About this topic
These quick notes cover 30 core concepts of the B.N.S.S., taken one at a time: the role of the three new criminal codes, classification of offences, F.I.R. and complaint, investigation, arrest and the rights of the arrested person, confessions, search and forensic safeguards, bail (regular, anticipatory, default and undertrial release), trial safeguards, victims and witnesses, plea bargaining, appeal and revision, the inherent powers of the High Court, maintenance and preventive orders.
B.N.S. vs B.N.S.S. vs B.S.A.
One crime can involve three different laws, each doing a different job:
- B.N.S. decides whether an act is an offence (for example, whether taking a phone amounts to theft) and what punishment is possible.
- B.N.S.S. controls the process: registering the case, investigation, arrest and production before a Magistrate.
- B.S.A. governs evidence: what evidence the court can use and how it is proved.
Neha reports that Farhan stole a phone. Whether the taking is theft and what punishment applies is a B.N.S. question. The police registering a case, investigating, arresting Farhan and bringing him before a Magistrate is governed by the B.N.S.S. A shopkeeper saying he saw the theft, and the police recovering the phone, raise questions of what evidence the court can use and how it is proved: that is the B.S.A.
B.N.S. defines the crime. B.N.S.S. provides the process. B.S.A. governs the evidence.
Cognizable vs Non-Cognizable Offences
Whether the police can arrest without a warrant depends on this classification.
- Cognizable offence (Section 2, B.N.S.S.): an offence for which the police may arrest without a warrant, according to the law. Murder and robbery are familiar examples. In a cognizable case, the police can ordinarily investigate without first getting an order from a Magistrate.
- Non-cognizable offence: the police cannot arrest without a warrant merely on that basis, and Section 174 generally requires an order from a Magistrate before investigation.
| Point | Cognizable | Non-cognizable |
|---|---|---|
| Arrest without warrant | Police may arrest without a warrant | Police cannot arrest without a warrant merely on that basis |
| Investigation | Ordinarily without a Magistrate's order | Generally requires a Magistrate's order (Section 174) |
| Examples | Murder, robbery | A mere insult (as in the example below) |
A neighbour reports an insult that amounts only to a non-cognizable offence. The officer records the information and refers the person to the Magistrate. If the same incident also includes a cognizable knife attack, the entire case is treated as cognizable.
Cognizable concerns the power to arrest without a warrant. Non-cognizable places a greater judicial check on police action. Where a case involves both, it is treated as cognizable.
Does Non-Bailable Mean Bail Is Impossible?
No. Treating "non-bailable" as "no bail" is one of the most common mistakes in criminal law.
- Bailable offence: an offence the law classifies as bailable. Section 478 gives an eligible accused a right to bail if the required conditions are met.
- Non-bailable offence: bail is not automatic, but the court may still grant it under the relevant provisions, including Sections 480 and 483.
In deciding bail in a non-bailable case, the judge examines the accusation, the available evidence, the possibility of the accused fleeing and any risk of threatening witnesses, and then decides whether release is justified.
Prince is accused of a serious non-bailable offence. He is not automatically kept in jail. The judge weighs the accusation, the evidence, the chance of Prince fleeing and the risk to witnesses before deciding whether to release him.
Never confuse non-bailable with no bail. The distinction is between bail as a right (bailable, Section 478) and bail decided by the court under legal conditions (non-bailable, Sections 480 and 483).
Filing an F.I.R. Online: Section 173
A person need not always visit a police station to report a cognizable offence. Under Section 173 of the B.N.S.S., information about a cognizable offence may be given orally or by electronic communication.
- Electronic information: the officer takes it on record when the person giving it signs it within three days.
- Oral information: it must be written down, read over to the informant and signed by the informant.
- Free copy: Section 173 also provides for a free copy of the recorded information to the informant or the victim.
Zoya receives a fraudulent message and finds that money has disappeared from her account. She may send the information electronically to the officer in charge of a police station, but it is taken on record only when she signs it within three days.
Electronic information under Section 173: information may be given electronically, but it must be signed by the informant within three days to be taken on record.
Zero F.I.R.: Crime Committed Elsewhere
Section 173 of the B.N.S.S. recognises what is commonly called a Zero F.I.R. Information about a cognizable offence may be given to a police station regardless of where the offence took place.
- The receiving police station cannot reject the information merely because the crime happened outside its area.
- The case can then be transferred to the police station having territorial jurisdiction.
Satvinder Kaur v. State (Government of N.C.T. of Delhi): Held: lack of territorial jurisdiction at the investigation stage is not, by itself, a reason to stop a cognizable case. Principle: territorial limits of a police station do not justify refusing or halting a cognizable case at the investigation stage.
Farhan's phone is stolen while he is travelling, and he reports it after reaching another city. The local police cannot refuse his information merely because the theft happened somewhere else.
Similarly, a passenger robbed during a long train journey may not even know where the robbery occurred. A Zero F.I.R. helps ensure that her report is not delayed.
Police boundaries should not become barriers to justice: information about a cognizable offence can be given at any police station, which cannot reject it merely because the crime happened outside its area; the case can then be transferred to the station with territorial jurisdiction.
The 14-Day Preliminary Enquiry: Section 173(3)
Section 173(3) of the B.N.S.S. creates an exception allowing the police to examine a complaint before proceeding in certain cognizable cases.
Conditions
- Punishment range: cognizable offences punishable with imprisonment of 3 years or more but less than 7 years.
- Senior approval: prior permission from an officer not below the rank of Deputy Superintendent of Police.
- Purpose: the officer in charge may conduct a preliminary enquiry to see whether a prima facie case exists, that is, whether there is an initial basis for proceeding.
- Time limit: the enquiry must be completed within 14 days.
- Alternatively, the officer may proceed with investigation where a prima facie case exists.
A disputed business transaction involves an offence within the 3-to-7-year punishment range. The police may hold a preliminary enquiry only if the statutory conditions are satisfied; they cannot simply use this power at will.
Remember three things for Section 173(3): the punishment range (3 years or more, less than 7), approval of an officer not below the rank of Deputy Superintendent of Police, and the 14-day limit.
F.I.R. registration more broadly is discussed in the Lalita Kumari judgment.
When Police Refuse to Register an F.I.R.
Refusal at a police station to record an F.I.R. for a cognizable offence does not end the legal process. The remedies are:
- Superintendent of Police (Section 173(4)): the aggrieved person may send the substance of the information in writing, by post, to the Superintendent of Police. If satisfied that a cognizable offence is disclosed, the Superintendent must either investigate personally or direct a subordinate officer to investigate.
- Magistrate (Section 175(3)): if the problem continues, the person may approach the Magistrate. The application must satisfy legal requirements, including an affidavit and proof of the earlier approach to the Superintendent of Police. The Magistrate also considers the submission of the police officer.
Sakiri Vasu v. State of Uttar Pradesh: The Supreme Court explained why these remedies (approaching the Superintendent of Police and then the Magistrate) matter when the police fail to act. Principle: a refusal at one police station is not the end of the informant's legal options.
Sequence of remedies: police station, then Superintendent of Police in writing by post (Section 173(4)), then Magistrate on an application with affidavit (Section 175(3)).
Can Police Call Every Witness to the Police Station?
Section 179 of the B.N.S.S. protects certain persons during investigation. The following cannot be required to attend anywhere other than the place where they reside:
- a male person below 15 years of age or above 60 years;
- a woman;
- a person with a mental or physical disability;
- a person suffering from acute illness.
Such a person may attend the police station voluntarily. When requiring the attendance of a witness, the police must ordinarily issue a written order.
Section 180 allows the police to examine persons acquainted with the facts of the case, but it does not cancel the protections in Section 179 about where certain witnesses may be questioned.
A 70-year-old witness saw a street robbery. The police need the information, but the law also protects the witness from unnecessary hardship: the witness cannot be required to attend anywhere other than the place of residence, though the witness may attend the police station voluntarily.
Section 180 (power to examine) works together with Section 179 (protected witnesses). Helping an investigation does not mean giving up every procedural safeguard.
Right to Refuse to Answer Police Questions: Article 20(3)
- Article 20(3) of the Constitution: a person accused of an offence cannot be compelled to be a witness against himself.
- Section 180, B.N.S.S.: a person need not answer questions that may expose him to a criminal charge, penalty or forfeiture.
Nandini Satpathy v. P. L. Dani: Held: the protection against self-incrimination is not limited to the courtroom; it also applies during police interrogation. Threats and serious psychological pressure cannot be used to force incriminating answers. Principle: investigation must respect the right against self-incrimination.
The protection is not a general permission to refuse every harmless question.
An investigator asks where Aadil lives, and then asks him to admit that he committed the offence. The first is a harmless question; the second seeks an incriminating answer and attracts the protection. The two raise very different legal concerns.
The right against self-incrimination protects against compelled incriminating answers, including in police interrogation, but does not allow refusal of every harmless question.
No Arrest Merely Because an F.I.R. Exists
An accusation and a necessary arrest are different things. For cognizable offences punishable with imprisonment up to 7 years, Section 35 of the B.N.S.S. requires more than mere suspicion. The officer must consider whether arrest is necessary, for example:
- to prevent the person from committing another offence;
- to protect evidence;
- to stop threats to witnesses;
- to secure proper investigation;
- to ensure appearance in court.
The reasons must be recorded in writing.
Arnesh Kumar v. State of Bihar: Held: the Supreme Court criticised routine arrests and insisted that police examine the actual need for custody. Principle: arrest must be necessary, not automatic.
Farhan is accused in a case, has a known address, cooperates and poses no apparent risk to evidence or witnesses. Automatic arrest is not the answer.
The power to arrest is not the same as a reason to arrest.
Notice Instead of Arrest: Section 35(3)
Section 35(3) of the B.N.S.S. provides for a notice to appear when arrest is not required under the relevant rules. The law often expects this approach.
- A notice may secure attendance without taking away liberty.
- Once the person complies with the notice, he should not be arrested for that offence unless the officer has lawful reasons and records them.
- If he refuses to identify himself or ignores the notice, different consequences may follow, subject to the law and court orders.
Aadil is being investigated in a business-related case. He has a fixed address, answers police questions and cooperates. A notice to appear can secure his attendance; once he complies, he should not be arrested for that offence unless lawful reasons are recorded.
Arnesh Kumar v. State of Bihar: The Supreme Court emphasised the need to avoid unnecessary arrests.
Police investigation does not always require police custody.
Rights After Arrest and D. K. Basu
Safeguards under the B.N.S.S. on arrest:
| Section | Safeguard |
|---|---|
| Section 36 | Arrest memorandum must be prepared |
| Section 47 | Information about the grounds of arrest |
| Section 48 | Information about the arrest must reach a relative, friend or other nominated person |
| Section 38 | Right to meet an advocate during interrogation, though not throughout it |
| Sections 57 and 58 | Prompt production before a Magistrate; no detention beyond 24 hours (excluding necessary journey time) without judicial authority |
D. K. Basu v. State of West Bengal: The Supreme Court laid down landmark safeguards against abuse in custody.
Hansa is arrested, but nobody records the arrest or tells her family. This should immediately raise serious legal concerns (Sections 36 and 48).
Arrest takes away liberty, not basic legal rights.
Why a Police Confession Is Not Enough
- Section 23, B.S.A.: restricts the use of confessions made to police officers and confessions made in police custody.
- Section 183, B.N.S.S.: a Magistrate may record a confession, with important safeguards.
Safeguards under Section 183
- Before recording, the Magistrate must explain that the person is not bound to confess and that the confession may be used against him.
- The Magistrate must be satisfied that the statement is voluntary.
- If the person refuses to confess, the Magistrate must not send him to police custody.
Farhan, produced before a Magistrate, says he does not want to confess. The Magistrate must not send him to police custody.
An exception permits proof of information that directly leads to the discovery of a fact. That does not make an ordinary police confession admissible.
Words obtained through fear or pressure are dangerous evidence. A confession must satisfy legal safeguards, not merely appear in a police file.
Forensic Teams at Crime Scenes: Section 176
- Section 176(3) of the B.N.S.S. provides for a forensic expert to visit the crime scene in offences punishable with 7 years or more.
- The expert collects scientific evidence, and the process is to be recorded by video on a mobile phone or another electronic device.
- Qualification: the requirement is linked to dates notified by State Governments, so its operation must be checked in the relevant State.
A robbery involves bloodstains, fingerprints and damaged locks. Scientific examination may reveal details that eyewitnesses missed, and video recording shows how the evidence was collected.
The aim is not to replace witnesses but to make investigations more reliable and transparent.
Video Recording of Search: Section 105
Section 105 of the B.N.S.S. requires audio-video recording of searches and seizures covered by that provision, preferably using a mobile phone.
- The recording covers the process of searching, taking possession of property, preparing the seizure list and obtaining the signatures of witnesses.
- It must be forwarded without delay to the appropriate Magistrate.
- Section 103 also contains safeguards involving independent witnesses and a list of seized items.
Prince says the police planted a knife in his cupboard. A proper recording helps the court examine that claim, and also protects honest officers against false accusations.
A search is not just about finding an object; it is also about proving how the object was found.
Default Bail: After 60 or 90 Days
Default bail is bail obtained because the police did not complete the investigation on time. Under Section 187 of the B.N.S.S., the ordinary remand limits before default bail are:
| Offence | Period |
|---|---|
| Punishable with death, life imprisonment or imprisonment of 10 years or more | 90 days |
| Other offences | 60 days |
- These periods do not prohibit further investigation after lawful release on bail.
- Special laws may prescribe different periods.
- If the period expires without the required police report being filed, an accused who applies in time and is prepared to furnish bail can claim default bail.
M. Ravindran v. Intelligence Officer: Held: once the accused has properly claimed default bail after the period expires, a later filing of the police report cannot defeat that right.
Farhan applies for default bail after the time limit expires. Later that afternoon, the police submit their report. The later filing cannot defeat the right Farhan has already properly claimed.
Default bail is not a declaration of innocence. It protects liberty when investigation exceeds the legal period.
Anticipatory Bail: Protection Before Arrest
- Provision: Section 482 of the B.N.S.S.
- Who may apply: a person who reasonably believes that he may be arrested on an accusation of a non-bailable offence.
- Forum: the High Court or the Court of Session.
- Nature: a direction that, if the person is arrested, he shall be released on bail, subject to the order and conditions imposed by the court. It is not a certificate of innocence.
- Conditions may include cooperating with investigation, not threatening witnesses and not leaving India without permission.
- Exclusion: not available for accusations under Sections 65 and 70(2) of the B.N.S. Other laws may also restrict bail.
Neha is accused after a serious family dispute and fears an arrest motivated by hostility. The court examines the facts and may grant anticipatory bail on conditions.
Timing is the distinction: regular bail usually follows custody; anticipatory bail seeks protection before arrest.
The One-Third Rule for Undertrial Prisoners: Section 479
Section 479 of the B.N.S.S. addresses long detention of undertrials without conviction.
- General rule: for eligible offences, an undertrial who has spent half of the maximum possible imprisonment in custody is ordinarily entitled to release on bail, subject to legal conditions.
- First-time offender: a person never previously convicted is to be released on bond after one-third of the maximum punishment period, subject to applicable legal conditions.
- Exclusions: offences punishable with death or life imprisonment; release is restricted where multiple offences or cases are pending.
- Delay caused by the accused is excluded when calculating detention.
The maximum sentence is six years; one-third is two years. If an eligible first-time accused has already spent two years in custody while the case is pending, Section 479 becomes important.
Half the maximum for undertrials generally; one-third for first-time offenders. Delay in trial should not turn an accusation into endless imprisonment.
F.I.R. vs Complaint
- F.I.R.: information about a cognizable offence recorded by the police under Section 173 of the B.N.S.S.
- Complaint: defined in Section 2 and generally dealt with before a Magistrate; an allegation made to the Magistrate asking him to take action. It may concern a cognizable or non-cognizable offence and does not ordinarily include a police report.
| Point | F.I.R. | Complaint |
|---|---|---|
| Made to | Police | Magistrate |
| Provision | Section 173 | Defined in Section 2 |
| Offences | Cognizable | Cognizable or non-cognizable |
| What follows | Normally police investigation | Judicial examination; the Magistrate may direct investigation where the law allows |
Renu reports a robbery to the police: that is the F.I.R. route. If she directly approaches a Magistrate with allegations and asks the court to act, that is the complaint route.
F.I.R. goes to the police. A criminal complaint goes to the Magistrate.
Hearing the Accused Before Cognizance on a Complaint
- Section 223 of the B.N.S.S. deals with examination of the complainant and witnesses on oath.
- Its first proviso requires that the accused be given an opportunity of hearing before the Magistrate takes cognizance on a complaint.
- The Supreme Court has confirmed that this safeguard is mandatory.
Cognizance means the court applies its judicial mind to the alleged offence for proceeding under criminal law.
After the required steps, the Magistrate may decide whether further inquiry is needed, whether the complaint should be dismissed, or whether process should issue against the accused. The exact procedure depends on the kind of complaint and the relevant legal conditions.
Farhan files a complaint saying that Aadil cheated him. The Magistrate must follow the statutory procedure, including hearing Aadil before taking cognizance, rather than treating the accusation as automatically proved.
The pre-cognizance hearing ensures fairness at the very beginning of a criminal case.
Summons Case vs Warrant Case: The Two-Year Test
- Warrant case (Section 2, B.N.S.S.): a case relating to an offence punishable with death, life imprisonment or imprisonment exceeding two years.
- Summons case: a case that is not a warrant case; an offence punishable with imprisonment up to two years is ordinarily a summons case.
| Point | Warrant case | Summons case |
|---|---|---|
| Punishment | Death, life imprisonment or imprisonment exceeding 2 years | Not a warrant case (ordinarily up to 2 years) |
| Trial | More detailed process, including a formal charge | Magistrate generally states the particulars of the offence without framing a formal charge |
An offence carrying a maximum of three years' imprisonment exceeds two years, so it is a warrant case.
The name "warrant case" does not mean the police must arrest someone with a warrant. The classification concerns trial procedure and punishment. Remember the two-year test.
Examination of the Accused at Trial: Section 351
- After the prosecution witnesses are examined and before the accused is called on for his defence, the court generally questions the accused about circumstances appearing in the evidence against him.
- The accused is not put on oath.
- He is not punished merely for refusing to answer or for giving false answers.
- His answers may be considered by the court.
A witness says Prince was seen near the crime scene at midnight. Perhaps he was returning from work. The court must give Prince a meaningful chance to explain before relying on that circumstance against him.
A fair trial requires that a person be allowed to answer the evidence used against him.
Trial in Absentia: Section 356
Section 356 of the B.N.S.S. allows a trial in the absence of a proclaimed offender who has absconded to avoid trial and has no immediate prospect of arrest. This is called a trial in absentia, meaning a trial conducted while the accused is absent.
Safeguards
- The court must record reasons.
- Two arrest warrants must be issued at least 30 days apart.
- The required public notice must be published.
- The court must wait at least 90 days after the charge is framed.
- If the accused has no lawyer, the State must provide legal representation.
Prince is declared a proclaimed offender and stays hidden despite repeated lawful attempts to bring him to court. In a qualifying case, the trial need not remain suspended forever.
Section 356 balances the rights of the accused with the need for justice to proceed.
Victim's Right to Appeal: Section 413
Section 413 of the B.N.S.S. recognises a victim's right to appeal against:
- an acquittal;
- conviction for a lesser offence;
- an order imposing inadequate compensation.
The appeal lies to the court to which an appeal ordinarily lies against a conviction by that court. The provision does not give a victim an appeal merely because the prison sentence is considered too short.
Hansa is injured in an attack. After trial, the accused is convicted only of a lesser offence although Hansa believes the evidence supports a more serious charge. She may have an appeal under Section 413.
The victim's role begins much earlier: under Section 173, the victim can receive a free copy of the recorded information, and other provisions protect the victim's participation as the case progresses.
Victim's appeal: acquittal, lesser offence, inadequate compensation; not inadequacy of sentence. Criminal justice is not concerned only with the State and the accused.
Witness Protection: Section 398
Honest testimony is difficult when an accused threatens a witness or the witness's family. Section 398 of the B.N.S.S. requires every State Government to prepare and notify a Witness Protection Scheme.
Mahender Chawla v. Union of India: The Supreme Court addressed threats to witnesses and approved the Witness Protection Scheme, 2018, which provides a framework for assessing threats and arranging protection.
Depending on the facts and the applicable scheme, measures may include:
- police protection;
- safer travel to court;
- protection of identity;
- arrangements to prevent unnecessary contact with the accused.
Zoya is willing to testify against a violent offender but fears serious harm. Protecting her is not a favour; it helps the court receive truthful evidence.
A fair criminal trial needs witnesses who can speak without fear.
Plea Bargaining
Plea bargaining lets an accused admit guilt and receive a reduced sentence without a full trial, in certain cases. The B.N.S.S. deals with it in Sections 289 to 300.
Not available for
- offences punishable with death, life imprisonment or imprisonment exceeding 7 years;
- offences against women or children;
- certain notified offences.
Requirements
- The accused must apply voluntarily.
- He must declare that no court has previously convicted him of the same offence.
- Under the new law, the application ordinarily has to be made within 30 days after the charge is framed.
- The court checks that nobody is forcing the admission.
- The procedure may include compensation to the victim.
A first-time offender in an eligible minor case chooses to accept responsibility. A lawful plea-bargaining process may save time and produce a reduced sentence.
The key word is voluntary. No person should admit guilt because someone threatens or pressures him.
Appeal vs Revision
- Appeal: available only where the law provides a right to appeal. In an ordinary first appeal, the higher court may examine questions of fact and law and reassess the evidence.
- Revision (Section 438): the High Court or Sessions Court may examine the record of a lower criminal court to check legality, correctness, propriety and procedural regularity.
| Point | Appeal | Revision |
|---|---|---|
| Nature | Legal right when the statute provides it | Narrower supervisory power |
| Scope | Facts and law; evidence may be reassessed (first appeal) | Legality, correctness, propriety and regularity of the record |
| Limits | Only where a statute grants it | Not a substitute for an available appeal; cannot convert an acquittal directly into a conviction |
Prince is convicted and the law gives him an appeal. He may use the appeal to challenge the findings; he cannot normally skip the available appeal and use revision instead.
Appeal is a legal right when the statute provides it. Revision is a narrower supervisory power.
Quashing an F.I.R.: Section 528
Section 528 of the B.N.S.S. preserves the inherent powers of the High Court, which help prevent misuse of the process of the court and secure the ends of justice. The High Court can stop a criminal case even after an F.I.R. is registered, but the power must be used carefully.
State of Haryana v. Bhajan Lal: The Supreme Court explained situations where quashing may be justified, including where the allegations, even if accepted as true, do not disclose an offence.
Zoya lends money to Farhan. He genuinely intends to repay but later suffers business losses. If the complaint itself shows only a failed loan and no dishonest intention at the beginning, turning the dispute into a cheating case may be legally unjustified.
The High Court does not normally conduct a full trial while deciding a quashing petition, and serious allegations must be dealt with according to law.
The power to quash protects against misuse, not against every uncomfortable investigation.
Maintenance for a Divorced Wife: Section 144
- Section 144 of the B.N.S.S. allows a Magistrate to order maintenance when a person with sufficient means neglects or refuses to maintain certain dependants.
- It covers eligible wives, children and parents.
- For this purpose, "wife" includes a woman who has been divorced and has not remarried, subject to the legal conditions.
Renu has been divorced, has not remarried and cannot maintain herself. Her former husband has sufficient means but refuses support. She may seek maintenance under Section 144.
Rajnesh v. Neha: The Supreme Court gave important directions about disclosure of income and avoiding inconsistent maintenance orders in different proceedings.
Maintenance is not punishment for a crime; its purpose is to prevent financial hardship for dependants whom the law protects.
Preventive Orders on Public Gatherings: Section 163
Section 163 of the B.N.S.S. allows certain Executive Magistrates to issue written orders in genuine situations of urgent danger, to prevent threats to public safety, public peace or other dangers listed in the section, even before violence actually begins.
- The order needs legal grounds and must respect constitutional rights.
- Duration: ordinarily no longer than two months.
- Extension: the State Government may extend it for a further period of up to six months where the law permits.
- Affected persons may seek modification or cancellation of the order.
Reliable information suggests that two groups may clash during a procession. The District Magistrate may consider a temporary, lawful order to prevent violence.
Anuradha Bhasin v. Union of India: Held: such restrictions must be based on relevant circumstances and must satisfy the principle of proportionality, meaning the restriction must not go further than necessary.
Emergency power under Section 163 is meant to protect public safety, not to silence peaceful disagreement.
