Magisterial Power to Take Cognizance (Bhartiya Nagarik Suraksha Sahita -

BNSS)
The Bhartiya Nagarik Suraksha Sahita (BNSS) outlines specific provisions
regarding the magisterial power to take cognizance of complaints and the
subsequent actions that can be taken. Understanding this process is crucial for
legal practitioners and students of law to appreciate how cases are initiated
and handled at the magistrate level.
1. Taking Cognizance on Presentation of Complaint:
o Section 210: This section grants the magistrate the authority to
take cognizance upon the presentation of a complaint. It serves as
the initial step in legal proceedings, where the magistrate
examines the complainant to assess the nature and details of the
complaint. This examination helps the magistrate understand the
seriousness of the allegation and whether it warrants legal action.
o Section 223: Following the presentation of the complaint, the
magistrate engages in a preliminary examination. This step is
critical as it allows the magistrate to determine if there is a prima
facie case based on the available facts and evidence. If the
complaint does not disclose a sufficient ground for initiating legal
proceedings, the magistrate may reject it at this stage.
2. Order Investigation:
o Section 175(3): If the magistrate is not convinced by the initial
complaint and requires more information, they may order an
investigation into the matter. This is particularly useful when the
complaint lacks clarity or when there is a need to gather more
evidence to substantiate the allegations. The investigation report
provides a deeper insight into the case, helping the magistrate
make a more informed decision about whether to proceed with
legal action.
o Take Cognizance Based on Investigation Report (Section 210): If
the investigation report supports the allegations and provides
sufficient evidence, the magistrate can take cognizance based on
this report. This is a critical step as it indicates that the complaint
has merit and justifies the initiation of legal proceedings.
 o Reject Investigation Report and Order Inquiry (Section 225): On
the other hand, if the investigation report is not satisfactory or
fails to provide sufficient evidence to support the complaint, the
magistrate may order an inquiry. This allows the court to delve
deeper into the matter, gathering additional facts and testimony to
determine whether the complaint should proceed further.
o Take Cognizance Based on Inquiry (Section 210): If the inquiry
confirms the validity of the complaint by establishing a prima facie
case, the magistrate can take cognizance. This ensures that only
those complaints with sufficient grounds continue to legal
proceedings.
o Dismiss Complaint (Section 226): If the inquiry does not
substantiate the complaint or finds it lacks merit, the magistrate
may dismiss it. This is an important safeguard to prevent the
misuse of legal processes and ensures that only well-founded
complaints are pursued.
3. Further Actions:
o The magistrate plays a crucial role in filtering complaints at the
preliminary stage, ensuring that only those with a valid basis
proceed to legal proceedings. This process is vital for maintaining
the efficiency and fairness of the legal system. By ordering
investigations or inquiries, the magistrate ensures that all
necessary evidence is considered before making a decision. This
multi-step approach helps in weeding out frivolous complaints and
ensures that the court’s resources are utilized judiciously.
o This framework not only protects the rights of the accused by
preventing baseless accusations but also upholds the integrity of
the justice system by ensuring that only legitimate cases move
forward. The magisterial power to take cognizance thus reflects a
balanced approach that integrates both flexibility and rigor in the
administration of justice.
 CHARGES AND JOINDER OF CHARGES UNDER BNSS
1. Definition of Charge:
o A charge is an accusation in writing that a person has committed
an offence.
o Section 2(f) of the BNSS defines a charge to include any head of
charge when there is more than one.
o A charge is concrete and not an abstract accusation, meant to
inform the accused clearly about the case to be met.

In the VC Shukla v. State through CBI case (1980 Cr. L.J, 690 SC), the Supreme Court stated
that a charge serves as a formal notice to the accused, using specific legal language. It
provides clear and unambiguous information about the nature of the accusation the accused
will need to address during the trial.

2. Essentials of a Valid Charge:

o Section 234: The charge must specify:
 The offence with which the accused is charged.
 If the law gives a specific name to the offence, it should be
described by that name.
 A brief description of the offence if no specific name exists.
 Mention of the legal section under which the offence falls.
 If the accused has a previous conviction affecting
punishment, this must be stated.
o Section 235: The charge form includes:
 Detailed particulars such as time, place, and involved
person(s).
 When dealing with offences of criminal breach of trust or
misappropriation, gross sum and dates are sufficient.
o Section 236: In cases where particulars in sections 234 and 235 do
not provide sufficient notice, more details should be added.
o Section 237: Words used in the charge should be interpreted
according to the law under which they are punishable.
 o Section 238: Errors in charge (either offence or particulars) are not
material unless they mislead the accused.
o Section 239: Charges can be altered or added at any time before
judgement.
o Section 240: Altered charges allow re-examination of witnesses.
o Section 241: Separate charges for distinct offences.
o Section 242: For similar offences committed within twelve months,
they can be tried together.
o Section 243: Related offences (e.g., criminal breach of trust and
falsification of accounts) can be tried together.
o Section 244: Uncertainty regarding which offence was committed
allows charges for multiple offences.
o Section 246: Joint trial of several persons under specified
conditions.
o Section 247: Withdrawal of remaining charges on conviction of
one of several distinct charges.
https://thelegalquotient.com/criminal-laws/bharatiya-nagarik-suraksha-sanhita/charge-under-bnss/
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Joinder of Charges (Bharatiya Nagarik Suraksha Sanhita - BNSS)

Joinder of Charges refers to the legal process of grouping multiple charges or
offenses against a single accused person into one trial. This is done to
streamline the judicial process and improve efficiency, especially when similar
crimes are alleged. BNSS provides specific rules and exceptions for this process.
General Rule under Section 241
 Separate Charge for Distinct Offenses:
o Section 241 mandates that each distinct offense must have a
separate charge.
o However, it allows for exceptions where similar offenses can be
joined in one trial.
Exceptions to the General Rule
  Application by the Accused:
o If an accused requests by a written application, the magistrate may
order all offenses to be charged jointly.
o This does not prejudice the accused’s rights.
 Offenses of the Same Kind within a Year (Section 242):
o If a person commits multiple similar offenses within twelve
months, they can be tried together for up to five offenses in one
trial.
o This applies when the offenses are punishable under the same
sections of BNSS or similar laws.
Trial for More Than One Offense (Section 243)
 Single Transaction:
o If offenses arise from a single transaction or a series of connected
acts, they can be tried together.
o This includes cases where multiple offenses stem from a common
criminal intent or act.
 Related Offenses:
o Where a series of acts constitute a single crime, such as criminal
breach of trust or misappropriation of property with falsification
of accounts, they can be tried together.
 Doubtful Offense (Section 244):
o If it is unclear which offense the evidence will support, the
accused can be charged with all possible offenses.
o The court can try multiple charges simultaneously or choose the
most appropriate charge based on the evidence.
Joint Trials (Section 246)
 Criteria for Joint Trials:
o Individuals involved in the same illegal activity or who have
committed offenses during the same time frame may be tried
together.
 o This includes cases where individuals are suspected of aiding or
abetting a crime or where similar offenses are committed against
the same person(s) within a year.
 Counterfeiting and Related Offenses:
o Charges related to counterfeiting or similar crimes can be joined if
they are part of the same criminal activity.
Withdrawal of Charges (Section 247)
 If one or more charges against an accused are proven, the prosecutor
may withdraw the remaining charges.
 The court can suspend proceedings on these charges if necessary.
When an Offense is Included (Section 245)
 If a minor offense is proven as part of a major offense, it is deemed
included in the charge.
Case Laws:
 Balakrishna v. State (AIR 1958 Ker 283): Emphasizes the importance of
proper charge framing for a fair trial.
 Ranchhod Lal v. State of Madhya Pradesh (AIR 1964): Clarifies that
procedural irregularities in charge framing do not invalidate proceedings
unless they prejudice the accused.
 Kailash Gir v. V. K. Khare (1981) Cri LJ 1556 (MP): Stresses that
irregularities in charge framing are not fatal unless they cause prejudice
to the accused.
This approach ensures that trials are conducted efficiently and fairly, allowing
the court to address all relevant offenses in one proceeding when appropriate.
 Section 94 to 110 of BNSS: PROCESS TO COMPEL THE PRODUCTION OF
THINGS
Introduction
Chapter VII of The Bharatiya Nagarik Suraksha Sanhita, 2023 details the
processes to compel the production of documents and items required for legal
proceedings. It includes procedures for issuing summons to produce
documents, search warrants, and other provisions related to search and seizure
activities.
Section 94: Summons to Produce Document or Other Thing
 Courts or police officers can issue written orders (physical or electronic)
requiring individuals to produce documents, electronic communications,
or other items needed for legal proceedings.
 Items must be presented at a specified time and place.
 Exceptions exist for documents under other laws and those in postal
custody.
 Ensures a structured process for collecting essential evidence.
Section 95: Procedure as to Letters
 Deals with documents, parcels, or items in postal custody required for
investigations, inquiries, or trials.
 District magistrates, chief judicial magistrates, or courts can order postal
authorities to deliver these items to specified individuals or hold them
until further orders.
 Facilitates access to necessary materials held by postal authorities.
Section 96: When Search-Warrant May be Issued
 Grants courts authority to issue search warrants under specific
conditions:
o When a person is unlikely to produce the required items.
o When the location of the items is unknown.
o When a general search is needed for an inquiry, trial, or other
proceeding.
  Specifies the scope of the search and restricts issuance to specific judicial
authorities.
Section 97: Search of Place Suspected to Contain Stolen Property, Forged
Documents, etc.
 Authorizes magistrates and police officers to search premises suspected
of harboring stolen property or objectionable articles.
 Allows seizure of suspected items and arrests if necessary.
 Provides legal authority for search and seizure operations in criminal
cases.
Section 98: Power to Declare Certain Publications Forfeited and to Issue
Search Warrants for Same
 Allows the State Government to declare copies of publications containing
punishable content forfeited to the government.
 Police officers can seize these publications nationwide.
 Magistrates can issue search warrants for premises suspected of holding
such content.
Section 99: Application to High Court to Set Aside Declaration of Forfeiture
 Permits individuals with an interest in a forfeited publication to apply to
the High Court to challenge the declaration of forfeiture.
 High Court, possibly through a Special Bench, hears the application and
can set aside the declaration if the publication did not contain
punishable content.
Section 100: Search for Persons Wrongfully Confined
 Empowers District Magistrates, Sub-divisional Magistrates, or
Magistrates of the first class to issue search warrants if there is reason to
believe a person is wrongfully confined.
 Allows designated individuals to search for and present the confined
person before a Magistrate.
 Ensures swift intervention in cases of suspected unlawful confinement.
Section 101: Power to Compel Restoration of Abducted Females
  Grants District Magistrates, Sub-divisional Magistrates, or Magistrates of
the first class the authority to address complaints of abduction or
unlawful detention of women or female children under 18.
 These magistrates can issue orders for the immediate restoration of
affected individuals to their liberty or lawful guardians.
 The use of necessary force is allowed if required.
 Aims to protect the rights and safety of vulnerable individuals,
particularly women and children.
Section 102: Direction, etc., of Search-Warrants
 Applies general provisions related to search warrants to warrants for
searching premises suspected of containing stolen property, forged
documents, or other objectionable articles.
 Requires two or more independent and respectable inhabitants to
witness the search.
 The occupant or a representative must be allowed to attend the search.
 A list of all seized items must be prepared and signed by witnesses.
 Ensures transparency and accountability in search operations.
Section 103: Persons in Charge of Closed Place to Allow Search
 Mandates individuals residing in or in charge of closed premises to allow
officers executing a search warrant free ingress and provide facilities for
the search.
 If entry is denied, officers can proceed according to Section 44
procedures.
 Requires the presence of witnesses during searches.
 Non-compliance may result in legal consequences as specified in Section
220.
Section 104: Disposal of Things Found in Search Beyond Jurisdiction
 Deals with the execution of search warrants issued by courts beyond
their local jurisdiction.
  Items found at a place outside the issuing court’s jurisdiction are taken
before the issuing court or the nearest magistrate with jurisdiction.
 Ensures effective execution of search warrants, even when items are
found outside the immediate jurisdiction.
Section 105: Recording of Search and Seizure through Audio-Video Electronic
Means
 Mandates the use of audio-video electronic means (preferably cell
phones) to record the search and seizure process.
 Police officers must promptly forward these recordings to the District
Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first
class.
 Enhances transparency and accountability in search and seizure
activities.
Section 106: Power of Police Officer to Seize Certain Property
 Grants police officers authority to seize property suspected to be stolen
or associated with criminal activities.
 The officer must promptly report the seizure to the magistrate having
jurisdiction.
 Outlines procedures for handling seized property, including reporting to
the magistrate and transfer of custody under a bond.
 Provides expedited procedures for the sale of perishable or low-value
property.
Section 107: Attachment, Forfeiture, or Restoration of Property
 Authorizes police officers to seize property suspected of deriving from
criminal activities with higher authority approval.
 Allows affected individuals to show cause within fourteen days.
 Upon court determination, property may be attached or forfeited to the
Government if no claimants emerge.
 Strengthens crime-fighting efforts with judicial oversight.
Section 108: Magistrate May Direct Search in His Presence
  Empowers any magistrate to directly oversee and authorize searches in
places for which they can issue a search warrant.
 Enhances transparency, accountability, and adherence to due process
within the legal framework.
Section 109: Power to Impound Document, etc., Produced
 Grants courts the authority to impound any document or item produced
before them under the Sanhita.
 Ensures the safekeeping of documents/items relevant to legal
proceedings, preventing unauthorized removal or tampering.
Section 110: Reciprocal Arrangements Regarding Processes
 Enables courts in the Sanhita’s territories to issue and execute summons,
warrants, or search warrants outside their jurisdiction.
 Promotes cooperation with courts in other Indian states or foreign
countries for service or execution of legal processes.
 Mandates the execution of processes received from other jurisdictions as
if they were issued locally, bolstering law enforcement efficacy.
 BAIL
Definition of Bail under the Bharatiya Nagarik Suraksha Sanhita, 2023:
Section 2(1)(b) defines bail as the release of an accused or suspected person
from law custody under specific conditions set by an officer or court, upon the
execution of a bond or a bail bond.
Chapter-XXXV (Sections 478 to 496) of the Bharatiya Nagarik Suraksha
Sanhita, 2023:
 Deals with various provisions related to bail and bonds.
 Specifies when bail is a right of the accused, when it’s at the court’s
discretion, and the conditions that must be observed by the accused.
 Outlines the court’s powers if an accused defaults on bail.
Concept of Bail Objectives:
 Presumption of Innocence: Upholds the principle that an accused is
innocent until proven guilty, allowing freedom while awaiting trial.
 Ensuring Appearance in Court: Provides incentives for the accused to
attend their trial, with consequences if they fail to do so.
 Protecting the Public: Bail conditions may include restraining orders or
monitoring requirements to protect society.
 Preventing Flight Risk: Bail may be denied or set high if there’s a risk of
the accused fleeing to avoid trial.
In Sanjay Chandra v. CBI, (2012) 1 SCC 40 case, the Supreme Court defined the
objective of bail as:
 Not punitive or preventative: Bail aims to secure the accused’s
appearance at trial, not to punish.
 Necessity test: Deprivation of liberty should be a last resort, only if
necessary to ensure trial attendance.
 Respect for personal liberty: Detention pending trial must be avoided
unless absolutely required.
When Bail Can Be Granted:
Types of Bail in the Bharatiya Nagarik Suraksha Sanhita, 2023:
 1. Bail in Bailable Offenses (Section 478):
o Granted by an officer in charge of a police station or a court if the
offense is bailable.
o The person can be released immediately upon request.
2. Bail in Non-Bailable Offenses (Section 480):
o Discretionary; granted only by a court (any level) if a strong case is
presented.
o The decision is based on judicial discretion according to Section
437 BNSS.
3. Anticipatory Bail (Section 482):
o Available if a person fears arrest for a non-bailable offense.
o Can be granted by the Sessions Court or High Court before an
arrest.
4. Bail After Conviction (Section 430):
o Allows a convicted person to apply for bail under specific
conditions.
5. Bail on Default (Section 187(2)):
o If an investigation is not completed within 60 (or 90) days, the
accused is entitled to bail automatically.
o This right is not discretionary and ensures the accused’s release if
the police fail to meet the investigation timeline.
6. Interim Bail:
o Temporary release pending a bail decision.
o Conditions apply and can be extended based on circumstances.
7. Medical Bail:
o Granted on medical grounds if the accused requires treatment.
o Focuses on the individual’s health needs rather than the merits of
the case.
Who Can Grant Bail?
  Bailable Offenses: The officer in charge of a police station or the court
(as per Section 478 BNSS).
 Non-Bailable Offenses: Only a court (any level) can grant bail (as per
Section 480 BNSS).
 Anticipatory Bail: Session Court or High Court (as per Section 482 BNSS).
 Bail After Conviction: Court can decide, considering the nature of the
offense and previous criminal record.
 Default Bail: Automatic if the police fail to complete an investigation
within the specified period (Section 187 BNSS).
Bail Bond vs. Bond:
1. Bail Bond:
o Definition: A bail bond is an undertaking for release with surety
according to Section 2(1)(d) of the Bharatiya Nagarik Suraksha
Sanhita, 2023.
o Involvement: Involves a third party (bail bondsman) who provides
a financial guarantee to ensure the defendant’s appearance in
court.
o Collateral: The bondsman may require collateral (property, assets)
to secure the bond.
o Responsibility: The bondsman assumes the risk and guarantees
the defendant’s appearance.
o Forfeiture Risk: If the defendant fails to appear, the bond can be
forfeited, and the bondsman must pay the amount to the court.
2. Bond:
o Definition: A bond is a personal undertaking without surety
according to Section 2(1)(e) of the Bharatiya Nagarik Suraksha
Sanhita, 2023.
o Payment: The defendant or their family pays the full amount
directly to the court.
o Responsibility: The defendant or their family is directly
responsible for the full bond amount.
 o Flexibility: Personal bonds allow release without requiring a third
party’s involvement.
Few Provisions Regarding Bail and Bonds in BNSS:
 Section 478 BNSS (equivalent to Section 436 CrPC): Specifies when bail
should be taken.
 Section 479 BNSS (equivalent to Section 436A CrPC): Sets the maximum
period for undertrial detention.
 Section 480 BNSS (equivalent to Section 437 CrPC): Outlines when bail
may be granted for non-bailable offenses.
 Section 481 BNSS (equivalent to Section 437A CrPC): Bail is required to
ensure appearance before the appellate court.
 Section 482 BNSS (equivalent to Section 438 CrPC): Details how
anticipatory bail should be granted.
 Section 483 BNSS (equivalent to Section 439 CrPC): Special powers of
the High Court and Sessions Court regarding bail.
Power of Sessions Court and High Court Regarding Bail:
Section 483 BNSS (S. 439 CrPC):
 Grants special powers to the High Court or Court of Session regarding
bail.
 They can direct the release of an accused in custody on bail with any
necessary conditions.
 They can set aside or modify conditions imposed by a Magistrate.
 For offences exclusively triable by the Sessions Court, they must give
notice to the Public Prosecutor unless impracticable.
 They can also order the arrest and custody of a person released on bail
under this section.

Cancellation of Bail:
The general rule is that bail is the rule, and jail is an exception. However, if
strong grounds are shown, courts have the power to cancel a person’s bail.
Lower Courts and Magistrates: Can cancel bail under Section 480(5) BNSS (S.
437(5) CrPC). High Court and Court of Session: Have authority under Section
483(2) BNSS (S. 439(2) CrPC).
Considerations for Cancellation of Bail:
 Nature and severity of the accusation.
 Severity of punishment if convicted.
 Potential influence on witnesses or victims.
 Capacity to obstruct justice.
 Risk of reoffending.
 Prima facie evidence supporting the charge.
 Risk of tampering with evidence.
 Likelihood of absconding from proceedings.
Case Law:
 Ram Govind Upadhya Vs. Sudarshan Singh, 2002 Cr.L.J 1849 (SC): The
state or an aggrieved party can move for bail cancellation.
 R.J Sharma Vs. R.P. Patankar, 1993 CRILJ 1550: Magistrates must
consider bail cancellation applications and give the accused a chance to
be heard.
 Dolat Ram v. State of Haryana, (1955) 1 SCC 349: Bail can only be
cancelled if there are overwhelming circumstances, like interference with
the investigation or tampering with evidence.