BNSS Final Notes

Unit – 1

1. Explain the powers of the police officer to investigate the

offences under BNSS

Introduction

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Chapter

XIII (Sections 173–196) lays down the complete legal framework
governing how the police receive information about offences and exercise
their powers to investigate. It covers the process of recording
information/FIR in cognizable cases (including electronic reporting and
victim safeguards), handling non-cognizable cases (where Magistrate’s
permission is necessary), commencing and conducting investigation (spot
visit, evidence collection, forensic assistance, witness attendance and
examination), regulating statements and confessions, conducting searches,
maintaining case diaries, producing the accused for remand, and
submitting the final police report. The provisions also incorporate special
protections for women/victims of sexual offences, disabled persons, and
procedural oversight by Magistrates, ensuring investigation is both
effective and legally controlled.

Definition and Meaning of Investigation

Definition:-
S. 2(l) “investigation” includes all the proceedings under this Sanhita for
the collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorised by a Magistrate in this behalf.
Explanation.—Where any of the provisions of a special Act are
inconsistent with the provisions of this Sanhita, the provisions of the
special Act shall prevail;

Meaning:-
Investigation means the systematic process undertaken by the police to
collect facts, evidence, and materials relating to the commission of an
offence in order to discover the truth and identify the offender. It includes
all steps taken by a police officer from the moment information about an
offence is received until the submission of the final report to the
Magistrate.

In legal terms, investigation generally comprises:

proceeding to the place of occurrence,

ascertaining facts and circumstances of the case,
discovery and arrest of the suspected offender,
collection of evidence (oral, documentary, forensic, electronic),
examination of witnesses and accused, and
formation of an opinion whether sufficient evidence exists to place the
accused for trial.
Thus, investigation is a fact-finding and evidence-gathering stage of
criminal procedure, distinct from inquiry (by Magistrate) and trial (by
Court), and is primarily the responsibility of the police under the BNSS.

Scope and Applicability of Investigation with respect to BNSS

Provisions (Chapter XIII)
Scope:
With reference to Sections 173 to 196 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, the scope of investigation is statutorily defined and
regulated. It begins with the recording of information relating to
cognizable offences under Section 173, including electronic information
and special procedures for sexual offences and vulnerable victims. It
extends to preliminary enquiry in limited categories of cognizable offences
(Section 173(3)), investigation of non-cognizable offences with
Magistrate’s permission (Section 174), and the statutory power of the
police to investigate cognizable cases without a Magistrate’s order
(Section 175). The scope further includes spot investigation, evidence
collection, forensic examination, witness examination, searches and
seizures, arrest of accused, medical examination, recording of statements
and confessions through Magistrates, maintenance of case diaries, remand
and custody procedures, and submission of final police report as provided
under Sections 176 to 193. It also covers special investigations such as
inquests into unnatural deaths under Sections 194 to 196.

Applicability:
The investigation provisions under Chapter XIII apply to all police officers
empowered under the BNSS in relation to offences punishable under the
Bharatiya Nyaya Sanhita, 2023 and other applicable laws. Their
applicability depends on the nature of the offence—cognizable or non-
cognizable—and is subject to judicial oversight by Magistrates at various
stages such as authorisation of investigation, remand, recording of
confessions, and scrutiny of police reports. These provisions are applicable
throughout India and incorporate mandatory safeguards, particularly in
cases involving sexual offences, women, children, and mentally or
physically disabled persons, ensuring that investigation is conducted
lawfully, fairly, and in accordance with due process of law.

Powers of Police Officer to Investigate Offences under BNSS

 1. Power to receive and record information (Section 173)
A police officer in charge of a police station has the statutory power and
duty to receive information relating to the commission of a cognizable
offence, irrespective of territorial jurisdiction. Such information may be
given orally, in writing, or by electronic communication, must be reduced
to writing and entered in the prescribed register, and a free copy must be
supplied to the informant or victim. Special powers coupled with duties
exist in cases of sexual offences, where recording must be done by a
woman police officer, with videography, interpreter/special educator
assistance, and prompt recording of statement by a Magistrate, ensuring
victim-centric investigation.

2. Power to conduct preliminary enquiry and choice of

investigation (Section 173(3)–(4))
In cognizable offences punishable with three years or more but less than
seven years, the police officer, with prior approval of a Deputy
Superintendent of Police, may either conduct a preliminary enquiry
(within fourteen days) to ascertain the existence of a prima facie case or
proceed directly with investigation. The police hierarchy is empowered to
supervise investigation, as the Superintendent of Police may intervene
where an officer refuses to register information and may himself
investigate or direct investigation, subject to further recourse before a
Magistrate.

3. Power to deal with non-cognizable offences (Section 174)

The police officer has the power to enter information relating to non-
cognizable offences in the prescribed register and refer the informant to
the Magistrate. Investigation in such cases can be undertaken only with the
order of a Magistrate, and once authorised, the police officer may exercise
all powers of investigation except the power to arrest without warrant.
Where a case involves both cognizable and non-cognizable offences, the
police are empowered to treat the entire case as cognizable and investigate
accordingly.

4. Power to investigate cognizable offences without Magistrate’s

order (Section 175)
Under Section 175, the officer in charge of a police station is vested with
the independent statutory power to investigate cognizable offences without
obtaining prior permission from a Magistrate. The provision safeguards
police action by declaring that no investigation shall be questioned merely
on the ground of lack of empowerment. At the same time, supervisory
control is retained through the power of the Superintendent of Police to
assign investigation to a higher-ranking officer, and the Magistrate’s
authority to order investigation, including in cases involving public
servants.

5. Power to initiate investigation procedure and adopt investigative

measures (Sections 176–178)
Upon receiving information or suspicion of an offence, the police officer
may proceed to the scene of offence, collect facts, discover evidence, and
take steps for the arrest of offenders. The officer may refrain from spot
investigation in minor cases or where no sufficient grounds exist, provided
reasons are recorded and the informant is notified. The police are
empowered and duty-bound to ensure forensic examination and
videography in serious offences punishable with seven years or more,
while remaining subject to the Magistrate’s power to direct investigation
or preliminary inquiry.

6. Power to examine victims and witnesses and conduct medical

examination (Sections 179–184)
The police officer conducting investigation may require attendance of
witnesses, examine them orally, and record their statements in writing or
through audio-video electronic means, subject to safeguards protecting
women, children, the elderly, and disabled persons. The police are
restrained from using inducement, threat, or promise during investigation
and cannot record confessions, which lie within the exclusive domain of
the Magistrate. In cases of rape, the police possess the power and
obligation to ensure prompt medical examination of the victim with
consent, preparation of a detailed medical report, and its timely forwarding
to the Magistrate, forming a crucial part of lawful investigation.

7. Power of search and seizure during investigation (Sections 185–

186)
A police officer in charge of a police station or an investigating officer has
the power to conduct searches without a warrant when he has reasonable
grounds to believe that evidence necessary for investigation may be found
and delay would prejudice the case. Such grounds must be recorded in
writing in the case diary, and the search should, as far as practicable, be
conducted personally and recorded through audio-video electronic means.
The police may also require another police station to conduct a search or,
in urgent situations, carry out searches beyond territorial jurisdiction, with
mandatory intimation to the local police station and the Magistrate,
ensuring accountability and preservation of evidence.

8. Power relating to arrest, custody, and remand of accused

(Section 187)
Where investigation cannot be completed within twenty-four hours of
arrest, the police officer (not below the rank of Sub-Inspector) has the
power and duty to produce the accused before a Magistrate along with
relevant case diary entries. The Magistrate may authorise police or judicial
custody subject to statutory limits (including sixty or ninety days
depending on the offence), with strict safeguards such as personal or
audio-video production of the accused, special protection for women and
juveniles, and recording of reasons for police custody, thereby balancing
investigative needs with personal liberty.

9. Power of supervision and reporting within police hierarchy

(Section 188)
When investigation is conducted by a subordinate police officer, such
officer is empowered to investigate but is duty-bound to report the results
of the investigation to the officer in charge of the police station. This
ensures internal supervision, coherence of investigation, and accountability
within the police structure while preserving the validity of acts done by
subordinate officers.

10. Power to release accused or forward case to Magistrate

(Sections 189–190)
After investigation, the police officer has the power to release the accused
on bond or bail where evidence is insufficient to justify forwarding him to
a Magistrate. Conversely, where sufficient evidence or reasonable grounds
exist, the officer must forward the accused to the Magistrate or take
security for appearance in bailable offences. The police are also
empowered to forward weapons, articles, documents, and require
complainants and witnesses to execute bonds to appear before the Court,
thereby completing the investigative transition to prosecution.

[Link] and duty relating to witnesses and case diaries (Sections

191–192)
Police officers are prohibited from subjecting complainants or witnesses to
unnecessary restraint or inconvenience, and they cannot compel them to
accompany police officers except in limited circumstances.
Simultaneously, police officers are mandated to maintain a case diary,
recording daily investigative steps, witness statements, places visited, and
timings. While such diaries are not evidence, they may be used by courts
to aid inquiry or trial, reinforcing transparency in police investigation.

12. Power to complete investigation, submit final report, and

conduct special inquiries (Sections 193–196)
The police have the power and obligation to complete investigation
without unnecessary delay and submit a final police report (charge-sheet or
closure report) to the Magistrate, including documents, witness statements,
forensic and medical reports, and progress updates to the informant or
victim. Further investigation is permitted even after submission of the
report, subject to statutory conditions. Additionally, police officers are
empowered to conduct inquests into cases of suicide, unnatural deaths,
custodial deaths, and suspicious deaths, summon persons for such
inquiries, and assist Magistrates in inquiries into the cause of death,
thereby extending investigative powers to sensitive and exceptional
situations.

Landmark Judgments on Police Powers of Investigation (BNSS)

1. H.N. Rishbud v. State of Delhi, AIR 1955 SC 196

Facts:
The accused challenged the validity of investigation on the ground that it
was not conducted strictly in accordance with procedural law.
Issue:
What constitutes “investigation” and whether irregularities in investigation
vitiate the trial.
Judgment & Ratio:
The Supreme Court authoritatively defined investigation as comprising:
(i) proceeding to the place of occurrence,
(ii) ascertainment of facts and circumstances,
(iii) discovery and arrest of suspected offender,
(iv) collection of evidence (oral and documentary), and
(v) formation of opinion whether to place the accused before court.
The Court held that defects or irregularities in investigation do not
automatically vitiate the trial unless prejudice is caused.
Relevance under BNSS:
Forms the conceptual backbone of Sections 175–193 BNSS, explaining
the scope of police investigative powers.

2. State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

Facts:
An FIR was challenged before the High Court at the investigation stage
alleging mala fide and abuse of power by police.
Issue:
When can courts interfere with police investigation of cognizable
offences?
Judgment & Ratio:
The Court held that investigation of cognizable offences is the exclusive
statutory function of the police, and judicial interference should be rare
and exceptional. The Court laid down seven categories where
FIR/investigation may be quashed.
Relevance under BNSS:
Supports Sections 173 & 175 BNSS, reaffirming police autonomy in
investigation, subject to limited judicial control.
3. Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

Facts:
Police refused to register FIR in a cognizable offence and conducted a
preliminary enquiry instead.
Issue:
Whether registration of FIR is mandatory in cognizable offences.
Judgment & Ratio:
The Constitution Bench held that registration of FIR is mandatory under
Section 154 CrPC (now Section 173 BNSS). Preliminary enquiry is
allowed only in exceptional categories and must be time-bound.
Relevance under BNSS:
Directly reflected in Section 173 BNSS, including the limited scope of
preliminary enquiry with safeguards.

4. State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554

Facts:
The issue arose regarding who controls and supervises police
investigation.
Issue:
Whether investigation falls under judicial or executive control.
Judgment & Ratio:
The Supreme Court held that investigation is an executive function, vested
in the police. Magistrates may supervise but cannot take over
investigation.
Relevance under BNSS:
Supports Sections 175–178 BNSS, emphasizing separation of
investigation from trial.

5. Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409

Facts:
Police failed to register FIR and conduct investigation; petitioner
approached High Court directly.
Issue:
What remedies are available when police fail to investigate?
Judgment & Ratio:
The Court held that the Magistrate has wide powers to order registration of
FIR and investigation, and writ petitions should not be the first remedy.
Relevance under BNSS:
Supports Section 173(4) & Section 175(3) BNSS, reinforcing Magistrate’s
supervisory powers.

6. CBI v. Anil Sharma, (1997) 7 SCC 187

Facts:
Accused sought anticipatory bail claiming custodial interrogation
unnecessary.
Issue:
Whether custodial interrogation is a valid investigative tool.
Judgment & Ratio:
The Court held that custodial interrogation is qualitatively more effective
in serious offences and is a legitimate part of investigation.
Relevance under BNSS:
Supports Section 187 BNSS dealing with custody and remand of accused.

7. Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC 322

Facts:
Police sought to conduct further investigation after filing charge-sheet.
Issue:
Whether further investigation is permissible after cognizance.
Judgment & Ratio:
The Court held that further investigation is a statutory right of police, and
filing of charge-sheet does not bar it.
Relevance under BNSS:
Directly supports Section 193(9) BNSS on further investigation.

8. Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195

Facts:
The validity of investigation powers of CBI was questioned.
Issue:
Whether investigation interferes with judicial functions.
Judgment & Ratio:
The Court held that investigation and adjudication are distinct, and police
investigation does not encroach upon judicial power.
Relevance under BNSS:
Supports police autonomy under Chapter XIII BNSS.

9. Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260

Facts:
Arbitrary arrest without adequate justification was challenged.
Issue:
Limits on police power of arrest during investigation.
Judgment & Ratio:
The Court held that arrest is not mandatory in every cognizable offence,
and must be justified by necessity.
Relevance under BNSS:
Guides lawful exercise of arrest powers during investigation under
Sections 175–187 BNSS.

10. State of Gujarat v. Kishanbhai, (2014) 5 SCC 108

Facts:
Defective investigation resulted in acquittal.
Issue:
Accountability for improper investigation.
Judgment & Ratio:
The Court emphasised the duty of police to conduct fair, scientific, and
professional investigation, and directed corrective institutional measures.
Relevance under BNSS:
Supports forensic and procedural safeguards under Sections 176 & 193
BNSS.

Conclusion

The powers of police officers to investigate offences under the Bharatiya

Nagarik Suraksha Sanhita, 2023 represent a carefully balanced statutory
framework that combines effective crime detection with procedural
safeguards and judicial oversight. Chapter XIII (Sections 173–196) vests
the police with wide-ranging authority to receive information, conduct
investigations, collect evidence, examine witnesses, effect searches and
arrests, and submit final reports, while simultaneously imposing checks
through documentation, time limits, Magistrate supervision, and victim-
centric protections. Judicial pronouncements have consistently affirmed
that investigation is an executive function, essential for the administration
of criminal justice, yet one that must be exercised fairly, lawfully, and
without arbitrariness. Thus, the BNSS ensures that police investigation
serves not merely as a tool for prosecution, but as a mechanism to uphold
rule of law, due process, and public confidence in the criminal justice
system.

Q. What is Arrest? Explain the circumstances under which a person

can be arrested without warrant?

Introduction

An arrest signifies the act of taking a person into custody under legal
authority, usually on suspicion or accusation of committing a criminal
offense. It is a coercive measure used by law enforcement agencies to
ensure the presence of an accused during the investigation, trial, or to
prevent the commission of a crime.

Chapter V of the BNSS (Sections 35 to 62) comprehensively lays down

the legal framework for arrest, including the circumstances under which a
person may be arrested, the procedure to be followed by the arresting
officer, and the rights of the arrested individual. The BNSS distinguishes
between arrests with a warrant and arrests without a warrant, granting
police officers discretionary powers in certain situations while also
prescribing safeguards to prevent misuse of such authority.

What is Arrest?

There cannot be charge sheet without arrest. The term “arrest” refers to an
act of being taken in to custody of a person to be charged with a crime. It
is derived from the French word “arrester” means “to stop or stay” and
signifies a restraint of the person. In other words, it refers to apprehension
of a person by legal authority resulting in deprivation of his liberty. The
term arrest is not defined in the Code.

CASE: D.K. BASU V. STATE OF WEST BENGAL (1997)

The Court laid down mandatory guidelines to be followed by police during
any arrest:
1. Police identification: Arresting officers must wear clear name tags
and provide identification.
2. Arrest memo: It is required to be created at the time of the arrest and
must be signed by a witness, ideally a family member or a nearby resident.
3. Family intimation: The family or friend of the arrested person must
be informed immediately about the arrest.
4. Health check-ups: The arrested individual must undergo a medical
examination every 48 hours by a government doctor during detention.
5. Police diary entry: Details of the arrest, including time, date, and
circumstances, must be recorded in the police diary.
Any violation of these guidelines constitutes a breach of Article 21 of the
Constitution, which guarantees the right to life and personal liberty.

What is warrant?

Warrant means "a written order of a Court addressed to one or more police
officers directing to arrest a person, whose name and address is given with
the offence charged, for the purpose of producing him before the Court on
a specified date and time".
In order to be valid, a warrant of arrest must fulfil the following
requirements.
i) It must be writing.
ii) It must be in duplicate.
iii) It must be signed by the presiding officer of the Court.
iv) It must be sealed.
v) It must clearly identify the person to be arrested.
vi) It must specify the offence.
vii) It must contain the name and designation of the police officer or other
person who is to execute it.

Scope and Applicability

Power under new Sub-section 35(1) can be exercised by arresting a person

without any order from Magistrate and without a warrant. No person
involved in a non-cognisable offence shall be arrested except under a
warrant or under an order of Magistrate. In case where non-cognisable
offence is alleged, officer can exercise power under new Sub-section (1) to
arrest provided either there is a warrant issued or an order to that effect is
passed by Magistrate,

Under this section wide powers have been conferred on to the police to
enable them to take swift action for the detection and prevention of
cognizable offences.

Cognizable offence

Defined under Section 2(c) of the code, it includes offences for which a
police officer can arrest a person without a warrant. A police officer does
not need to obtain permission from the court to arrest a person relating to a
cognizable offence.
These offences are generally grave and serious in nature like culpable
homicide, murder, kidnapping, rape, etc.
Punishment for these offences is death, life imprisonment or imprisonment
for a term of 3 years or more.

Non-Cognizable Offence

Defined under Section 2(1) of the code, these offences on the other hand
are, for which a police officer has no right or authority to arrest a person
without a warrant. No person can be lawfully arrested without the prior
permission of the court for a non-cognizable offence.
These offences are generally petty and not so serious in nature like hurt,
assault, cheating, defamation, mischief, etc.
Punishment for these offences is up to a period of 3 years.

Who Can Make an Arrest Without a Warrant?

The power to make an arrest without a warrant is not unlimited. The key
authorities empowered for such arrests include:
1. Police Officers: For individuals involved in cognizable offenses or
against whom a reasonable complaint, credible information, or reasonable
suspicion exists (Section 35 BNSS).
2. Magistrates: If an offense occurs in their presence (Section 41 BNSS).
3. Private Persons: In cases of non-bailable and cognizable offenses
committed in their presence (Section 40 BNSS).

Circumstances When Police may Arrest without Warrant (S. 35

BNSS)

Generally, a person shall be arrested with a warrant. However, a person

may be arrested without a warrant because of the serious nature of the
circumstance that is for the non-cognizable offence and to enable the
police to discharge their duties effectively.
In section 35 of the BNSS, the circumstances are given in different sub-
sections, when a person can be arrested by the police without warrants. It
contemplates the circumstances when a person can be arrested. There are 8
such circumstances mentioned in the Section.
1. a person concerned in COGNIZABLE OFFENCE;
2. a person who has been PROCLAIMED OFFENDER;
3. in possession of STOLEN PROPERTY;
4. a person who OBSTRUCTS A POLICE OFFICER;
5. a person being a DESERTER FROM ANY OF THE ARMED
FORCES;
6. under any law relating to EXTRADITION;
7. a person being a RELEASED CONVICT;
8. and on REQUISITION for Arrest from another police officer.

1) Arrest of a Person Concerned in Cognizable Offence [S. 35(1)

(a) to S. 35(1) (c)]
Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
empowers a police officer to arrest without a warrant in specific situations.
Under Section 35(1)(a), arrest may be made if a cognizable offence is
committed in the officer’s presence, though it is discretionary and reasons
must be recorded. Section 35(1)(b) allows arrest for offences punishable
up to seven years, only if necessary for investigation, prevention, or
ensuring presence in court, with written reasons for arrest or non-arrest.
Section 35(1)(c) covers serious offences punishable with over seven years
or death, allowing arrest based on credible information without recording
reasons. The section balances police discretion with safeguards against
misuse.
Case: Emperor v. Vimlabai Deshpande, AIR 1946 PC 123 case,
The Privy Council observed Section 41(1) CrPC (S. 35(1) BNSS) confers
a discretionary power on the police officer to decide whether in a given
case arrest is required or not. Such exercise of power of arrest should be
reasonable and to be exercised only in cases where the immediate arrest
and the prompt action is needed.
Case: Joginder Kumar v. State of U.P. (1994)
The Supreme Court clarified that police officers cannot arrest a person
solely because they are empowered to do so. The arrest must be justified
by the facts and circumstances, necessary to prevent further harm or
ensure investigation, and must not be carried out as a routine or
mechanical procedure. This upholds the principle that personal liberty
cannot be restricted without just cause, in line with Article 21 of the
Constitution.

2) Arrest of a Person who has been Proclaimed Offender [S. 35(1)

(d)]
Section 35(1)(d) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
authorizes a police officer to arrest without a warrant any person who has
been proclaimed as an offender under the Sanhita or by order of the State
Government. As per Section 84(1) of the Bharatiya Nyaya Sanhita (BNS),
a court may issue a proclamation requiring the appearance of a person who
absconds to avoid arrest. Further, Section 84(4) BNS allows the court to
declare such a person a proclaimed offender if he fails to appear in serious
offences punishable with ten years or more. Once declared, the police can
arrest him without warrant. This provision ensures effective action against
absconders evading justice.
Case: Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730
The accused was declared a proclaimed offender by the court after failing
to appear despite repeated summons. The Supreme Court held that a
person who has been declared a proclaimed offender under law is not
entitled to anticipatory bail, and the police have full authority to arrest
such a person without a warrant.

3) Arrest of a Person in Possession of Stolen Property [S.35(1)(e)]

Section 35(1)(e) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
empowers a police officer to arrest without a warrant any person found in
possession of property reasonably suspected to be stolen and who is
suspected of committing an offence related to it. As defined under Section
317(1) of the Bharatiya Nyaya Sanhita (BNS), 2023, stolen property
includes items obtained through theft, extortion, robbery, cheating, or
criminal breach of trust. The officer’s suspicion must be reasonable and
made in good faith, based on unsatisfactory explanations or suspicious
circumstances surrounding the possession.

4) Arrest of a Person who Obstructs a Police Officer [S.35(1)(f)]

Section 35(1)(f) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
authorizes a police officer to arrest without a warrant any person who
obstructs a police officer in the execution of duty or who escapes or
attempts to escape from lawful custody. Although obstruction of a public
servant is a non-cognizable offence under Section 221 of the Bharatiya
Nyaya Sanhita (BNS), 2023, this clause specifically allows warrantless
arrest in cases involving police officers. Further, a person escaping from
lawful custody can be punished under Section 262 BNS, even if the
original offence was non-cognizable.
Case: Bhawoo Jivaji v. Mulji Dayal
In this case, the accused obstructed a police constable who was performing
his lawful duty. The issue before the court was whether the arrest made by
the constable without a warrant for such obstruction was lawful. The
Bombay High Court held that a person who intentionally obstructs a police
officer in the execution of his lawful duty may be arrested without a
warrant, as the obstruction itself amounts to an interference with the
administration of justice and the maintenance of public order.

5) Arrest of a Person being a Deserter From any of the Armed

Forces [S.35(1)(g)]
Section 35(1)(g) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
empowers a police officer to arrest without a warrant any person who is
reasonably suspected of being a deserter from the Armed Forces of the
Union. This provision ensures that individuals who abandon their military
duty can be promptly apprehended to maintain discipline and national
security. The arrest, however, must be based on a reasonable and bona fide
suspicion, not mere assumption.
6) Arrest of a Person under any Law Relating to Extradition
[S.35(1)(h)]
Section 35(1)(h) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
authorizes a police officer to arrest without a warrant any person who is
reasonably suspected or credibly informed to have been involved in an act
committed outside India, which would be punishable as an offence if done
in India, and is liable for arrest under extradition laws. This provision
enables arrest for offences committed abroad, whether cognizable or non-
cognizable, ensuring cooperation in international criminal matters. It
emphasizes India’s commitment to global justice and enforcement of
extradition obligations.

7) Arrest of a Person being a Released Convict [S.35(1)(i)]

Section 35(1)(i) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
empowers a police officer to arrest without a warrant any released convict
who violates the conditions prescribed under Section 394(5). This
provision relates to rules requiring such convicts to notify their residence,
change of address, or absence from residence. If these conditions are
breached, the police may immediately arrest the person without prior
magisterial approval, ensuring effective supervision and prevention of
reoffending.

8) Arrest of a Person on Requisition from another Police Officer

[S.35(1)(j)]
Section 35(1)(j) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
authorizes a police officer to arrest without a warrant any person upon
receiving a written or oral requisition from another police officer, provided
the requisition clearly states the person’s identity and the offence or reason
for arrest. This ensures that arrests can be effectively made even when the
accused is located in another jurisdiction. The section facilitates inter-
jurisdictional police cooperation, allowing lawful arrest based on valid
requisition without delay.
Case: State v. Ram Chandra, AIR 1957 All 546
In this case, a police officer arrested the accused based on a telephonic
requisition from another officer stationed in a different district. The
legality of such an arrest was challenged on the ground that there was no
written order or warrant.
The Allahabad High Court held that a police officer may lawfully arrest a
person on a requisition—whether written or oral—received from another
competent police officer, provided the requisition clearly identifies the
person and specifies the offence or cause of arrest.

[The term “requisition” means a formal or official request or demand made

by one authority to another for some action to be taken or something to be
provided]

Arrest by Private Person and Procedure on Such Arrest [S.40]

Section 40 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

empowers any private person to arrest, without a warrant, anyone
committing a non-bailable and cognizable offence or a proclaimed
offender in their presence, and hand them over to the police within six
hours. The police may take such a person into custody if the case falls
under Section 35(1). If the offence is non-cognizable and the person
refuses to disclose their identity or provides false information, they may be
detained; otherwise, they must be released immediately.

Arrest by Magistrate [S.41]

Section 41 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
empowers both Executive and Judicial Magistrates to arrest or order the
arrest of an offender who commits an offence in their presence within their
local jurisdiction and to deal with them as per bail provisions or commit
them to custody. Additionally, a Magistrate may at any time arrest or direct
the arrest of any person within his jurisdiction for whose arrest he is
competent to issue a warrant, though custody in such cases must follow
Sections 58 and 187 BNSS.

Conclusion

To conclude, arrest is a lawful act of taking a person into custody to ensure

their presence before a court and to prevent the commission of further
offences. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 allows
arrest without a warrant in specific circumstances such as when a person
commits a cognizable offence in the presence of a police officer, is a
proclaimed offender, possesses stolen property, or obstructs police in duty.
These provisions aim to maintain public order while ensuring that the
power of arrest is exercised reasonably, fairly, and with accountability.

Q. Fair Trial

Introduction

A fair trial is the heart of criminal justice. It ensures that no person is

punished unless guilt is proved through a lawful process that is just,
reasonable, and unbiased. In India, the idea of fair trial flows primarily
from Article 21 (procedure established by law must be just, fair and
reasonable) and Article 14 (equality before law), and is supported by
Article 22 (rights of arrested persons) and Article 20 (protection against
retrospective punishment, double jeopardy, and self-incrimination). Under
the BNSS, 2023, fair trial is implemented through procedural safeguards at
investigation, pre-trial, trial, and post-trial stages, ensuring balance
between state power to prosecute and individual liberty.

Concept of Fair Trial

A fair trial means a criminal proceeding where:

the judge is independent and impartial,

the prosecutor acts fairly,
the accused gets real opportunity to defend,
the process is transparent, speedy, and free from bias, and
the outcome is based only on lawful evidence.

The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat held

that denial of fair trial is injustice not only to the accused, but also to the
victim and society, and fair trial requires an impartial judge, fair
prosecutor, and atmosphere of judicial calm, eliminating prejudice.

Relevant Provisions Supporting Fair Trial

International Human Rights (Conceptual foundation)

UDHR, 1948:
Article 10: fair and public hearing by an independent, impartial tribunal.
Article 11: presumption of innocence; no retrospective penal liability.
ICCPR, 1966 (Article 14): fair and public hearing; presumption of
innocence; minimum defence guarantees; appeal/review; protection
against double jeopardy.

Indian Constitutional Guarantees

Article 21: fair, just, reasonable procedure (foundation of fair trial).

Article 14: equality and equal protection (procedural parity).
Article 22(1)–(2): right to counsel; production before Magistrate within 24
hours.
Article 20(1)–(3): no ex post facto punishment; double jeopardy; self-
incrimination protection.

BNSS Link

The BNSS procedural scheme operationalises fair trial through rules on:
registration and lawful investigation,
production and remand safeguards,
legal aid and defence rights,
open court principle with exceptions,
supply of documents to accused,
witness examination and cross-examination,
speedy trial orientation,
bail and personal liberty safeguards, and
fairness in evidence-collection and prosecution.
Main Body: Key Aspects of Fair Trial under BNSS with Case Laws

1) Adversarial system and active role of Court

Indian criminal procedure follows an adversarial model: prosecution must

prove guilt; defence can contest; judge is neutral but not passive.

Himanshu Singh Sabharwal v. State of M.P.: Supreme Court emphasised

that if fair trial is threatened, courts can invoke powers to summon
material witnesses/documents (traditionally under CrPC s.311 / Evidence
Act s.165; concept continues under the new codes) to secure justice.

2) Presumption of innocence & burden on prosecution

A fair trial begins with the presumption of innocence, and the burden of
proof lies on the prosecution.
State of U.P. v. Naresh: presumption of innocence is a human right and
basis of criminal jurisprudence.
Kali Ram v. State of H.P.: wrongful conviction is far worse than wrongful
acquittal; benefit of doubt safeguards fairness.

3) Independent and impartial judiciary (bias-free adjudication)

Fair trial requires an independent, impartial, competent court; even a

reasonable apprehension of bias undermines fairness.
Shyam Singh v. State of Rajasthan: the test is not whether bias actually
affected the decision, but whether a litigant could reasonably apprehend
bias.
4) Knowledge of accusation + meaningful opportunity to defend

The accused must know the exact accusation/charge, so defence is real, not
illusory. Fair trial requires:

informing the accused of accusations,

framing and explaining charges where required,
enabling defence preparation through access to materials.
(These protections exist across the BNSS trial framework, continuing the
CrPC model.)

5) Open trial (public hearing) + limited “in-camera” exceptions

Public hearing strengthens legitimacy and reduces arbitrariness, but

privacy and dignity may justify in-camera proceedings in limited classes
(especially sexual offences).
Naresh Sridhar Mirajkar v. State of Maharashtra: open court is the norm;
restrictions only in exceptional circumstances.
State of Punjab v. Gurmit Singh: undue publicity harms rape victims; in-
camera proceedings protect dignity and fairness.

6) Right to counsel and free legal aid as part of fair trial

Fair trial demands effective representation, and where the accused cannot
afford it, the State must provide legal aid.
Khatri v. State of Bihar: free legal aid begins from the first production
before Magistrate, not only at trial.
Suk Das v. Union Territory of Arunachal Pradesh: court must inform the
accused of entitlement to free legal aid; trial without real legal assistance
can violate fairness.
Mohd. Hussain @ Julfikar Ali v. State (NCT of Delhi): denial of effective
counsel and real cross-examination in a serious case vitiated trial;
conviction set aside—fair trial is non-negotiable.

7) Speedy trial as an essential ingredient of Article 21

Delay can itself become injustice; fair trial includes expeditious

investigation and trial.
Hussainara Khatoon (IV) v. State of Bihar: speedy trial is part of Article
21; State must ensure it.
A.R. Antulay v. R.S. Nayak: no rigid universal outer limit; “delay” is
judged case-by-case (nature of offence, complexity, parties, system
factors).
P. Ramachandra Rao v. State of Karnataka: reaffirmed Antulay approach
(no fixed outer time limit as a universal rule).
Ranjan Dwivedi v. CBI: delay alone doesn’t automatically terminate trial
without examining reasons and overall justice.

8) Protection against illegal arrest and custodial abuse

Fair trial begins at the arrest stage: unlawful arrest and custodial pressure
distort the process.
Joginder Kumar v. State of U.P.: arrest is not automatic; police must justify
necessity.
D.K. Basu v. State of West Bengal: laid down arrest and custody
safeguards to prevent abuse; these principles reinforce fairness under the
procedural code framework.

9) Presence of accused and right to cross-examine witnesses

Proceedings should ordinarily happen in presence of accused/counsel;

accused must have full chance to cross-examine prosecution witnesses—
this is core to fairness.
Mohd. Hussain @ Julfikar Ali: absence of effective cross-examination and
meaningful defence equals denial of fair trial.
Badri v. State of Rajasthan: evidence not tested by cross-examination on
material points becomes unreliable for corroboration.

10) Double jeopardy and protection against self-incrimination

Fair trial includes protection from being tried/punished twice for the same
offence/facts and from compelled testimonial self-incrimination.
Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao: explained breadth
of procedural bar against second trial on same facts (statutory rule wider
than Article 20(2)).
State of Bombay v. Kathi Kalu Oghad: clarified “to be a witness” and
scope of Article 20(3).
Selvi v. State of Karnataka: involuntary narco-analysis/polygraph/brain
mapping violates Article 20(3) and privacy; fair trial demands
voluntariness and legality in evidence collection.

Conclusion
Fair trial under the BNSS is not a single rule but a complete due-process
ecosystem: lawful investigation, protection from arbitrary arrest, timely
and open proceedings, impartial adjudication, informed defence, legal aid,
meaningful cross-examination, presumption of innocence, and safeguards
against double jeopardy and self-incrimination. The Supreme Court has
repeatedly held that fair trial is a constitutional necessity under Articles 14
and 21, and its denial damages the accused, the victim, and public
confidence in justice (as emphasised in Zahira Habibullah Sheikh).
Therefore, the BNSS framework—read with constitutional mandates and
landmark precedents—aims to ensure that criminal justice is not only
effective, but also humane, unbiased, and legally legitimate.

Q. Explain the Jurisdiction/Constitution under various courts under

BNSS.
Introduction

The jurisdiction and constitution of criminal courts in India are governed

by Chapter II of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS),
which lays down the basic institutional framework for the administration
of criminal justice. These provisions identify the different classes of
criminal courts, prescribe the territorial divisions of the State into sessions
divisions, districts, and sub-divisions, and regulate the appointment,
powers, jurisdiction, and subordination of Judicial and Executive
Magistrates. By clearly demarcating judicial courts for trial and
adjudication and executive magistracy for administrative and preventive
functions, Chapter II ensures an orderly, efficient, and hierarchical
criminal justice system operating under judicial supervision and in
accordance with the rule of law.

Meaning of Criminal Courts

Criminal courts are judicial institutions established under law to administer

criminal justice by trying offences, determining the guilt or innocence of
the accused, and imposing punishment or other lawful orders in
accordance with criminal law and procedure. These courts exercise
jurisdiction over matters involving offences against the State or society, as
defined under penal laws, and function to enforce legal accountability,
protect individual rights, and maintain public order.

In the Indian legal system, criminal courts are constituted under procedural
law (now the BNSS, 2023) and operate in a hierarchical structure, with
clearly defined powers, territorial jurisdiction, and subject-matter
jurisdiction, ensuring that criminal cases are adjudicated by competent,
independent, and legally authorised courts.
Jurisdiction and Constitution of Criminal Courts

1. Classes of Criminal Courts (Section 6)

Section 6 of the BNSS lays down the classification of criminal courts in

every State, apart from the High Courts and courts constituted under
special or local laws. The recognised classes are:
(i) Courts of Session,
(ii) Judicial Magistrates of the First Class,
(iii) Judicial Magistrates of the Second Class, and
(iv) Executive Magistrates.
This classification establishes the hierarchical structure of criminal courts
and clearly distinguishes between judicial courts responsible for trial and
adjudication and executive magistracy, which mainly performs
administrative and preventive functions under criminal procedure.

2. Territorial Divisions and Jurisdiction (Section 7)

Under Section 7, every State is divided into one or more sessions

divisions, each being a district or group of districts for the purposes of
criminal administration. The State Government may alter the limits or
number of sessions divisions, districts, or sub-divisions, but only after
consultation with the High Court, ensuring judicial control over territorial
jurisdiction. All existing divisions and districts at the commencement of
the BNSS are deemed to have been constituted under this provision,
thereby ensuring continuity and legal certainty.
3. Constitution and Jurisdiction of Courts of Session (Section 8)

Section 8 provides for the establishment of a Court of Session for every

sessions division by the State Government. Each Court of Session is
presided over by a Sessions Judge appointed by the High Court, and the
High Court may also appoint Additional Sessions Judges to exercise
jurisdiction in such courts. The Sessions Judge may distribute work among
Additional Sessions Judges and make arrangements for disposal of urgent
applications during absence or vacancy. Ordinarily, Sessions Courts sit at
places notified by the High Court, but may hold sittings at other places
within the sessions division for the convenience of parties and witnesses,
with the consent of both prosecution and accused. This section ensures that
serious criminal matters are tried by a higher judicial authority with wide
territorial jurisdiction.

4. Courts of Judicial Magistrates: Establishment and Special Courts

(Section 9)

Section 9 mandates the establishment, in every district, of adequate Courts

of Judicial Magistrates of the First Class and Second Class, at places
notified by the State Government in consultation with the High Court. The
presiding officers are appointed by the High Court, reinforcing judicial
independence. The provision also empowers the State Government to
establish Special Courts of Judicial Magistrates for particular cases or
classes of cases, and once such a special court is created, no other
Magistrate in that local area has jurisdiction over those cases. Additionally,
the High Court may confer the powers of Judicial Magistrates on members
of the State Judicial Service functioning as Civil Judges, enabling
flexibility and efficient administration.

5. Chief Judicial Magistrate, Additional CJM and Sub-divisional

Judicial Magistrate (Section 10)
Section 10 provides for the appointment of a Chief Judicial Magistrate
(CJM) in every district by the High Court from among Judicial Magistrates
of the First Class. The High Court may also appoint Additional Chief
Judicial Magistrates with such powers as it may direct. Further, a Judicial
Magistrate of the First Class in a sub-division may be designated as a Sub-
divisional Judicial Magistrate (SDJM), who exercises supervisory and
administrative control over other Judicial Magistrates in that sub-division,
subject to the control of the CJM. This provision creates a district-level
supervisory structure within the judicial magistracy.

6. Special Judicial Magistrates and Local Jurisdiction (Sections 11 &

12)

Section 11 empowers the High Court, on the request of the Central or State
Government, to appoint Special Judicial Magistrates for particular cases or
classes of cases in a local area, provided such persons possess prescribed
legal qualifications or experience. Their appointment is temporary, not
exceeding one year at a time, ensuring controlled and purpose-specific
jurisdiction.
Section 12 deals with the local jurisdiction of Judicial Magistrates,
empowering the Chief Judicial Magistrate, subject to High Court control,
to define the territorial limits within which Magistrates may exercise their
powers. Unless otherwise specified, the jurisdiction of Judicial Magistrates
extends throughout the district, thereby ensuring clarity and certainty in
territorial competence.

7. Subordination of Judicial Magistrates (Section 13)

Section 13 establishes the hierarchical control and subordination within the

judicial magistracy. It provides that the Chief Judicial Magistrate (CJM) is
subordinate to the Sessions Judge, and all other Judicial Magistrates are
subordinate to the CJM, subject to the general control of the Sessions
Judge. Further, the CJM is empowered to distribute judicial business
among the Magistrates subordinate to him by issuing rules or special
orders consistent with the BNSS. This provision ensures administrative
discipline, efficient case management, and uniformity in the functioning of
Judicial Magistrates.

8. Executive Magistrates: Appointment and Constitution (Section 14)

Section 14 empowers the State Government to appoint Executive

Magistrates in every district and mandates the appointment of one such
Magistrate as the District Magistrate (DM). The State Government may
also appoint an Additional District Magistrate (ADM), conferring upon
him such powers of the DM as it may direct. In situations where the office
of the DM becomes vacant, the officer temporarily succeeding to the
executive administration of the district shall exercise all the powers and
duties of the DM until further orders. The State Government may also
place an Executive Magistrate in charge of a sub-division, known as the
Sub-divisional Magistrate (SDM), and may delegate this power to the DM.
This section lays the foundation for the executive wing of criminal
administration.

9. Special Executive Magistrates (Section 15)

Under Section 15, the State Government may appoint Special Executive
Magistrates for specific areas or for performing particular functions. Such
appointments may include Executive Magistrates or police officers not
below the rank of Superintendent of Police or equivalent. The State
Government may confer on them such powers exercisable by Executive
Magistrates under the BNSS as it deems fit. This provision enables the
State to meet special or temporary administrative and preventive
requirements in criminal administration.

10. Local Jurisdiction of Executive Magistrates (Section 16)

Section 16 deals with the territorial jurisdiction of Executive Magistrates.

Subject to the control of the State Government, the District Magistrate
may define the local limits within which Executive Magistrates may
exercise their powers. Unless otherwise specified, the jurisdiction and
powers of every Executive Magistrate extend throughout the district. This
provision ensures clarity and certainty regarding the territorial competence
of Executive Magistrates.

11. Subordination of Executive Magistrates (Section 17)

Section 17 establishes the chain of subordination within the executive

magistracy. All Executive Magistrates are subordinate to the District
Magistrate, and Executive Magistrates (other than the SDM) exercising
powers in a sub-division are also subordinate to the Sub-divisional
Magistrate, subject to the general control of the District Magistrate. The
District Magistrate is empowered to distribute and allocate business among
Executive Magistrates by issuing rules or special orders consistent with the
BNSS. This ensures coordinated and efficient functioning of executive
magistracy.

Landmark Judgments on Jurisdiction & Constitution of Criminal

Courts

1. A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

Facts:
The Supreme Court, in an earlier order, had directed that the accused be
tried by the High Court itself, bypassing the Special Judge designated
under law.

Issue:
Whether a criminal court can assume jurisdiction not conferred by statute.
Judgment & Ratio:
The Supreme Court held that jurisdiction of a criminal court is purely
statutory. Even the Supreme Court cannot confer jurisdiction on a court
that the law does not recognise as competent. A trial conducted by a court
lacking jurisdiction is void ab initio.
Relevance to BNSS:
Directly supports Sections 6, 7, 8, and 9 BNSS, which specify classes of
courts and territorial jurisdiction. Jurisdiction flows only from BNSS, not
consent or judicial discretion.

2. State of Assam v. Ranga Muhammad, AIR 1967 SC 903

Facts:
A challenge was raised against the competence of a court that conducted
the trial.
Issue:
Whether parties can confer jurisdiction by consent.
Judgment & Ratio:
The Court held that jurisdiction cannot be conferred by consent or waiver.
If a court lacks jurisdiction, its proceedings are invalid.
Relevance to BNSS:
Supports Sections 6–12 BNSS, emphasizing that constitution and
jurisdiction of criminal courts must strictly follow statutory provisions.

3. Chandrika Misir v. Bhaiyalal, (1973) 2 SCC 474

Facts:
The Sessions Court took cognizance of an offence directly without
committal by a Magistrate.
Issue:
Whether a Sessions Court can take direct cognizance.
Judgment & Ratio:
The Supreme Court held that Sessions Courts cannot take cognizance
directly unless expressly authorised by statute. Cognizance must be
preceded by committal by a Magistrate.
Relevance to BNSS:
Supports Sections 7 and 8 BNSS, clarifying jurisdictional limits of
Sessions Courts and procedural hierarchy.

4. Deena Nath v. State of Rajasthan, (1990) 1 SCC 260

Facts:
Executive authorities were alleged to have exercised judicial functions.
Issue:
Whether Executive Magistrates can exercise judicial powers.
Judgment & Ratio:
The Court stressed the constitutional separation between judiciary and
executive. Executive Magistrates cannot exercise judicial functions unless
the statute expressly permits.
Relevance to BNSS:
Supports Sections 6, 14–17 BNSS, which clearly distinguish Judicial
Magistrates (trial courts) from Executive Magistrates
(preventive/administrative authorities).

5. Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746

Facts:
The validity of preventive proceedings initiated by an Executive
Magistrate was challenged.
Issue:
Nature of powers exercised by Executive Magistrates.
Judgment & Ratio:
The Supreme Court held that proceedings before Executive Magistrates
are preventive, not punitive, and are meant to maintain public order, not to
punish offenders.
Relevance to BNSS:
Supports Sections 14–17 BNSS, explaining the limited and preventive
jurisdiction of Executive Magistrates.

6. Keshavlal v. Emperor, AIR 1930 Bom 179

Facts:
An Executive Magistrate attempted to conduct a criminal trial.
Issue:
Whether Executive Magistrates can conduct criminal trials.
Judgment & Ratio:
The Bombay High Court held that Executive Magistrates have no
jurisdiction to try criminal cases; such power lies exclusively with Judicial
Magistrates and Sessions Courts.
Relevance to BNSS:
Reinforces Section 6 BNSS, which classifies courts and separates trial
jurisdiction from executive authority.

7. Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257

Facts:
Jurisdiction of ordinary criminal courts was questioned after constitution
of Special Courts.
Issue:
Effect of constituting Special Courts on jurisdiction of regular courts.
Judgment & Ratio:
The Supreme Court held that once a Special Court is constituted, the
jurisdiction of ordinary criminal courts is excluded for matters assigned to
that Special Court.
Relevance to BNSS:
Supports Section 9 BNSS, which provides for Special Judicial Magistrates
and exclusion of other Magistrates’ jurisdiction.

8. Shyam Singh v. State of Rajasthan, (1973) 1 SCC 441

Facts:
Allegations of judicial bias were raised.
Issue:
Test for judicial impartiality.
Judgment & Ratio:
The Court held that the test is reasonable apprehension of bias, not proof
of actual bias. Justice must not only be done but must appear to be done.
Relevance to BNSS:
Supports Sections 8–13 BNSS, ensuring independence and impartiality in
the constitution of criminal courts.

9. State of Uttar Pradesh v. Lakshmi Brahman, (1983) 2 SCC 372

Facts:
The supervisory powers of higher courts over Magistrates were examined.
Issue:
Extent of supervisory control within criminal court hierarchy.
Judgment & Ratio:
The Court recognised the supervisory role of Sessions Judge and Chief
Judicial Magistrate over subordinate Magistrates to ensure uniformity and
discipline.
Relevance to BNSS:
Supports Sections 10 and 13 BNSS, dealing with subordination and
administrative control.
10. District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC
1207

Facts:
Powers of District Magistrate under emergency provisions were in
question.
Issue:
Nature of executive authority.
Judgment & Ratio:
Though controversial, the case clarifies the statutory nature of executive
powers exercised by District Magistrates.
Relevance to BNSS:
Contextually supports Sections 14–17 BNSS, explaining the role and
authority of Executive Magistrates as executive officers, not judicial
adjudicators.

Conclusion

The provisions contained in Sections 6 to 17 of the Bharatiya Nagarik

Suraksha Sanhita, 2023 lay down a clear, systematic, and hierarchical
framework for the constitution and jurisdiction of criminal courts in India.
By categorising criminal courts, defining territorial divisions, regulating
appointments, prescribing local jurisdiction, and establishing
subordination and control among judicial and executive authorities, the
BNSS ensures orderly administration of criminal justice. Judicial
pronouncements have consistently affirmed that jurisdiction is purely
statutory, that courts must function strictly within the powers conferred by
law, and that a clear separation between judicial and executive magistracy
is essential to maintain independence, impartiality, and public confidence
in the justice system. Thus, the framework under the BNSS, supported by
constitutional principles and landmark judgments, strengthens the rule of
law by ensuring that criminal courts operate within defined limits, under
judicial supervision, and in furtherance of fair and effective criminal
adjudication.
Q. Powers of various criminal courts under BNSS.
Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been enacted
to replace the Code of Criminal Procedure, 1973 with the aim of ensuring
a speedy, effective and citizen-centric criminal justice system. One of the
core components of the BNSS is the classification and regulation of
powers of criminal courts, which determines how criminal jurisdiction is
exercised at various levels of the judicial hierarchy.

Chapter III of the BNSS, titled “Powers of Courts” (Sections 21 to 29),

lays down the legal framework governing:

 the courts competent to try different offences,

 the nature and extent of sentencing powers,

 the manner in which judicial powers are conferred, exercised,

continued and withdrawn.

These provisions ensure that criminal courts function within clearly

defined statutory limits, thereby preventing arbitrariness and promoting
judicial discipline.

Meaning of powers of criminal courts

The “powers of criminal courts” refer to the statutory authority conferred
upon different criminal courts to adjudicate criminal matters in accordance
with law. These powers include:

 the authority to try offences,

 the competence to award sentences such as imprisonment, fine or

community service,

 the power to decide whether sentences shall run concurrently or

consecutively,

 and the authority to exercise such powers within prescribed

territorial and pecuniary limits.

Such powers are not inherent but are derived exclusively from statutory
provisions, and any exercise beyond the limits prescribed under the BNSS
would be illegal and void. The chapter thus demarcates the functional
boundaries of criminal adjudication among High Courts, Sessions Courts
and Magistrates.

Scope of chapter III (sections 21–29 bnss)

The scope of Chapter III of the BNSS is wide and comprehensive, as it

governs both the judicial and administrative aspects of criminal court
powers. Its scope may be understood under the following heads:

Determination of Trial Jurisdiction

The chapter identifies which courts are competent to try offences under the
Bharatiya Nyaya Sanhita, 2023 and under other special laws, ensuring
clarity and avoidance of jurisdictional conflicts.

Regulation of Sentencing Powers

It prescribes the maximum punishment that different courts may impose,
thereby maintaining proportionality and preventing excessive sentencing.

Control over Multiple Convictions and Sentences

The chapter regulates how courts may deal with multiple offences in a
single trial, including the principles governing concurrent and consecutive
sentences.

Administrative Control and Continuity of Powers

It lays down provisions relating to the conferral, withdrawal and
continuation of judicial powers, ensuring smooth functioning of courts
despite changes in office.

Incorporation of Reformative and Gender-Sensitive Justice

The inclusion of community service as a punishment and the preference
for women-presided courts in certain offences reflects the evolving nature
of criminal jurisprudence.

Thus, Chapter III forms the structural foundation of criminal adjudication

under the BNSS, balancing judicial authority with statutory control.
Powers of criminal courts

1. Power to Try Offences – Section 21

Nature and Purpose of Section 21

Section 21 of the BNSS lays down the fundamental rule regarding

jurisdiction of criminal courts to try offences. It specifies which courts are
competent to try particular offences, thereby preventing jurisdictional
confusion and ensuring orderly administration of criminal justice. This
provision must be read subject to other provisions of the Sanhita and the
First Schedule.

Section 21(a): Trial of Offences under the Bharatiya Nyaya Sanhita, 2023

Under clause (a), any offence under the Bharatiya Nyaya Sanhita, 2023
(BNS) may be tried by:

The High Court, or

The Court of Session, or
Any other court specified in the First Schedule of the BNSS.

The First Schedule plays a crucial role by categorising offences as triable

by particular courts depending on the gravity and nature of the offence.

Proviso – Trial by Women-Presided Courts

The proviso mandates that offences under Sections 64 to 71 of the BNS,
which primarily relate to sexual offences, shall, as far as practicable, be
tried by a court presided over by a woman.
This reflects:

Gender sensitivity,
Victim-centric justice,
Compliance with constitutional values of dignity and equality.

The phrase “as far as practicable” indicates flexibility while maintaining

the legislative intent.

Section 21(b): Trial of Offences under Other Laws

Clause (b) deals with offences created under special or local laws:
If the law specifically mentions a court, that court alone shall try the
offence.
If no court is mentioned, the offence may be tried by:

the High Court, or

any court specified in the First Schedule.

This provision upholds the principle that special laws prevail over general
procedural law, while also ensuring that no offence goes untried due to
absence of jurisdiction.
 2. Power to Pass Sentences – High Courts and Sessions Courts
(Section 22)

Section 22(1): Powers of the High Court

A High Court may pass any sentence authorised by law.

There is no statutory limitation on the nature or quantum of punishment
that may be imposed, including:

Death sentence,
Life imprisonment,
Any other lawful punishment.

This reflects the High Court’s position as the highest criminal court within
the State.

Section 22(2): Powers of Sessions Judge and Additional Sessions Judge

A Sessions Judge or Additional Sessions Judge may also pass any sentence
authorised by law. However, an important safeguard is provided:
Any sentence of death passed by a Sessions Court is subject to
confirmation by the High Court.

This ensures:

Judicial oversight,
Protection of the right to life under Article 21,
Prevention of miscarriage of justice.

3. Power of Magistrates to Pass Sentences – Section 23

Section 23 demarcates the sentencing powers of Magistrates, ensuring

proportionality and hierarchy.

Section 23(1): Powers of Chief Judicial Magistrate (CJM)

The Court of a Chief Judicial Magistrate may pass any sentence authorised
by law, except:

Death sentence,
Life imprisonment,
Imprisonment exceeding seven years.

Thus, the CJM exercises extensive but controlled sentencing authority,

subject to statutory limits.

Section 23(2): Powers of Magistrate of the First Class

A Magistrate of the First Class may pass:

Imprisonment up to three years, or

Fine up to ₹50,000, or
Both, or
Community service.

This represents a significant reform by incorporating non-custodial

punishment.

Section 23(3): Powers of Magistrate of the Second Class

A Magistrate of the Second Class may pass:

Imprisonment up to one year, or

Fine up to ₹10,000, or
Both, or
Community service.

Explanation – Community Service

Community service is defined as unpaid work ordered by the court for the
benefit of the community.
It reflects:

Reformative justice,
Reduced reliance on imprisonment,
Social accountability of offenders.
 4. Power to Award Imprisonment in Default of Fine – Section 24

Section 24(1): General Rule

A Magistrate may award imprisonment in default of payment of fine,

provided that:

The term does not exceed the Magistrate’s powers under Section 23;
Where substantive imprisonment is awarded, the default imprisonment
shall not exceed one-fourth of the maximum imprisonment the Magistrate
can impose.

Section 24(2): Additional Imprisonment

The imprisonment awarded in default of fine may be in addition to the

substantive sentence of imprisonment.

This provision ensures:

Effective enforcement of fines,

Deterrence against deliberate non-payment,
Judicial proportionality.

5. Power to Award Sentences in Cases of Multiple Offences –

Section 25
Section 25(1): Concurrent or Consecutive Sentences
When a person is convicted of two or more offences at one trial, the court
may:

Impose separate punishments for each offence,

Direct such punishments to run concurrently or consecutively, considering
the gravity of offences.

Section 25(2): Limits on Consecutive Sentences

In case of consecutive sentences:

The offender shall not be imprisoned for more than twenty years;
The aggregate punishment shall not exceed twice the maximum
punishment for a single offence;
The court need not send the case to a higher court merely due to aggregate
punishment.
This balances judicial efficiency with protection against excessive
punishment.

Section 25(3): Appeal

For the purpose of appeal, the aggregate of consecutive sentences is

treated as a single sentence, ensuring procedural simplicity.

6. Power Relating to Mode of Conferring Powers – Section 26

Nature and Objective

Section 26 deals with the administrative mechanism for conferring judicial
powers under the BNSS. It ensures that powers are lawfully granted and
exercised only by duly authorised persons.

Section 26(1): Authority to Confer Powers

The High Court or the State Government, as the case may be, may confer
powers under the BNSS by an order:

On persons specially by name, or

By virtue of their office, or
On classes of officials generally, designated by their official titles.

This provision allows flexibility and administrative convenience,

especially in large judicial systems.

Section 26(2): Commencement of Powers

Every such order shall take effect from the date on which it is
communicated to the person so empowered.

This ensures:

Transparency,
Certainty,
Prevention of retrospective exercise of powers.

7. Power of Officers Appointed to Equal or Higher Office – Section

27

Purpose of Section 27

Section 27 ensures continuity of judicial authority when an officer holding

judicial powers is promoted or transferred to an equivalent or higher
office.

Substantive Provision

Where a person:

Holding an office under the Government,

Invested with powers under the BNSS throughout any local area,
Is appointed to an equal or higher office of the same nature within the
same local area,
He shall continue to exercise the same powers, unless otherwise directed
by the High Court or State Government.

Significance

This provision:

Avoids disruption in judicial work,

Prevents administrative vacuum,
Ensures seamless transition in judicial functioning.

8. Power of Withdrawal of Judicial Powers – Section 28

Section 28(1): Withdrawal by Higher Authorities

The High Court or State Government may withdraw all or any powers
conferred under the BNSS:

On any person,
Or by any officer subordinate to it.
This acts as a supervisory and corrective mechanism.

Section 28(2): Withdrawal by Magistrates

Any powers conferred by:

The Chief Judicial Magistrate, or

The District Magistrate,
May be withdrawn by the same authority that conferred such powers.

Importance of Section 28

This provision ensures:

Accountability of judicial officers,
Prevention of misuse of authority,
Maintenance of judicial discipline.

9. Powers Exercisable by Successors-in-Office – Section 29

Section 29(1): General Rule

Subject to other provisions of the BNSS, the powers and duties of a Judge
or Magistrate may be exercised or performed by his successor-in-office.

This ensures that judicial proceedings are not stalled due to transfer,
retirement or death of a judicial officer.

Section 29(2): Determination of Successor – Judges

Where there is a doubt regarding the successor of a Judge, the Sessions

Judge shall determine, by a written order, who shall be deemed the
successor for the purposes of:

The BNSS,

Any proceedings or orders thereunder.

Section 29(3): Determination of Successor – Magistrates

Where there is a doubt regarding the successor of a Magistrate, such
determination shall be made by:

The Chief Judicial Magistrate, or

The District Magistrate, as the case may be.

Significance

Section 29 ensures:

Continuity of judicial proceedings,

Administrative certainty,
Timely disposal of cases.

Conclusion

The powers of criminal courts under Chapter III of the Bharatiya Nagarik
Suraksha Sanhita, 2023 clearly define the jurisdiction, sentencing
authority, and administrative control of criminal courts. These provisions
ensure that courts act within statutory limits, maintain proportionality in
punishment, and uphold judicial discipline. Safeguards such as High Court
confirmation of death sentences, regulated sentencing powers of
Magistrates, and continuity of proceedings through successors-in-office
strengthen fairness and efficiency in the criminal justice system. Overall,
the BNSS reinforces the rule of law and effective administration of
criminal justice.

Q. First Information report

 OR
Explain FIR and discuss the evidentiary value
Introduction

The First Information Report (FIR) is the starting point of the criminal
justice process. It is the earliest information given to the police regarding
the commission of a cognizable offence and sets the criminal law into
motion. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the
provisions relating to FIR are contained in Chapter XIII – Information to
the Police and Their Powers to Investigate, particularly Sections 173 and
174.

The object of an FIR is not to prove the guilt of the accused, but to initiate
investigation, preserve the earliest version of the occurrence, and prevent
embellishment or fabrication at a later stage. FIR thus occupies a crucial
place both procedurally and evidentially in criminal trials.

Meaning of FIR

An FIR may be defined as the information relating to the commission of a

cognizable offence, given to the officer in charge of a police station, with
the intention of setting the criminal law in motion.

Though the term “First Information Report” is not expressly defined in the
BNSS, it is understood as the information recorded under Section 173(1)
BNSS. It is called “first” because it is the earliest report of the offence, and
“information” because it need not contain exhaustive details of the
incident.

Scope of FIR
The scope of FIR under BNSS is wide and progressive. It includes:

Recording of information relating to cognizable offences, irrespective of

territorial jurisdiction (Zero FIR).
Acceptance of oral, written and electronic information.
Special procedural safeguards for women and disabled victims.
Provision for preliminary enquiry in certain cases.
Remedies against refusal to register FIR.
Differentiation between cognizable and non-cognizable offences.
Thus, FIR under BNSS is not merely procedural but also rights-oriented
and victim-centric.

Section 173 – information in cognizable cases (BNSS, 2023)

Introduction to Section 173

Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down
the procedure for receiving and recording information relating to the
commission of cognizable offences. This provision gives statutory
recognition to the concept of the First Information Report (FIR) and marks
the formal commencement of the criminal investigation process. The
section reflects a progressive approach by incorporating Zero FIR,
electronic FIR, victim-centric safeguards, and preliminary enquiry.

Section 173(1): Mode of Giving Information

Section 173(1) provides that every information relating to the commission

of a cognizable offence, irrespective of the place where the offence was
committed, may be given to the officer in charge of a police station. This
enables registration of Zero FIR, ensuring that jurisdiction does not
become a barrier to justice.

The information may be given in the following modes:

(i) Oral Information

When information is given orally:

It must be reduced to writing by the officer in charge or under his
direction;
It must be read over to the informant to ensure correctness;
It must be signed by the informant.
This ensures accuracy, authenticity and accountability in recording FIR.

(ii) Information by Electronic Communication

Where information is given through electronic communication:

It shall be taken on record immediately;
It must be signed by the informant within three days.
This provision modernises criminal procedure by facilitating online or
digital FIR registration.

After recording the information, the substance of the FIR must be entered
in a prescribed register, commonly known as the FIR register, maintained
in the manner specified by State Government rules.
First Proviso – Protection to Women Victims

Where information is given by a woman victim regarding offences under

Sections 64–71, 74–79 or 124 of the Bharatiya Nyaya Sanhita, 2023
(mainly sexual and serious offences), such information shall be recorded
by a woman police officer or woman officer.

This proviso ensures:

Sensitivity towards women victims,

Protection of dignity and privacy,
Encouragement to report offences without fear.

Second Proviso – Safeguards for Disabled Victims

If the victim is mentally or physically disabled, the law mandates special

safeguards:

The information shall be recorded:

At the residence of the victim, or

At a place of the victim’s choice.

Recording shall take place in the presence of:

An interpreter, or\
A special educator, as the case may be.

The process of recording shall be videographed.

The police officer shall ensure that the statement of the victim is recorded
by a Magistrate at the earliest under Section 183(6)(a) BNSS.
These safeguards reflect a rights-based and inclusive approach to criminal
justice.

Section 173(2): Supply of Copy of FIR

Section 173(2) mandates that a copy of the FIR shall be given free of cost,
forthwith, to:

The informant, or
The victim

This provision promotes:

Transparency,
Fairness,

Right to information.

Section 173(3): Preliminary Enquiry

For cognizable offences punishable with imprisonment of three years or

more but less than seven years, the officer in charge may, with prior
permission of an officer not below the rank of Deputy Superintendent of
Police, adopt either of the following courses:

Conduct a preliminary enquiry within a period of fourteen days to

ascertain whether a prima facie case exists; or
Proceed directly with investigation, if a prima facie case is found.

This provision balances:

Protection against frivolous or false cases, and

Prompt investigation of genuine offences.

Section 173(4): Remedy in Case of Refusal to Register FIR

Where an officer in charge of a police station refuses to record FIR, the

aggrieved person may:

Send the substance of such information in writing and by post to the

Superintendent of Police;

If satisfied, the SP may:

Investigate the case himself, or

Direct investigation by a subordinate officer.
If still aggrieved, the person may approach the Magistrate.
This provision ensures police accountability and access to justice.

Section 174 – information as to non-cognizable cases and investigation

of such cases

(Bharatiya Nagarik Suraksha Sanhita, 2023)**

Introduction to Section 174

Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with
the procedure to be followed by the police when information is received
regarding the commission of a non-cognizable offence. Unlike cognizable
offences, non-cognizable offences are comparatively less serious and do
not permit the police to investigate or arrest without prior judicial
approval. This section thus acts as a safeguard against arbitrary police
action and ensures judicial supervision over investigation in such cases.

Section 174(1): Recording of Information in Non-Cognizable Cases

When information relating to the commission of a non-cognizable offence

is given to the officer in charge of a police station:

The officer shall enter or cause to be entered the substance of the

information in a book maintained in the prescribed form.

After recording the information, the police officer shall:

Refer the informant to the Magistrate having jurisdiction; and

Forward a daily diary report of all such cases fortnightly to the Magistrate.

This provision ensures that:

Non-cognizable offences are officially documented, and

The Magistrate remains informed and exercises supervisory control.

Section 174(2): Investigation Only with Magistrate’s Permission

Section 174(2) expressly provides that:

No police officer shall investigate a non-cognizable case without the order

of a Magistrate having power to try such case or commit the case for trial.
This reflects the fundamental distinction between cognizable and non-
cognizable offences and protects individuals from unnecessary police
interference.

Section 174(3): Powers of Police After Magistrate’s Order

Where a Magistrate grants permission to investigate a non-cognizable

case:

The police officer may exercise the same powers of investigation as in a

cognizable case,
Except the power to arrest without warrant.
Thus, even after permission:

The police cannot arrest the accused without a warrant,

Judicial control continues throughout the investigation.

Section 174(4): Cases Involving Both Cognizable and Non-Cognizable

Offences

Section 174(4) provides that:

Where a case relates to two or more offences, of which at least one is

cognizable, the entire case shall be deemed to be a cognizable case, even if
the other offences are non-cognizable.

This provision avoids:

Fragmentation of investigation,
Procedural complications,
and enables the police to investigate the entire transaction effectively.

Landmark case laws on FIR & information to police

(Sections 173 & 174 BNSS)**

SECTION 173 – INFORMATION IN COGNIZABLE CASES (FIR)

Case 1: Lalita Kumari v. Government of Uttar Pradesh

📌 (2014) 2 SCC 1

Facts:
The police refused to register an FIR on receiving information about a
cognizable offence and instead conducted a preliminary enquiry.

Issue:
Whether registration of FIR under Section 173 is mandatory upon receipt
of information disclosing a cognizable offence.

Held:
The Supreme Court held that registration of FIR is mandatory where
information discloses a cognizable offence. Preliminary enquiry is
permissible only in limited categories of cases.

Relevance to Section 173 BNSS:

This case directly governs Section 173(1) and 173(3), affirming mandatory
FIR registration and the limited scope of preliminary enquiry.

Case 2: State of Haryana v. Bhajan Lal

📌 1992 Supp (1) SCC 335

Facts:
The accused challenged the registration of FIR and investigation alleging
abuse of police power.

Issue:
Whether FIR can be quashed at the initial stage and what is the scope of
police powers after registration of FIR.

Held:
The Court laid down illustrative categories where FIR can be quashed but
emphasised that police have a statutory duty to investigate cognizable
offences.

Relevance:
Supports the statutory duty of police under Section 173 BNSS to register
FIR and proceed with investigation.

Case 3: Ramesh Kumari v. State (NCT of Delhi)

📌 (2006) 2 SCC 677

Facts:
Police refused to register FIR despite disclosure of cognizable offence.

Issue:
Whether police can refuse to register FIR on the ground that allegations
appear doubtful.
Held:
The Supreme Court held that police have no discretion to refuse FIR
registration once cognizable offence is disclosed.

Relevance:
Strengthens Section 173(4) BNSS, dealing with remedies against refusal to
register FIR.

SECTION 174 – INFORMATION AS TO NON-COGNIZABLE CASES

Case 1: State of West Bengal v. Swapan Kumar Guha

📌 (1982) 1 SCC 561

Facts:
Police initiated investigation into a non-cognizable offence without
Magistrate’s permission.

Issue:
Whether police can investigate a non-cognizable offence without an order
of Magistrate.

Held:
The Supreme Court held that investigation without Magistrate’s order is
illegal and without jurisdiction.

Relevance to Section 174 BNSS:

Direct authority for Section 174(2), mandating Magistrate’s permission.

Case 2: Jamuna Singh v. Bhadai Shah

📌 AIR 1964 SC 1541

Facts:
Police investigated a non-cognizable offence without seeking permission
from Magistrate.

Issue:
Whether such investigation is valid in law.

Held:
The Court held that police cannot investigate non-cognizable cases without
judicial approval, though illegality does not automatically vitiate trial
unless prejudice is shown.

Relevance:
Explains the procedural requirement under Section 174(2) BNSS and its
effect.

Case 3: Pravin Chandra Mody v. State of Andhra Pradesh

📌 AIR 1965 SC 1185

Facts:
The case involved both cognizable and non-cognizable offences arising
from the same transaction.

Issue:
Whether the entire case should be treated as cognizable.

Held:
The Supreme Court held that where one offence is cognizable, the whole
case becomes cognizable.

Relevance:
Directly supports Section 174(4) BNSS, dealing with mixed offences.

 Evidentiary Value

Introduction

The First Information Report (FIR) constitutes the earliest version of the
alleged commission of a cognizable offence and plays a pivotal role in the
criminal justice system. While the FIR is procedurally governed by
Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023, its
evidentiary value is determined by the provisions of the Bharatiya Sakshya
Adhiniyam, 2023 (BSA).
The FIR serves as the starting point of investigation and provides the
prosecution with the first narrative of the occurrence. However, in the law
of evidence, the FIR is not treated as substantive proof of facts. Its
importance lies in its auxiliary evidentiary role, such as corroborating or
contradicting witnesses and testing the credibility of the prosecution
version. Thus, the FIR occupies a unique position at the intersection of
criminal procedure and evidence law.

Meaning of fir (from an evidentiary standpoint)

An FIR may be described as the information relating to the commission of

a cognizable offence, given to a police officer in charge of a police station,
which is recorded in accordance with law and sets the criminal process in
motion.

From an evidentiary perspective under the Bharatiya Sakshya Adhiniyam,

2023, the FIR is:

A previous statement of the informant,

Made before the commencement of investigation,
Reduced into writing and preserved in official records.

Though the FIR is not defined as “evidence” under the BSA, it becomes
relevant evidence only when used for specific purposes recognised by the
Adhiniyam, such as corroboration, contradiction, admission, or conduct of
parties.

Nature of fir under the bharatiya sakshya adhiniyam, 2023

The nature of FIR under the Bharatiya Sakshya Adhiniyam, 2023 can be
understood under the following principles:

1. FIR Is Not Substantive Evidence

An FIR does not constitute substantive evidence, as it is:

Not given on oath,

Not tested by cross-examination,
Recorded before investigation begins.

Therefore, no conviction can be based solely on the FIR. It cannot be

treated as proof of the truth of its contents.

2. FIR Is a Previous Statement

Under the BSA, an FIR is treated as a previous statement of the informant.

Its relevance arises only when the maker of the FIR:

Appears as a witness, and

Gives testimony before the court.
Only then can the FIR be utilised within the framework of the Evidence
Law.

3. FIR Has Limited and Conditional Evidentiary Value

The evidentiary value of an FIR is restricted and conditional, depending
upon:

Who lodged the FIR (informant, eyewitness, accused),

When it was lodged (prompt or delayed),
For what purpose it is relied upon (corroboration, contradiction,
admission, conduct).
Thus, the FIR is supportive evidence, not primary evidence.

4. FIR Is a Safeguard Against Fabrication

Because the FIR is usually recorded at the earliest point of time, it serves
as a benchmark against which subsequent versions of events are tested.
Courts often examine FIR to detect:

Improvements,
Embellishments,
False implications.

FIR as Substantive Evidence – Not Permissible (Slightly Elaborated)

Under the Bharatiya Sakshya Adhiniyam, 2023, an FIR cannot be treated

as substantive evidence because it does not by itself prove the truth of the
facts mentioned in it. An FIR is recorded by the police at a pre-trial and
pre-investigation stage, based on the initial version of the informant, which
may be incomplete or influenced by emotion, shock, or hearsay.
Further, the FIR is not made on oath and the informant is not subjected to
cross-examination at the time of recording, which are essential
requirements for treating a statement as substantive evidence under the law
of evidence. Therefore, the FIR lacks the reliability and sanctity required
to independently establish guilt.

As a result, a court cannot base conviction solely on the FIR. Its

evidentiary value is limited and supportive, and it can be used only for
specific purposes such as corroborating or contradicting the testimony of
the informant or for assessing conduct, as permitted under the Bharatiya
Sakshya Adhiniyam, 2023.

Evidentiary uses of fir under the Bharatiya Sakshya Adhiniyam, 2023

Although the First Information Report (FIR) is not substantive evidence,

the Bharatiya Sakshya Adhiniyam, 2023 (BSA) recognises several limited
but important evidentiary uses of FIR. These uses arise when the FIR is
read in conjunction with specific provisions of the BSA and judicial
principles governing previous statements, admissions, conduct, and
relevancy of facts.

1. FIR AS A PREVIOUS STATEMENT FOR CORROBORATION

(Section 157, BSA, 2023)**

Under Section 157 of the Bharatiya Sakshya Adhiniyam, 2023, a former

statement made by a witness relating to the same fact may be used to
corroborate his testimony given before the court.
Application to FIR

When the informant appears as a witness, the FIR becomes a previous

statement capable of corroborating his oral testimony. The FIR helps the
court to verify whether the witness has been consistent from the very
beginning.

Extent of Corroboration

Corroboration is permitted only with respect to material particulars,

Minor inconsistencies do not affect evidentiary value.

Limitations

FIR can corroborate only the maker of the FIR,

It cannot corroborate other prosecution witnesses.
Thus, FIR strengthens credibility but does not prove guilt.

2. FIR AS A PREVIOUS STATEMENT FOR CONTRADICTION

(Section 145, BSA, 2023)**

Under Section 145 of the BSA, a witness may be contradicted by his

previous written statement.
Application to FIR

If the informant’s testimony in court deviates materially from what is

stated in the FIR, the FIR can be used to contradict the informant,
following the prescribed procedure:

The relevant portion must be brought to the attention of the witness,

The witness must be given an opportunity to explain the inconsistency.

Effect

Material contradictions may shake the credibility of the witness,

Trivial discrepancies are ignored.
Hence, FIR acts as a check against exaggeration or fabrication.

3. FIR AS AN ADMISSION

(Section 21, BSA, 2023)**

Under Section 21 of the Bharatiya Sakshya Adhiniyam, an admission is

relevant and may be proved against the person who makes it.

When FIR Amounts to Admission

If the FIR is lodged by the accused himself,
And contains non-confessional admissions, such as motive, presence, or
background facts.
Limitations

Confessional portions are excluded due to statutory bar on police

confessions,
Only non-incriminatory admissions are admissible.
Thus, FIR may operate as an admission against its maker, subject to legal
restrictions.

4. FIR AND CONFESSIONAL BAR

(Sections 25 & 26, BSA, 2023)**

Sections 25 and 26 of the BSA bar confessions made:

To a police officer, or
While in police custody (unless made before a Magistrate).

Effect on FIR

If FIR is lodged by the accused and contains a confession, that part is

inadmissible,
Only non-confessional facts may be used.
This ensures protection against coerced confessions.

5. FIR AS EVIDENCE OF CONDUCT

(Section 8, BSA, 2023)**

Under Section 8 of the BSA, the conduct of any party is relevant if it

influences or is influenced by a fact in issue.

Conduct Reflected Through FIR

Prompt lodging of FIR indicates natural and truthful conduct,

Delay in FIR may raise suspicion unless properly explained.

Judicial Approach

Delay alone is not fatal,

Courts consider social conditions, trauma, fear, or stigma.

Thus, FIR helps courts assess human behaviour and credibility.

6. FIR AS PART OF THE SAME TRANSACTION (RES GESTAE)

(Section 6, BSA, 2023)**

Under Section 6 of the BSA, facts forming part of the same transaction are
relevant.

Application
FIR lodged immediately after the occurrence,
Without time for fabrication,
May sometimes be treated as part of the same transaction.

Limitation

FIR must be spontaneous and contemporaneous,

Delayed FIR cannot claim this status.
This gives FIR enhanced probative value in rare cases.

7. FIR TO EXPLAIN MEDICAL AND SCIENTIFIC EVIDENCE

Though not expressly stated in the BSA, FIR is often used to:

Compare injuries mentioned in FIR with medical reports,

Test consistency with forensic or scientific evidence.
Discrepancies may weaken prosecution but are not conclusive.

8. FIR IN CASE OF MULTIPLE FIRs

The first FIR is relevant for evidentiary purposes,

Subsequent FIRs relating to the same transaction are treated as statements
under investigation,
Multiple FIRs may affect prosecution credibility.

9. FIR LODGED BY NON-EYEWITNESS

FIR need not be lodged by an eyewitness,

Such FIR is valid procedurally but has weak evidentiary value,
Requires strong corroboration during trial.

Five important landmark cases on fir

(Evidentiary Value under Bharatiya Sakshya Adhiniyam, 2023)**

1. Lalita Kumari v. Government of Uttar Pradesh

📌 (2014) 2 SCC 1

Facts

The police refused to register an FIR despite information disclosing a

cognizable offence and instead conducted a preliminary enquiry.

Issue

Whether registration of FIR is mandatory on receipt of information

relating to a cognizable offence.
Held

The Supreme Court held that registration of FIR is mandatory when

information discloses a cognizable offence. Preliminary enquiry is
permissible only in limited categories of cases.

Principle Laid Down

FIR is the foundation of criminal investigation and refusal to register it

violates statutory duty.

Relevance

Though procedural, this case strengthens the credibility and evidentiary

importance of FIR as the earliest version of the occurrence.

2. Aghnoo Nagesia v. State of Bihar

📌 AIR 1966 SC 119

Facts

The accused himself lodged the FIR containing a confession to the police.

Issue
Whether a confessional FIR lodged by the accused is admissible as
evidence.

Held

The Supreme Court held that confessional portions of FIR made to police
are inadmissible, except parts leading to discovery.

Principle Laid Down

An FIR lodged by the accused cannot be treated as substantive evidence

due to the bar on police confessions.

Relevance

This is the leading authority on FIR as admission vs confession under the

law of evidence.

3. Thulia Kali v. State of Tamil Nadu

📌 (1972) 3 SCC 393

Facts
There was considerable delay in lodging the FIR without proper
explanation.

Issue

What is the effect of delay in lodging FIR on its evidentiary value.

Held

The Court held that prompt FIR lends assurance to the prosecution case,
whereas unexplained delay may create suspicion.

Principle Laid Down

Delay in FIR is not fatal per se, but it affects credibility and reliability
unless explained.

Relevance

This case explains FIR as evidence of conduct under the law of evidence.

4. Tahsildar Singh v. State of Uttar Pradesh

📌 AIR 1959 SC 1012

Facts
The prosecution attempted to use the FIR to contradict the informant
without following proper legal procedure.

Issue

How FIR can be used for contradiction under the law of evidence.

Held

The Supreme Court held that contradiction must strictly follow the
prescribed procedure, by drawing the witness’s attention to the specific
part of the FIR.

Principle Laid Down

FIR can be used for contradiction only of its maker, and only in
accordance with evidence law.

Relevance

This is the classic authority on FIR as a previous statement for

contradiction.

5. T.T. Antony v. State of Kerala

📌 (2001) 6 SCC 181

Facts

Multiple FIRs were registered for the same occurrence.

Issue

Whether more than one FIR can be registered for the same incident.

Held

The Supreme Court held that there can be only one FIR in respect of the
same transaction.

Principle Laid Down

Subsequent information relating to the same incident is only a statement

under investigation, not a fresh FIR.

Relevance

This case ensures certainty and reliability of FIR as the primary version of
events.
Conclusion

In conclusion, the First Information Report (FIR) occupies a vital but

limited evidentiary position under the Bharatiya Sakshya Adhiniyam,
2023. Although it is not substantive evidence and cannot by itself prove
the guilt of the accused, it serves as an important auxiliary piece of
evidence. Its true value lies in corroborating or contradicting the testimony
of the informant, assessing the conduct of parties, and testing the
credibility and consistency of the prosecution case. Judicial
pronouncements have consistently emphasised that the evidentiary worth
of an FIR depends on its promptness, voluntariness, and proper use in
accordance with the law of evidence. Thus, the FIR acts as a foundational
document that aids the court in the search for truth while safeguarding the
rights of the accused and upholding the principles of fair trial.

Q. Rights of Arrested Person

Rights of Arrested persons. (6M)

Ans:
Introduction:
Being a democratic country, India grants several civil rights to it's citizens
and civil rights at the time of arrest, perhaps is one of the most important
rights. These rights form a framework against potential abuses and
injustices. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 ensures
that every arrested person is treated with fairness, dignity, and justice. It
incorporates several safeguards to prevent misuse of police powers and
arbitrary detention. These rights are rooted in constitutional principles
under Articles 21 and 22 of the Indian Constitution. Thus, BNSS upholds
the balance between law enforcement authority and individual liberty.

What is Arrest?
There is no particular section that defines “arrest.” However, Sections 35
to 60 of the BNSS deal with the process, powers, and procedure of arrest.
“Arrest” means the act by which a person is taken into custody or deprived
of his liberty by a legally authorised person (police officer, magistrate or
private person under BNSS) for the purpose of enabling him to be brought
before a competent authority, or to prevent commission of an offence, or
for his detention in connection with an offence.

Rights of the arrested person

1. Right to Know the Grounds of Arrest:
Article 22 of the Indian Constitution mandates that any detained person
must be informed of the reasons for their arrest. Section 47(1) of the BNSS
echoes this, emphasizing the duty of law enforcement to communicate all
details and particulars of the offense.

2. Right to Consult and Legal Aid:

The right to consult and be defended by a lawyer is a fundamental tenet,
explicitly stated in Article 39-A of Indian Constitution and Article 22(1) of
the Indian Constitution. The BNSS in Section 341 further reinforces this
right, ensuring legal representation for those unable to afford it.

3. Right to Be Taken to Magistrate Within 24 Hours:

Article 22(2) of Indian Constitution and Section 57 of the BNSS stipulate
that an arrested person must be presented before a magistrate within 24
hours, preventing undue and prolonged detention without judicial
oversight.
Case: Harimand v. Jailor
The court's decision in this case emphasized the timely production of
arrested persons before a magistrate within 24 hours, excluding the time
for the journey. Failure to adhere to this provision could entitle the accused
to release.

4. Right to be Examined by a Medical Practitioner:

Section 53 of the BNSS safeguards an arrested person's right to request a
medical examination, particularly when it could provide evidence
important for their defense or disprove allegations.

5. Right to Notification of Arrest:

In addition to being informed of the grounds for arrest, individuals have
the right to timely notification of their arrest to a friend, relative, or any
other person of their choice. Section 48 of the BNSS imposes an obligation
on the arresting authority to inform the arrested person about this right,
enabling them to reach out to a trusted contact.
Case: Joginder Singh v. State of U.P
This case contributed to the addition of Section 50-A to the Code of
Criminal Procedure, whose essence is now under Section 48 of BNSS. The
Supreme Court emphasized the obligation of police officers making an
arrest to inform a relative or friend about the arrest of the concerned
person.

6. Right to Custody Memo and Documentation:

Section 56 of the BNSS emphasizes the duty of the custodian to take
reasonable care of the health and safety of the accused. This includes the
preparation of a custody memo containing the date and time of arrest,
attested by a witness and countersigned by the arrested person. Proper
documentation, including an entry in the diary helps in ensuring
transparency and accountability.

7. Right to Compensation for Illegal Detention:

Section 359 of the BNSS empowers arrested persons to seek compensation
for groundless arrest. This right serves as a deterrent against arbitrary
detentions.

8. Right to Notice for Non-Cognizable Offenses:

Section 35 of the BNSS grants police officers the authority to give notice
to a person suspected of committing a cognizable offense, requiring them
to appear before the officer. This notice provides the accused with an
opportunity to respond to allegations him.

9. Right to No Restraint Beyond Necessity:

Section 46 of the BNSS mandates that police officers should not use more
restraint than necessary during an arrest, preventing unnecessary force.

10. Right to Protection from Cruel and Inhuman Treatment:

Apart from the duty to take care of the health and safety of the accused,
Section 56 of the BNSS ensures protection from cruel and inhuman
treatment while in custody.

Conclusion
To conclude, the rights of an arrested person under the BNSS, 2023 serve
as vital safeguards against arbitrary and unlawful deprivation of liberty.
They ensure that the process of arrest remains just, transparent, and in
conformity with the constitutional guarantees of Articles 21 and 22. By
mandating fair treatment, prompt information, access to legal counsel, and
protection from unnecessary detention, the BNSS upholds the spirit of
natural justice and human dignity within India’s criminal justice system.
Q. What are the processes available to compel a person before the
court

Introduction

The effective functioning of criminal courts depends upon the presence of

the accused, witnesses, and other necessary persons at various stages of the
proceedings. In order to secure such presence and prevent obstruction to
the course of justice, the law provides certain procedural mechanisms
known as processes to compel appearance. These processes enable the
court to lawfully require individuals to attend court proceedings and
comply with judicial directions.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the

provisions relating to such processes are contained in Chapter VI, which
lays down a comprehensive framework governing the issue, service,
execution, and enforcement of summons, warrants of arrest, proclamation,
attachment of property, and related coercive measures.

Meaning of “processes to compel appearance”

The expression “processes to compel appearance” refers to the legal

instruments issued by a criminal court to ensure the presence of a person
before it at a specified time and place. These processes may be directed
against an accused, witness, or any other person whose attendance is
required for the purposes of inquiry, trial, or other judicial proceedings.
Such processes operate on a graded principle, beginning with the least
coercive method such as summons, and progressing to more coercive
measures like warrants of arrest, proclamation, attachment of property,
bonds, and arrest for breach of bond, depending on the conduct of the
person concerned.

Scope of chapter VI (sections 63–93 BNSS)

The scope of Chapter VI of the BNSS is broad and procedural, covering

the entire spectrum of methods available to compel appearance before the
court. It includes:

 Form, issuance, and service of summons, including electronic modes

of service;

 Service of summons on special categories, such as corporate bodies,

firms, societies, government servants, and witnesses;

 Proof and presumption of due service, including service outside

local jurisdiction;

 Issue, execution, and duration of warrants of arrest, including

warrants with bail or security endorsements;

 Nationwide execution of warrants and inter-jurisdictional

cooperation;
  Proclamation and attachment of property in cases where a person
absconds or conceals himself;

 Claims, objections, release, and restoration of attached property; and

 Ancillary powers, such as issuing warrants in lieu of summons,

taking bonds for appearance, and arrest on breach of bond.

These provisions ensure a balanced approach, safeguarding individual

liberty while empowering courts to effectively enforce their authority and
ensure the administration of justice.

Processes to compel appearance – first half

1. Summons as the Primary and Least Coercive Process (Section 63)

The summons is the first and least coercive judicial process used to
compel a person to appear before the court. Under Section 63 BNSS, every
summons must be legally valid in form to bind the person summoned.

A summons:

Must be in writing and in duplicate,

Must be signed by the Presiding Officer or an authorised officer,
Must bear the seal of the Court.

In keeping with modern judicial administration, the BNSS also recognises:

Electronic or encrypted summons, and

Summons bearing the digital signature or image of the court seal.

This ensures both authenticity and technological efficiency, making

summons the foundational step in compelling appearance.

2. Modes of Service of Summons and Maintenance of Records (Section

64)

Section 64 prescribes how summons are to be served and ensures

traceability of service.

Key aspects include:

Service by police officer, court officer, or authorised public servant.

Mandatory maintenance of a register containing address, email, phone
number, etc.
Personal service is preferred by delivering one duplicate to the person
summoned.
Electronic service is legally recognised where summons bears the court’s
seal or digital signature.
The person served may be required to sign an acknowledgement, which
acts as proof of service.
This section ensures that service of summons is fair, verifiable, and legally
provable.
3. Service on Special Entities and Substitute Service (Sections 65 & 66)

BNSS provides special procedures where ordinary personal service is

impractical.
Service on Companies, Firms & Societies (Section 65)
Service may be made on Director, Manager, Secretary, or responsible
officer.
Alternatively, summons may be sent by registered post, deemed served in
ordinary course.
For firms/associations, service on any partner is sufficient.

Service When Person Cannot Be Found (Section 66)

If due diligence fails, summons may be left with an adult family member
residing with the person.
A servant is excluded from the definition of family.
These provisions prevent evasion of summons through technical excuses.

4. Substituted Service, Government Servants, and Extra-Territorial

Service

(Sections 67–69)

Substituted Service by Affixation (Section 67)

If service under Sections 64–66 fails:

Summons may be affixed on a conspicuous part of the house.

The court may declare summons duly served after inquiry or order fresh
service.

Service on Government Servants (Section 68)

Summons is routed through the head of the office.

His endorsement is conclusive evidence of service.

Service Outside Local Jurisdiction (Section 69)

Summons is sent to a Magistrate within whose jurisdiction the person

resides.
These provisions ensure administrative cooperation and nationwide
enforceability.

5. Proof of Service and Special Provision for Witnesses (Sections 70 &

71)
Proof of Service (Section 70)

An affidavit of service and endorsed duplicate summons are admissible

evidence.
Statements are presumed correct unless disproved.
Electronic service is deemed valid and recorded as proof.
Service of Summons on Witnesses (Section 71)

Courts may simultaneously serve summons by:

Electronic communication, and/or

Registered post.
Refusal or proof of delivery allows court to deem service complete.
This ensures efficient attendance of witnesses without unnecessary
coercion.

6. Warrant of Arrest: Form, Duration, Execution & Safeguards

(Sections 72–79)

When summons is ineffective or insufficient, the court may resort to a

warrant of arrest, a more coercive process.

Key features:

Warrant must be in writing, signed, and sealed (Section 72).

It remains in force until executed or cancelled.

Warrants are ordinarily directed to police officers, but may be executed by

endorsed officers (Sections 74 & 76).
The executing officer must:

Notify the substance of the warrant, and

Show it if demanded (Section 77).

The arrested person must be produced without unnecessary delay, not

exceeding 24 hours excluding travel time (Section 78).

Warrants may be executed anywhere in India (Section 79).

This ensures judicial authority is enforced, while protecting the

constitutional rights of the arrested person.

7. Warrant with Security or Bail Bond Endorsement (Section 73)

Section 73 introduces a balanced approach between compulsion and

liberty. When issuing a warrant, the Court may endorse that the arrested
person be released upon furnishing security or bail bond.

Key features:

Court may direct release if the person executes a bail bond with sufficient
sureties.
The endorsement must specify:

Number of sureties,
Amount of bond,
Time and place of appearance.
The executing officer must forward the bond to the Court.
This provision ensures attendance without unnecessary detention,
reflecting the principle of least coercion.

8. Persons to Whom Warrants May Be Directed (Sections 74–76)

Ordinary Direction (Section 74)

Warrants are ordinarily directed to one or more police officers.

In urgent situations, where police are unavailable, the Court may direct the
warrant to any other person, who is legally bound to execute it.

Warrants to Any Person (Section 75)

The Chief Judicial Magistrate or Magistrate of the First Class may direct a
warrant to any person within jurisdiction for arrest of:

Escaped convicts,
Proclaimed offenders,
Accused of non-bailable offences evading arrest.
Execution by Endorsed Police Officers (Section 76)

A warrant may be executed by any police officer whose name is endorsed.

These provisions ensure flexibility and effectiveness in execution of
warrants.

9. Nationwide Execution and Inter-Jurisdictional Procedure (Sections

79–83)

Nationwide Execution (Section 79)

A warrant may be executed anywhere in India, giving it pan-India

enforceability.

Execution Outside Jurisdiction (Sections 80–82)

Warrant may be forwarded to:

Executive Magistrate,
District Superintendent of Police,
Commissioner of Police.

Endorsement by local authority validates execution.

In urgent cases, police may execute without endorsement.

Post-Arrest Procedure (Section 83)

Arrested person is produced before the nearest Magistrate.

Bail may be granted where offence is bailable or endorsement under

Section 73 exists.
This framework ensures inter-state cooperation and procedural legality.

10. Proclamation Against Absconding Persons (Section 84)

When a person absconds or conceals himself to avoid execution of a

warrant, the Court may issue a proclamation.

Key aspects:

Requires appearance at a specified place and time (minimum 30 days).

Proclamation must be:

Publicly read,
Affixed to residence and court house,
Optionally published in a newspaper.

For serious offences (10+ years / life / death), failure to appear may result
in declaration as a proclaimed offender.

Proclamation is a formal public warning compelling appearance.

11. Attachment of Property of Absconding Person (Sections 85–89)
Attachment (Section 85)

Court may order attachment of movable or immovable property.

Attachment may be simultaneous with proclamation if there is risk of
disposal.

Modes include:

Seizure,
Appointment of receiver,
Prohibitory orders,
Sale of perishable property.

Claims and Objections (Section 87)

Third parties may file claims within six months.

Civil suit may be filed within one year if claim is rejected.

Release and Restoration (Sections 88–89)

If the person appears, property is released.

Restoration possible within two years if absence was not intentional.
Appeal lies against refusal.
This acts as a financial compulsion to secure appearance.

12. Ancillary and Residual Powers to Secure Appearance (Sections 90–

93)

Warrant in Lieu of or in Addition to Summons (Section 90)

Court may issue a warrant instead of summons if:

Person has absconded,

Person is likely to disobey summons,
Person fails to appear despite due service.

Bond or Bail Bond for Appearance (Section 91)

Court may require execution of bond for future appearance when person is
present.

Arrest for Breach of Bond (Section 92)

Failure to appear after executing bond authorises arrest through warrant.

General Applicability Clause (Section 93)

All provisions relating to summons and warrants apply to every process

under BNSS.
These provisions ensure continuous judicial control over attendance.
Landmark case laws on processes to compel appearance

1. Inder Mohan Goswami v. State of Uttaranchal

📌 (2007) 12 SCC 1

Facts

The Magistrate issued non-bailable warrants against the accused at an

early stage without exhausting the remedy of summons.

Issue

Whether courts can directly issue warrants of arrest without first issuing
summons.

Held / Ratio

The Supreme Court held that summons must ordinarily be the first step,
and warrants—especially non-bailable warrants—should be issued only as
a last resort.

Key Principles Laid Down

Personal liberty under Article 21 must be respected.

Courts must follow the principle of least coercion.

Mechanical issuance of warrants is impermissible.

Relevance under BNSS

Supports:

Summons as primary process (Secs. 63–71)

Warrant in lieu of summons only with reasons (Sec. 90)

2. Raghuvansh Dewanchand Bhasin v. State of Maharashtra

📌 (2012) 9 SCC 791

Facts

Non-bailable warrants were issued against the accused without adequate

justification.

Issue
Whether indiscriminate issuance of non-bailable warrants is legally
sustainable.

Held / Ratio

The Court held that non-bailable warrants seriously curtail liberty and
must be issued sparingly, cautiously, and with recorded reasons.

Key Principles Laid Down

Warrants are coercive processes, not routine tools.

Courts must examine whether summons or bailable warrants would

suffice.

Issuance without reasons violates fairness.

Relevance under BNSS

Applies to:

Form and issuance of warrants (Secs. 72–73)

Judicial discretion in compelling appearance

3. State through CBI v. Dawood Ibrahim Kaskar

📌 (2000) 10 SCC 438

Facts

A proclamation was issued against the accused without proper procedural

compliance.

Issue

Whether proclamation can be issued without first issuing and executing a

warrant.

Held / Ratio

The Supreme Court held that proclamation is valid only after a warrant has
been issued and remains unexecuted due to absconding or concealment.

Key Principles Laid Down

Proclamation is a serious coercive step.

It presupposes deliberate evasion of law.

Procedural sequence must be strictly followed.

Relevance under BNSS

Direct authority for:

Proclamation against absconders (Sec. 84)

Escalation from warrant → proclamation

4. Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel

📌 (2008) 4 SCC 649

Facts

Property was attached during criminal proceedings affecting third-party

rights.

Issue

Whether attachment of property can be ordered mechanically and without

safeguards.

Held / Ratio
The Supreme Court held that attachment of property is a drastic measure
and must strictly comply with statutory provisions and protect third-party
interests.

Key Principles Laid Down

Attachment affects constitutional right to property.

Reasons must be recorded.

Claims and objections must be fairly adjudicated.

Relevance under BNSS

Covers:

Attachment of property of absconding persons (Secs. 85–89)

Claims, objections, restoration

5. Madhu Limaye v. Sub-Divisional Magistrate

📌 (1970) 3 SCC 746

Facts
Preventive and procedural powers were challenged as being punitive in
nature.

Issue

Whether procedural powers compelling appearance amount to punishment.

Held / Ratio

The Court held that processes to compel appearance are procedural

safeguards, not punitive measures.

Key Principles Laid Down

Purpose is to secure attendance, not to punish.

Judicial discretion must be exercised judiciously.

Coercive powers must be proportional.

Relevance under BNSS

Applies generally to:

Summons, warrants, proclamation, bonds

The nature and object of Chapter VI

Conclusion

The processes to compel a person to appear before the court under Chapter
VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide a structured
and graded mechanism to secure attendance in criminal proceedings.
Beginning with the least coercive method of summons, the law
progressively empowers courts to issue warrants of arrest, followed by
proclamation and attachment of property in cases of absconding or
deliberate evasion. Ancillary measures such as bonds for appearance and
arrest for breach of bond further strengthen judicial control.

Judicial pronouncements have consistently emphasised that these

processes are procedural and not punitive, and must be exercised with
caution, proportionality, and due regard to personal liberty under Article
21. By balancing the authority of the court with safeguards against
arbitrary coercion, the BNSS ensures the effective administration of
criminal justice while protecting individual rights.

Q. Note on Investigation
Introduction

Investigation is a crucial stage of the criminal justice process, bridging the

gap between the commission of an offence and the trial before a court. The
object of investigation is to discover the truth, collect evidence, identify
the offender, and place relevant materials before the court for adjudication.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS),

investigation is primarily governed by Chapter XIII – Information to the
Police and Their Powers to Investigate, which modernises and strengthens
the investigative framework while ensuring fairness, accountability, and
protection of individual rights.

Meaning of investigation

The term “investigation” refers to the lawful process conducted by the

police or authorised agencies for the purpose of:

Ascertaining facts and circumstances of the case,

Discovering and collecting evidence,
Identifying the offender,
Securing witnesses and material objects, and
Forming an opinion as to whether the accused should be sent for trial.

Investigation begins after the registration of FIR in cognizable offences

and continues until the submission of the police report (charge-sheet or
final report) before the Magistrate.
Scope of investigation under bnss

The scope of investigation under BNSS is wide and comprehensive,

covering:

Commencement of investigation on receipt of information of cognizable

offences;
Preliminary enquiry in specified cases;
Police powers to examine persons, search and seize property, and collect
evidence;
Use of technology, including electronic communication and videography;
Safeguards for victims, especially women and vulnerable persons;
Supervision by senior police officers and Magistrates; and
Conclusion of investigation by submission of a police report to the court.
Thus, investigation under BNSS balances effective law enforcement with
procedural safeguards and constitutional values.

Stages and process of investigation under BNSS

1. Commencement of Investigation

Investigation ordinarily commences after registration of FIR under Section

173 BNSS in cognizable offences.
For certain offences punishable with 3–7 years imprisonment, the police
may conduct a preliminary enquiry with prior approval of a senior officer
to determine whether a prima facie case exists.
2. Investigation in Cognizable and Non-Cognizable Cases

Cognizable offences: Police may investigate without prior court

permission.
Non-cognizable offences: Investigation can be conducted only with the
order of a Magistrate.
This distinction prevents misuse of police powers in minor offences.

3. Examination of Persons and Recording of Statements

During investigation, police may:

Examine persons acquainted with the facts of the case,
Record their statements in writing, and
Ensure special procedures for women, children, and vulnerable persons,
including recording statements by women officers and videography where
required.
Statements recorded during investigation are not substantive evidence, but
may be used for corroboration or contradiction during trial.

4. Search, Seizure and Collection of Evidence

The investigating officer is empowered to:

Conduct searches of places connected with the offence,

Seize material objects, documents, and electronic evidence, and
Maintain proper records and seizure memos to ensure transparency.
The BNSS emphasises procedural compliance and documentation to
preserve evidentiary value.

5. Arrest During Investigation

Arrest is not mandatory in every case.

The investigating officer must exercise discretion, guided by necessity,
gravity of offence, and likelihood of absconding or tampering with
evidence.
The BNSS reinforces safeguards against arbitrary arrest, in line with
constitutional protections.

6. Supervision of Investigation

Senior police officers have supervisory control over investigations.

Magistrates may monitor investigation indirectly through remand
proceedings and compliance with statutory duties.
This ensures checks and balances over police action.

7. Completion of Investigation and Police Report

After completing investigation, the police submit a final report to the

Magistrate, which may be:
Charge-sheet (where evidence is sufficient), or
Final report/closure report (where evidence is insufficient).
The Magistrate may:

Take cognizance,
Order further investigation, or
Disagree with the police report and proceed as per law.

Nature and object of investigation

Investigation is purely executive in nature, not judicial.

Courts do not interfere with investigation unless there is illegality, mala
fide action, or abuse of power.
The primary object is discovery of truth, not securing conviction at all
costs.

Conclusion

Investigation under the Bharatiya Nagarik Suraksha Sanhita, 2023 forms

the foundation of the criminal justice system. By clearly defining the
powers and duties of the police, introducing safeguards such as
preliminary enquiry, victim-centric procedures, and judicial oversight, the
BNSS seeks to ensure that investigation is fair, transparent, and effective.
A lawful and impartial investigation not only protects the rights of the
accused and victims but also strengthens public confidence in the rule of
law and administration of criminal justice.
Q. Explain the procedure to be followed for the trial of warrant cases
by magistrate.

Introduction

Warrant cases relate to serious criminal offences involving grave

consequences such as long-term imprisonment, life imprisonment, or
death. Owing to their seriousness, the criminal justice system prescribes a
detailed and structured procedure to ensure that the accused is tried fairly
and that justice is administered in accordance with law.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the

procedure for the trial of warrant cases by Magistrates is governed by
Chapter XX (Sections 261–273). This Chapter lays down a step-by-step
judicial framework beginning from the appearance of the accused to the
final order of acquittal or conviction, ensuring adherence to the principles
of natural justice, due process, and fair trial.

Meaning of warrant case

A warrant case is a criminal case relating to an offence that is punishable

with death, imprisonment for life, or imprisonment for a term exceeding
two years and is triable by a Magistrate.

Unlike summons cases, warrant cases involve:

Formal framing of charges,

Opportunity for discharge, and

Detailed recording of prosecution and defence evidence.

Because of the gravity of the offences involved, the procedure in warrant

cases is more elaborate and rigorous, safeguarding the rights of the
accused while ensuring effective prosecution.

Scope of the procedure under chapter XX BNSS

The scope of Chapter XX of the BNSS is comprehensive and inclusive,

covering the entire lifecycle of a warrant case trial before a Magistrate. It
includes:

Two distinct modes of trial:

Cases instituted on a police report, and

Cases instituted otherwise than on a police report (complaint cases).
Judicial scrutiny at preliminary stages, including:
Verification of supply of documents,
Consideration of discharge applications.
Framing of formal charges and recording of the accused’s plea.
Detailed evidence stages, providing:
Full opportunity to the prosecution to prove its case, and
Adequate opportunity to the accused to present defence evidence.
Conclusion of trial, including:

Acquittal or conviction,
Sentencing after hearing the accused,
Award of compensation in cases of false or groundless accusation.

Thus, the scope of the procedure ensures a balanced approach, protecting

individual liberty while enabling the Magistrate to conduct an effective,
just, and lawful trial of serious offences.

Procedure for trial of warrant cases by magistrate

1. Compliance with Supply of Documents to the Accused (Section 261)

When the accused appears or is brought before the Magistrate at the

commencement of a warrant case instituted on a police report, the
Magistrate must first satisfy himself that the requirements of Section 230
BNSS have been complied with.

This includes ensuring that the accused has been supplied with:

A copy of the police report (charge-sheet),

Statements of prosecution witnesses recorded during investigation,
Confessions and statements, if any,
All documents and materials relied upon by the prosecution.
The purpose of this provision is to uphold the right to fair trial by enabling
the accused to understand the case against him and prepare an effective
defence. Non-compliance with this requirement vitiates the trial.

2. Discharge of the Accused (Section 262)

Section 262 empowers the Magistrate to discharge the accused at a

preliminary stage if the charge appears to be groundless.

Key features of discharge:

The accused may file an application for discharge within 60 days from the
date of supply of documents under Section 230.

The Magistrate shall consider:

The police report and accompanying documents (Section 193),

Examination of the accused, either physically or through audio-video
electronic means, if necessary,
Submissions of both the prosecution and the accused.

If the Magistrate finds that:

The allegations do not disclose any offence, or

There is no sufficient ground to proceed,
he shall discharge the accused and record reasons in writing.
This provision acts as an important filter against frivolous or baseless
prosecutions.

3. Framing of Charge (Section 263)

If the Magistrate, after considering the materials and hearing both sides, is
of the opinion that:

There is ground for presuming that the accused has committed an offence,
The offence is triable by him, and
The offence can be adequately punished by him,
he shall frame a formal charge in writing.

Important aspects:

The charge must be framed within 60 days from the date of first hearing on
charge.

The charge must clearly state:

The offence alleged,

The relevant legal provisions.

Once framed:
The charge is read and explained to the accused, and
The accused is asked whether he pleads guilty or claims to be tried.
Framing of charge marks the formal commencement of the trial.

4. Conviction on Plea of Guilty (Section 264)

If the accused pleads guilty to the charge:

The Magistrate shall record the plea, and

May, in his discretion, convict the accused on such plea.

However:

The Magistrate is not bound to convict merely because a guilty plea is

made.
He must ensure that the plea is voluntary, unambiguous, and informed.

This provision enables speedy disposal of cases where guilt is admitted,

while preserving judicial discretion.

5. Evidence for the Prosecution (Section 265)

If the accused:

Does not plead guilty,

Refuses to plead, or
Claims to be tried,
or if the Magistrate does not convict under Section 264, the trial proceeds
to the prosecution evidence stage.

Procedure:

The Magistrate fixes a date for examination of prosecution witnesses.

Statements of witnesses recorded during investigation must be supplied in
advance to the accused.

On the fixed date:

Prosecution witnesses are examined,

Accused is given the right to cross-examine them.

Special features:

The Magistrate may defer cross-examination or recall witnesses.

Witness examination may be conducted through audio-video electronic
means at notified locations.
This stage allows the prosecution to prove its case beyond reasonable
doubt.

6. Evidence for the Defence (Section 266)

After the prosecution evidence is closed, the accused is called upon to
enter his defence.

Key provisions:

The accused may:

Adduce oral or documentary evidence,

Submit a written statement, which becomes part of the record.
If the accused applies for summoning defence witnesses or documents:
The Magistrate shall ordinarily issue such process,
Unless the application is found to be vexatious, intended to delay
proceedings, or defeat justice.
Reasons for refusal must be recorded in writing.

Additional safeguards:

Defence witnesses may also be examined through audio-video electronic

means.
The Magistrate may require the accused to deposit reasonable expenses of
witnesses.
This stage ensures the accused’s right to a full and fair defence.

Trial of warrant cases by magistrate

(SECOND HALF – SECTIONS 267–273 BNSS,

Section 267 – Evidence for Prosecution (Complaint Cases)

Section 267 applies where a warrant case is instituted otherwise than on a

police report, i.e., on a private complaint.

Procedure

When the accused appears or is brought before the Magistrate, the court
shall:

Proceed to hear the prosecution, and

Record all evidence produced in support of the prosecution before framing
the charge.

Powers of the Magistrate

On the application of the prosecution, the Magistrate may:

Issue summons to prosecution witnesses,

Direct production of documents or other material objects.

Significance

Unlike police-report cases, evidence is taken prior to framing of charge.

This allows the Magistrate to judicially assess the strength of the
complaint before compelling the accused to face a formal trial.

Section 268 – Discharge of the Accused

Section 268 empowers the Magistrate to discharge the accused in

complaint-based warrant cases.

Grounds for Discharge

After taking all prosecution evidence under Section 267, if the Magistrate
finds that:
No case is made out which, if unrebutted, would warrant conviction,
he shall discharge the accused.

Early Discharge

The Magistrate may discharge the accused at any previous stage if the
charge is found to be groundless, provided reasons are recorded.

Importance

Prevents harassment of accused in false or weak complaint cases.

Acts as a safeguard against misuse of criminal law for private vengeance.

Section 269 – Procedure Where Accused Is Not Discharged

Where the Magistrate finds sufficient grounds to proceed, Section 269
prescribes the next steps.

Framing of Charge

If there is ground for presuming the accused has committed an offence

triable by the Magistrate:

A written charge is framed.

The charge is:

Read and explained to the accused,

The accused is asked whether he pleads guilty or claims trial.

Plea and Trial

If the accused pleads guilty, the Magistrate may convict.

If the accused claims trial:

He is asked which prosecution witnesses he wishes to cross-examine.

Such witnesses are recalled for cross-examination and re-examination.

Non-availability of Witnesses
If prosecution witnesses cannot be secured despite reasonable efforts:

The Magistrate may close prosecution evidence,

Proceed based on available material,
Reasons must be recorded in writing.

Significance

This provision balances:

The accused’s right to cross-examination, and

The need to prevent indefinite delay of proceedings.

Section 270 – Evidence for Defence

After completion of prosecution evidence under Section 269, the accused

is called upon to enter his defence.

Application of Section 266

The provisions of Section 266 apply mutatis mutandis:

Accused may produce oral and documentary evidence,

Apply for summoning defence witnesses,
Witnesses may be examined via audio-video electronic means.

Purpose

Ensures parity between prosecution and defence,

Upholds the accused’s right to a fair opportunity of defence.

Section 271 – Acquittal or Conviction

Section 271 deals with the final decision of the trial.

Acquittal

If the Magistrate finds the accused not guilty, an order of acquittal shall be
recorded.

Conviction and Sentence

If the accused is found guilty:

The Magistrate hears the accused on the question of sentence,

Passes sentence according to law.

Previous Conviction
If a previous conviction is alleged:

Evidence of such conviction is taken only after current conviction,

The previous conviction is not disclosed earlier to avoid prejudice.

Section 272 – Absence of Complainant

Section 272 applies to warrant cases instituted upon complaint.

Provision

If on the date of hearing the complainant is absent:

The Magistrate may grant 30 days’ time for appearance.

If the complainant still fails to appear:

The Magistrate may discharge the accused, before framing of charge.

Objective

Prevents continuation of proceedings where the complainant is not

interested in prosecution.
Protects accused from unnecessary harassment.

Section 273 – Compensation for Accusation Without Reasonable

Cause

Section 273 provides a deterrent against false or frivolous accusations.

Power of Magistrate

If the Magistrate discharges or acquits the accused and finds:

No reasonable ground for the accusation,

he may order the complainant or informant to pay compensation.

Safeguards

Opportunity to show cause must be given.

Compensation is limited to the amount of fine the Magistrate can impose.

Default in payment may result in simple imprisonment up to 30 days.

Appeal

Appeal lies where compensation exceeds prescribed limits.

Applicability

Applies to both summons cases and warrant cases.

LANDMARK CASE LAWS ON TRIAL OF WARRANT CASES BY

MAGISTRATE
1. Union of India v. Prafulla Kumar Samal

📌 (1979) 3 SCC 4

Facts

At the stage of framing charge, the accused sought discharge contending

that the materials on record were insufficient.

Issue

What is the scope of the Magistrate’s power while considering discharge

and framing of charge?

Held / Ratio

The Supreme Court held that at the stage of discharge or framing of

charge, the court is not required to conduct a detailed evaluation of
evidence. The test is whether there exists a prima facie case or ground for
presuming that the accused has committed the offence.

Principles Laid Down

Court may sift evidence only to a limited extent.

If two views are possible and one gives rise to grave suspicion, charge
must be framed.

Discharge is justified only when the charge is groundless.

Relevance under BNSS

Directly applies to:

Section 262 (Discharge)

Section 263 (Framing of Charge)

2. State of Bihar v. Ramesh Singh

📌 (1977) 4 SCC 39

Facts
The Magistrate discharged the accused at a preliminary stage despite
existence of material indicating involvement.

Issue

What degree of satisfaction is required for framing a charge in warrant

cases?

Held / Ratio

The Court held that strong suspicion founded on materials is sufficient for
framing a charge. Proof beyond reasonable doubt is not required at this
stage.

Principles Laid Down

Framing of charge is not a mini-trial.

The court should not weigh evidence meticulously.

Benefit of doubt applies only at the final stage of trial.

Relevance under BNSS

Applicable to:
Section 263 (Framing of Charge)

Section 269 (Procedure where accused is not discharged)

3. Kanti Bhadra Shah v. State of West Bengal

📌 (2000) 1 SCC 722

Facts

The accused challenged framing of charge on the ground that the

Magistrate did not record detailed reasons.

Issue

Is the Magistrate required to give detailed reasons while framing a charge?

Held / Ratio

The Supreme Court held that recording detailed reasons is not mandatory
while framing a charge. Reasons are required mainly at the stage of
discharge.

Principles Laid Down

Framing charge is a preliminary step.

Excessive reasoning may prejudice trial.

Judicial application of mind is sufficient.

Relevance under BNSS

Applies to:

Section 263 (Framing of Charge)

Distinction between discharge and framing of charge

4. Dilawar Balu Kurane v. State of Maharashtra

📌 (2002) 2 SCC 135

Facts

The accused contended that the Magistrate wrongly framed charges

without sufficient material.

Issue

What is the scope of judicial scrutiny at the stage of framing charge?

Held / Ratio

The Court held that the Magistrate must examine whether the material on
record, if unrebutted, would warrant conviction. However, detailed
appreciation of evidence is impermissible.

Principles Laid Down

Court may evaluate materials to see whether accusations are plausible.

Defence material cannot be considered at this stage.

Charge must be framed if suspicion is strong.

Relevance under BNSS

Relevant to:

Section 263 (Framing of Charge)

Section 268 (Discharge in complaint cases)

5. Rattiram v. State of Madhya Pradesh

📌 (2012) 4 SCC 516

Facts

The accused challenged conviction alleging procedural irregularities

during trial.

Issue

Whether procedural defects in warrant trials automatically vitiate the

proceedings?

Held / Ratio

The Supreme Court held that procedural irregularities do not vitiate the
trial unless prejudice is caused to the accused.

Principles Laid Down

Procedural law is meant to advance justice.

Courts must assess prejudice test.

Hyper-technical approach should be avoided.

Relevance under BNSS

Applies to:

Entire Chapter XX procedure

Sections 261–273, especially compliance-related provisions

6. Bhagwant Singh v. Commissioner of Police

📌 (1985) 2 SCC 537

Facts

The Magistrate accepted a police report without giving the complainant an

opportunity of hearing.

Issue

Whether the Magistrate must apply judicial mind at post-investigation

stages.

Held / Ratio

The Court held that the Magistrate must apply judicial mind and ensure
fairness before proceeding.

Principles Laid Down

Magistrate is not a mere post office.

Judicial discretion must be exercised at every stage.

Fairness to both accused and complainant is essential.

Relevance under BNSS

Supports:

Judicial scrutiny before framing charge

Sections 261–263 and 267–269

Conclusion

The procedure for trial of warrant cases by a Magistrate under Chapter XX

of the BNSS, 2023 provides a systematic and fair framework for trying
serious offences. It ensures due process through safeguards like supply of
documents, discharge of groundless cases, proper framing of charges, and
full opportunity to both prosecution and defence to present evidence. By
balancing judicial discretion, protection of accused’s rights, and effective
prosecution, the BNSS upholds the principles of natural justice and fair
trial in warrant case proceedings.
Q. Complaint
Introduction

A complaint is one of the primary modes through which the criminal

justice process is set in motion, especially in cases where the offence is not
investigated by the police at the initial stage. The Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) recognises the right of an individual to
approach a Magistrate directly for redressal of a criminal wrong.

Chapter XVI of the BNSS lays down a systematic and judicially controlled
procedure to be followed by a Magistrate upon receiving a complaint. The
object of this procedure is to filter frivolous or vexatious complaints,
protect innocent persons from unnecessary prosecution, and at the same
time ensure that genuine grievances are duly examined and proceeded with
in accordance with law.

Meaning

definition 2 (h) “complaint” means any allegation made orally or in

writing to a Magistrate, with a view to his
taking action under this Sanhita, that some person, whether known or
unknown, has committed an
offence, but does not include a police report.

A complaint means an allegation made orally or in writing to a Magistrate,

with a view to his taking action under the BNSS, that some person has
committed an offence, but does not include a police report.

Thus, a complaint:
Is made directly to a Magistrate,
May be oral or written,
Contains an allegation of an offence, and
Is distinct from cases initiated through police investigation.

Essentials of a valid complaint

The essential requirements of a valid complaint are as follows:

Allegation of an Offence
The complaint must disclose facts constituting the commission of an
offence under law. Mere suspicion or vague assertions are insufficient.

Made to a Magistrate
A complaint must be presented to a Magistrate having jurisdiction. A
complaint made to the police does not fall within this definition.

Oral or Written Form

A complaint may be made either orally or in writing, provided it conveys
the necessary allegations clearly.

Intention to Set Criminal Law in Motion

The complaint must be made with the intention that the Magistrate takes
cognizance of the offence and proceeds under the BNSS.
Exclusion of Police Report
A complaint must not be a police report. Once a police report is submitted,
the case ceases to be a complaint case.

Disclosure of Prima Facie Case

The facts stated must, on the face of it, disclose a prima facie offence
warranting judicial examination.

Complaint – procedure to be followed on receiving a complaint

(Sections 223–226, Bharatiya Nagarik Suraksha Sanhita, 2023)**

SECTION 223 – EXAMINATION OF COMPLAINANT AND

WITNESSES

Section 223 represents the first judicial safeguard after a Magistrate takes
cognizance of an offence on a complaint.

1. Mandatory Examination on Oath

Once cognizance is taken, the Magistrate must examine on oath:

The complainant, and

All witnesses present, if any.

The examination:
Is not a mere formality,
Is conducted personally by the Magistrate,
Aims at testing the truthfulness, consistency, and credibility of the
allegations.

2. Recording of Examination

The law mandates that:

The substance of the examination shall be:

Reduced to writing,
Signed by the complainant and witnesses,
Signed by the Magistrate.

This written record:

Becomes part of judicial proceedings,

Can be relied upon at later stages,
Prevents false improvements at trial.

3. Object and Legal Significance

The examination under Section 223 serves multiple purposes:

Filters false, vexatious, and frivolous complaints,
Prevents harassment of innocent persons,
Ensures that the Magistrate applies judicial mind at the threshold,
Acts as a safeguard against misuse of criminal law.
It is not a trial, but a preliminary judicial scrutiny.

4. Exceptions to Mandatory Examination

The Magistrate need not examine the complainant and witnesses where:

(a) Complaint by Public Servant

When a public servant, acting or purporting to act in discharge of official

duties, files the complaint.

(b) Complaint by a Court

When the complaint is made by a Court itself.

(c) Transfer under Section 212

When the Magistrate transfers the case to another Magistrate.

If examination is already done before transfer, the transferee Magistrate

need not re-examine them.
These exceptions are based on the presumption of official responsibility
and reliability.

5. Special Protection for Public Servants (Section 223(2))

Where a complaint is filed against a public servant for acts allegedly

committed during official duty:

The Magistrate cannot take cognizance unless:

The public servant is given an opportunity to explain the circumstances
leading to the incident; and

A report from the superior officer of such public servant is received.

Rationale:

Prevents vexatious complaints against officials,

Protects administrative functioning,
Ensures accountability without fear.

SECTION 224 – PROCEDURE WHEN MAGISTRATE IS NOT

COMPETENT

Section 224 addresses jurisdictional correctness.

1. When Magistrate Lacks Jurisdiction

If a complaint is filed before a Magistrate:

Who lacks territorial jurisdiction, or

Who lacks subject-matter competence,
the Magistrate cannot take cognizance.

2. Procedure Prescribed
Written Complaint

The Magistrate shall:

Return the complaint,

Endorse it for presentation before the proper court.
Oral Complaint

The Magistrate shall:

Direct the complainant to approach the proper Magistrate.

3. Legal Importance

Prevents dismissal on technical grounds,

Ensures access to justice,
Maintains procedural discipline,
Avoids jurisdictional abuse.
The Magistrate acts as a facilitator of justice, not a barrier.

SECTION 225 – POSTPONEMENT OF ISSUE OF PROCESS

Section 225 is one of the most crucial safeguards in complaint procedure.

1. Power to Postpone Process

After examination under Section 223, the Magistrate may:

Postpone issuance of process (summons/warrant) against the accused.

This postponement is:

Discretionary in ordinary cases,

Mandatory where the accused resides outside the Magistrate’s jurisdiction.

2. Purpose of Postponement

To avoid unnecessary summoning,

To prevent harassment through criminal process,

To determine whether there is sufficient ground for proceeding.
3. Modes of Inquiry

The Magistrate may adopt either of the following:

(a) Magistrate’s Own Inquiry

Personally examine witnesses,

Evaluate materials judicially.

(b) Direction for Investigation

By a police officer, or
By any other suitable person.

4. Restrictions on Ordering Investigation

The Magistrate shall not direct investigation:

If the offence is exclusively triable by the Court of Session, or

If the complaint is not by a Court unless examination under Section 223 is
completed.

This ensures judicial control over serious offences.

5. Inquiry in Sessions-Triable Offences

Where the offence is exclusively triable by Sessions Court:

The Magistrate must:

Call upon the complainant to produce all witnesses, and

Examine them on oath.
This prevents weak cases from being mechanically committed.

6. Powers of Non-Police Investigator

A person other than a police officer conducting investigation:

Has all investigative powers,

Except the power to arrest without warrant.
This balances investigation efficiency with liberty.

SECTION 226 – DISMISSAL OF COMPLAINT

Section 226 empowers the Magistrate to terminate proceedings at the

threshold.

1. Stage of Dismissal
After considering:

Statements under Section 223, and

Results of inquiry or investigation under Section 225,
the Magistrate evaluates whether sufficient ground for proceeding exists.

2. Grounds for Dismissal

If:

Allegations are inherently improbable,

Evidence does not disclose an offence,
Complaint is mala fide or vexatious,
the Magistrate shall dismiss the complaint.

3. Mandatory Recording of Reasons

The Magistrate must:

Briefly record reasons for dismissal.

This:

Ensures transparency,
Enables appellate or revisional scrutiny,
Reflects application of judicial mind.

4. Nature of Order

Dismissal under Section 226 is a judicial order,

It does not bar filing of a fresh complaint on new facts,
Protects accused from unnecessary criminal proceedings.

LANDMARK CASE LAWS ON COMPLAINT PROCEDURE

1. Chandra Deo Singh v. Prakash Chandra Bose

📌 (1963) 1 SCR 573

Facts

A private complaint was filed, and the Magistrate dismissed it at the

preliminary stage without properly appreciating the complainant’s
evidence.

Issue

What is the scope of the Magistrate’s inquiry at the stage of examining the
complainant and deciding whether to proceed?

Held / Ratio
The Supreme Court held that at the stage of examining the complainant
(now Section 223 BNSS), the Magistrate’s duty is only to see whether a
prima facie case exists, not to weigh evidence as if conducting a trial.

Principles Laid Down

Inquiry under complaint procedure is preliminary, not adjudicatory.

Magistrate must not assess defence version at this stage.

If allegations disclose an offence, process should ordinarily be issued.

Relevance under BNSS

Applies to:

Section 223 (examination on oath)

Section 226 (dismissal of complaint)

2. Nirmaljit Singh Hoon v. State of West Bengal

📌 (1973) 3 SCC 753

Facts
The Magistrate dismissed a complaint without conducting proper inquiry
and without adequate reasoning.

Issue

Whether dismissal of a complaint without sufficient inquiry and reasons is

valid.

Held / Ratio

The Court held that dismissal of a complaint must be based on judicial

application of mind and supported by recorded reasons.

Principles Laid Down

Magistrate must consider:

Statements of complainant and witnesses,

Result of inquiry or investigation (if any).

Dismissal without reasons is illegal.

Relevance under BNSS

Directly applies to:

Section 226 BNSS (dismissal with recorded reasons)

3. Pepsi Foods Ltd. v. Special Judicial Magistrate

📌 (1998) 5 SCC 749

Facts

Criminal process was issued mechanically against company officials on

the basis of a complaint.

Issue

Whether summoning of an accused in a complaint case is a serious judicial

act.

Held / Ratio

The Supreme Court held that summoning an accused is a serious matter

and cannot be done mechanically. The Magistrate must carefully scrutinise
the complaint and material before issuing process.

Principles Laid Down

Criminal law cannot be used as a tool of harassment.

Magistrate must apply judicial mind at the complaint stage.

Issuance of process affects personal liberty (Article 21).

Relevance under BNSS

Supports:

Section 223 (judicial scrutiny)

Section 225 (postponement of process)

Section 226 (dismissal of frivolous complaints)

4. Mohd. Yousuf v. Afaq Jahan

📌 (2006) 1 SCC 627

Facts

The Magistrate directed investigation on a complaint without proper

application of mind.
Issue

What is the nature of inquiry/investigation ordered by a Magistrate in

complaint cases?

Held / Ratio

The Court held that ordering investigation under the complaint procedure
is meant to assist the Magistrate in deciding whether there is sufficient
ground for proceeding, and not for conducting a full-fledged investigation.

Principles Laid Down

Inquiry/investigation under complaint procedure is limited in scope.

Magistrate must retain control over the proceedings.

Investigation is only to help decide issuance of process.

Relevance under BNSS

Applies to:

Section 225 BNSS (postponement of process and inquiry/investigation)

5. Bhushan Kumar v. State (NCT of Delhi)

📌 (2012) 5 SCC 424

Facts

The accused challenged the issuance of summons on the ground that the
Magistrate did not pass a detailed order.

Issue

Whether a detailed speaking order is required at the stage of issuing

process in a complaint case.

Held / Ratio

The Supreme Court held that while a detailed order is not mandatory, there
must be clear indication of application of judicial mind before issuing
process.

Principles Laid Down

Issuance of process is a judicial act.

Satisfaction of Magistrate must be apparent from the record.

Mechanical issuance of summons is impermissible.

Relevance under BNSS

Relevant to:

Section 225 (decision to issue process)

Transition from inquiry stage to trial stage

6. Nagawwa v. Veeranna Shivalingappa Konjalgi

📌 (1976) 3 SCC 736

Facts

The accused challenged the maintainability of a complaint alleging abuse

of process.

Issue

When can a complaint be dismissed or quashed at the threshold?

Held / Ratio

The Court laid down illustrative categories where complaints can be

dismissed, such as:
Allegations do not disclose an offence,

Complaint is absurd or inherently improbable,

Magistrate has no jurisdiction,

Complaint is mala fide.

Principles Laid Down

Magistrate has a duty to prevent abuse of process.

Judicial discretion must be exercised at the complaint stage.

Conclusion

The procedure to be followed on receiving a complaint under Sections

223–226 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes a
carefully balanced judicial framework. By mandating examination of the
complainant on oath, empowering the Magistrate to conduct preliminary
inquiry or direct limited investigation, and authorising dismissal of
complaints lacking sufficient grounds with recorded reasons, the law
ensures that only genuine and prima facie cases proceed further. Judicial
precedents have consistently emphasised that these provisions function as
a filter against frivolous, vexatious, and malicious prosecutions, while
simultaneously preserving the complainant’s right of access to justice.
Thus, the complaint procedure under the BNSS upholds the principles of
natural justice, fair procedure, and protection of personal liberty,
reinforcing confidence in the criminal justice system.

Q. Note on rules relating to search and arrest.

Introduction

Search and arrest are essential procedural tools in the criminal justice
system, enabling law-enforcement agencies to investigate offences, secure
evidence, and ensure the presence of accused persons before the courts. At
the same time, these powers directly affect the personal liberty, privacy,
and dignity of individuals. Recognising the need to balance effective
policing with protection of fundamental rights, the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) lays down detailed rules regulating the
manner, conditions, and safeguards governing search and arrest. These
provisions ensure that such powers are exercised lawfully, reasonably, and
in conformity with constitutional principles, particularly Articles 21 and 22
of the Constitution of India.

Meaning

Arrest

Arrest means the lawful taking of a person into custody by a police officer
or other authorised authority, with the object of restraining personal liberty
in connection with the investigation or prosecution of an offence. Arrest is
a procedural step and not a punishment, intended to secure the accused’s
appearance before a competent court and to facilitate investigation.
Search

Search refers to the authorised examination of a person, place, premises,

vehicle, or property for the purpose of discovering evidence, seizing
incriminating articles, or preventing the concealment or destruction of
material relevant to an offence. Search is an intrusive power and is
therefore strictly regulated by statutory safeguards.

Scope

The scope of rules relating to search and arrest under the BNSS, 2023
includes:

Authority to Arrest and Search

Determines who may arrest or conduct a search and under what
circumstances.

Conditions and Grounds

Regulates when arrest or search may be made, ensuring the presence of
reasonable grounds and necessity.

Procedural Safeguards
Provides safeguards such as communication of grounds of arrest,
preparation of arrest and search memos, presence of independent
witnesses, and medical examination.

Rights of Individuals
Protects the rights of arrested persons, including the right to legal counsel,
information to relatives, and production before a Magistrate within
prescribed time.

Special Protections
Prescribes special rules for arrest and search of women, juveniles, and
public servants.

Judicial and Constitutional Oversight

Ensures compliance with Articles 21 and 22, preventing arbitrary exercise
of power and abuse of authority.

Rules relating to search and arrest

(With Reference to the Bharatiya Nagarik Suraksha Sanhita, 2023)**

I. RULES RELATING TO ARREST

1. Authority to Arrest

Under the BNSS, 2023, arrest may be effected by:

Police officers, with or without warrant, depending on the nature of

offence.
Magistrates, by issuing warrants of arrest.
Private persons, in limited circumstances such as arrest of a person
committing a cognizable and non-bailable offence in their presence or a
proclaimed offender.

Arrest must always be based on lawful authority and reasonable grounds.

2. Arrest Without Warrant (Cognizable Offences)

A police officer may arrest without warrant where:

The offence is cognizable,

There exists credible information or reasonable suspicion, and

Arrest is necessary for purposes such as:

Preventing further offence,

Ensuring proper investigation,
Preventing tampering of evidence,
Securing presence of accused before court.

The BNSS discourages routine and mechanical arrests.

3. Procedural Safeguards at the Time of Arrest

The BNSS mandates the following safeguards:

(a) Communication of Grounds of Arrest

The arrested person must be informed of the grounds of arrest and his right
to bail where applicable.

(b) Preparation of Arrest Memo

An arrest memo must be prepared indicating:

Time and place of arrest,

Name of arresting officer,
Attestation by a witness.

(c) Right to Inform Relative or Friend

The arrested person has the right to inform a friend, relative, or nominated
person about the arrest.

(d) Medical Examination

Mandatory medical examination to record any injuries.

4. Rights of Arrested Person

An arrested person is entitled to:

Right to consult a legal practitioner of choice,

Right to be produced before a Magistrate within 24 hours of arrest

(excluding journey time),
Protection against illegal detention and custodial torture.

5. Arrest of Women and Other Special Categories

Women should not be arrested at night, except in exceptional

circumstances.
Arrest of women should be made by or in presence of a woman police
officer.
Arrest of juveniles must follow juvenile justice laws.

II. RULES RELATING TO SEARCH

6. Authority to Conduct Search

Search may be conducted:

With a warrant issued by a Magistrate, specifying the place and object of

search.

Without a warrant, in exceptional circumstances where delay may defeat

the purpose of search, provided reasons are recorded.

7. Procedure for Conducting Search

The BNSS prescribes the following procedure:

(a) Presence of Independent Witnesses

Search must be conducted in the presence of two or more independent and

respectable persons of the locality.

(b) Preparation of Search Memo (Panchnama)

A detailed list of seized articles must be prepared.

Signed by witnesses and the searching officer.
A copy must be given to the person searched or occupier of premises.

(c) Decency and Transparency

Search must be conducted with decency, fairness, and minimal intrusion.

8. Search of Persons

A lawful search of the person may be conducted.

Search of women must be conducted only by another woman, with strict

regard to decency.
The person has the right to be searched in the presence of a Gazetted
Officer or Magistrate when so demanded.
9. Seizure of Property

Police may seize property:

Suspected to be stolen, or
Linked to the commission of an offence.

Seized property must be:

Properly documented,
Safely preserved,
Produced before the court as required.

10. Search and Seizure During Investigation

During investigation:

Police may conduct searches to collect evidence.

All searches and seizures must be:

Recorded in writing,
Reported to the Magistrate,
Subject to judicial scrutiny.
III. CONSTITUTIONAL SAFEGUARDS

The rules relating to search and arrest operate under:

Article 21 – Protection of life and personal liberty,

Article 22 – Protection against arbitrary arrest and detention.

Judicial oversight ensures that these powers are not abused.

Conclusion

The rules relating to search and arrest under the Bharatiya Nagarik
Suraksha Sanhita, 2023 provide a comprehensive statutory framework to
regulate police powers while safeguarding individual rights. By
prescribing strict procedures, mandatory safeguards, and judicial control,
the BNSS ensures that search and arrest serve the cause of justice without
compromising human dignity, liberty, and the rule of law.

Q. Discuss the procedure to be followed in the trial before court of

session.
Introduction

The trial before a Court of Session represents the highest level of criminal
trial at the district level, dealing with offences of a serious and grave
nature, often punishable with life imprisonment or death. Because such
trials involve severe consequences for the accused and significant interests
of society, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
prescribes a special, detailed, and safeguard-oriented procedure under
Chapter XIX. These provisions ensure that trials before the Sessions Court
are conducted with fairness, transparency, judicial scrutiny, and adherence
to constitutional guarantees, particularly the right to fair trial under Article
21 of the Constitution.

Meaning

A trial before a Court of Session refers to the judicial process by which a

Sessions Judge or an Additional Sessions Judge conducts the trial of
offences that are exclusively triable by a Court of Session or cases that are
committed to it by a Magistrate. Such trials are conducted strictly in
accordance with the procedure laid down in Chapter XIX of the BNSS,
2023, and the prosecution in these cases is mandatorily conducted by a
Public Prosecutor representing the State.

Scope

The scope of trial before a Court of Session under the BNSS, 2023
includes:

Serious Criminal Offences

It covers offences of a grave nature under the Bharatiya Nyaya Sanhita and
other special laws that prescribe trial by a Sessions Court.

Judicial Safeguards
The procedure incorporates safeguards such as:

Right to seek discharge,

Proper framing of charges,

Full opportunity to prosecution and defence to adduce evidence,

Reasoned judgments and sentencing.

Structured Trial Stages

The scope extends from:

Opening of the prosecution case,

Discharge and framing of charge,

Recording of evidence,

Defence and arguments,

Judgment, sentence, and compensation.

Use of Modern Technology

It permits recording of evidence through audio-video electronic means,
ensuring efficiency without compromising fairness.

Applicability

The procedure under Chapter XIX (Sections 248–260, BNSS, 2023)

applies to:

Cases Committed to the Court of Session

Cases committed by a Magistrate under Section 232 BNSS for trial by the
Sessions Court.

Offences Exclusively Triable by the Court of Session

Where the law expressly provides that an offence shall be tried only by a
Sessions Court.

Special Cases Taken Directly by Sessions Court

Certain cases taken cognizance of directly under specific provisions such
as Section 222(2).

Trials Conducted by Public Prosecutor

All such trials must be conducted by a Public Prosecutor, ensuring
representation of the State and public interest.
Procedure to be followed in the trial before a court of session

Section 248 – Trial to be Conducted by Public Prosecutor

Section 248 lays down a mandatory rule that in every trial before a Court
of Session, the prosecution shall be conducted only by a Public Prosecutor.
Unlike Magistrate trials where private complainants may assist the
prosecution, Sessions trials involve serious offences affecting society at
large, and therefore the responsibility of prosecution is entrusted
exclusively to a Public Prosecutor appointed by the State.

The underlying object of this provision is to ensure that prosecution is

carried out professionally, impartially, and in the public interest, rather
than being influenced by private motives or personal vengeance. The
Public Prosecutor is expected not merely to secure conviction, but to place
the entire truth before the Court, including circumstances favourable to the
accused, thereby assisting the Court in arriving at a just decision. This
provision reinforces the principle that criminal trials before the Sessions
Court are State prosecutions, not private disputes.

Section 249 – Opening Case for Prosecution

Under Section 249, once the accused appears or is brought before the
Court of Session pursuant to a commitment order under Section 232 or any
other law, the Public Prosecutor is required to open the case for the
prosecution.

At this stage, the prosecutor must:

Describe the charges brought against the accused, and

State by what evidence the prosecution proposes to prove the guilt of the
accused.

This opening is not meant for proving facts or leading evidence. Rather, it
serves as an introductory outline of the prosecution case, enabling the
Court to understand the nature of accusations and the framework of
evidence, and enabling the accused to know the case he is required to
meet. This stage ensures procedural transparency and prevents surprise or
prejudice to the accused during the trial.

Section 250 – Discharge of the Accused

Section 250 provides an important pre-trial safeguard to the accused

against unnecessary prosecution.

Sub-section (1): Application for Discharge

The accused is given the statutory right to file an application for discharge
within sixty days from the date of commitment of the case to the Court of
Session under Section 232. This time-bound provision ensures expeditious
scrutiny of the case at the threshold.

Sub-section (2): Consideration by the Court

Upon receiving the discharge application, the Sessions Judge must

consider:
The record of the case,

The documents submitted along with the police report, and

The submissions of both the prosecution and the accused.

If, after such consideration, the Judge is of the opinion that there is no
sufficient ground for proceeding against the accused, he shall discharge the
accused and record reasons in writing.

The purpose of this provision is to prevent a full-fledged trial where the

materials on record do not disclose even a prima facie case. However, the
Court is not required to conduct a detailed appreciation of evidence at this
stage; it only examines whether the accusations are groundless.

Section 251 – Framing of Charge

If the accused is not discharged under Section 250, the Court proceeds to
the crucial stage of framing of charge under Section 251.

Sub-section (1): Two Categories of Cases

Clause (a): Offence Not Exclusively Triable by Court of Session

If the Judge is of the opinion that the offence is not exclusively triable by
the Court of Session, he may:
Frame a charge, and

Transfer the case for trial to the Chief Judicial Magistrate or a Judicial
Magistrate of the First Class.

Upon such transfer, the Magistrate shall try the case in accordance with the
procedure applicable to warrant cases instituted on a police report.

Clause (b): Offence Exclusively Triable by Court of Session

If the offence is exclusively triable by the Court of Session, the Judge shall
frame a written charge against the accused within sixty days from the date
of the first hearing on charge. This statutory timeline reflects the BNSS’s
emphasis on speedy trials.

Sub-section (2): Reading and Explanation of Charge

Once the charge is framed:

It must be read and explained to the accused in clear terms,

This may be done physically or through audio-video electronic means,

The accused is then asked whether he pleads guilty or claims to be tried.

This provision ensures that the accused has full knowledge of the exact
accusations against him, thereby upholding the principles of natural justice
and fair trial.

Section 252 – Conviction on Plea of Guilty

Section 252 deals with cases where the accused pleads guilty to the charge
framed under Section 251.

If the accused pleads guilty:

The Judge shall record the plea, and

May, in his discretion, convict the accused on such plea.

The discretionary nature of this provision is significant. The Judge is not

bound to convict merely because a plea of guilty is made. The Court must
be satisfied that the plea is voluntary, unequivocal, and made with full
understanding of its consequences, especially in cases involving serious
offences or severe punishment. This safeguard prevents convictions based
on coerced or uninformed admissions.

Section 253 – Date for Prosecution Evidence

Section 253 applies where:

The accused refuses to plead guilty, or

Does not plead, or

Claims to be tried, or

Is not convicted under Section 252.

In such situations, the Judge shall:

Fix a date for the examination of prosecution witnesses, and

May, on the application of the prosecution, issue:

Summons for witnesses,

Process for compelling attendance,

Orders for production of documents or other material objects.

This stage marks the formal commencement of the evidentiary phase of

the trial.

Section 254 – Evidence for Prosecution

Section 254 governs the manner in which prosecution evidence is

recorded.
Sub-section (1): Recording of Evidence

On the date fixed, the Judge shall proceed to take all evidence produced in
support of the prosecution. The provision expressly allows recording of
evidence through audio-video electronic means, thereby facilitating
efficiency without compromising fairness.

Sub-section (2): Evidence of Public Servants

The deposition of evidence of any public servant may also be recorded

through audio-video electronic means, recognising administrative
convenience and minimizing disruption of public duties.

Sub-section (3): Control over Cross-Examination

The Judge is vested with discretion to:

Permit deferment of cross-examination of a witness until other witnesses

are examined, or

Recall a witness for further cross-examination if necessary.

This ensures flexibility in trial management while safeguarding the

accused’s right to effective cross-examination.

Section 255 – Acquittal After Prosecution Evidence

Section 255 provides a crucial mid-trial safeguard to the accused after the
prosecution has completed its evidence.

After:

Recording all prosecution evidence under Section 254,

Examining the accused (if necessary), and

Hearing submissions of both the prosecution and the defence,

if the Sessions Judge comes to the conclusion that there is no evidence to

prove that the accused committed the offence, the Judge shall record an
order of acquittal.

This provision ensures that:

An accused is not compelled to enter upon defence unnecessarily,

The Court does not prolong trials where the prosecution has completely
failed to establish a prima facie case,

Judicial time is conserved, and

Personal liberty is protected.

The standard applied here is not proof beyond reasonable doubt, but the
complete absence of evidence linking the accused to the offence.

Section 256 – Entering Upon Defence

Section 256 comes into operation only when the accused is not acquitted
under Section 255.

Sub-section (1): Right of Defence

The accused is called upon to enter upon his defence and is given full
opportunity to:

Produce oral evidence,

Produce documentary evidence,

Explain circumstances appearing against him.

This stage reflects the principle of audi alteram partem, ensuring equality
of opportunity between prosecution and defence.

Sub-section (2): Written Statement

If the accused submits any written statement, the Judge is required to:
Take it on record, and

Make it part of the judicial file.

This enables the accused to clearly present his version of facts and defence
theory.

Sub-section (3): Process for Defence Witnesses

If the accused applies for:

Summoning defence witnesses, or

Production of documents or other material objects,

the Court shall issue such process, unless it records reasons that the
application is:

Vexatious,

Intended to delay proceedings, or

Meant to defeat the ends of justice.

This balances the accused’s right to defence with the Court’s duty to
prevent misuse of procedure.

Section 257 – Arguments

After the defence evidence (if any) is completed, the trial proceeds to the
stage of final arguments.

Order of Arguments

The Public Prosecutor shall first sum up the prosecution case.

Thereafter, the accused or his advocate is entitled to reply.

Proviso – Point of Law

If the accused raises any point of law, the prosecution may, with the
permission of the Court, make submissions on that legal point.

This stage allows both sides to:

Analyse evidence,

Address contradictions,

Apply law to facts,

Assist the Court in arriving at a reasoned conclusion.

Section 258 – Judgment of Acquittal or Conviction

Section 258 deals with the final adjudication of the trial.

Sub-section (1): Delivery of Judgment

After hearing arguments:

The Judge shall pronounce judgment as soon as possible,

Ordinarily within 30 days from completion of arguments,

Extendable up to 45 days, provided reasons are recorded in writing.

This statutory timeline reflects the BNSS’s emphasis on speedy justice.

Sub-section (2): Hearing on Sentence

If the accused is convicted:

The Judge shall hear the accused on the question of sentence, unless
Section 401 applies,
After hearing, the Court shall pass sentence according to law.

This ensures individualized sentencing and consideration of mitigating

circumstances.

Section 259 – Previous Conviction

Section 259 deals with cases where a previous conviction is alleged in the
charge.

If:

A previous conviction is charged under Section 234(7), and

The accused does not admit such previous conviction,

then:

The Court may take evidence regarding the previous conviction only after
convicting the accused under Sections 252 or 258.

The Court shall record a separate finding on such previous conviction.

Safeguard
The previous conviction shall not be read out, referred to, or proved before
conviction, so as to avoid prejudice to the accused during trial.

Section 260 – Special Procedure in Certain Cases

Section 260 applies to cases instituted under Section 222(2) and lays down
a special procedure.

Sub-section (1): Mode of Trial

The Sessions Court shall try such cases following the procedure for
warrant cases instituted otherwise than on police report.

The victim shall ordinarily be examined as a prosecution witness, unless

the Court directs otherwise.

Sub-section (2): In-Camera Trial

The trial shall be held in camera if:

Either party so desires, or

The Court considers it appropriate.

This protects privacy and dignity of parties, particularly in sensitive cases.

Sub-sections (3) to (8): Compensation for False Accusation

If the Court:

Discharges or acquits the accused, and

Finds that there was no reasonable cause for the accusation,

it may:

Direct the complainant (except constitutional dignitaries) to show cause,

Order compensation up to ₹5,000,

Allow appeal against compensation order to the High Court,

Recover compensation as if it were a fine.

These provisions discourage false and malicious prosecutions.

Landmark case laws – trial before court of session

Section 248 – Trial to be Conducted by Public Prosecutor

Shiv Kumar v. Hukam Chand
(1999) 7 SCC 467

The Supreme Court held that in Sessions trials, the Public Prosecutor has a
duty to act fairly and objectively, and not merely to secure conviction. The
prosecutor represents the State and public interest, and must place all
relevant facts before the Court, even if they favour the accused. This
judgment reinforces Section 248 by emphasising that prosecution in
Sessions trials cannot be controlled by private complainants and must
remain independent and impartial.

Section 249 – Opening Case for Prosecution

State of Karnataka v. L. Muniswamy

(1977) 2 SCC 699

The Court observed that the opening of the prosecution case is meant to
outline the nature of allegations and proposed evidence, enabling the Court
to assess whether continuation of proceedings would amount to abuse of
process. This case highlights that the opening under Section 249 is not a
mere formality but an important stage enabling judicial scrutiny at the
threshold.

Section 250 – Discharge of the Accused

Union of India v. Prafulla Kumar Samal

(1979) 3 SCC 4
The Supreme Court laid down authoritative principles governing discharge
in Sessions cases. It held that at the stage of discharge, the Judge must
examine whether the materials disclose a prima facie case and whether
there is a grave suspicion against the accused. The Court clarified that
while a detailed evaluation of evidence is impermissible, the Judge must
apply judicial mind. This decision directly governs Section 250 BNSS.

Section 251 – Framing of Charge

State of Bihar v. Ramesh Singh

(1977) 4 SCC 39

The Court held that at the stage of framing of charge, the test is not proof
beyond reasonable doubt, but whether there is strong suspicion that the
accused has committed the offence. Even if two views are possible, the
Court should frame charges if suspicion exists. This principle governs
Section 251 and prevents premature termination of serious prosecutions.

Section 252 – Conviction on Plea of Guilty

State of Maharashtra v. Sukhdeo Singh

(1992) 3 SCC 700

The Supreme Court cautioned that conviction on a plea of guilty must be

based on a plea that is voluntary, informed, and unequivocal. In serious
offences, the Court must be particularly cautious before acting on such a
plea. This judgment safeguards accused persons under Section 252 from
convictions based on uninformed admissions.
Section 253 – Fixing Date for Prosecution Evidence
Zahira Habibullah Sheikh v. State of Gujarat

(2004) 4 SCC 158

The Court emphasised that prosecution evidence is central to a fair trial

and must be presented fully and effectively. The power to summon
witnesses and compel attendance is essential to ensure that justice is not
defeated. This decision supports the purpose of Section 253, which
formally initiates the evidentiary phase of the Sessions trial.

Section 254 – Evidence for Prosecution

State of Haryana v. Ram Mehar

(2016) 8 SCC 762

The Supreme Court upheld the use of procedural flexibility in recording

evidence, provided fairness is maintained. It reiterated that courts have
discretion to manage cross-examination and recall of witnesses to arrive at
truth. This case supports Section 254’s provisions allowing controlled
cross-examination and use of modern methods like electronic recording.

Section 255 – Acquittal After Prosecution Evidence

Sharad Birdhichand Sarda v. State of Maharashtra

(1984) 4 SCC 116

The Court held that if prosecution evidence fails to establish a chain
pointing unmistakably to the guilt of the accused, acquittal must follow.
Though primarily on circumstantial evidence, the principle applies at the
stage under Section 255 where absence of incriminating evidence
mandates acquittal without calling defence.

Section 256 – Entering Upon Defence

Himanshu Singh Sabharwal v. State of Madhya Pradesh

(2008) 3 SCC 602

The Supreme Court emphasised that denial of opportunity to the accused

to present defence evidence amounts to violation of fair trial under Article
21. Section 256 embodies this constitutional guarantee by ensuring full
opportunity to adduce defence evidence.

Section 257 – Arguments

S.J. Chaudhary v. State (Delhi Administration)

(1984) 1 SCC 722

The Court recognised final arguments as an essential part of a fair trial,

allowing both sides to analyse evidence and law. The prosecution’s right to
reply on points of law ensures balanced adjudication, reinforcing the
importance of Section 257.

Section 258 – Judgment of Acquittal or Conviction

State of Punjab v. Jagir Singh
(1974) 3 SCC 277

The Supreme Court held that judgments must be reasoned and based on
proper appreciation of evidence. A Sessions Court must demonstrate
application of mind in arriving at conviction or acquittal. This directly
supports Section 258’s requirement of timely and reasoned judgments.

Section 259 – Previous Conviction

Ranjit Singh v. State of Punjab

(2004) 13 SCC 129

The Court held that previous convictions should not be disclosed or proved
before recording conviction in the present case, as it would prejudice the
accused. This principle underlies Section 259, which mandates proof of
previous conviction only after conviction in the main case.

Section 260 – Special Procedure & Compensation

Kishan Chand v. State of Haryana

(2013) 2 SCC 502

The Supreme Court affirmed that courts have the power to award
compensation in cases of false or malicious prosecution, provided reasons
are recorded. This judgment strengthens Section 260’s provisions on
compensation and discourages abuse of criminal process.
Conclusion

The procedure governing trials before a Court of Session under Chapter

XIX of the Bharatiya Nagarik Suraksha Sanhita, 2023 is designed to
ensure that serious criminal cases are adjudicated through a fair,
structured, and legally rigorous process. Each stage—from prosecution by
a Public Prosecutor, discharge and framing of charges, recording of
prosecution and defence evidence, to final arguments and judgment—is
supported by well-settled judicial precedents that emphasise application of
judicial mind, protection of the accused’s rights, and prevention of abuse
of process. The consistent approach of the Supreme Court underscores that
while the Sessions Court must effectively prosecute grave offences, it must
simultaneously uphold the constitutional guarantees of fair trial, due
process, and personal liberty. Thus, the Sessions trial procedure under the
BNSS strikes a careful balance between societal interest in punishing
crime and the individual’s right to justice, reinforcing public confidence in
the criminal justice system.

Q. Explain the procedure relating to summary trials.

Introduction

Summary trials are a special procedural mechanism in criminal law aimed

at the speedy and efficient disposal of minor offences. In order to reduce
unnecessary delays, prevent congestion of courts, and ensure quick justice
in less serious cases, the Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS) provides a simplified trial procedure under Chapter XXII. While
the procedure is less elaborate than regular trials, it retains essential
safeguards of fair trial, judicial application of mind, and natural justice,
thereby balancing efficiency with justice.
Meaning of summary trial

A summary trial is a form of criminal trial in which offences of a petty or

minor nature are tried through a simplified and expedited procedure,
involving:

Minimal recording of evidence,

Brief judgments,

Limited sentencing powers.

In summary trials, the Magistrate records only the substance of evidence

instead of full depositions, and delivers a short judgment, thereby ensuring
quick disposal without compromising fairness.

Scope

The scope of summary trials under the BNSS, 2023 includes:

Nature of Offences
Summary trials apply to offences of lesser gravity, such as petty theft,
minor criminal intimidation, insults, and similar offences involving limited
punishment.

Simplified Procedure
The procedure follows the summons-case procedure, with necessary
modifications, ensuring:

Speedy adjudication,

Reduced procedural formalities.

Limited Punishment
The Magistrate is restricted from imposing imprisonment exceeding three
months, reinforcing the minor nature of offences tried summarily.

Judicial Discretion and Safeguards

Magistrates have discretion to adopt summary procedure but must:

Record reasons,

Convert the case into a regular trial if summary disposal becomes

undesirable.

Applicability

The provisions relating to summary trials under Sections 283–288 of the

BNSS, 2023 apply to:

Courts Empowered
Chief Judicial Magistrates,

Magistrates of the First Class,

Magistrates of the Second Class (when specifically empowered by the

High Court).

Offences Covered

Certain specified offences under the Bharatiya Nyaya Sanhita involving

limited punishment or property value,

Any offence punishable with imprisonment up to three years, at the

discretion of the Magistrate.

Exclusions
Summary trial procedure does not apply to offences punishable with:

Death,

Life imprisonment,

Imprisonment exceeding three years.

Judicial Control
The High Court retains supervisory control, particularly in empowering
Magistrates of the Second Class and ensuring uniform application of
summary trial procedure.

Procedure relating to Summary Trials

Section 283 – Power to try summarily

Section 283(1) begins with a non-obstante clause (“Notwithstanding

anything contained in this Sanhita”), which means it overrides the usual
trial procedures and authorises a special, faster mode of trial. It confers
power specifically on (a) the Chief Judicial Magistrate (CJM) and (b) the
Magistrate of the First Class to try certain offences “in a summary way.”
The section then lists offences that are considered comparatively minor in
nature and therefore suitable for speedy disposal. These include: (i) theft
under specified provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS)
where the value of property stolen does not exceed ₹20,000; (ii) receiving
or retaining stolen property under the specified BNS sub-section where the
value does not exceed ₹20,000; (iii) assisting in concealment or disposal
of stolen property where the value does not exceed ₹20,000; (iv) certain
offences under specified sub-sections of section 331 BNS; (v) insult with
intent to provoke breach of peace (section 352 BNS) and criminal
intimidation under specified sub-sections of section 351 BNS; (vi)
abetment of any of the listed offences; (vii) attempt to commit any of the
listed offences where such attempt itself is punishable; and (viii) offences
relating to acts for which complaint may be made under section 20 of the
Cattle-trespass Act, 1871. The clear legislative idea is that where the
wrongdoing is limited in seriousness (especially by a value cap in property
offences), the court may adopt a simpler procedure without the full
technicalities of regular trials.
Section 283(2) significantly expands the scope by giving the Magistrate a
discretionary power to try “in a summary way” any offence not punishable
with death, life imprisonment, or imprisonment exceeding three years, but
only after two safeguards: (a) the accused must be given a reasonable
opportunity of being heard on whether the case should be tried summarily;
and (b) the Magistrate must record reasons in writing for choosing
summary trial. This prevents mechanical conversion of cases into
summary trials and ensures judicial application of mind. The proviso adds
an important procedural finality: no appeal shall lie against the
Magistrate’s decision to try a case summarily under this sub-section. This
means the choice of summary mode (as a procedural decision) is insulated
from appeal, though the final judgment itself may still be challengeable as
per law where permitted.

Section 283(3) acts as a strong fairness safeguard. It recognises that

sometimes, even if a case begins as a summary trial, the court may later
realise that the matter is too complex, serious in facts, or otherwise
undesirable to be tried summarily. In such a situation, the Magistrate must
recall any witnesses already examined and proceed to re-hear the case
according to the regular procedure provided in the BNSS. This ensures that
summary trial does not become a tool that compromises justice; whenever
the case demands fuller adjudication, the law mandates shifting back to the
normal route.

Section 284 – Summary trial by Magistrate of Second Class

Section 284 deals with a narrower category and a different class of

Magistrate. It provides that the High Court may confer power on a
Magistrate who has powers of a Second Class Magistrate to try summarily
offences that are punishable only with fine, or with imprisonment up to six
months (with or without fine), and also abetment or attempt of such
offences. The key point here is control and caution: unlike CJM/First Class
Magistrates who directly have powers under Section 283, a Second Class
Magistrate can conduct summary trials only if the High Court specifically
authorises it. This reflects the legislature’s intent that lower magisterial
courts should handle summary trials only within a limited range and under
supervisory permission, maintaining uniformity and preventing misuse.

Section 285 – Procedure for summary trials

Section 285(1) clarifies what procedure is to be followed in summary

trials. It states that the procedure prescribed under the BNSS for trial of
summons-cases shall be followed in summary trials, except to the extent
that Chapter XXII provides special rules. This is crucial: summary trials
are not an entirely separate “free-form” trial system; they are essentially
summons-case trials with further simplification, particularly in recording
and judgment writing. The legal effect is that the court still follows the
basic framework of notice/plea, evidence, hearing, etc., ensuring fairness,
but avoids the complexity of warrant-case or sessions procedures.

Section 285(2) places a strict sentencing ceiling: in any conviction under

this Chapter, no sentence of imprisonment exceeding three months can be
passed. This is a defining feature of summary trials. Even if the offence
otherwise carries a higher punishment, once the court chooses the
summary route, it is bound by this cap. The policy reason is that summary
trials are meant for minor offences and quick disposal; if a matter deserves
a heavier sentence, it should ordinarily be tried by a fuller procedure, or
the Magistrate should convert the case under Section 283(3).

Section 286 – Record in summary trials

Section 286 lays down the minimum record that must be maintained in
each summary trial. Since summary trials involve simplified recording, the
law ensures accountability by requiring the Magistrate to enter specific
particulars in a form directed by the State Government. These include: (a)
serial number; (b) date of offence; (c) date of report/complaint; (d)
complainant’s name (if any); (e) accused’s identity details (name,
parentage, residence); (f) the offence complained of and the offence
proved, and importantly, in property offences under Section 283(1)(i)–(iii),
the value of the property involved; (g) the plea of the accused and
examination (if any); (h) finding; (i) sentence or final order; and (j) date of
termination of proceedings. This ensures that while the trial is fast, the file
still contains enough legal detail for review, reference, and legality of
outcome.

Section 287 – Judgment in cases tried summarily

Section 287 addresses what must be written as a “judgment” in a summary

trial. It draws an important distinction: if the accused pleads guilty, the
case may end quickly with conviction and appropriate sentence/order. But
where the accused does not plead guilty, the Magistrate must (i) record the
substance of the evidence, and (ii) write a judgment containing a brief
statement of reasons for the finding. This requirement is essential because
even in summary trials, conviction cannot be arbitrary. The court must
show—however briefly—that it applied its mind to the evidence and
reached the conclusion logically. This keeps the process compatible with
fairness and constitutional expectations of reasoned decisions.

Section 288 – Language of record and judgment

Section 288(1) mandates that every record and judgment in summary trials
shall be written in the language of the Court. This ensures standardisation
and readability in that jurisdiction, and supports proper maintenance of
judicial records.
Section 288(2) introduces administrative facilitation: the High Court may
authorise a Magistrate empowered to try summarily to have the record
and/or judgment prepared through an officer appointed by the Chief
Judicial Magistrate. However, the crucial safeguard is that even if an
officer drafts it, the record or judgment must be signed by the Magistrate.
This ensures that responsibility remains judicial, not clerical—the
Magistrate must own the decision and the contents.

1. Power to Try Summarily (Section 283 BNSS)

Natabar Parida v. State of Orissa, (1975) 2 SCC 220

The Supreme Court held that the object of summary trials is speedy
disposal of petty offences without sacrificing justice. The Court observed
that the Magistrate must exercise discretion judiciously while deciding to
try a case summarily and must ensure that the offence is truly minor in
nature. This judgment reinforces that summary jurisdiction is not
mechanical and must be exercised only when facts and punishment justify
it, a principle now embedded in Section 283 BNSS.

2. Discretion to Convert or Withdraw Summary Trial (Section 283(3)

BNSS)
Kishan Chand v. State of Rajasthan, AIR 1982 SC 210

The Supreme Court ruled that if, during the course of a summary trial, the
Magistrate finds that the nature of the case is complicated or serious, it is
mandatory to convert the trial into a regular one. Failure to do so may
cause prejudice to the accused. This case supports Section 283(3) BNSS,
which mandates conversion where summary procedure becomes
undesirable, ensuring fair trial over speed.
3. Summary Trial by Magistrate of Second Class (Section 284 BNSS)
State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669

The Court emphasised that lower magistrates can exercise special

procedural powers only when expressly authorised. It upheld that
empowering Second Class Magistrates must be strictly regulated by the
High Court. This aligns with Section 284 BNSS, which permits summary
trials by Second Class Magistrates only with High Court authorisation,
safeguarding against misuse of simplified procedures.

4. Procedure Applicable – Summons Case Procedure (Section 285 BNSS)

Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC
638

The Supreme Court held that even in summary or summons-type trials, the
Magistrate must personally apply his mind to the evidence. Delegation of
judicial functions affecting guilt or innocence is impermissible. This
judgment highlights that although Section 285 BNSS adopts a simplified
summons procedure, judicial responsibility remains non-delegable,
preserving the integrity of summary trials.

5. Limitation on Sentence in Summary Trials (Section 285(2) BNSS)

J. Venkateswara Rao v. State of Andhra Pradesh, AIR 1976 SC 1781

The Court ruled that when a Magistrate opts for summary trial, he binds
himself to the statutory sentencing limits applicable to summary cases. A
sentence exceeding such limits is illegal. This principle directly supports
Section 285(2) BNSS, which caps imprisonment at three months,
reinforcing the idea that summary procedure and limited punishment go
hand in hand.

6. Recording of Evidence and Judgment in Summary Trials (Sections 286

& 287 BNSS)
Ramakant Rai v. Madan Rai, (2003) 12 SCC 395

The Supreme Court held that even though summary trials permit brief
recording, the Magistrate must still record the substance of evidence and
reasons for conviction or acquittal. Absence of reasons amounts to denial
of justice. This case validates Sections 286 and 287 BNSS, which require
essential particulars and brief reasoning, ensuring that summary trials
remain reasoned and reviewable.

7. Language and Authentication of Record (Section 288 BNSS)

Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966

The Court clarified that judicial records must be prepared in the prescribed
language of the court and must be authenticated by the Magistrate, even if
drafted by court staff. This ruling aligns with Section 288 BNSS, which
allows preparation through authorised officers but mandates Magistrate’s
signature, preserving judicial accountability.

Conclusion

In conclusion, the provisions relating to summary trials under Chapter

XXII of the Bharatiya Nagarik Suraksha Sanhita, 2023 are designed to
ensure the speedy and efficient disposal of minor criminal offences
without compromising the fundamental principles of justice. The law
strikes a careful balance between expedition and fairness by conferring
limited powers on Magistrates, prescribing a simplified procedure,
restricting the quantum of punishment, and mandating minimal but
essential record-keeping and reasoned judgments. Judicial
pronouncements have consistently emphasised that while summary trials
are intended to reduce delay and backlog, they must be conducted with
judicial caution, proper application of mind, and due regard to the rights of
the accused. Thus, summary trials serve as an effective procedural tool to
promote swift justice while upholding the rule of law and public
confidence in the criminal justice system.