial undesirable, the case can be converted to
a regular trial (witnesses to be recalled).

Section 284: Summary Trial by Magistrates of the Second Class

• High Courts may confer summary trial powers for offences punishable only with fine or
imprisonment ≤ 6 months (with or without fine), including abetment or attempts.

Section 285: Procedure for Summary Trials

• Follow the procedure for summons cases, except:

o Sentence cannot exceed 3 months imprisonment.

Section 286: Record in Summary Trials

• The Magistrate must maintain a record of:

o Serial number.

o Dates of offence, report, or complaint.

o Complainant’s details (if any).

o Accused’s details (name, parentage, residence).

o Offence complained of and proved.

o Plea of the accused and examination (if any).

o Finding, sentence, or final order.

o Date of termination.

Section 287: Judgment in Summary Trials

• If the accused pleads not guilty:

o Magistrate must record evidence's substance and provide a brief judgment with
reasons.

Section 288: Language of Records and Judgment

1. Records and judgments must be in the court's language.

2. High Court may authorize Chief Judicial Magistrates to appoint officers for record/judgment
preparation, signed by the Magistrate.

Follow us on instagram@innovative_judiciary.in

108
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXIII

PLEA BARGAINING

Sections 289 - 300

Section 289: Application of Chapter

1. Applicability:

o Applies to offences where:

▪ The maximum punishment does not exceed 7 years.

▪ No punishment for death or life imprisonment is prescribed.

o Includes cases where:

▪ Police report is filed under Section 193.

▪ Magistrate has taken cognizance on a complaint under sec 223 and issued
process under Section 227.

2. Exceptions:

o Offences affecting the socio-economic condition of the country.

o Offences against women or children.

3. Notification by Central Government:

o Central Government shall notify offences affecting socio-economic conditions.

Section 290: Application for Plea Bargaining

o Timeline: Application must be filed within 30 days of the framing of charges.

2. Application Details:

o Brief description of the case and offence.

o Affidavit by the accused stating:

▪ Application is voluntary.

▪ Understanding of punishment.

▪ No prior conviction for the same offence.

3. Procedure:

o Court issues notice to:

▪ Public Prosecutor.

▪ Complainant.

▪ Accused.to appear on fixed date

o In-camera examination of the accused to ensure voluntariness.

4. Outcomes of Examination:

o If court satisfied it is a Voluntary Application: Court allows up to 60 days for a

mutually satisfactory disposition which may include giving to the victim by the

109
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

accused the compensation and other expenses during the case and thereafter fix the
date for further hearing of the case

o Involuntary Application: Case proceeds as per normal trial provisions.

Section 291: Guidelines for Mutually Satisfactory Disposition

1. Notice for Meeting:

o Police Report Cases:

▪ Public Prosecutor.

▪ Investigating officer.

▪ Accused and victim.

o Complaint Cases:

▪ Accused and victim.

2. Accused may involve their advocate if desired.

3. Court ensures the process remains voluntary throughout.

Section 292: Report of Mutually Satisfactory Disposition

1. Successful Disposition:

o Court prepares a report signed by all participants and presiding officer of the Court.

2. Failure of Disposition:

o Court records observations and proceeds with the trial from the stage of application
filing.

Section 293: Disposal of Case

a. Court awards compensation to the victim as per the disposition.Parties are heard on:
▪ Quantum of punishment.

▪ Probation or admonition under Section 401 or Probation of Offenders Act,

1958.

b. after hearing the parties under clause (a), if the Court is of the view that section 401 or
the provisions of the Probation of Offenders Act, 1958 or any other law for the time
being in force are attracted in the case of the accused, it may release the accused on
probation or provide the benefit of any such law;

c. Minimum Punishment Provided: if the Court finds that minimum punishment has
been provided under the law

▪ Accused may be sentenced to half the minimum punishment.

▪ First-Time Offenders: Sentence may be reduced to one-fourth of the

minimum punishment

d. If ,the Court finds that the offence committed by the accused is not covered under
clause (b) or clause (c), then, it may sentence the accused to one-fourth of the
punishment provided. First-Time Offenders: Sentence may be reduced to one-fourth
of the minimum punishment
Follow us on instagram@innovative_judiciary.in

Section 294: Judgment of Court

110
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

▪ Judgment is delivered in open court.

▪ Signed by the presiding officer.

Section 295: Finality of Judgment

1. No Appeal:

o No appeal lies against the judgment except:

▪ Special Leave Petition under Article 136.

▪ Writ petitions under Articles 226 and 227.

Section 296: Power of Court in Plea Bargaining

▪ Court retains all powers regarding bail, trial, and disposal of the case.

Section 297: Set-Off for Detention

▪ Period of detention undergone by the accused is set off against the sentence
of imprisonment.

Section 298: Overriding Effect

▪ Provisions of this chapter override any inconsistent provisions of the Sanhita.

▪ Includes Assistant Public Prosecutor appointed under Section 19.

Section 299: Protection of Statements

▪ Statements made in plea bargaining applications cannot be used for any

other purpose except under this chapter.

Section 300: Non-Applicability to Juveniles

▪ Provisions do not apply to juveniles or children as defined under the Juvenile

Justice (Care and Protection of Children) Act, 2015.

Follow us on instagram@innovative_judiciary.in

111
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XXIV

Attendance of Persons Confined or Detained in Prisons

Sections 301 - 306

Section 301: Definitions

• Detained: Includes detention under preventive detention laws.

• Prison: Includes:

o Subsidiary jails (declared by the State Government).

o Reformatories, Borstal institutions, or similar institutions.

Section 302:Power to Require Attendance of Prisoners

• Authority of Criminal Court:

o To order the production of a prisoner for:

▪ Answering charges.

▪ Proceedings or giving evidence.

• Magistrate of Second Class:

o Order requires countersignature of the Chief Judicial Magistrate.

o Must provide a statement of facts justifying the order.

• Chief Judicial Magistrate:

o May decline to countersign after considering the statement.

Section 303:Power of State/Central Government to Exclude Certain Prisoners

• Considerations for Exclusion:

o Nature of the offence or detention grounds.

o Likelihood of public order disturbance.

o Public interest.

Section 304: Officer in charge of prison to abstain from carrying out order in certain
contingencies

• Reasons for Officer in Charge to Abstain:

o Prisoner is unfit for removal due to sickness or infirmity.

o Prisoner is under trial, remand, or preliminary investigation.

o Custody period will expire before compliance with the order.

o Prisoner is covered under a government exclusion order (Section 303).

• Exception:

o For giving evidence within 25 km, removal cannot be avoided under reason (b).

Section 305: Production of Prisoner in Court in custody.

• Officer in Charge of Prison:

112
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o Complies with duly countersigned orders.

o Ensures prisoner is:

▪ Brought to court as per the specified time.

▪ Kept in custody near the court until examination or further instructions.

Section 306: Commission for Examination in Prison

o Can issue a commission under Section 319 for the examination of prisoners as
witnesses.

CHAPTER XXV

EVIDENCE IN INQUIRIES AND TRIALS

Sections 307 - 336

Q. Who determines the language of Courts within a State, excluding the High Court?

Section 307: Language of Courts

• The State Government determines the language of each court within the State, except for the
High Court.

Article 348(1) of the Indian Constitution of provides that all proceedings in the Supreme Court and in
every High court shall be in English Language until Parliament by law otherwise provides.

Under Article 348 (2), the Governor of the State may, with the previous consent of the President,
authorize the use of the Hindi language or any other language used for any official purpose of the State,
in the proceedings of the High Court having its principal seat in that State provided that decrees,
judgments or orders passed by such High Courts shall be in English.

Q. The general rule is that Evidence to be taken in presence of accused.is there any exception?

Section 308: Evidence to be Taken in Presence of Accused

• All evidence in trials or proceedings must be taken in the presence of the accused or their
advocate, including through audio-video means.

• Special provision for women under 18 years alleging sexual offenses:

o The court ensures the woman is not confronted by the accused while ensuring the
accused's right to cross-examination. Follow us on instagram@innovative_judiciary.in

State of Maharashtra v. Dr Praful B Desai, 2003: evidence can also be taken through video
conferencing.

There are some exceptions of this section, which are as follows:

Section 228- Magistrate may dispense with personal attendance of accused.

Section 335: Record of Evidence in Absence of Accused

Examination of Witnesses in Absence of Absconding Accused:

• If an accused has absconded and there is no immediate prospect of arrest, the court
competent to try or commit the accused for trial can:

o Examine the witnesses produced by the prosecution.

o Record their depositions in the absence of the accused.

113
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Such depositions can later be used as evidence against the accused upon their arrest,
provided:

o The witness is dead.

o The witness is incapable of giving evidence.

o The witness cannot be found.

o The witness’s presence cannot be procured without unreasonable delay, expense, or

inconvenience.

Inquiry into Offenses Committed by Unknown Persons:

• For offenses punishable with death or life imprisonment committed by unknown persons:

o The High Court or Sessions Judge can direct a First Class Magistrate to:

▪ Hold an inquiry.

▪ Examine witnesses who can provide evidence regarding the offense.

• The depositions recorded in such an inquiry may later be used as evidence against any
person subsequently accused of the offense, provided:

o The witness is dead.

o The witness is incapable of giving evidence.

o The witness is beyond the limits of India.

Sec 355-Provision for inquiries and trial being held in absence of accused in certain cases-

The Judge or Magistrate may dispense with the accused's personal attendance during an inquiry or
trial

- if their presence is not necessary for justice or

- if they disrupt proceedings, provided they are represented by an advocate. However, the court
can later direct their personal attendance.

If the accused is not represented by an advocate or their personal attendance is deemed necessary,
the court may adjourn the proceedings or order a separate trial for the accused, with reasons
recorded.

Explanation: Personal attendance includes appearance via audio-video electronic means.

Section 356: Trial in Absentia for Proclaimed Offenders:

1. If a proclaimed offender absconds to evade trial, it is deemed as a waiver of their right to be

present. The court may proceed with the trial in their absence after recording reasons, provided 90
days have passed since the framing of charges.
Before initiating the trial, the court must ensure:

• Issuance of two arrest warrants with at least a 30-day gap.

• Publication of notice in newspapers, asking the offender to appear within 30 days.
• Informing a relative or friend about the trial. and
• Affixing trial information at the offender's last known residence and the local police station.

If the proclaimed offender lacks legal representation, the state will appoint an advocate for their defense.

Depositions of prosecution witnesses recorded in the offender’s absence can be used as evidence. If the
offender is later arrested, they may be allowed to examine prior evidence in the interest of justice.

114
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Witness testimonies should preferably be recorded using audio-video means, such as mobile phones,
and preserved as directed by the court.

If the accused voluntarily absents themselves after the trial begins, it can proceed to conclusion,
including judgment, even if they later appear or are arrested.

No appeal against the judgment is allowed unless the proclaimed offender appears before the appellate
court. Appeals against convictions are barred after three years from the judgment date.

The State may extend these provisions to absconders under Section 84 through a notification.
Follow us on instagram@innovative_judiciary.in

Q. How should evidence be recorded in summons-cases,warrant cases and trial before COS or
inquiries?

Section 309: Record in Summons-Cases and Inquiries

1. In summons-cases and inquiries:

o Magistrates must make a memorandum of witness evidence in the court's language

during examination.

o If unable to prepare the memorandum themselves:

▪ The Magistrate records the reason for inability.

▪ The memorandum is prepared under their dictation in open court.

2. Memorandum must be signed by the Magistrate and become part of the record.

Section 310: Record in Warrant-Cases

1. Evidence in warrant-cases:

o Recorded by Magistrate in writing, by dictation in open court, or by an officer

appointed under their direction.

o Can also be recorded via audio-video means in the accused's advocate's presence.

2. Evidence taken down:

o Ordinarily in narrative form.

o Magistrate may opt for question-answer format.

3. Evidence must be signed by the Magistrate and form part of the record.

Section 311:Record in Trials Before a Court of Session

1. Evidence in session trials:

o Written by the presiding judge or dictated in open court, or by an officer under the
judge’s direction.

2. Evidence format:

o Ordinarily narrative.

o Question-answer format allowed at the judge's discretion.

3. Evidence must be signed by the judge and added to the record.

Q. In what language should evidence be recorded if the witness speaks in the court’s language?

115
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q. What should be done if evidence is given in a language other than the court's language?

Section 312: Language of Record of Evidence

1. Evidence language requirements:

o If given in the court’s language, recorded as-is.

o If in another language:

▪ It can be recorded in the same language, with a true translation prepared as

required.

▪ Translations must be signed and added to the record.

Section 313: Procedure in regard to such evidence when completed.

o Read to the witness in the accused’s or advocate's presence for corrections.

o Objections by the witness are noted by the Magistrate or Judge.

2. Evidence in different languages:

o Interpreted to the witness in the language they understand.

Section 314: Interpretation of Evidence to Accused or Advocate

1. Evidence in a language not understood by the accused:

o Interpreted to the accused in open court.

2. Evidence not understood by the advocate:

o Interpreted for them in the relevant language.

3. Formal proof documents:

o Court discretion to interpret as needed.

Section 315: Remarks on Demeanour of Witness

• Magistrate or Judge records remarks about the witness's demeanor during examination.

Note- Order 18 Rule 12 of CPC.

Q. How should the examination of the accused be recorded?

Section 316:(very Imp) Record of Examination of Accused

1. Examination recording:

o Entire examination, including questions and answers, must be recorded.

o Recorded by the presiding Judge/Magistrate or under their direction if incapacitated.

2. Language of record:

o Preferably in the language of the accused.

o Otherwise, in the court’s language with interpretation.

3. Process:

o Read to the accused and signed.if he does not understand the language in which it is
written, shall be interpreted to him in a language which he understands

116
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

4. The accused and the Magistrate or presiding Judge must sign the examination record, and
the Magistrate or Judge will certify that it was taken in his presence & contains a complete
and accurate account of the accused's statement. Remote examination:

Provided that where the accused is in custody and is examined through electronic
communication, his signature shall be taken within seventy-two hours of such examination
Exclusion:

5. Section 316 doesn’t apply to the examination of an accused in summary trial.

Section 317: Interpreter's Duty

• Criminal court interpreters must provide truthful interpretations of evidence or statements.

Section 318: Record in High Court

1. High Court:

o May prescribe rules for recording evidence of witnesses and accused examinations.

o Evidence and examinations must comply with such rules.

Commissions for the examination of witnesses

Section 319: When attendance of witness may be dispensed with and commission issued.

• Court may issue a commission to examine a witness if it is required for securing ends of
justice their attendance can not be procured unreasonable delay, expense, or inconvenience.

• Mandatory commission for the President, Vice President, Governors, or Union Territory
Administrators.

Section 320: Commission to Whom to Be Issued

• The commission shall be Directed to:

o Chief Judicial Magistrate if the witness within whose local jurisdiction the witness is
to be found

o Designated courts/officers if If the witness is in India, but in a State or an area to

which this Sanhita does not extend, as per Central Government notification.

o If the witness is in a country or place outside India, court /officer as specified by CG

Section 321: Execution of Commissions

• Upon receipt of commission u/s Magistrate summons the witness or proceeds to their
location to record evidence, following warrant-case trial procedures.

Section 322: Parties May Examine Witnesses

• Parties involved in proceedings under this Sanhita, where a commission is issued, can submit
written interrogatories deemed relevant by the Court or Magistrate. The appointed Magistrate,
Court, or officer executing the commission can examine the witness based on these
interrogatories.

Section 323: Return of Commission

• After execution, the commission and witness deposition are returned to the issuing court and
can be inspected or read as evidence.

117
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 324: Adjournment of Proceedings

Section 325: Execution of Foreign Commissions

• Provisions for executing commissions in areas outside the Sanhita’s jurisdiction or in foreign
countries, as specified by the Central Government.

Section 326: Deposition of Medical Witness

• Depositions of medical witnesses can be used as evidence even if the deponent is not present.

• The court may summon the deponent for clarification.

Section 327: Identification Report of Magistrate

• An identification report prepared by an Executive Magistrate regarding a person or property

can be used as evidence without calling the Magistrate as a witness.
• However, any statements within the report subject to sections 19, 26, 27, 158, or 160 of the
Bharatiya Sakshya Adhiniyam, 2023, must comply with those provisions.
• The court may summon and examine the Magistrate regarding the report if deemed necessary
or upon request by the prosecution or accused.

Section 328: Evidence of Officers of Mint

• Reports by gazetted officers of Mints, Note Printing Press, and Forensic Labs can be used as
evidence, with restrictions on summoning officers.

Section 329: Reports of Government Scientific Experts

• Reports by notified government scientific experts can be used as evidence.

• Experts can depute officers to represent them if summoned by the court.

Section 330: No Formal Proof of Certain Documents

• Undisputed documents do not require formal proof unless the court decides otherwise.

Affidavit in Criminal procedure

Section 331: Affidavit in Proof of Conduct of Public Servants

• Affidavits may be used to prove allegations against public servants; the court can order
evidence by affidavit.

Section 332: Evidence of Formal Character on Affidavit

• Evidence of a formal nature may be presented through affidavits but can be challenged or
clarified upon court summons.

Section 333: Authorities for Swearing Affidavits

• (a) any Judge or Judicial or Executive Magistrate; or

• (b) any Commissioner of Oaths appointed by a High Court or Court of Session; or

• (c) any notary appointed under the Notaries Act, 1952.

(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to
prove from his own knowledge and such facts as he has reasonable ground to believe to be true,
and in the latter case, the deponent shall clearly state the grounds of such belief.

(3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or
amended.

118
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q. How can a previous conviction or acquittal be proved under Section 334?

Section 334:

Proof of Previous Conviction or Acquittal

Previous Conviction or Acquittal Can be proved in any inquiry, trial, or proceeding under this
Sanhita.

Modes of Proof:

1. Certified Extract:

o An extract of the sentence or order, certified by the officer in custody of court records
where the conviction or acquittal was held.

2. In Case of Conviction:

o A certificate signed by the officer in charge of the jail where the punishment (or part
of it) was served.

o Production of the warrant of commitment under which the punishment was served.

• So in conviction 3 manners & in acquittal 1 manner

Additional Requirement:

• Evidence must be provided to establish the identity of the accused as the person previously
convicted or acquitted.

Section 336: Evidence of Public Servants, Experts, or Police Officers

• Reports prepared by public servants or experts may be used as evidence through their
successors or via electronic means if disputed.

119
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XXVI:

General Provisions as to Inquiries and Trials

Sections 337- 366

Q. Under what circumstances can a person acquitted or convicted of an offense be retried for a
different offense based on the same facts?

Q. What do you understand by rule of autrefois acquit and autrefois convict?

Art. 20(2) Constitution No double jeopardy

• No person shall be
• prosecuted; & punished
• for the same offence more than once.
❖ Art. 20(2) of constitution and section 337 of BNSS are based on a maxim “nemo debet bis vexari”
(a person cannot be vexed twice for the same offense
❖ • Art. 20(2) incorporates only the rule of autrefois convict (previously convicted) and not autrefois
acquit (previously acquitted) whereas both these principles are incorporated in S. 337

Section 337: Person once convicted or acquitted not to be tried for same offence.

• (1) A person who has once been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall
• while such conviction or acquittal remains in force,
• not be liable to be tried again for the same offence,
• nor on the same facts for any other offence for which a different charge from the one
made against him might have been made under sub-section (1) of section 244, or for
which he might have been convicted under sub-section (2) thereof.
Ex- (c) A is charged before the Court of Session and convicted of the culpable
homicide of B. A may not afterwards be tried on the same facts for the murder of B.

Exceptions: Sub-sections 2-6 in this section are exceptions:

(2) Distinct offenses with State Government consent (Section 243(1)).(same transaction,
series of acts.)

(3) further consequences: A person convicted of any offence constituted by any act
causing consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-mentioned
offence, if the consequences

▪ had not happened,

▪ or were not known to the Court to have happened, at the time when
he was convicted.

Ex.b): A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may
be tried again for culpable homicide.

(4) if the Court by which he was first tried was not competent to try the subsequent
offence.

120
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Ex(e): A is charged by a JMIIC with, and convicted by him of, theft of property from the person of B. A
may subsequently be charged with, and tried for, robbery on the same facts. Because the offence of
robbery is not triable by a JMIIC. It is triable only by a JMIC.

(5) A person discharged under section 281 shall not be tried again for the same offence
except with the consent of the Court by which he was discharged or of any other
Court to which the first-mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses
Act, 1897 or of section 208 of this sanhita(offence committed outside india).

Explanation.—The dismissal of a complaint, or the discharge of the accused, is not an acquittal for
the purposes of this section.

Section 338: Appearance by Public Prosecutors

1. Public Prosecutor/Assistant Public Prosecutor can appear without written authority.

2. Private Advocates can assist prosecution with court permission but work under the direction
of the Public Prosecutor.

Section 339: Prosecution Permission

(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any
person except –

• a police officer below the rank of inspector; &

a police officer who has taken part in the investigation into the offence with respect to which
the accused is being prosecuted.
• but no person, except the Advocate-General or Govt Advocate or a PP or Assistant Public
Prosecutor, shall be entitled to do so without such permission

(2) Any person conducting the prosecution may do so personally or by a pleader.

Section 340: Right to Legal Representation

• Accused has the right to an advocate of their choice for defense.

Read with Article 22(1) Indian Constitution.

Section 341: Legal Aid

1. In a trial before the Court of Session-

• if the accused is not represented by a pleader, and

• where it appears to the Court that the accused has not sufficient means to engage a pleader,
the Court shall assign a pleader for his defence at the expense of the State.

Sub section 3- The State Govt can extend the application of subsections (1) and (2) to other courts
in the state through a notification, specifying the effective date.

❖ Read with Article 39 A of Indian Constitution .

❖ Hussainara Khatoon v. State of Bihar, 1979 : Right to free legal aid is fundamental
right under Article 21.

Section 342: Corporations as Accused

1. Corporations can appoint representatives for inquiries or trials.

2. Requirements for compliance with procedural obligations apply to representatives.

3. Written authorization from managing directors is sufficient proof of representation.

121
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Tender of Pardon
Q. Who can tender a pardon during a trial, and what are the objectives of granting such a
pardon under Section 344?

Tendor of pardon- The tender of pardon to an accomplice is a legal provision under criminal law
that allows the court to grant pardon to an accomplice (a person involved in the commission of the
crime) in exchange for their truthful testimony against other accused persons involved in the crime.
This is generally done to strengthen the prosecution's case

Section 343: Tender of Pardon

1.Object of tendor of pardon : To obtain evidence from a person who is involved in the offence or
privy to its commission.

Authority:

• Chief Judicial Magistrate at any stage of the investigation, inquiry, or trial.

• Magistrate of the First Class at any stage of the inquiry or trial.

Condition for Pardon:

• The person must make a full and true disclosure of:

o The entire circumstances within their knowledge related to the offence.

o Details of every person involved, whether as the principal offender or an abettor.

2. This section applies to—

o Offenses triable by Sessions Courts or Special Judges.
o Punishable offenses with imprisonment of 7 years or more.

3. Conditions:
o Every Magistrate who tenders a pardon under sub-section (1) shall record—
▪ (a) his reasons for so doing;
▪ (b) whether the tender was or was not accepted by the person to whom it was
made, and shall, on application made by the accused, furnish him with a
copy of such record free of cost.
4. Every person accepting a tender of pardon made under sub-section (1)—
▪ (a) shall be examined as a witness in the Court of the Magistrate taking
cognizance of the offence and in the subsequent trial,
▪ if any; (b) shall, unless he is already on bail, be detained in custody until the
termination of the trial.
5. When a person has accepted a tender of pardon and been examined:The Magistrate taking
cognizance of the offense shall not conduct further inquiry.The case must be committed for
trial as follows:
(i): To the Court of Session if the offense is triable exclusively by that court or if the
Magistrate is the Chief Judicial Magistrate.
(ii): To a Special Judge under relevant laws if the offense is exclusively triable by that court.
In all other cases: The case is transferred to the Chief Judicial Magistrate, who will try the
case himself.

Section 344: Power to Grant Pardon at Trial

• Sessions Court or Special Judges may grant pardon to accomplices during trials.

What are the legal consequences if a person breaches the conditions of a pardon

Section 345: Trial of person not complying with conditions of pardon.

122
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• If a person who accepted a tender of pardon under Sections 343 or 344 ,if Public Prosecutor
contends that accomplice:

o Concealed essential information, or

o Given false evidence

they can be tried for:

o The offense for which pardon was granted,

o Any related offense, and

o The offense of giving false evidence.

• Conditions:

o Cannot be tried jointly with other accused persons.

o Cannot be tried for giving false evidence without High Court sanction.

Statements as Evidence:

• Any statement made by the pardoned person and recorded under Section 183 or Section
343(4) can be used as evidence against them in the trial.

Right to Plead Compliance:

• The accused can plead that they have complied with the conditions of the pardon.

• The burden of proof lies on the prosecution to show non-compliance.

Procedure at Trial:

• Court of Session:

o Before reading and explaining charges, the accused is asked if they plead compliance.

• Court of Magistrate:

o Before taking prosecution evidence, the accused is asked if they plead compliance.

Judgment Based on Compliance:

• If the accused pleads compliance:

o The plea is recorded.

o The Court must determine compliance before passing judgment.

• If compliance is established:

o The accused shall be acquitted, notwithstanding other provisions.

Section 346: Power to postpone or adjourn proceedings

(1) Proceedings should continue daily unless adjournment is essential.

Imp (Specific Cases): Trials related to certain offenses under sec 64-71 the Bharatiya Nyaya Sanhita,
2023 must conclude within two months from from the date of filing of the chargesheet.

The court, after taking cognizance of an offence or commencement of trial, may postpone or adjourn
the inquiry or trial, as necessary, for reasonable periods with recorded reasons. It can also remand
the accused in custody through a warrant during such adjournments but not for a term exceeding
fifteen days at a time.

123
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q. When adjournment not allowed?

Provided that If witnesses are present, adjournment is not allowed without examining them, unless
special reasons are recorded in writing.

no adjournment shall be granted for the purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him.

no adjournment shall be granted at the request of a party, except where the circumstances are beyond
the control of that party;

The court may grant a maximum of two adjournments for circumstances beyond a party's control, with
objections heard and reasons recorded in writing.

An advocate's engagement in another court is not a valid reason for adjournment.

If a witness is present but the party or their advocate is absent or unprepared, the court may record
the witness's statement and decide on further proceedings, including dispensing with examination or
cross-examination.
Follow us on instagram@innovative_judiciary.in

Section 347: Local Inspections

1.A Judge or Magistrate may inspect the crime scene or any relevant place during an inquiry, trial, or
proceeding, after notifying the parties, to better understand the evidence. A memorandum of the
observed facts must be recorded promptly and included in the case record.

2. A free copy of the memorandum must be provided to the prosecutor, complainant, accused, or any
party upon request.

Section 348:Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness,
or examine any person in attendance, though not summoned as a witness, or re-call and re-examine
any person already examined; and the Court shall summon and examine or re-call and re-examine any
such person if his evidence appears to it to be essential to the just decision of the case.

Read with order 18 rule 17

Section 349:Power of Magistrate to order person to give specimen signatures or handwriting,

etc.

• If a Magistrate of the first class is satisfied 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 finger 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 specified in such order and shall give his
specimen signatures or finger impressions or handwriting or voice sample:

Proviso 1- 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.

Note: Read with section 72 of the Bharatiya Nyaya Sanhita.

Section 350:Expenses of complainants and witnesses.

Courts may order reasonable expense reimbursement for complainants or witnesses.

Section 351: Power to examine accused.—

124
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the Court—

a) may at any stage, without previously warning the accused put such questions to him as the Court
considers necessary;

b) shall, after the witnesses for the prosecution have been examined and before he is called on for his
defence, question him generally on the case: Proviso: in a summons-case, where the Court has
dispensed with the personal attendance of the accused, it may also dispense with his examination under
clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) No punishment for refusal or false answers, Right to remain silent: The accused shall not render
himself liable to punishment

- by refusing to answer such questions, or

- by giving false answers to them.

(4) Use of answers given in the examination: The answers given by the accused may be

- taken into consideration in such inquiry or trial, and

- put in evidence for or against him in any other inquiry into, or trial for, any other offence which such
answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in formulating relevant questions for
the accused,permit filing of written statement by the accused as sufficient compliance of this section.

Satbir Singh v. State of Haryana, 2021: Section 313 CRPC(351 BNSS) upholds the principle of natural
justice, audi alteram partem (hear the other side).

Section 352: Oral arguments and memorandum of arguments.

1. Parties may present concise oral arguments and submit written arguments under distinct
headings before he concludes the oral arguments,.

2. Adjournments for filing written arguments not allowed unless the Court, for reasons to be
recorded in writing, considers it necessary to grant such adjournment.

Section 353: Accused person to be competent witness.

• Any person accused of an offence before a Criminal Court shall be a competent witness for the
defence
• and may give evidence on oath in disproof of the charges made against him or any person
charged together with him at the same trial:

Provided that—

(a) he shall not be called as a witness except on his own request in writing; (b) his failure to give
evidence shall not be made the subject of any comment by any of the parties or the Court or give
rise to any presumption against himself or any person charged together with him at the same trial.

Section 354: No influence to be used to induce disclosure. No promise or threat may be used to
compel the accused to disclose information.

Q. How is an accused who is deaf or dumb tried?

Section 357: Procedure where accused does not understand proceedings.

If an accused, though not of unsound mind, cannot understand the court proceedings, the court may
continue with the inquiry or trial.

125
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

If the trial results in a conviction, the lower court must forward the case and a report to the High Court,
which will then decide the appropriate order.

Question:

Under what circumstances can a court proceed against a person who is not initially an accused
during the trial or inquiry of an offense? What are the procedural steps to be followed in such
cases?

QUESTION

Judge is condemned when guilty is acquitted” is a Latin maxim, judex damnatur cum nocens
absolvitur,Explain.

Section 358: Power to proceed against other persons appearing to be guilty of offence.

1. If evidence during an inquiry or trial suggests that someone other than the accused has
committed an offense triable with the accused, the court may proceed against that person.
2. If the person is not present, they may be summoned or arrested as needed.
3. A person present in court (but not arrested or summoned) can be detained for trial or inquiry
of the offense they appear to have committed.
4. When the court proceeds against such a person:
▪ Proceedings must start afresh, and witnesses must be re-heard.
▪ The case continues as if the person was initially an accused when the court
took cognizance of the offense.

Section 359:

Compounding of offences.

1.1st table lists that sections of BNS 23 punishing those offences that can be compounded without
court’s permission.

Section No. Description Section No. Description

Fraudulent removal or
concealment of
property/preventing debt
Voluntarily causing availability/fraudulent
115(2) hurt. 320-323 execution.

Voluntarily causing Mischief causing private loss

122(1) hurt on provocation. 324(2)/(4) or damage.

Voluntarily causing
grievous hurt on
grave and sudden Mischief by killing or maiming
122(2) provocation. 325/326A an animal/diverting water.
Wrongfully
restraining or
126(2)/127(2) confining. 329(3) Criminal trespass.

Wrongfully confining
a person for House-trespass to commit an
three/10/secret offense punishable with
127(3)/127(4)/127(6) place. 329(4)/332(c) imprisonment.

126
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Assault or use of Using/Counterfeiting/Selling a

131/133/136 criminal force. 345(3)/347(1)/349 false trade or property mark.

Uttering words to
wound the religious
302 feelings. 351(2)/(3) Criminal intimidation.

Insult intended to provoke a

breach of peace or inducing
303(2) Theft. 352 belief of divine displeasure.

DMP (Dishonest
Misappropriation of
314 Property). 354 Defamation of dignitaries.

Criminal breach of
trust by carrier or Printing or engraving
316(3) wharfinger. 356(2) defamatory matter knowingly.

Dishonestly Sale of printed or engraved

receiving/assisting substance containing
317(2)/(5) in stolen property. 356(3) defamatory matter.

Cheating./Cheating Criminal breach of contract of

318(2)/319(2) by personation 356(4) service.
Criminal breach of contract of
service
357

2.2nd table lists that sections of BNS punishing those offences that can be compounded with court’s
permission.

Section Section
Name Name
Number Number

Word, gesture, or act to insult a Marrying again during the lifetime of a

79 82(1)
woman spouse

88 Causing miscarriage 117(2) Voluntarily causing grievous hurt

Causing hurt by rash and

Causing grievous hurt by rash and
125(a) negligent act as to endanger 125(b)
negligent act as to endanger human life
human life

Assault or criminal force in

135 attempting wrongful 306 Theft by clerk or servant
confinement

127
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Criminal breach of trust by a clerk or

316(2) Criminal breach of trust 316(4)
servant

Cheating a person whose

Cheating and dishonestly inducing delivery
318(3) interest the offender was bound 318(4)
of property
to protect

Defamation against dignitaries

356(2)
in respect of public functions

Follow us on instagram@innovative_judiciary.in

3. Offences that are compoundable under this section can also include abetment of such offences,
attempts to commit such offences, or offences under specific provisions like sub-section (5) of
Section 3 or Section 190 of the Bharatiya Nyaya Sanhita, 2023.
4. If the person eligible to compound an offence is a child or of unsound mind, a guardian or
competent representative may compound the offence with the Court's permission.
5. If the person eligible to compound an offence has died, their legal representative (as defined
under the Code of Civil Procedure, 1908) may compound the offence with the Court's consent.
6. If the accused has been committed for trial or convicted with an appeal pending, the offence
can only be compounded with the leave of the relevant Court.
7. A High Court or Court of Session exercising revision powers under Section 442 may permit the
compounding of any offence by a competent person.
8. An offence cannot be compounded if the accused faces enhanced or different punishment due
to a prior conviction.
9. Compounding an offence results in the acquittal of the accused against whom the offence was
compounded.
10. No offence can be compounded except as explicitly provided under this section.

The Supreme Court clarified that offences which

are non-compoundable under Section 320 of the
Code of Criminal Procedure (CrPC) /359 BNSS an
still be quashed by the High Court under Section
Gian Singh v. State of Punjab & Another 482 CrPC if the parties reach a settlement,
(2012) 10 SCC 303 provided the offence is private in nature and does
not affect public policy or societal interest.

Narinder Singh & Others v. State of Punjab & In cases of non-compoundable offences, the High
Another (2014) 6 SCC 466 Court can quash proceedings if the settlement
between parties does not adversely affect the
societal interest.

State of Rajasthan v. Shambhu Kewat (2014) Offences against society or which have serious
4 SCC 149 repercussions on public policy cannot be
compounded, even if parties reach a settlement.

Ramgopal v. State of Madhya Pradesh (2021) The Supreme Court allowed the compounding of
SCC Online SC 834 certain offences, even at the appellate stage, if the
settlement promotes harmony and does not harm
societal interest.

128
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Q. What is the law relating to withdrawal of persons from prosecution?

Sec 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:
Follow us on instagram@innovative_judiciary.in

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 official 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.

Provided further that no Court shall allow such withdrawal without giving an

opportunity of being heard to the victim in the case

Follow us on instagram@innovative_judiciary.in

Sec 361-Procedure in cases which Magistrate cannot dispose of.

During an inquiry or trial, if the Magistrate finds:

• (a) They lack jurisdiction to try or commit the case for trial.

• (b) The case should be handled by another Magistrate in the same district.

• (c) The case should be tried by the Chief Judicial Magistrate (CJM),

The Magistrate must stay the proceedings and submit the case, along with a brief report, to the CJM
or a Magistrate directed by the CJM.

Sec 362-Procedure when after commencement of inquiry or trial, Magistrate finds case should
be committed.

• At any stage before signing the judgment, if the Magistrate finds that the case should be tried
by the Court of Session.
• The Magistrate must commit the case to the Court of Session following the prescribed
procedures.
• Once committed, the provisions of Chapter XIX will apply to the proceedings.
- Read With Sec 213,232

129
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Sec 363:Trial of persons previously convicted of offences against coinage, stamp-law or property

• If a person convicted under Chapter X or XVII (imprisonment of 3 years or more) is accused

again for a similar offence, the Magistrate must send them to the CJM or Court of Session
unless competent to try and pass an adequate sentence.
• Co-accused in the same trial will also be sent/committed unless discharged under Section 262
or 268.

Sec 364:Procedure when Magistrate cannot pass sentence sufficiently severe

• If the Magistrate, after hearing the prosecution and the accused, believes that the accused
deserves a punishment more severe or different in kind than what they are empowered to
impose,

• or if a second-class Magistrate believes the accused should execute a bond under Section 125,

• they must record their opinion, submit the proceedings, and forward the accused to the Chief
Judicial Magistrate.

Sec 365:Conviction or commitment on evidence partly recorded by one Magistrate and partly by
another.

• A succeeding Judge/Magistrate can act on evidence recorded by their predecessor but may re-
examine witnesses if necessary for justice.
• Transfer of cases results in the former Judge/Magistrate ceasing jurisdiction and the latter
succeeding.
• Does not apply to summary trials or cases stayed under Section 361 or submitted under Section
364.

Sec 366:Court to be open.

General Rule of Open Court (Sub-section 1):

• Criminal Courts are deemed open courts, allowing public access, subject to space limitations.

• Exception: The presiding Judge/Magistrate can restrict public or specific individuals' access at
any stage of inquiry or trial if deemed necessary.

Mandatory In Camera Trials (Sub-section 2):

• Applicability: Inquiry and trial for the following offences must be conducted in camera:

o Rape: As per Bharatiya Nyaya Sanhita, 2023.

o Bharatiya Nyaya Sanhita Offences: Sections 64, 65, 66, 67, 68, 70, and 71.

o POCSO Act, 2012 Offences: Sections 4, 6, 8, and 10.

• Exceptions: The presiding Judge may allow a specific person access to the courtroom on their
discretion or application by a party.

• Special Provisions: In camera trials should, as far as practicable, be conducted by a woman

Judge or Magistrate.

Restriction on Publication (Sub-section 3):

• General Ban: Printing or publishing any matter related to in camera proceedings is prohibited
without prior Court permission.

• Exception for Rape Trials: Publication of trial proceedings may be allowed, provided the
confidentiality of the names and addresses of the parties is maintained.

130
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXVII

PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND

Sections 367 - 378

Section 367: Procedure in case of accused being person of unsound mind(INQUIRY)

• When a Magistrate holding an inquiry has reason to believe that the person against whom the
inquiry is being held is a person of unsound mind and consequently incapable of making his
defence, to inquire into unsoundness of mind and cause examination by a civil surgeon or
directed medical officer.

• Civil surgeon refers the accused to a psychiatrist or clinical psychologist Government medical
college for care for treatment

• Accused may appeal against psychiatrist's findings to a Medical Board hich shall consist of—

o a) head of psychiatry unit in the nearest Government hospital; and

o (b) a faculty member in psychiatry in the nearest Government medical college.

• Pending such examination and inquiry, the Magistrate may deal with such person in
accordance with the provisions of section 369.

• If it finds that unsoundness renders the accused incapable of defense, Magistrate examine the
record of evidence produced by the prosecution and after hearing the advocate of the accused
but without questioning the accused, if he finds that no prima facie case is made out against
the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with
him in the manner provided under section 369.

Provided that if the Magistrate finds that a prima facie case is made out against the accused in
respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the
proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is
required for the treatment of the accused, and order the accused to be dealt with as provided
under section 369.

• For intellectual disability, inquiry closes, and accused is dealt with under Section 369.

Section 368: Procedure in case of person of unsound mind tried before Court

• Magistrate or Court of Session first examines unsoundness of mind and incapacity.

• Accused referred for care and treatment by psychiatrist or clinical psychologist.

• Court determines defense incapability and discharges the accused if no prima facie case
exists; otherwise, postpones trial.

• For intellectual disability, trial is not held, and the accused is dealt with under Section 369.

Section 369: Release of person of unsound mind pending investigation or trial.

• Whenever a person if found under section 367 or section 368 to be incapable of entering
defence by reason of unsoundness of mind or intellectual disability, the Magistrate or Court,
as the case may be, shall, whether the case is one in which bail may be taken or not, order
release of such person on bail, if out-patient treatment is feasible and secured by a
friend/relative.

• If bail is unsuitable, accused detained in a facility with regular treatment.

131
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• Accused discharged or sent to a residential facility based on medical opinions and nature of
act committed.

Section 370: Resumption of inquiry or trial

• Inquiry or trial may resume when accused ceases to be of unsound mind.

• Released accused must be produced with a certificate of capability to make defense.

Section 371: Procedure on accused appearing before Magistrate or Court

• If capable of defense, inquiry or trial proceeds.

• If incapable, Magistrate or Court acts as per Section 367 or 368.

Section 372: When accused appears to have been of sound mind

• Magistrate proceeds if the accused was incapable of knowing the nature of the act at the time
of commission. Follow us on instagram@innovative_judiciary.in

Section 373: Judgment of acquittal on the ground of unsoundness of mind

Whenever any person is acquitted upon the ground that, at the time at which he is alleged to have
committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of
the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall
state specifically whether he committed the act or not.

Section 374: Person acquitted on ground of unsoundness of mind to be detained in safe

custody

• Detention in safe custody or delivery to a relative or friend with conditions.

• No order for the delivery of the accused to a relative or friend shall be made except upon the
application of such relative or friend and on his giving security to the satisfaction of the
Magistrate or Court that the person delivered shall—

(a) be properly taken care of and prevented from doing injury to himself or to any other person;

(b) be produced for the inspection of such officer, and at such times and places, as the State
Government may direct.

MISC

Section 375: Power of State Government to empower officer in charge to discharge

Section 376: Procedure where prisoner of unsound mind is reported capable of making his
defense

• Certified capable prisoners are brought before Magistrate or Court to resume proceedings.

Section 377: Procedure where person of unsound mind detained is declared fit to be released

• State Government may order release, continued detention, or transfer to mental health
facility.

Section 378: Delivery of person of unsound mind to care of relative or friend

• Relative or friend may take custody on application and security; accused must be produced
as required for trial or inspections.

132
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XXVIII
PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE

Sections 379 - 391

Section 379: Procedure in cases mentioned in Section 215

In 215,when condition arises, such Court may, after such preliminary inquiry, if any, as it thinks
necessary,—

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged
offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to
such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate

Section 380: Appeal

• Appeals against refusal or making of complaints under Section 379 can be made to the
superior court, whose decision is final and shall not be subject to revision.

Section 381: Power to order costs

• Courts handling applications under Sections 379 or 380 may pass orders regarding costs.

Section 382: Procedure of Magistrate taking cognizance

• Magistrates treat complaints under Sections 379 or 380 as police reports and may adjourn
cases if an appeal is pending.

Section 383: Summary procedure for trial for giving false evidence

• If satisfied that it is necessary and expedient in the interest of justice that the witness should
be tried summarily for giving or fabricating, as the case may be, false evidence, take
cognizance of the offence and may, after giving the offender a reasonable opportunity of
showing cause why he should not be punished for such offence,Courts may summarily try
witnesses giving false evidence and sentence them to

▪ up to three months imprisonment

▪ or fine up to ₹1000.

• In every such case the Court shall follow, as nearly as may be practicable, the procedure
prescribed for summary trials.
• Nothing in this section shall affect the power of the Court to make a complaint under section
379 for the offence, where it does not choose to proceed under this section

Section 384: Procedure in certain cases of contempt

• In section 210, section 213, section 214, section 215 or section 267 of the Bharatiya Nyaya
Sanhita, 2023 is committed in the view or presence of any Civil, Criminal, or Revenue Court,

Courts may detain and punish offenders for contempt committed in their view with

o fines up to ₹1000
o or simple imprisonment up to one month.

133
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 385: Procedure where Court considers that case should not be dealt with under Section
384

• forward the case to a Magistrate having jurisdiction to try the same, and may require security
to be given for the appearance of such person before such Magistrate, or if sufficient security
is not given, shall forward such person in custody to such Magistrate

Section 386: When Registrar or Sub-Registrar to be deemed a Civil Court

• State Government may designate Registrars or Sub-Registrars as Civil Courts for purposes of
Sections 384 and 385.

Section 387: Discharge of offender on submission of apology

• When any Court has under section 384 adjudged an offender to punishment,

• or has under section 385 forwarded him to a Magistrate for trial, for refusing or omitting to do
anything which he was lawfully required to do or for any intentional insult or interruption,

• the Court may, in its discretion, discharge the offender or remit the punishment on his
submission to the order or requisition of such Court, or on apology being made to its
satisfaction.

Section 388: Imprisonment or committal of person refusing to answer or produce document.

• If a witness or person refuses to answer questions or produce documents required by a

Criminal Court without a valid excuse, the Court can, after recording reasons,
▪ sentence them to simple imprisonment
▪ or commit them to custody for up to seven days.
▪ If they persist in refusal, they may be dealt with under Section 384 or
Section 385

Section 389: Summary procedure for punishment for non-attendance by a witness in obedience
to summons

• Witnesses neglecting or refusing to attend court sentence

▪ to fine not exceeding five hundred rupees.

▪ In every such case the Court shall follow, as nearly as may be practicable, the
procedure prescribed for summary trials.

Section 390: Appeals from convictions under Sections 383, 384, 388, and 389

• Convictions under these sections may be appealed to courts where decrees or orders of the
convicting court are ordinarily appealable.

Section 391: Certain Judges and Magistrates not to try certain offences when committed
before themselves

Except as provided in sections 383, 384, 388 and 389, no Judge of a Criminal Court (other than a
Judge of a High Court) or Magistrate shall try any person for any offence referred to in section 215,
when such offence is committed before himself or in contempt of his authority, or is brought under his
notice as such Judge or Magistrate in the course of a judicial proceeding.

134
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXIX

THE JUDGMENT

Sections 392-406

Question-Explain the different modes of pronouncing judgment provided under Section 392(1). How
do these provisions safeguard the rights of the accused?

Question-Discuss the procedure to be followed when the accused is in custody or not in custody at
the time of judgment pronouncement as per Section 392(5) and (6).

Section 392: Judgment

1. The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced
in open Court by the presiding officer immediately after the termination of the trial or at some
subsequent time not later than forty-five days of which notice shall be given to the parties or
their advocates:

judgement how pronounced

(c) by reading out the operative

part of the judgment and
(a) by delivering the whole of the (b) by reading out the whole of explaining the substance of the
judgment; or the judgment; or judgment in a language which is
understood by the accused or his
advocate.

Follow us on instagram@innovative_judiciary.in

2. Judgment delivered orally must be taken down in short-hand, signed by the presiding officer
on every page, and dated upon delivery in open court.
3. Judgment read in court must be dated, signed on every page by the presiding officer, and
acknowledged as such if not handwritten.
4. Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1),
the whole judgment or a copy thereof shall be immediately made available for the perusal of
the parties or their advocates free of cost:

o Provided that the Court shall, as far as practicable, upload the copy of the judgment
on its portal within a period of seven days from the date of judgment.

5. If the accused is in custody, he shall be brought up to hear the judgment pronounced

▪ either in person or
▪ through audio-video electronic means.

6. If the accused is not in custody, he shall be required by the Court to attend to hear the
judgment pronounced, except

▪ where his personal attendance during the trial has been dispensed with and
the sentence is one of fine only or
▪ he is acquitted:

135
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Provided that where there are more accused persons than one, and one or more of them do not
attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in
order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their
absence.

7. No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of
the absence of any party or his advocate on the day or from the place notified for the delivery
thereof, or of any omission to serve, or defect in serving, on the parties or their advocates, or
any of them, the notice of such day and place.

8. Nothing in this section shall be construed to limit in any way the extent of the provisions of
section 511.

Question-Discuss the mandatory requirements for the language and content of judgments under
Section 393 of the Bharatiya Nyaya Sanhita, 2023.

What are the special provisions for writing a judgment in case of alternative convictions under
Section 393(2)?
Explain the requirement for recording reasons for imposing lesser sentences under Section 393(4).
Follow us on instagram@innovative_judiciary.in

Section 393: Language and Contents of Judgment

1. Except as otherwise expressly provided by this Sanhita, every judgment referred to in section
392:

o (a) shall be written in the language of the Court;

o (b) shall contain the point or points for determination, the decision thereon,
and the reasons for the decision;

o (c) shall specify the offence (if any) of which, and the section of the Bharatiya Nyaya
Sanhita, 2023 or other law under which, the accused is convicted, and the
punishment to which he is sentenced;

o (d) if it be a judgment of acquittal, shall state the offence of which the accused is
acquitted and direct that he be set at liberty.

2. When the conviction is under the Bharatiya Nyaya Sanhita, 2023 and it is doubtful under
which of two sections, or under which of two parts of the same section, of that Sanhita the
offence falls, the Court shall distinctly express the same, and pass judgment in the
alternative.

3. When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence.

4. When the conviction is for an offence punishable with imprisonment for a term of one year or
more, but the Court imposes a sentence of imprisonment for a term of less than three
months, it shall record its reasons for awarding such sentence, unless the sentence is one of
imprisonment till the rising of the Court or unless the case was tried summarily under the
provisions of this Sanhita.

5. When any person is sentenced to death, the sentence shall direct that he be hanged by the
neck till he is dead.

Deena v. Union Of India, 1983: The court held that section 354(5) of CrPC, which
prescribed hanging as a mode of fair execution which is just and reasonable procedure
within the meaning of Art- 21 and hence is constitutional.

136
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

6. Every order under section 136,157(2),144,164,166 shall contain the point or points for
determination, the decision thereon, and the reasons for the decision.
Follow us on instagram@innovative_judiciary.in

Section 394: Order for Notifying Address of Previously Convicted Offender

1. If a person is convicted of an offence punishable with imprisonment of 3 years or more and is

convicted again for a similar offence, the Court (except a Magistrate of the second class) may
order notification of their residence and changes for up to 5 years after release.
2. This applies to conspiracies, abetment, and attempts to commit such offences.
3. If the conviction is overturned, the order becomes void.
4. Appellate, High Courts, or Sessions Courts can also issue such orders during revisions.
5. The State Government can frame rules for notification requirements for released convicts.
6. Breach of these rules can lead to punishment, and violations will be tried by a competent
Magistrate.

Section 395:Order to Pay Compensation

1. When a Court imposes a fine or a sentence with a fine, it can order the fine or part of it to be used
for:

(a) Covering prosecution expenses.

(b) Compensating victims for losses or injuries recoverable in a Civil Court.

(c) Compensating dependents under the Fatal Accidents Act, 1855, for death caused by the offence.

(d) Compensating bona fide purchasers for losses if stolen property is restored to its rightful owner.

2. If a fine is imposed in a case eligible for appeal, no payment from the fine shall be made until the
appeal period has expired or, if an appeal is filed, until the appeal is decided.

3.If a sentence does not include a fine, the Court may order the accused to pay compensation to the
person who suffered loss or injury due to the offence.

4. Appellate Courts, High Courts, or Sessions Courts can also pass such orders while exercising revision
powers.

5. In any subsequent civil suit related to the same matter, the Court must consider any compensation
already paid or recovered under this section.

Question-

Explain the procedure under Section 396 for awarding compensation when the offender is not
identified.

Section 396: Victim Compensation Scheme

1. State and Central Governments must prepare a scheme to fund compensation for victims or
dependents who have suffered loss or injury due to a crime and require rehabilitation.
2. The District or State Legal Services Authority determines the compensation amount when
recommended by the Court under the scheme.
3. The trial Court may recommend compensation if the amount awarded under Section 395 is
inadequate or if the case ends in acquittal/discharge, necessitating victim rehabilitation.
4. Victims or dependents can apply for compensation to the State/District Legal Services
Authority if the offender is unidentified and no trial occurs.
5. The Legal Services Authority must complete the enquiry and award adequate compensation
within two months of receiving recommendations or applications.
6. Immediate first-aid, medical benefits, or interim relief may be provided free of cost based on
certification by a police officer or Magistrate.

137
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

7. Compensation from the State Government under this section is in addition to fines payable
under Sections 65, 70, and 124(1) of the Bharatiya Nyaya Sanhita, 2023.

Section 397: Treatment of Victims

All hospitals, whether public or private, must provide immediate first-aid or medical treatment free of
cost to victims of offences under Section 64, Section 65, Section 66, Section 67, Section 68,
Section 70, Section 71, and Section 124(1) of the Bharatiya Nyaya Sanhita, 2023, and Section 4,
Section 6, Section 8, and Section 10 of the Protection of Children from Sexual Offences Act, 2012.
Additionally, they are required to promptly inform the police about such incidents.

Section 398: Witness Protection Scheme

Every State Government shall prepare and notify a Witness Protection Scheme for the State with a
view to ensure protection of the witnesses.
Follow us on instagram@innovative_judiciary.in

Section 399: Compensation to Persons Groundlessly Arrested

1. If a person causes a police officer to arrest another without sufficient grounds, the Magistrate
hearing the case may order compensation up to ₹1,000 to be paid by the person causing the
arrest to the arrested individual for their loss of time and expenses.

2. If multiple persons are arrested in such a case, the Magistrate may similarly award
compensation up to ₹1,000 to each person as deemed appropriate.

3. Compensation awarded under this section can be recovered as if it were a fine. If the amount
cannot be recovered, the person responsible for payment may be sentenced to simple
imprisonment for up to 30 days, unless the amount is paid earlier.

Section 400: Order to Pay Costs in Non-Cognizable Cases

1. When a complaint of a non-cognizable offence is made to a Court, and the accused is

convicted, the Court may, in addition to imposing a penalty, order the accused to pay the
complainant's prosecution costs, either in full or in part. These costs may include expenses
for process-fees, witnesses, and advocate's fees, as deemed reasonable by the Court. If the
accused fails to pay, the Court may sentence them to simple imprisonment for up to 30 days.
2. Such an order can also be made by an Appellate Court, the High Court, or the Court of
Session while exercising their powers of revision.

Question-When can an order to release on probation of good conduct or after admonition be made by
a court?

Section 401: Order to Release on Probation of Good Conduct or After Admonition

1.First offenders (above 21 years of age)- convicted of offences punishable by fine or

imprisonment of 7 years or less may be released on probation.

For offenders under 21 years or women (not convicted of offences punishable by death or life
imprisonment), probation may be considered.

• no previous conviction is proved against the offender,

• if it appears to the Court before which he is convicted, regard being had to the
▪ age,
▪ character or antecedents of the offender,
▪ and to the circumstances in which the offence was committed,
that it is expedient that the offender should be released on probation of good conduct, the Court may,
instead of sentencing him at once to any punishment, direct that he be released on his entering into a
bond or bail bond to appear and receive sentence when called upon during such period (not

138
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of
good behavior:

Provided that If a first-time offender is convicted by a Second-Class Magistrate who is not specially
empowered by the High Court and the Magistrate believes the offender should be released on probation,
they must record their opinion and forward the case to a First-Class Magistrate. The Second-Class
Magistrate must either send the accused to the First-Class Magistrate or take bail for the accused's
appearance before them.

2. Magistrates of the first class, upon receiving a referred case, may pass a sentence, grant probation,
or conduct further inquiry if needed.

(3) Release on admonition-For minor offences like theft,theft in a building ,misappropriation, cheating,
or offences punishable with imprisonment of up to 2 years or fine only, and no previous conviction the
Court before which he is so convicted may, if it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of the offender and to the trivial nature of the offence or
any extenuating circumstances under which the offence was committed, instead of sentencing him to
any punishment, release him after due admonition.

(4)Appellate Courts, High Courts, or Sessions Courts can also pass probation orders or modify them
during appeals or revisions.

(5)High Court or Court of Session may revoke probation orders and impose a sentence within the
limits of the original Court's powers.

(7)Court must ensure the offender or surety has a fixed residence or occupation before granting
probation. Follow us on instagram@innovative_judiciary.in

(8)If probation conditions are violated, the Court may issue a warrant for the offender's apprehension.

(9)Offenders apprehended on such warrants must be presented before the Court, which may impose a
sentence after a hearing.

(10)the provisions of this section do not override the Probation of Offenders Act, 1958, or the Juvenile
Justice (Care and Protection of Children) Act, 2015.

Chhanni v State of CIP, AIR 2006: The provisions of section 360 CrPC (401 BNSS) become wholly
inapplicable in areas where the Probation of Offenders Act, 1958 is made applicable. The provisions of
the two statutory enactments have significant differences.

Q. Write differences between section 4 PO act 1958 and Sec 401 BNSS.

Sec 401 BNSS Sec 4 PO Act 1958

Age specifications No Age Specification
No concept of probation officer and concept of probation officer and supervision
supervision order order
Previous conviction provision No previous conviction provision

Section 402: Special Reasons to Be Recorded in Certain Cases

Where in any case the Court could have dealt with—

• (a) an accused person under section 401 or under the provisions of the Probation of Offenders
Act, 1958; or

• (b) a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015
or any other law for the time being in force for the treatment, training, or rehabilitation of
youthful offenders,
but has not done so, it shall record in its judgment the special reasons for not having done
so.

139
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 403: Court Not to Alter Judgment

Save as otherwise provided by this Sanhita or by any other law for the time being in force, no Court,

• when it has signed its judgment or

• final order disposing of a case, shall alter or review the same except to correct a clerical or
arithmetical error.

Section 404: Copy of Judgment to Be Given to Accused and Other Persons

• When sentenced to imprisonment, the accused receives a free copy of the judgment
immediately.
• On request, a certified copy or translation of the judgment is given to the accused without
delay, free of cost if appealable.
• A certified copy is immediately provided free for death sentences passed or confirmed by the
High Court.
• The accused sentenced to death is informed of the appeal period.
• Others affected by the judgment can request copies on payment, unless the court decides
otherwise.
• High Courts can set rules for granting copies to unrelated persons on payment of fees.

Section 405: Judgment When to Be Translated Follow us on instagram@innovative_judiciary.in

The original judgment shall be filed with the record of the proceedings, and where the original is
recorded in a language different from that of the Court, and if either party so requires, a translation
thereof into the language of the Court shall be added to such record.

Section 406: Court of Session to Send Copy of Finding and Sentence to District Magistrate

In cases tried by the Court of Session or a Chief Judicial Magistrate, the Court or such Magistrate, as
the case may be, shall forward a copy of its or his finding and sentence (if any) to the District
Magistrate within whose local jurisdiction the trial was held.

CHAPTER XXX

SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION

Sections 407 - 412

Q. Discuss the provision relating to death sentence passed by court of sessions & submitted for
confirmation to the High Court.

A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law;but any
death sentence passed by any such Judge shall be subject to confirmation by the High Court.

This Chapter deals with confirmation of death sentence by High Court.Once it is confirmed by the
High Court, the Court of Sessions shall execute.

➔ Similarly, when a High Court passes an order of death sentence by way of appeal or in a revision,
the Court of Sessions shall execute it

Section 407: Sentence of death to be submitted by Court of Session for confirmation:

140
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the
High Court, and the sentence shall not be executed unless it is confirmed by the High Court.

(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant.

Section 408: Power to direct further inquiry to be made or additional evidence to be taken:

(1) further inquiry and additional evidence: If, when such proceedings are submitted, the High Court
thinks that a further inquiry or additional evidence is necessary regarding the guilt or innocence of
the convicted, it may make such inquiry or take such evidence itself, or direct it to be made or taken
by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed
with when such inquiry is made or such evidence is taken.

(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such
inquiry or evidence shall be certified to such Court.

Section 409: Power of High Court to confirm sentence or annul conviction: In any case submitted

the High Court—

• ➔ may confirm the sentence, or

• ➔ may pass any other sentence warranted by law, or
• ➔ may annul the conviction, and convict the accused of any offence of which the Court of
Session might have convicted him, or
• ➔ may order a new trial on the same or an amended charge, or
• ➔ may acquit the accused person:

Proviso: no order of confirmation shall be made under this section until the period allowed for
preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is
disposed of. Follow us on instagram@innovative_judiciary.in

Section 410:Confirmation or new sentence to be signed by two Judges: In every case so submitted,
the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when
such Court consists of two or more Judges, be made, passed and signed by at least two Judges.

Section 411:Procedure in case of difference of opinion: If a case is heard before a Bench of Judges
and they are evenly divided in opinion, the case will be decided as per the provisions of section 433.

Section 412:

Procedure in cases submitted to High Court for confirmation:

In cases where the Court of Session submits a death sentence for confirmation to the High Court, the
proper officer of the High Court must promptly send either physically, or through electronic means a
copy of the confirmation or other order, sealed & attested with the official signature, to the Court of
Session.

141
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXI

APPEALS

Sections 413 – 435

QUESTION- Under Section 413, what rights does a victim have to prefer an appeal?

To which court does a victim's appeal lie in case of acquittal or imposition of inadequate compensation?

Section 413:No Appeal to Lie Unless Otherwise Provided

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Sanhita
or by any other law for the time being in force:

Akalu v. Ram Deo AIR 1973: A right of appeal is not a natural or inherent right IN CRIMINAL
PROCEDURE and must be governed by statute which grants it.

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court

• acquitting the accused,

• convicting for a lesser offence,
• or imposing inadequate compensation,
• and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.

- Here victim has restricted rights there is no provision for appeal by the victim for questioning
the order of sentence as inadequate, whereas BNSS gives the power to the State Govt to prefer
appeal for enhancement of Sentence.
Follow us on instagram@innovative_judiciary.in

Earlier This sec is 372 in CRPC , following Judgements were pronounced:

Here is a list of important cases related to Section 372 CrPC, along with their gist:

1.Mallikarjun Kodagali v. State of The victim’s right to appeal under Section 372 CrPC is
Karnataka,Citation-(2019) SCC 752 substantive and independent. No special leave is
required to appeal against an acquittal or inadequate
compensation.

2.National Commission for Women v. State The victim has the right to appeal against an acquittal
of Delhi,Citation- AIR 2010 SC 2326 under Section 372 without needing permission from the
appellate court.

3. Jagjeet Singh v. Ashish Victims are entitled to participate in criminal

Mishra,Citation(2022) 9 SCC 321 proceedings, including appeals, ensuring their voices
are heard in cases of acquittal or inadequate
punishment

142
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 414:

Appeal from Orders Requiring Security or Refusal to Accept or Reject Surety for Keeping Peace
or Good Behaviour

Any person,—

(i) who has been ordered under section 136 to give security for keeping the peace or for good behaviour;
or

(ii) who is aggrieved by any order refusing to accept or rejecting a surety under section 140,

may appeal against such order to the Court of Session:

Provided that nothing in this section shall apply to persons the proceedings against whom are laid
before a Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (4) of section
141.

Question- Which courts can entertain appeals for convictions?

Section 415: Appeals from Convictions

Sub-
Conviction By Appeal To
Section

Conviction by a High Court in its

-1 Supreme Court
extraordinary original criminal jurisdiction.

Conviction by a Sessions Judge, Additional

Sessions Judge, or any other court, where a
sentence of imprisonment for more than 7
-2 High Court
years has been passed (either against the
person appealing or another person
convicted at the same trial).

Conviction on a trial held by a Magistrate of

(3)(a) Court of Session
the First or Second Class.

(3)(b) Sentence passed under Section 364. Court of Session

Order or sentence passed under Section

(3)(c) Court of Session
401 by a Magistrate.

(4) When an appeal has been filed against a sentence passed under section 64- 71 of the Bharatiya
Nyaya Sanhita, 2023, the appeal shall be disposed of within a period of six months from the date of
filing of such appeal.

Question-Can a conviction based on a guilty plea be appealed on grounds of procedural irregularity or

bias? Substantiate with relevant principles.

Section 416: No Appeal in Certain Cases When Accused Pleads Guilty

Notwithstanding anything in section 415, where an accused person has pleaded guilty and has been
convicted on such plea, there shall be no appeal,—

(i) if the conviction is by a High Court; or

(ii) if the conviction is by a Court of Session or Magistrate of the first or second class, except as to
the extent or legality of the sentence.

Question-Section 417 restricts appeals in certain cases involving petty sentences. Explain.

Section 417: No Appeal in Petty Cases

143
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Notwithstanding anything in section 415, there shall be no appeal by a convicted person in any of the
following cases, namely:—

Clause Court Passing the Sentence WHEN No Appeal

Sentence of imprisonment not exceeding three
(a) High Court months or fine not exceeding one thousand
rupees, or both.
Sentence of imprisonment not exceeding three
(b) Court of Session months or fine not exceeding two hundred
rupees, or both.
Sentence of fine not exceeding one hundred
(c) Magistrate of the First Class
rupees.
Magistrate empowered under Section Sentence of fine not exceeding two hundred
(d)
283 (Summary Trial) rupees.

Provided that an appeal may be brought against any such sentence if any other punishment is
combined with it, but such sentence shall not be appealable merely on the ground—

(i) that the person convicted is ordered to furnish security to keep the peace; or
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does
not exceed the amount hereinbefore specified in respect of the case.

Appeals against inadequate sentences

Section 418: Appeal by State Government Against Sentence

Follow us on instagram@innovative_judiciary.in

Sub-
Provision Details
Section

State Government's
The State Government may direct the Public Prosecutor to present an
-1 Power to Direct
appeal against inadequate sentences:
Appeal

If the sentence is passed by

(1)(a) Appeal to the Court of Session
a Magistrate.

If the sentence is passed by

(1)(b) Appeal to the High Court
any other Court.

Central The Central Government may direct the Public Prosecutor to present
-2 Government's Power an appeal against inadequate sentences, If the offence is investigated
to Direct Appeal by an agency under a Central Act (other than this Sanhita):

If the sentence is passed by

(2)(a) Appeal to the Court of Session
a Magistrate.

144
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

If the sentence is passed by

(2)(b) Appeal to the High Court
any other Court.

Opportunity for
Accused Before The Court (Court of Session or High Court) cannot enhance the
-3
Sentence sentence without giving the accused:
Enhancement

- A reasonable opportunity to show cause against such enhancement.

- The accused may also plead for acquittal or reduction of the

sentence while showing cause.

Time Limit for

- Must be disposed of
Disposal of Appeals
Appeals under sections 64-71 of the within six months from
-4 Against Sentences
Bharatiya Nyaya Sanhita, 2023: the date of filing of the
under Specific
appeal.
Sections

Appeal in Case of Acquittal

Section 419: Appeal in Case of Acquittal

Sub- Appeal Special

Authority Who Can Appeal Type of Case/Offence
Section To Conditions

District Magistrate

Acquittal by Magistrate Court

District
(1)(a) Public Prosecutor in cognizable and non- of
Magistrate
bailable offences Session

State Government

Includes
Acquittal in original or
acquittal orders
State appellate orders High
(1)(b) Public Prosecutor by the Court of
Government (excluding those covered Court
Session in
under (1)(a))
revision.

Central Government

145
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Offence must
Acquittal by Magistrate have been
in cognizable and non- Court investigated by
Central
(2)(a) Public Prosecutor bailable offences of an agency
Government
investigated under a Session empowered
Central Act under a Central
Act.

Includes
Acquittal in original or
acquittal orders
Central appellate orders High
(2)(b) Public Prosecutor by the Court of
Government (excluding those covered Court
Session in
under (2)(a))
revision.

Appeals to the High Court under sub-sections (1) and (2) not entertained without the leave
-3
of the High Court.

If such an order of acquittal is passed in any case instituted upon complaint

Requires special
leave from the
Acquittal in cases High
-4 Complainant High Court to
instituted on complaint Court
present the
appeal.

Application u/sub section 4 must be made within 6 months (if complainant is a public
-5
servant) or 60 days (others).

If special leave to appeal under

-6
sub-section (4) is refused
No further appeal allowed under sub-sections (1) or (2).

Section 420: Appeal Against Conviction by High Court in Certain Cases

An appeal would lie to the Supreme Court as a matter of right when High Court has, on appeal,

➔ reversed an order of acquittal of an accused person and

➔ convicted and sentenced him to death or to imprisonment for life or to imprisonment for a term of 10
years or more.

Further, as per Article 132, 134 & 136 of the Constitution, an appeal against the decision of the High
Court can be made in the Supreme Court.

Question- If two co-accused are convicted, but only one of them has the right to file an appealable
judgment under Section 421, how does this affect the legal standing of the other co-accused?

Section 421: Special Right of Appeal in Certain Cases

Notwithstanding anything in this Chapter, when more persons than one are convicted in one trial, and
an appealable judgment or order has been passed in respect of any of such persons, all or any of the
persons convicted at such trial shall have a right of appeal.

Section 422: Appeal to Court of Session: How Heard

an appeal to the Court of Session or Sessions the Sessions Judge or by an Additional Sessions
Judge shall be heard by Judge

146
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Provided that an appeal against a conviction on may be heard and disposed of by the Chief
a trial held by a Magistrate of the second class Judicial Magistrate.

An Additional Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the
Sessions Judge of the division may, by general or special order, make over to him or as the High
Court may, by special order, direct him to hear.

Procedure of appeal –
a. Present

Section 423: Petition of Appeal

• Every appeal shall be made in the form of a petition in writing presented by the appellant or his
advocate,
• and every such petition shall (unless the Court to which it is presented otherwise directs) be
accompanied by a copy of the judgment or order appealed against.

Section 424: Procedure When Appellant is in Jail

• If the appellant is in jail, he may present his petition of appeal and the copies accompanying
the same to the officer in charge of the jail, who shall thereupon forward such petition and
copies to the proper Appellate Court.

b. Hearing

Section 425: Summary Dismissal of Appeal

(1) If upon examining the petition of appeal and the copy of the judgment received under section 423 or
section 424, the Appellate Court considers that there is no sufficient ground for interfering, it may
dismiss the appeal summarily:

Provided that—

(a) no appeal presented under section 423 shall be dismissed unless the appellant or his advocate has
had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under section 424(When Appellant is in Jail) shall be dismissed except after
giving the appellant a reasonable opportunity of being heard in support of the same, unless

• the Appellate Court considers that the appeal is frivolous

• or that the production of the accused in custody before the Court would involve such
inconvenience as would be disproportionate in the circumstances of the case;

(c) no appeal presented under section 424 shall be dismissed summarily until the period allowed for
preferring such appeal has expired.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the
Chief Judicial Magistrate, it shall record its reasons for doing so.

(4) Where an appeal presented under section 424 has been dismissed summarily under this section and
the Appellate Court finds that another petition of appeal duly presented under section 423 on behalf of
the same appellant has not been considered by it, that Court may, notwithstanding anything contained
in section 434, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of
such appeal in accordance with law.

Section 426: Procedure for Hearing Appeals Not Dismissed Summarily

147
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and
place at which such appeal will be heard to be given—

(i) to the appellant or his advocate;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the
complainant;

(iv) if the appeal is under section 418 or section 419, to the accused, and shall also furnish such officer,
complainant, and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available
in that Court, and hear the parties:

Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose
of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the
appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.

Section 427: Powers of Appellate Court

Category Action by Appellate Court

After examining the record and hearing the parties (appellant,
General Provision advocate, Public Prosecutor, accused if applicable), the court
may:
- Dismiss the appeal if no sufficient grounds for interference
exist
- Take the following actions, depending on the type of appeal
(a) Appeal from Acquittal 1. Reverse the order and:
- Direct further inquiry
- Order re-trial or commit the accused for trial
- Find the accused guilty and pass a sentence according to law
(b) Appeal from Conviction 1. Reverse the finding and sentence:
- Acquit or discharge the accused
- Order re-trial by a subordinate competent Court or commit
for trial
2. Alter the finding while maintaining the sentence
3. Alter the nature/extent of the sentence (with or without
altering the finding), but not enhance it

(c) Appeal for Enhancement of

1. Reverse the finding and sentence:
Sentence
- Acquit or discharge the accused
- Order re-trial by a competent Court
2. Alter the finding while maintaining the sentence
3. Alter the nature/extent of the sentence (with or without
altering the finding), to enhance or reduce the sentence

148
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(d) Appeal from Any Other

1. Alter or reverse such order
Order

(e) Incidental/Consequential
1. Make any just and proper amendments or orders
Order

Sentence shall not be enhanced unless the accused is given an

Proviso 1
opportunity to show cause

Greater punishment shall not be inflicted than what could

Proviso 2 have been imposed by the court passing the original order or
sentence under appeal

Section 428: Judgments of Subordinate Appellate Court

The rules contained in Chapter XXIX as to the judgment of a Criminal Court of original jurisdiction
shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief
Judicial Magistrate:

Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or
required to attend, to hear judgment delivered.

Section 429: Order of High Court on Appeal to Be Certified to Lower Court

• When the High Court decides an appeal, it must certify its judgment or order to the court that
recorded or passed the original finding, sentence, or order.

• If the lower court is a Judicial Magistrate (other than the Chief Judicial Magistrate), the
judgment/order is routed through the Chief Judicial Magistrate.

• If the lower court is an Executive Magistrate, the judgment/order is routed through the
District Magistrate.

Compliance by Lower Court:

• The lower court receiving the judgment/order must take action in conformity with the High
Court's decision.

• If necessary, the records must be amended accordingly.

Section 430: Suspension of Sentence Pending Appeal; Release of Appellant on Bail

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it
in writing, order that the execution of the sentence or order appealed against be suspended and, also,
if he is in confinement, that he be released on bail, or on his own bond or bail bond:

Provided that Before releasing a convicted person on bond for offenses punishable with death, life
imprisonment, or imprisonment of 10 years or more, the Appellate Court must allow the Public
Prosecutor to submit written objections.

Provided further the Public Prosecutor may seek cancellation of bail if a convicted person is released.

(2) The power conferred by this section on an Appellate Court may also be exercised by the High Court
in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present
an appeal, the Court shall—

149
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three
years; or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on
bail,order that the convicted person be released on bail, unless there are special reasons for refusing
bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the
Appellate Court .and the sentence of imprisonment shall, so long as he is so released on bail, be deemed
to be suspended

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life,
the time during which he is so released shall be excluded in computing the term for which he is so
sentenced.

Section 431: Arrest of Accused in Appeal from Acquittal

When an appeal is presented under section 419, the High Court may issue a warrant directing that the
accused be arrested and brought before it or any subordinate Court, and the Court before which he is
brought may commit him to prison pending the disposal of the appeal or admit him to bail.

Section 432: Power to Take Additional Evidence

The Appellate Court may order additional evidence if necessary, recording reasons.

• It may take the evidence itself or direct a Magistrate or Sessions Court to do so.
• The certified evidence is sent to the Appellate Court for appeal disposal. The accused or their
advocate has the right to be present during evidence collection, which follows Chapter XXV
provisions.

Section 433: Procedure in Case of Difference of Opinion in High Court

• When an appeal under this Chapter is heard by a High Court before a Bench of Judges and
they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge
of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and
the judgment or order shall follow that opinion:
• Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before
another Judge under this section, that Judge, so requires, the appeal shall be re-heard and
decided by a larger Bench of Judges.

Section 434: Finality of Judgments and Orders on Appeal

Judgments and orders passed by an Appellate Court upon an appeal shall be final, except in the cases
provided for in section 418, section 419, sub-section (4) of section 425, or Chapter XXXII

Provided that notwithstanding the final disposal of an appeal against conviction in any case, the
Appellate Court may hear and dispose of, on the merits,—
(a) an appeal against acquittal under section 419, arising out of the same case; or

(b) an appeal for the enhancement of sentence under section 418, arising out of the same case.

Section 435: Abatement of Appeals

Appeal Type Abatement on Death of Accused/Appellant

Under Section 418 or
Abates on the death of the accused.
Section 419

Other Appeals (except fine

Abates on the death of the appellant.
sentences)

Appeal Against Conviction If appellant dies, a near relative can apply within 30 days to
& Sentence continue the appeal; if granted, the appeal does not abate.

150
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XXXII:

Reference and Revision

Sections 436 - 445

What do you mean by reference? Under what circumstances &in which court reference can be
made?

Section 436: Reference to High Court

1. If a subordinate court finds a case involving the validity of an Act, Ordinance, Regulation, or
provision, which is necessary for case disposal and deems it invalid or inoperative (not declared
so by High Court/Supreme Court), it must refer the case to the High Court.
2. A Court of Session may, if it thinks fit in any case pending before it to which the provisions of
sub-section (1) do not apply, refer for the decision of the High Court any question of law arising
in the hearing of such case.Court’s Powers Pending High Court Decision:
3. The referring court can:

i. Commit the accused to jail.

ii. Grant bail until the High Court's decision.

Section 437: Disposal of case according to decision of High Court.High Court will issue a decision
on the referred question and send a copy to the referring court.The referring court must comply with
the High Court's decision.

1. High Court may decide who bears the cost of the reference.

Question- What do you mean by Revision? Explain the power of court for revision?

Section 438: Calling for records to exercise powers of revision.

High Court or Sessions Judge can examine records from inferior criminal courts to check correctness,
legality, or propriety of:

▪ Findings.

▪ Sentences.

▪ Orders.

During Revision- Follow us on instagram@innovative_judiciary.in

o Execution of sentence/order can be suspended.

o Accused can be released on bond/bail.

2. Revision cannot be applied to interlocutory orders.

3.If an application is made to the High Court or Sessions Judge, no further application is entertained
by the other.

Section 439:Power to Order Inquiry

• High Court or Sessions Judge can direct further inquiry into:

o Complaints dismissed under Section 226 or Section 227(4).

o Discharged cases.

• Proviso: The discharged person must be given an opportunity to explain why further inquiry
should not be directed.

Section 440: Sessions Judge’s Powers of Revision

151
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

The Sessions Judge has the authority to exercise all or any powers that the High Court can exercise
under Section 442(1) when reviewing a case whose record has been called by themselves.

If a revision proceeding is initiated before a Sessions Judge, the provisions of Section 442 sub-sections
(2), (3), (4), and (5) are applicable to the extent possible. References to the High Court in these sub-
sections are to be read as references to the Sessions Judge.

When an application for revision is made to the Sessions Judge by or on behalf of any person, the
decision of the Sessions Judge in relation to that person is final.

No further revision application by the same person will be entertained by the High Court or any other
court once the Sessions Judge has made a decision.

Section 441: Powers of Additional Sessions Judge

• Additional Sessions Judge can exercise the same powers as Sessions Judge for cases
transferred to them by the Sessions Judge.

Section 442: High Court’s Powers of Revision

o High Court may exercise appellate powers under Sections 427, 430, 431, 432, and 344.

o In case of equal division of opinion among Judges, the case is disposed of as per Section
433.

o No adverse order can be passed without giving the accused a chance to be heard.

2. Prohibition:

o High Court cannot convert an acquittal into a conviction.

3. Appeal vs. Revision:

o If an appeal is possible but not filed, revision cannot be entertained by the same party.

o Erroneous belief about appeal may allow the High Court to treat a revision application
as an appeal petition.

Section 443: Transfer of Revision Cases

o Whenever one or more persons convicted at the same trial makes or make application
to a High Court for revision and any other person convicted at the same trial makes an
application to the Sessions Judge for revision, the High Court decides which court will
dispose of all applications.

o Applications transferred to the High Court or Sessions Judge are dealt with as if
originally filed before them.

Finality of Sessions Judge's Decision:

o Once the Sessions Judge disposes of a transferred revision, no further revision can be
entertained by the High Court.

Section 444: Option to Hear Parties

• Courts exercising revision powers are not obligated to hear parties unless deemed necessary.

Section 445: Certification of High Court or Sessions Judge’s Decision

o High Court or Sessions Judge must certify their decision or order to the lower court.

o The lower court must act in conformity with the certified decision.

o The record is amended as necessary to align with the decision.

152
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXIII

TRANSFER OF CRIMINAL CASES

Sections 446 - 452

Section 446:

Power of Supreme Court to Transfer Cases and Appeals

• The Supreme Court may transfer a case or appeal between High Courts or Criminal Courts
subordinate to different High Courts if it is expedient for the ends of justice.
• Applications for transfer can be made by the Attorney-General of India or any interested party,
supported by an affidavit or affirmation, except when made by the Attorney-General or
Advocate-General.
• If an application is dismissed as frivolous or vexatious, the Supreme Court may direct the
applicant to compensate the opposing party as deemed appropriate.

Section 447:

Power of High Court to Transfer Cases and Appeals

(1)Whenever it is made to appear to the High Court—

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto;
or

(b) that some question of law of unusual difficulty is likely to arise;

(c) that an order under this section is required by any provision of this Sanhita,

or will tend to the general convenience of the parties or witnesses,

or is expedient for the ends of justice,

it may order—

(i) that any offence be inquired into or tried by a competent court even if not qualified under Sections
197–205.

(ii) Cases or appeals can be transferred between subordinate Criminal Courts of equal or superior
jurisdiction.

(iii) Specific cases may be committed for trial to a Court of Session.

(iv) The High Court may transfer cases or appeals to itself for trial or hearing.

(2) The High Court may act either

-on the report of the lower Court,

-or on the application of a party interested,
-or on its own initiative:

Provided that An application to the High Court for transferring a case within the same sessions division
is not allowed unless the Sessions Judge has first rejected such a transfer request.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except
when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a
bond or bail bond for the payment of any compensation which the High Court may award under sub-
section (7).

153
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(5) An accused must provide the Public Prosecutor with written notice and grounds for the application,
and at least 24 hours must pass before the application is heard.

(6) The High Court may stay proceedings in a subordinate court if necessary for justice, pending the
disposal of a transfer application, but such a stay does not affect the subordinate court's power of
remand under Section 346.

(7) If a transfer application is dismissed as frivolous or vexatious, the High Court may order the
applicant to compensate the opposing party.

(8)If the High Court transfers a case to itself, it must follow the same procedure that the subordinate
court would have followed.

Section 448: Power of Sessions Judge to Transfer Cases and Appeals

• A Sessions Judge may transfer a case between Criminal Courts within the same sessions
division if it is necessary for justice.
• The Sessions Judge can act on a report from a lower court, an application from an interested
party, or on their own initiative.
• Provisions from Section 447(3), (4), (5), (6), (7), and (9) apply to such applications, with the
modification that compensation under Section 447(7) cannot exceed ₹10,000.

Section 449: Withdrawal of Cases and Appeals by Sessions Judges

• A Sessions Judge can withdraw or recall any case or appeal assigned to a Chief Judicial
Magistrate under their authority.
• Before the trial or appeal hearing begins, a Sessions Judge can recall any case or appeal
assigned to an Additional Sessions Judge.
• Upon withdrawal or recall, the Sessions Judge can try the case, hear the appeal, or assign it to
another appropriate court.

Section 450: Withdrawal of Cases by Judicial Magistrates

1. A Chief Judicial Magistrate can withdraw or recall any case assigned to a subordinate Magistrate,
and may either try the case personally or assign it to another competent Magistrate.

2.A Judicial Magistrate can recall any case previously assigned under Section 212(2) to another
Magistrate and may personally inquire into or try the case.

Section 451: Making Over or Withdrawal of Cases by Executive Magistrates

Any District Magistrate or Sub-divisional Magistrate may—

(a) make over, for disposal, any proceeding which has been started before him, to any Magistrate
subordinate to him;

(b) withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate
to him, and dispose of such proceeding himself or refer it for disposal to any other Magistrate.

Section 452: Reasons to Be Recorded for Orders

A Sessions Judge or Magistrate making an order under section 448, section 449, section 450 or section
451 shall record his reasons for making it.

154
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXIV

Execution, Suspension, Remission, and Commutation of Sentences

Sections 453 - 477

A. Execution of Death Sentences (453-456)

B. Execution of Imprisonment(457-460)

C. Execution of Levy of Fine (461-464)

D.General Provisions Related to Execution (Sections 465 - 477)

A. Death Sentences

Section 453: Execution of order passed under section 409.

Upon receiving a High Court order confirming or modifying a death sentence, the Court of Session
executes it by issuing a warrant or other necessary actions.

Section 454Execution of sentence of death passed by High Court.

When a High Court passes a death sentence in appeal or revision, the Court of Session cause the
sentence to be carried into effect by issuing a warrant.

Section 455: Postponement of execution of sentence of death in case of appeal to Supreme Court.

(1) Where a person is sentenced to death by the High Court and it is appealable to the Supreme Court
(Art. 134 1(a)(b) ), The High court shall order execution is postponed until:

▪ The appeal period expires.

▪ If an appeal is filed, until its disposal.

(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced
makes an application to the High Court for the grant of a certificate under article 132 or under sub-
clause (c) of clause (1) of article 134 of the Constitution,Execution is postponed until

▪ such application is disposed of by the High Court,

▪ or if a certificate is granted on such application, until the period allowed for

preferring an appeal to the Supreme Court on such certificate has expired

(3) Execution is postponed if the person intends to file a petition for special leave under Art. 136.

155
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 456:Commutation of sentence of death on pregnant woman.

If a woman sentenced to death is pregnant, the sentence is commuted to life imprisonment.

B. Imprisonment

Section 457: Place of Imprisonment

(1) The State Government decides the place of imprisonment unless otherwise provided by law.

(2) Persons in civil jail can be transferred to criminal jail by court direction.

(3)When a person is removed to a criminal jail under sub-section (2), he shall, on being released
therefrom, be sent back to the civil jail, unless either—

(a) three years have elapsed since he was removed to the criminal jail, in which case he
shall be deemed to have been released from the civil jail under section 58 of the Code
of Civil Procedure, 1908; or

(b) the Court which ordered his imprisonment in the civil jail has certified to the officer
in charge of the criminal jail that he is entitled to be released under section 58 of the
Code of Civil Procedure, 1908.

Section 458: Execution of sentence of imprisonment

o (1) Court forwards a warrant for imprisonment unless the sentence is "till the rising of
the court."

o (2) Where the accused is not present in Court, the Court issues a warrant for arrest to
forward them to jail.

Section 459: Direction of warrant for execution.

o Directed to the officer in charge of the jail where the prisoner is confined.

Section 460: Warrant with whom to be lodged.

Warrants are lodged with the jailor when the prisoner is to be confined in a jail.

C. Levy of Fine

Section 461: Warrant for levy of fine.

(1) When an offender has been sentenced to pay a fine, but no such payment has been made, Court
may recover fines by:

▪ (a) Attachment and sale of movable property.

▪ (b) Authorizing the Collector to recover as arrears of land revenue from the
movable or immovable property, or both, of the defaulter:

Proviso: No warrant if imprisonment for default is fully served unless special reasons are recorded.

2. Imprisonment in Default of Fine: If the sentence includes imprisonment in default of fine payment,
and the offender has completed the imprisonment, no Court shall issue a warrant for fine recovery
unless:

• There are special reasons recorded in writing, or

• An order for payment of expenses or compensation out of the fine under Section 395 has been
made.

156
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) Warrant to the Collector: When the Court issues a warrant to the Collector under Clause (b) of
Sub-section (1):

• The Collector must recover the amount as per the law for recovering arrears of land revenue.

• The warrant is treated as a certificate under such revenue laws.

Section 462: Effect of such warrant.

Warrants under Section 461(1)(a) are valid outside jurisdiction if endorsed by the District Magistrate.

Section 463: Warrant for levy of fine issued by a Court in any territory to which this Sanhita
does not extend.

Warrants issued from territories not under this Act are treated as valid under Section 461(1)(b).

Section 464: Suspension of execution of sentence of imprisonment.

(1) When an offender has been sentenced to fine only and to imprisonment in default of payment of the
fine, and the fine is not paid forthwith, the Court may

▪ Allow payment of fines in instalments or within a specified period, not

exceeding 30 days,.

▪ Suspend imprisonment for default of fine payment upon execution of a bond

or bail bond.

D. General Provisions Regarding Execution

Section 465:Issuance of Warrants

o Warrants may be issued by the Judge or Magistrate passing the sentence or their
successor.

Section 466: Sentencing Escaped Convicts

(1)When a sentence of death, imprisonment for life or fine for escaped convicts.it will take effect
immediately.

(2) For terms of imprisonment:

(a): If the new sentence is severer in kind than the sentence the convict was serving at the time of
escape, the new sentence will take effect immediately.

(b): If the new sentence is not severer in kind, it will take effect after the convict serves additional
imprisonment equal to the unexpired portion of the previous sentence at the time of escape.

A sentence of rigorous imprisonment is considered severer in kind than a sentence of simple

imprisonment.

Section 467: Sentence on offender already sentenced for another offence.

o (1) New sentences commence after the previous sentence unless directed to run
concurrently.

o (2) When a person already undergoing a sentence of imprisonment for life is sentenced
on a subsequent conviction to imprisonment for a term or imprisonment for life, the
subsequent sentence shall run concurrently with such previous sentence.

Section 468: Period of detention undergone by accused to be set off against sentence of
imprisonment.

157
 Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

The period of detention, if any, undergone by him during the investigation, inquiry or trial of the same
case and before the date of such conviction, shall be set off against the term of imprisonment imposed
on him on such conviction

Provided that in cases referred to in section 475, such period of detention shall be set off against the period of
fourteen years referred to in that section.

Rule of set off regarding imprisonment would not apply –

➔ in case of life convicts(Kartar Singh v State of Haryana 1982 )

➔ in imprisonment in default of payment of fine.

➔ to persons sentenced by a Court Martial(Bhuwaneshwar Singh v UOI, 1993)

Section 469:Sentences of fine defaults are served after substantive sentences.

Section 470: Warrants are returned to the issuing court with an execution endorsement.

Section 471: Recovery of Other Monetary Orders

E. Suspension, Remission, and Commutation of Sentences

Section 472: Mercy Petition

(1) Mercy petitions may be filed before the President or Governor within 30 days of from the date on
which the Superintendent of the jail,—:

(i) informs him about the dismissal of the appeal, review or special leave to appeal by the
Supreme Court; or

(ii) informs him about the date of confirmation of the sentence of death by the High Court and
the time allowed to file an appeal or special leave in the Supreme Court has expired.

(2) The petition under sub-section (1) may, initially be made to the Governor and on its rejection or
disposal by the Governor, the petition shall be made to the President within a period of sixty days from
the date of rejection or disposal of such petition.

(3 )The jail Superintendent or officer in charge must ensure that all convicts in a case file their mercy
petitions within 60 days.

If any convict does not file a mercy petition within the stipulated period, the Superintendent must
forward:

o Names and addresses of all convicts.

o A copy of the case record and other relevant details.

o These details, along with the mercy petition of the filing convict(s), should be sent to
the Central or State Government for consideration.

(4) Central Government seeks State comments and expedites recommendations.

(5) President decides mercy petitions collectively for justice.

(6) Decisions are final and not subject to judicial inquiry.

Section 473: Power to suspend or remit sentences.

(1) Appropriate Government may suspend or remit sentences conditionally or unconditionally.

(2) the appropriate Government may require Judges to provide opinions on applications for suspension
or remission.

158
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) Conditions not fulfilled allow cancellation of suspension or remission and person be arrested by any
police officer, without warrant and remanded to undergo the unexpired portion of the sentence.(HERE
too person can be arrested without warrant)

Provided that in the case of any sentence (other than a sentence of fine) passed on a person above the
age of eighteen years, no such petition by the person sentenced or by any other person on his behalf
shall be entertained, unless the person sentenced is in jail, and— (a) where such petition is made by
the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person
sentenced is in jail.

Section 474: The appropriate Government may, without the consent of the person sentenced,
commute—The appropriate Government may, without the consent of the person sentenced, commute—

Type of Original Sentence Commuted Sentence

Death Sentence Imprisonment for Life
Imprisonment for Life Imprisonment for a Term Not Less Than 7 Years

Imprisonment for 7 Years or More Imprisonment for a Term Not Less Than 3 Years

Imprisonment for Less Than 7

Fine
Years

Rigorous Imprisonment Simple Imprisonment for Any Term Allowed

Section 475:Restriction on powers of remission or commutation in certain cases.

where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which

- death is one of the punishments provided by law,

- or where a sentence of death imposed on a person has been commuted under section 474 into
one of imprisonment for life,

such person shall not be released from prison unless he had served at least fourteen years of
imprisonment.

Section 476: Central Government Powers

o Powers of remission or commutation for death sentences are also vested in the Central
Government.

Section 477: Central Government Concurrence

o State Government requires Central concurrence for:

▪ Offences involving Central Government property.

▪ Offences investigated by Central agencies.

Follow us on instagram@innovative_judiciary.in

159
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXV

PROVISIONS AS TO BAIL AND BONDS

Sections 478- 496

Bail and Bond: Bail refers to the provisional release of the accused in a criminal case

Section 478: In What Cases Bail to Be Taken

(1)Any person not accused of a non-bailable offence who is:

• Arrested or detained without a warrant By OIC, or

• Appears or is brought before a Court,

• and expresses readiness to give bail shall be released on bail.

Special Provision for Indigent Persons:

• The officer in charge or Court:

o May discharge the person on executing a bond for appearance if the person is indigent
and unable to furnish surety.

• Explanation:

o If the person fails to give a bail bond within one week of arrest, they shall be presumed
to be indigent.

This section shall not affect:

o Section 135(3)

o Section 492 Cancellation of Bond and Bail Bond

(2)If the person fails to comply with conditions of bail bond (e.g., time and place of attendance):

o The Court may refuse further release on bail in the same case.

o This refusal does not affect the Court’s power to:

▪ Call upon the person to pay the penalty for breach of bond under Section 491
(Procedure When Bond Has Been Forfeited).

Section 479: Maximum Period for Which Undertrial Prisoner Can Be Detained

1. Release on Bail Based on Detention Period:

• A person undergoing detention during investigation, inquiry, or trial for an offence (not
punishable by death or life imprisonment) shall be released on bail if:

o Detention extends to one-half of the maximum imprisonment for the offence under
the law.

Special Provision for First-Time Offenders:

• If the accused is a first-time offender (never convicted of any offence in the past):

o They shall be released on a bond by the Court if they have undergone detention for
one-third of the maximum imprisonment period.

Extended Detention by Court:

160
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• The Court, after hearing the Public Prosecutor and for reasons recorded in writing, may:

o Order continued detention for a period longer than one-half of the maximum
imprisonment, or

o Release the person on a bail bond instead of a bond.

Maximum Detention Period:

• No person shall be detained during investigation, inquiry, or trial for more than the maximum
period of imprisonment provided for the offence.

Explanation (Exclusion of Delays):

• While calculating the detention period for bail purposes:

o Any delay caused by the accused will not be included.

Sub-Section (2)

• If the accused has multiple investigations, inquiries, or trials pending in more than one
offence or case, they shall not be released on bail under this section.

Sub-Section (3): Role of Jail Superintendent

• On completion of one-half or one-third of the detention period (as applicable), the

Superintendent of the jail where the accused is detained shall:

o Submit a written application to the Court to initiate proceedings for the accused's
release on bail.

Section 480: When Bail May Be Taken in Case of Non-Bailable Offence

Sub-
Provision Conditions/Exceptions Additional Notes
Section

A person accused of a
non-bailable offence
-1 But Not released if:
may be released on
bail.
(i) Reasonable grounds
exist to believe the accused Exceptions: If the accused is a
committed an offence child, woman, sick, or infirm, bail
punishable with death or may be granted.
life imprisonment.
(ii) The offence is
cognizable, and the Special reasons may justify bail for
accused has previously Clause (ii).
convictions for:
- An offence punishable
with death, life
imprisonment, or
imprisonment of 7+ years.
- Two or more cognizable
offences punishable with 3–
7 years.

Provided that Requirement of police custody beyond first 15 days or witness identification is not
sufficient to deny bail if the accused gives an undertaking to comply.

161
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Provided that No bail for offences punishable with death, life imprisonment, or imprisonment of 7+ years
without hearing the Public Prosecutor.

Accused shall be
released on bail if there
are no reasonable
grounds to believe a Subject to provisions of
Release may be conditional, pending
-2 non-bailable offence Section 494 (Bond
further inquiry.
was committed but that required from a child).
there are sufficient
grounds for further
inquiry into his guilt

When bail is granted for

offences punishable
with imprisonment of
-3 7+ years or offences Conditions imposed:
under Chapters VI,
VII, XVII of Bharatiya
Nyaya Sanhita, 2023:

(a) The accused must

attend as per the bond
conditions.
(b) The accused must not
commit a similar offence.
(c) The accused must not
induce, threaten, or
promise any person to The Court may impose additional
dissuade them from conditions in the interests of justice.
disclosing facts or tamper
with evidence.

-4 The officer or Court granting bail must record reasons in writing.

The Court may revoke

bail and order the
-5 (cancellation of Bail)
arrest and custody of
the accused.

If the trial of a non-

The accused must be
bailable offence (triable
released on bail unless the
by a Magistrate) is not Applies only if the accused is in
-6 Magistrate records reasons
concluded within 60 custody for the entire period.
in writing for continued
days from the first date
custody.
of evidence:

If the Court, after the

The accused must be
conclusion of trial and
released on a bond for their
-7 before judgment,
appearance at the time of
believes the accused is
judgment delivery.
not guilty:

Section 481: Bail to Require Accused to Appear Before Next Appellate Court

(1) Before the conclusion of the trial or disposal of the appeal:

162
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

• The trial court or appellate court requires the accused to execute a bond or bail bond.

• The bond ensures the accused appears before a higher court if a notice is issued regarding any
appeal or petition against the court's judgment.

The bond or bail bond:

• Remains valid for six months.

If the accused fails to appear:

• The bond is forfeited.

• The procedure under Section 491: Procedure When Bond Has Been Forfeited is applied.
Follow us on instagram@innovative_judiciary.in

Anticipatory Bail/ Pre-Arrest bail

Section 482: Direction for Grant of Bail to Person Apprehending Arrest

(1) When any person

- has reason to believe

- that he may be arrested on an accusation of having committed a non-bailable offence,
- he may apply to the High Court or the Court of Session
- for a direction under this section; and that Court may, if it thinks fit, direct that in the event
of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session may include such conditions as it may think fit,
including—

(i) a condition that the person shall make himself available for interrogation by a police officer as and
when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to
the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of (Section 480: When Bail May Be
Taken in Case of Non-Bailable Offence, as if the bail were granted under that section)

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of arrest or at any time while in the custody of such
officer to give bail, he shall be released on bail;

and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the
first instance against that person, he shall issue a bailable warrant in conformity with the direction of
the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of
having committed an offence under Section 65 and sub-section (2) of Section 70 of the Bharatiya
Nyaya Sanhita, 2023.

Important points

• The offence against which the bail is sought should be a non-bailable offence.
• There should be a grave apprehension that the accused will be arrested by the police
authorities for such a non bailable offence.
Piyush (Minor) v. State of Haryana, 2021 • The Juvenile Justice Act, 2015,
mandates the provision of granting bail in a
bailable or non-bailable offence

163
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

notwithstanding anything contained in

BNSS. As a juvenile cannot be arrested &
thus, there is no question of apprehension of
his arrest. Hence, the petition BNSS is not
maintainable in case of a juvenile.
• Gurbaksh Singh Sibbia v. State of SC ruled this sec should be interpreted in the
Punjab (1980) light of Article 21 (protection of life and
personal liberty) of the Constitution.” •
Granting of anticipatory Bail as a matter of
right of an individual should not be limited by
time.
• Sushila Aggarwal v. State of NCT of Protection granted in anticipatory bail should
Delhi [2020] not be fixed for a limited period and it could
continue till the end of trial.
• Prem Shankar Prasad v. State of An absconder/proclaimed offender is not
Bihar, 2021 entitled to relief of anticipatory bail.

Section 483: Special Powers of High Court or Court of Session Regarding Bail

Clause Provision Details

- High Court or Court of Session may release a person in
Direction to custody on bail.
1(a) release accused
on bail - For offences specified under Section 480(3), conditions
can be imposed as deemed necessary.
Modification or
- High Court or Court of Session may set aside or modify
1(b) setting aside of
conditions imposed by a Magistrate while granting bail.
bail conditions
- For offences triable exclusively by the Court of Session or
punishable with life imprisonment:
Notice to Public
Prosecutor - Notice of the bail application must be given to the Public
1 (Proviso 1)
before granting Prosecutor.
bail
- Exception: If impractical, reasons must be recorded in
writing.
Notice for
offences under
Section 65 (Rape - High Court or Court of Session must give notice of the bail
1 (Proviso 2) in certain cases) application to the Public Prosecutor within 15 days of
and Section receiving the notice for such offences.
70(2) (Gang
Rape below 18)
Presence of - Mandatory presence of the informant or their authorized
informant representative at the bail hearing for offences under Section
2
during bail 65 (Rape in certain cases) and Section 70(2) (Gang Rape
hearing below 18)
Arrest and
- High Court or Court of Session may order re-arrest and
custody of
3 custody of any person previously released on bail under this
persons
Chapter.
released on bail
.

Cancellation of Bail:

Question Answer
Under which sections can bail be Sections 478(2) (cases other than non-bailable
cancelled? offences), 480(5) (non-bailable cases), and 483(3).

164
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

- Court granting bail: Under Sections 478(2) and

480(5).

- High Court or Court of Session: Under Section

Who has the power to cancel bail?
483(3).

- Note: Police officers have no power to cancel bail.

What is the ground for cancellation of Failure to comply with the conditions of the bond of
bail under Section 478(2)? bail.

Are specific grounds mentioned under No, no specific grounds are mentioned for cancellation
Sections 480(5) and 483(3)? of bail under these sections.

BOND

Section 484: Amount of Bond and Reduction Thereof

(1) The amount of every bond executed under this Chapter shall be fixed with due regard to

• the circumstances of the case

• and shall not be excessive.

(2) The High Court or the Court of Session may direct that the bail required by a police officer or
Magistrate be reduced.

Section 485: Bond of Accused and Sureties

(1) Before any person is released on bond or bail bond,

• a bond for such sum of money as the police officer or Court, as the case may be, thinks
sufficient shall be executed by such person,
• and, when he is released on bond or bail bond, by one or more sufficient sureties
• conditioned that such person shall attend at the time and place mentioned in the bond, and
shall continue so to attend until otherwise directed by the police officer or Court, as the case
may be.

(2) Where any condition is imposed for the release of any person on bail, the bond or bail bond shall
also contain that condition.

(3) If the case so requires, the bond or bail bond shall also bind the person released on bail to appear
when called upon at the High Court, Court of Session or other Court to answer the charge.

(4) The Court may determine the sufficiency or fitness of sureties by accepting affidavits, conducting an
inquiry itself, or directing a subordinate Magistrate to conduct the inquiry.

Section 486: Declaration by Sureties

A surety must declare before the Court

• the number of people they have stood surety for, including the accused, along with relevant
details.

Section 487:Discharge From Custody

165
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(1) As soon as the bond or bail bond is executed, the person for whose appearance it has been
executed shall be released.

If the person is in jail, the court granting bail shall issue an order of release to the jail officer, who
must release the person upon receiving the order.

(2) This provision, along with Section 478 and Section 480, does not require the release of any person
liable to be detained for any other matter beyond the one for which the bond or bail bond was
executed.

Section 488: Power to Order Sufficient Bail When That First Taken Is Insufficient

• If insufficient sureties are accepted due to mistake, fraud, or any other reason, or if the
sureties later become insufficient, the Court may issue a warrant for the arrest of the person
released on bail.
• The Court can order the person to provide sufficient sureties.
• If the person fails to provide sufficient sureties, the Court may commit them to jail.

Section 489: Discharge of Sureties

Sureties for a person released on bail may apply to a Magistrate to discharge the bond, either fully or
partially.

• Upon receiving such an application, the Magistrate shall issue a warrant for the arrest of the
person released on bail.
• When the person appears before the Magistrate, either through the warrant or by voluntary
surrender, the Magistrate shall discharge the bond as requested.
• The Magistrate will require the person to provide new sufficient sureties.
• If the person fails to provide sufficient sureties, the Magistrate may commit them to jail.

Section 490: Deposit Instead of Recognizance

• When a person is required to execute a bond or bail bond, the Court or officer may allow
them to deposit a sum of money or Government promissory notes as an alternative to
executing the bond.
• This provision does not apply to bonds for good behaviour.

Section 491: Procedure When Bond Has Been Forfeited(IMP)

(1) Where,—

• If a bond for appearance or production of property under this Sanhita is forfeited, the Court
or the Court to which the case is transferred must be satisfied of the forfeiture.
• For any other bond under this Sanhita, the forfeiture must be proved to the satisfaction of the
Court that took the bond, the Court to which the case is transferred, or a Magistrate of the
first class.
• the Court shall record the grounds of such proof, and may call upon any person bound by
such bond
o to pay the penalty thereof or
o to show cause why it should not be paid.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the
same as if such penalty were a fine imposed by it under this Sanhita:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the
person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to
imprisonment in civil jail for a term which may extend to six months.

166
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned
and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all
liability in respect of the bond.

(5) If a person who has furnished security under Section 125, Section 136, or Section 401, or
executed a bond under Section 494, is convicted of an offence that breaches the conditions of their
bond:

• A certified copy of the judgment convicting the person may be used as evidence in proceedings
against their surety or sureties.
• If such a certified copy is used, the Court shall presume that the offence was committed by the
person unless the contrary is proved.

Section 492: Cancellation of Bond and Bail Bond

• If a bond or bail bond for appearance is forfeited due to a breach of its condition:
o The bond executed by the person and any bond executed by their sureties will be
cancelled.
o The person shall not be released on their own bond in the same case unless the police
officer or Court is satisfied that there was sufficient cause for the failure to comply
with the bond's condition.
• However, the person may be released upon executing a fresh personal bond and bond by one
or more sureties as deemed sufficient by the police officer or Court.

Procedure in Case of Insolvency or Death of Surety or When a

Section 493:
Bond Is Forfeited
• If a surety to a bail bond becomes insolvent or dies, or the bond is forfeited under Section
491:

o The Court that ordered the bond or a Magistrate of the first class may require the
person to furnish fresh security as per the original order.

o If fresh security is not provided, the Court or Magistrate may treat it as a default in
complying with the original order and proceed accordingly.

Section 494: Bond Required From Child

When the person required by any Court or officer to execute a bond is a child, such Court or officer
may accept, in lieu thereof, a bond executed by a surety or sureties only.

Section 495: Appeal From Orders Under Section 491

All orders passed under Section 491: Procedure When Bond Has Been Forfeited shall be
appealable,—
(i) in the case of an order made by a Magistrate, to the Sessions Judge;
(ii) in the case of an order made by a Court of Session, to the Court to which an appeal lies from an
order made by such Court.

Section 496: Power to Direct Levy of Amount Due on Certain Recognizances

The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond for
appearance or attendance at such High Court or Court of Session.

167
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXVI

DISPOSAL OF PROPERTY

Sections 497 – 505

Section Provision

Order for custody and disposal of property pending trial in certain cases.: When
property is produced before a Criminal Court or Magistrate during investigation, inquiry, or
trial:

- Court/Magistrate may order proper custody of property until the investigation, inquiry, or
trial concludes.

- If the property is subject to decay or it is expedient, the Court/Magistrate may order its
sale or disposal after recording evidence.

497
- Property includes: (a) Property or documents produced before the Court or in its custody.
(b) Property connected with or used in the commission of an offence.

Within 14 days fourteen days from the production of the property, the
Court/Magistrate must prepare a statement of property and take photographs or
videography. Which shall be used as evidence in any inquiry, trial or other proceeding under
the Sanhita.

- Within 30 days, the Court/Magistrate must order disposal, destruction, confiscation, or

delivery of property.

Disposal of Property at Conclusion of Trial: When investigation, inquiry, or trial

concludes, the Court/Magistrate may:

- Dispose of property by destruction, confiscation, or delivery to a person entitled to

possession.

- Allow delivery on the condition of executing a bond, with or without sureties, for
498 restoration if the order is modified on appeal.

- Court of Session may direct the Chief Judicial Magistrate to deal with the property under
Sections 503–505.

- Disposal orders (except perishable goods or livestock) shall not be carried out for 2
months or until appeals are resolved.

Payment to Innocent Purchasers: If a person is convicted of theft or receiving stolen

499
property, and it is proved that the purchaser bought the property innocently:

168
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

- The Court may order a portion of money recovered from the accused (not exceeding the
price paid by the purchaser) to be returned to the purchaser upon the stolen property’s
restitution to its rightful owner.

Appeal Against Orders Under Sections 498 and 499:

- Any person aggrieved by orders under Sections 498 or 499 can appeal to the Court to
500 which appeals ordinarily lie from convictions by the former Court.

- The appellate Court may stay, modify, alter, annul, or issue further orders.

Destruction of Libellous and Other Matters:

501 - On conviction for specific offences (e.g., under Sections 294, 295, 356, 274, etc.), the
Court may order the destruction of libellous materials, food, drink, drugs, or items linked to
the offence.

Restoration of Immovable Property:

- If a conviction is related to dispossession of immovable property through criminal force,

the Court may order restoration of possession to the rightful person, Provided that no such
order shall be made by the Court more than one month after the date of the conviction.
502

- If not ordered during trial, appellate/review Courts may issue the order.

- The order does not prejudice civil suits for property rights.

Procedure by police upon seizure of property.

- If police report the seizure of property to a Magistrate but it is not produced in Court:

503
- The Magistrate may order delivery to the person entitled to possession or retain it.

- If the rightful person is unknown, the Magistrate must issue a proclamation requiring
claims within 6 months.
Procedure When No Claimant Appears:
- If no one claims the property within 6 months or the person in possession cannot prove
legal acquisition:
504
- The Magistrate may order the property to be at the disposal of the State Government,
and it may be sold, with proceeds handled as per rules set by the State Government.

Sale of Perishable Property:

- If the rightful owner is unknown or absent, and the property is perishable, of low value
505 (under ₹10,000), or its sale benefits the owner, the Magistrate may direct a sale.

- The net proceeds of the sale are handled as per Sections 503 and 504.
Follow us on instagram@innovative_judiciary.in

169
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXVII

IRREGULAR PROCEEDINGS

Sections 506 - 512

In BNSS 2023,it can be of 2 types from the point of their effect

• 1. Irregularities which do not vitiate proceedings i.e., curable irregularities (nine kinds of
irregularities provided they are caused erroneously and in good faith.)
• 2.Irregularities which vitiate proceedings i.e., incurable irregularities (17 incurable
irregularities, which, would result in vitiating the proceedings and make the proceeding void.

Section 506: Irregularities Which Do Not Vitiate Proceedings

• If a Magistrate not empowered by law performs certain actions erroneously in good faith,
the proceedings will not be set aside solely due to lack of authority.

Issuing search warrants

(Section 97).

Ordering police
investigations (Section 174).

Holding inquests (Section

196).
Irregularities Which Do Not
Vitiate Proceedings

Issuing processes for

apprehension (Section 207).

Taking cognizance (Section

210(1)(a) or (b)).

Making over cases (Section

212(2)).

Tendering pardons (Section

343).

Recalling and trying cases

(Section 450).

Selling property (Sections

504, 505).
Follow us on instagram@innovative_judiciary.in

• If a Magistrate not empowered by law performs certain actions erroneously in good faith,
the proceedings will not be set aside solely due to lack of authority.

170
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 507: Irregularities Which Vitiate Proceedings

• If a Magistrate not empowered by law performs certain actions, the proceedings will be void.
Follow us on instagram@innovative_judiciary.in

Attaching and selling property (Section 85).

issues a search-warrant for a document, parcel or other things in the

custody of a postal authority;

demands security to keep the peace;

Irregularities Which Vitiate Proceedings

demands security for good behaviour;

discharges a person lawfully bound to be of good behaviour

cancels a bond to keep the peace;

Passing maintenance orders

makes an order under section 152 as to a local nuisance;.

prohibits, under section 162, the repetition or continuance of a public nuisance;

makes an order under Part C or Part D of Chapter XI;

takes cognizance of an offence under clause (c) of sub-section (1) of

section 210;

tries an offender;

tries an offender summarily;

passes a sentence, under section 364, on proceedings recorded by

another Magistrate;

decides an appeal;

calls, under section 438, for proceedings;

or revises an order passed under section 491,

Taking cognizance (Section 210(1)(c)).

171
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Section 508: Proceedings in Wrong Place

• No finding, sentence, or order shall be set aside due to an inquiry or trial conducted in a wrong
sessions division, district, sub-division or other local area, unless it appears that such error
has in fact occasioned a failure of justice.

Section 509: Non-Compliance with Provisions of Section 183 or Section 316

• If a confession or statement recorded under Sections 183 or 316 is non-complied, the Court
may take evidence to address the issue, notwithstanding anything contained in section 94 of
the Bharatiya Sakshya Adhiniyam, 2023, take evidence in regard to such non-compliance

• If non-compliance has not injured the accused’s defense, the statement may still be admitted.

Section 510: Effect of Omission to Frame, Absence of, or Error in Charge

• Errors in charges or lack of framing charges shall not invalidate a finding, sentence, or order
unless it caused a failure of justice.

o Remedies:

▪ (a) Omission of charges: Court may order charges to be framed and trial
recommenced.

▪ (b) Errors in charges: Court may order a retrial or quash conviction if no valid
charge can be made.

Section 511: Finding or Sentence When Reversible by Reason of Error, Omission, or Irregularity

• Errors, omissions, or irregularities in complaints, summons, warrants, sanctions, etc., shall

not reverse a finding, sentence, or order unless it caused a failure of justice.

• The Court shall consider whether objections could have been raised earlier.

Section 512: Defect or Error Not to Make Attachment Unlawful

• No attachment shall be considered unlawful, nor the officer executing it deemed a trespasser,
due to defects in form of summons, conviction, or writ.

Question for you- Magistrate not empowered, tries an offender summarily. State with reason whether
trial is vitiated in this case?

Follow us on instagram@innovative_judiciary.in

172
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Chapter XXXVIII

Limitation for Taking Cognizance of Certain Offences

Sections 513 - 519

Section 513: Definition of "Period of Limitation"

• "Period of limitation" refers to the time specified in Section 514 for taking cognizance of an
offence.

Section 514: Bar to Taking Cognizance After Lapse of Period of Limitation

• No Court shall take cognizance of certain offences after the expiry of the limitation period:

o Six months: Offences punishable with fine only.

o One year: Offences punishable with imprisonment up to one year.

o Three years: Offences punishable with imprisonment exceeding one year but not more
than three years.

For offences tried together, the period of limitation is determined by the offence with the most
severe punishment.

• The relevant date for computing the limitation period is:

o Date of filing complaint (Section 223).

o Date of recording information (Section 173).

Section 515: Commencement of Period of Limitation

• Limitation starts:

o From the date of the offence.

o From the date the offence was first known to the aggrieved person or police officer,
whichever is earlier.

o From the date the offender’s identity became known to the aggrieved person or
investigating officer, whichever is earlier.

• The day from which the period is computed is excluded.

Section 516: Exclusion of Time in Certain Cases

• Time is excluded for computing the period of limitation in the following situations:

Sub-
Situation Exclusion Details
Section
Prosecution in another - Time spent prosecuting in good faith in a Court that could not
-1 Court with due entertain the case due to jurisdictional defects or similar
diligence. reasons shall be excluded.

- Exclusion applies only if the prosecution relates to the same

facts.
Institution of
- Time during which the prosecution was stayed by an injunction
-2 prosecution stayed by
or order shall be excluded.
injunction or order.

173
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

- The day the injunction or order was issued, and the day it was
withdrawn, are also excluded.
Notice of prosecution or
requirement of prior
- Time required for notice of prosecution or obtaining
-3 consent/sanction by
consent/sanction shall be excluded.
Government or other
authority.

- The date of application for consent and the date of receipt of the
order granting/denying consent shall also be excluded.

Offender's absence from - Time during which the offender was absent from India or any
-4 India or Central territory administered by the Central Government shall be
Government territory. excluded.

Offender's avoidance of - Time during which the offender avoided arrest by absconding or
arrest. concealing himself shall be excluded.

Section 517: Exclusion of Date When Court is Closed

• If the limitation period expires on a day when the Court is closed, cognizance can be taken on
the next working day.

Explanation: A Court is deemed closed if it remains shut during its normal working hours.

Section 518: Continuing Offence

• For continuing offences, a fresh limitation period begins at every moment the offence
continues.

Section 519: Extension of Period of Limitation in Certain Cases

• Courts may take cognizance of offences beyond the limitation period if:

o The delay has been properly explained.

o It is necessary to do so in the interests of justice.

174
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

CHAPTER XXXIX

MISCELLANEOUS

(Sec 520-531)

Chapter 39

522Forms 527Public
526Practising Servant 528Saving of
521Delivery to 523Power of 529Duty of
520Trials Before 525Cases in Advocate Not Concerned in Inherent
Commanding High Court to 524Power to High Court to 530Trial and
High Courts Which Judge to Sit as Sale Not to Powers of High 531Repeal and
Officers of Make Rules Alter Functions Exercise Proceedings to
or Magistrate Magistrate in Purchase or Court Savings
Persons Liable Allocated to Continuous Be Held in
is Personally Certain Courts Bid for
to be Tried by Executive Superintenden Electronic
Interested Property ce Over Courts
Court-Martial Magistrates in Mode
Certain Cases

Section 520: Trials Before High Courts

High Court trials (except under Section 447) follow Sessions Court procedures.

Section 521: Delivery to Commanding Officers of Persons Liable to be Tried by Court-Martial

Central Government can make rules for trials involving Armed Forces personnel; Magistrates may
hand over accused to commanding officers for Court-martial.

Section 522: Forms

Forms in the Second Schedule may be used with necessary variations and are deemed sufficient.

Section 523: Power of High Court to Make Rules

High Courts can make rules for petition-writers, their licensing, fees, and penalties, with State
Government approval.

Section 524: Power to Alter Functions Allocated to Executive Magistrates in Certain Cases
If the Legislative Assembly of a State by a resolution so permits, the State Government may, after
consultation with the High Court, by notification, direct that references in sections 127, 128, 129, 164
and 166 to an Executive Magistrate shall be construed as references to a Judicial Magistrate of the
first class.

Section 525: Cases in Which Judge or Magistrate is Personally Interested

No Judge or Magistrate shall:

• Try or commit for trial any case where they are a party or personally interested.

• Hear an appeal from any judgment or order they themselves have passed or made.

Exception:

• Permission from the appellate Court is required for the above actions.

175
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

Explanation:

• A Judge or Magistrate is not personally interested merely because:

o They are involved in the case in a public capacity.

o They have visited the place of the offence or material transaction and conducted
related inquiries.

Section 526: Practising Advocate Not to Sit as Magistrate in Certain Courts

Advocates practicing in a Magistrate's Court cannot sit as Magistrates in the same jurisdiction.

Section 527: Public Servant Concerned in Sale Not to Purchase or Bid for Property
Public servants involved in property sales cannot bid or purchase the property.

Section 528: Saving of Inherent Powers of High Court

this provides the High Court with inherent powers to ensure justice and prevent misuse of the legal
process. The section reads:

"Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary –"

1. To give effect to any order under CrPC.

2. To prevent abuse of the process of any Court.

3. To secure the ends of justice.

Principles Governing Section 528:

• Judicial Discretion: The High Court must exercise its inherent powers sparingly and
judiciously.

• Balance: The power is not to be used routinely but to prevent the miscarriage of justice.

• Jurisdictional Limit: These powers are supplemental to the statutory provisions of CrPC and
cannot override them.

Earlier in Criminal Procedure code section No 482 specifies similar contents, Some case laws are
follows

Case Laws on Section 482 CrPC/528 BNSS

Manish Madan v. State, 2014

o Maxim: The section is based on the principle – quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest (when the law gives something,
it also gives all that is necessary to realize it).

Saranya v. Bharathi, 2021

o At the stage of exercising powers under Section 482, the High Court is not required to
evaluate evidence to determine the likelihood of conviction.

Kaptan Singh v. State of Uttar Pradesh, 2021

o Appreciation of evidence is impermissible at the stage of quashing proceedings under

Section 482.

o The High Court must refrain from acting as a trial court while evaluating the merits.

State of Madhya Pradesh v. Kunwar Singh, 2021

176
Bharatiya Nagrik Suraksha Sanhita 2023
By innovative Judiciary

o High Courts should avoid detailed inquiries into allegations during Section 482
proceedings.

o Material should not be scrutinized in the manner adopted during a trial.

State of Haryana v. Bhajan Lal, 1992

o Provided guidelines for quashing criminal proceedings. These include cases where:

▪ Allegations do not constitute a cognizable offense.

▪ Proceedings are initiated maliciously or vexatiously.

T. Nagappa v. Y.R. Muralidhar, 2008

o Highlighted the duty of the High Court to use inherent powers to prevent injustice or
abuse of court process.

Pepsi Foods Ltd. v. Special Judicial Magistrate, 1998

o Held that inherent powers must be exercised to protect a person from unnecessary
harassment in criminal proceedings.

Gian Singh v. State of Punjab, 2012

o The Supreme Court emphasized that inherent powers could be invoked in private
disputes (e.g., matrimonial or family disputes) where parties reach a compromise.

Bajanlal Test (Bhajan Lal v. State of Haryana, 1992)**

• Criminal proceedings can be quashed if:

a) No prima facie case is made out.
b) Allegations lack substance or evidence.
c) The proceedings are malicious or vexatious.

Dr. Monica Kumar v. State of Uttar Pradesh, 2008

• Section 482 empowers High Courts to quash proceedings that result in harassment or
injustice.

Inder Mohan Goswami v. State of Uttaranchal, 2007

• Reinforced the principle that inherent powers should prevent abuse of legal process or
unnecessary litigation.

Section 529: Duty of High Court to Exercise Continuous Superintendence Over Courts
High Courts must oversee subordinate Courts to ensure expeditious case disposal.

Section 530: Trial and Proceedings to Be Held in Electronic Mode

Trials, inquiries, and proceedings may be conducted electronically (e.g., summons, evidence
recording, appeals).

Section 531:
Repeal and Savings

• The Code of Criminal Procedure, 1973 is hereby repealed

• but pending matters will continue under the old Code.
• Existing notifications, orders, and sanctions under the old Code are
deemed valid under the new Sanhita.

177