B.N.S.S.: Complete Notes

About this subject

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A crime may take a few seconds, but what follows can last for years: information to the police, investigation and perhaps arrest, production before a Magistrate, bail, a report in court, a decision whether to put the person on trial, evidence, judgment, and appeals up to the Sessions Court, the High Court and sometimes the Supreme Court.

At every step somebody uses the power of the State: the police officer who arrests, the Magistrate who sends a person to custody, the prosecutor who conducts the case, and the judge who convicts or acquits. Criminal procedure is the law that tells each of them what they can do, what they cannot do, and in what manner they must do it. It also tells the accused, the victim and the witnesses what rights they have.

The subject follows a case from the first information to the final appeal under the B.N.S.S. 2023, in twelve units, asking at each stage why a rule exists, how it works, who uses the power and what safeguards protect the citizen. It matters for university and judiciary examinations, UGC NET, CLAT PG and criminal practice.

Foundations: Why Procedure Matters

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A person held guilty may lose his liberty and, in the gravest cases, his life. Because the consequences are so heavy, it is not enough that the definition of the crime is fair; the method by which a person is accused, investigated, tried and punished must also be fair. A fair law applied through an unfair process can still produce injustice. Procedure exists to prevent dangers such as:

• arrest of an innocent person without reason;
• a confession forced out of someone;
• a trial held without giving the accused a real chance to defend himself.

Rule of law, not rule by whim

Procedure makes much of the difference between the rule of law and rule by whim. An officer acting according to settled rules has limits on his power, which a court can check; an officer acting according to his own mood can be neither predicted nor controlled. A good procedural law therefore does two things at once:

1. it gives the State enough power to detect crime and punish offenders effectively; and
2. it places that power inside a framework of safeguards.

Two Models of the Criminal Process

To judge a procedure, one must ask what it is for. The American scholar Herbert Packer, in his 1964 article Two Models of the Criminal Process, described two ways of thinking about criminal justice.

Point	Crime control model	Due process model
Main goal	Control crime quickly and efficiently	Protect the individual from mistakes and abuse
Works like	An assembly line	An obstacle course
Features	Cases move fast; police have wide powers; the system trusts the judgment of investigators	Checks at every stage: right to a lawyer, presumption of innocence, judicial control over arrest
B.N.S.S. provisions leaning this way	Wider handcuffing powers; more flexible police custody	Written records of arrest; audio-video recording of searches; right to be heard before cognizance on a complaint

Packer did not say that one model is completely right and the other completely wrong. Every real system mixes both, so each B.N.S.S. provision can be tested by asking which way it leans.

Substantive Law and Procedural Law

Law	Nature	What it decides
B.N.S. 2023	Substantive criminal law	What conduct is a crime and what punishment it carries; defines offences such as murder, theft, cheating and rape and fixes their punishments
B.N.S.S. 2023	Procedural criminal law	How the substantive law is put into action: who receives information about a crime, who investigates, when a person can be arrested, which court tries the case, how the trial runs, who can appeal
B.S.A. 2023	Law of evidence	What facts can be proved in court and how they are proved

The Arrival of the B.N.S.S. 2023

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For about fifty years criminal procedure in India was governed by the Code of Criminal Procedure, 1973 (CrPC). In 2023 Parliament replaced it.

Much of the old structure is kept and many sections carry the same ideas with new numbers, so the new numbering must be learnt. The main new themes are:

1. Technology: information about an offence by electronic communication; electronic service of summons; audio-video recording of searches and seizures; many hearings and examinations through audio-video means.
2. Timelines: time limits for many steps, such as preliminary enquiry, supply of documents to the accused, committal, framing of charges and pronouncing judgment.
3. Forensic investigation: for offences punishable with seven years or more, forensic experts are to visit the crime scene, from a date each State will notify.
4. The victim: a clearer right to information, to copies of documents, to be heard before a prosecution is withdrawn, and to free medical treatment in certain cases.
5. Efficiency in difficult situations: for example, trial in absentia of proclaimed offenders who run away to avoid trial.

New ideas also include community service as a punishment Magistrates can impose, and fixed monitoring duties for the Directorate of Prosecution.

Repeal and pending proceedings: Section 531

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Section 531 repeals the old Code, but any appeal, application, trial, inquiry or investigation pending immediately before the B.N.S.S. came into force continues under the old Code, as if the new law had not come. For some years, therefore, courts will apply both laws side by side.

Relation with other laws: Sections 4 and 5

• Section 4: all offences under the B.N.S. are investigated, inquired into and tried according to the B.N.S.S. Offences under other laws are dealt with under the same provisions, but subject to any special procedure laid down in those laws.
• Section 5: the B.N.S.S. does not affect special or local laws unless it specifically says so.

The People Who Run Criminal Justice

Procedure tells each participant, like an actor in a play, when to enter and what to say.

1. The police

The main investigating agency. They receive information, register cases, visit the scene of crime, question witnesses, collect evidence, arrest suspects where necessary and finally submit a report to the Magistrate. The key figure is the officer in charge of a police station, on whom the B.N.S.S. confers many powers and duties. Police is a State subject under the Constitution, so each State has its own police force, while central agencies such as the CBI and the NIA investigate certain kinds of cases.

2. The prosecution

• Section 18: Public Prosecutors and Additional Public Prosecutors in the High Court and every district; Special Public Prosecutors in particular cases.
• Section 19: Assistant Public Prosecutors for the courts of Magistrates. A police officer who took part in the investigation cannot act as Assistant Public Prosecutor in that case.
• Section 20: Directorate of Prosecution. The old Code allowed a Directorate but left its duties to the State Government; the B.N.S.S. provides a Director of Prosecution at the top, adds a district level with Deputy and Assistant Directors, and fixes their monitoring duties in the law itself.

Officer (Section 20)	Monitoring duty
Director of Prosecution	Cases punishable with ten years or more, life imprisonment or death
Deputy Director	Examines police reports; monitors cases punishable with seven years or more but less than ten years
Assistant Director	Cases punishable with less than seven years

The aim is professional supervision of prosecution.

3. The accused

The person against whom the accusation is made. Until proved guilty, the law treats him as innocent. He has the right to know the grounds of arrest, to consult a lawyer, to bail in appropriate cases, to copies of the police report and documents, to cross-examine witnesses, and to appeal.

4. The victim

Criminal law long treated crime mainly as a wrong against society, leaving the real sufferer at the edge of the case. Modern criminal procedure has changed that.

5. Witnesses

Without witnesses most cases cannot be proved. A threatened, bribed or frightened witness can destroy a prosecution, so the law must protect witnesses.

6. Defence lawyers and legal services institutions

The right to be defended by a lawyer is a constitutional and statutory right; when the accused cannot afford a lawyer, the State must provide one. Under the Legal Services Authorities Act, 1987, National, State and District Legal Services Authorities provide free legal aid, and under the B.N.S.S. they also decide the amount of compensation under victim compensation schemes.

7. The courts

The courts supervise the whole process.

The Hierarchy of Criminal Courts

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At the top are the Supreme Court and, below it, the High Court of each State. These constitutional courts hear appeals and revisions and exercise writ jurisdiction; the High Court also has inherent powers under the B.N.S.S.

Classes of criminal courts: Section 6

1. Courts of Session;
2. Judicial Magistrates of the first class;
3. Judicial Magistrates of the second class;
4. Executive Magistrates.

Each State is divided into sessions divisions, each with a Court of Session. Each district has courts of Judicial Magistrates; one Judicial Magistrate of the first class is appointed Chief Judicial Magistrate, and there may be Additional Chief Judicial Magistrates.

Point	Judicial Magistrates	Executive Magistrates
Appointment and control	Appointed by the High Court and work under its control	Officers of the State Government, such as the District Magistrate and Sub-divisional Magistrate
Functions	Try criminal cases	Do not try criminal cases; mainly preventive, such as maintaining public order

Sentencing powers: Sections 22 and 23

Court	Sentence it may pass
High Court	Any sentence authorised by law
Sessions Judge / Additional Sessions Judge	Any sentence authorised by law; a death sentence must be confirmed by the High Court before it is carried out
Chief Judicial Magistrate	Any sentence except death, life imprisonment, or imprisonment for more than seven years
Judicial Magistrate, first class	Imprisonment up to three years, or fine up to ₹50,000, or both, or community service
Judicial Magistrate, second class	Imprisonment up to one year, or fine up to ₹10,000, or both, or community service

Which court tries which offence: Section 21 and the First Schedule

An offence under the B.N.S. may be tried by the High Court, the Court of Session, or any other court shown in the First Schedule. For every B.N.S. offence, the First Schedule states whether it is cognizable, whether it is bailable, and which court can try it. For offences under other laws, Part II of the First Schedule lays down a general rule:

Punishment	Cognizable?	Bailable?	Triable by
Death, life imprisonment, or imprisonment for more than seven years	Cognizable	Non-bailable	Court of Session
Three years and upwards but not more than seven years	Cognizable	Non-bailable	Magistrate of the first class
Less than three years, or fine only	Non-cognizable	Bailable	Any Magistrate

Investigation, Inquiry and Trial

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These three words describe three different stages and three different actors.

• Investigation — Section 2(1)(l): all proceedings under the B.N.S.S. for the collection of evidence, conducted by a police officer or by any person (other than a Magistrate) authorised by a Magistrate — visiting the scene, recording statements, seizing articles, sending samples for examination, arresting suspects. An added explanation says that where a special Act has inconsistent provisions on this subject, the special Act prevails.
• Inquiry — Section 2(1)(k): every inquiry, other than a trial, conducted under the B.N.S.S. by a Magistrate or court; a judicial or quasi-judicial examination that is not itself a trial.
• Trial: not defined, but well settled: the judicial stage in which the court finally decides whether the accused is guilty; it ends in conviction or acquittal.
• Judicial proceeding — Section 2(1)(m): any proceeding in which evidence is or may be legally taken on oath. A trial is a judicial proceeding, and so are many inquiries.

Stage	Done by	Purpose
Investigation	Police	To collect evidence
Inquiry	Magistrate or court	To examine something before or apart from a trial
Trial	Court	To finally decide guilt or innocence

Classification of Offences

Cognizable and non-cognizable offences

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The test is: can the police arrest without a warrant? The consequences go beyond arrest. In a cognizable case, the officer in charge must register an FIR and may investigate without any order of a Magistrate; in a non-cognizable case, the police cannot investigate without a Magistrate's order.

Murder, rape, robbery and dowry death are cognizable; simple hurt in many situations, defamation and some minor offences are non-cognizable. Serious offences are generally cognizable because society needs quick police action; offences that look like private disputes are kept non-cognizable so that the police do not interfere in every small quarrel.

Bailable and non-bailable offences

Bailable offence — Section 2(1)(c): an offence shown as bailable in the First Schedule or made bailable by any other law. Every other offence is non-bailable.

• Bailable: the accused has a right to be released on bail; the police officer or court must release him if he is ready to give bail.
• Non-bailable: bail depends on the court's discretion, considering factors such as the seriousness of the offence and the chance of the accused running away.

Summons cases and warrant cases

Warrant case — Section 2(1)(z): a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. Summons case — Section 2(1)(x): a case relating to an offence which is not a warrant case. The test is the maximum punishment.

Point	Warrant case	Summons case
Punishment	Death, life, or imprisonment exceeding two years	Any offence that is not a warrant case
Trial procedure	More detailed, with a formal written charge	Simpler; particulars of the offence are stated to the accused; no formal charge needed
Usual first process	Magistrate may issue a warrant, though he can issue a summons if he thinks fit	Magistrate normally issues a summons

The classifications are independent

An offence can be cognizable and bailable at the same time; another can be non-cognizable yet a warrant case, because its punishment exceeds two years.

Setting the Criminal Law in Motion: Two Doors

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The cognizable / non-cognizable division decides which door a person knocks on.

1. The police station: information about a cognizable offence is given to the police, recorded as a First Information Report (FIR), and investigation begins.
2. The court of a Magistrate: a complaint is filed directly before a Magistrate, who examines it and decides whether to proceed.
3. A less common third route — Section 210: a Magistrate may take cognizance on information received from any person other than a police officer, or upon his own knowledge.

In practice almost every criminal case begins through one of the first two doors.

The First Information Report under Section 173

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What an FIR is

Importance

1. It sets the criminal law in motion: once recorded, the police can investigate without anyone's permission.
2. It gives the earliest account of the incident, the names of the accused if known, and of witnesses. Courts check whether a fact or name appears in the FIR, because something added much later may be an afterthought.
3. It tells the accused the case against him at the earliest stage.

Evidentiary value

The FIR is not substantive evidence of the facts stated in it. The informant must give evidence in court; the FIR can then be used to corroborate or contradict him under the law of evidence. It need not be an encyclopaedia of the whole case — its purpose is to report the offence, not to prove it.

Who can give it

Anyone — not only the victim, but also a neighbour, a passerby or a doctor in a hospital. The information must be signed by the person giving it.

How an FIR is recorded: Section 173(1)

Information relating to a cognizable offence may be given to the officer in charge orally or by electronic communication.

Point	Oral information	Electronic communication (e-mail, online portal)
Recording	Officer reduces it to writing, or has it written under his direction	Taken on record when the person giving it signs it within three days
Safeguard	Read over to the informant and signed by him	Signing within three days makes the informant stand behind his information

In both cases, the substance is entered in a book kept in the form prescribed by the State Government. Electronic information helps, for example, a woman too frightened to visit a police station at night, or a person travelling in another city.

Protection of women and persons with disabilities

• Information given by a woman against whom rape, sexual assault, stalking, voyeurism, acid attack or a similar offence is alleged must be recorded by a woman police officer or any woman officer.
• If the victim of such an offence is temporarily or permanently mentally or physically disabled, the information must be recorded at the victim's residence or a convenient place of the victim's choice, in the presence of an interpreter or special educator, and must be videographed.
• The police must get the victim's statement recorded by a Magistrate as soon as possible.

Copy of the FIR: Section 173(2)

A copy of the information as recorded must be given forthwith, free of cost, to the informant or the victim. The B.N.S.S. expressly mentions the victim, not only the informant.

Is Registration of an FIR Compulsory?

For many years some judgments said registration was compulsory, while others allowed a preliminary inquiry first. In practice many police stations refused to register cases — to keep crime statistics low, because the complainant was poor or powerless, or because the accused was influential — leaving the citizen practically shut out of the criminal justice system.

Lalita Kumari v. Government of Uttar Pradesh

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Directions laid down

1. Mandatory registration: if the information discloses a cognizable offence, the FIR must be registered and no preliminary inquiry is permissible.
2. Preliminary inquiry: if the information does not disclose a cognizable offence but indicates the need for inquiry, a preliminary inquiry may be held, only to ascertain whether a cognizable offence is disclosed.
3. Outcome: if the inquiry discloses a cognizable offence, the FIR must be registered; if the complaint is closed, a copy of the closure entry with brief reasons must be given to the informant without delay and not later than one week.
4. Scope: the inquiry is not to verify whether the information is true or credible — that is the job of investigation.
5. Illustrative cases for preliminary inquiry (depending on the facts): matrimonial or family disputes; commercial offences; medical negligence; corruption; abnormal delay in reporting, for example more than three months without satisfactory explanation. The list is not closed.
6. Time limit: first fixed at seven days; modified in March 2014 to fifteen days generally and six weeks in exceptional cases, with reasons.
7. General Diary: all information about cognizable offences, whether it leads to an FIR or a preliminary inquiry, must be entered in the General Diary of the police station.
8. Accountability: action must be taken against officers who fail to register an FIR when a cognizable offence is disclosed.

Why registration is mandatory

Registration records the information at once, before anything can be changed; protects the citizen from arbitrary refusal by the police; and promotes accountability, since once an FIR is recorded the police must investigate and report to the Magistrate. If the information later turns out to be false, the law provides for action against the informant.

The New Preliminary Enquiry: Section 173(3)

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Where the officer in charge receives information about a cognizable offence punishable with three years or more but less than seven years, he may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, and considering the nature and gravity of the offence:

1. conduct a preliminary enquiry to ascertain whether there is a prima facie case for proceeding, to be completed within fourteen days; or
2. proceed with investigation where a prima facie case already exists.

This is a real change. Under Lalita Kumari, an FIR disclosing a cognizable offence had to be registered without any preliminary inquiry. Now, for this middle band, the officer may first check for a prima facie case even though a cognizable offence is disclosed. The aim is to prevent frivolous or motivated FIRs in cases of middle seriousness, especially where the facts are doubtful.

Point	Preliminary inquiry under Lalita Kumari	Preliminary enquiry under Section 173(3)
When	Information does not disclose a cognizable offence but indicates need for inquiry	Information about a cognizable offence punishable with 3 years or more but less than 7 years
Purpose	Only to see whether a cognizable offence is disclosed	To see whether there is a prima facie case for proceeding
Time limit	Seven days; later fifteen days generally, six weeks in exceptional cases	Fourteen days

When the Police Refuse to Register an FIR

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The law provides a ladder of remedies:

1. Superintendent of Police — Section 173(4): the aggrieved person may send the substance of the information, in writing and by post, to the Superintendent of Police. If satisfied that a cognizable offence is disclosed, he must investigate himself or direct a subordinate officer to investigate. If this fails, the person may apply to the Magistrate.
2. Magistrate — Section 175(3): a Magistrate empowered to take cognizance may order investigation, but he shall consider an application supported by an affidavit, made after approaching the Superintendent of Police under Section 173(4); he may make such inquiry as he thinks necessary; and he must consider the submission of the police officer.

Sakiri Vasu v. State of Uttar Pradesh

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The same ladder now stands in Section 173(4) and Section 175(3).

The affidavit safeguard: Babu Venkatesh v. State of Karnataka

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The affidavit requirement was added because the power to seek a Magistrate's order for investigation was being misused: applications were filed against opponents in purely civil disputes in the hope that the police would harass them, and Magistrates sometimes passed orders mechanically. The Supreme Court responded in a series of decisions.

Section 175(3) now codifies these safeguards. The affidavit makes the applicant responsible for his allegations, since a false affidavit has consequences; consideration of the police officer's submission gives the police a chance to explain why they did not register the case.

Complaints against public servants: Section 175(4)

On a complaint against a public servant arising in the course of discharge of official duties, the Magistrate may order investigation only after (1) receiving a report on the facts and circumstances of the incident from the officer superior to that public servant, and (2) considering the public servant's own account of the situation. This protects honest officers from motivated complaints while still allowing genuine complaints to be investigated.

Copies of the FIR and Transparency

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Under the old practice the accused often received a copy of the FIR only after the police report was filed and the case reached court, sometimes months later. Meanwhile he could not effectively seek anticipatory bail or approach the High Court for quashing.

The directions

• A person who suspects he is named in an FIR may apply to the police officer or Superintendent of Police for a certified copy on payment of the prescribed fee; it should be given within twenty-four hours.
• Once the FIR reaches the Magistrate, a certified copy can be obtained from the court on application within two working days.
• FIRs should be uploaded on the website of the police or the State Government within twenty-four hours of registration — extendable to forty-eight hours, and at most seventy-two hours, where there are connectivity or geographical difficulties.
• Exception — sensitive cases: sexual offences, offences involving insurgency or terrorism, and offences under the law protecting children from sexual offences. The decision not to upload cannot be taken by an officer below the rank of Deputy Superintendent of Police and must be communicated to the Magistrate.
• A person aggrieved by non-uploading may approach the Superintendent of Police, who must have it decided by a committee of three officers within three days.
• Non-uploading of an FIR does not by itself entitle the accused to anticipatory bail.

Zero FIR and Territorial Jurisdiction of the Police

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Section 173(1) now makes this explicit: information about a cognizable offence may be given to an officer in charge of a police station irrespective of the area where the offence is committed. This is popularly called a Zero FIR. The receiving police station must record it; in practice the case is then transferred to the police station having jurisdiction over the place of the offence, where it gets a regular number and is investigated.

The rule matters because the first hours after a crime are precious — evidence disappears, witnesses scatter, victims may be in danger — so a victim must not be sent from station to station. It also protects travellers, such as the victim of a theft on a long-distance train or a night robbery on a highway, who may not know the exact area of the offence.

Information about Non-cognizable Offences: Section 174

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Section 174 covers information about a non-cognizable offence, such as a simple insult or a minor defamation.

Section 174(1)

• When information about a non-cognizable offence committed within the limits of a police station is given to the officer in charge, he must enter its substance in a book kept for this purpose and refer the informant to the Magistrate.
• In police practice the entry is called a Non-Cognizable Report (NCR).
• New requirement: the officer must forward the daily diary report of all such cases fortnightly to the Magistrate. This keeps the Magistrate informed and prevents non-cognizable complaints from disappearing in police registers.

Section 174(2)

No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try the case or commit it for trial. Once such an order is made, the police may exercise the same powers of investigation as in a cognizable case, except the power to arrest without warrant.

Information about Non-Cognizable Offences (Section 174)

Mixed cases: Section 174(4)

Non-cognizable report and cognizable report contrasted

First Steps of Investigation (Sections 175 and 176)

Power to investigate: Section 175(1)

Once an FIR is registered, investigation begins. The officer in charge of a police station may investigate any cognizable case without the order of a Magistrate, if a court having jurisdiction over that area could inquire into or try it. A new proviso allows the Superintendent of Police, considering the nature and gravity of the offence, to require a Deputy Superintendent of Police to investigate, so that senior officers handle serious or sensitive cases.

Procedure: Section 176

When the officer has reason to suspect the commission of an offence, he must:

• at once send a report to the Magistrate empowered to take cognizance on a police report, which brings the investigation under judicial notice from the very beginning; and
• go to the spot himself, or send a subordinate, to investigate the facts and, if necessary, take steps to discover and arrest the offender.

Exceptions:

1. Where information is given against a named person and the case is not serious, the officer need not go to the spot himself.
2. Where the officer thinks there is no sufficient ground for entering on an investigation, he shall not investigate.

In both cases he must record his reasons and forward the daily diary report fortnightly to the Magistrate; in the second case he must also inform the informant. The Magistrate may still direct an investigation.

Rape victims: the victim's statement is recorded at her residence or a place of her choice, as far as practicable by a woman police officer in the presence of her parents, guardian, near relatives or a local social worker. It may be recorded by audio-video electronic means, including a mobile phone.

Forensic expert: for offences punishable with seven years or more, a forensic expert must visit the crime scene from a date notified by the State Government (see Medical and Forensic Evidence below).

Jurisdiction of Criminal Courts (Sections 197 to 209)

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Which court can try an offence is dealt with in Chapter XIV, Sections 197 to 209.

Ordinary rule (Section 197): every offence is ordinarily inquired into and tried by a court within whose local jurisdiction it was committed, because the witnesses and evidence are usually found there.

When crimes cross boundaries

Provision	Situation	Court that may try
Section 198	Uncertain in which of several areas the offence was committed; committed partly in one area and partly in another; a continuing offence; or several acts done in different areas	A court having jurisdiction over any of those areas
Section 199	An act is an offence because of something done and a consequence that follows	Where the act was done or where the consequence followed
Section 201	Kidnapping	Where the person was kidnapped, conveyed, concealed or detained
Section 201	Theft, extortion or robbery	Where committed, or where the stolen property was possessed or received
Section 201	Criminal breach of trust	Where any part of the property was received, retained, or required to be returned
Section 202	Cheating through electronic communications, letters or telecommunication messages	Where such communications were sent or received (important in online fraud, where cheat and victim may be in different States)
Section 203	Offence during a journey or voyage	A court through whose jurisdiction the person or thing passed during the journey

• Section 206: if two or more courts have taken cognizance of the same offence and a question arises as to which should try it, the High Court decides.
• Section 208: an offence committed outside India by an Indian citizen, or by anyone on a ship or aircraft registered in India, may be dealt with as if committed at any place in India where the person is found or where the offence is registered. It cannot be inquired into or tried in India without the previous sanction of the Central Government.

The Complaint

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The second door for setting the criminal law in motion is a complaint to a Magistrate.

Elements of a complaint

• Made to a Magistrate, not to the police.
• Oral or written.
• Alleges that some person, even an unknown one, has committed an offence.
• Asks the Magistrate to take action.
• May relate to any offence, cognizable or non-cognizable.

FIR and complaint distinguished

Point	FIR	Complaint
Made to	The police	A Magistrate
Offences	Only cognizable	Any offence
Leads to	Police investigation	First, examination and inquiry by the Magistrate
Person giving it	Informant	Complainant
Definition	Not defined in the statute	Defined in Section 2(1)(h)
Prosecution	Conducted by the State through the Public Prosecutor	Complainant plays a much more active role in leading evidence

What the Magistrate Does with a Complaint

First route: police investigation without cognizance (Section 175(3))

If the complaint discloses a cognizable offence and the conditions of Section 175(3) are satisfied, the Magistrate may send it to the police. The police register an FIR and investigate, and the case proceeds like any other police case. The Magistrate does not take cognizance at this stage.

Second route: cognizance on the complaint (Chapter XVI)

Section 223: the Magistrate taking cognizance on a complaint must examine the complainant and the witnesses present on oath; the substance is recorded and signed by them and by the Magistrate. No examination is needed if the complaint is in writing and made by a public servant acting in discharge of official duties, or by a court.

Section 223(2), public servants: for a complaint against a public servant for an offence alleged in the course of official functions, cognizance cannot be taken unless (i) he has been given an opportunity to state his version of the incident, and (ii) a report on the facts and circumstances has been received from his superior officer.

Section 224: a Magistrate not competent to take cognizance must return a written complaint for presentation to the proper court, or direct an oral complainant to the proper court.

Postponement of issue of process: Section 225

To decide whether there is sufficient ground for proceeding, the Magistrate may postpone issue of process and either inquire into the case himself or direct an investigation by a police officer or any other person.

• Compulsory where the accused resides outside the Magistrate's jurisdiction, because people were being summoned to distant courts on false complaints.
• No investigation direction where the offence is triable exclusively by the Court of Session; the Magistrate must himself call upon the complainant to produce all his witnesses and examine them on oath.

Investigation under Section 175(3)	Investigation under Section 225
Before cognizance	After cognizance, as part of the Magistrate's inquiry
The case becomes a regular police case	Only purpose: to help the Magistrate decide whether to issue process on the complaint

Dismissal or process: Sections 226 and 227

Considering the statements and the result of any inquiry or investigation, the Magistrate dismisses the complaint with brief reasons if there is no sufficient ground (Section 226), or issues process to the accused if there is (Section 227).

Complaint Case and Police Case on the Same Offence (Section 233)

Two parallel proceedings on the same facts can produce contradictory results and waste judicial time. Under Section 233:

1. If, during the inquiry or trial of a complaint case, a police investigation into the same offence appears to be in progress, the Magistrate shall stay his proceedings and call for a report from the investigating officer.
2. If the police report under Section 193 leads the Magistrate to take cognizance against a person who is an accused in the complaint case, both cases are inquired into or tried together as if both were instituted on a police report.
3. If the police report does not relate to any accused in the complaint case, or the Magistrate does not take cognizance on it, he resumes the stayed complaint case.

The law prefers the police case because it comes with a full investigation and prosecution by the State. The complaint is not thrown out; it is only paused and revives if the police route fails.

Investigation: Meaning and Purpose

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Once an FIR is registered, the police must find out what really happened.

Questioning, arrest, search and seizure all affect the liberty and privacy of citizens, so the limits of police power and the safeguards for citizens matter.

Stages:

1. Going to the spot and ascertaining the facts and circumstances.
2. Discovering and, where necessary, arresting the offender.
3. Collecting evidence: examining people, searching places, seizing articles, and getting medical and scientific examinations done.
4. Forming an opinion whether there is enough material to place the accused before a court for trial, and filing a report accordingly.

Investigation is primarily the job of the police, and courts do not ordinarily interfere with it. But police power is not unlimited; the Magistrate keeps watch at several points:

• a report of the case goes to the Magistrate at the beginning;
• an arrested person must be produced before the Magistrate within 24 hours, and detention beyond that needs the Magistrate's order;
• searches must be recorded and reported to the Magistrate;
• at the end, the police report goes to the Magistrate, who decides what to do with it.

Examining Witnesses and Statements to Police (Sections 179 to 181)

Requiring attendance: Section 179

The investigating officer may, by written order, require the attendance of any person who appears to be acquainted with the facts and is within the limits of his own or an adjoining police station. The following cannot be required to attend anywhere other than where they live (though they may come to the police station if willing):

• a male under 15 or above 60 years of age;
• a woman;
• a mentally or physically disabled person;
• a person with acute illness.

The purpose is to protect vulnerable people from the hardship of a police station.

Examination by police: Section 180

• The officer may orally examine any person supposed to be acquainted with the facts.
• That person must answer truly all questions, except those whose answers would tend to expose him to a criminal charge, penalty or forfeiture.
• If written down, a separate and true record of each person's statement must be kept; it may also be recorded by audio-video electronic means.
• The statement of a woman against whom a sexual offence or acid attack is alleged must be recorded by a woman police officer or any woman officer.

Use of police statements: Section 181

▶ Watch this part of the lecture (1:08:07)

A written statement to the police during investigation shall not be signed by its maker, and cannot be used for any purpose at any inquiry or trial except the limited purpose in the section, mainly to contradict the witness in court. Such statements are not on oath, not tested by cross-examination, and may be in the officer's own words.

The Right against Self-Incrimination

The police may question the accused, since "any person supposed to be acquainted with the facts" includes him. But Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. Does it apply in the police station too?

Nandini Satpathy v. P. L. Dani (1978)

▶ Watch this part of the lecture (1:09:15)

1. Article 20(3) is not confined to the courtroom; it extends to police interrogation.
2. A person need not be formally named in an FIR; a suspect against whom an accusation is likely is also protected.
3. It covers answers that may expose the person to a criminal charge in the case under investigation or in another pending or imminent case, not only answers directly proving guilt.
4. Compulsion includes psychological pressure, threats, tiring and prolonged interrogation and an overbearing atmosphere, not only physical force.
5. The accused may refuse incriminating questions but not harmless ones.
6. On request, he should be allowed a lawyer's presence during interrogation, though the police are not bound to provide one.

The statutory right to refuse incriminating answers is now in Section 180(2).

Advocate during interrogation: Section 38

Carrying forward a rule Parliament had added to the old Code, Section 38 entitles an arrested person interrogated by the police to meet an advocate of his choice during interrogation, though not throughout. The lawyer is a safeguard against abuse, not a partner who sits through every question.

Confessions and Statements before a Magistrate

Confessions to the police: Section 23 of B.S.A.

A confession made to a police officer cannot be proved against the accused, and one made in police custody cannot be proved unless made in the immediate presence of a Magistrate. The rule reflects long experience that custodial confessions are often extracted by force or fear.

Exception: where a fact is discovered in consequence of information from an accused in police custody, so much of the information as relates distinctly to the fact discovered may be proved.

Recording by a Magistrate: Section 183

• Any Magistrate of the district where the information was registered may record a confession or statement, whether or not he has jurisdiction in the case.
• It may be recorded during investigation or at any time afterwards before the inquiry or trial begins.
• It may be recorded by audio-video electronic means in the presence of the accused's advocate.
• A police officer given the powers of a Magistrate cannot record a confession.

Safeguards:

1. The Magistrate must first explain that the person is not bound to confess and that a confession may be used as evidence against him.
2. He must question the person and record the confession only if he has reason to believe it is voluntary.
3. If the person is unwilling to confess, he cannot be sent back to police custody, which protects him from punishment by the police for refusing.
4. The confession is recorded like an examination of an accused and signed by the person.
5. The Magistrate adds a memorandum certifying the warning, his belief in voluntariness, and that it was read over, admitted correct, and is a full and true account.

Victims and witnesses:

• In rape and other sexual offences and acid attacks, the Magistrate records the victim's statement as soon as the offence comes to the notice of the police, as far as practicable by a woman Magistrate, or else by a male Magistrate in the presence of a woman.
• Where the offence is punishable with ten years or more, life imprisonment or death, the Magistrate shall record the statement of a witness brought before him by the police.

An early statement on oath makes it harder to pressure a witness later.

Medical and Forensic Evidence

▶ Watch this part of the lecture (1:15:18)

Provision	Person	Rule
Section 51	Arrested person	A registered medical practitioner may examine him at a police officer's request, with reasonable force if necessary, where there are reasonable grounds to believe the examination will afford evidence of the offence; includes blood, semen, hair, swabs, fingernail clippings and DNA profiling
Section 52	Person accused of rape	Similar examination
Section 184	Rape victim	Examination with her consent by a registered medical practitioner; report to the investigating officer within seven days
Section 349	Any person, including an accused	A Magistrate of the first class may order specimen signatures, finger impressions, handwriting or a voice sample for investigation; finger impressions and voice samples are additions, and a sample may now be ordered without prior arrest, for recorded reasons

Forensic expert at the crime scene: Section 176(3)

The most significant forensic reform: for every offence punishable with seven years or more, the officer in charge shall cause a forensic expert to visit the crime scene to collect forensic evidence, and have the process videographed on a mobile phone or other electronic device. It applies from a date notified by the State Government within five years; a State without the facility may notify use of another State's facility. The aim is to rely less on confessions and eyewitnesses and more on scientific evidence that is harder to fabricate.

Completion of Investigation and the Police Report

• Section 189: where evidence or reasonable ground of suspicion is insufficient, the accused, if in custody, is released on executing a bond or bail bond to appear before the Magistrate if required.
• Section 190: where evidence is sufficient, the accused is forwarded to the Magistrate or, for a bailable offence, security is taken for his appearance. New proviso: if the accused is not in custody, the officer takes security for his appearance, and the Magistrate shall not refuse the police report because the accused was not taken into custody. Some trial courts earlier refused charge-sheets unless the accused was produced in custody, forcing arrests of people who had cooperated throughout; the Supreme Court had already held the law did not require such arrests.

The final report: Section 193

Every investigation must be completed without unnecessary delay; for rape and certain sexual offences against children, within two months from the date the information was recorded. On completion, the officer in charge forwards a report to the Magistrate, now also possible by electronic communication, stating:

• names of the parties and nature of the information;
• names of persons acquainted with the circumstances;
• whether any offence appears to have been committed, and by whom;
• whether the accused has been arrested or released on bond;
• in sexual offences, whether the victim's medical examination report is attached;
• (new) the sequence of custody of any electronic device, to prove that digital evidence was not tampered with.

Duties to informant and victim: (new) within 90 days the officer must inform the informant or victim of the progress of investigation, by any means including electronic communication; (already in the old Code) the action taken must be communicated to the person who first gave the information.

Police report, charge-sheet and closure report

A police report (Section 2(1)(t)) is a report forwarded by a police officer to a Magistrate under Section 193(3). If it says an offence appears to have been committed and sends the accused for trial, it is a charge-sheet; if it says no offence is made out or the accused could not be traced, it is a final report or closure report.

On a closure report the Magistrate is not bound by the police opinion. He may (i) accept it and close the case, (ii) disagree and take cognizance if the material shows an offence, or (iii) direct further investigation. Courts have held that before accepting a closure report he must give notice to the informant and hear him, since the informant has a real interest; the informant's objections are called a protest petition.

With a charge-sheet the police forward the documents relied on and statements of proposed witnesses. The officer may ask the Magistrate to exclude parts that are irrelevant or should not be disclosed in the public interest from the accused's copies, which may also be supplied electronically.

Further investigation: Section 193(9)

Further investigation is not barred after a report is filed; further evidence leads to a further report, often called a supplementary charge-sheet. New limit: during trial, further investigation needs the trial court's permission and must be completed within 90 days, extendable with the court's permission, so that trials do not hang indefinitely.

Further investigation	Fresh (de novo) investigation
Continues and adds to the earlier investigation	Sets aside the earlier investigation
Permitted by Section 193(9)	Only in exceptional cases, by the superior courts

Arrest: Meaning and Constitutional Background

▶ Watch this part of the lecture (1:22:26)

How arrest is made (Section 43): the officer shall actually touch or confine the body of the person, unless there is submission to custody by word or action. A person who, on being told he is under arrest, accepts it and goes along has submitted to custody; that is an arrest without physical force.

Is every custody an arrest?

Arrest	Custody
The act of taking a person into custody	The state of being under the control of the law
Every arrest leads to custody	Custody can arise without formal arrest, e.g. surrender before a court (submission to custody under Section 43)

Articles 21 and 22

• Article 21: no deprivation of personal liberty except according to procedure established by law, which must be fair, just and reasonable.
• Article 22(1): the arrested person must be informed, as soon as may be, of the grounds of arrest, and not be denied the right to consult and be defended by a lawyer of his choice.
• Article 22(2): production before the nearest Magistrate within 24 hours, excluding journey time; no detention beyond that without a Magistrate's authority.

B.N.S.S. gives detailed effect to these guarantees.

Arrest without Warrant and the Principle of Necessity

▶ Watch this part of the lecture (1:25:58)

Arrest may be under a court's warrant or without one. Arrest without warrant is the more dangerous power because it depends on the officer's judgment. Section 35 lists the situations.

Situation	When the police may arrest without warrant
Cognizable offence committed in the officer's presence	The officer may arrest the person who commits it
Cognizable offence punishable up to seven years	Reasonable complaint, credible information or reasonable suspicion; officer's reason to believe the person committed it; satisfaction that arrest is necessary for one of the five purposes; reasons recorded in writing
Cognizable offence punishable with more than seven years or death	Credible information plus reason to believe the person committed the offence

Five purposes of necessity:

1. to prevent further offences;
2. for proper investigation;
3. to prevent disappearance of or tampering with evidence;
4. to prevent threats or inducement to witnesses;
5. because otherwise his presence in court cannot be ensured.

Other cases of arrest without warrant: proclaimed offenders; persons found with suspected stolen property; persons obstructing the police or escaping from custody; suspected deserters from the armed forces; persons wanted for extradition offences; released convicts breaking their conditions; and persons for whose arrest another police officer has sent a requisition.

Non-cognizable offences (Section 35(2)): no arrest except under a warrant or order of a Magistrate. Narrow exception (Section 39): a person who refuses to give his name and residence.

Joginder Kumar v. State of Uttar Pradesh (1994)

▶ Watch this part of the lecture (1:27:27)

• The officer must be able to justify the arrest apart from his power to make it.
• No routine arrest on a mere allegation; the officer should be reasonably satisfied, after some investigation, of the genuineness of the complaint, the person's involvement and the need to arrest.
• Except in heinous offences, arrest should be avoided if a notice to attend the police station would serve.
• The arrested person may have a friend, relative or other person informed of the arrest and place of detention; he must be told of this right, and the diary must record who was informed.
• The Magistrate must check compliance.

All of these ideas are now part of B.N.S.S.

Arnesh Kumar v. State of Bihar (2014)

▶ Watch this part of the lecture (1:29:15)

Directions:

1. Police officers get a checklist of arrest conditions, filled in when forwarding an arrested person to the Magistrate.
2. The Magistrate must read the police report and record his own satisfaction that the arrest was legal and necessary before authorising detention.
3. A decision not to arrest must be sent to the Magistrate within two weeks.
4. The notice of appearance must be served within two weeks of institution of the case, extendable by the Superintendent of Police for recorded reasons.
5. Defaulting police officers face departmental action and contempt of court; a Magistrate authorising detention without recorded reasons faces departmental action.

The necessity test and the notice now stand in Section 35.

Notice instead of Arrest

Section 35(3): in all cases where arrest is not required under Section 35(1), the officer shall issue a notice directing the person to appear before him or at a specified place. The person must comply. While he complies, he shall not be arrested for that offence unless the officer, for recorded reasons, thinks he ought to be. If he fails to comply or refuses to identify himself, he may be arrested, subject to orders of a competent court.

Section 35(7): for an offence punishable with less than three years, a person who is infirm or above 60 years of age shall not be arrested without the prior permission of an officer not below the rank of Deputy Superintendent of Police.

Preventive arrest (Section 170): an officer who knows of a design to commit a cognizable offence may arrest without warrant if the offence cannot otherwise be prevented, but may not detain the person beyond 24 hours unless further detention is required under another provision of B.N.S.S. or another law.

Rights of an Arrested Person

▶ Watch this part of the lecture (1:36:35)

Many of these rights were first laid down by the Supreme Court and later written into the statute.

Provision	Right or safeguard
Section 36	Arresting officer bears accurate, visible and clear name identification; memorandum of arrest attested by at least one witness (a family member or respectable local person) and countersigned by the arrested person; unless a family member attested, the arrested person is told of his right to have a relative or friend informed
Section 37	Building on the old Code's rule, police control rooms in every district and at State level; an officer not below Assistant Sub-Inspector designated in every district and police station to keep names and addresses of arrested persons and offences charged, displayed prominently, including digitally, at every police station and district headquarters
Section 38	Meeting an advocate of choice during interrogation, though not throughout
Section 47	On arrest without warrant, full particulars of the offence or other grounds communicated forthwith; in a bailable offence, information that he is entitled to bail and may arrange sureties
Section 48	Forthwith informing a relative, friend or nominated person of the arrest and place of detention, and the designated district police officer; the arrested person told of this right on reaching the police station; a book records who was informed; the Magistrate verifies compliance
Section 53	Medical examination soon after arrest by a medical officer, or else a registered medical practitioner, recording injuries and their approximate time; copy to the arrested person or nominee; a female examined by or under a female medical officer
Sections 57 and 58	Production before a Magistrate without unnecessary delay; no detention beyond 24 hours, excluding journey time, without a Magistrate's order; under Section 58 the journey is to a Magistrate's court whether or not it has jurisdiction, so distance to the proper court cannot defeat the rule

Protections for women

• Submission to custody on oral intimation is presumed unless circumstances indicate otherwise.
• The officer shall not touch her unless the officer is a woman or circumstances require it.
• Save in exceptional circumstances, no arrest after sunset and before sunrise; in such circumstances a woman police officer must make a written report and obtain prior permission of the Magistrate of the first class.

Handcuffs: Section 43(3)

A new and debated provision: keeping in view the nature and gravity of the offence, the police may handcuff a person while arresting him or producing him in court where he is a habitual or repeat offender, has escaped from custody, or is accused of serious offences, namely organised crime, terrorist acts, drug offences, illegal possession of arms, murder, rape, acid attack, counterfeiting, human trafficking, sexual offences against children and offences against the State.

Grounds of Arrest in Writing

Article 22(1) and Section 47 require that the arrested person be told the grounds of arrest. Must this be oral or written? The Supreme Court had insisted on written grounds under certain special laws, but for ordinary offences the position was not uniform.

On the form in which the grounds of arrest must be given, the Supreme Court has held:

• Informing the arrested person of the grounds of arrest is a constitutional requirement, mandatory in all offences, under all laws, including offences under B.N.S.
• The grounds must be given in writing, in a language the arrested person understands.
• If written grounds cannot be given at the time of arrest, the officer must convey them orally then, and supply them in writing within a reasonable time, and in any case at least two hours before the person is produced before the Magistrate for remand.
• Otherwise the arrest and the subsequent remand become illegal, and the person is entitled to be set free.

D.K. Basu and Custodial Safeguards

▶ Watch this part of the lecture (1:40:36)

The eleven requirements

1. Police making the arrest and handling interrogation wear accurate, visible name tags; names of interrogating officers are recorded.
2. A memo of arrest, attested by a family member or respectable local person, countersigned by the arrested person, showing the time and date of arrest.
3. A friend or relative is informed of the arrest as soon as practicable.
4. If that relative lives outside the district, the information is sent within 8 to 12 hours.
5. The arrested person is told of this right.
6. A diary entry records who was informed and which officers have custody of him.
7. On request, an examination for injuries at the time of arrest, with an inspection memo.
8. Medical examination by a trained doctor every 48 hours during detention.
9. Copies of all these documents are sent to the Magistrate.
10. He may meet his lawyer during interrogation, though not throughout.
11. A police control room at district and State headquarters displays information about arrests.

Consequences of non-compliance

• The officer is liable to departmental action and punishment for contempt of court.
• Where the right to life and liberty is violated in custody, the State can be directed to pay monetary compensation as a public law remedy, in addition to any civil or criminal remedy. The defence of sovereign immunity is not available.

D.K. Basu requirements now in B.N.S.S.

Requirement	B.N.S.S.
Name tag; memo of arrest	Section 36
Informing a relative, and telling the arrested person of this right	Sections 36 and 48
Record of who was informed	Section 48
Medical examination	Section 53
Lawyer during interrogation	Section 38
Control room and display of names	Section 37

Paramvir Singh Saini v. Baljit Singh: CCTV in police stations

▶ Watch this part of the lecture (1:43:54)

Police Custody, Judicial Custody and Remand

▶ Watch this part of the lecture (1:47:09)

When the investigation cannot be completed within 24 hours and the police want more time and custody for questioning, the Magistrate before whom the accused is produced deals with remand.

Point	Police custody	Judicial custody
Place	Police station	Prison
Control	Investigating agency	Authority of the court
Questioning	Police can question him	Police cannot question him without the court's permission

Police custody is more useful for investigation but more dangerous for the accused, so the law strictly limits it.

Procedure under Section 187

Where a person is arrested and detained, the investigation cannot be completed within 24 hours, and there are grounds to believe the accusation is well founded, the officer in charge, or the investigating officer if not below the rank of sub-inspector, must forward the accused to the nearest Magistrate with a copy of the case diary entries. The Magistrate may authorise detention in such custody as he thinks fit, whether or not he has jurisdiction to try the case.

Police custody in parts: the change

Point	Old Code	B.N.S.S.
Maximum police custody	15 days	15 days in the whole, or in parts
When it can be given	In practice, only within the first 15 days of remand	Any time during the initial 40 or 60 days of the total detention period of 60 or 90 days
90-day offences	First 15 days	In parts during the first 60 days
60-day offences	First 15 days	In parts during the first 40 days

• Total police custody still cannot exceed fifteen days.
• Reason: new facts may emerge later, for example from forensic reports or the arrest of a co-accused, requiring fresh questioning.
• Criticism: it may expose the accused to repeated custodial interrogation, so Magistrates must use the power carefully, recording reasons each time.

Detention beyond fifteen days and outer limits

Beyond fifteen days, the Magistrate may authorise further detention, generally in judicial custody, if satisfied that adequate grounds exist. Total detention during investigation cannot exceed:

• 90 days for offences punishable with death, life imprisonment or imprisonment of ten years or more;
• 60 days for any other offence.

If, on expiry, the investigation is incomplete and no police report is filed, the accused shall be released on bail if he is prepared to furnish bail: default bail (see below).

Further safeguards in Section 187

• No police custody unless the accused is produced in person the first time and every time while in police custody.
• Judicial custody may be extended on production in person or through audio-video electronic means.
• A Magistrate of the second class, unless specially empowered by the High Court, cannot authorise police custody.
• A woman under eighteen must be detained in a remand home or recognised social institution.
• Detention only in a police station (police custody) or a prison or declared prison (judicial custody).
• If no Magistrate is available, an Executive Magistrate given a Magistrate's powers may authorise detention for not more than seven days in all, and must send the records to the nearest Judicial Magistrate.
• A Magistrate authorising police custody must record reasons.

Search and Seizure

▶ Watch this part of the lecture (1:50:45)

A search intrudes into home, property or body and affects the right to privacy under Article 21, so the law permits but regulates it: under a court's search warrant or, in some cases, by a police officer without a warrant.

Production and search warrants

• Section 94: a court or officer in charge of a police station may issue a summons or written order to produce a document or thing needed for investigation or trial.
• Section 96: a court may issue a search warrant where (i) it believes the person will not produce the thing; (ii) it is not known who possesses it; or (iii) a general search is necessary for an inquiry or trial.
• Section 97: a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may issue a warrant to search a place suspected of keeping stolen property, forged documents, counterfeit currency or other objectionable articles.

Search without warrant: Section 185

• The officer in charge or investigating officer must have reasonable grounds to believe that something necessary for the investigation is at a place within his station's limits and cannot otherwise be obtained without undue delay.
• He must record his grounds in writing and, as far as possible, specify the thing sought.
• He searches in person, or deputes a subordinate with written reasons.
• The search must be recorded by audio-video electronic means, preferably a mobile phone.
• Copies of the records go within 48 hours to the nearest Magistrate empowered to take cognizance; the owner or occupier gets a free copy from the Magistrate.

General rules: Section 103

• The person in charge of a closed place must allow free entry and reasonable facilities.
• A person suspected of concealing an article on his body may be searched; a woman must be searched by another woman with strict regard to decency.
• The officer must call two or more independent and respectable inhabitants of the locality to witness the search, made in their presence.
• A list of things seized, with the places found, is prepared and signed by the witnesses.
• The occupier may attend and must be given a copy of the list.

Audio-video recording: Section 105

The most important new safeguard. The search of a place, the taking of possession of property (under these provisions or Section 185), the preparation of the seizure list and its signing by witnesses shall all be recorded through audio-video electronic means, preferably a mobile phone. The recording goes without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

Seizure and attachment

• Section 106: any police officer may seize property alleged or suspected to be stolen, or found in circumstances creating suspicion of an offence, and must report the seizure.
• Section 107 (new): if an investigating officer believes property is derived from criminal activity, he may, with the approval of the Superintendent or Commissioner of Police, apply to the court for attachment. The court may issue a show cause notice with fourteen days to reply, then order attachment. If it finds the property to be proceeds of crime, it shall direct the District Magistrate to distribute it among the persons affected.

Effect of an irregular search

Evidence from an irregular search is not automatically thrown out in Indian law, but the court may examine it with great caution and the officers may face action. With mandatory video recording, a failure to record a search is a significant point for the defence.

Liberty Under Judicial Control

The police investigate, but at every step a safeguard stands beside the power:

Power	Safeguard beside it
Questioning witnesses	Vulnerable people cannot be dragged to the police station
Recording statements	Not usable as substantive evidence
Questioning the accused	No compulsion to incriminate himself
Recording confessions	Only by a Magistrate who ensures they are voluntary
Arrest	Only when necessary, with written grounds, information to the family and medical examination
Extending custody	Only by a Magistrate, within strict limits
Search	Before witnesses and on camera
Police report	The Magistrate is not bound by the police opinion

When a person has been arrested, how he can regain his liberty while the case continues is the subject of the law of bail.

Bail: Liberty, Innocence and Purpose

▶ Watch this part of the lecture (1:56:32)

An arrested person has only been accused, not tried or convicted, and is presumed innocent until proved guilty. Yet society has legitimate concerns: will he abscond, threaten witnesses or destroy evidence, or commit more offences on bail? The law of bail balances the liberty of the individual against the needs of the administration of justice.

Pre-trial detention has heavy human costs: lost jobs, suffering families and a weaker defence. A large proportion of Indian prisoners are undertrials, many too poor to arrange bail. Bail is therefore closely linked with Article 21 and equality before the law.

Meaning of Bail

The old Code long did not define bail. Courts sometimes assumed bail always meant release on sureties (other people who promise to pay if the accused does not appear), so for a poor person a bail order on paper did not mean freedom in practice.

Moti Ram v. State of Madhya Pradesh

▶ Watch this part of the lecture (1:58:27)

Statutory definitions under B.N.S.S.

Term	Provision	Meaning
Bail	Section 2(1)(b)	Release of a person accused or suspected of an offence from the custody of law, on conditions imposed by an officer or court, on executing a bond or bail bond
Bail bond	Section 2(1)(d)	Undertaking for release with surety
Bond	Section 2(1)(e)	Personal bond, or undertaking for release without surety

Section 484 (continuing the old rule): every bond amount must be fixed with due regard to the circumstances and must not be excessive; the High Court or Court of Session may direct its reduction.

Bail in Bailable Offences

Under Section 478, a person accused of a bailable offence who is arrested or detained without warrant by an officer in charge of a police station, or who appears or is brought before a court, shall be released on bail if prepared at any time to give bail. Shall makes it a right: neither police nor court has discretion to refuse. Under Section 47, the arresting officer must tell him he is entitled to bail and may arrange sureties.

• The officer or court may, and shall if he is indigent and unable to furnish surety, release him on his own bond.
• Inability to furnish a bail bond within a week of arrest is sufficient ground to presume indigence.
• The right may be refused on a later occasion in the same case if he earlier failed to appear as required by his bond.

Bail in Non-Bailable Offences

Here bail is not a right but judicial discretion exercised on settled principles.

Section 480: police officer or court other than High Court or Court of Session

The accused may be released on bail, but shall not be released:

1. if there appear reasonable grounds for believing him guilty of an offence punishable with death or imprisonment for life; or
2. if the offence is cognizable and he was previously convicted of an offence punishable with death, life or seven years or more, or convicted on two or more occasions of a cognizable offence punishable with three years or more but less than seven.

Exceptions and further rules

• The court may release a child, a woman, or a sick or infirm person; a person with previous convictions may also be released for any other special reason if just and proper.
• Bail cannot be refused merely because witnesses may need to identify the accused, or because police custody may be needed beyond the first fifteen days (the latter is new, linked to custody in parts under Section 187), if he is otherwise entitled and undertakes to comply with directions.
• No one accused of an offence punishable with death, life or seven years or more can be released without giving the Public Prosecutor an opportunity of being heard.
• If no reasonable grounds appear that he committed a non-bailable offence, but there are grounds for further inquiry, he shall be released on bail.
• For offences punishable with seven years or more, or certain B.N.S. offences against the human body, the State or property, the court shall impose conditions: attend according to the bond; commit no similar offence; not threaten or induce any witness.

Section 483: High Court and Court of Session

Their powers are wider. They may release any accused in custody, impose conditions, and set aside or modify a Magistrate's conditions. Section 480's restrictions do not apply to them in terms, but for an offence triable exclusively by the Court of Session or punishable with life imprisonment, they must give notice to the Public Prosecutor unless impracticable. B.N.S.S. keeps the 2018 provisions on rape and gang rape of girls below specified ages: notice to the Public Prosecutor within fifteen days, and the informant's presence (or his authorised person's) is obligatory at the hearing.

Gurcharan Singh v. State (Delhi Administration)

▶ Watch this part of the lecture (2:05:42)

Considerations for Granting Bail

1. Nature and seriousness of the accusation.
2. Nature of the supporting evidence.
3. Severity of the punishment on conviction.
4. Character, antecedents and circumstances of the accused.
5. Reasonable apprehension of flight.
6. Reasonable apprehension of tampering with evidence or threatening witnesses.
7. Possibility of repeating the offence.
8. Cooperation with the investigation.
9. Time already spent in custody, and likely length of the trial.
10. Larger interest of the public or the State.

Sanjay Chandra v. Central Bureau of Investigation

▶ Watch this part of the lecture (2:08:20)

Rejection of Bail and Cancellation of Bail

Point	Rejection	Cancellation
Meaning	Court refuses bail when it is applied for	Bail already granted is withdrawn and the person sent back to custody
Threshold	Easier	Harder; generally needs a supervening circumstance

Cancellation powers: Section 480(5) (the court that granted bail under Section 480) and Section 483(3) (the High Court or Court of Session may direct the arrest of any person released on bail).

State (Delhi Administration) v. Sanjay Gandhi

Usual grounds for cancellation

• Misuse of liberty by committing another offence.
• Threatening or influencing witnesses; tampering with evidence.
• Absconding or trying to flee.
• Violating bail conditions.

A higher court may also set aside a perverse bail order, for example where relevant material was ignored or irrelevant matters considered.

Anticipatory Bail

Anticipatory bail protects in advance a person who apprehends arrest, perhaps on a false accusation by a rival. Under Section 482, a person with reason to believe he may be arrested for a non-bailable offence may apply to the High Court or Court of Session for a direction that, in the event of arrest, he shall be released on bail.

• Conditions may include: being available for police interrogation when required; not threatening or inducing any witness; not leaving India without the court's permission.
• If later arrested without warrant, he shall be released on bail.
• If a Magistrate decides to issue a warrant, it shall be a bailable warrant in line with the direction.

Point	Regular bail	Anticipatory bail
Granted to	A person already in custody	A person apprehending arrest
Operation	Release from existing custody	Direction before arrest, taking effect at the moment of arrest, so release is immediate
Court	Police officer or court under Sections 478, 480 and 483	Only the High Court and Court of Session

Gurbaksh Singh Sibbia v. State of Punjab

▶ Watch this part of the lecture (2:14:43)

Sushila Aggarwal v. State (NCT of Delhi)

▶ Watch this part of the lecture (2:16:28)

Interim Bail

Where a bail application cannot be decided at once (the court may need the case diary or to hear the prosecution), it may grant interim bail: temporary bail for a limited period until the main application is decided, also given for urgent reasons such as a medical emergency or family event.

Arnab Manoranjan Goswami v. State of Maharashtra

▶ Watch this part of the lecture (2:18:42)

Default Bail

Default bail, also called statutory or compulsive bail, does not depend on the merits. Once the Section 187(3) limit (90 or 60 days, above) expires with investigation incomplete, the accused shall be released on bail if he is prepared to and does furnish bail. It answers the default of the investigating agency: file the report in time or release the accused, so no one stays in custody indefinitely while the police take their time. Courts call it an indefeasible right linked with Article 21.

M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence

▶ Watch this part of the lecture (2:21:55)

Point	Regular bail	Default bail
Depends on	Merits: seriousness of the offence, risk of flight, etc.	Only the agency's failure to complete investigation in time
Court's role	Discretion (non-bailable offences)	Must grant once the failure occurs and the accused applies; may impose reasonable conditions

Special laws can change the periods; the NDPS Act allows longer periods for certain offences. Under the Explanation to Section 2(1)(l), where a special Act is inconsistent with B.N.S.S., the special Act prevails.

Maximum Detention of Undertrials: Section 479

▶ Watch this part of the lecture (2:25:00)

• One-half rule: a person detained during investigation, inquiry or trial for up to one half of the maximum imprisonment for the offence shall be released on bail; not for offences punishable with death or life imprisonment.
• First-time offenders (new): a person never convicted of any offence shall be released on bond after detention for one third of the maximum sentence.
• After hearing the Public Prosecutor and recording reasons, the court may order detention beyond one half, but never beyond the maximum imprisonment for the offence.
• Delay caused by the accused is excluded.
• New: no release under this provision where investigation, inquiry or trial is pending in more than one offence or multiple cases.
• New: the jail superintendent must, on completion of one half or one third of the period, apply in writing to the court for release, so that a poor undertrial without a lawyer is not forgotten in jail.

In August 2024, on the Union's own clarification, the Supreme Court directed that this section apply to undertrials in all pending cases, even those registered before B.N.S.S. came into force.

Special Statutes and Constitutional Courts

Special laws such as the UAPA and the NDPS Act impose stricter bail conditions. Under the UAPA, if the court, on the case diary or police report, finds reasonable grounds for believing the accusation prima facie true, it cannot release an accused of certain offences on bail.

The precise reach of this principle has been debated in later decisions, and in May 2026 a bench of the Supreme Court asked for the question to be placed before a larger bench.

Bail Reform: The Satender Kumar Antil Guidelines

Despite the settled principles of bail, a huge number of people continue to remain in prison as undertrials. The Supreme Court therefore took up the matter systematically in Satender Kumar Antil v. Central Bureau of Investigation, decided in July 2022, building on its earlier orders in the same case.

Categories of offences for the purpose of bail

Category	Offences covered
Category A	Offences punishable with seven years or less, not falling in the other categories
Category B	Offences punishable with death, life imprisonment or more than seven years
Category C	Offences under special laws with strict bail provisions, such as the NDPS Act and the UAPA
Category D	Economic offences not covered by special laws

Graded approach for an accused not arrested during investigation

For an accused who was not arrested during investigation and who cooperated with it, the Court laid down a graded approach in Category A cases:

1. The court should first issue an ordinary summons.
2. If the accused does not appear, a bailable warrant.
3. Only if he still does not appear, a non-bailable warrant.

When he appears, his bail application may be decided without taking him into physical custody.

Directions in the 2022 judgment

• The Government of India should consider a separate law on bail, a Bail Act, to streamline the grant of bail.
• Investigating agencies must comply with the provisions on arrest and notice of appearance, now found in Section 35 of B.N.S.S. 2023, and with the principles of Arnesh Kumar. Courts must satisfy themselves about such compliance, and any failure entitles the accused to bail.
• An accused who was not arrested during investigation may appear in court on summons, or be produced at the stage of the charge-sheet or committal. There is then no need to insist on a bail application; the court may simply take a bond for his appearance.
• The High Courts must identify undertrials who could not meet their bail conditions and take action to release them.
• Bail applications should be disposed of within two weeks, and anticipatory bail applications within six weeks, except where a law provides otherwise.

The Court has continued to monitor compliance through later orders.

From custody to the courtroom

Once the investigation is complete and the police report reaches the Magistrate, the case moves from the police station into the courtroom. Before any trial can begin, several steps must be taken: sanction, cognizance, summoning the accused, committal and framing of charges. These are the pre-trial proceedings.

Pre-Trial Proceedings: The Bridge Between Investigation and Trial

▶ Watch this part of the lecture (2:32:14)

Once the police report has reached the Magistrate, or a complaint has been filed directly before him, the trial still cannot begin straight away. Each pre-trial step protects someone:

Step	What it involves	Purpose
Sanction	In some cases, a government authority must give permission before a court can proceed	Protects honest public servants from harassment
Cognizance	The court takes cognizance of the offence	Brings judicial scrutiny
Process	The accused is brought before the court through a summons or a warrant	Protects the liberty of the accused
Supply of documents	The accused receives copies of the police report and the documents	Ensures a fair defence
Committal	If the case is triable only by a Court of Session, the Magistrate commits it to that court	Sends serious cases to the right court
Charge	The court decides whether to frame a charge, and if so, what it should be	Tells the accused exactly what he has to answer

Sanction for Prosecution

Normally, any person can set the criminal law in motion. But in certain cases, the law says that no court shall take cognizance of an offence without the previous sanction of the government.

Why sanction is required

• To protect public servants. A public servant, such as a police officer, a revenue officer or a judge, takes decisions every day that may displease someone. If every displeased person could drag the officer into a criminal case for an act done in the course of duty, honest officers would be afraid to act. The government, which knows the officer's work, should examine the matter and decide whether prosecution is justified.
• Offences affecting the State and public order, such as offences against the State and offences promoting enmity between groups. Because such matters have wider consequences, the law wants the government to take a considered decision before prosecution starts.

Section 217: offences against the State and public order

No court shall take cognizance of offences against the State under Chapter 7 of B.N.S. 2023 without the previous sanction of the Central Government or the State Government. The same rule applies to offences such as:

• promoting enmity between groups;
• deliberately outraging religious feelings;
• statements conducing to public mischief;
• a criminal conspiracy to commit any of them.

For certain other offences, the sanction of the government or the District Magistrate is needed.

Section 218: judges and public servants

Section 218 covers any person who is or was:

• a Judge or Magistrate; or
• a public servant who cannot be removed from his office except by or with the sanction of the government.

If such a person is accused of an offence committed while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of the offence except with the previous sanction of the government.

Person employed in connection with the affairs of	Sanctioning authority
The Union	Central Government
A State	State Government
Members of the Armed Forces (protected in a similar way)	Central Government

New rule: deemed sanction after 120 days

B.N.S.S. 2023 requires the government to take a decision on a request for sanction within 120 days from the date of receiving it. If it fails to do so, the sanction shall be deemed to have been granted. This addresses a long-standing problem: requests for sanction were kept pending for years and prosecutions never began.

No sanction for sexual offences and trafficking

A proviso continued from the old Code, with new section numbers, says that no sanction is required where a public servant is accused of certain offences, including rape and other sexual offences, and trafficking of persons. A public servant committing such acts cannot claim that he was performing his official duty.

The reasonable connection test

The most important practical question is when an act is done "while acting or purporting to act in the discharge of official duty". The courts apply a test of reasonable connection: the act must be so closely connected with the official duty that the officer can reasonably claim he did it in the course of performing that duty, even if he went beyond what the duty required. If the act has no such connection, for example if it is plainly a private crime, no sanction is needed.

Prakash Singh Badal v. State of Punjab

▶ Watch this part of the lecture (2:37:30)

Later development: the 2018 amendment

In 2018, Parliament amended the Prevention of Corruption Act. For the main corruption offences under that Act, sanction is now required even if the accused has ceased to hold the office, or now holds a different office. What matters is that he was a public servant at the time of the alleged offence.

Cognizance

Sanction is only a condition for taking cognizance. The word "cognizance" is used in many sections but is not defined in B.N.S.S. 2023; its meaning has been settled by the courts.

Taking cognizance does not mean that the Magistrate has decided the accused is guilty. It does not even mean that he has decided to summon the accused. It only means that he has taken judicial notice of the offence and decided to deal with it.

Who can take cognizance

Section 210: a Magistrate of the first class, or a specially empowered Magistrate of the second class, may take cognizance in three ways:

1. upon receiving a complaint of facts which constitute an offence, including a complaint by a person authorised under a special law;
2. upon a police report of such facts, which may now be submitted in any mode, including electronic mode;
3. upon information received from any person other than a police officer, or upon his own knowledge.

Section 213: except where a law expressly provides otherwise, the Court of Session shall not take cognizance of any offence as a court of original jurisdiction unless a Magistrate has committed the case to it.

Two common confusions

Concept	Who	What it is
Investigation	Police	Collecting evidence
Cognizance	Court	Applying its mind to that evidence or to a complaint; taking judicial notice of the offence
Issue of process	Court	The next step: finding sufficient ground to proceed against a particular person, the court summons him or issues a warrant against him

In a complaint case, the Magistrate examines the complainant on oath, may hold an inquiry, and only then decides whether to issue process or dismiss the complaint. Under B.N.S.S. 2023, the accused must now be heard before cognizance is taken on a complaint. So cognizance does not automatically lead to process.

Magistrate's options on a police report

The Magistrate is not bound by the conclusions of the police.

• Charge-sheet: he may take cognizance of the offences stated, or of other offences that the material discloses.
• Closure report: he may accept it; or reject it and take cognizance if the material shows an offence; or order further investigation. Before accepting a closure report, he should hear the informant.

Limits on the power to take cognizance

Section	Offences	Cognizance only on
Section 215	Contempt of the lawful authority of public servants	Written complaint of the public servant concerned
Section 215	Certain offences against public justice, such as giving false evidence in a court proceeding	Written complaint of the court
Section 219	Offences relating to marriage, such as bigamy	Complaint by the person aggrieved
Section 222	Defamation	Complaint by the person aggrieved

For minor offences, there are also periods of limitation.

Bringing the Accused Before the Court

▶ Watch this part of the lecture (2:47:50)

Once the Magistrate has taken cognizance and finds sufficient ground for proceeding, he must secure the presence of the accused.

Section 227: issue of process

• Summons case: he shall issue a summons.
• Warrant case: he may issue a warrant or, if he thinks fit, a summons.
• Under B.N.S.S. 2023, summons or warrants may also be issued through electronic means.
• No summons or warrant shall be issued until a list of the prosecution witnesses has been filed.
• In a case started on a written complaint, a copy of the complaint must accompany the summons or warrant.

The detailed law on summons and warrants is in Chapter 6, Sections 63 to 93.

Summons

• Section 63 (form): every summons shall be in writing, in duplicate, signed by the presiding officer and bearing the seal of the court. B.N.S.S. 2023 adds that a summons may also be in an encrypted or other electronic form, bearing the image of the court's seal or a digital signature.
• Section 64 (service): served by a police officer or a court officer, personally if practicable, by delivering a copy to the person. The police station or court registry is to maintain a register of addresses, e-mail addresses and phone numbers, and a summons bearing the image of the court's seal may be served by electronic communication.
• Section 66 (person cannot be found): the summons may be left with an adult member of his family residing with him. The old Code spoke of an "adult male member", so B.N.S.S. 2023 has removed that gender bias.
• If even that is not possible, the summons may be affixed on a conspicuous part of his house.

Warrant of arrest

A warrant of arrest is a written order directed to a police officer or other person, commanding him to arrest the person named and bring him before the court. Under Section 72, every warrant must be in writing, signed by the presiding officer and bearing the seal of the court, and it remains in force until it is cancelled or executed.

Bailable warrant	Non-bailable warrant
Carries a direction that if the person arrested executes a bond with sureties to appear, he shall be released	Contains no such direction; the person must be produced in custody before the court

Summons versus warrant

Summons	Warrant
Invites the person to come	Authorises his arrest
Addressed to the person himself	Addressed to the officer who will execute it

Because a warrant affects liberty, courts should not issue a non-bailable warrant as the first step where a summons or a bailable warrant would be enough. In Satender Kumar Antil v. Central Bureau of Investigation, the Supreme Court laid down a graded approach for an accused of an offence punishable with seven years or less who was not arrested during investigation and cooperated with it: the court should issue a summons first, then a bailable warrant, and only then a non-bailable warrant.

Dispensing with personal attendance

• Section 228: whenever a Magistrate issues a summons, he may, if he sees reason, permit the accused to appear through his advocate.
• Section 229: for petty offences, a special summons allows the accused to plead guilty in writing and pay the fine without appearing.

Proclamation and Attachment

Section 84: proclamation for a person absconding

Section 84 applies where the court has reason to believe that a person against whom it has issued a warrant has absconded or is concealing himself. The court may publish a written proclamation requiring him to appear at a specified place and time, not less than 30 days from the date of publication.

The proclamation is:

• publicly read in his town or village;
• affixed to his house and to the court-house; and
• may also be published in a daily newspaper, if the court so directs.

Proclaimed offender

If the person is accused of an offence punishable with ten years or more, life imprisonment or death, under any law, and fails to appear, the court may, after inquiry, declare him a proclaimed offender. The old Code allowed such a declaration only for a short list of specific offences, so this is a significant widening. A proclaimed offender can now even be tried in his absence.

Section 85: attachment of property

The court may order the attachment of the movable or immovable property of the proclaimed person, to pressure him to appear.

Section 86: property abroad (new)

On the written request of a police officer not below the rank of Superintendent of Police or Commissioner of Police, the court may begin a process asking a court or authority in a country with which India has made arrangements to help identify, attach and forfeit property belonging to a proclaimed person. This is meant for offenders who flee abroad but keep assets there.

Supply of Documents to the Accused

Before the trial begins, the accused must know the evidence the prosecution intends to use against him; otherwise he cannot prepare his defence.

Section 230: cases instituted on a police report

The Magistrate must act without delay, and in no case beyond 14 days from the date of production or appearance of the accused. He must furnish, free of cost, to the accused and to the victim if represented by an advocate, copies of:

• the police report and the FIR;
• the statements of the prosecution witnesses recorded by the police;
• any confessions and statements recorded by a Magistrate;
• any other documents forwarded with the police report.

Parts of statements that the police have asked to be excluded are left out, unless the Magistrate, after reading them and the reasons, directs that the accused should get them. If documents are voluminous, the Magistrate may supply them electronically or allow the accused to inspect them in court. Supply in electronic form is treated as proper supply.

Section 231: complaint cases triable exclusively by the Court of Session

The Magistrate must furnish copies of the statements recorded and the documents relied upon.

P. Gopalkrishnan v. State of Kerala: electronic evidence

▶ Watch this part of the lecture (2:51:55)

Much evidence today is electronic, such as videos, mobile phone data and memory cards. Is the accused entitled to a copy of such material? The question arose under the old counterpart of Section 230.

B.S.A. 2023 now expressly says that a document includes electronic and digital records, which supports this reasoning.

Committal Proceedings

▶ Watch this part of the lecture (2:55:21)

With the documents supplied, the next question is which court will try the case. Some offences are so serious that they can be tried only by a Court of Session, such as murder, rape and dacoity. A Court of Session cannot take cognizance of such an offence as a court of original jurisdiction unless the case is committed to it by a Magistrate. In these cases, the Magistrate acts as a gateway.

Section 232

Section 232 applies when the accused appears or is brought before the Magistrate, in a case instituted on a police report or otherwise. If it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall:

• commit the case to that court, after complying with the provisions on supply of documents;
• subject to the provisions on bail, remand the accused to custody until the commitment, and during the trial;
• send the record and the documents and articles to be produced in evidence to that court; and
• notify the Public Prosecutor.

B.N.S.S. 2023 adds:

• Committal proceedings shall be completed within 90 days from the date of taking cognizance, which the Magistrate may extend, for reasons recorded in writing, for a period not exceeding 180 days.
• Any application filed before the Magistrate by the accused or the victim, or by a person authorised by either of them, shall be forwarded to the Court of Session along with the committed case.

Role of the committing Magistrate

The Charge

▶ Watch this part of the lecture (2:58:10)

The framing of the charge is the last and very important pre-trial step. The law on charges is in Chapter 18, Sections 234 to 247.

Contents of a charge

Section 234

• Every charge must state the offence with which the accused is charged.
• If the law gives the offence a specific name, such as murder or theft, the offence may be described by that name. If not, so much of its definition must be stated as gives the accused notice of the matter.
• The law and the section of the law against which the offence is said to have been committed must be mentioned.
• The fact that a charge is made is equivalent to a statement that every legal condition required to constitute the offence was fulfilled in the case.
• The charge must be written in the language of the court.

Section 235

The charge must contain particulars of the time and place of the offence, and of the person against whom, or the thing in respect of which, it was committed. These must be reasonably sufficient to give the accused notice of the matter.

Section 236

Where these particulars are not enough, the charge must also state the manner in which the offence was committed.

Errors in the Charge

▶ Watch this part of the lecture (3:01:44)

What if the charge contains an error, omits some particular, or no charge was framed at all for an offence of which the accused is finally convicted? The law takes a practical view, focused on substance rather than form.

Section 238

No error in stating the offence or the particulars, and no omission to state them, shall be regarded as material at any stage, unless the accused was in fact misled by it and it has occasioned a failure of justice.

Section 510

No finding, sentence or order of a competent court shall be deemed invalid merely because:

• no charge was framed; or
• of any error, omission or irregularity in the charge, including misjoinder of charges;

unless the appellate or revisional court finds that a failure of justice has in fact been caused. In that case:

Situation	Order the appellate or revisional court may make
No charge was framed	That a charge be framed and the trial recommenced from that point
The charge was defective	A new trial on a properly framed charge

Willie Slaney v. State of Madhya Pradesh

Alteration and Addition of Charges

Sometimes, during the trial, the evidence shows that the charge should be different.

Section 239

• Any court may alter or add to any charge at any time before the judgment is pronounced.
• Every alteration or addition must be read and explained to the accused.
• If proceeding immediately with the trial on the altered charge is not likely to prejudice the accused or the prosecutor, the court may continue.
• If it is likely to cause prejudice, the court may direct a new trial or adjourn the trial for as long as necessary.
• If the altered charge is for an offence that requires previous sanction, the case cannot proceed until sanction is obtained, unless sanction was already obtained for a prosecution on the same facts.

Section 240

When a charge is altered after the trial has begun, both sides must be allowed to recall or re-summon witnesses and examine them with reference to the alteration. The only exception is where the court records reasons that the request is made for vexation, delay or defeating the ends of justice.

Joinder of Charges and of Accused

Basic rule: Section 241

For every distinct offence there shall be a separate charge, and every such charge shall be tried separately. If many unrelated charges are tried together, the accused may be confused and prejudiced, because evidence of one offence may create a bad impression about the others. But the accused himself may apply in writing for a joint trial, and the court may allow it if it will not prejudice him.

Exceptions for efficiency

• Section 242 (offences of the same kind): a person accused of more offences than one of the same kind, committed within twelve months from the first to the last, may be charged with and tried at one trial for any number of them not exceeding five. Offences are of the same kind when they are punishable with the same amount of punishment under the same section of law.
• Section 243 (same transaction): where a person commits more offences than one in one series of acts so connected together as to form the same transaction, he may be charged with and tried for every such offence at one trial.
• Section 244 (doubt as to the offence): where a single act or series of acts is such that it is doubtful which of several offences the facts will constitute, the accused may be charged with all or any of them, or in the alternative.
• Section 245 (minor offence): where a person is charged with an offence consisting of several particulars, and only some of them are proved, and those constitute a complete minor offence, he may be convicted of the minor offence even though he was not charged with it.

Joinder of accused: Section 246

Among others, the following may be charged and tried together:

• persons accused of the same offence committed in the course of the same transaction;
• persons accused of an offence and persons accused of abetment of or attempt to commit it;
• persons accused of different offences committed in the course of the same transaction.

Section 247: withdrawal of remaining charges

Where a person has been convicted on one or more of several charges, the remaining charges may be withdrawn with the consent of the court, or the court may stay the trial of those charges.

Charge, Discharge and Guilt

Before framing a charge, the court considers whether there is sufficient ground to proceed. If there is not, the accused is discharged. If there is ground for presuming that the accused committed the offence, the charge is framed.

Moment	Meaning
Discharge	Not enough even to begin a trial
Framing of charge	Enough to hold a trial
Conviction or acquittal	The final answer after the trial

The Criminal Trial: Purpose and Nature

▶ Watch this part of the lecture (3:07:06)

The trial is the heart of the criminal justice system. The FIR, investigation, arrest, bail, police report, cognizance, committal and charge all prepare for it. At the trial the court answers one question: is the accused guilty of the offence charged, or not?

An adversarial system

• The prosecution and the defence present their cases before a neutral judge.
• The prosecution must prove guilt; the accused need not prove his innocence.
• Guilt must be proved beyond reasonable doubt. If a reasonable doubt remains, its benefit goes to the accused.
• The moral choice behind this: it is far worse to punish an innocent person than to let a guilty person go free.

The judge is not a silent spectator. He can put questions to witnesses, summon important witnesses and examine the accused to give him a chance to explain the evidence against him. The purpose of the trial is to discover the truth through a fair process.

The Different Forms of Trial

Form of trial	Where provided
1. Trial before a Court of Session	Chapter XIX, Sections 248 to 260
2. Trial of warrant cases by Magistrates, in two tracks: (i) instituted on a police report; (ii) instituted otherwise than on a police report, mainly complaint cases	Chapter XX, Sections 261 to 273
3. Trial of summons cases by Magistrates	Chapter XXI
4. Summary trial	Chapter XXII

Cases differ in seriousness: a murder case and a case of insult cannot be tried with the same formality. Serious cases get more safeguards; less serious cases a simpler, faster procedure.

The Sessions Trial

The Sessions trial is the most complete model of a trial.

Public Prosecutor and opening of the case (Sections 248 and 249)

• Section 248: every Sessions prosecution shall be conducted by a Public Prosecutor. A private person cannot conduct it on his own. The victim may engage a lawyer to assist, but control remains with the Public Prosecutor.
• Section 249: when the accused appears, the prosecutor opens the case by describing the charge and stating the evidence by which he proposes to prove guilt.

Discharge (Section 250)

The accused may apply for discharge within 60 days from the date of commitment (a new time limit). The judge considers the record and documents and hears both sides. If there is not sufficient ground for proceeding, he must discharge the accused and record reasons.

Standard at this stage

The judge does not decide guilt or weigh the evidence as at the end of a trial. He asks only whether the prosecution material, taken at face value, gives rise to a strong suspicion, which the next section calls a ground for presuming that the accused committed the offence.

• Material so weak that, even if accepted, it cannot lead to conviction: discharge.
• Material raising grave suspicion: frame the charge.

Framing of charge (Section 251)

• Offence not exclusively triable by the Court of Session: the judge may frame a charge and transfer the case to the Chief Judicial Magistrate or another Judicial Magistrate of the first class, who tries it as a warrant case instituted on a police report.
• Offence exclusively triable by the Court of Session: the judge must frame a charge in writing within 60 days from the first hearing on charge (also new).

The charge is read and explained, and the accused is asked whether he pleads guilty or claims to be tried.

Plea of guilty (Section 252)

The judge shall record the plea and may, in his discretion, convict on it. The court is not bound to convict merely because the accused admits guilt. In a serious case, especially one carrying a heavy sentence, a careful judge ensures the plea is voluntary and that the accused understands its consequences.

Prosecution evidence (Sections 253 and 254)

If the accused claims trial, the judge fixes a date for examining witnesses (Section 253) and on that date takes all the prosecution evidence (Section 254).

• The prosecutor first examines each witness (examination in chief); the defence then cross-examines to test truthfulness and accuracy.
• Evidence may be recorded through audio-video electronic means, and so may the deposition of a public servant such as a government doctor or forensic expert.
• The judge may defer a cross-examination until other witnesses are examined, or recall a witness for further cross-examination.

Acquittal for no evidence (Section 255)

After the prosecution evidence, the court examines the accused under Section 351. Then, if there is no evidence that the accused committed the offence, the judge shall record an order of acquittal, after taking the prosecution evidence, examining the accused and hearing both sides. Defence evidence is pointless where the prosecution has proved nothing.

Defence and arguments (Sections 256 and 257)

If not acquitted, the accused is called on to enter his defence. He may file a written statement and ask the court to summon defence witnesses or documents; the judge must issue process unless he records reasons that the application is meant to cause delay or defeat justice. Both sides then argue (Section 257), and judgment follows.

Judgment and the New Time Limits

Section 258: time limit in a Sessions trial

Judgment must be given within 30 days of completion of arguments, extendable to 45 days for reasons recorded in writing. The old Code had no firm limit, and judgments were sometimes reserved for months; a late judgment is less reliable because memory of the evidence fades.

Section 392: pronouncing judgment

Every judgment of a criminal court of original jurisdiction is pronounced in open court, immediately after the trial or at a later notified time, but not later than 45 days. The judge may deliver the whole judgment, read it out in full, or read the operative part and explain its substance in a language understood by the accused or his lawyer. Where only the operative part is read, the court shall, as far as practicable, upload the judgment on its portal within 7 days.

Section 393: contents of a judgment

• Written in the language of the court, with the points for determination, the decision on each and the reasons.
• Conviction: specify the offence, the section of B.N.S. 2023 or other law, and the punishment.
• Acquittal: state the offence of which the accused is acquitted and direct that he be set at liberty.

Reasons show the parties their arguments were considered and let a higher court check the decision.

Discharge, Acquittal and Conviction

Point	Discharge	Acquittal	Conviction
Stage	Before a charge is framed	After the trial has begun, usually at its end	On a plea of guilty (Section 252) or after the evidence is heard
Meaning	No sufficient ground to proceed, or charge groundless; released without trial	Evidence heard; guilt not proved	Finding that the accused is guilty
Nature	Not a declaration of innocence; the case did not cross the first threshold	Final verdict on the merits	Followed by a hearing on sentence
Challenge	Revision by the prosecution or complainant before a higher court	Appeal; the appellate court can reverse it	—

Warrant Cases Tried by Magistrates

▶ Watch this part of the lecture (3:19:30)

Instituted on a police report

1. Section 261: the Magistrate ensures copies of the police report and documents were supplied to the accused under Section 230.
2. Section 262: discharge application within 60 days of supply of copies. The Magistrate considers the report and documents, may examine the accused physically or by audio-video means, hears both sides, and discharges with reasons if the charge is groundless.
3. Section 263: otherwise, a written charge within 60 days of the first hearing on charge; it is read and explained and the plea taken.
4. If no guilty plea: prosecution evidence, then defence evidence.
5. Section 271: acquittal or conviction. On conviction, the accused must be heard on sentence, unless released on probation or the case is referred to the Chief Judicial Magistrate for a heavier sentence.

Instituted otherwise than on a police report

This mostly means a private complaint: no police investigation, no report, no ready file of statements.

1. Section 267: the Magistrate hears the prosecution and takes all its evidence before framing a charge.
2. Section 268: if no case is made out which, if unrebutted, would justify conviction, he discharges the accused.
3. Section 269: if there is ground for presuming the offence, he frames a charge. The accused may then cross-examine the prosecution witnesses and lead his defence.

Point	On a police report	Otherwise than on a police report
Material	Police report and documents (copies under Section 230)	No investigation, no report
Discharge	Section 262: charge groundless	Section 268: after pre-charge evidence, no case which, if unrebutted, would justify conviction
Prosecution evidence	After the charge	Before the charge (Section 267); cross-examination after it

Absent complainant (Section 272)

If the complainant is absent on a hearing date and the offence is compoundable or non-cognizable, the Magistrate may discharge the accused at any time before charge, but only after giving the complainant 30 days to appear, since the absence may be genuine.

Summons Cases

▶ Watch this part of the lecture (3:23:04)

• Section 274: the particulars of the offence are stated and the accused is asked whether he pleads guilty or has a defence. No formal charge is framed.
• If he pleads guilty, the Magistrate may convict. In petty cases he may plead guilty by post and send the fine stated in the summons without attending court (Section 276).
• Otherwise the Magistrate hears both sides, takes their evidence and acquits or convicts (Section 278).
• Section 279: in a complaint case, if the complainant does not appear, he is given 30 days; the accused is then acquitted unless the Magistrate thinks it proper to adjourn.
• Section 281: in a case not instituted on complaint, the Magistrate may, for recorded reasons, stop proceedings at any stage: after the principal witnesses' evidence it operates as acquittal, otherwise as release with the effect of discharge.
• Section 282: where the offence is punishable with imprisonment exceeding six months and the interests of justice require, the Magistrate may rehear the case as a warrant case and recall witnesses.

Summary Trials

The fastest procedure, meant for petty offences.

Section 283(1): offences that shall be tried summarily

A Chief Judicial Magistrate or Magistrate of the first class shall try summarily, among others:

• theft, receiving stolen property and helping to conceal stolen property, value not exceeding ₹20,000;
• some forms of house-trespass;
• insult intended to provoke a breach of the peace;
• some forms of criminal intimidation;
• abetment of, or attempt at, these offences.

Section 283(2): discretionary power

The old ceiling was offences punishable up to two years. Now, after giving the accused a reasonable opportunity of being heard and recording reasons, the Magistrate may try summarily any offence not punishable with death, life imprisonment or imprisonment exceeding three years. No appeal lies against the decision to try summarily. If the case proves unsuitable during trial, he must recall witnesses and rehear it in the regular manner.

Procedure and the Section 285 ceiling

Summons-case procedure applies with a brief record. The most important safeguard is in Section 285: no imprisonment exceeding three months can be imposed on conviction in a summary trial: speed comes with a ceiling on punishment.

Examination of the Accused

▶ Watch this part of the lecture (3:26:41)

The examination of the accused is a step common to almost all trials. Section 351 (corresponding to the famous Section 313 of the old Code) gives the accused a personal opportunity to explain any circumstance appearing in the evidence against him.

• The court may question him at any stage without warning.
• After the prosecution witnesses and before his defence, the court shall question him generally on the case. In a summons case where personal attendance is dispensed with, this may also be dispensed with.

Safeguards

• No oath is administered.
• No punishment for refusing to answer or for false answers.
• Answers may be considered in the trial, and may be put in evidence for or against him in any other trial for an offence they tend to show he committed.
• The court may take the help of the prosecutor and defence lawyer in preparing questions, and may permit a written statement.

The Hearing on Sentence

The separate hearing on sentence is one of the most humane features of trial procedure. On conviction in a Sessions trial, the judge shall hear the accused on sentence and then pass sentence according to law, unless he releases him on probation (Section 258(2)). Section 271(2) applies the same rule to warrant cases before Magistrates.

Deciding guilt and deciding punishment are different exercises. The guilt stage looks at the offence; sentencing also looks at the offender: age, first offence or not, family situation, provocation, likelihood of reform, dependants. These facts may never surface at trial, so the hearing lets the convict and his lawyer place them before the court.

The hearing must be real, not a ritual. In death penalty cases courts expect careful inquiry into mitigating circumstances such as mental health, social background and the possibility of reform. Death is imposed only when the alternative of life imprisonment is unquestionably foreclosed.

Probation and Other Alternatives

Section 401: probation or admonition

Corresponding to Section 360 of the old Code, Section 401 lets a court release certain convicts on probation of good conduct or after admonition instead of sentencing them at once, where no previous conviction is proved.

Offender	Eligible offences
Aged 21 or more	Punishable with fine only, or imprisonment of seven years or less
Below 21, or any woman	Any offence not punishable with death or life imprisonment

The court considers the offender's age, character and antecedents and the circumstances of the offence. The Probation of Offenders Act, 1958 provides a more detailed scheme where in force, and community service is another option for Magistrates. Prison should not be used where a better method can reform the offender.

Sections 407 to 409: confirmation of death sentences

A death sentence by a Court of Session must be submitted to the High Court and cannot be executed until confirmed (Section 407). The High Court may order further inquiry, confirm the sentence, pass any other sentence, annul the conviction, order a new trial, or acquit (Sections 408 and 409).

Trial in Absentia of a Proclaimed Offender

▶ Watch this part of the lecture (3:33:42)

Under the old Code a trial could not be completed against an absconding accused, and cases stayed frozen for years. Section 356 of B.N.S.S. 2023 now allows inquiry, trial or judgment in absentia of a proclaimed offender. Where he has absconded to evade trial and there is no immediate prospect of arrest, this is treated as a waiver of his right to be present; the court proceeds after recording reasons and pronounces judgment as if he were present.

Safeguards

1. Trial cannot commence until 90 days from the framing of the charge.
2. Two consecutive arrest warrants must have been issued at least 30 days apart.
3. A notice in a national or local daily newspaper must ask him to appear within 30 days, warning that otherwise trial will begin in his absence.
4. His relative or friend, if any, must be informed.
5. Information about the trial is affixed at his house and displayed at the police station of his last known address.
6. If he has no lawyer, the State must provide an advocate.
7. If arrested or appearing during the trial, he may be allowed to examine evidence taken in his absence.
8. No appeal unless he presents himself before the appellate court, and no appeal against conviction after three years from the judgment.

The Trial at a Glance

Charge framed or particulars stated; plea of guilty or claim of trial; prosecution evidence and cross-examination; examination of the accused; defence evidence if he wishes; arguments; a reasoned judgment within the time limits. If acquitted, the accused is set at liberty; if convicted, he is heard on sentence and given a punishment that suits both the crime and the criminal.

Fair Trial: Meaning and Constitutional Basis

▶ Watch this part of the lecture (3:36:12)

Fairness rests on the saying that justice should not only be done, but should also be seen to be done. A right result reached through an unfair process does not satisfy this principle: a conviction obtained by denying the accused a lawyer, or an acquittal obtained by frightening the witnesses, is not justice at all.

Fair trial is therefore not just one rule in B.N.S.S. 2023 but the spirit of the whole of criminal procedure. Its constitutional foundation is Article 21: no person shall be deprived of life or personal liberty except according to procedure established by law. The Supreme Court has made it clear that such procedure must be fair, just and reasonable.

Essential elements of a fair trial

• An independent and impartial judge.
• Trial ordinarily in open court.
• The accused knows the exact accusation against him.
• Adequate time and facilities to prepare the defence, including copies of the evidence.
• Representation by a lawyer; if the accused cannot afford one, a lawyer provided by the State.
• The right to cross-examine prosecution witnesses and to present his own evidence.
• Evidence ordinarily taken in his presence.
• No compulsion to be a witness against himself.
• No second trial for the same offence.
• Conclusion of the trial within a reasonable time.

Underlying all of these are the two classic principles of natural justice: no one shall be a judge in his own cause, and no one shall be condemned unheard.

Fair Trial Safeguards in B.N.S.S. (Chapters 25 and 26)

Many of these elements appear in Chapters 25 and 26 of B.N.S.S. 2023, on evidence and on general provisions as to inquiries and trials.

Open court and its limits: Section 366

• The place where a criminal court sits for an inquiry or trial is deemed to be an open court; the public may have access as far as space permits. Open justice keeps judges accountable and builds public confidence.
• The presiding judge may, at any stage, exclude the public or any particular person.
• The inquiry into and trial of rape and certain other sexual offences, including offences against children, shall be held in camera (in private), because the dignity and privacy of the victim outweigh the value of a public hearing.

Presence of the accused: Section 308

Except where expressly provided, all evidence in a trial shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his advocate. Presence may now include audio-video electronic means, at a place designated by the State Government.

Proviso: when recording the evidence of a woman below eighteen years alleged to have been subjected to rape or another sexual offence, the court may take appropriate measures so that she is not confronted by the accused, while ensuring the accused's right to cross-examine.

Exceptions

1. Section 355: the court may dispense with the personal attendance of an accused represented by an advocate, if satisfied that his attendance is not necessary in the interests of justice, or that he persistently disturbs the proceedings.
2. Section 356: the new provision for trial in absentia of a proclaimed offender.

Double jeopardy: Section 337

A person tried by a competent court and convicted or acquitted cannot be tried again for the same offence, or on the same facts for certain related offences, while that conviction or acquittal remains in force.

Speedy trial: Section 346

Delay is one of the biggest enemies of fair trial: witnesses forget, evidence is lost, and the accused may remain in custody for years. The Supreme Court has recognised the right to a speedy trial as part of Article 21, and B.N.S.S. 2023 tries to give it practical effect:

• Every inquiry or trial continues from day to day until all the witnesses in attendance are examined, unless an adjournment is necessary for recorded reasons.
• Inquiries and trials of rape cases must be completed within two months from the filing of the charge-sheet.
• No adjournment at a party's request except where the circumstances are beyond that party's control.
• New: even then, not more than two adjournments, after hearing the other side's objections and recording reasons.
• An advocate being busy in another court is not a ground for adjournment.
• If a witness is present but a party or his advocate is absent or not ready, the court may record the witness's statement and pass suitable orders.
• The time limits fixed for each stage, from supply of documents to judgment, serve the same purpose.

The court's active role: Section 348 B.N.S.S. and Section 168 B.S.A.

The judge is not a silent umpire.

• Section 348 B.N.S.S.: the court may, at any stage, summon any person as a witness or recall and re-examine any person already examined, and shall do so if his evidence appears essential to the just decision of the case.
• Section 168 B.S.A. 2023: the judge may ask any question he considers necessary to discover the relevant facts.

These powers help the court reach the truth when one side is weak or has failed in its duty.

Fair Trial Is Fair to Everyone: The Best Bakery Case

▶ Watch this part of the lecture (3:42:36)

Postscript: Zahira later disowned her statements before the Commission. After an inquiry, the Supreme Court found her guilty of contempt of court for contradictory statements and in 2006 sentenced her to one year of simple imprisonment and costs.

Right to Legal Representation and Legal Aid

▶ Watch this part of the lecture (3:47:56)

• Article 22(1): no arrested person shall be denied the right to consult and to be defended by a legal practitioner of his choice.
• Section 340: any person accused of an offence before a criminal court, or against whom proceedings are instituted, may of right be defended by an advocate of his choice.
• Article 39A: since the right to a lawyer means little to an accused who cannot pay one, the State must provide free legal aid so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Legal Services Authorities Act, 1987 gives effect to this.
• Section 341: where an accused is not represented by an advocate in a trial or appeal and lacks sufficient means to engage one, the court shall assign an advocate for his defence at the expense of the State.

Old Code	B.N.S.S. 2023 (Section 341)
Mandatory legal aid mainly for trials before the Court of Session; the State could extend it to other courts.	Covers trials and appeals generally.

Trial without a lawyer

When does the right to legal aid begin?

▶ Watch this part of the lecture (3:48:19)

Fair Trial for the Victim and Society: Proceeding Against Other Persons (Section 358)

▶ Watch this part of the lecture (3:51:14)

A fair trial also requires that every person who appears to be guilty faces trial, not only those whom the police chose to charge-sheet. Section 358 (corresponding to, and repeating, Section 319 of the old Code) provides:

• If, in the course of an inquiry or trial, the evidence shows that a person who is not an accused has committed an offence for which he could be tried together with the accused, the court may proceed against him.
• He may be arrested or summoned.
• The proceedings against him start afresh, and the witnesses are heard again.

Why this is part of fair trial: fairness is not one-sided. The victim and society have a right to see the real culprits brought to justice, and the court should not be helpless if the police leave out a guilty person. But summoning a new accused is a serious step, so the court must be cautious and satisfied by strong evidence. The Supreme Court has since clarified that the power must be exercised before the sentence is pronounced in a case of conviction, or before acquittal, since after that the court has finished its work in the case. These rulings continue to govern Section 358.

Transfer of Cases for Fair Trial (Sections 446 and 447)

Local pressure, hostility or the influence of the accused may make a fair trial impossible in a particular court or place. B.N.S.S. 2023 therefore allows transfer:

Provision	Court	Scope and ground
Section 446	Supreme Court	From one High Court to another, or from a court subordinate to one High Court to a court subordinate to another, if expedient for the ends of justice.
Section 447	High Court	Within the State, if a fair and impartial inquiry or trial cannot be had in a particular court, or for other listed reasons.

Fairness from beginning to end

Two groups deserve special attention in this picture: the victims of crime and the witnesses.

Rights of Victims: From the Margins to the Centre

▶ Watch this part of the lecture (3:54:36)

Traditionally, crime was treated mainly as a wrong against the State and society: State versus the accused. The police investigated, the Public Prosecutor prosecuted and the court decided. The victim was often reduced to a mere prosecution witness, called, questioned, cross-examined and forgotten, and often received nothing to repair the harm even when the accused was convicted.

Over recent decades, victimology (the study of victims) and international documents, such as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, led legal systems to treat the victim as a real participant. In India, the 2009 amendment of the old Code:

• defined "victim";
• gave victims a right of appeal;
• allowed victims to engage a lawyer to assist the prosecution; and
• created victim compensation schemes.

B.N.S.S. 2023 carries these reforms forward and adds new ones.

Who Is a Victim? (Section 2(1)(y))

Old definition	B.N.S.S. 2023
Loss or injury caused by the act or omission for which the accused person has been charged.	Those words are dropped, so a person can be recognised as a victim even before a charge is framed.

The inclusion of the guardian or legal heir matters where the victim is a child or has died, as in a murder case.

Victim distinguished from complainant and informant: a victim is not the same as a complainant or an informant. The informant is simply the person who gave the information to the police; the victim is the person who actually suffered the harm. They are sometimes, but often not, the same person.

Participatory Rights of Victims

At the FIR stage: Section 173

• Free copy of the information recorded.
• Women victims of sexual offences: information recorded by a woman officer.
• Victims with disabilities, in these offences: recording at home or a place of their choice, with an interpreter or special educator.

During investigation

• Section 193: the police must inform the informant or victim of the progress of the investigation within ninety days.
• Section 176: in rape cases, the victim's statement is recorded at her residence or a place of her choice, as far as practicable by a woman police officer.
• Section 183: her statement before a Magistrate should be recorded by a woman Magistrate, as far as practicable.

In court

• Section 230: a victim represented by an advocate gets free copies of the police report and documents, like the accused.
• Proviso to Section 18(8): the court may permit the victim to engage an advocate of his choice to assist the prosecution.
• Section 360: no withdrawal of prosecution without giving the victim an opportunity of being heard.
• Plea bargaining: the victim participates in working out the mutually satisfactory disposition and receives compensation.
• Proviso to Section 413: the victim may appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation.

Protection in the courtroom

• Trials of rape and certain sexual offences are held in camera.
• A woman below eighteen years who is a victim of rape or another sexual offence can be shielded from confronting the accused while giving evidence.
• B.N.S. 2023 makes it an offence to disclose the identity of a victim of rape and certain other sexual offences.

The Victim's Right to Appeal

▶ Watch this part of the lecture (3:59:30)

The Victim's Right to Be Heard

▶ Watch this part of the lecture (4:01:30)

B.N.S.S. 2023 does not say in general terms that the victim must be heard on bail, but the Supreme Court has recognised such a right.

Compensation to Victims

▶ Watch this part of the lecture (4:03:40)

Besides participation, justice for victims requires repair of the harm. B.N.S.S. 2023 provides three main routes.

1. Compensation from the accused: Section 395

• When a court imposes a fine, it may order the whole or part of it to be used as compensation for loss or injury caused by the offence, or for the dependants of a person whose death was caused.
• Even where the sentence does not include a fine, the court may order the accused to pay compensation to the victim.

2. Victim compensation scheme: Section 396

• Every State Government, in coordination with the Central Government, must prepare a scheme providing funds to compensate victims or their dependants who have suffered loss or injury from crime and need rehabilitation.
• On the court's recommendation, the District or State Legal Services Authority decides the amount.
• The trial court may recommend compensation where that ordered from the accused is inadequate, and also where the case ends in acquittal or discharge but the victim needs rehabilitation, since the victim's suffering does not disappear because the accused could not be convicted.
• Where the offender is not traced or identified but the victim is, and no trial takes place, the victim or dependants may apply directly to the Legal Services Authority, which must complete its inquiry and award compensation within two months.
• The Authority may order immediate free first aid or medical benefits, or other interim relief, on the certificate of a police officer or Magistrate.

3. Free medical treatment: Section 397

All hospitals, public or private, whether run by the government, a local body or any other person, must immediately provide first aid or medical treatment free of cost to victims of rape and the other grave sexual offences listed in the section, victims of acid attack, and victims of the listed sexual offences against children. The hospital must also inform the police immediately.

The victim is often also the most important witness, and like every witness may face threats and pressure to turn hostile. This links the rights of victims to the protection of witnesses.

Unit 9: Witness Protection

▶ Watch this part of the lecture (4:07:56)

Witnesses as the eyes and ears of justice

Criminal trials in India are adversarial and depend heavily on oral evidence: of eyewitnesses, the victim, the doctor who examined the injuries, the officer who recovered the weapon. Witnesses are the eyes and ears of justice; if they cannot speak freely and truthfully, justice becomes blind and deaf.

Witnesses in India face serious difficulties:

• trials take years, so they must attend court again and again, often losing a day's wages each time;
• they are cross-examined at length;
• most dangerously, they may be threatened, bribed or attacked by the accused or his associates, especially when the accused is powerful.

A witness who supported the prosecution in investigation but changes his story in court has turned hostile, a major cause of acquittals in serious cases. When fear or inducement turns witnesses hostile, the guilty go free, victims lose faith and the rule of law weakens.

The Law Commission and the Idea of Witness Protection

The Law Commission of India examined the subject in its 198th Report, on Witness Identity Protection and Witness Protection Programmes (August 2006), and distinguished two ideas.

Basis	Witness identity protection	Witness protection programme
Meaning	Identity kept secret from the accused and the public during the trial, so the accused cannot target the witness	The State protects the witness physically outside the court: security, change of residence, even a new identity in extreme cases

Recommendations

• In serious cases triable by the Court of Session, a court could, on application, keep a threatened witness's identity confidential, deciding before trial after an inquiry into the danger in which the accused or his lawyer is heard separately; the real name and address would stay out of the public record.
• Evidence could be given through closed-circuit television from a separate room: the accused hears the testimony and his lawyer cross-examines, but the accused cannot see the witness.
• Witness protection programmes outside the court.

Balancing the rights of the accused

The accused's fair-trial right includes knowing who testifies against him and testing that testimony by cross-examination; if identity is wholly hidden, he may be unable to show a motive to lie. Identity protection must therefore be:

1. reserved for cases of real danger;
2. decided by a court after hearing both sides; and
3. designed so that the accused's lawyer can still cross-examine meaningfully.

The Witness Protection Scheme, 2018

▶ Watch this part of the lecture (4:11:49)

Main features of the Scheme

Offences covered: offences punishable with death, life imprisonment or imprisonment of seven years and above, and certain offences against women.

Category of witness	Threat
First	To the life of the witness or his family, during investigation, trial or even afterwards
Second	To the safety, reputation or property of the witness or his family
Third	Moderate: harassment or intimidation

Competent Authority: a standing committee in each district, headed by the District and Sessions Judge, with the head of the district police as member and the head of the prosecution as member secretary. On a witness's application it calls for a quick threat analysis report from the police and decides on protection. Hearings are in camera and confidential.

Protection measures may include:

• ensuring the witness and the accused do not come face to face during investigation or trial;
• monitoring mail and calls, home security devices, a change of telephone number;
• close protection, regular patrolling, temporary change of residence, escort to and from court;
• in camera trials, and special deposition rooms with one-way mirrors and audio-video arrangements;
• in some cases, protection of identity, a new identity or relocation.

A State Witness Protection Fund meets the costs.

Witness Protection under B.N.S.S.

Section 398 gives witness protection statutory recognition: every State Government shall prepare and notify a Witness Protection Scheme for the State to ensure protection of witnesses, leaving the details to each State. Until a State notifies its own scheme, the 2018 Scheme approved by the Supreme Court continues to guide the protection of witnesses.

Other provisions that help witnesses

Provision	Protection
Section 216	A witness or any other person may complain of the offence of threatening a person to give false evidence (Section 232 B.N.S.); a threatened witness can directly approach the court
Section 183	In offences punishable with ten years or more, life imprisonment or death, a Magistrate must record the statement of a witness the police bring, making it harder to pressure him into changing his story
Section 530	Examination through audio-video electronic means, so a frightened witness may testify from a safer place
Section 308	A woman below eighteen alleging rape or another sexual offence can be protected from confronting the accused, while cross-examination is preserved
In camera trials	Trials of rape and certain sexual offences
Limits on adjournments	A witness who is present must be examined and not sent back again and again

Responsibility of the State and the Courts

• The State provides police protection, funds and infrastructure such as deposition complexes.
• The courts ensure quick trials, examination of witnesses when they come, no harassment by improper questions, and actual implementation of protection measures.
• The Public Prosecutor asks for protective measures and in camera proceedings where needed, as emphasised in the Best Bakery case.

Unit 10: Other Means of Disposal

▶ Watch this part of the lecture (4:18:24)

If every case had to travel the full road from FIR to judgment, the courts would never finish. Many pending cases are minor or arise from private quarrels long settled; in some the accused will admit guilt for a lighter sentence; in some the State, for good reasons, no longer wishes to prosecute. The law therefore provides four other roads:

1. plea bargaining;
2. compounding;
3. withdrawal from prosecution;
4. limitation, which can prevent a case from starting at all.

Related to compounding is the High Court's wider power to quash proceedings.

Plea Bargaining

▶ Watch this part of the lecture (4:19:14)

Common in the United States, where a very large share of cases end in negotiated pleas, it was introduced in India by an amendment to the old Code (CrPC) in force from 2006, and is retained in B.N.S.S. Chapter 23, Sections 289 to 300.

Advantages: less burden on courts; no long trial or undertrial detention for the accused; quick compensation for the victim; encouragement to offenders who accept responsibility. Dangers: a poor but innocent accused may plead guilty because he cannot afford a long trial; the police may pressure an accused to plead guilty. Hence the key safeguard is voluntariness.

Indian model: unlike countries where the prosecution may drop a serious charge for a plea to a lesser one, India's scheme is essentially about the sentence: a guilty plea to the offence charged earns a reduced sentence under a fixed formula, with compensation to the victim.

Eligible cases: Sections 289 and 300

The Chapter applies where the offence is not punishable with death, life imprisonment or imprisonment exceeding seven years, both in cases on a police report and in complaint cases where the Magistrate has taken cognizance, examined the complainant and issued process. It is not available where:

• the offence affects the socio-economic condition of the country, as notified by the Central Government;
• the offence is committed against a woman or a child;
• the accused is a juvenile or child as defined in the Juvenile Justice Act (Section 300);
• the accused was previously convicted of the same offence.

Procedure

1. Application (Section 290) in the court where the case is pending, within thirty days from framing of charge (added by B.N.S.S.), with an affidavit that the accused applies voluntarily, understanding the nature and extent of the punishment, and has no previous conviction for the same offence.
2. Notice to the Public Prosecutor or complainant, and to the accused.
3. In camera examination of the accused, without the other side, so he can speak freely and the judge can test voluntariness. If involuntary, or if he has a previous conviction for the same offence, the case proceeds normally from the stage of the application.
4. If voluntary, up to sixty days to work out a mutually satisfactory disposition. Under Section 291 the meeting involves the Public Prosecutor, investigating officer, accused and victim (police report case), or the accused and victim (complaint case). Voluntariness must be ensured throughout; the disposition may include compensation and expenses for the victim.
5. Success: a report signed by the presiding officer and all participants. Failure: the court records it and the case returns to the normal track.

Sentencing formula: Section 293

The court first awards the agreed compensation to the victim, then hears the parties on punishment.

Situation	Sentence
Case fit for probation or admonition	Release on probation or after admonition
Minimum punishment prescribed	Half of the minimum
Minimum prescribed; first-time offender	One fourth of the minimum
No minimum prescribed	One fourth of the punishment provided
No minimum prescribed; first-time offender	One sixth of the punishment provided

Judgment

• Delivered in open court; detention undergone is set off against the sentence.
• Final: no appeal, except a special leave petition under Article 136 or a writ petition under Articles 226 and 227.
• Statements of the accused in the application cannot be used for any other purpose.

Compounding of Offences

▶ Watch this part of the lecture (4:25:51)

Crime is generally a wrong against society, not only the victim, so not every case may be settled privately. Only offences that mainly affect private individuals and are specifically listed are compoundable; all others are non-compoundable.

The two tables in Section 359

Basis	First table	Second table
Who compounds	The person mentioned in the table, usually the person directly harmed (the person hurt or restrained), without the court's permission	Only with the permission of the court before which the prosecution is pending
Examples	Voluntarily causing hurt; wrongful restraint; criminal trespass	Voluntarily causing grievous hurt; cheating and dishonestly inducing delivery of property

For the second table, the court must be satisfied that the settlement is genuine, not obtained by pressure, and proper to allow.

Further rules in Section 359

• Abetment of a compoundable offence, or an attempt where the attempt is itself an offence, may be compounded in the same manner.
• For a person entitled who is a child or of unsound mind, someone competent to contract on his behalf may compound with the court's permission; for one who has died, his legal representative, with the court's consent.
• After committal for trial, or after conviction while an appeal is pending, compounding needs the leave of the court where the case or appeal is pending.
• A High Court or Court of Session acting in revision may allow compounding.
• No compounding where the accused, because of a previous conviction, is liable to enhanced or a different kind of punishment.
• Section 359(8): composition has the effect of an acquittal.
• Section 359(9): no offence shall be compounded except as provided by this section.

Compounding and the High Court's Power to Quash

The trial court cannot allow compounding (Section 359(9)). But the High Court's inherent power under Section 528 (Section 482 of the old Code) allows orders to prevent abuse of the process of any court or otherwise to secure the ends of justice. Can it quash a non-compoundable case on settlement?

Gian Singh v. State of Punjab

▶ Watch this part of the lecture (4:30:24)

1. Distinct powers: compounding is statutory and limited to listed offences; quashing is inherent, guided by the ends of justice and prevention of abuse of process. They differ in nature and scope.
2. Exercise with great care: the power has no rigid limits, but the High Court must weigh the nature and gravity of the crime. Heinous offences involving mental depravity, such as murder, rape and dacoity, should not be quashed even if the victim or family has settled, given their serious impact on society. Offences under special statutes like the Prevention of Corruption Act, or by public servants acting in that capacity, cannot be quashed merely on settlement.
3. Where quashing may be appropriate: cases with an overwhelmingly and predominantly civil flavour, arising from commercial, financial, mercantile, partnership or similar transactions, or from matrimonial or family disputes, where the wrong is basically private and the whole dispute is resolved. The High Court may quash if the chance of conviction is remote and bleak and continuing would cause great oppression and extreme injustice to the accused.

Basis	Compounding	Quashing
Source	Statute (Section 359)	Inherent power (Section 528)
By whom	The parties	The High Court
Offences	Listed offences only	Can extend to non-compoundable offences
Basis of decision	The statutory list	The court's judgment of what justice requires
Result	Acquittal	Proceedings quashed

The power is revisited in Unit 11, including its later application to cases of attempt to murder.

Withdrawal from Prosecution

Here the initiative comes from the prosecution (the State), not the parties. Under Section 360, the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, withdraw from the prosecution of any person at any time before judgment is pronounced, generally or for one or more offences.

Stage	Effect
Before a charge is framed	Discharge
After charge, or where no charge is required	Acquittal

Only the prosecutor in charge can apply: not the police, not the government directly, and not the victim. The court's consent is essential.

Central matters: if the offence relates to a subject of Union executive power, was investigated under a Central Act, damaged Central Government property, or was committed by a Central Government servant in official duty, a prosecutor not appointed by the Central Government must obtain its permission before moving the court, and produce it.

Sheonandan Paswan v. State of Bihar

▶ Watch this part of the lecture (4:34:57)

• The decision belongs to the Public Prosecutor, who must use his own independent judgment as a free agent; he may take the government's advice, but the final decision is his.
• The court should not lightly interfere unless he did not apply his mind or acted in bad faith.
• The court's role is supervisory: without re-trying the case or weighing evidence, it must be satisfied that the application is made in good faith, for public justice, and not to thwart or stifle the process of law.
• Valid grounds: insufficient evidence, or public interest such as restoring communal peace after a riot. Invalid: outside pressure or extraneous reasons.
• Dissent (two judges): the power is not unlimited, must be guided by grounds relevant to public justice, and should not have been allowed in that case.

Compounding and withdrawal distinguished

The two are often confused, so the differences are worth memorising.

Basis	Compounding	Withdrawal
Initiative	Victim and accused settle	Public Prosecutor, for the State, with the court's consent
Offences	Listed offences only	Any offence, compoundable or not
Result	Always acquittal	Discharge before charge; acquittal after charge
Victim	Party to the settlement	Consent not required, but must be heard under B.N.S.S.

Limitation for Taking Cognizance

Limitation stops a case from starting because too much time has passed. Crime is a wrong against society that time does not wash away, so serious offences have no limitation. For minor offences, delay makes evidence stale, witnesses forget and the accused is unfairly troubled; limitation also encourages prompt reporting and investigation.

Periods: Section 514

Chapter 38 (Sections 513 to 519) deals with limitation. Under Section 514, no court shall take cognizance after the following periods:

Offence punishable with	Limitation
Fine only	Six months
Imprisonment up to one year	One year
Imprisonment over one year, up to three years	Three years
Imprisonment over three years	No limitation

For offences tried together, the offence with the most severe punishment determines limitation.

Relevant date: filing, not cognizance

Section 514 speaks of taking cognizance. If a complaint is filed in time but a busy Magistrate takes cognizance after expiry, a time bar would punish the complainant for a delay he cannot control.

Commencement, exclusion and extension

• Section 515: limitation begins on the date of the offence; if the aggrieved person or the police did not know of it, on the first day it comes to their knowledge, whichever is earlier; if the offender was unknown, on the first day his identity becomes known.
• Section 516 excludes, for example: time spent prosecuting another case with due diligence and in good faith in a court lacking jurisdiction; any stay by injunction or order; the period of a required notice or sanction; time when the offender was absent from India or absconding.
• Section 517: if limitation expires when the court is closed, cognizance may be taken when it reopens.
• Section 518: for a continuing offence, a fresh period begins at every moment the offence continues.
• Section 519: any court may take cognizance after limitation if the delay is properly explained or it is necessary in the interests of justice.

The Four Roads Compared

Road	How the case ends	Scope	Result
Plea bargaining	Admission of guilt for a reduced sentence, with compensation to the victim	Offences up to seven years, outside excluded categories	Reduced sentence
Compounding	Settlement between victim and accused	Listed offences only	Acquittal
Withdrawal	Public Prosecutor's application, court's consent, victim heard	Any offence, before judgment	Discharge or acquittal
Limitation	Minor cases brought too late are stopped	Subject to the court's power to condone delay	Case cannot start

Unit 11: Appeals

▶ Watch this part of the lecture (4:43:59)

Why the law allows appeals

Judges are human. However careful, a judge may misread evidence or misunderstand the law, and in a criminal case such a mistake can send an innocent person to prison or let a guilty person walk free. Every mature legal system therefore lets a higher court correct lower courts. In criminal procedure the two main methods are appeal and revision; above both stands the inherent power of the High Court.

Appeal is a creature of statute: Section 413

There is no inherent or natural right of appeal; a person can appeal only if a law gives him that right. Under Section 413 of B.N.S.S., no appeal lies from any judgment or order of a criminal court except as provided by B.N.S.S. or by any other law for the time being in force. Appeals provided by the Constitution, such as appeals to the Supreme Court and special leave petitions under Article 136, stand on their own constitutional footing.

The victim's right of appeal (proviso to Section 413)

▶ Watch this part of the lecture (4:45:19)

The proviso gives the victim a right to appeal against an order:

• acquitting the accused;
• convicting him for a lesser offence; or
• imposing inadequate compensation.

The appeal lies to the court to which an appeal ordinarily lies against a conviction by that court. The Supreme Court's interpretation of this right is covered in Unit 8.

Appeal and revision

Under Section 438, the High Court and the Sessions Court may call for the record of any proceeding before an inferior criminal court to satisfy themselves about the correctness, legality or propriety of any finding, sentence or order, and the regularity of the proceedings.

Point	Appeal	Revision
Nature	Statutory right of the party, where the law provides it	Not a right of the party; a supervisory power of the High Court and Sessions Court
Scope	First appeal is a rehearing on facts and law; the court can reappreciate the evidence and reach its own conclusions	Discretionary; usually confined to errors of law, jurisdiction or serious procedural irregularity, not a detailed re-weighing of evidence
Acquittal	Appellate court can reverse an acquittal (Section 427)	High Court cannot convert an acquittal into a conviction
Other limits	Lies only where a law provides it	Does not lie against interlocutory orders; a party who could have appealed but did not cannot use revision instead

Appeals against conviction: Section 415

Person convicted by	Appeal lies to
A High Court in its extraordinary original criminal jurisdiction	Supreme Court
A Sessions Judge or Additional Sessions Judge	High Court
Any other court, if a sentence of more than seven years was passed against him or a co-accused at the same trial	High Court
A Magistrate of the first or second class	Court of Session

An appeal against a sentence for rape and connected offences under Sections 64 to 68, 70 and 71 of B.N.S. must be disposed of within six months of filing.

• Section 416: where the accused pleaded guilty and was convicted on that plea, there is generally no appeal except as to the extent or legality of the sentence; one who admitted guilt cannot later say the finding of guilt is wrong.
• Section 417: no appeal in certain petty cases where only a very small sentence or fine is imposed.

Appeals by the State

Section 418 (inadequate sentence): the State Government may direct the Public Prosecutor to appeal against a sentence as inadequate. The accused gets an opportunity to show cause, and may also argue for acquittal or reduction of sentence.

Section 419 (acquittal):

• The District Magistrate may direct an appeal to the Court of Session against a Magistrate's acquittal in a cognizable and non-bailable offence.
• The State Government may direct an appeal to the High Court against other acquittals; where a central agency investigated, the Central Government may also direct an appeal.
• An appeal to the High Court against acquittal needs the leave of the High Court.
• In a case instituted on a complaint, the complainant may seek special leave from the High Court within six months if he is a public servant, and within sixty days in other cases.

Powers of the appellate court: Section 427

• Any appeal: dismiss it if there is no sufficient ground for interference.
• Against acquittal: reverse the order and direct further inquiry or retrial, or find the accused guilty and pass sentence.
• Against conviction: acquit, order retrial, alter the finding, or reduce the sentence, but never enhance it.
• For enhancement: enhancement is possible, but never without giving the accused an opportunity to show cause.

Suspension of sentence pending appeal: Section 430

An appeal may take years, and years in prison cannot be returned if the convict is later acquitted. So, pending appeal, the appellate court may, for recorded reasons, suspend the sentence and release the convict on bail or his own bond.

• For an offence punishable with death, life imprisonment, or ten years or more, the Public Prosecutor must first get an opportunity to show cause in writing against release.
• Where a convict is released on bail, the Public Prosecutor may apply for its cancellation.
• Trial court's power: if the convict was on bail during trial and is sentenced to imprisonment not exceeding three years, or was convicted of a bailable offence and is on bail, the trial court, if satisfied that he intends to appeal, shall release him on bail unless there are special reasons for refusing. The bail lasts long enough to present the appeal and obtain the appellate court's orders, and the period is excluded when computing the sentence if the conviction is upheld.

Finality: Sections 434 and 403

• Section 434: judgments and orders of an appellate court on appeal are final, except where expressly provided, such as revision.
• Section 403: once a criminal court has signed its judgment or final order, it cannot alter or review it, except to correct a clerical or arithmetical error or where B.N.S.S. or another law provides otherwise.

Inherent Powers of the High Court

▶ Watch this part of the lecture (4:54:01)

Section 528 of B.N.S.S. repeats Section 482 of the old Code (CrPC). Nothing in B.N.S.S. limits or affects the inherent powers of the High Court to make orders necessary:

1. to give effect to any order under B.N.S.S.;
2. to prevent abuse of the process of any court; or
3. otherwise to secure the ends of justice.

• Saved, not conferred: the section does not create the power; it saves it. The power belongs to the High Court as a superior court of record. No statute can foresee every situation, so where B.N.S.S. is silent and injustice would result, the inherent power fills the gap.
• High Court only: a Sessions Court or Magistrate has no inherent power under this section and must act within the powers specifically given.

Statutory power	Inherent power
Defined by its section (bail, compounding, withdrawal), with conditions and limits written into the text	Not tied to any particular situation; wide, so used sparingly, carefully, and only where the ends of justice clearly require

Quashing of FIRs and Proceedings

The commonest use of the inherent power is to quash an FIR, a complaint or criminal proceedings. A person who believes the case is baseless or malicious may approach the High Court under Section 528 and under Article 226. But investigating a cognizable offence is the statutory right and duty of the police, and courts should not ordinarily interfere.

State of Haryana v. Bhajan Lal

▶ Watch this part of the lecture (4:55:12)

The illustrative categories

1. The allegations, even taken at face value and accepted entirely, make out no offence.
2. The allegations disclose no cognizable offence, so police investigation without a Magistrate's order is unjustified.
3. The undisputed allegations and evidence collected disclose no offence or case against the accused.
4. Only a non-cognizable offence is disclosed and the police investigate without a Magistrate's order.
5. The allegations are so absurd and inherently improbable that no prudent person could find sufficient ground to proceed.
6. There is an express legal bar to the proceedings (for example, absence of a required sanction), or the law provides a specific and effective remedy.
7. The proceeding is manifestly mala fide, or maliciously instituted with an ulterior motive to wreak vengeance out of private or personal grudge.

Settlement and Quashing

A difficult question remained about attempt to murder (Section 307 of the IPC, now Section 109 of B.N.S.): non-compoundable and serious, yet sometimes the parties are neighbours or relatives, the injury is minor, and they have genuinely reconciled. Different benches had given somewhat different signals.

State of Madhya Pradesh v. Laxmi Narayan

▶ Watch this part of the lecture (4:59:47)

• Non-compoundable offences may be quashed where the case is overwhelmingly civil in character and the parties have resolved their entire dispute.
• Not for heinous and serious offences like murder, rape and dacoity, which seriously affect society; nor for offences under special statutes like the Prevention of Corruption Act, or by public servants in that capacity.
• Attempt to murder and Arms Act offences are not to be quashed merely because the parties have settled.
• The High Court may examine whether the attempt to murder charge was added merely for the sake of it, looking at the nature of the injury, whether on a vital part, the weapon used and the evidence collected.
• That examination is allowed only after investigation (after the charge-sheet is filed or the charge framed, or during trial), not while the matter is under investigation.
• In offences of a private nature, the court must also weigh the antecedents and conduct of the accused (for example, whether he absconded) and how the compromise came about.

These principles apply under Section 528, whose words are unchanged.

Type of case	Quashing on settlement
Private disputes with a civil flavour	May be quashed on genuine settlement
Heinous offences and offences against society	Generally may not
Middle category, such as attempt to murder	Court examines the substance after the evidence is collected, not just the name of the offence or the fact of compromise

The High Court must hold the balance. Used properly, the power saves innocent people from harassment, stops the misuse of criminal law to settle civil scores and brings closure to private disputes; used too freely, it can stop genuine prosecutions at the start and let powerful accused escape investigation.

Unit 12: Maintenance and Urgent Orders in Cases of Nuisance or Apprehended Danger

▶ Watch this part of the lecture (5:02:47)

Two proceedings stand apart from the ordinary prosecution of offences: the order for maintenance of wives, children and parents (Chapter X), and an Executive Magistrate's power to issue urgent orders (Section 163). Neither punishes a past crime: the first prevents destitution, the second prevents danger to the public.

Maintenance of Wives, Children and Parents

The aim is not punishment but a quick and inexpensive remedy against vagrancy and destitution. A wife, children or aged parents abandoned by a man of means cannot wait years for a civil suit; the criminal court can quickly order a monthly allowance through a summary procedure. It is a measure of social justice and is secular, applying to persons of every religion regardless of personal law.

Section 144: the basic rule

If any person having sufficient means neglects or refuses to maintain the persons below, a Magistrate of the first class may, on proof of neglect or refusal, order a monthly allowance at a rate he thinks fit. Who can claim:

1. his wife, unable to maintain herself;
2. his legitimate or illegitimate child, married or not, unable to maintain itself;
3. his legitimate or illegitimate major child (not a married daughter) unable to maintain itself because of physical or mental abnormality or injury;
4. his father or mother, unable to maintain himself or herself.

The father of a female child, even if married, may be ordered to maintain her until majority if her husband lacks sufficient means. Where Family Courts exist, they generally hear these applications.

• Sufficient means: an able-bodied man capable of earning is treated as having means; he cannot escape by choosing not to work.
• Neglect or refusal to maintain must be shown.
• The claimant must be unable to maintain herself or himself.
• There is no upper limit on the amount.

Interim maintenance and procedure

• During the proceedings, the Magistrate may order interim maintenance and the expenses of the proceeding. The application shall, as far as possible, be decided within sixty days of service of notice.
• The allowance runs from the date of the order or, if the court so orders, from the date of the application.
• Section 145 (place): any district where the person is, where he or his wife resides, where he last resided with his wife or with the mother of an illegitimate child, or where his father or mother resides. The woman can thus file where she now lives.
• Evidence is taken in the presence of the person or his advocate and recorded as in a summons case. If he wilfully avoids service or neglects to attend, the Magistrate may proceed ex parte.

Enforcement, refusal and cancellation

• Section 144(3): for every breach, a warrant may issue to levy the amount as fines are levied; for each month's allowance still unpaid after the warrant is executed, imprisonment up to one month or until earlier payment. Recovery must be sought within one year of the amount falling due.
• Offer to maintain if she lives with him: if the wife refuses, the Magistrate may consider her grounds and still order maintenance if there is just ground. The husband marrying another woman or keeping a mistress is expressly a just ground.
• Wife not entitled if she is living in adultery, refuses without sufficient reason to live with her husband, or they live separately by mutual consent; on proof, the Magistrate shall cancel the order.
• Section 146: the allowance may be altered on proof of a change in circumstances.

The divorced Muslim woman

In 1985 the Supreme Court held that a divorced Muslim woman unable to maintain herself could claim under Section 125 of the old Code (now Section 144). In 1986 Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, providing for a reasonable and fair provision and maintenance by the former husband; the Supreme Court later read it so as to protect divorced Muslim women.

Shamim Bano v. Asraf Khan

▶ Watch this part of the lecture (5:09:15)

In 2024 the Supreme Court again affirmed that a divorced Muslim woman may seek maintenance under this provision in addition to her rights under the Act of 1986. Section 144 of B.N.S.S. carries the old words, and the same Explanation, almost unchanged, so the position continues.

Rajnesh v. Neha: guidelines

▶ Watch this part of the lecture (5:11:01)

1. Overlapping claims (under the Code, the Hindu Adoptions and Maintenance Act, the Protection of Women from Domestic Violence Act, the Hindu Marriage Act): the applicant must disclose earlier proceedings and orders, and a later court must adjust maintenance already awarded.
2. Affidavit of disclosure of assets and liabilities by both parties, in a prescribed format.
3. Criteria for the amount: status of the parties, reasonable needs of wife and children, income and property of both sides, and the husband's financial obligations.
4. Maintenance from the date of application in all cases, since delay should not punish the wife.
5. Orders enforceable like money decrees, apart from the Code's remedies.

As Section 144 re-enacts the old section, the guidelines remain relevant.

Urgent Orders in Cases of Nuisance or Apprehended Danger

Prohibitory orders forbidding gatherings during a risk of riots, violent protests or danger to public safety were the famous Section 144 orders of the old Code. The same power, in almost identical words, is now Section 163 of B.N.S.S.

The power under Section 163

• Who: a District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government.
• When: there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable.
• How and what: by a written order stating the material facts, directing any person to abstain from a certain act or to take certain order with respect to property in his possession or management.
• To prevent: obstruction, annoyance or injury to any person lawfully employed; danger to human life, health or safety; disturbance of the public tranquillity; a riot; or an affray.

Safeguards

• The power is with Executive Magistrates, not the police, and only for an emergency.
• The order must be in writing, stating material facts; it may be ex parte in an emergency or where there is no time to serve notice.
• It may be directed to a particular person, to residents of an area, or to the public generally when frequenting or visiting a particular place.
• It lasts no more than two months. The State Government may, by notification, extend it for up to six months more if necessary to prevent danger to human life, health or safety, or a riot or affray.
• Any Magistrate may rescind or alter the order on his own motion or on an aggrieved person's application (the State Government, its own extension). The applicant gets an early opportunity to show cause, and a rejection must be reasoned.

The power is sensitive because it restricts Article 19 rights: speech and expression, peaceable assembly and movement. Reasonable restrictions are allowed in the interests of public order, but an emergency power can easily be misused to silence peaceful protest, so courts insist on genuine emergencies, reasons and proportionality.

Ramlila Maidan Incident, In Re

Anuradha Bhasin v. Union of India

▶ Watch this part of the lecture (5:18:35)

Principles on prohibitory orders, now applicable to Section 163:

• They may be used for a present danger or an apprehension of danger, but the danger must be in the nature of an emergency.
• They cannot suppress legitimate expression of opinion or grievance or any democratic right.
• The Magistrate must state material facts so the order can be judicially reviewed, and apply proportionality, choosing the least intrusive measure.
• Repeated orders amounting to a continuing restriction are an abuse of power.
• All orders must be published so that those affected can challenge them.

Preventive Power and Liberty

Proceeding	Protects	Safeguards
Maintenance	The vulnerable from destitution	Proof of neglect, sufficient means and inability to self-maintain, with a fair hearing
Urgent orders (Section 163)	The public from imminent danger	Genuine emergency, written order with material facts, time limits, right to seek review, proportionality, judicial scrutiny

Power and Safeguard: the Theme of Criminal Procedure

Every power given to the State comes with a safeguard for the citizen: to register a case, the duty to register honestly; to arrest, necessity and the arrested person's rights; to detain, judicial control and time limits; to prosecute, a fair trial; to punish, a hearing on sentence and a right of appeal.

Quick revision

• FIR: information about a cognizable offence may reach any police station, orally or electronically; the FIR must be registered, subject to the limited preliminary enquiry for offences of middle seriousness; on refusal, approach the Superintendent of Police, then the Magistrate with an affidavit. Non-cognizable matters are referred to the Magistrate; a complaint goes straight to the Magistrate, who must hear the accused before cognizance.
• Investigation and arrest: the police visit the scene; forensic experts in serious cases as the rule is phased in; witnesses questioned without compelling anyone to incriminate himself; confessions only before a Magistrate; arrest only where truly necessary, with reasons in writing in less serious cases and written grounds always; memo, information to family, medical examination, production within 24 hours; otherwise a notice to appear.
• Custody and bail: police and judicial custody within strict limits; default bail after 60 or 90 days; searches before witnesses and on camera; regular or anticipatory bail.
• Pre-trial and trial: sanction, cognizance, summons or warrants, documents within 14 days, committal; discharge or charge; trial in the form suited to the case, with evidence, cross-examination, examination of the accused, arguments, reasoned judgment within time limits, hearing on sentence.
• Fairness: impartial judge, honest prosecutor, defence lawyer and legal aid; victims informed, heard, compensated and able to appeal; witnesses protected.
• Other endings and correction: plea bargaining, compounding, withdrawal, limitation; appeal or revision; the High Court's inherent power to prevent abuse of process and secure the ends of justice.
• Special proceedings: maintenance protects deserted wives, children and parents; urgent orders protect the public in danger, within constitutional limits.
• Running theme: every power of the State comes with a safeguard for the citizen.