Bharatiya Nagarik Suraksha Sanhita, 2023

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 is a significant legislative measure aimed at consolidating and amending the laws related to criminal procedure in India. It introduces modernised procedures to improve efficiency, transparency, and fairness in criminal proceedings while retaining the core principles of justice. Enacted by the Indian Parliament in its seventy-fourth year, this Act serves as a comprehensive code that governs how criminal investigations, trials, and prosecutions are conducted across the country.

The Act applies across India, with some exceptions for specific states and tribal areas, reflecting the diverse legal needs of various regions. By incorporating technological advancements like audio-video conferencing and electronic communication, it updates traditional criminal procedures, bringing them in line with contemporary requirements.

Key Definitions in the Bharatiya Nagrik Suraksha Sanhita, 2023

1. Bail: Bail refers to the release of a person accused or suspected of a crime from legal custody, subject to conditions set by a court or officer. The accused must execute a bond or bail bond, ensuring their compliance with the conditions of release.
2. Bailable Offence: A bailable offence is one in which the accused has the right to be released on bail, as defined in the First Schedule of the Sanhita or any other applicable law.
3. Cognizable Offence: This refers to an offence for which a police officer can arrest a suspect without a warrant, as permitted by the First Schedule or other laws in force.
4. Complaint: A complaint is any allegation made to a Magistrate, either orally or in writing, seeking action against a person accused of committing an offence. It does not include a police report but may cover cases where a non-cognizable offence is disclosed.
5. Electronic Communication: This term encompasses all forms of written, verbal, or visual communication transmitted through electronic devices such as mobile phones, computers, or audio-video systems.
6. Investigation: The process of collecting evidence conducted by a police officer or another person authorised by a Magistrate. It includes all proceedings aimed at uncovering facts relevant to a criminal case.
7. Victim: A victim is defined as any person who has suffered loss or injury due to the actions or omissions of the accused. It also includes legal guardians or heirs in cases where the direct victim is unable to pursue the case.
8. Warrant-case: A warrant-case involves offences punishable by death, life imprisonment, or imprisonment for more than two years.

Construction of References under the Bharatiya Nagarik Suraksha Sanhita, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 provides important clarifications for interpreting references to Magistrates across various laws, ensuring that judicial and administrative roles are clearly distinguished.

1. References to Magistrates: When the term “Magistrate” is used in any law without further qualification, it is to be interpreted as referring to either a Judicial Magistrate of the First Class or a Judicial Magistrate of the Second Class, depending on the area where jurisdiction is exercised. This distinction ensures uniformity in the understanding of judicial roles and responsibilities across different regions of India.
2. Magistrate’s Functions:
   • Judicial Functions: If the functions of a Magistrate involve decisions that can affect the legal standing of a person, such as assessing evidence, deciding on punishments or penalties, or detaining a person during an investigation, these are to be exercised by a Judicial Magistrate. Judicial Magistrates handle matters that directly affect an individual’s rights and freedoms, making their role crucial in legal proceedings.
   • Executive Functions: In contrast, if the functions are more administrative or executive, such as issuing or cancelling licences, sanctioning or withdrawing prosecutions, these are to be performed by an Executive Magistrate. This distinction ensures that administrative tasks are handled separately from judicial matters.

Trial of Offences under the Bharatiya Nagarik Suraksha Sanhita, 2023 and Other Laws

The Bharatiya Nagarik Suraksha Sanhita, 2023 lays out clear guidelines for how offences under different laws, including the Bharatiya Nagarik Suraksha Sanhita, 2023, should be handled:

1. Offences under Bharatiya Nyay Sanhita, 2023: All offences under this new legal code are to be investigated, inquired into, and tried according to the procedures outlined in the Sanhita. This ensures consistency and adherence to the updated criminal procedures introduced by the new law.
2. Offences under Other Laws: For offences under other laws, the same procedural framework applies, unless a different process is explicitly provided by the specific law. This provision ensures that the Bharatiya Nagarik Suraksha Sanhita serves as the default criminal procedure framework unless other laws dictate a different approach.

Saving Clause

The Saving Clause in the Bhartiya Nagrik Suraksha Sanhita, 2023, ensures that existing special or local laws remain unaffected unless explicitly stated otherwise. This includes any special jurisdictions or procedures established by other laws that may take precedence in specific situations. The clause safeguards the application of regional or specialised legal frameworks, preserving the legal diversity necessary in a country as vast and varied as India.

Classification of Courts under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines the structure and classification of criminal courts in India, ensuring that justice is delivered efficiently across various levels of governance. This article provides a clear overview of the classification of courts, their territorial divisions, and the establishment of Courts of Session as detailed in Sections 6, 7, and 8 of the Sanhita.

Classes of Criminal Courts

The BSNS categorises criminal courts into four main types, besides the High Courts and other courts established under different laws. These are:

• Courts of Session: These are the highest criminal courts within each session’s division.
• Judicial Magistrates of the First Class: These magistrates have higher authority than those of the second class and handle more serious cases.
• Judicial Magistrates of the Second Class: These magistrates handle less severe cases than their first-class counterparts.
• Executive Magistrates: These magistrates have administrative and quasi-judicial functions, distinct from the purely judicial roles of the judicial magistrates.

Each class of court has a specific role and jurisdiction, ensuring that cases are handled by courts with the appropriate level of authority and expertise.

Territorial Divisions

The territorial structure of the criminal courts is also carefully defined. Every state is divided into session divisions, which may consist of one or more districts. These divisions serve as the primary units for the administration of criminal justice. The key points include:

• Each state is either a single sessions division or is divided into multiple sessions divisions.
• Districts fall within these divisional divisions, and the state government, in consultation with the High Court, can modify the limits or the number of divisions and districts.
• Additionally, districts can be divided into subdivisions to facilitate more localised administration of justice. This subdivision process also requires consultation with the High Court.

The system in place at the time of the commencement of the Sanhita is recognized under the new law, ensuring continuity of administration.

Court of Session 

The Court of Session is the highest criminal court within a sessions division. Its establishment and operation are governed by the following principles:

• Establishment

The State Government must establish a Court of Session for every session division.

• Appointment of Judges 

Each Court of Session is presided over by a Sessions Judge, appointed by the High Court. The High Court can also appoint Additional Sessions Judges to assist with the court’s workload.

• Flexibility in Jurisdiction

The High Court may appoint a Sessions Judge from one division to serve as an Additional Sessions Judge in another division. This flexibility ensures that cases are handled efficiently across divisions.

• Handling Urgent Matters

In the absence of the Sessions Judge, urgent applications can be handled by an Additional Sessions Judge or, if none are available, by the Chief Judicial Magistrate. This provision ensures that important matters are not delayed.

• Sittings of the Court

Courts of Session generally hold their sittings at locations specified by the High Court. However, in certain cases, the Sessions Judge may decide to hold the court at a different location within the division, provided it is convenient for the parties involved.

Judicial Magistrates under the Bharatiya Nagarik Suraksha Sanhita

Judicial Magistrates play a critical role in the administration of criminal justice, handling cases at the district and sub-district levels. Below is a detailed breakdown of the various provisions concerning Judicial Magistrates as outlined in the BNSS.

Courts of Judicial Magistrates 

Every district is required to have Courts of Judicial Magistrates of both the first and second class, with the number of courts and their location determined by the State Government in consultation with the High Court. This ensures that the distribution of these courts is based on local requirements and the workload in each area.

Additionally, for specific cases or classes of cases, the State Government can establish Special Courts of Judicial Magistrates, which would have exclusive jurisdiction over these cases, preventing any other court in the area from handling them. The High Court appoints the presiding officers for these courts, ensuring that qualified judges are in charge.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

In every district, the High Court must appoint a Chief Judicial Magistrate (CJM) from among the Judicial Magistrates of the first class. The CJM holds the highest authority among the district’s Judicial Magistrates and is responsible for overseeing their functioning.

The High Court can also appoint Additional Chief Judicial Magistrates, who possess the same powers as the CJM but are designated to assist in managing the workload. Furthermore, a Judicial Magistrate of the first class may be designated as a Sub-divisional Judicial Magistrate to handle specific responsibilities in subdivisions, ensuring a smooth distribution of cases and responsibilities in larger districts.

Special Judicial Magistrates

The High Court, upon the request of the Central or State Government, may confer the powers of a Judicial Magistrate of the first or second class on an individual who holds or has held a post in the government. These appointees, referred to as Special Judicial Magistrates, are granted specific powers for particular cases or classes of cases within a defined local area.

These magistrates must possess the qualifications and legal experience set by the High Court, ensuring that only qualified individuals are appointed. Special Judicial Magistrates are appointed for a term not exceeding one year, though this may be extended as required.

Local Jurisdiction of Judicial Magistrates

The local jurisdiction of Judicial Magistrates is primarily defined by the Chief Judicial Magistrate, under the control of the High Court. The Chief Judicial Magistrate can periodically redefine the local limits within which these magistrates can exercise their powers, ensuring that jurisdictional boundaries are flexible and can adapt to changing needs.

Special Judicial Magistrates, in particular, have the flexibility to hold court sessions at any place within their designated area, depending on the needs of the cases they are handling. Generally, a Judicial Magistrate’s powers extend throughout the district unless specifically limited by the jurisdictional rules defined by the CJM.

Subordination of Judicial Magistrates

Every Judicial Magistrate operates under a well-defined hierarchy. The Chief Judicial Magistrate is subordinate to the Sessions Judge, ensuring a clear chain of command and supervision. Similarly, all other Judicial Magistrates are subordinate to the CJM, though their control and supervision ultimately fall under the Sessions Judge.

The Chief Judicial Magistrate holds the authority to distribute work among the Judicial Magistrates subordinate to him, making rules or issuing special orders to ensure that the business of the court is efficiently managed.

Executive Magistrates under the Bharatiya Nagarik Suraksha Sanhita

Executive Magistrates play a crucial role in maintaining law and order under the Bharatiya Nagarik Suraksha Sanhita (BNSS). The law clearly defines their appointments, roles, and jurisdiction within districts and sub-divisions.

Appointment of Executive Magistrates

The State Government holds the authority to appoint Executive Magistrates in every district, selecting as many as necessary. One of these magistrates is designated as the District Magistrate, who holds the highest executive authority in the district.

Additional District Magistrate

The State Government can also appoint an Executive Magistrate as an Additional District Magistrate. This individual has powers similar to those of a District Magistrate, as conferred by the government.

Temporary Administration

If the office of the District Magistrate is temporarily vacant, an officer who takes over the district’s administration will temporarily exercise the powers and duties of a District Magistrate until the State Government appoints a replacement.

Sub-divisional Magistrates

The State Government may assign an Executive Magistrate to oversee a sub-division of a district, known as a Sub-divisional Magistrate. The District Magistrate has the power to delegate and oversee these appointments.

Special Executive Magistrates

For specific functions or particular areas, the State Government can appoint Special Executive Magistrates. This role can be filled by any police officer of the rank of Superintendent of Police or above, and these magistrates have powers similar to Executive Magistrates for the functions they are tasked with.

Local Jurisdiction

The District Magistrate defines the local limits for the jurisdiction of Executive Magistrates. Typically, unless specified otherwise, their powers extend throughout the district.

Subordination of Executive Magistrates

All Executive Magistrates are subordinate to the District Magistrate, and in subdivisions, they are also subordinate to the Sub-divisional Magistrate. The District Magistrate can issue rules and orders consistent with the Sanhita to ensure proper functioning and control.

Public Prosecutors under the Bharatiya Nagarik Suraksha Sanhita

Public Prosecutors act as the legal representatives of the government in criminal cases, ensuring that justice is served while balancing the rights of the accused and the victim.

Appointment of Public Prosecutors

Under the BNSS, both the Central and State Governments are responsible for appointing Public Prosecutors for High Courts, district courts, and other courts as necessary.

1. High Courts: Public Prosecutors for High Courts are appointed by the Central or State Government, in consultation with the High Court. They can also appoint Additional Public Prosecutors to assist in handling the volume of cases. In the case of the National Capital Territory of Delhi, the Central Government specifically appoints the Public Prosecutor after consulting with the Delhi High Court.
2. District Courts: For every district, the State Government appoints a Public Prosecutor. In cases of larger districts or higher caseloads, Additional Public Prosecutors can also be appointed. The unique provision here allows a Public Prosecutor from one district to serve in another district if required.
3. Assistant Public Prosecutors: Assistant Public Prosecutors (APPs) are appointed by the State Government for conducting prosecutions in Magistrate Courts. In the absence of a regular APP, the District Magistrate can appoint another person to serve in that capacity for specific cases.

Criteria for Appointment

Public Prosecutors must meet stringent qualifications to ensure the highest legal standards are upheld:

• Eligibility: To be appointed as a Public Prosecutor or Additional Public Prosecutor, a person must have been practising as an advocate for at least seven years. For Special Public Prosecutors, the minimum requirement is ten years of legal practice.
• Selection Panel: In districts, the District Magistrate, in consultation with the Sessions Judge, prepares a panel of suitable candidates. The State Government can only appoint Public Prosecutors from this panel unless a special Prosecuting Officers’ Cadre exists.

Role of Prosecuting Officers’ Cadre

Where a State has a regular “Cadre of Prosecuting Officers,” Public Prosecutors are selected from within this cadre. This cadre typically includes roles such as Assistant Public Prosecutors and is a system designed to promote efficiency and career progression within the prosecution service.

Special Public Prosecutors

In some cases, the government may appoint Special Public Prosecutors to handle particular cases or categories of cases. These are typically advocates with significant experience (minimum of ten years). This provision ensures that complex or sensitive cases are handled by highly qualified professionals. Victims are also given the option to engage their own advocate to assist the prosecution, providing an added layer of legal support.

Directorate of Prosecution

The BNSS establishes a structured Directorate of Prosecution to ensure efficient and effective management of criminal prosecutions. Each state may set up its own Directorate, headed by a Director of Prosecution, who reports to the Home Department. The Directorate includes Deputy Directors and Assistant Directors, responsible for overseeing cases in different courts and monitoring cases based on the severity of the offence.

• Director of Prosecution: Oversees cases involving severe penalties such as imprisonment for ten years or more, life imprisonment, or the death penalty. They play a crucial role in ensuring timely prosecution and advising on appeals.
• Deputy and Assistant Directors of Prosecution: The Deputy Director manages cases where the offence attracts a punishment of seven to ten years, while the Assistant Director monitors less severe cases (punishment of less than seven years). These officers ensure the expeditious disposal of cases and maintain the quality of legal proceedings.

Checks and Balances

The BNSS also ensures checks in the appointment of Public Prosecutors, particularly by requiring consultation with judicial officers such as the High Court for senior appointments and the Sessions Judge for district-level appointments. Moreover, it prohibits the appointment of police officers as prosecutors in cases where they have participated in the investigation, thereby maintaining impartiality in the prosecution process.

Power of Courts under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita, 2023, provides a comprehensive framework for the distribution and execution of judicial powers in India’s criminal justice system. It defines the jurisdiction and sentencing authority of courts ranging from the High Court to different classes of magistrates. This structured approach ensures that justice is administered efficiently while maintaining a clear division of responsibilities across the judiciary. Here’s a detailed look at the powers of courts under the BNSS.

1. Courts Authorised to Try Offences

The BNSS lays out which courts can try offences based on the severity and nature of the crime. The main courts with jurisdiction over offences under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), include:

• High Court: The highest court in the state or union territory can try any offence under the BNS.
• Court of Session: A court empowered to try serious criminal cases.
• Other Courts: These are specified in the First Schedule of the BNS, which lists various offences and the corresponding courts that can handle them.

Additionally, for crimes involving certain sections of the BNS (sections 64 to 71), such as offences related to sexual crimes or human trafficking, the law prefers that they be tried by a court presided over by a woman, when feasible. This provision acknowledges the sensitivity of certain cases and seeks to create a more supportive environment for the victims.

When it comes to offences under other laws, the court designated within that specific legislation will try the case. If no specific court is mentioned, the trial can take place in the High Court or any other court authorised by the First Schedule of the BNSS.

2. Sentencing Powers of Courts

The BNSS provides clear guidelines on the types of sentences that different courts can impose. The sentencing power is directly related to the court’s position in the judicial hierarchy.

• High Courts: High Courts hold the ultimate authority and can impose any sentence allowed by law, including the death penalty.
• Sessions Courts: Sessions Judges and Additional Sessions Judges also have broad sentencing powers. They can impose any sentence, but a death sentence must be confirmed by the High Court before it becomes final.

For magistrates, the power to sentence is more restricted:

• Chief Judicial Magistrates: They can impose any sentence allowed by law except for death, life imprisonment, or imprisonment exceeding seven years.
• Magistrates of the First Class: These magistrates can impose a maximum sentence of three years of imprisonment or a fine up to ₹50,000. They can also assign community service as an alternative or additional punishment.
• Magistrates of the Second Class: The sentencing power here is limited to imprisonment for a maximum of one year or a fine not exceeding ₹10,000, or both. They also have the authority to order community service.

Community Service as a Sentence:

Community service, as defined in the BNSS, is unpaid work performed by the convict for the benefit of the community. It is introduced as an alternative to imprisonment or fines, aimed at rehabilitation rather than mere punishment.

3. Imprisonment in Default of Fine

In cases where a person is unable to pay a fine imposed by the court, the magistrate has the authority to impose imprisonment in lieu of the fine. However, the term of imprisonment:

• Cannot exceed the magistrate’s own sentencing powers under Section 23 of the BNSS.
• Must be limited to one-fourth of the term of imprisonment the magistrate could impose for the substantive offence.

This rule ensures that the punishment for non-payment of fines remains proportional to the offence and does not result in overly harsh penalties.

4. Sentencing for Multiple Offences

When a person is convicted of multiple offences in a single trial, the BNSS allows the court to impose sentences for each offence. The court can order these sentences to run concurrently (together) or consecutively (one after the other). However, there are limits to prevent excessive punishment:

• The total imprisonment should not exceed 20 years.
• The aggregate punishment cannot exceed twice the maximum punishment the court could impose for a single offence.

This provision ensures that the punishment remains fair and does not become disproportionately severe even if a person is convicted of multiple crimes in one trial.

5. Conferment, Transfer, and Withdrawal of Powers

The conferment of powers under the BNSS allows the High Court or the State Government to empower individuals by name or by virtue of their official position. This can be done either for specific cases or for general classes of cases, ensuring that judicial powers are allocated efficiently.

In terms of transfer of powers, when an officer who has been vested with judicial powers is transferred or promoted to another position of equal or higher responsibility within the same area, they retain their judicial powers unless specifically revoked by the High Court or State Government.

Finally, the withdrawal of powers ensures that the judiciary maintains accountability. The High Court or the State Government can revoke any judicial powers granted under the BNSS. Similarly, the Chief Judicial Magistrate or District Magistrate can withdraw powers they have conferred upon other magistrates.

6. Succession of Judicial Powers

When a magistrate or judge vacates office, their successor-in-office automatically inherits the powers and duties associated with that role. If there is any confusion or doubt about who the successor is, the Sessions Judge (for judges) or Chief Judicial Magistrate (for magistrates) will issue an order clarifying who the successor is. This provision ensures the continuity of judicial functions and avoids delays in ongoing cases due to changes in judicial personnel.

Powers of Superior Officers of Police and Public Assistance to Magistrates and Police

In the administration of law and order, superior police officers and the general public play essential roles. Sections 30-34 of the Bharatiya Nagarik Suraksha Sanhita, 2023, outline these responsibilities, covering the authority of superior officers and the public’s obligation to assist the police and Magistrates in various circumstances.

Powers of Superior Officers of Police

According to Section 30, police officers of higher rank than an officer in charge of a police station are granted equivalent authority throughout their assigned local area. This means they have the same operational powers as a station officer, enabling them to act promptly across jurisdictional boundaries within their designated regions. This provision ensures a streamlined response in maintaining law and order, allowing superior officers to act decisively without location-based limitations.

Public Obligation to Aid Magistrates and Police

Section 31 highlights the duty of every citizen to assist Magistrates and police officers when reasonably requested. The scope of this assistance is defined in three primary ways:

1. Preventing Escapes: Citizens are expected to assist in detaining individuals authorised for arrest to prevent any potential escape.
2. Preventing or Suppressing Breaches of Peace: In situations where peace is threatened, citizens must aid efforts to restore order and prevent disturbances.
3. Protecting Public Property: If there is a threat to public property, individuals must support efforts to prevent damage.

This section emphasises the public’s critical role in supporting law enforcement’s primary functions when required.

Assistance in Executing Warrants

Section 32 extends the duty of assistance to situations involving warrant executions. When a warrant is issued to a person who is not a police officer, anyone nearby is legally empowered to aid in its execution, provided the assigned person is actively performing their duty. This provision ensures the enforceability of warrants, even in the absence of direct police involvement, by allowing the designated individual to enlist assistance as needed.

Public Duty to Report Specific Offences

Under Section 33, every citizen is required to report the commission or potential commission of certain offences listed in the Bharatiya Nyay Sanhita, 2023, to the nearest police officer or Magistrate. These include:

• Sections on robbery, violence, or major criminal activities, such as sections 103–105, 111–113, 140–144, and various others as outlined in the Bharatiya Nagarik Suraksha Sanhita.
• Offences taking place outside India that would be punishable if committed within India.

This requirement ensures that law enforcement is promptly alerted to major criminal activities, enhancing preventive measures against these serious offences.

Responsibility of Village Officers in Reporting Crimes and Suspicious Activities

Section 34 mandates that officers connected to village affairs and residents in rural areas report specific types of criminal activity to the nearest police station or Magistrate. This reporting includes:

1. Residency of Known Criminals: Information on the presence of any known vendors or receivers of stolen property.
2. Movement of Suspects: Notification of any robbers, escaped convicts, or proclaimed offenders passing through or residing nearby.
3. Non-Bailable Offences: Details on any planned or occurring non-bailable offence, particularly those affecting public order and safety.
4. Suspicious Deaths: Reporting unnatural or suspicious deaths, such as unidentified bodies, which could suggest criminal activity.
5. Cross-Border Crimes: Information on potential offences near the village that, if committed in India, would constitute punishable crimes.

In addition, villagers must inform authorities on any matter affecting local order, as instructed by the District Magistrate. These measures encourage a cooperative approach to crime prevention, especially in rural areas, by ensuring village authorities and residents work in tandem with law enforcement.

When can police arrest without a Warrant under BNSS

In many legal systems, police officers have the authority to arrest individuals without a warrant under certain conditions. This authority is essential for maintaining public safety and ensuring effective law enforcement. The following outlines the circumstances under which police may arrest without a warrant, based on standard legal provisions.

Cognizable Offences Committed in Presence

Police officers can arrest individuals who commit a cognizable offence in their presence. Cognizable offences are serious crimes for which police have the authority to arrest without a warrant and start an investigation without the direction of a magistrate.

Reasonable Complaints and Suspicion

Arrests can also be made when:

• Reasonable Complaint: A credible complaint has been lodged against a person.
• Credible Information: The police officer receives reliable information indicating that an individual has committed a cognizable offence punishable by imprisonment for up to seven years.

In such cases, the officer must have a reasonable belief that the individual committed the offence and that arrest is necessary for one of the following reasons:

• To prevent further offences.
• For proper investigation of the current offence.
• To avoid tampering with evidence.
• To prevent the individual from dissuading witnesses from coming forward.
• To ensure the person’s presence in court.

The officer is required to document the reasons for the arrest in writing. If an arrest is deemed unnecessary, the officer must also provide written justification for not arresting the individual.

Serious Offences

Police officers may arrest without a warrant if there is credible information that a person has committed a serious cognizable offence punishable by more than seven years of imprisonment, including capital offences. The officer must also have a reasonable belief that the individual is involved in the crime.

Specific Circumstances for Arrest

Additional grounds for arrest without a warrant include:

• Proclaimed Offender: Individuals declared offenders by law or government order.
• Possession of Stolen Property: If an individual is found in possession of property that may be stolen, they can be arrested.
• Obstructing Police Duties: Anyone obstructing police officers during their duties may be arrested.
• Deserters from Armed Forces: Individuals suspected of being deserters from the Armed Forces of the Union can be apprehended.
• Acts Committed Abroad: If someone is suspected of committing an act outside of India that would be punishable if committed within the country, they can be arrested.
• Breach of Parole Conditions: Released convicts who breach conditions set under law can be arrested.
• Requisition from Another Officer: Arrests may be made based on a written or verbal request from another officer, provided the request specifies the individual and offence.

Limitations on Arrests

Arrests in non-cognizable offences cannot be made without a warrant or magistrate’s order. For offences punishable by less than three years of imprisonment, prior permission from a police officer of at least the rank of Deputy Superintendent is required, particularly if the individual is elderly or infirm.

Issuing Notices Instead of Arrest

When an arrest is not warranted, police may issue a notice directing the individual to appear before them. Compliance with this notice is mandatory, and failure to do so can lead to arrest. However, if the individual continues to comply with the notice, they cannot be arrested unless the officer justifies the need for arrest in writing.

Procedure and Obligations of the Arresting Officer

When a police officer makes an arrest, they must:

• Clearly display their name and identification for easy recognition.
• Prepare a memorandum of arrest, which:
  • Is attested by a witness, preferably a family member or local community member.
  • Must be countersigned by the arrested person.
• Notify the arrested individual of their right to inform a family member or friend if the witness isn’t a family member.

Designation and Reporting by Police Officers 

The State Government is responsible for:

• Establishing police control rooms at the district and state levels.
• Appointing a police officer in each district and station (at least at the rank of Assistant Sub-Inspector) to manage records of arrests, the nature of the offence, and other essential details. This information must be prominently displayed in physical or digital form at police stations and district headquarters.

Right to Legal Representation During Interrogation 

Individuals arrested and interrogated by police have the right to meet with an advocate of their choice. However, this right does not extend to continuous presence during the interrogation process.

 Arrest for Refusal to Provide Name and Residence 

A person who refuses to provide or provides false information on their identity to a police officer regarding a non-cognizable offence may be arrested. If their name and address are verified, they may be released on bail, with a surety if they are non-residents of India. If not, they are to be presented to a Magistrate within 24 hours.

Arrest by Private Individuals 

A private citizen may arrest someone committing a non-bailable, cognizable offence or a proclaimed offender if witnessed firsthand. They must hand the individual over to the police within six hours, who will then process the arrest according to BNSS regulations.

Arrest by Magistrate

Magistrates witnessing a crime can arrest the offender or order their arrest. They also have the authority to arrest individuals within their jurisdiction if they could otherwise issue a warrant for their arrest.

Protection for Armed Forces Members from Arrest

Members of the Armed Forces are protected from arrest without the Central Government’s consent when acting within their official duties. The State Government can extend similar protections to specific forces under its jurisdiction.

Procedure for Making an Arrest

During an arrest, the police officer must:

• Physically touch or confine the person unless they voluntarily submit.
• Exercise restraint based on necessity, especially in cases involving habitual offenders or those with serious charges.
• Avoid causing death unless the person poses a lethal threat.
• Avoid arresting women at night unless there are exceptional circumstances, in which case prior approval from a Magistrate is required.

Search of Premises for the Person Sought

Officers with an arrest warrant can enter a premise to search for a person, requiring cooperation from those in charge of the location. They may break doors or windows if entry is denied, particularly when there’s risk of escape.

Pursuit Beyond Jurisdictions

Police officers have the right to pursue and arrest suspects across jurisdictions within India when authorised to arrest without a warrant.

Prohibition of Unnecessary Restraint

Arrested individuals should only be restrained as necessary to prevent escape, ensuring no excessive measures are used.

Right to Be Informed of Grounds of Arrest and Right to Bail 

Arresting officers must immediately inform the arrested person of the grounds for their arrest. If the offence is bailable, the person should be informed of their right to bail and may secure release through sureties.

Notification to Relatives or Friends of Arrest 

The officer must notify a relative, friend, or chosen person of the arrest location and communicate this right to the individual. Documentation of this notification is mandatory, with compliance verified by the Magistrate.

Search of Arrested Persons

Officers may search the individual upon arrest, seize all items except necessary clothing, and issue a receipt for any confiscated items. Female searches must be conducted by female officers, respecting privacy and decency.

Seizure of Offensive Weapons

Officers may confiscate any weapons found on the arrested person, subsequently delivering them to the appropriate court or officer.

Medical Examination of the Accused

If there are grounds to believe an examination will provide evidence, a registered medical practitioner can examine the accused, using reasonable force if necessary. Medical examinations are required immediately after arrest, with additional procedures and rights specified for female suspects.

Identification of the Arrested Person

If identification is necessary, the court may order identification proceedings, especially tailored for persons with disabilities, to ensure accessibility.

Arrest by Subordinate Officers

Senior officers delegating arrests to subordinates must issue written orders specifying the arrest details and ensure that these are communicated to the arrested individual.

Health and Safety of the Arrested

Officers are responsible for ensuring the health and safety of detained individuals, providing reasonable care as required.

Presentation to Magistrate

Arrested persons must be presented before a Magistrate without unnecessary delay, with exceptions outlined for bail-related matters.

Detention Beyond 24 Hours

Police stations must report any detentions over 24 hours to the District or Sub-divisional Magistrate. This ensures oversight and compliance with BOSS’s procedural time limits.

Reporting Apprehensions

Police officers must report all arrests without a warrant to the District Magistrate, detailing whether bail was granted or the individual remains in custody.

Discharge Conditions

An arrested person may only be discharged by bond, bail, or Magistrate’s special order, ensuring lawful release conditions.

Powers on Escape or Rescue

If an individual escapes custody, the arresting officer may pursue and re-arrest them anywhere in India, adhering to Section 44 provisions for search.

Compliance with the Sanhita for Arrests 

All arrests must strictly follow BNSS provisions or applicable law, reinforcing the legal framework governing lawful detention and safeguarding procedural integrity.

Process to Compel Assurance under the Bharatiya Nagarik Sanhita

In the legal framework, the issuance and service of summons play a crucial role in compelling an individual’s appearance before a court. Summons are official documents mandating a person’s presence for court proceedings. The Bhartiya Nagrik Suraksha Sanhita outlines the structured process for issuing and serving summons, ensuring effective communication and legal compliance.

Form of Summons

Under Section 63, every summons issued must:

• Be in writing and in duplicate, signed by the presiding officer of the court or an authorised officer as directed by the High Court.
• Carry the court’s seal.
• Alternatively, it can be issued in an encrypted electronic form, bearing the court’s seal or digital signature.

Serving the Summons

• Summons should be delivered by a police officer or other designated court/public officers.
• Registers must be maintained at police stations or court registries, recording the address, email, and other details as stipulated by state government rules.
• Summons are ideally served in person by handing one copy to the individual.
• If required, summons bearing the court’s seal image may also be sent through electronic means.

When served personally, the recipient must sign a receipt on the duplicate copy if requested by the serving officer.

Service of Summons on Corporate Bodies, Firms, and Societies

• For companies or corporations, the summons can be delivered to an officer (e.g., Director, Manager, Secretary), or sent by registered post.
• For firms or associations, it may be served to a partner or by registered post.
• Service is considered completed when the post is expected to arrive in the normal postal timeframe.

Alternative Service Methods

When a person cannot be located, Section 66 allows the summons to be delivered to an adult family member residing with the person summoned. However, servants are not considered family members under this provision.

If personal or family delivery fails, Section 67 permits the serving officer to affix the summons to a visible area of the person’s residence. The court may then inquire into the matter and decide on the service validity or order another attempt.

Serving Government Servants

Under Section 68, summons for government employees are generally sent in duplicate to the head of the employee’s department. The department head arranges the service per Section 64’s requirements and returns it with a signature as evidence of service.

Service Beyond Local Limits

For summons requiring delivery outside the court’s jurisdiction, Section 69 mandates sending the summons in duplicate to a Magistrate within the recipient’s jurisdiction. This ensures that the summons reaches the appropriate person despite geographical boundaries.

Proof of Service

• When summons are served outside local limits or when the officer serving the summons is absent, an affidavit, attested before a Magistrate, serves as proof.
• A duplicate of the served summons, endorsed by the recipient, is admissible as evidence.
• Summons delivered via electronic communication are considered validly served, with copies kept as service records.

Service of Summons on Witnesses

Section 71 provides special provisions for serving witnesses. In addition to regular summons delivery, courts may send a copy via electronic communication or registered post to the witness’s usual residence or workplace. An acknowledgment from the witness or a postal report of refusal is considered proof of service.

Warrant of Arrest under the Bharatiya Nagarik Suraksha Sanhita

A warrant of arrest is an official document issued by a court, authorising law enforcement to arrest an individual. It ensures legal compliance by specifying the conditions and authorities involved in executing an arrest. Here’s a comprehensive breakdown of the procedural and legal elements that govern warrants of arrest under the law.

Form and Validity of Warrants

A warrant of arrest must meet specific formalities:

• Written Format: Every warrant must be documented in writing.
• Court Signature and Seal: The presiding officer of the court signs it, and it bears the official court seal, confirming its legitimacy.
• Duration: The warrant remains active indefinitely, meaning it stays valid until either executed (i.e., the person is arrested) or cancelled by the court that issued it. This provision ensures that there’s no expiration until the court decides otherwise.

Option to Take Security or Bail

Courts issuing a warrant may allow bail, providing an option for the accused to avoid immediate custody by securing a bond:

• Endorsement for Bail: The court may add an endorsement on the warrant specifying that the accused can secure their release by signing a bond with sufficient sureties, promising to appear in court at a given time.
• Conditions of Endorsement: This endorsement typically states:
  • Number of Sureties: Specifies how many sureties are needed to back the bail.
  • Bond Amount: Lists the financial sum each surety and the accused must bind themselves to, ensuring they will attend court as required.
  • Time of Appearance: Outlines the date and time the accused must present themselves in court.
• Responsibility of Arresting Officer: If bail is taken, the arresting officer forwards the bond to the court, making it a formal agreement that the accused will comply with legal obligations.

Recipients of Warrants

• Primary Recipients: Normally, warrants are directed to police officers, as they are the primary enforcers of such orders.
• Alternative Recipients: In urgent cases where police officers are unavailable, the court can direct the warrant to any other capable person. The recipient(s) must execute the warrant as directed.
• Multiple Recipients: If a warrant is directed to multiple officers or individuals, any one or more of them can execute it, which provides flexibility in arrest scenarios.

Warrant Directed to Any Person for Specific Arrests

Certain magistrates, such as the Chief Judicial Magistrate or a Magistrate of the first class, can issue a warrant to non-police persons within their jurisdiction for specific cases, such as:

• Escaped Convicts: Those who have escaped custody.
• Proclaimed Offenders: Individuals who have been officially declared as wanted.
• Non-Bailable Offences: Individuals accused of non-bailable crimes who are avoiding arrest.

The person receiving the warrant must acknowledge it in writing, execute it if the person to be arrested is on their property, and hand over the arrested person to the nearest police officer, ensuring proper legal procedure.

Execution by Other Police Officers

A warrant directed to one police officer can be executed by another if the first officer endorses the warrant with their name, enabling seamless coordination and arrest across officers.

Informing the Accused of the Warrant

Before taking the person into custody, the executing officer or person must inform the accused of the warrant’s contents. If the accused requests it, they must also be shown the actual warrant, ensuring transparency and understanding of the grounds for arrest.

Timely Presentation Before Court

After an arrest, the accused must be presented to the appropriate court promptly. Delays should not exceed 24 hours, excluding travel time from the place of arrest to the court. This requirement prevents unlawful detention and ensures that the accused’s rights are upheld.

Jurisdiction and Location for Execution 

• Nationwide Execution: Warrants can be executed anywhere in India, meaning they are not restricted by state boundaries.
• Forwarding Warrants Across Jurisdictions: When an arrest must occur outside the issuing court’s jurisdiction, the court can send the warrant to the police or relevant authorities within the local limits where it is to be executed. These authorities can then endorse and execute it according to legal procedures.

Directing Warrants to Officers for Out-of-Jurisdiction Execution

A police officer may need to take a warrant beyond the court’s local area:

• Endorsement Required: Ordinarily, the officer must present the warrant to an executive magistrate or a police officer with proper authority in the jurisdiction where the arrest is to be made. This endorsement serves as formal approval for the officer to execute the warrant locally.
• Immediate Execution: In urgent situations, if waiting for an endorsement would prevent the arrest, the officer may proceed with the arrest without the endorsement, thus balancing procedural formality with the need for timely action.

Arrests Outside the Issuing District 

When an arrest is made outside the issuing district, the following steps apply:

• Presentation to Local Authorities: The arrested person must be brought before the nearest magistrate or senior police officer within that area, unless the issuing court is close by (within 30 kilometres) or bail has been secured under Section 73.
• Notification to Other Authorities: The arresting officer informs designated police officers both in the district of arrest and the district where the arrested person normally resides. This practice allows coordinated tracking and documentation of the arrest.

Magistrate’s Role When the Accused Is Presented 

• Verification and Custody: The local magistrate or senior officer ensures the person matches the description of the accused in the warrant and then arranges for their custody transfer to the issuing court.
• Bail Consideration: If the offence is bailable and the accused offers a bond, the magistrate may accept the bond and release the accused, forwarding the bond to the issuing court. For non-bailable offences, only certain senior authorities, such as the Chief Judicial Magistrate or Sessions Judge, may consider granting bail based on the offence’s nature and related documents provided by the issuing court.

Proclamation And Attachment under the Bharatiya Nagarik Suraksha Sanhita

The BNSS act outlines specific procedures for handling individuals who evade legal processes, particularly through provisions regarding proclamation and attachment of property. These sections serve as mechanisms for courts to ensure accountability and facilitate the enforcement of legal orders.

Proclamation for Absconding Persons

Section 84 establishes the procedure for issuing a proclamation against a person who is believed to have absconded or is concealing themselves to evade a warrant. If a court determines that a warrant cannot be executed due to a person’s absconding status, it may issue a written proclamation. This proclamation requires the person to appear at a specified location within thirty days.

Publication Requirements:
The proclamation must be published in several ways:

1. It should be read publicly in a prominent location in the person’s town or village.
2. It must be affixed to the person’s residence or a conspicuous place in the locality.
3. A copy should also be posted in the court house.
4. If deemed necessary, the court may additionally order the proclamation to be published in a local newspaper.

A statement from the court affirming that the proclamation was duly published serves as conclusive evidence of compliance.

Consequences of Non-appearance:
If the absconding person fails to appear as required, particularly if accused of serious offences punishable by significant imprisonment, the court may declare them a proclaimed offender after due inquiry.

Attachment of Property

Section 85 details the authority of the court to attach the property of a proclaimed person. This can occur at any time after the proclamation is issued and must be justified with written reasons.

Simultaneous Attachment:
If the court believes that the proclaimed person may dispose of or remove their property to evade attachment, it can order the attachment simultaneously with the proclamation.

Scope of Attachment:
The attachment order allows for the seizure of property within the district. For properties located outside the district, the order must be endorsed by the District Magistrate.

Methods of Attachment:
Attachment of movable property can occur through:

• Seizure
• Appointment of a receiver
• Prohibitory orders against delivery of the property

For immovable property, the attachment involves:

• Taking possession
• Appointing a receiver
• Prohibitory orders against payment or delivery related to the property

If the property is perishable or livestock, the court may order an immediate sale, with proceeds held pending further court orders.

Identification and Forfeiture of Property

Section 86 allows the court to initiate procedures for the identification and attachment of a proclaimed person’s property, upon request from law enforcement authorities. This ensures that the assets of absconding individuals can be appropriately handled.

Claims and Objections

Section 87 addresses the rights of third parties concerning attached property. If someone other than the proclaimed person claims an interest in the attached property within six months, the court must investigate these claims.

Claims can be made in the court that issued the attachment or, if applicable, in the Chief Judicial Magistrate’s court. The court will inquire into the claims, and any disputes can be resolved through subsequent legal actions.

Release and Restoration of Attached Property

Section 88 outlines the processes for releasing property if the proclaimed person appears before the court within the specified time. If they fail to appear, the property may be retained by the state for up to six months before any sale, unless immediate sale is warranted due to the nature of the property.

If a person appears within two years and provides satisfactory evidence that they did not abscond to evade the law, the attached property or proceeds from any sale will be returned to them after deducting any costs incurred.

Appeals

Section 89 provides a mechanism for individuals who are dissatisfied with a court’s refusal to restore attached property. They may appeal to the appropriate higher court to seek redress.

Processes to Compel the Production of Things

The legal system frequently requires access to documents, electronic communications, or physical items essential to investigations, inquiries, trials, and other proceedings. This section outlines the legal procedures that enable authorities to obtain and examine such materials, ensuring that all relevant evidence can be properly gathered and reviewed within a structured framework.

Summons to Produce Documents or Other Items

Section 94 empowers courts and police officers to issue summonses for the production of any document, electronic communication, or physical item that may hold value as evidence. If such a document or item is needed for a legal process, the court can summon the person holding it. The summoned individual is required to either attend and produce it or ensure its delivery to the specified location.

Additionally, if the person summoned simply forwards the item without appearing personally, they are considered compliant with the request. This section respects certain exceptions, like documents protected under the Bankers’ Books Evidence Act, 1891, or personal letters held by postal authorities.

Access to Documents Held by Postal Authorities

In cases where documents, parcels, or items are under the custody of a postal authority, Section 95 outlines the procedure for securing these. A District Magistrate, Chief Judicial Magistrate, or higher court can authorize the postal service to hand over the item if it is needed for a legal proceeding. Lower-ranking magistrates and police officers may also order a search for such items, but final authority rests with the higher magistrate or court to take custody.

Issuing a Search Warrant

When there is reason to believe that an individual may not willingly produce an item, Section 96 allows the court to issue a search warrant. This warrant enables authorities to search for and seize the item needed for the case. The search may be restricted to a specific location if detailed in the warrant. However, only senior magistrates like a District Magistrate or Chief Judicial Magistrate can grant search warrants for items in postal custody.

Searches of Locations with Suspected Stolen or Illegal Items

Section 97 focuses on cases involving stolen property or illegal items, such as counterfeit currency or forged documents. If a magistrate has reason to believe that a location is being used to store or sell these items, they can issue a warrant allowing police officers to enter, search, and seize the items. They can also detain individuals involved in the handling of these items.

This section covers items that may pose a threat to public safety or order, including counterfeit coins, forged documents, false seals, and obscene items.

Forfeiture and Seizure of Publications

If any publication, such as a newspaper or book, contains matter punishable under specific legal sections, Section 98 empowers the state government to declare it forfeited. This allows police officers to seize copies, and magistrates can issue warrants for the search and seizure of such material. This provision aims to prevent the distribution of harmful content in the public domain.

Challenging a Forfeiture Order

Section 99 allows any person with an interest in a forfeited publication to appeal the order in a High Court. They must prove that the material in question does not contain harmful content. In cases with multiple judges, a special bench of three or more judges will hear the appeal, and the majority decision prevails. This section provides a fair process for anyone seeking to reverse a forfeiture decision.

Searching for Confined Individuals

If a magistrate suspects someone is being wrongfully confined, Section 100 authorizes them to issue a search warrant to locate the individual. This provision ensures that anyone unlawfully detained is brought before a magistrate to determine the appropriate action.

Restoring Abducted Women or Girls

Section 101 addresses complaints of abduction or unlawful detention of women or girls. Upon receiving such complaints, magistrates can order the immediate release of the person to their family or guardian. This section aims to protect vulnerable individuals from illegal confinement.

General Provisions for Search Warrants

Section 102 outlines general rules for executing search warrants. It emphasises that officers must enter any closed premises peacefully and can call on local residents as witnesses to ensure transparency in the search process. The occupant or a representative is also allowed to witness the search, and a list of seized items is prepared for accountability.

Access to Closed Premises

Section 103 stipulates that occupants of closed premises must allow officers with a warrant to enter. If access is denied, officers can forcibly enter. The search must include respectable local witnesses, and a detailed list of seized items should be provided to the occupant or representative.

Handling Seized Items from Different Jurisdictions

When a search warrant is executed outside the issuing court’s jurisdiction, Section 104 mandates that the seized items be presented to the issuing court or a nearby magistrate. This ensures legal continuity and that all seized materials reach the proper authorities for the case.

Reciprocal Arrangements for Assistance in Certain Matters And Procedure for Attachment & Forfeiture of Property under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines comprehensive legal provisions to support cooperation between India and other countries in criminal investigations. This assistance can take several forms, such as exchanging information, investigating individuals or documents across borders, and securing the transfer of individuals for legal proceedings. 

Requesting International Assistance for Investigations Outside India

Section 112 of the BNSS establishes how Indian authorities can request help from other countries. If evidence necessary for an investigation is thought to be located outside India, a Criminal Court in India may issue a formal request, or “letter of request,” to the appropriate foreign authority. This letter can ask for two main forms of assistance:

• Oral Examination: The foreign authority may be requested to interview a person with relevant information and record their statement. This person might be someone who witnessed or is knowledgeable about the facts related to the case.
• Document or Evidence Collection: Authorities in the other country may also be asked to obtain and submit specific documents or physical evidence that may help in the investigation.

The Central Government of India regulates how this letter of request is transmitted to the foreign authority. Once evidence is received in response to the letter of request, it is treated as though it was gathered within India during the investigation, making it admissible in Indian legal proceedings.

Handling Foreign Requests for Investigations within India

Section 113 describes how India handles requests from foreign countries for assistance with their investigations. When a foreign Court or authority requests assistance, the Central Government of India can proceed in two ways:

• Directing a Magistrate: The Central Government may forward the request to a Chief Judicial Magistrate or a designated Judicial Magistrate, who will then summon the person named in the request to appear and record their statement or present the required documents.
• Assigning to a Police Officer: The Central Government can also direct a police officer to conduct the investigation within India, following the standard procedures as if the crime had taken place within the country.

Once the required evidence is collected, it is sent back to the foreign authority through the Central Government. This approach allows India to support international investigations while ensuring procedures comply with Indian legal standards.

Transferring Individuals for Investigations or Legal Proceedings

Section 114 of the BNSS outlines the procedure for transferring individuals between countries for legal matters. This transfer can involve issuing and executing arrest warrants, summonses, or even bringing someone to court in another country. The key steps in this process include:

• Execution of Foreign Warrants in India: If a foreign authority requests the arrest of an individual in India, an Indian Court can execute the foreign warrant as if it were an Indian warrant. This allows the individual to be detained and prepared for transfer.
• Requesting the Attendance of Individuals in Foreign Jurisdictions: If an Indian investigation requires the testimony of someone residing in a foreign country, Indian Courts can issue a summons or warrant for that person, which is sent through official channels to the foreign jurisdiction for execution.
• Transfer of Prisoners: In cases where a prisoner needs to be transferred between India and another country, specific conditions may apply. These conditions are set by either the Central Government or the Court to ensure the terms of transfer, including custody conditions, are respected in both countries.

Procedure for Handling Requests for International Cooperation

The BNSS emphasises structured procedures for managing international cooperation requests. Each letter of request, whether received or sent, must follow a formal process as determined by the Central Government. Notifications and specifications by the government ensure that all documents are transmitted according to established diplomatic and legal channels. This structured approach helps India manage international cooperation in a standardised and efficient way, maintaining legal integrity and promoting cooperation with other countries.

Property Attachment and Forfeiture under the BNSS 

Property attachment and forfeiture laws in India serve as essential tools to deter criminal activity by targeting assets derived from illegal acts. The Bharatiya Nagarik Suraksha Sanhita (BNSS) lays out a systematic approach under sections 115-121 for handling such assets. This section of the article examines each section’s purpose and how they work to ensure the lawful identification, management, and forfeiture of crime-related properties.

Orders for Attachment or Forfeiture of Property

Under Section 115, if a Court finds that a person’s property is likely derived from criminal activity, it can order attachment or forfeiture of that property. This section includes provisions for cooperation with foreign states. If a property is suspected to be in a contracting foreign state, the Court may issue a request to the relevant foreign authority to enforce the order. Conversely, the Indian Central Government may also enforce similar requests from foreign courts.

Identifying Unlawfully Acquired Property

Section 116 empowers the Court to task a police officer, ranked Sub-Inspector or higher, with locating assets connected to crime. The officer may investigate financial records, conduct surveys, or review documentation to trace the assets. This section’s investigatory powers are broad, ensuring that any unlawfully obtained assets can be properly identified and evaluated before further legal action.

Seizure or Attachment of Property

If there’s a risk of assets being concealed or disposed of, Section 117 enables officers to temporarily seize or attach such assets. This attachment remains effective only if confirmed by the Court within 30 days. The section acts as a safeguard, preventing owners from disposing of assets that are under investigation or pending legal determination.

Management of Seized or Forfeited Property

Once property is seized or forfeited, Section 118 allows the Court to appoint an Administrator, such as the District Magistrate, to manage the property. The Administrator is responsible for the asset’s upkeep, following any specified conditions, and, if directed by the Central Government, for its disposal. This section ensures that seized or forfeited properties are properly managed, thus preserving their value.

Notice of Forfeiture of Property

If evidence indicates that certain properties are proceeds of crime, Section 119 requires the Court to issue a notice to the owner, calling them to provide proof of lawful acquisition within 30 days. The notice may also be extended to anyone holding property on the owner’s behalf. This section upholds procedural fairness, giving individuals the opportunity to defend their assets before forfeiture.

Forfeiture of Property

Section 120 authorizes the Court to declare assets as proceeds of crime, post-review of evidence and any explanations provided by the owner. If no response is received within 30 days, the Court can rule based on the evidence at hand. In cases where some assets are crime-related and others are not, the Court may forfeit only the assets proven to be linked to crime. This forfeiture includes shares in a company, which are then registered to the Central Government. Section 120 is fundamental in transferring illegally obtained assets to government ownership.

Fine in Lieu of Forfeiture

If the Court concludes that only part of a property’s origin is suspect, Section 121 offers an alternative: the property owner can pay a fine equivalent to the illicit part’s value. This flexibility allows partial retention of assets, provided the fine is paid, and ensures that only assets conclusively linked to crime are forfeited.

Order for Maintenance of Wives, Children, and Parents under the Bharatiya Nagarik Suraksha Sanhita (BNSS)

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines the legal provisions that support the maintenance rights of dependent family members. The act  specifies that individuals with sufficient means must support their wives, children, and parents if these dependents are unable to maintain themselves. 

Eligibility for Maintenance 

Under Section 144, maintenance can be ordered for:

• Wives: A wife who cannot support herself is entitled to maintenance if her husband has sufficient means but neglects or refuses to provide it.
• Children: This includes both legitimate and illegitimate children who are unable to support themselves, whether they are married or not. For children who have reached adulthood, maintenance is available only if they have a physical or mental disability.
• Parents: Fathers and mothers who are unable to support themselves are also eligible.

The magistrate can order a monthly maintenance amount that they deem appropriate, ensuring the dependent receives regular financial support.

Provisions for Interim Maintenance

During maintenance proceedings, the magistrate may also order interim maintenance payments to provide immediate support to the wife, child, or parent until the case is fully resolved. Additionally, reasonable expenses for the legal proceedings can be included in the interim order.

Applications for interim maintenance are expected to be addressed within 60 days of serving the notice to the respondent, promoting timely financial relief.

Date of Payment 

Maintenance payments are effective either from the date of the magistrate’s order or, if specified, from the date of the application for maintenance. This retroactive provision ensures that delays in court proceedings do not unduly impact the dependent’s financial situation.

Failure to Comply

If an individual fails to comply with the maintenance order without valid reason, the magistrate can issue a warrant to collect the due amount. Furthermore, if payments remain unpaid after the warrant is executed, the individual may face up to one month of imprisonment per missed payment period.

A warrant for unpaid maintenance can only be issued if requested within one year of the payment due date.

Special Provisions for the Wife’s Refusal to Live with Husband

• Husband’s Second Marriage: If a husband marries another woman or keeps a mistress, it is deemed a justifiable reason for the wife to refuse to live with him while still claiming maintenance.
• Conditions for Denial of Maintenance to Wife: A wife loses the right to maintenance if she is found living in adultery, refuses to live with her husband without sufficient reason, or if both are living separately by mutual consent.

If any of these conditions are proven, the magistrate is empowered to cancel the maintenance order.

Jurisdiction and Procedure

Proceedings for maintenance orders can be initiated in any district where:

• The respondent resides.
• The wife resides, or the couple last resided together.
• The father or mother of the child resides.

Evidence in maintenance cases must be presented in the respondent’s presence, or if allowed, through their advocate. If the respondent is avoiding the court, the magistrate can proceed ex parte. Any ex parte order can be reconsidered if the respondent shows just cause within three months of the order.

Adjustment of Maintenance Orders

If there is a significant change in the financial circumstances of either party, the magistrate may adjust the maintenance amount accordingly. The magistrate is also authorized to cancel or modify the order based on any relevant ruling from a civil court.

Additionally, maintenance orders can be canceled if a divorced wife remarries, receives a lump sum as a final settlement under applicable laws, or voluntarily relinquishes her right to maintenance.

Enforcement of Maintenance Orders

A copy of the maintenance order is provided to the recipient or their guardian, allowing them to enforce the order in any location where the respondent may be found. This facilitates smooth enforcement across different jurisdictions within the country, as long as the magistrate is satisfied with the identification and confirmation of non-payment.

Unlawful Assemblies under the Maintenance of Public Order And Tranquility under BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines measures to control unlawful assemblies to ensure public order and security. Sections 148 to 151 specifically address how authorities should handle gatherings that may disturb the peace, empowering Executive Magistrates and law enforcement to disperse such assemblies.

Dispersal of Unlawful Assemblies

Section 148 gives authority to any Executive Magistrate, police station officer, or police officer of sub-inspector rank or higher to order the dispersal of assemblies likely to disrupt public peace. If an assembly of five or more persons is deemed unlawful or disruptive, these officers can command it to disperse. Members are legally obligated to comply.

Should the assembly refuse to disperse, officers are authorized to use force to dissolve it. The officers may also request the assistance of civilians, excluding armed forces members, to support the dispersal. If needed, individuals within the assembly can be detained to restore order.

Use of Armed Forces for Dispersal

If force from local authorities is insufficient to disperse a dangerous assembly, Section 149 allows for the intervention of the armed forces. The District Magistrate or an authorized Executive Magistrate can call upon armed forces to assist in dispersing the assembly, arresting and detaining individuals if necessary.

While executing this task, the armed forces must minimize force and avoid excessive harm to persons or property, aligning their response with maintaining public order.

Authority of Armed Forces Officers in Urgent Situations

In cases where public security is severely threatened by an unlawful assembly and no Executive Magistrate is accessible, commissioned or gazetted officers of the armed forces may act to disperse the gathering. They may arrest individuals as required to restore order. However, if contact with a Magistrate becomes possible, these officers must follow the Magistrate’s instructions, reinforcing the Magistrate’s primary authority over such operations.

Legal Protection for Actions Taken

Section 151 provides immunity from prosecution for officers and personnel acting in good faith under Sections 148, 149, and 150. Legal proceedings cannot be initiated against them without prior approval from the Central or State Government, ensuring officers can maintain order without fear of legal consequences for actions taken within their lawful authority.

Public Nuisances under the Maintenance of Public Order And Tranquility

The Bharatiya Nagarik Suraksha Sanhita (BNSS) empowers Magistrates to manage public order and tackle situations involving nuisances and unlawful assemblies. This set of sections, primarily from 152 to 162 of the BNSS, outlines various measures and procedures for handling disturbances or situations that might disrupt public peace or safety.

Conditional Order for Removal of Nuisance

This section allows a District Magistrate, Sub-divisional Magistrate, or another authorised Executive Magistrate to take necessary action if they believe certain activities or objects may harm public health, comfort, or safety. Based on police reports or other information, they can issue orders to:

• Remove obstructions or nuisances from public areas.
• Restrict hazardous trades or items affecting community well-being.
• Halt construction that could cause fires or explosions.
• Address unsafe structures or trees at risk of collapse.
• Ensure that wells or excavations near public areas are safely fenced.
• Take appropriate measures regarding dangerous animals.

The order, termed a “conditional order,” requires the individual responsible to address the issue within a set timeframe or appear before the Magistrate to explain why the order should not be final.

Service or Notification of Order

For the conditional order issued under Section 152 to be effective, it must be properly communicated. Section 153 mandates that the order should be personally served to the concerned individual. If personal service is not possible, the order should be publicly proclaimed as per State Government rules, with copies displayed in relevant public places to inform the person.

Compliance or Cause to Show

The person against whom the order is issued must comply by fulfilling the specified action or appear to justify why the order is unnecessary. They are allowed to appear virtually if required.

Penalty for Non-compliance

If an individual fails to comply with or contest the order under Section 154, they face penalties as prescribed in Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Non-compliance results in the order becoming absolute, meaning it must be followed without exception.

Denial of Public Right and Inquiry Process

If a person affected by the order denies any public right concerning the area or item in question, the Magistrate is required to conduct an inquiry. Should there be credible evidence supporting the denial, proceedings are paused until a court settles the matter. If there is no evidence supporting the denial, the Magistrate can proceed as described in Section 157.

Hearing and Evidence Collection

Upon the person’s appearance to contest the order, Section 157 enables the Magistrate to gather evidence as in a summons case. If the Magistrate finds the order reasonable, they make it absolute (either as is or with modifications). If not, further proceedings are halted. The section requires prompt conclusion, ideally within 90 days, extendable to 120 days if justified.

Local Investigation and Expert Examination

The Magistrate can order a local investigation or summon an expert to aid the inquiry. This enables precise information gathering to make an informed decision regarding the nuisance or obstruction under scrutiny.

Written Instructions for Investigations

If a local investigation is commissioned, the Magistrate may provide written instructions for the investigator’s guidance and determine which party should bear the investigation costs. The investigator’s report can be used as evidence.

Absolute Order and Compliance

Once an order becomes absolute (final), Section 160 obliges the individual to fulfill the instructions within a specified period. Failure to do so authorizes the Magistrate to enforce the order and recover costs, either by selling the person’s movable assets or through attachment.

Injunction for Immediate Danger

In cases of imminent risk to public safety, the Magistrate may issue an injunction for immediate corrective action. If the individual fails to comply, the Magistrate can intervene directly to prevent harm. No legal claims can be made for actions taken in good faith under this section.

Prohibition of Repeated or Ongoing Nuisances

This section allows Magistrates or authorized officials to prevent individuals from continuing or repeating any public nuisance, as defined by the Bharatiya Nagarik Suraksha Sanhita or applicable local laws.

Disputes Concerning Immovable Property Under the Bharatiya Nagrik Suraksha Sanhita

The Bhartiya Nagrik Suraksha Sanhita (BNSS) outlines procedures for handling disputes related to immovable property, such as land and water, where there is a risk of breaching the peace. Sections 164 to 167 of the BNSS guide Executive Magistrates in resolving these disputes efficiently to maintain public order.

Procedure in Case of Land or Water Disputes Likely to Breach the Peace

When an Executive Magistrate receives a report from a police officer or other sources indicating a property dispute that could disrupt public peace, they initiate action under Section 164. This section applies to disputes over land, water, buildings, markets, and any income derived from them.

Process:

1. Order Issuance: The Magistrate issues a written order detailing their reasons for intervention, instructing the involved parties to appear in court with written statements about their claims to actual possession of the disputed property.
2. Order Service and Publication: Copies of the order are served to concerned parties and displayed publicly near the disputed site.
3. Examination of Possession Claims: Without examining the merits of the ownership claims, the Magistrate considers the parties’ statements, listens to arguments, and examines evidence to determine who was in possession at the time the order was issued. If the Magistrate finds evidence of recent, forceful dispossession, they may treat the displaced party as if they were in possession.
4. Cancellation and Finality: If any party successfully shows that no dispute exists, the Magistrate can cancel the order, halting further proceedings. Otherwise, the Magistrate’s decision on possession is final.
5. Possession Order: If the Magistrate confirms one party’s possession, they declare that party entitled to remain until a court orders otherwise, preventing interference from the opposing party.

Power to Attach Disputed Property and Appoint a Receiver

Attachment in Emergencies:
Under Section 165, if the Magistrate perceives an urgent threat to peace, or if possession cannot be conclusively determined, they may temporarily attach the disputed property until a court resolves the rightful possession.

Receiver Appointment:
In cases lacking a civil court-appointed receiver, the Magistrate can appoint a receiver to oversee the property’s management. If a civil court later appoints its own receiver, the Magistrate’s appointee must transfer control to them.

Disputes Concerning Right to Use Land or Water

Right of Usage Disputes:
Section 166 addresses conflicts over the right to use land or water, which may arise as disputes over easements or similar claims. If a Magistrate identifies a usage-related dispute with potential for violence, they may summon the parties to present written claims.

Resolution Process:
The Magistrate reviews claims, hears evidence, and aims to decide if a valid right to use exists. If such a right is established, the Magistrate may prohibit interference, including ordering the removal of obstacles to this usage.

Continuing Between Sections 164 and 166:
If the Magistrate determines that a usage dispute should be handled under Section 164 instead, they may transition accordingly, with appropriate justification, and vice versa.

Local Inquiry

Local Investigation Process
A local inquiry may be necessary to resolve complex land or usage disputes. Section 167 permits the District or Sub-divisional Magistrate to delegate this task to a subordinate Magistrate with instructions. The findings from this inquiry can be used as evidence in the primary proceedings.

Handling Costs
The Magistrate presiding over the case may also assign costs to the involved parties as they see fit, including expenses for witness attendance and legal fees.

Preventive Action of the Police under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines various roles and responsibilities for police officers to maintain law and order. The act specifically address preventive actions that police can take to prevent crimes, protect public property, and ensure public cooperation. These sections empower police officers to act proactively to prevent harm and disturbance before it escalates.

Police to Prevent Cognizable Offences

Section 168 mandates that every police officer must actively work to prevent cognizable offences—serious crimes for which an officer can arrest without a warrant. Police officers are not only encouraged to intervene but are also required to take preventive measures whenever they have the opportunity. This section underscores the proactive role of police in preventing crime rather than merely responding after a crime has occurred.

Information of Design to Commit Cognizable Offences

When a police officer receives information about a plan to commit a cognizable offence, they must share this information with their superior officer and other relevant authorities. This communication helps ensure that the entire chain of command is informed, allowing appropriate actions to be taken to prevent the potential crime. The section highlights the importance of collaboration and communication within the police force for effective crime prevention.

Arrest to Prevent Commission of Cognizable Offences

Under Section 170, police officers who know of a planned cognizable offence can arrest the individual without a warrant if they believe that arrest is the only way to prevent the crime. This power to make a preventive arrest without prior permission from a magistrate gives police officers significant authority to act swiftly in urgent situations. However, the law limits detention to a maximum of 24 hours unless a further extension is granted under the BNSS or any other relevant law. This provision is crucial in balancing swift preventive actions with respect for individual rights.

Prevention of Injury to Public Property

This section empowers police officers to take immediate action to prevent damage to public property if they witness an attempt to harm or remove it. Public property includes both movable and immovable assets, such as landmarks, buoys, or navigation markers. The police officer can intervene without prior orders, acting independently to protect valuable public resources and infrastructure. This section emphasizes the police’s duty to safeguard public assets, which are essential to community wellbeing and functionality.

Persons Bound to Conform to Lawful Directions of Police

Section 172 mandates that individuals must comply with the lawful directions of police officers in the execution of their duties. If a person resists or ignores these directions, the police officer has the authority to detain or remove them to prevent obstruction. For minor offenses, the officer may release the individual within 24 hours, or alternatively, present them to a magistrate. This section is essential for maintaining public order, ensuring that police directives are respected for collective safety and security.

Receiving and Recording Information by Police during an Investigation under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) provides clear guidelines for police officers on how to handle information related to criminal cases. These protocols, specified under Sections 173 and 174, outline the process for recording information about both cognizable and non-cognizable offences, ensuring transparency and accountability in law enforcement.

Recording Information in Cognizable Cases (Section 173)

A cognizable offence is a serious crime where police can initiate an investigation and make arrests without a warrant. According to Section 173 of the BNSS, information about such offences can be submitted to the officer in charge of a police station in person or through electronic communication. The steps involved are:

1. Oral Information: If information is provided orally, the officer must document it, read it back to the informant, and obtain their signature to confirm its accuracy.
2. Electronic Communication: For information provided electronically, the informant must sign the statement within three days for the record to be official.

In both cases, the substance of the information is recorded in a government-prescribed format. Special provisions are in place to safeguard victims of offences, particularly if the informant is a woman or an individual with disabilities. These individuals are entitled to have their statements recorded by a woman officer, or at a convenient location if necessary, with additional support from interpreters, special educators, and video recordings to ensure clarity and fairness.

Rights of the Informant

Once recorded, a free copy of the information is immediately provided to the informant or victim. This step is designed to create transparency and ensure that the informant has documented evidence of the report filed.

Preliminary Enquiry for Certain Offences

For cognizable offences punishable by less than seven years but more than three, the police may conduct a preliminary inquiry to determine whether a prima facie case exists. This inquiry, which must be approved by a Deputy Superintendent of Police or higher authority, is concluded within 14 days. If grounds are found, the police proceed with the investigation.

Escalation if Information Is Not Recorded

If a police officer refuses to record information about a cognizable offence, the aggrieved individual can submit the details directly to the Superintendent of Police. If the Superintendent finds the information credible, they may initiate an investigation or assign an officer to do so. The individual may also approach a Magistrate if unsatisfied with the response.

Handling Non-Cognizable Cases (Section 174)

Non-cognizable offences, which are less severe and do not permit arrest without a warrant, follow a different process. Here, the officer records the information in a specific register and directs the informant to the Magistrate, who holds authority over such cases. A report of these cases is sent to the Magistrate regularly. Police cannot investigate non-cognizable offences without Magistrate approval, although they retain some investigative powers similar to those in cognizable cases, excluding the power to arrest.

In instances where a case involves both cognizable and non-cognizable offences, it is treated as cognizable to facilitate efficient investigation.

Powers & Procedures of Police Investigation under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) lays down clear guidelines on the powers and procedures for police investigations in India. These sections provide direction for the police in handling cognizable cases and outline a structured approach for investigating offences. This section of the article summarizes the main points in Sections 175 to 178 of the BNSS, explaining each section’s role in ensuring an organized and lawful investigative process.

Power of Police to Investigate Cognizable Cases

Under Section 175, police officers have the authority to investigate cognizable cases—that is, cases where they are permitted to arrest without a warrant. The section grants an officer in charge of a police station the power to investigate any case that falls within the station’s jurisdiction, without needing prior approval from a Magistrate.

However, when the case is serious in nature, the Superintendent of Police may require the Deputy Superintendent of Police to oversee the investigation, ensuring a high level of scrutiny. Furthermore, a Magistrate can order a police investigation if a case involves a public servant performing official duties, provided the Magistrate receives a report from a superior officer and considers any relevant explanations from the public servant involved.

Procedure for Conducting Investigations

Section 176 outlines the procedural steps for investigating offenses. Upon suspecting the commission of a cognizable offense, a police officer must immediately report it to a Magistrate who has jurisdiction. The officer or a designated subordinate should then proceed to the crime scene to gather facts, potentially arrest the offender, and take any other necessary actions to advance the investigation.

The section also provides exceptions:

1. If an accusation is minor and directed at a known individual, the officer may not need to visit the crime scene.
2. If the officer believes there is insufficient evidence to warrant an investigation, they may choose not to proceed, but they must document the reasons and notify the informant if there was one.

For sensitive cases, such as offenses of rape, a female officer is required to record the victim’s statement in a safe location, ideally chosen by the victim and, if possible, in the presence of a family member or a social worker. Additionally, statements may be recorded using audio or video technology for accuracy and accountability.

Report Submission Protocol

Under Section 177, police officers are required to submit reports on investigations to the Magistrate, and this may need to be done through a superior officer if directed by the State Government. The superior officer can provide instructions, which are documented on the report before it reaches the Magistrate, streamlining communication and oversight.

Magistrate’s Power to Direct Investigation or Conduct Inquiry

Section 178 allows a Magistrate to order further investigation upon receiving a report under Section 176. Alternatively, if deemed appropriate, the Magistrate may directly proceed or assign another Magistrate to conduct a preliminary inquiry. This provision helps ensure the case is handled promptly and in accordance with BNSS standards.

Reporting & Documentation by the Police under the Bharatiya Nagarik Suraksha Sanhita 

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines detailed procedures for reporting and documentation by the police during criminal investigations. These provisions ensure transparency, accountability, and efficiency in the investigative process. 

Reporting Through Superior Officers (Section 177)

When a report is prepared under Section 176, it must be submitted to the Magistrate. The State Government may direct that such reports be routed through a superior police officer, designated by a general or special order. This superior officer may provide additional instructions to the officer in charge of the police station and forward the report to the Magistrate promptly, ensuring proper oversight.

Reports by Subordinate Officers (Section 188)

Subordinate police officers conducting investigations under the BNSS must report their findings to the officer in charge of the police station. This ensures that all investigative efforts are centralized and coordinated under the station officer’s authority.

Maintenance of Case Diaries (Section 192)

Investigating officers are required to maintain a detailed case diary that includes:

1. Chronological Entries: The time the information was received, the start and conclusion of the investigation, and places visited.
2. Statements: Witness statements recorded under Section 180 must be included.
3. Volume and Pagination: Diaries should be systematically maintained for easy reference.

Case diaries are used by criminal courts during inquiries or trials, but only to aid the process—not as evidence. Access to these diaries is restricted, with exceptions for their use to refresh memory or contradict statements in court.

Completion of Investigation and Submission of Reports

Timely completion of investigations is a key focus under the BNSS:

• Investigations for specific offenses, such as those under Sections 64 to 71 of the Bharatiya Nagarik Suraksha Sanhita and certain provisions of the Protection of Children from Sexual Offences Act, must be completed within two months of recording the initial information.
• On completing the investigation, the officer in charge of the police station must submit a detailed report to a Magistrate.

This report includes:

1. Names of the parties involved.
2. Nature of the information received.
3. Circumstantial evidence and names of witnesses.
4. Arrest status of the accused and custody details.
5. Medical examination reports in applicable cases.
6. Sequence of electronic evidence custody.

Additionally, the officer must inform the informant or victim of the investigation’s progress within 90 days, using electronic communication or other means prescribed by State rules.

Further Investigation and Supplementary Reports

Even after submitting the initial report, police officers can conduct further investigations if new evidence arises. Any additional findings must be reported to the Magistrate, adhering to the same format and procedural rules as the original report. If further investigation is needed during the trial, court permission is required, and it must be completed within 90 days unless extended by the court.

Special Provisions for Protecting Information

If certain parts of witness statements or documents are deemed irrelevant, sensitive, or not in the public interest, the investigating officer can request the Magistrate to exclude those portions from the copies provided to the accused. The Magistrate has the discretion to approve or deny this request.

Delivery of Reports and Documents

Police reports and accompanying documents are to be supplied to the Magistrate in sufficient copies, including through electronic means. Electronic communication is considered valid service, further streamlining the documentation process.

Gathering Evidence and Examining Witnesses under the BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 lays down structured procedures for gathering evidence and examining witnesses during criminal investigations. Sections 179 to 182 provide clarity on police powers, witness obligations, and safeguards to ensure fair and lawful processes.

Police Officer’s Power to Require Attendance of Witnesses

A police officer investigating a case can, by a written order, require any person within their jurisdiction or that of a nearby station to appear for questioning if that person seems to have relevant information. However, the section includes key safeguards:

1. Exemptions:
   • Male persons below 15 or above 60 years.
   • Women, individuals with mental or physical disabilities, and persons with acute illnesses cannot be required to attend outside their residence unless they choose to do so voluntarily.
2. Expenses:
   The State Government can frame rules to ensure reasonable expenses are paid to witnesses attending at a location other than their residence.

This provision ensures the police can gather critical evidence without causing undue hardship to vulnerable individuals.

Examination of Witnesses by Police

Police officers conducting investigations are empowered to examine individuals suspected of having knowledge about the case. The key points are:

1. Obligation to Answer:
   Witnesses must truthfully answer all questions related to the investigation, except those that may incriminate them or lead to penalties or forfeitures.
2. Recording Statements:
   • Statements can be written or recorded via audio-video means.
   • A separate and accurate record must be maintained for each witness.
3. Special Provisions for Women Victims:
   For women who are victims of specific offences under the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 64-79 and 124), their statements must be recorded by a woman officer, ensuring sensitivity and privacy.

This section underscores the importance of accurate and lawful recording of witness statements.

Statements to Police and Their Use

This section governs the admissibility and use of statements made to the police during investigations:

1. Non-Signature Requirement:
   Statements made to the police cannot be signed by the witness, ensuring that these are not misrepresented as formal evidence.
2. Usage Restrictions:
   Such statements cannot be used in court except:
   • To contradict a prosecution witness during cross-examination, under Section 148 of the Bharatiya Sakshya Adhiniyam, 2023.
   • For re-examination to clarify matters raised during cross-examination.
3. Explanatory Clause:
   Any omission of significant facts in the statement can be treated as a contradiction if relevant to the case.

This section prevents the misuse of police statements while allowing their limited use for contradiction and clarification during trials.

No Inducement, Threat, or Promise

This section emphasises the importance of voluntary and unbiased witness statements:

1. Prohibition of Coercion:
   Police officers and persons in authority are prohibited from offering inducements, threats, or promises to witnesses as described in Section 22 of the Bharatiya Sakshya Adhiniyam, 2023.
2. Encouraging Voluntary Statements:
   Individuals willing to provide statements during an investigation can do so of their own free will, provided it aligns with legal safeguards.

This section ensures that evidence gathering respects the free will of witnesses and complies with principles of justice.

Search And Seizure by Police under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) provides guidelines for police officers regarding searches and seizures during criminal investigations. These provisions ensure that law enforcement can carry out searches in a lawful and systematic manner, while also protecting the rights of individuals.

1. Search by Police Officer (Section 185)

Under Section 185 of the BNSS, a police officer may conduct a search if they have reasonable grounds to believe that evidence related to an investigation can be found at a specific location. The officer must record the reasons for the search in writing and specify what is being sought. This is important to ensure transparency and accountability.

If possible, the police officer should conduct the search personally. In cases where this is not feasible, the officer can assign the search to a subordinate officer, but must document the reasons for not conducting the search themselves.

The search should ideally be recorded through audio or video means, such as a mobile phone, to further maintain transparency.

Any records of the search must be sent to the nearest Magistrate within 48 hours. Additionally, the owner or occupier of the searched place has the right to obtain a copy of these records from the Magistrate free of charge.

2. Search by Officers in Different Stations (Section 186)

In certain cases, an officer in charge of a police station may request another officer, even from a different district, to carry out a search. This provision allows for coordination between different police jurisdictions. The officer carrying out the search must follow the same procedure as outlined in Section 185, and any findings should be sent to the officer who made the request.

In situations where delaying the search could result in the destruction of evidence, a police officer is permitted to conduct a search outside their own jurisdiction, as if it were within their station’s limits. This helps prevent the loss of critical evidence.

The officer conducting such a search must inform the officer in charge of the police station where the search took place and provide the Magistrate with the necessary documentation.

3. General Provisions on Searches

The BNSS also refers to the provisions for search warrants and the general rules governing searches, as outlined in Section 103. These guidelines ensure that searches are conducted properly and fairly, respecting the rights of those involved while allowing police officers to gather necessary evidence.

4. Accountability and Transparency

The emphasis on recording searches and informing the Magistrate ensures accountability. The provision for the occupier of the searched property to receive a copy of the record further supports transparency in the process.

Special Provisions for Sensitive cases under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) includes important provisions designed to handle sensitive cases with care, ensuring justice while protecting the rights of the individuals involved. These provisions cover various aspects, including the medical examination of rape victims and the police investigation of suicides and suspicious deaths, with a focus on accountability and transparency.

Medical Examination of Rape Victims

Section 184 of the BNSS provides a structured process for the medical examination of women who are victims of rape or attempted rape. The provision ensures that such examinations are carried out by a registered medical practitioner employed in a government or local authority hospital. In cases where such a practitioner is unavailable, any registered medical practitioner can perform the examination, provided they have the consent of the victim or a competent person acting on her behalf.

The medical report must include critical details such as the victim’s personal information, the injuries found, the mental condition of the victim, and any other relevant material. It is essential that the report clearly states the reasons for any conclusions drawn, and that the consent for the examination is documented. The report must be forwarded to the investigating officer and the Magistrate within seven days. This ensures that there is no unlawful examination without consent, protecting the victim’s dignity and rights.

Police Investigation of Suicides and Suspicious Deaths

Section 194 addresses cases of suicide, suspicious deaths, or fatalities where there is a reasonable suspicion of criminal involvement. In such situations, the police are required to immediately inform the nearest Executive Magistrate and proceed to investigate the scene in the presence of respectable local inhabitants. The police must document the cause of death, including any wounds, fractures, or injuries, and submit a detailed report to the Magistrate within 24 hours.

Special provisions exist for cases involving the death of a woman within seven years of marriage, especially when there is suspicion of foul play. In such cases, the body may be sent for a medical examination to determine the cause of death. This procedure ensures that all suspicious deaths are thoroughly investigated and that any potential crime is properly addressed.

Release, Detention and Case Forwarding under the BNSS

Under the Bharatiya Nagarik Suraksha Sanhita, the process of handling accused individuals, including their release, detention, and case forwarding, is outlined with the aim of ensuring justice and maintaining public order. This process provides clear guidelines for police officers to follow during the investigation of criminal cases. Below, we will explore the provisions regarding the release of accused persons when evidence is deficient, cases being forwarded to a Magistrate, and the rights of complainants and witnesses in these circumstances.

Release of Accused When Evidence is Insufficient (Section 189)

When an investigation is conducted, the officer in charge of the police station must assess whether there is sufficient evidence or reasonable suspicion to justify further legal action. If, at this stage, the evidence is deemed insufficient or the suspicion is not reasonable, the officer must take appropriate action to ensure fairness.

If the accused is in police custody, and there is not enough evidence to justify their detention, the officer is required to release them. The release is typically conditional, where the accused must execute a bond or bail bond. This bond serves as a guarantee that the accused will appear before a Magistrate when required.

The provision ensures that individuals are not wrongfully detained without sufficient grounds, maintaining the principles of justice and due process.

Cases to Be Sent to a Magistrate When Evidence is Sufficient (Section 190)

When the officer in charge of the police station concludes that there is enough evidence or reasonable suspicion to support the charge against the accused, the case must be forwarded to a Magistrate. If the accused is in custody, they must be sent to a Magistrate who is empowered to take cognizance of the offence based on a police report. The Magistrate may either try the case or commit the accused for trial in a higher court.

If the offence is bailable and the accused can provide sufficient security, the officer may take a bond from them to ensure their appearance before the Magistrate. The bond obligates the accused to attend all proceedings until the case is resolved.

In cases where the accused is not in custody, the officer must still ensure that the accused provides security for their appearance in court. Even if the accused is not physically detained, the Magistrate cannot refuse to accept the police report on these grounds.

Additionally, when an accused is forwarded to a Magistrate, any relevant weapons or articles related to the case must also be sent. The officer may also require the complainant and witnesses, who are familiar with the facts of the case, to execute bonds, ensuring their appearance before the Magistrate to provide evidence.

Protection for Complainants and Witnesses (Section 191)

The safety and convenience of complainants and witnesses are also safeguarded under the Bharatiya Nagarik Suraksha Sanhita. It ensures that they are not subjected to unnecessary restraint, inconvenience, or forced to travel with police officers to the court.

Complainants and witnesses are not required to give any security for their appearance other than their own bond. However, if a complainant or witness refuses to cooperate by attending the court or executing the required bond, the officer in charge has the authority to forward them to the Magistrate. The Magistrate may detain the individual in custody until they comply with the bond requirements or until the case hearing is completed.

This provision aims to protect the rights of complainants and witnesses while ensuring their cooperation in legal proceedings.

Jurisdiction of Criminal Courts in Inquiries and Trials under the BNSS

Understanding the jurisdiction of criminal courts is crucial for ensuring the proper handling of inquiries and trials. The provisions systematically address various scenarios, ensuring justice is delivered efficiently. Below is a detailed explanation of each section:

Ordinary Place of Inquiry and Trial

This section establishes the general rule that offences should be investigated and tried by a court within whose territorial jurisdiction the offence was committed. This ensures convenience and relevance to the location where the crime occurred.

Place of Inquiry or Trial in Special Cases

This section addresses situations where determining jurisdiction may be complex:

• Uncertainty about location: If it’s unclear where the offence occurred, any court within the suspected local areas may handle the case.
• Offences spanning multiple areas: If an offence is committed across two or more jurisdictions, courts in either area can take cognizance.
• Continuing offences: Crimes continuing across jurisdictions, such as ongoing fraud, can be tried in any court within the affected areas.
• Multiple acts in different locations: If an offence involves acts performed in different locations, any court with jurisdiction over those locations can try the case.

Offence Triable Where Act or Consequence Occurs

When an offence arises due to an act and its resulting consequence, the trial can take place in the jurisdiction where the act was committed or where the consequence occurred. For example, if harmful actions taken in one place cause damage elsewhere, both locations are valid for trial.

Place of Trial for Related Offences

If an offence is criminal because of its relation to another act (e.g., abetment or conspiracy), the trial can occur in the jurisdiction where either the primary act or the related offence occurred.

Place of Trial for Specific Offences

This section details jurisdiction for particular crimes:

1. Dacoity and related offences: Trials can occur where the crime happened or where the accused is apprehended.
2. Kidnapping or abduction: Jurisdiction includes locations where the victim was taken, detained, or concealed.
3. Theft, extortion, and robbery: Trials may occur where the offence was committed or where the stolen property was possessed, received, or retained.
4. Criminal misappropriation or breach of trust: Jurisdiction covers where the offence occurred or where related property was handled or should have been accounted for.
5. Possession of stolen property: Trials can take place where the offence occurred or where the stolen items were held.

Offences Committed Through Electronic or Written Communication

This section governs jurisdiction for crimes involving modern communication:

1. Cheating via electronic means or letters: Jurisdiction lies where messages were sent, received, or resulted in deception.
2. Cheating and inducing property delivery: Trials can occur where the deceived person delivered the property or where the accused received it.

Additionally, offences punishable under Section 82 of the Bharatiya Nagarik Suraksha Sanhita, 2023, involve jurisdiction where the offence happened, or where the victim resides after the offence.

Offences Committed During a Journey or Voyage

When a crime occurs during a journey (by land or sea), the offence can be tried in any jurisdiction through which the person, object, or vehicle involved passed during the journey.

Place of Trial for Offences Tried Together

If multiple offences committed by one person, or by several people acting together, are linked (as per Sections 242-246 of the Bharatiya Nagarik Suraksha Sanhita), they can be tried together in any court competent to handle any one of the offences.

Power to Change Sessions Division for Trial

The State Government may direct cases to be tried in a different sessions division if needed, as long as it does not conflict with High Court or Supreme Court directions. This allows flexibility in exceptional circumstances.

Resolving Jurisdictional Disputes

When multiple courts take cognizance of the same offence, the High Court decides which court should proceed:

• If courts fall under the same High Court, the decision lies with that High Court.
• If courts belong to different High Courts, the High Court where proceedings began first resolves the issue.

Offences Beyond Local Jurisdiction

A Magistrate may inquire into an offence committed outside their jurisdiction and transfer the case to the appropriate court. This provision ensures that crimes committed elsewhere do not escape the judicial process.

Offences Committed Outside India

These sections address offences committed abroad:

1. Indian Citizens or Indian-registered Ships/Aircraft:
   Crimes committed by Indian citizens, or on Indian vessels or aircraft, are tried in Indian courts as if committed within Indian territory. However, prior approval from the Central Government is mandatory.
2. Foreign Evidence: Evidence collected in foreign territories, including depositions or exhibits, may be used in Indian trials with Central Government direction.

Cognizance & Transfer of Cases under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines specific conditions for initiating proceedings in criminal cases. Sections 210 to 214 elaborate on how Magistrates and Sessions Courts take cognizance of offences and the process for transferring cases.

Cognizance of Offences by Magistrates

Magistrates can take cognizance of offences in the following ways:

1. Upon Complaint:
   A Magistrate may act on a complaint detailing facts that constitute an offence. Complaints may also be filed by individuals authorized under special laws.
2. Upon Police Report:
   A Magistrate can take cognizance based on a police report, including reports submitted electronically.
3. Upon Information or Own Knowledge:
   A Magistrate can proceed if informed by any person (other than a police officer) or based on personal knowledge of the offence.

Special Empowerment:
Magistrates of the second class require special empowerment by the Chief Judicial Magistrate to take cognizance of offences. This ensures only competent authorities handle cases within their jurisdiction.

Transfer on Accused’s Application

If a Magistrate takes cognizance under clause (c) of Section 210(1) (based on information from a person or own knowledge), the accused has the right to object to further proceedings before that Magistrate.

• Before evidence is recorded, the accused must be informed of this right.
• If the accused opts for transfer, the case is reassigned to another Magistrate, as specified by the Chief Judicial Magistrate.

Making Over of Cases to Magistrates

Chief Judicial Magistrates hold the authority to transfer cases for inquiry or trial. This ensures an efficient distribution of workload among subordinate Magistrates.

1. By Chief Judicial Magistrate:
   Cases can be made over to any competent subordinate Magistrate after cognizance is taken.
2. By Authorised Magistrates:
   First-class Magistrates, empowered by the Chief Judicial Magistrate, can also transfer cases for inquiry or trial to specific Magistrates as directed.

Cognizance by Sessions Court

A Court of Session does not act as a court of original jurisdiction unless explicitly permitted by the BNSS or other laws. Typically, a case can only be tried in the Sessions Court after being committed by a Magistrate.

Role of Additional Sessions Judges

Additional Sessions Judges handle cases allocated to them by the Sessions Judge. These cases can also be directed to them by special orders of the High Court.

Prosecution for Specific Offences under the BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023, establishes comprehensive guidelines for the prosecution of specific offences to maintain the rule of law and ensure procedural fairness. This section of the article examines the provisions under Sections 215 to 222, focusing on key principles governing prosecution for contempt, offences against justice, marriage-related offences, and defamation.

Prosecution for Contempt of Lawful Authority and Related Offences

This section outlines restrictions on courts taking cognizance of offences punishable under Sections 206 to 223 (excluding Section 209) of the Bharatiya Nagarik Suraksha Sanhita. It mandates:

1. Complaints must be in writing and made by the concerned public servant or an authorized subordinate.
2. For offences related to court proceedings or documents (Sections 229–233, 236, 237, and others), the complaint must originate from the court where the offence occurred or a court to which it is subordinate.

This provision ensures that prosecution for such offences is initiated by the relevant authority, safeguarding public servants and judicial integrity.

Protection of Witnesses in Cases of Threats

Section 216 provides a mechanism for witnesses or individuals facing threats under Section 232 to file complaints. This protection encourages witnesses to come forward without fear, enhancing the credibility of judicial proceedings.

Prosecution for Offences Against the State

For offences against the State, including criminal conspiracy (Chapter VII offences, Sections 196, 299, and others), prior sanction from the Central or State Government is mandatory. Key highlights include:

1. Sanctions from government authorities ensure checks and balances in politically sensitive cases.
2. Preliminary investigations by a police officer of the rank of Inspector or higher may be ordered before granting sanction.

This section underscores the importance of government oversight in cases affecting national security.

Prosecution for Offences Against Marriage

Cognizance of offences under Sections 81 to 84 is permitted only upon a complaint by an aggrieved person. Exceptions include:

1. Complaints on behalf of children, persons of unsound mind, or women facing societal restrictions, with the court’s permission.
2. Specific provisions allow authorized representatives to file complaints for Armed Forces personnel.

This section protects marital and familial relationships while ensuring accessibility to justice for vulnerable individuals.

Prosecution for Offences Under Section 85

Section 220 governs offences under Section 85, permitting cognizance only upon a police report or a complaint by the aggrieved person or their relatives. It ensures that complaints are rooted in factual evidence to prevent misuse.

Marital Offences and Consent for Prosecution

Offences under Section 67 involving marital relationships require the wife’s complaint and prima facie evidence for the court to take cognizance. This provision safeguards marital privacy while ensuring accountability for unlawful actions.

Prosecution for Defamation

Defamation under Section 356 can only be prosecuted upon a complaint by the aggrieved party. Provisions include:

1. For public servants, prior sanction from the Central or State Government is mandatory.
2. Complaints must be filed within six months of the offence.
3. Aggrieved individuals retain the right to approach a Magistrate directly.

This section balances the right to reputation with safeguards against frivolous litigation.

Complaints to Magistrate under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines a structured process for handling complaints made to Magistrates, ensuring fairness and efficiency in the justice system. 

Examination of Complainant

This section establishes the procedure for examining complainants and witnesses when a Magistrate takes cognizance of an offence based on a complaint. Key provisions include:

1. Examination of the Complainant:
   • The Magistrate must examine the complainant and any witnesses present under oath.
   • The substance of the examination is recorded in writing and signed by the complainant, witnesses, and the Magistrate.
2. Opportunity for the Accused:
   • The Magistrate cannot take cognizance of an offence without providing the accused an opportunity to be heard.
3. Exceptions to Examination:
   • If the complaint is made in writing by a public servant acting in their official capacity or by a court, the complainant and witnesses need not be examined.
   • If the case is transferred to another Magistrate under Section 212, the initial Magistrate need not examine the complainant and witnesses.
4. Special Provisions for Complaints Against Public Servants:
   • No cognizance can be taken against a public servant for actions performed in their official capacity unless:
     • The public servant is given an opportunity to explain the circumstances of the incident.
     • A report detailing the incident is received from the superior officer of the public servant.

Procedure by Magistrate Not Competent to Take Cognizance

If a complaint is presented to a Magistrate who lacks the jurisdiction to take cognizance, the following steps are prescribed:

1. For Written Complaints:
   • The Magistrate must return the complaint with instructions to present it to the appropriate court.
2. For Oral Complaints:
   • The Magistrate must direct the complainant to the proper court.

This provision ensures that complaints are addressed by the correct judicial authority, avoiding unnecessary delays.

Postponement of Issue of Process

This section gives Magistrates the discretion to postpone the issuance of process (summons or warrants) in certain circumstances. The key provisions are:

1. Discretion to Postpone:
   • A Magistrate may delay issuing a process to inquire into the case or direct an investigation by a police officer or another person to determine if there is sufficient ground for proceeding.
2. Mandatory Postponement for Accused Outside Jurisdiction:
   • If the accused resides outside the Magistrate’s jurisdiction, the process must be postponed, and an inquiry or investigation should be conducted.
3. Restrictions on Investigation Orders:
   • The Magistrate cannot direct an investigation if:
     • The offence is exclusively triable by the Court of Session.
     • The complaint is not made by a court and the complainant has not been examined under Section 223.
4. Taking Evidence During Inquiry:
   • The Magistrate may take evidence on oath during an inquiry, but for offences triable exclusively by the Court of Session, all witnesses must be produced and examined.
5. Powers of Non-Police Investigators:
   • A person directed to investigate, if not a police officer, has the same powers as a police officer except the power to arrest without a warrant.

Dismissal of Complaint

This section empowers the Magistrate to dismiss a complaint if, after due consideration, there are no sufficient grounds for proceeding. Key aspects include:

1. Assessment by the Magistrate:
   • After examining the complainant and witnesses (if any) and reviewing the results of any inquiry or investigation conducted under Section 225, the Magistrate must decide if the case has merit.
2. Recording Reasons for Dismissal:
   • If the complaint is dismissed, the Magistrate must record the reasons for their decision briefly but clearly.

Commencement of Proceedings Before Magistrates under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) lays down a comprehensive framework for the initiation and conduct of criminal proceedings before Magistrates. This section of the article discusses Sections 227 to 233 of the BNSS, which detail the procedural aspects related to the issuance of process, supply of documents, commitment of cases, and dealing with parallel complaint and police investigation cases.

Issue of Process

This section empowers the Magistrate to issue summons or warrants to the accused upon finding sufficient grounds to proceed.

1. Summons or Warrants:
   • For summons cases, a summons is issued.
   • For warrant cases, the Magistrate may issue either a warrant or a summons. Electronic means can also be used to issue these.
2. List of Prosecution Witnesses: No summons or warrant can be issued without a list of prosecution witnesses being filed.
3. Complaints in Writing: In cases initiated through a written complaint, the summons or warrant must include a copy of the complaint.
4. Process Fees: No process is issued without the payment of requisite fees, failing which the Magistrate may dismiss the complaint.
5. No Conflict with Section 90: This section does not override the general provisions related to summoning under Section 90.

Dispensing with Personal Attendance

This section allows the Magistrate to excuse the accused from appearing in person and permits representation through an advocate.

1. Discretionary Authority: The Magistrate may allow the accused to appear via their advocate if deemed reasonable.
2. Enforcing Attendance: The Magistrate retains the discretion to summon the accused in person at any stage of the proceedings if necessary.

Special Summons for Petty Offences

This section provides a simplified procedure for petty offences, allowing for quicker disposal of such cases.

1. Summons for Pleading Guilty: The accused may plead guilty in writing and pay the fine through post, a messenger, or an advocate.
2. Fine Limit: The fine imposed under this provision cannot exceed ₹5,000.
3. Definition of Petty Offences: Offences punishable with a fine not exceeding ₹5,000 qualify, except those under the Motor Vehicles Act or laws that allow conviction in the accused’s absence.
4. State Empowerment: State Governments may empower Magistrates to handle certain compoundable offences or offences punishable by imprisonment of up to three months.

Supply of Documents in Police Report Cases

When a proceeding is instituted based on a police report, the Magistrate must ensure timely delivery of essential documents to the accused and the victim (if represented by an advocate).

1. Documents to Be Supplied: These include the police report, FIR, witness statements, confessions, and other relevant documents.
2. Timelines: The documents must be provided within 14 days of the accused’s appearance.
3. Electronic Access: If documents are voluminous, the Magistrate may provide access through electronic means or allow inspection in court.

Supply of Documents in Complaint Cases

In complaint cases involving offences triable exclusively by the Court of Session, the Magistrate must furnish copies of all necessary documents to the accused.

1. Documents Supplied: These include witness statements, confessions, and documents submitted during the inquiry.
2. Voluminous Documents: As in Section 230, voluminous documents may be inspected electronically or in court.

Commitment of Cases to the Court of Session

This section outlines the process for committing cases to the Court of Session when the offence is exclusively triable by it.

1. Compliance with Document Supply: The Magistrate must first comply with Sections 230 or 231 before committing the case.
2. Custody of the Accused: The accused may be remanded to custody until the trial concludes, subject to bail provisions.
3. Timeframes: Proceedings under this section must be completed within 90 days, extendable to 180 days with recorded reasons.
4. Forwarding Applications: Applications by the accused or victim must be forwarded to the Court of Session with the case.

Complaint Case and Police Investigation for the Same Offence

This section addresses situations where both a complaint and a police investigation are initiated for the same offence.

1. Stay of Proceedings: The Magistrate must stay the complaint proceedings and call for a police report.
2. Joint Inquiry or Trial: If the police report involves the same accused, the Magistrate combines the complaint case and the police case for trial as a single proceeding.
3. No Overlap: If the police report does not pertain to the accused in the complaint case, the Magistrate resumes the complaint proceedings.

Form of Charges under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) emphasizes transparency and fairness in criminal trials, especially regarding the process of framing charges. Sections 234 to 240 provide detailed guidelines on the content, structure, and procedures related to charges. These sections aim to ensure the accused is well-informed of the allegations and can prepare a proper defense. 

Contents of the Charge

This section specifies what a charge should contain:

1. Clear Description of the Offence: Each charge must describe the offence clearly. If the offence has a legal name, that name suffices. If not, the description must define the offence adequately.
2. Reference to the Law: The charge must cite the specific law or section under which the accused is charged.
3. Implied Legal Conditions: It is assumed that all legal conditions for the offence have been met unless stated otherwise.
4. Language of the Court: Charges must be written in a language understood by the accused or in the language of the court.
5. Details of Prior Convictions: If a prior conviction affects the punishment, it should be mentioned in the charge. However, failure to include this can be corrected later.
   Example: A charge for theft under Section 378 of the IPC would mention the act of theft and reference the legal provision.

This section ensures that charges are not vague and that the accused knows precisely what they are being accused of.

Particulars of Time, Place, and Person

For charges to be meaningful, they must specify certain key details:

1. Time and Place of the Offence: The charge should include the date, time, and location of the alleged crime.
2. Persons or Things Involved: If the offence involves a person (e.g., a victim) or an object (e.g., stolen property), these should be identified.
3. Simplification for Complex Cases: In cases like embezzlement, a gross sum or description may be used instead of itemizing each instance, provided the timeframe does not exceed one year.
   Purpose: These details help the accused prepare their defense effectively while allowing practical flexibility for complex cases.

Manner of Committing the Offence

If Sections 234 and 235 do not provide enough clarity, this section mandates further explanation of how the offence was committed.

1. Nature of Explanation: The manner in which the accused committed the crime should be detailed.
2. Offences Requiring Specifics: Some crimes, like cheating or giving false evidence, require a detailed explanation of the act. For others, like theft or murder, a general description may suffice.

This section ensures that the accused understands the allegations beyond just the legal terms.

Legal Interpretation of Charges

Words in a charge must be interpreted according to the law they reference. This section ensures consistency in legal understanding and prevents ambiguity.

For instance, if a charge states that the accused committed “theft,” it is understood as defined under Section 378 of the IPC.

Effect of Errors in the Charge

This section addresses the impact of mistakes in charges.

1. Minor Errors: Trivial errors, such as incorrect dates or misspelled names, do not invalidate a charge if they do not mislead the accused.
2. Material Errors: Significant mistakes that confuse or prejudice the accused may require correction.
   Illustration: If a charge states the wrong date for a crime but the surrounding evidence clearly points to the correct date, the error is immaterial. However, if the error creates confusion about the offence, it may need rectification.

This section prioritizes the substance of justice over procedural technicalities.

Alteration or Addition of Charges

Charges may need to be altered or expanded as new facts emerge during the trial. This section allows courts to modify charges, provided certain conditions are met:

1. Explanation to the Accused: Any alteration must be explained to the accused so they are not prejudiced.
2. Proceeding Without Prejudice: The trial can continue if the changes do not adversely affect either party.
3. Adjournment or Retrial: If prejudice is likely, the court may adjourn proceedings or order a fresh trial.
4. Sanction for Altered Charges: If the new charge requires prior approval (e.g., from a government authority), the trial cannot proceed without obtaining the sanction.
   Example: If new evidence suggests a more serious charge, the court can amend the charge but must ensure the accused has sufficient time to respond.

Recall of Witnesses

Whenever charges are altered, this section allows the prosecution and defense to revisit the evidence:

1. Recall Witnesses: Witnesses already examined can be recalled to address the altered charges.
2. Examine New Witnesses: If necessary, additional witnesses can be summoned to clarify or support the modified charges.
3. Court’s Discretion: The court can deny requests to recall or call witnesses if it believes the request is frivolous or intended to delay proceedings.

This provision safeguards fairness while preventing misuse of the process.

Joinder of Charges under the Bharatiya Nagarik Suraksha Sanhita (BNSS)

Joinder of Charges is a legal principle under the Bharatiya Nagarik Suraksha Sanhita (BNSS) that allows multiple charges against an accused individual to be tried together in a single trial, rather than in separate proceedings. This helps streamline the judicial process, saving time and resources, while ensuring that all related offenses are addressed cohesively. However, the decision to join charges depends on whether they arise from the same incident, have a common thread, or relate to a series of connected actions.

The BNSS sets out clear guidelines in Sections 241 to 247 to determine when charges can be joined or when they must be tried separately. These provisions aim to balance judicial efficiency with fairness to the accused, ensuring that each charge is appropriately addressed while avoiding unnecessary delays or confusion in the trial process.

Charge of Different Offences

Section 241 of the BNSS emphasizes the principle that distinct offences must be charged separately. If an individual is accused of multiple offences, each charge should be framed independently, and each offence should be tried individually. The intention behind this provision is to ensure that each case is evaluated based on its individual merits without confusion arising from the mixing of unrelated charges.

However, the law allows some flexibility. If the accused person requests that separate charges be tried together, the Magistrate may agree to consolidate them for efficiency, provided that doing so does not result in prejudice to the accused. This provision aims to strike a balance between the need for fair trials and the efficiency of legal proceedings.

Multiple offences are generally charged separately unless it is in the interest of justice to join them for a common trial.

Charges for Similar Offences Within a Year

Section 242 introduces an exception to the rule of separate charges for offences. If a person is accused of committing the same kind of offence multiple times within a 12-month period, those offences may be charged together in a single trial. This provision applies only to offences of the same nature, meaning those that carry the same or similar punishment, as defined under the Bharatiya Nyaya Sanhita or other specific laws.

The law provides a maximum limit of five offences of the same kind that can be tried together. This ensures that individuals who commit similar crimes within a short time frame can face consolidated charges, reducing the need for repetitive legal processes while still ensuring fairness.

Joinder of Offences Committed During the Same Transaction

Section 243 deals with the situation where a person commits multiple offences as part of a single transaction. In such cases, the law permits the accused to be charged for all offences arising from the same incident or series of connected acts in a single trial. This provision helps streamline legal processes by consolidating multiple charges when they are logically connected.

For example, if a person commits a robbery and also causes harm to a victim during the same event, both offences could be charged together, as they arise from the same transaction.

Offences that are part of a continuous or connected transaction can be tried together, even if they would normally be distinct charges.

Consent of the Accused for Joint Trial

Section 244 introduces an important safeguard: before joining multiple charges, the consent of the accused must be sought. The accused has the right to request that each charge be tried separately if they believe that combining charges will result in an unfair trial.

The Magistrate must also ensure that combining the charges would not cause injustice to the accused. This provision emphasizes the accused’s right to a fair trial and the court’s duty to consider potential prejudice that could arise from joining charges.

The accused has the right to request separate trials for distinct charges if they believe that a joint trial would be unjust.

Procedure for Joinder

Section 245 outlines the procedural requirements for joinder of charges. It stipulates that if the charges are to be tried together, the court must ensure that each charge is clearly defined and that the evidence for each charge is properly presented. This section aims to prevent any confusion during the trial process, ensuring that the accused and the court clearly understand the charges and evidence associated with each one.

This provision ensures that justice is not only done but is seen to be done, maintaining transparency in how charges are joined and tried.

Discharge of Accused from Joined Charges

Section 246 provides for the possibility of discharging the accused from some or all of the charges that have been joined. If at any point during the trial, the court finds that the evidence presented for certain charges is insufficient, it has the authority to discharge the accused from those specific charges. This provision ensures that the accused is not unfairly burdened by charges that cannot be substantiated with evidence.

Discharge from charges can occur at any stage during the trial, offering a safeguard against wrongful prosecution.

If charges are weak or unsubstantiated, the accused can be discharged from those charges, even if they were originally part of a joined trial.

Power of the Magistrate to Separate Charges

Finally, Section 247 grants the Magistrate the power to separate charges if, during the course of the trial, it becomes evident that the charges are too complex to be reasonably tried together. This may occur if the evidence for certain charges is significantly different or if it would be unjust to continue with the joint trial.

The Magistrate may also choose to separate charges if it becomes clear that trying them together would result in undue prejudice to the accused or cause delays in the judicial process.

The Magistrate has the discretion to separate charges if it is deemed necessary to ensure fairness and efficiency in the trial.

Trial Before A Court of Session

The process of trial before a Court of Session under the Bharatiya Nagarik Suraksha Sanhita (BNSS) is governed by a structured procedure to ensure justice. Sections 248 to 260 outline the step-by-step framework for conducting such trials. 

Trial Conducted by Public Prosecutor

All trials in a Court of Session must be conducted by a Public Prosecutor. This ensures that the case is presented effectively and fairly on behalf of the State.

Opening Case for Prosecution

When an accused is brought before the court following a commitment under Section 232 or other applicable laws, the Public Prosecutor begins the trial by describing the charges and explaining the evidence that will be used to establish the accused’s guilt.

Discharge

1. The accused can file an application for discharge within 60 days of case commitment.
2. If the court finds insufficient grounds to proceed after reviewing the case documents and hearing both parties, the accused is discharged, with reasons recorded in writing.

Framing of Charge

1. If there is a prima facie case:
   • For non-exclusive session cases, the charge is framed, and the case is transferred to a Chief Judicial Magistrate or Judicial Magistrate of the First Class for trial.
   • For exclusive session cases, the charge is framed in writing within 60 days of the first hearing.
2. The charge is then read to the accused, and the accused is asked whether they plead guilty or claim trial.

Conviction on Plea of Guilty

If the accused pleads guilty, the court may convict them based on this plea, using its discretion.

Date for Prosecution Evidence

If the accused does not plead guilty or claims trial, the court sets a date for examining prosecution witnesses and facilitates processes to ensure their attendance or document production.

Evidence for Prosecution

1. The prosecution presents its evidence, which may be recorded electronically.
2. Public servants’ depositions can also be recorded via electronic means.
3. The Judge may defer or recall witnesses for further examination if necessary.

Acquittal

After examining prosecution evidence and hearing both parties, if the court finds no evidence against the accused, it records an acquittal.

Entering Upon Defence

1. If not acquitted, the accused can present a defence and adduce evidence.
2. Written statements by the accused are filed in the record.
3. The court may issue processes for witnesses or documents unless it deems the request frivolous or unjust.

Arguments

After completing the defence’s evidence, the prosecution sums up the case. The accused or their advocate responds, raising legal points if necessary. The prosecution may reply with the Judge’s permission.

Judgment of Acquittal or Conviction

1. After arguments, the court delivers a judgment within 30 days, extendable to 45 days with reasons recorded.
2. If convicted, the accused is heard on sentencing before punishment is decided.

Previous Conviction

If a prior conviction is alleged and not admitted, evidence for it is recorded after the accused’s conviction. References to prior convictions are not made until the accused is convicted for the current charge.

Special Procedure for Certain Cases

1. For cases under Section 222(2), the trial follows the warrant-case procedure for cases not based on police reports.
2. Trials can be held in camera if requested or deemed appropriate.
3. If the accused is acquitted, the court may direct the complainant to compensate the accused if the accusation was baseless. Such orders can be appealed, and compensation is recoverable as a fine.

Trials of Summons Cases by The Magistrates under the Bharatiya Nagarik Suraksha Sanhita

Substance of Accusation to be Stated

This section ensures that the accused is fully aware of the charges against them, fostering transparency and fairness.

1. Explanation of Charges: When the accused appears or is brought before the Magistrate, the details of the offense are explained to them in clear terms. The goal is to ensure they understand the nature of the allegations.
2. Pleas and Defense: The accused is asked whether they plead guilty or wish to present a defense.
3. No Formal Charge Required: Unlike warrant cases, there is no requirement to frame a formal charge in summons cases, simplifying the procedure.
4. Discharge for Baseless Accusations: If the Magistrate finds that the accusation lacks merit, they must record their reasons in writing and discharge the accused. This discharge is equivalent to the accused being released from the case.

Conviction on Plea of Guilty

This section addresses scenarios where the accused admits guilt.

1. Recording of Plea: If the accused pleads guilty, the Magistrate records the plea in the accused’s exact words to ensure accuracy and fairness.
2. Discretionary Conviction: The Magistrate may convict the accused based on their plea, but it is at the Magistrate’s discretion to ensure that justice is served appropriately.

Conviction on Plea of Guilty in Absence of Accused in Petty Cases

This section streamlines the process for minor offenses where the accused may not need to appear personally.

1. Plea by Letter: The accused can send a letter to the Magistrate containing their guilty plea, along with the amount of fine specified in the summons.
2. Advocate Representation: Alternatively, an advocate authorized by the accused can plead guilty on their behalf.
3. Discretionary Conviction: The Magistrate may convict the accused in their absence and adjust the transmitted fine amount toward the penalty.
4. Ensuring Justice: This provision ensures convenience for minor cases while upholding judicial integrity.

Procedure When Not Convicted

This section outlines the process if the Magistrate decides not to convict the accused immediately.

1. Prosecution Evidence: The Magistrate proceeds to hear the prosecution, allowing them to present evidence supporting their case.
2. Defense Evidence: The accused is also given an opportunity to present evidence in their defense.
3. Summoning Witnesses: Either party can request the summoning of witnesses or production of documents. The Magistrate may require a deposit of reasonable expenses for the witness to attend.
4. Fair Trial: This section ensures that both sides are heard thoroughly before the Magistrate reaches a decision.

Acquittal or Conviction

This section governs the outcome of the trial.

1. Acquittal: If the Magistrate, after reviewing the evidence, finds the accused not guilty, they record an order of acquittal.
2. Conviction and Sentencing: If the accused is found guilty, the Magistrate imposes an appropriate sentence as per the law.
3. Flexibility in Conviction: The Magistrate can convict the accused of any offense revealed by the facts during the trial, even if it is not the original complaint or summons, provided it does not prejudice the accused.

Non-Appearance or Death of Complainant

This section deals with situations where the complainant is absent or deceased.

1. Acquittal in Case of Non-Appearance: If the complainant does not appear, the Magistrate gives them a 30-day notice period. If they still fail to appear, the accused is acquitted.
2. Representation or Exemption: If the complainant is represented by an advocate or their presence is deemed unnecessary, the Magistrate may proceed with the case in their absence.
3. Death of Complainant: If the complainant is deceased, the same provisions apply, ensuring that the trial can proceed or conclude appropriately.

Withdrawal of Complaint

This section allows the complainant to withdraw the complaint under certain conditions.

1. Request for Withdrawal: The complainant can request withdrawal of the case at any point before a final order is passed, provided they satisfy the Magistrate with valid grounds.
2. Acquittal of Accused: If the withdrawal is permitted, the accused is acquitted. This applies to all or some of the accused, depending on the request.

Power to Stop Proceedings

This section grants the Magistrate authority to halt proceedings in certain cases.

1. Stopping Proceedings: In cases not based on a formal complaint, the Magistrate can stop proceedings at any stage, recording the reasons for doing so.
2. Acquittal or Discharge: If principal witnesses have been examined, the Magistrate delivers a judgment of acquittal. Otherwise, the accused is released, and this release is treated as a discharge.
3. Ensuring Justice: This power is used judiciously to prevent unnecessary prolonging of cases.

Conversion of Summons Cases into Warrant Cases

This section addresses situations where a summons case might require a more detailed trial process.

1. Criteria for Conversion: If the offense is punishable with imprisonment exceeding six months, the Magistrate can convert the case into a warrant case if it serves the interest of justice.
2. Re-Hearing the Case: The Magistrate may recall witnesses and re-hear the case under warrant-case procedures.
3. Fair Trial: This ensures serious offenses are tried with appropriate procedural safeguards.

Summary Trials under the Bharatiya Nagarik Suraksha Sanhita

Summary Trials under the Bharatiya Nagarik Suraksha Sanhita

Power to Try Cases Summarily

Who Can Conduct Summary Trials?

• Chief Judicial Magistrates and Magistrates of the First Class are empowered to try specific cases in a summary manner.

Types of Offences Covered

1. Theft (under Sections 303, 305, 306 of Bharatiya Nyaya Sanhita): If the value of stolen property is ₹20,000 or less.
2. Receiving or Retaining Stolen Property (Section 317): When the property value does not exceed ₹20,000.
3. Assisting in Concealing or Disposing of Stolen Property (Section 317(5)): Applicable for property valued at ₹20,000 or less.
4. Offences Under Section 331 (2 and 3): Related to specific categories of wrongful restraint and other minor offences.
5. Insult to Provoke Breach of Peace (Section 352) and Criminal Intimidation (Section 351 (2 and 3)).
6. Abetment or Attempt of the Above Offences.
7. Offences Under Section 20 of the Cattle-Trespass Act, 1871.

Other Provisions

• Magistrates may also summarily try any offences (not punishable by death, life imprisonment, or imprisonment exceeding three years) after providing the accused a reasonable opportunity to be heard.
• Appeals: Decisions by Magistrates to conduct summary trials under this section cannot be appealed.

Reversion to Regular Trial

• If the Magistrate deems a case unsuitable for summary trial, they can recall witnesses and proceed under the regular trial procedure as per the BNSS.

Summary Trials by Magistrates of Second Class

• The High Court may grant summary trial powers to Magistrates of the Second Class for cases punishable only with fines or imprisonment up to six months, with or without fines.
• This also includes the abetment or attempts to commit such offences.

Procedure for Summary Trials

• Summary trials follow the procedural rules applicable to summons cases, with minor exceptions.
• A key limitation is that the maximum sentence that can be passed in a summary trial is three months of imprisonment.

Record Maintenance in Summary Trials

Magistrates conducting summary trials must maintain a detailed record of each case in a format prescribed by the State Government. The record should include:

1. Case details: Serial number, offence date, and date of complaint or report.
2. Parties involved: Names and details of the complainant (if any) and the accused.
3. Offences: The offence alleged, the offence proved, and the value of the property involved (where applicable).
4. Trial details: Plea of the accused, findings, and final orders or sentence.
5. Completion: The date when the proceedings were terminated.

Judgment in Summary Trials

• For cases where the accused does not plead guilty, the Magistrate must record the substance of the evidence and deliver a brief judgment explaining the reasons for the decision.
• This ensures that the judgment is concise yet sufficient to provide clarity on the Magistrate’s findings.

Language of Records and Judgments

• The records and judgments for summary trials must be written in the language of the Court.
• The High Court may authorize Magistrates to use appointed officers for preparing records or judgments. These documents must be signed by the Magistrate.

Plea Bargaining under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces plea bargaining as a structured and efficient process to resolve criminal cases involving less serious offences. This mechanism aims to reduce the burden on the judiciary while ensuring justice for all parties involved. 

Eligibility and Scope 

Plea bargaining under the BNSS is applicable only in cases involving offences with a prescribed punishment of up to seven years of imprisonment. Serious crimes, such as those involving women or children, or offences that threaten the socio-economic stability of the country, are explicitly excluded. The Central Government has the authority to notify such socio-economic offences.

This section ensures that plea bargaining is reserved for minor offences, thereby safeguarding public interest and protecting vulnerable sections of society from exploitation.

Initiating Plea Bargaining 

An accused person can file an application for plea bargaining within 30 days of the charges being framed. The application must include:

• A statement detailing the case and offence.
• An affidavit declaring that the application is voluntary and free from coercion.
• A declaration that the accused has no prior convictions for the same offence.

The court, upon receiving the application, informs the prosecutor, investigating officer, and the victim, enabling their participation in the process. An in-camera examination of the accused is conducted to ensure voluntariness and protect against undue influence.

Reaching a Mutually Satisfactory Disposition

This section outlines the process for reaching an agreement between the parties.

• For cases involving police reports: The Public Prosecutor, investigating officer, victim, and accused participate.
• For private complaints: Only the victim and the accused are involved.

The court facilitates discussions to ensure transparency, fairness, and voluntary participation. Advocates may represent the parties if desired. This collaborative approach aims to arrive at an agreement that benefits all stakeholders.

Report of Disposition

Once a mutually satisfactory agreement is reached, the court prepares a detailed report signed by all participants. If no agreement is achieved, the case proceeds as per standard legal procedures. Importantly, the failure to reach an agreement does not affect the accused’s rights in subsequent trials.

This provision ensures that the plea bargaining process remains neutral and fair, preserving the rights of all parties involved.

Disposal of the Case 

If plea bargaining succeeds, the court prioritizes victim compensation and applies a reduced sentence for the accused.

• In cases with minimum prescribed punishments, the court may reduce the sentence by half or one-fourth.
• For offences with only maximum prescribed punishments, the sentence may be reduced to one-fourth or one-sixth of the maximum.

Additionally, the court may place the accused on probation if eligible under applicable laws.

Final Judgment 

The judgment, reflecting the terms of the agreement, is delivered in open court and signed by the presiding officer. This ensures transparency and accountability in the judicial process.

Finality of Judgment 

Judgments under plea bargaining are final and cannot be appealed through regular mechanisms. However, special remedies are available via:

1. A Special Leave Petition under Article 136 of the Constitution.
2. Writ petitions under Articles 226 or 227.

This provision maintains the integrity of the process while providing limited recourse for extraordinary circumstances.

Court’s Powers

This section clarifies that plea bargaining does not limit the court’s authority in matters such as bail, trial procedures, or case disposal. The court retains its jurisdiction to ensure justice is served.

Credit for Pre-Trial Detention

The period spent in custody during the trial is deducted from the final sentence, in line with Section 468 of the BNSS. This provision ensures fairness in sentencing by preventing undue hardship to the accused.

Overriding Clause

If any conflict arises between plea bargaining provisions and other sections of the BNSS, the provisions of plea bargaining take precedence. This ensures the effectiveness and coherence of the plea bargaining framework.

Confidentiality of Statements 

Statements made by the accused during plea bargaining cannot be used against them in any other proceedings. This protects the accused from self-incrimination and encourages voluntary participation in the process.

Exclusion of Juveniles 

Juveniles, as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015, are excluded from plea bargaining. This ensures that minors are treated under a rehabilitative framework rather than punitive measures.

Attendance of Persons Confined or Detained in Prison under the Bharatiya Nagarik Suraksha Sanhita

The provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS) related to the attendance of persons confined or detained in prison are outlined in Sections 301 to 306. These sections govern the procedures and conditions for producing prisoners before courts, including exceptions and specific circumstances. 

Key Definitions

1. “Detained”: This term includes persons held under laws related to preventive detention.
2. “Prison”: It broadly covers various detention facilities such as:
   • Places declared as subsidiary jails by the State Government.
   • Reformatory or Borstal institutions or similar facilities.

Power to Require Attendance of Prisoners

1. Reasons for Production: A court may require a prisoner to:
   • Answer charges in an inquiry, trial, or proceeding.
   • Serve as a witness in the interest of justice.
2. Procedure:
   • The court issues an order to the officer in charge of the prison to produce the prisoner.
   • If the order is issued by a Magistrate of the second class, it must be countersigned by the Chief Judicial Magistrate (CJM).
   • The Magistrate must provide a justification for the order, which the CJM evaluates before countersigning.

This ensures judicial oversight, especially when lower courts issue such orders.

Government’s Power to Exclude Certain Persons

1. Conditions for Restriction: The government can issue such orders considering:
   • The nature of the offence or grounds for detention.
   • Potential public order disturbances if the person is removed.
   • Broader public interest.
2. Effect of the Order: Once issued, no court order under Section 302 can override this government directive.

This provision safeguards against potential misuse and maintains public order.

Situations Where Orders Cannot Be Executed

This section lists exceptions where a prisoner cannot be removed despite a court order under Section 302:

1. Reasons for Abstention:
   • The prisoner is unfit to travel due to sickness or infirmity.
   • The prisoner is under trial, remand, or pending preliminary investigation.
   • The prisoner’s custody is set to expire before completing the order.
   • A government order under Section 303 restricts removal.
2. Proviso for Short-Distance Evidence: If the prisoner needs to give evidence within 25 km of the prison, the officer cannot abstain solely due to pending trial or investigation.

Prisoner to Be Brought to Court in Custody

This section mandates compliance with a court order (under Section 302) unless exceptions in Section 304 apply.

1. Responsibilities of Prison Authorities:
   • The officer in charge of the prison must ensure the prisoner is present at the court at the specified time.
   • The prisoner remains in custody in or near the court until released back to prison.

Power to Issue Commission for Examination of Witness in Prison

This section permits courts to issue a commission for examining prisoners as witnesses, without requiring their physical presence in court.

1. Applicability: The procedure under Part B of Chapter XXV governs such examinations.
2. Purpose: It facilitates the collection of evidence while minimizing logistical challenges and security risks associated with transporting prisoners.

Mode of Taking And Recording Evidence in Inquiries & Trials

Language of Courts

The State Government is empowered to determine the language to be used in courts within its jurisdiction, excluding High Courts. This provision ensures that proceedings are conducted in a language understood by the majority of participants, enhancing accessibility and clarity.

Evidence to Be Taken in the Presence of the Accused

Evidence during trials or other proceedings must be recorded in the accused’s presence. If the accused is not physically present, their advocate may represent them, including through audio-video electronic means at designated locations.

For sensitive cases, such as those involving minors who are victims of sexual offenses, the court ensures measures to protect the victim from direct confrontation with the accused. Cross-examination rights are maintained, but safeguards are in place to ensure a victim-friendly process.

Record in Summons Cases and Inquiries

In summons cases and specific inquiries (Sections 164–167), the Magistrate must create a memorandum of the evidence in the court’s language as the examination progresses. If the Magistrate cannot write it personally, they must record reasons and have it dictated or written by someone else under their supervision. This memorandum forms an integral part of the case record.

Record in Warrant Cases

In warrant cases, evidence must be written by the Magistrate or dictated in open court. If the Magistrate cannot write due to incapacity, the evidence is recorded by an officer under their direction. Audio-video recording is permissible, provided the accused’s advocate is present.

Evidence is generally recorded in narrative form but may also be noted in question-and-answer format at the Magistrate’s discretion. The record must be signed by the Magistrate, ensuring its authenticity and inclusion in official records.

Record in Trials Before Courts of Session

In sessions court trials, evidence is taken by the presiding Judge or an officer under their supervision. Like warrant cases, evidence is recorded in narrative form but can also be in question-and-answer format when needed. The Judge’s signature validates the record.

Language of Record of Evidence

This section specifies the language in which evidence should be recorded:

• If the witness speaks the court’s language, it is recorded as is.
• If the witness uses another language, evidence is recorded in that language or translated into the court’s language.
• When evidence is taken in English, translation into the court’s language can be waived if parties agree.

This flexibility ensures inclusivity and procedural fairness.

Procedure After Recording Evidence

Once evidence is recorded, it must be read back to the witness in the presence of the accused or their advocate. Witnesses can correct inaccuracies or raise objections, which are noted by the court. If the evidence was recorded in a different language, it is interpreted for the witness, ensuring comprehension and accuracy.

Interpretation of Evidence to the Accused or Advocate

If evidence is in a language the accused or their advocate does not understand, the court ensures interpretation in a comprehensible language. This applies equally to oral evidence and documentary evidence introduced for formal proof.

Remarks on the Demeanor of Witnesses

The presiding officer records observations about the witness’s demeanor during examination. These remarks can provide valuable context for assessing the reliability and credibility of the testimony.

Record of Examination of the Accused

The examination of the accused must be fully recorded, including every question and answer, by the Magistrate or Judge. If done electronically, the accused’s signature must be obtained within 72 hours. This record must be reviewed by the accused, ensuring transparency and a full account of their statements.

Duty of Interpreters

Interpreters involved in translating evidence or statements must provide truthful and accurate interpretations. This ensures that linguistic barriers do not impede the administration of justice.

Record in High Courts

High Courts have the authority to prescribe rules for recording evidence and examining the accused. These rules must be followed in cases brought before them, ensuring consistency in procedural practices across higher judicial forums.

When Attendance of Witness May Be Dispensed With and Commission Issued

Section 319 allows a court or magistrate to dispense with the attendance of a witness and issue a commission for their examination if certain conditions are met. This provision is particularly significant when the court deems the examination of a witness necessary for justice but finds their physical attendance unfeasible due to unreasonable delay, expense, or inconvenience. It is also mandatory to issue a commission when high-ranking officials, such as the President, Vice President, Governor, or Administrator of a Union Territory, are to be examined as witnesses. This section ensures that justice is not hampered by practical difficulties in securing the presence of witnesses. Furthermore, the court may direct the prosecution to bear reasonable expenses, including legal fees, for the accused in cases involving prosecution witnesses.

Commission to Whom to Be Issued

This section outlines the authorities to whom a commission is directed based on the location of the witness. If the witness is within the jurisdiction of the Sanhita, the commission is directed to the Chief Judicial Magistrate in that area. For witnesses outside the jurisdiction of the Sanhita but within India, the Central Government specifies the relevant authority. Similarly, for witnesses outside India, arrangements under bilateral agreements determine the authority and procedure for issuing and executing such commissions. This structured approach ensures that the evidence-gathering process is seamless, irrespective of the witness’s location.

Execution of Commissions

Once a commission is issued, the designated Chief Judicial Magistrate or an appointed magistrate takes charge of summoning the witness or visiting their location. The evidence is recorded following the procedures for warrant trials under this Sanhita. This ensures that the testimony is documented systematically and in a manner consistent with legal standards, upholding the integrity of the judicial process.

Parties May Examine Witnesses

This section provides parties in a case with the opportunity to actively participate in the examination of witnesses for whom a commission is issued. The court or magistrate allows relevant written interrogatories to be forwarded. Additionally, parties may appear through their advocates or in person to examine, cross-examine, and re-examine the witness. This ensures transparency and gives both sides an equal opportunity to address the evidence presented.

Return of Commission

After the commission is executed, the magistrate or authority sends the deposition and related documents back to the issuing court. These records become part of the case file and are accessible to all parties for inspection. The depositions may be admitted as evidence, provided they comply with the conditions specified in Section 27 of the Bharatiya Sakshya Adhiniyam, 2023. This provision ensures the proper integration of the commission’s findings into the judicial process.

Adjournment of Proceeding

When a commission is issued under Section 319, the court may adjourn the trial or proceeding for a reasonable period to allow for the commission’s execution and return. This prevents undue delays while accommodating the practicalities of gathering evidence through commissions.

Execution of Foreign Commissions

This section applies the procedures for executing commissions issued under Section 319 to those issued by foreign courts or authorities specified by the Central Government. This enables cross-border cooperation in criminal matters, ensuring that evidence from foreign jurisdictions is collected and utilized effectively.

Deposition of Medical Witness

The deposition of medical professionals, such as civil surgeons, taken in the presence of the accused or on commission, can be used as evidence without requiring their presence in court. However, the prosecution or the accused can request their summoning for further examination. This provision balances efficiency with the need for thoroughness in medical testimonies.

Identification Report of Magistrate

Identification reports prepared by Executive Magistrates concerning persons or property can be used as evidence, even without the magistrate’s presence in court. However, any statements in such reports must comply with relevant provisions of the Bharatiya Sakshya Adhiniyam, 2023. Parties may also request the magistrate’s examination if necessary, ensuring the reliability of such reports.

Evidence of Officers of Mint

Reports from officers of institutions like Mints, Note Printing Presses, or Forensic Departments can be submitted as evidence without the officers being present in court. These officers may only be summoned with proper permissions, ensuring that sensitive or confidential processes and data are protected. This section facilitates the inclusion of expert reports while maintaining security over sensitive information.

Reports of Certain Government Scientific Experts

Reports from designated government scientific experts are admissible as evidence. If the expert cannot attend court, they may send a qualified officer to testify on their behalf. This provision ensures the availability of expert opinions without unnecessary delays, while also offering flexibility in summoning the expert or their representative for further clarification.

Principle of Justice & Legal Representation under the Bharatiya Nagarik Suraksha Sanhita 

The Bharatiya Nagarik Suraksha Sanhita upholds several principles to ensure justice and fair representation in criminal proceedings. This section of the article explores the key provisions relating to the right against double jeopardy, legal representation, and the role of the accused as a competent witness, as codified under the BNSS.

Protection Against Double Jeopardy

Section 337 of the BNSS codifies the principle that a person cannot be tried twice for the same offence by a competent court. This ensures finality in judicial decisions and protects individuals from repeated prosecution for the same facts. Key provisions include:

1. No Retrying for Same Offence: Once a person is convicted or acquitted of an offence, they cannot be retried for the same offence while the conviction or acquittal remains in force. This includes any other offence that could have been charged under Section 244.
2. Exceptions:
   • A distinct offence arising from the same facts may be tried with the State Government’s consent, as provided under Section 243.
   • If the consequences of the act were unknown at the time of the initial trial, subsequent prosecution for offences arising from those consequences is allowed.
   • If the first court lacked competence to try a subsequent charge, a new trial for the offence constituted by the same acts may proceed.
3. Prohibition Against Re-Trial After Discharge: A person discharged under Section 281 cannot be retried for the same offence without the consent of the original court or its superior.
4. Exclusions: The section does not affect provisions under Section 26 of the General Clauses Act, 1897, or Section 208 of the BNSS.

Illustrations:

• An acquittal for theft prevents subsequent charges for theft or related charges like criminal breach of trust on the same facts.
• Conviction for grievous hurt allows retrial for culpable homicide if the victim later dies.
• Conviction for theft may not bar trial for robbery on the same facts, subject to exceptions.

Right to Legal Representation

Right to Be Defended (Section 340)

Every accused individual has the unequivocal right to legal representation. Section 340 guarantees that any person accused of an offence may defend themselves through an advocate of their choice. This provision underscores the importance of fair trials and access to justice.

State-Funded Legal Aid (Section 341)

In cases where the accused cannot afford legal representation, Section 341 mandates the provision of legal aid at the State’s expense. Key aspects include:

1. Court’s Obligation: If the accused lacks sufficient means to engage an advocate, the court must assign one for their defence.
2. Rules and Facilities: The High Court, with State Government approval, can frame rules to:
   • Select advocates for State-funded defence.
   • Ensure facilities for such advocates.
   • Fix fees payable to advocates.
3. Extension to Other Trials: The State Government may apply these provisions to other classes of trials by notification.

Accused as a Competent Witness

Section 353 enables the accused to testify as a defence witness under specific conditions. The section ensures that this choice is voluntary and protects the accused from undue prejudice.

1. Voluntary Testimony: The accused can only testify upon a written request and cannot be compelled to do so.
2. Protection Against Adverse Inference: Failure to testify cannot be commented upon or lead to presumptions against the accused.
3. Additional Provisions: Persons facing proceedings under sections or chapters specified in Section 353(2) may also testify, with similar protections against adverse inferences in certain cases.

Prohibition of Coercion

Section 354 reinforces the principle of voluntary disclosure. Except as permitted under Sections 343 and 344, no person can be influenced through promises, threats, or other means to disclose or withhold information. This safeguards the accused’s autonomy and ensures that any disclosure is free from coercion.

Roles and Powers of Public Prosecutors under the Bharatiya Nagarik Suraksha Sanhita

Public Prosecutors play a pivotal role in the criminal justice system, ensuring fair trials and upholding the rule of law. The Bharatiya Nagarik Suraksha Sanhita (BNSS) lays down specific provisions detailing their roles, powers, and responsibilities. This section of the article delves into Sections 338, 339, and 360 of the BNSS, which outline the scope of their functions in the prosecution of cases.

Appearance by Public Prosecutors

This section establishes the authority of Public Prosecutors (PPs) or Assistant Public Prosecutors (APPs) to represent the State in legal proceedings.

1. Autonomous Representation:
   • Public Prosecutors or Assistant Public Prosecutors in charge of a case can appear and plead without requiring written authorization before any court handling an inquiry, trial, or appeal related to the case. This provision ensures the seamless representation of the State.
2. Role of Private Advocates:
   • If a private individual engages an advocate to assist in the prosecution, the Public Prosecutor retains primary control of the case. The advocate operates under the directions of the Public Prosecutor.
   • After the evidence is closed, the private advocate, with the court’s permission, may submit written arguments. This balances the interests of private individuals with the overarching responsibility of the State.

Permission to Conduct Prosecution

This section governs who may conduct prosecutions and the conditions under which permission is granted.

1. Eligibility for Prosecution:
   • A Magistrate may allow prosecution to be conducted by a person other than a police officer below the rank of inspector. However, this permission is discretionary and subject to court approval.
   • Advocates-General, Government Advocates, Public Prosecutors, or Assistant Public Prosecutors do not require explicit permission to conduct prosecutions.
2. Restrictions on Police Officers:
   • Police officers who have participated in the investigation of the case are prohibited from prosecuting the matter. This ensures impartiality and prevents conflicts of interest.
3. Personal and Legal Representation:
   • Authorized individuals conducting prosecution may do so either personally or through an advocate. This flexibility allows the prosecution to be handled effectively, depending on the expertise required.

Withdrawal from Prosecution

This section empowers Public Prosecutors to withdraw from the prosecution of an accused under certain conditions, with the court’s consent.

1. Timelines for Withdrawal:
   • Withdrawal can occur at any stage before the judgment is pronounced.
   • If the withdrawal happens before the framing of charges, the accused is discharged from the concerned offences.
   • If the withdrawal occurs after charges are framed, the accused is acquitted of the specified offences.
2. Special Cases Requiring Central Government Permission:
   • For offences involving the Union’s executive authority, investigated under Central Acts, or concerning Central Government property or officials, withdrawal requires prior permission from the Central Government.
   • Before granting consent, the court must verify this permission to ensure proper oversight.
3. Victim’s Right to Be Heard:
   • The second proviso mandates that courts must give the victim an opportunity to present their views before allowing withdrawal. This safeguards the victim’s interests and ensures transparency in the process.

Procedural Powers of Magistrates and Courts under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines the procedural framework within which magistrates and courts operate. It ensures the fair and efficient administration of justice. Several sections within the BNSS, such as Sections 346, 348, 349, 351, 358, and 364, detail the powers and responsibilities vested in judicial authorities.

Power to Postpone or Adjourn Proceedings

Section 346 emphasizes the importance of continuity in legal proceedings.

1. General Rule: Inquiries or trials must proceed daily until all witnesses present are examined.
2. Exceptions: Adjournments can only be granted if the court records specific reasons. Trials involving offenses under certain sections of the Bharatiya Nyaya Sanhita must conclude within two months of filing the chargesheet.
3. Limitations on Adjournments:
   • No adjournment should exceed 15 days at a time.
   • When witnesses are present, they must be examined unless exceptional reasons are recorded.
   • Adjournments for the sole purpose of allowing the accused to show cause against sentencing are prohibited.
4. Special Provisions:
   • Adjournments due to uncontrollable circumstances are limited to two occasions.
   • Lawyer unavailability due to engagement in another court is not a valid reason for adjournment.
   • If a party or their lawyer is unprepared to examine or cross-examine a witness present in court, the court may record the witness’ testimony and proceed.

Power to Summon Material Witnesses or Examine Persons Present

Section 348 empowers courts to ensure that all necessary evidence is brought before them:

1. Summoning Witnesses: Courts can summon any person as a witness at any stage of a proceeding.
2. Examining Persons in Attendance: If someone present in court can provide relevant testimony, the court can examine them even if they were not summoned.
3. Re-examining Witnesses: Courts can recall and re-examine witnesses if their evidence is crucial for a just decision.

Power to Order Specimen Signatures or Handwriting

Section 349 allows magistrates to obtain physical evidence crucial to investigations:

1. Authority: Magistrates of the first class can direct individuals, including accused persons, to provide specimen signatures, handwriting, fingerprints, or voice samples.
2. Conditions:
   • The person must have been arrested at some point in the investigation, unless the magistrate records specific reasons for ordering specimens without prior arrest.

Power to Examine the Accused

Section 351 ensures that accused persons can explain evidence presented against them:

1. Questioning the Accused:
   • Courts may question the accused at any stage of the trial.
   • After prosecution witnesses have been examined, the court must question the accused about the case before calling for their defense.
2. No Oath: The accused is not required to take an oath before answering these questions.
3. Consequences:
   • Refusal or false answers do not result in direct punishment.
   • Answers can be used as evidence in the current or other trials.
4. Written Statements: The accused may submit a written statement, which satisfies the requirement for questioning under this section.

Power to Proceed Against Other Guilty Persons

Section 358  ensures no offender escapes liability:

1. Proceedings Against Non-Accused:
   • If evidence during a trial implicates a non-accused person, the court can initiate proceedings against them.
2. Summoning or Arrest:
   • Such persons may be summoned or arrested for trial as required.
3. Detention of Persons Present:
   • If such individuals are present in court, they can be detained for inquiry or trial.
4. Fresh Proceedings:
   • A separate trial begins for the newly implicated person, and witnesses are re-examined.

Procedure for Sentencing Beyond Magistrate’s Authority

Section 364 addresses situations where a magistrate lacks the authority to impose the required sentence:

1. Referring Cases to Higher Authority:
   • If a magistrate believes the accused deserves a harsher or different punishment than their authority allows, they must forward the case to the Chief Judicial Magistrate (CJM).
2. Hearing Evidence:
   • The CJM can examine the evidence, recall witnesses, and call for additional evidence if necessary.
3. Final Judgment:
   • The CJM passes the appropriate judgment, sentence, or order according to the law.

Special Provisions for Accused and Witnesses under the Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces provisions aimed at addressing unique challenges faced by accused individuals and witnesses in legal proceedings. These provisions are designed to ensure justice by facilitating fair treatment, securing critical evidence, and promoting smooth judicial processes. These provisions ensure fairness, transparency, and efficient administration of justice

Procedure When Corporation or Registered Society is an Accused 

This section deals with cases where a corporation or registered society is accused of an offense. The BNSS provides a special procedure to ensure that legal proceedings can move forward efficiently without disruption due to the non-physical nature of a corporation.

Key Provisions:

1. Definition of Corporation: A “corporation” includes any incorporated company or body corporate, as well as societies registered under the Societies Registration Act, 1860.
2. Appointment of a Representative: A corporation can appoint a representative to appear on its behalf during inquiries or trials. This appointment does not need to be under the corporation’s seal.
3. Legal Requirements Met by Representative:
   • Any action required to be done in the presence of the accused (like reading or explaining documents) can be done in the presence of the appointed representative.
   • If the law mandates the accused to be examined, the representative will fulfill this requirement.
4. Absence of a Representative: If the corporation does not send a representative, the procedural requirements mentioned above will not apply.
5. Presumption of Appointment: A written statement signed by the Managing Director or an authorized person declaring someone as the representative is presumed valid unless proven otherwise.
6. Dispute over Representation: If any question arises regarding whether someone is a valid representative, the court will decide.

In essence, Section 342 allows corporations to actively participate in legal proceedings through their appointed representatives without disrupting court procedures.

Tender of Pardon to Accomplice

This section allows a court to grant a pardon to an accomplice in exchange for their full and truthful disclosure of facts about a crime. This provision helps the prosecution secure valuable evidence, especially in complex or serious cases.

Key Provisions:

1. Who Can Grant Pardon:
   • The Chief Judicial Magistrate can grant a pardon at any stage of investigation, inquiry, or trial.
   • A Magistrate of the first class can also grant a pardon during inquiry or trial.
2. Conditions for Pardon: The person must make a full and true disclosure of all facts related to the offense and the involvement of all persons (principals or abettors).
3. Applicable Offenses:
   • Offenses exclusively triable by a Court of Session or Special Judge.
   • Offenses punishable with imprisonment extending to seven years or more.
4. Recording of Pardon: When granting a pardon, the Magistrate must:
   • Record the reasons for tendering the pardon.
   • State whether the pardon was accepted.
   • Provide a free copy of this record to the accused upon request.
5. Obligations of the Person Accepting Pardon:
   • They must testify as a witness during the inquiry and trial.
   • If not already on bail, they must remain in custody until the trial concludes.
6. Further Process: Once a pardon is accepted and the accomplice is examined, the Magistrate will commit the case to the appropriate court for trial.

Section 343 ensures that critical information can be obtained from accomplices to aid in the prosecution of serious offenses.

Power to Direct Tender of Pardon 

This section provides courts the authority to tender a pardon even after a case has been committed for trial but before the judgment is passed.

Key Provisions:

• The court handling the trial can grant a pardon to a person suspected of being involved in the offense.
• The conditions for granting a pardon are the same as those under Section 343.

This provision ensures that even during the trial stage, critical evidence can still be secured if new opportunities arise.

Trial of Person Not Complying with Conditions of Pardon 

If a person who accepted a pardon fails to comply with its conditions, this section outlines the legal consequences.

Key Provisions:

1. Certification of Non-Compliance: If the Public Prosecutor believes that the pardoned person has either concealed essential information or given false evidence, they can certify non-compliance.
2. Legal Consequences: The person may be tried for:
   • The original offense for which the pardon was granted.
   • Any related offenses they are guilty of in connection with the same matter.
   • The offense of giving false evidence.
3. Sanction Requirement: A High Court’s sanction is required before prosecuting the person for giving false evidence.
4. Statements as Evidence: Any prior statements made by the person (under Section 183 or Section 343) can be used as evidence against them in the trial.
5. Plea of Compliance: The accused can argue that they complied with the conditions of the pardon. The prosecution must prove otherwise.
6. Court Procedure:
   • Before starting the trial, the court will ask the accused if they claim compliance.
   • The court will decide on this plea before delivering its final judgment.
7. Judgment of Acquittal: If the court finds that the accused complied with the conditions, it must acquit them.

Section 345 ensures that individuals who accept a pardon remain truthful and cooperative, while also protecting them if they fulfill their obligations.

Expenses of Complainants and Witnesses 

Section 350 provides financial relief to complainants and witnesses who attend court proceedings.

Key Provisions:

• The court has the authority to order the payment of reasonable expenses to complainants or witnesses.
• These payments are made by the Government and are subject to rules established by the State Government.

This provision ensures that individuals participating in legal proceedings are not burdened by financial costs, encouraging their cooperation and attendance.

Trial Procedure And Case Management under the BNSS

Trial procedures and case management form the backbone of an effective judicial process. They ensure justice is served while maintaining efficiency and fairness. 

Conducting Trials in the Absence of the Accused

This section provides courts with the discretion to proceed with inquiries or trials without the physical presence of the accused under specific circumstances. It balances the need for judicial efficiency with the rights of the accused.

Key Provisions:

1. Dispensing with Attendance:
   • The court may waive the requirement for the accused to attend proceedings if their presence is unnecessary for justice or if they persistently disrupt the proceedings.
   • This waiver is conditional upon the accused being represented by an advocate.
2. Non-Representation:
   • If the accused lacks legal representation, the court can either adjourn the trial or try the accused separately.
3. Use of Technology:
   • The accused’s attendance can be through audio-visual electronic means, such as video conferencing, ensuring flexibility in modern legal proceedings.

Trials for Proclaimed Offenders

This section addresses scenarios where an accused absconds to evade justice and is declared a proclaimed offender. It outlines procedures to ensure trials can continue even in their absence.

Trial Process in Absence:

1. Proceeding with Trial:
   • If a proclaimed offender cannot be arrested and evades trial, the court can proceed in their absence, provided at least 90 days have elapsed since charges were framed.
2. Pre-Trial Requirements:
   • Two warrants must be issued, spaced at least 30 days apart.
   • Notices must be published in a widely circulated newspaper, informing the accused and their associates of the trial.
   • Information must be affixed at the accused’s last known residence and displayed at the local police station.
3. Legal Representation:
   • The state appoints an advocate to defend unrepresented absconders.
4. Use of Evidence:
   • Evidence recorded in the accused’s absence can be admitted. If the accused appears later, they may request re-examination of the evidence.
5. Audio-Visual Recording:
   • Testimonies should, where possible, be recorded using audio-video technology to enhance transparency and preserve evidence.
6. Judgment in Absence:
   • Trials and judgments can proceed even if the accused voluntarily absents themselves after the trial has commenced.
7. Appeal Restrictions:
   • Appeals are only permitted if the absconding accused presents themselves before the appellate court. Appeals against convictions must be filed within three years of the judgment.

When the Accused Cannot Understand Proceedings

This section safeguards the rights of accused individuals who, despite being of sound mind, cannot comprehend court proceedings.

Key Provisions:

• The court can continue with the trial and, in cases leading to a conviction by subordinate courts, must forward the proceedings to the High Court for review.
• The High Court will then pass appropriate orders based on the circumstances of the case.

Referral to the Court of Session

During an inquiry or trial, if the Magistrate believes the case warrants trial by a higher court, they must commit it to the Court of Session.

Key Steps:

• Before signing the judgment, the Magistrate commits the case to the higher court.
• The provisions governing session trials are applied thereafter.

Continuity in Case of Judge or Magistrate Replacement

This section ensures continuity when a trial judge or magistrate is replaced during ongoing proceedings.

Key Provisions:

1. Using Previous Records:
   • The successor can rely on the evidence recorded by their predecessor but has the discretion to re-summon and re-examine witnesses if deemed necessary for justice.
2. Transfers:
   • When cases are transferred between judges or magistrates, the successor is considered to have jurisdiction over the proceedings.
3. Exceptions:
   • This section does not apply to summary trials or cases stayed under Section 361 or referred under Section 364.

Provisions as to accused person of unsound mind under the BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS) provides detailed legal procedures for handling cases involving accused individuals who are of unsound mind or have intellectual disabilities. These provisions ensure that such individuals are treated fairly while maintaining public safety.

Inquiry and Examination of Unsoundness of Mind 

1. Initial Determination:
   • When a Magistrate suspects that an accused person is of unsound mind and incapable of making their defense, the Magistrate must initiate an inquiry.
   • The accused is examined by the district’s civil surgeon or another medical officer designated by the State Government.
2. Referral to Specialists:
   • If the civil surgeon finds the accused to be of unsound mind, the individual is referred to a psychiatrist or clinical psychologist from a government hospital or medical college.
   • The specialist assesses the condition and provides a report to the Magistrate.
3. Appeal Provision:
   • If the accused disagrees with the psychiatrist’s findings, they may appeal to a Medical Board. This board includes:
     • The head of psychiatry from the nearest government hospital.
     • A psychiatry faculty member from the nearest government medical college.
4. Magistrate’s Actions:
   • If the unsoundness of mind is confirmed:
     • The Magistrate determines if it renders the accused incapable of entering a defense.
     • If no prima facie case exists, the accused is discharged and dealt with under Section 369.
     • If a prima facie case exists, proceedings are postponed for the required treatment period.
5. Intellectual Disability:
   • For intellectual disabilities, the Magistrate assesses whether it impairs the accused’s ability to defend themselves.
   • If incapable, the inquiry is closed, and the accused is handled under Section 369.

Trial of Accused Persons of Unsound Mind 

1. Unsoundness During Trial:
   • If an accused person appears to be of unsound mind during a trial, the Court first confirms the condition based on medical evidence.
   • If confirmed, the trial is postponed, and the individual is referred to a psychiatrist or clinical psychologist for care and treatment.
2. Further Assessment:
   • The Court determines if the unsoundness renders the accused incapable of defense.
   • If no prima facie case exists, the accused is discharged and dealt with under Section 369.
   • If a prima facie case exists, the trial is postponed for treatment.
3. Intellectual Disability:
   • If intellectual disability prevents defense, the trial is not conducted, and the accused is handled under Section 369.

Release and Detention Provisions 

1. Release on Bail:
   • Accused persons with unsoundness of mind or intellectual disability may be released on bail if:
     • Outpatient treatment suffices.
     • A relative or friend undertakes responsibility for regular treatment and safety.
2. Detention for Treatment:
   • If bail is inappropriate, the accused is placed in a facility offering psychiatric care, with the action reported to the State Government.
3. Discharge or Residential Care:
   • Based on medical opinions, the Magistrate or Court may:
     • Discharge the accused with safeguards for public safety.
     • Transfer them to a residential facility for specialized care and training.

Resumption of Proceedings 

• Once the accused regains mental capacity, the inquiry or trial may resume.
• A certificate from relevant authorities (Inspector-General of Prisons or Mental Health Review Board) is required to certify the accused’s fitness to make their defense.

Safe Custody Post-Acquittal 

1. Acquittal Based on Unsoundness of Mind:
   • If acquitted due to unsoundness of mind, the Court specifies whether the act was committed.
   • The accused is either:
     • Detained in safe custody, following rules under the Mental Healthcare Act, 2017.
     • Released to a relative or friend upon providing security and undertaking responsibility.
2. Reporting:
   • The Court reports its actions to the State Government.

Procedure for Detained Individuals

1. Fitness to Defend:
   • If a detained person becomes fit for defense, they are presented before the Magistrate or Court to resume proceedings.
2. Release of Detained Persons:
   • If medical authorities certify that a detained person no longer poses a danger, the State Government may:
     • Order their release.
     • Transfer them to a public mental health establishment.
3. Custody by Relatives or Friends:
   • Relatives or friends may apply for custody, providing assurances of care and safety.
   • The individual may be called back for trial if found fit to defend.