Q1. How is an Executive Magistrate appointed?

What are the powers and functions of

Executive Magistrates? 2022+2018
Ans:
Introduction:

As per the Bharatiya Nagrik Suraksha Sanhita, the allocation of magisterial

functions is divided into two categories of Magistrates - “Judicial Magistrates”
under the control of High Court and “Executive Magistrates” under the control
of state government.
Executive Magistrate:
Sections 14 to 19 of the BNSS deal with the appointment of Executive Magistrates by
the State Government in every district, their jurisdiction and hierarchy. A major
amendment in the BNSS (Section 15) is that besides the Executive Magistrate, the
State Government can also appoint any police officer not below the rank of a
Superintendent of Police or equivalent to be known as a Special Executive Magistrate.

Appointment of Executive Magistrate:

Appointment of executive magistrates is by the executive branch of the

government and their superintendence and control also vests with the executive.
The state government also has powers to appoint special executive magistrates
for a particular area or for the performance of particular functions.

Powers of Executive Magistrate

Under the BNSS, the executive magistrates are granted a number of powers,
including some of the following −

Search Warrants

 Giving a police officer permission to search a location where it may be possible to find stolen
goods, fraudulent documents, etc.
 Look for people who are unjustly imprisoned.
 The ability to enforce the return of kidnapped girls.
Security for keeping peace and good behavior

 Protection to maintain tranquility;

 Protection from those spreading seditious ideas in exchange for good behavior.
 Protection in exchange for suspects' good behavior. Security from repeat offenders for good
behavior.
 Order to be issued when Magistrate acting under Sections 107, 108, and 110.
 Procedure for those who are in court.
 Summons or warrant if the person is not in attendance.

Unlawful assemblies

 The use of civil force to disperse an unauthorized gathering.

 Using the armed forces to disperse an unauthorized gathering
 The ability of some military personnel to disperse an unauthorized gathering

Conditional order for removal nuisance

 Conditional order for nuisance abatement service or order notice. Public nuisances may not be
repeated or continued, according to the magistrate.
 The recipient of an order must comply with it or give justification.
 The authority of the magistrate to oversee local research and expert interrogation.

Dispute as to immovable property

The magistrates have the authority to attach the subject of the dispute and
appoint a receiver or order that a specific status quo may be maintained in cases
of urgency involving nuisance or suspected danger to the local community's law,
order, and security (usually in favor of the person in possession of the property
on the date of the decision).

Unnatural death investigations and inquests

Police must investigate and notify the closest Executive Magistrate of any suicides
or other serious incidents. In these situations, magistrates have the authority to
call people in for an investigation.
Conclusion
The regulations giving the Executive Magistrates their authority were constructed
along the lines of "Prevention is better than cure." This shows how important the
position of an executive magistrate is to the operation of the legal system, in
whatever capacity they serve.

Q2. Write an exhaustive note on nature, scope and objectives of the Bharatiya
Nagrik Suraksha Sanhita. 2022
Ans:
Introduction:
The Bharatiya Nagrik Suraksha Sanhita, 2023 replaces the outdated Code of Criminal
Procedure, 1973 with a modernized framework aimed at addressing contemporary legal
challenges. It is aligned with human rights guidelines and ensures fairer treatment of the
accused.
Nature:
i. Modernization: The CrPC was originally designed for colonial India’s legal
environment. It is outdated in addressing contemporary challenges such as cybercrime
and organized crime. The BNSS introduces provisions that fit today’s digital and
forensic needs.
ii. Efficiency and Speed: The BNSS aims to reduce case backlogs and trial delays by
setting clear timelines for procedures like medical reports and judgement delivery.
iii. Enhanced Forensic Integration: The new Bill mandates forensic investigations for
serious crimes. It leverages modern technology to strengthen evidence collection and
criminal investigations.
iv. Balanced Police Powers: While expanding police authority to improve law
enforcement efficacy, the BNSS also introduces necessary safeguards to prevent
misuse and protect individual rights, addressing past issues of arbitrary detentions.
v. Rights of the Accused: The BNSS aims to better protect under trial prisoners and
aligns more closely with Supreme Court human rights guidelines. It offers clearer rights
and fairer treatment.
Scope:
i. Separation of Offences: It categorizes offences into cognizable and non-cognizable.
For cognizable offences, police can arrest and start investigations without a warrant.
Non- cognizable offences require a warrant and, in some cases, a victim’s on third
party’s complaint.
ii. Nature of Offences: It deals with various offenses, from traffic violations to murder. It
differentiates between bailable and non-bailable offences, determining who has right to
bail.
iii. Medical Examination: The CrPC allows such examinations, including rape cases,
by a registered medical practitioner upon request from at least a sub-inspector. The
BNSS permits any police officer to request such an examination.
iv. Signature and Finger Impressions: The CrPC allows Magistrates to obtain
signatures or handwriting samples. The BNSS expands this to include finger
impressions and voice samples, even from non-arrested individuals.
v. Hierarchy of Courts: The CrPC establishes a hierarchy from Magistrate’s Courts to
the Supreme Court. The BNSS omits provisions for designating metropolitan areas.

Objectives:

TheBharatiya Nagrik Suraksha Sanhita is a crucial procedural law established to facilitate the
administration of the Bharatiya Nyaya Sanhita,2023. It outlines the processes for investigation, arrest,
prosecution, and bail for various offenses. It was initially enacted in 1861 to unify India's multiple
legal systems. It has undergone several amendments over the years. The significant overhaul in 1973
introduced provisions like anticipatory bail. Subsequent amendments in 2005 included plea
bargaining and enhanced rights for arrested individuals.

Over time, the Supreme Court has significantly reinterpreted the CrPC. It mandated FIR registration
for cognizable offenses and made arrests exceptions for offenses punishable with less than seven
years' imprisonment. The Court also emphasized bail as an absolute right for bailable offenses and
laid down guidelines for custodial interrogations and speedy trials. Despite these reforms, the
criminal justice system still grapples with case backlogs, trial delays, and issues impacting
underprivileged groups.

In response, the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) was introduced on August 11,
2023, aiming to replace the CrPC. This new Bill proposes changes to bail procedures, property seizure
provisions, and the powers of police and Magistrates, and has been examined by the Standing
Committee on Home Affairs.
CONCLUSION:
The BNSS, 2023 is introduced as a replacement for the Code of Criminal Procedure,
1973 (CrPC). It aims to modernize and streamline India’s criminal justice system, while
it retains many of the CrPC’s existing provisions, it also introduces significant changes
to address contemporary challenges.

Q3. Explain the powers of police provided under the BNSS. 2022
Ans:
Introduction:
Chapter XIII of the BNSS,2023 deals with the Information to the Police and their Powers to
Investigate.
Police Officer is a warranted law employee of the Police Force.
It deals with their powers related to Cognizable and Non-Cognizable offenses, Examination of
Witness, Medical Examination, Search, Enquiry and report on suicide, etc. These powers are
intrinsic and not given to them to intrude or encroach by any means.
Police officers are given different powers to investigate the crime.

POWERS OF POLICE:
1. Section 170: Power of preventive arrest
Section 170 of the BNSS, empowers the Police to arrest a person without the
orders of the Magistrate if it appears to the police officer that such person is
planning to commit any cognizable offense in any manner.

2. Section 173: Information in cognizable cases

Police have the power to lodge FIR. Section 173 of the BNSS, 2023 says that
Police have to record the information related to any cognizable offense.

3. Section 174: Information as to non-cognizable cases

If the information given to the police is related to a Non-Cognizable offence then the
information is written in the NCR (Non-Cognizable Report) Register, and the
informant is referred to the magistrate.

4. Section 175: Police Officer's powers to investigate cognizable case

The police officer in charge of the police station can investigate a cognizable case
without the Magistrate's order.
The police can also investigate the case without any formal FIR in case of a
cognizable offence.
 5. Section 178- Power to hold investigation or preliminary inquiry
After receiving such report, the magistrate may direct an investigation or give orders
to any magistrate subordinate as he thinks fit to proceed the investigation, to hold a
preliminary inquiry into the case as provided in the code.

6. Section 179: Power to require the attendance of witnesses-

According to Section 179 of the BNSS, Police can order the witnesses
(except the ones mentioned in the proviso to Section 179) to present
before themselves or any other person provided the order is in writing, the
person is acquainted with the facts of case and person is within the limits
of the police station.

7. Section 194: Power to inquire and report on suicide–

Section 194 of the BNSS, empowers Police to inquire and report the
cases of suicide, or when has been killed by another person, by an
animal, machinery, accident, or has died under the circumstances raising
a reasonable suspicion that some other person has committed an offense.

8. Section 195-Power to summon persons

If the police officer thinks that there is a person who can give a statement regarding
the investigation in section 194, then such person shall get a summon order by the
police officer and he will be required in court.

Conclusion

It is concluded that during the course of an investigation, the powers of the police must

be given utmost importance. Such police powers are systematically listed in the

Bharatiya Nagrik Suraksha Sanhita, 2023. The Sanhita specifies the investigation

procedure as well as the method by which the police must conduct the investigation

when handling any given case.

Q4. Who are the persons entitled to get order for maintenance under the BNSS?

Explain with reference to relevant case laws. 2022

Q5. Explain the provisions relating to maintenance of wife, children and parents

under the BNSS with reference to relevant case laws. 2019

Q6. Who are the persons entitled to get order for maintenance? Discuss the

power of Magistrate for alteration/ cancellation in the maintenance allowance.

2017

Ans:

Introduction:

The word ‘Maintenance’ is not defined in the Bharatiya Nagrik Suraksha Sanhita,
2023. Chapter X of the BNSS deals with the provisions for maintenance of wives,
children and parents. ‘Maintenance’ in legal meaning is money (alimony) that
someone must pay regularly to a former wife, husband or partner, especially
when they have had children together. It is the duty of every person to maintain
his wife, children and aged parents, who are not able to live on their own.

Who can claim and get maintenance?

Section 144 of BNSS deals with “order for maintenance of wives, children and
parents”.
According to the section the following persons can claim and get maintenance:
1. Wife or husband,
2. Legitimate or illegitimate minor child from his father,
 3. Legitimate or illegitimate minor child (physical or mental
abnormality) from his father, and
4. Father or mother from his son or daughter.

1. Wife:
A wife can claim and get maintenance from her husband in the following
conditions:
 She is divorced by her husband, or
 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.

Case law:
In the case of Chanmuniya V Virendra Singh, the Supreme Court has
defined ‘wife’ and it includes even those cases where a man and woman
have been living together as husband and wife for a reasonably long period
of time. Strict proof of marriage should not be a precondition of
maintenance under Section144 of BNSS.

2. Legitimate or illegitimate minor child:

‘Minor’ means a person who is deemed not to have attained his majority
i.e. above the age of 18 years.

 Son: Minor son (legitimate or illegitimate) is entitled to get maintenance

under section 144 of BNSS.

 Daughter: if minor daughter (legitimate or illegitimate) is unmarried, then

she is entitled to get maintenance from her father and if she is married,
then she is also entitled to get maintenance from his father but the
magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife.
 Case law:
In the case of Shahbuddin V State of UP, a minor daughter attaining
majority during the pendency of the application for maintenance was held
entitled to maintenance up to the date of majority.

3. Legitimate or illegitimate abnormal child who has attained majority:

If any major child (legitimate or illegitimate) is abnormal (mentally or
physically unfit), then the father of that child has to maintain him and he
can claim maintenance on this ground of abnormality.

4. Father or mother:
Natural father and mother can claim maintenance.
Also, adoptive mother and a childless mother can claim maintenance.

Case law:
In the case of Pandurang Bhaurao Dabhade V Baburao Bhaurao
Dadbhade, Bombay High Court has held that the father or mother can
claim maintenance if he or she is unable to maintain himself or herself. But
it is also important that if parents claim maintenance to their children,
children must have sufficient means to maintain their parents and yet
neglects or refuses to maintain the father or mother.

ALTERATION IN ALLOWANCE:
Alteration in allowance means an order to increase, decrease or remove/cancel the
allowance which was ordered by the Magistrate under Section 144.
1. According to section 146(1), if a magistrate ordered to give allowance for
maintenance under Sec 144 according to the conditions parties at that time, but if the
present conditions of parties have changed, then he can also order to alter the
allowance. For eg, if a wife was not having any job or she was unable to maintain
herself and she got the order of allowance under sec 144. But after some months, she
is well settled and she has means to maintain herself. In this case, the court can order
to remove or cancel allowance.
2. According to Section 146(2), magistrate shall cancel or revoke any order given
under sec 144 by him, if it appears that it should be cancelled in consequences of any
decision of the competent Civil Court. For eg. If magistrate has ordered to give
allowance to wife after divorce but civil court has ordered to live together. Then,
magistrate has to revoke his order which was given under sec 144.

3. According to section 146(3), where an order has been made in favour of women
under section 144, then the magistrate can cancel the order in the following case:
* if a woman is remarried after divorce,
* if a woman has taken allowance under any personal laws after divorce,
* if a woman has voluntary leave her right to maintenance.

4. According to Section 146(4), the civil court shall take into account the sum which
has been paid to such person as monthly allowance for maintenance and interim
maintenance under sec 144 at the time of making any decree for the recovery of any
maintenance or dowry.

Conclusion:
Chapter X of the BNSS is essential for the protection of the rights of the divorced wife,
children and aged parents. It is made to protect them from unusual livelihood.

Q7. Discuss in detail, the procedure of police investigation as provided under the
BNSS with reference to relevant case laws.
Ans:
Procedure of Investigation:
Section 176 of the Sanhita lays down the procedure of investigation to be followed by
the police, for collection of evidence. The investigation of a cognizable case begins
when a police officer in charge of a police station has reason to suspect the commission
of a cognizable offence on the basis of FIR or any other information so received. It
requires that prompt intimation of the FIR be sent to the Magistrate. The officer shall
then proceed in person to the spot for investigation of facts and circumstances, or shall
depute one of his subordinate officers for the same, and if required, measures for the
discovery and arrest of the person shall be taken.
When the information received by the police officer is not of serious nature, the officer
need not proceed in person or depute some subordinate officer to investigate on the
spot. And if no sufficient ground exists for entering on an investigation, he shall not
investigate the case. And shall state in its report for not complying with the requirements
of this section, and notify the informant that he will not investigate the case or cause it to
be investigated.
He shall then send this report to the Magistrate empowered to take cognizance of such
offence.

Sending a Report to the Magistrate (Section 177):

A report is sent to the Magistrate which is called the police report. It is sent by the
superior police officer, so as to make the Magistrate aware that a particular case is
being investigated by a police officer. The main objective of sending a report is to
enable the Magistrate to control the investigation and give directions if required under
Section 178 of the Sanhita.
The report should be sent to the Magistrate without any delay.
In Swati Ram v. State of Rajasthan, it was held that mere delay in sending the report
does not throw away the prosecution case in its entirety.

Section 178- Power to hold investigation or preliminary inquiry:

After receiving such report, the magistrate may direct an investigation or give orders to any
magistrate subordinate as he thinks fit to proceed the investigation, to hold a preliminary inquiry into
the case as provided in the code.

Section 179: Power to require the attendance of witnesses:

According to Section 179 of the BNSS, Police can order the witnesses (except the ones
mentioned in the proviso to Section 179) to present before themselves or any other
person provided the order is in writing, the person is acquainted with the facts of case
and person is within the limits of the police station.

Section 180: Examination of Witnesses:

Any police officer who is in charge of the investigation or any other officer who is acting
on the request of an officer in charge shall and is empowered to examine a witness or
person who is acquainted or aware of the facts and circumstances of the case put
before him. Section 161 of the Code confers powers on police to examine witnesses.
Section 181: Statements to the Police not to be Signed
The statements made by the witnesses during examination need not be signed by him.
Neither should be used at any inquiry or trial. The statements made by the witness can
be used in the court only to contradict him, and not corroborate him.

Section 182- No inducement to be offered

No police officer or any other person in authority can induce the witness to give statement by
threatening or promising him as mentioned in section 24 of the Indian Evidence Act.
But if the witness wants to give any statement on their own will, then no police officer can prevent
him from making the statement.

Section 183-Recording of confessions and statement

Any confession or statement can be recorded by any Metropolitan Magistrate or Judicial Magistrate
whether or not they has jurisdiction in the case. The confession can be recorded during the
investigation or afterwards before the commencement of the inquiry or trial.

Section 184- Medical examination of the victim of rape

When the offence of committing rape or attempt to commit rape is under investigation, it is proposed
that the woman who is a rape victim or with whom attempt of rape has been committed should be
examined by a medical practitioner employed in the government hospital or local authority. And in
absence of such practitioner by any other registered medical practitioner. The examination should be
done with the consent of the victim, or any person who is competent to give the consent on her
behalf. And she shall be sent to the practitioner within twenty-four hours from the time of receiving
the information of commission of such offence.

Section 185-Search by police officer

If the investigating officer has reasonable grounds to believe that anything necessary for the purpose
of investigation of the case he is assigned to may be found in any place within the limits of the police
station if which he is in charge, and such thing should be obtained without any delay, then the officer
should write and specify his reasons of belief in the record and also the thing for which search
should be made.

Section 186-When officer in charge of police station may require another to issue search
warrant
In this section, the officer in charge of the police station or the police officer who is doing the
investigation and who is not below the rank of sub-inspector can require an officer in charge of any
other police station or even any other district to make the search within the limits of his own station.

Section 187-Procedure when the investigation cannot be completed in twenty-four hours

If any arrested person is in custody and it seems like that the investigation will take more than 24
hours and the investigating officer believes that the accusation or information is right then the
investigating officer or the officer in charge of the police station may transmit the arrested person
and copy of the entries in the diary to a Judicial Magistrate if he's not below the rank of sub-
inspector.

Section 188-Report of investigation by subordinate police officer

If any subordinate police officer makes the investigation then he has to report the result of
investigation to the officer in charge of the police station.

Section 189- Released of accused when evidence deficient

Under this section, if the officer in charge finds no sufficient evidence or reasonable ground of
suspicion to forward the accused to the Magistrate then such accused person shall be released from
the custody on his executing bonds.

Section 190-Cases to be sent to Magistrate when evidence is sufficient

If it appears to the officer in charge of the police station that there is sufficient evidence or
reasonable grounds against the accused, the he shall forward the accused to the Magistrate to take
cognizance on the case upon a police report and to try the accused or commit him for trial.

Section 191-Complainant and witnesses not to be required to accompany police officer and
not to be subject to restraint
If any complainant or witness is on their way to court to secure their presence then they aren't
required to follow any police officer and the police officer may also not force the witness without any
valid reason.

Section 192-Diary of proceedings in investigation

Every police officer who is making the investigating shall enter all the information and proceedings
regarding the investigation in a diary, and it should also include the time at which he began and
closed the investigation, the places he visited, statement of the circumstances ascertained through
his investigation and statements of witnesses recorded during the investigation.

Section 193-Report of police officer on completion of investigation

Every investigation taking place under this chapter shall be completed without unnecessary delay.

Section 194: Power to inquire and report on suicide–

Section 194 of the BNSS, empowers Police to inquire and report the cases of suicide, or
when has been killed by another person, by an animal, machinery, accident, or has died
under the circumstances raising a reasonable suspicion that some other person has
committed an offense.
Section 195-Power to summon persons
If the police officer thinks that there is a person who can give a statement regarding the investigation
in section 194, then such person shall get a summon order by the police officer and he will be
required in court.

Section 196-Inquiry by Magistrate into cause of death

In the case of unnatural death, the magistrate also has the power to do inquiry in the case of section
194.

Conclusion:

An investigation is an extremely thorough process in criminal law and is done in a procedure

established by law.

Q8. What is complaint? Elucidate the conditions requisite for initiation of

proceeding before a magistrate. How a complaint is examined and the proceeding
commences? 2022+2020+2017
Q9. How a magistrate deals with a complaint received by him? Explain referring
relevant provisions of the CrPC. 2019
Q10. Define complaint according to CrPC. How will a magistrate take cognizance
of a complaint? 2018

Ans:

The term “complaint” refers to any assertion made before a magistrate, either
orally or in writing, according to the code of criminal procedure. It is done
without a police report but with the intention of initiating action under this Code
against some person, known or unknown, who has committed an offence.

Conditions Requisite for Initiation of Proceeding before a Magistrate:

Chapter XV of BNSS ,2023 relating to “Condition requisite for initiation of proceedings”
are given under Sections 210 to 222.
There are various steps which should be followed in order to dispense justice and bring
guilty to the book.
1. Cognizance of Offences by Magistrates
Section 210 of the Code of Criminal Procedure delineates the conditions under which a
Magistrate can take cognizance of an offence in India. This section empowers Magistrates,
both of the first and second class with special authorization, to initiate proceedings based
on specific circumstances.

2. Transfer on application of accused

Section 211 provides that when a magistrate takes cognizance of an offence, he
shall before taking any evidence, inform the accused that he can have his case inquired
into or tried by another magistrate.
If the accused objects to further proceedings by the magistrate taking cognizance, then
the case shall be transferred to some other magistrate which may be specified by
the Chief Judicial Magistrate in this regard.

3. Making over of cases to Magistrate

Section 212 empowers Chief Judicial Magistrate to make over the case for inquiry or
trial to any magistrate subordinate to him after taking cognizance.

4. Cognizance of offences by Court of Sessions

Section 213 provides that except in cases in which a court of sessions is expressly empowered to
take cognizance of an offence as a Court of original jurisdiction, it has no power to do so unless a
case has been committed by a magistrate.

5. Additional and Assistant Sessions Judges to Try Cases Made Over to Them
Section 214 provides that the High Court or Sessions Judge may direct the Additional or Assistant
Sessions judge to try cases.

6. Prosecution For Contempt Of Lawful Authority Of The Public Servants, For The Offences
Against Public Justice And For The Offences Relating To The Documents Given In Evidence
Section 215 of the BNSS addresses the prosecution for contempt of lawful
authority of public servants, offences against public justice and offences related
to documents presented as evidence.
This section explicitly prohibits any court from taking cognizance of offences
specified in the relevant sections of the BNS without a written complaint filed by
the concerned public servant. Falling within the category of sections limiting the
court’s power to initiate proceedings unless a specific complaint is lodged,
Section 215 serves as a safeguard against unfounded or frivolous prosecutions.

7. Procedure for Witnesses in Case of Threatening, Etc.

Section 216. A witness or any other person may file a complaint in relation to an offence
under section 232 of the BNS, 2023.

8. Prosecution For Offences Against State And For Criminal Conspiracy To

Commit Such Offence
Section 217. The object of this section is to ensure prosecution only after due
consideration by appropriate authority so that frivolous or needless prosecution are
avoided.

9. Prosecution of Judges and Public Servants

Section 218 deals with the prosecution of judges and public servants. A public
servant, defined as someone dismissible from their position either by the
government or with its permission, enjoys protection under this section. No court
can initiate legal proceedings against a public servant for any offence committed
while in connection with the affairs of the union without prior approval from the
central or state government.

10. Prosecution for Offences Against Marriage

Section 219 establishes that a court cannot initiate legal action against offences
related to marriage unless a complaint is filed by the victim. However, in specific
circumstances, a third-party complaint may be lodged with the court’s permission.
Such situations include cases where the victim is unable to file the complaint
themselves due to reasons such as being a minor, suffering from a mental illness
or being a woman unable to appear in public.

11. Prosecution of Offences Under Section 85 of the BNS:

No court shall take cognizance of an offence punishable under section 85 of the BNS
except upon a police report of facts which constitute such offence or upon a complaint
made by the person aggrieved by the offence or by her father, mother, brother, sister or
by her father’s or mother’s brother or sister, with the leave of the Court, by any other
person related to her by blood, marriage or adoption.
12. Prosecution for defamation:
Section 222. The court cannot initiate legal action for defamation charges
mentioned in unless the victim files a complaint. However, if the victim is unable
to file a complaint, a third party can do so with the court’s permission; exceptions
for offences against high-ranking officials, with written complaints by the Public
Prosecutor.

EXAMINATION OF COMPLAINANT;
Section 223 of the BNSS deals with the examination of the complainant. The magistrate
after taking cognizance of an offence has to examine the complainant and witnesses
present. This examination has to be done upon oath. The magistrate also has the duty
to note down the relevant information found in such examination. The substance of such
examination should be given in writing and that has to be signed by the complainant
and the witnesses.

Commencement of proceedings before magistrates:

1. Section 227- Issue of process:
Section 227 of this act provides the magistrate power to issue a process if it is found
that there are sufficient grounds for carrying out the proceeding. The magistrate can
issue a summon if it’s a summons case. A warrant is issued in case of a warrant case.
The magistrate can also issue summons to the accused in order to make him appear
before the Magistrate concerned within a certain date.

2. Section 228- Magistrate may dispense with personal attendance of the

accused:
Section 228 provides the Magistrate powers to dispense the personal attendance of the
accused in certain situations. The Magistrate can dispense the personal attendance of
the accused and permit him to appear by his pleader if there are proper reasons.

3. Section 229- Special summons in cases of petty offence:

The provision of this Section will apply where the offence alleged is punishable with fine
upto five thousand but does not include any offence under the Motor Vehicles Act, or if,
in the opinion of Magistrate case may be summarily dispose of, or where the offence
shall be compoundable, or with imprisonment up to 3 months.
4. Section 230- Supply to the accused of copies of statements and other
documents
It is essential to supply relevant documents to the accused so that they can understand
the procedure followed and the status of the case. The documents supplied might also
be used for future reference whenever necessary.

5. Section 231- Where the proceeding is in respect of an offence exclusively

triable by the Court of Session
The court has to provide certain documents to the accused when the offence is triable
exclusively by the Court of Session according to Section 231. These documents should
be provided when the case is not instituted based on the police reports.

6. Section 232- The commitment of the case to Court of Session

Section 232 deals with the commitment of the case to the Court of Session.

7. Section 233: Consolidation of cases

Section 233 deals with the procedures to be followed when there is a consolidation of
cases instituted on a police report and on a complaint.

Conclusion

Under the BNSS, a complaint is a formal request to a Magistrate seeking legal redress for an
alleged offense. The Magistrate's role is to examine the complaint, conduct an inquiry or direct
an investigation, and decide whether to issue process (summons or warrant) to initiate
proceedings.

Q11. What is a charge? Explain the principle of separate charges for distinct offences.
Discuss the provisions under BNSS relating to joinder charges. 2022

Q12. When and how is a charge framed? Can charges be joined? Justify. 2018
Ans:

What is a Charge?
The term “charge” is explained in Section 2(1)(f) of the BNSS,2023. It means the
main accusation when there are multiple accusations. In simpler terms, after a trial
begins, the person accused of a crime is told about the claims made against them
and the laws that will be used in their trial. These claims are called “charges” in
legal language.

Principle of separate charges for distinct offences:

Section 241 lays down a general rule, viz., that for every distinct offence, of which any
person is accused, there shall be separate charge, and that every such charge shall be
tried separately.
The rule that ‘for every distict offence which any person is accused’ there would be
separate charge for distinct offence against a single person and there should also be
separate charges against each person when more than one person is tried for the same
offence.
The provision of this section provides for a separate trial for every distinct offence, but it
does not lay down that there shall be a separate trial in respect of each accused.
Distinct offence- this section states that for every distinct offence, there shall be
separate charge. It does not say ‘for every offence’ or ‘each offence’. In Banwarilal
Jhunjhunwala vs. Union of India, it has been held that the expression ‘every distinct
offence’ in section must have a content from the expression ‘every offence’ or ‘each
offence’. Distinct means not identical. A separate charge is required for every distinct
offence and not necessarily for each separate offence. Two offences would be distinct if
they be not in any way inter-related. If there be some inter-relation, there would be no
distinctness.

Provisions under BNSS relating to joinder charges.

1. Offences of the same kind within a year may be charged together:-
under section 242 of BNSS when a person is accused of more offences than one of the same kind
committed within the space of twelve months from the first to the last of such offences, he may be
charged with and tried at one trial. Provisions of the section are only enabling provisions, it applies
where offences are of the same kind but it does not apply where offences are not of the same kind
such as criminal breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980.

2. Joinder of Charges under CrPC for Offences in the Same Transaction

If in one series of acts so connected as to form the same transaction more offences than one are
committed by the same person, he may be charged with and tried at one trial for every such offence
as provided under the section 243.
3. Joinder of Charges in Cases of Doubt- Section 244
If the accused has engaged in a series of actions that create confusion about which facts
need to be proven, the accused may be charged with any or all of those offences or
charged with alternative offences. In such cases, the accused is initially charged with one
offence, but during the evidence stage, if it is proven that the accused committed a
different offence, they may be convicted of that offence even if they were not originally
charged with it.

4. Conviction for Minor Offence Within a Larger Offence

Sec.245. If an accused person is charged with a complex offence that includes various elements
and it turns out that some of these elements on their own would amount to a less serious
offence, the accused can still be convicted of the lesser offence even if the charge only specified
the more serious offence.

5. What persons may be charged jointly:

Under sec.246 joint trial of several persons is permissible and applies only to trials and not to
inquiries. A joint trial of several persons under this section is not vitiated merely by the fact that at the
end of the trial the facts found happen to be different from those based on which the charges were
originally framed.

6. Removal of Remaining Charges:

Section 247 specifies that when a charge contains more than one count against the
same person, the prosecuting officer may, with the court’s consent, remove the
remaining charges if one or more of them have already resulted in a conviction
against the accused.

WHEN AND HOW IS A CHARGE FRAMED?

In the Bharatiya Nagrik Suraksha Sanhita, a charge is framed under Section 251 and Section 263,
depending on the type of case.

Framing of Charge under Section 251:

Section 251 of the BNSS states that if the Magistrate is satisfied that there is sufficient
ground for proceeding, he shall frame a charge against the accused.
Procedure:
1. After completing the inquiry or investigation, the Magistrate examines the evidence and
witnesses.
2. If the Magistrate is satisfied that there is sufficient ground for proceeding, he shall frame a
charge against the accused.
3. The charge shall be read out to the accused, and he shall be asked whether he pleads guilty
or claims to be tried.
4. If the accused pleads guilty, the Magistrate shall record the plea and proceed to pass
sentence.
5. If the accused claims to be tried, the Magistrate shall fix a date for the trial.

Framing of Charge under Section 263:

Section 263 of the BNSS states that in a sessions trial, the Sessions Judge shall frame
a charge against the accused if he is satisfied that there is sufficient ground for
proceeding.

Procedure:
1. After committing the case to the Sessions Court, the Sessions Judge examines the
evidence and witnesses.
2. If the Sessions Judge is satisfied that there is sufficient ground for proceeding, he
shall frame a charge against the accused.
3. The charge shall be read out to the accused, and he shall be asked whether he
pleads guilty or claims to be tried.
4. If the accused pleads guilty, the Sessions Judge shall record the plea and proceed to
pass sentence.
5. If the accused claims to be tried, the Sessions Judge shall fix a date for the trial.
 When is a charge framed?
A charge is framed when the court is satisfied that there is sufficient ground for
proceeding against the accused. This typically happens after the investigation or inquiry
is complete, and the court has examined the evidence and witnesses.

What is the purpose of framing a charge?

The purpose of framing a charge is to inform the accused of the specific offense(s) they
are alleged to have committed and to provide them with an opportunity to plead guilty or
claim a trial. It also helps to narrow down the issues to be tried and ensures that the
accused is aware of the case against them.

Overall, framing of charges is a fundamental component of the criminal justice

system, ensuring due process, fairness and the protection of the rights of both
the accused and the prosecution.

Q13. Discuss the procedure of appeal in case of Acquittal. Enumerate the circumstances in
which there shall be no appeal against an order of conviction. 2022+2017

Q14. What do you mean by appeal? Discuss the procedure of appeals in case of acquittal
from charge. Distinguish between appeal and revision. 2020

Q15. What do you mean by appeal? Explain the powers of appellate courts under bnss.

2019

Ans:
Meaning of Appeal
 Appeal is a complaint to a superior court of an injustice done or error committed by an inferior court,
whose judgement or decision the Court calls upon to correct or reverse.
 Appeal is statutory right and no one has an inherent right to appeal.
 If the statute does not provide for an appeal then no appeal would lie in such case.
Appeal in Case of Acquittal: Section 419

In this section, District Magistrate is empowered to direct the Public Prosecutor to file an

appeal to the Court of Session for the order of acquittal done by any Magistrate in a

matter of cognizable and non-bailable offence.

The State is also empowered to direct the Public Prosecutor to file an appeal for the

order acquittal done by any court other than High Court for appeal or revision.

If the investigation is done by Delhi Special Police Establishment or any central agency,

the direction to file an appeal will be given by the Central Government.

It is to be noted that prior permission of the High Court will be taken before filing an

appeal at the High Court.

If an order of acquittal is given in a matter of case instituted on complaint, and High

Court grants special permission to present the appeal, then such appeal can be

presented by the complaint.

 o If the complainant is a government servant, then the application can be moved

within six months from the order of acquittal.

o If the complainant is not a government servant, then the application can be moved

within 60 days from the order of acquittal.

If such appeal is rejected, no appeal from an order of acquittal shall lie.

Exception to Section 415:

The exceptions to Section 415 of the BNSS are found in Sections 416 and 417 of the
BNSS as given below:

1. There is no right to appeal a conviction where the defendant has made a guilty plea
and been found guilty on the basis of that plea.

2. A person who has been found guilty and sentenced by a high court to a period of
imprisonment of not more than six months or a fine of not more than one thousand
rupees, or to both such imprisonment and fine, shall not be permitted to file an appeal
against that sentence.

3. A person who has been found guilty and sentenced by a court of the session or a
metropolitan magistrate to a period of imprisonment of not more than three months or
a fine of not more than two hundred rupees, or to both such imprisonment and fine,
shall not be permitted to file an appeal against that sentence.

4. A person who has been fined by a first-class magistrate of not more than one
hundred rupees shall not be permitted to file an appeal against that sentence.
Under the BNSS,2023 appellate courts have the following powers:

Powers of Appellate Courts (Section 427-433, bnss)

1. Hearing Appeals: Appellate courts have the power to hear appeals against
convictions, sentences, and orders passed by subordinate courts (Section 427, BNSS).

2. Reversing or Affirming Decisions: Appellate courts can reverse or affirm the

decisions of subordinate courts, depending on the merits of the case (Section 427,
BNSS).

3. Modifying Decisions: Appellate courts can modify the decisions of subordinate

courts, such as reducing a sentence or increasing an award of compensation (Section
427,BNSS).

4. Remanding Cases: Appellate courts can remand cases back to the subordinate court
for further trial or inquiry (Section 427, BNSS).

5. Granting Bail: Appellate courts have the power to grant bail to an accused person,
pending the disposal of an appeal (Section 430, BNSS).

6. Suspension of Sentence: Appellate courts can suspend the execution of a sentence,

pending the disposal of an appeal (Section 430, BNSS).

7. Review of Evidence: Appellate courts can review the evidence on record and take
additional evidence, if necessary (Section 432, BNSS).

8. Passing Orders: Appellate courts can pass orders on any matter arising out of an
appeal, including orders for the production of documents or the examination of
witnesses (Section 433, BNSS).
In conclusion, the Appellate Courts in India play a crucial role in the Indian criminal justice system. These
courts have several powers, which are essential for ensuring that justice is served. The power to review
evidence, issue writs, and remand cases back to the lower court is particularly important, as they allow the
court to correct any errors made by the lower court and ensure that the trial is fair and just.

Q16. Discuss the procedure of trial of a warrant case instituted otherwise than on
police report. 2022+2017

Q17. Discuss the procedure of trial before the court of sessions under bnss
referring to relevant case laws. 2019
Ans; 16:

Introduction:

Cases instituted otherwise than on a police report

A warrant case instituted otherwise than on a police report begins when a complaint is
filed directly with a magistrate. The accused is brought or appears before a magistrate.
The Magistrate begins the proceedings of the case by initiating the hearing process and
files all the evidence received with the record. Sections 267, 268, 269 and 270 of BNSS
sets the procedure of a warrant case instituted otherwise than on a police report and
brought directly to a magistrate by filing a complaint.

Steps in the trial

The steps involve filing a complaint with a magistrate. Once the complaint is filed in the
Magistrate, the accused is brought before the Magistrate or appears voluntarily. A
hearing is conducted to determine the facts of the case. The prosecution begins the
steps to prove that the accused has committed the offence beyond a reasonable doubt.
And the defence can take the necessary steps to challenge the accusations and prove
that the accused did not commit the offence. The steps in warrant cases instituted
otherwise than on a police report are:

1. The preliminary hearing of the prosecution's case.

2. Discharge of accused if the accusation is baseless. (Section 268)

3. Framing of charge. (Section 269)

4. Explaining charge to the accused. (Section 269(2))

5. Conviction on a guilty plea. (Section 269(3))

6. Choice of the accused to recall prosecution's witness. (Section 269(5))

7. Evidence for Prosecution. (Section 267)

8. Evidence for Defence. (Section 270)

1. The preliminary hearing of the prosecution case:

This is the first step in the proceedings of the case after the accused is brought or
appears before a magistrate. The Magistrate considers the accusations and determines if
the accusations have any base and a case can be made out against the accused. If the
Magistrate determines that no case has been made out as the accusations lack
substance and are groundless than the case will be dismissed and the accused shall be
discharged.

2. Discharge of accused:

Section 268 of BNSS states that the accused shall be discharged by the Magistrate if no
case has been made out against him by the prosecution, which if unchallenged would
warrant his conviction. And nothing can prevent the Magistrate from discharging the
accused at any previous stage if the accusations presented by the prosecution is
considered baseless by the Magistrate.

3. Framing of charge:

Once all the evidence is presented to the Magistrate by the prosecution and after the
examination of said evidence is conducted by him, the Magistrate is of the opinion that
there is a reasonable ground for the accusations mentioned in the complaint and the
accused is capable of committing the offence; a charge is framed and a fair trial is
conducted. The accused is given an opportunity to defend himself. In the case of Ratilal
Bhanji Mithani vs The State Of Maharashtra, 1978, it was determined that there were
reasonable grounds to believe the accused had committed the offence, and the
Magistrate began the trial proceedings by rejecting the dismissal of the case under
Section 269(1).

4. Explaining the charge to the accused:

Section 269(2) states that the charge against the accused should be read and explained
to him, and he shall be asked whether he wishes to plead guilty to the charges or
contest the said charges by proceeding with a trial.
5. Conviction on a guilty plea:

Section 269(3) gives the accused an opportunity to plead guilty and present himself in
mercy of the court. The Magistrate has the authority to record the guilty plea, convict
and punish the accused as he sees fit. If the accused does not plead guilty, a subsequent
hearing shall be held and the accused will be granted a fair trial. The Magistrate may
state in writing, the reasons he thinks fit for recalling any witnesses for a cross-
examination and if so, which witnesses of the prosecution, whose evidence has been
recorded. The same reasons are recorded and prosecution's witnesses are recalled for
cross-examination by the Magistrate.

6. Choice of the accused to recall prosecution witnesses

Sub-section (5) and (6) under Section 269 empowers the accused to recall any witness
named by the accused and perform a cross-examination or re-examination, after which
they are discharged. The evidence of remaining witnesses provided by the prosecution
is taken and they shall be discharged after cross-examination and re- examination as
seen necessary. The application of this can be observed in the case of Varisai Rowther
And Anr. V. Unknown, 1922.

7. Evidence for prosecution:

Section 267 states that in warrant cases instituted otherwise than a police report and
filed directly with the Magistrate, the accused is presented before the Magistrate who
begins the hearing process by summoning the witnesses named by the prosecution and
taking all the pieces of evidence produced as such. All evidence must be taken into
consideration as under Section 138 of the Indian Evidence Act and filed with the record
by the Magistrate.

8. Evidence for defence:

The defence has the opportunity to present his side of the case and defend himself
against the accusations of the prosecution, as mentioned under Section 247. A written

statement may be put forwarded and the Magistrate shall record it. The accused can
issue an application requesting the Magistrate to summon witnesses or the production
of any document or thing with relevance to the case. And the Magistrate must issue
such summons unless he feels they are baseless, irrelevant and done for the purpose of
vexation and delay of the delivery of justice. The reasons for rejection of application
must be recorded in writing by the Magistrate. Any witness that has already been cross-
examined by the accused or had the opportunity to be cross-examined by the accused
cannot be summoned again unless the Magistrate deems it necessary for the delivery of
justice.

In conclusion, the procedure of trial of a warrant case instituted otherwise than on

police report involves the filing of a complaint, the examination of the complainant and
witnesses, the issue of summons, the appearance of the accused, the plea of the
accused, the presentation of prosecution and defense evidence, arguments, and
judgment.

Ans: 17:
Magistrate takes cognizance of an offence and thereafter as per Section 232, he will
commit the case to the Court of Sessions The procedure for trial before a Court of
Session is mentioned from Section 248 to Section 260. As per Section 248, every trial
before a Court of Session is conducted by a Public Prosecutor.
The code lays down the procedure for trial before a court of session as follows:

a. Parties (sec. 248):

In a trial before a court of session, the prosecution shall be conducted by a public
prosecutor. The accused has a right to engage a counsel of his choice. If he
cannot afford to engage the defence counsel, the court engaged at the state
expenses. Before commencing the trial, the accused in supplied with the copies
of documents like police report, F.I.R etc.

b. Opening the case (sec. 249):

The public prosecutor opens the case by describing accusation against the
accused. He states briefly by what evidence, he proposes to prove the guilt. The
prosecutor duty is not to secure a conviction but simply to lay the facts of the
case before the tribunal, which is to judge.

c. Discharge of the accused (sec. 250):

After hearing from both the parties if the court considers that there is no sufficient
ground to proceed against the accused, discharges him and records the reason
 for doing so. There is no scope for examination of any witness but there is scope
for both sides to argue their case in favor of framing charge or discharge.

d. Framing of charge:
Under section 251, the judge after considering the records of the case and the
documents submitted along with it in evidence and hearing the prosecution and
the defence, he thinks that there is a ground to presume that the accused has
committed the offence and is exclusively triable by the Court of session, he will
frame a charge against the accused.

e. Explaining the charge and enquiry about plea (sec. 251(2)):

The contents of the charge have to be explained to the accused as to enable him
to plead guilty of the offence or claim to be tried. In Banwari v. State of UP, the
Court held that default in reading out or explaining the charge to the accused
would not vitiate the trial unless it has been shown that non-compliance with
Section 228 has resulted in prejudice to the accused.

f. Conviction on a Guilty Plea in Trial Before a Court of Session

(Section 252)
If the accused pleads guilty, the judge records the plea and can choose to
convict the accused. As seen in Queen Empress v. Bhadu, the guilty plea
must be clear; otherwise, it’s treated as a plea of not guilty.

g. Date for prosecution evidence (sec. 253):

If the accused refuses to plead or does not plead or claims to be tried or is not
convicted under sec. 253, the judge shall fix at date for the examination or witness
or may order for compelling appearance of any witness or production of a
thing/document.

h. Evidence for prosecution:

As provided by Section 308, all the evidence must be taken in the presence
of the accused or in his absence in the presence of his pleader during
course of a trial or proceeding.

i. Arguments of the prosecution (sec. 352(2)):

The prosecution after the close of witnesses submits a memorandum of his oral
arguments. A copy of the same if is supplied to the opposite party.
j. Examination of the Accused
The accused is questioned without being placed under oath. This process
allows the accused to clarify the circumstances alleged by the prosecution.

k. Acquittal (sec. 255):

After hearing from both the parties if the judge considers that the accused has
not committed the offence, record an order acquitting the accused.

l. Entering upon defence (sec. 256):

If the accused is not acquitted, he shall be called upon to enter on his defence.
The court may summon or examine at any stage any person as court witness.

m. Arguments (sec. 257):

After recording defence, the prosecutor sums up his case and the accused or his
pleader shall be entitled to reply. The prosecutor may be allowed to make his
submission in case any law point is raised by the defence.

n. Judgment of Acquittal or Conviction in Trial Before a Court of

Session (Section 258)
After hearing arguments from both sides, the court issues a judgment of
either acquittal (not guilty) or conviction (guilty). In the case of Santa Singh
v. State of Punjab, the Supreme Court emphasised that the judge should first
decide on a verdict of either conviction or acquittal. If the accused is
convicted, they are given an opportunity to present their side regarding the
sentencing before the court decides the punishment.

o. Previous Conviction (Section 259)

When a prior conviction is alleged, as specified in subsection (7) of Section
234 and the accused does not admit to the previous conviction as stated in
the charge, the judge may collect evidence related to the alleged prior
conviction and make a record of their findings.
Conclusion
A trial before a Court of Session is a vital component of our legal system. It’s where
serious criminal cases are heard, such as murder and rape, ensuring justice is
served. The trial before a Court of Session guarantees that evidence is carefully
examined, witnesses are heard and legal procedures are followed. The Court of
Session, as a higher court, plays a crucial role in delivering a fair and impartial
verdict. This not only protects the rights of the accused but also maintains public
trust in the legal system.

Q18. Explain the powers and jurisdiction of the various classes of criminal courts
constituted under the BNSS. 2019+2018+2017
Ans: Introduction:
Criminal courts deal with persons accused of committing a crime, deciding whether they are
guilty and, if so, determining the consequences they shall suffer.

Classes and Constitution of Criminal Courts

According to Section 6 of BNSS, there are four classes of courts other than the High Court and
the Special Courts in every State. According to BNSS, the four classes of Courts are as follows:

 Session Court
 Judicial Magistrate of the first class
 Judicial Magistrate of the second class; and
 Executive Magistrate
In BNSS, the concept of metropolitan magistrate and metropolitan area is removed. In the Code,
the metropolitan magistrate is provided with the powers same as of the Judicial magistrate of first
class. But according to BNSS, there will be no metropolitan magistrates and metropolitan areas.

Constitution of Session Court

According to Section 8 of BNSS, the Session Court shall only consist of the Session
Judge, who is the presiding officer of the court and the Assistant Session Judges. The
High Court of the particular State shall appoint the presiding officer and may also appoint
Additional Session Judges.
Also, the Session Judge may also pass an order for the distribution of the duties to all the
nominated additional session judges.

In BNSS, the designation of Assistant Session Judge is excluded which was earlier the
part of the constituency of the session court as given under Section 9 of the Code.

Constitution of Court of Judicial Magistrates

According to Section 9 of BNSS, the Court of Judicial Magistrate shall include Court of
Judicial Magistrate first class and Court of Judicial Magistrate second class.

Also, the State Government may after consultation with the High Court may establish any
special court of judicial magistrate of first class or of second class. The presiding officer
of these court shall also be appointed by the High Court.

According to Section 10 of BNSS, every Judicial Magistrate of first class shall be

appointed as the Chief Judicial Magistrate or Additional Chief Judicial Magistrate or the
Sub-divisional Magistrate by the High Court.

Also, every Chief Judicial Magistrate shall be subordinate to the Session Judge and every
Judicial Magistrate shall be subordinate to the Chief Judicial Magistrate.

Constitution of Court of Executive Magistrate

According to Section 14 of BNSS, the State Government shall appoint one of the
Executive Magistrate as a District Magistrate or Additional District Magistrate whose
power will be same under BNSS.

The State Government may also appoint one of the Executive Magistrate as a Sub-
divisional placed in charge of Sub-division or Special Executive Magistrate for any
particular area or for any particular classes of cases.

According to and Section 17 of BNSS, all the Executive Magistrates are subordinate to
the District Magistrate and all the Executive Magistrate working under any Sub-division
shall be subordinate to the Sub-divisional Magistrate.
Powers of Criminal Courts

According to Section 22 of BNSS, the High Court may pass any sentence authorised by
the law. The Session Judge and the Additional Session Judge may pass any sentence
authorised by the law but in case of sentence of death by any of such Judges, it has to
be confirmed by the High Court of the particular State.

As there is no designation of Assistant Session Judge in BNSS, the said Sanhita also
does not state the power of the Assistant Session Judges.

Section 23 of BNSS, the Chief Judicial Magistrate may pass any sentence except the
death punishment, life imprisonment or the imprisonment for the term exceeding seven
years.

The Judicial Magistrate of first class may pass a sentence for a term not exceeding three
years and/or the fine not exceeding fifty thousand rupees. According to the Code, the
maximum fine imposed by the Magistrate of first class is ten thousand rupees, but it is
increased to fifty thousand rupees in BNSS.

Also, the Judicial Magistrate of second class may pass a sentence for the term not
exceeding one year and/or for the fine not exceeding ten thousand rupees. According to
the Code, the maximum imposed by the Magistrate of Second class is five thousand
rupees, but it is increased to ten thousand rupees in BNSS.

According to section 24 of BNSS, the court of Judicial Magistrate may pass sentence for
imprisonment in default of fine but not in excess of the powers given under the BNSS.
Also, the punishment passed in default of fine can be in addition to the punishment passed
under 23 of BNSS.

Also, Section 25 of BNSS deals with the cases of conviction for the several offences. The
said Section states that the court may pass different sentences in a single trial for different
offences committed by the same person subject to section 9 of the Bhartiya Nyaya
Sanhita, 2023. And the Court shall clarify that the sentences shall run concurrently or
Consecutively. But here it should also be noticed that no court shall send the offender for
trial before the higher Court only for the reason the aggregate of the several punishments
is excessing the punishment which it is competent to inflict on conviction of the single
offence.

But the conditions are that no person shall be punished for more than fourteen years and
the total aggregate of the punishments of the total offences shall not exceed twice the
amount of the punishment which the court is competent to inflict for the single offence.
Conclusion
The introduction of Bhartiya Nagarik Suraksha Sanhita, 2023 has brought various changes in the
classes, constitution and powers of the Criminal Courts as given under the Code of Criminal
Procedure, 1973. The new law has excluded the metropolitan courts and metropolitan areas and
also the designation of Assistant Session Judge. The Indian Legislature has focused to made
their own law and to set aside the old laws which were made by the Britishers.

Q19. When police may arrest a person without warrant? What is notice of appearance
before police officer and procedure of arrest of a person and duties of officer making
arrest? Discuss the relevant provisions under BNSS. 2019

Ans:
ARREST WITHOUT WARRANT
A police officer has power to arrest a person without warrant if he is suspected of having
committed a cognizable offence. Normally in non-cognizable offences a police officer cannot
arrest a person without a warrant from a Magistrate. In the first Schedule of the Criminal Procedure
Code (Cr.P.C.) offences have been classified and enumerated as cognizable and non-cognizable.
The more serious offences such as murder, rape, robbery, theft, waging war against the State etc.
are cognizable.

A person can be arrested without a warrant:

If he is concerned in a cognizable offence or if there is a reasonable suspicion, complaint or

information that he has committed a cognizable offence;
1. If he possesses implements of house breaking.
2. If he possess stolen property.
3. If he is proclaimed an offender.
4. It he obstructs a police officer on duty.
5. If he escapes from a legal custody.
6. If he is a deserter from the army, navy or air force.
 7. Where he is out of India, if he commits an offence punishable under any extradition
law or under the Fugitive Offenders Act.
8. If he is released convict who breaks the restrictions imposed by the Court on his
movements.
9. If he is suspected of preparing to commit a cognizable offence; 11. If he is habitual
criminal.
10. If he, after committing a non-cognizable offence in the presence of a police officer,
refuses to give the police his name and address or has given him a false name and
address;
11. If he is required by a police officer of another police station who suspects that he
has committed a cognizable offence.

Notice of appearance under Section 35 BNSS

It provides that when a police officer cannot make an arrest of the

person suspected of committing a cognizable offence, he may issue a
notice of appearance to the suspect to make him appear before him at
any specific place and time.

The conditions for issuing such a warrant are:

* Reasonable suspicion;
* Credible information, or
* Reasonable complaint.

The said Section reads, "when such a notice is issued to any person, it
shall be the duty of the person to comply with the terms." So, a notice
of appearance legally binds the suspect to comply with the conditions
of the notice. Further, as long as the suspect continues to comply with
the terms of the notice, the police officer cannot arrest him, provided
he considers it necessary. Nevertheless, he should record his reasons
for making such an arrest despite the terms of the notice being fulfilled.

Section 36 Procedure of arrest and duties of officer making arrest.

 Every police officer when making an arrest, shall bear an
identification in true form showing his name and rank.
 Memorandum of arrest will be prepared and will be signed by a witness
and the person arrested.

Example
 A police officer identifies himself clearly before arresting a suspect.
 During an arrest, the officer prepares a memorandum, ensuring it's signed by a
family member present at the time.
 If a person is arrested and the memorandum isn't attested by a family member, the
officer informs them of their right to contact someone regarding their arrest.

Q20. What is reference under the BNSS? What are the differences between
Reference and Revision; Reference and Appeal? Discuss. 2019

Ans:
Reference Under Criminal Procedure Code:
Sections 436-445 of Chapter XXX II discussed reference and revision under BNSS.

The BNSS sections 436 and 437 deal with references. In general, a reference is a legal method of
submitting a trial court application to the High Court for an interpretation of an Act, Law, or
Regulation.

Section 435 allows the matter to be referred to the High Court if it concerns any question related to
any of the Acts, Regulations, Ordinances, or Statutes required to determine and dispose of a case.

Nature & Scope

A reference is defined in sections 436-437 of the BNSS. Section 435 defines a connection as where
the matter is before the trial court and involves a problem that is relevant for the resolution of a
criminal prosecution, such as the legitimacy of a Law, Order, or Act or the requirements of a Law,
Ordinance, or any Act. Such an Act, regulation, or order may be invalid or unconstitutional, but it has
not been declared so by a higher court, such as the Supreme Court or the High Court.

Case Laws on Reference:

1. Banarsi Yadav vs Krishna Chandra Dass1:

In this case, it was decided that when there is a plausible dispute about an Act's
constitutionality, a lower court may refer the case to the Supreme Court.
Q21. Explain the role and function of Public Prosecutor under the
CrPC. 2019
Ans:
Introduction:
A Public Prosecutor is considered as the agent of the state to represent
the interest of common people in the criminal justice system. The
prosecution of the accused is the duty of the state but not individually
the duty of the aggrieved party. They are appointed in almost all
countries. The Public Prosecutor is defined in Section 18 of BNSS. They
serve as the basic principle of Rule of Law i.e. auld alteram partem (no
person shall be condemned unheard).

In the case of Babu vs State of Kerala,

The Court observed that Public Prosecutors are ministers of justice who
is duty bound to assist the judge in the administration of justice.

Functions
The functions of the Public Prosecutor differ according to their
designation.

 Public Prosecutor- supervise the function exercised by the

Additional Public Prosecutor in Session Court and High Court.
 Chief Prosecutor- supervise the functions exercised by Assistant
Public Prosecutor in Metropolitan Magistrate Court.
  Additional Prosecutor- conduct criminal proceedings in the
Session Court.
 Assistant Public Prosecutor- they examine the charge sheet
prepared by agencies and submit the acquittal or discharge. They
also are responsible for the evaluation of evidence and filing
revisions petitions.
They also conduct the criminal proceedings in the Court of
Metropolitan Magistrate.
 Director of Prosecution it is the head office. They exercise the
overall control and supervision of officers of Directorate. They
also look after the Account Branches.

Role of Public Prosecutors

It is divided into two parts:
 In investigating process
 During the trial

Role of the Public Prosecutor in the investigating process

 To make an appearance in the Court and obtain an arrest warrant

 To obtain search warrants for conducting a search in specified
premises
 To obtain police custody remand for interrogation (including
custodial interrogation) of the accused
 To initiate a proceeding for the declaration of the non- traceable
offender as the proclaimed offender
  To record the evidence of accused in the police report regarding
the advisability of the prosecutions

Role of Public Prosecutors at the time of trial

 Sentencing- when the accused is proven guilty, then the defence
counsel and the Public Prosecutor further argue to decide the
quantum of punishment. At this stage, the Public Prosecutor may
argue for the adequate punishment keeping in mind the facts,
circumstances of case and gravity of the offence. It helps the
judge to arrive at a judicious decision.

 To conduct a speedy trial- Right to a speedy trial is a fundamental

right and it is impliedly given in Article 21 of Constitution of India
which states "Right to life and Personal Liberty". The prosecutors
have a responsibility to call all the witnesses whose evidence is
essential to decide the case. To cross-examine the witness and to
see that no witness if left unexamined. To produce all the
necessary documents.

Conclusion
A Public Prosecutor is an officer of the court helping in the
administration of justice. It is clear from the fact that the main duty of
the Public Prosecutor is to help the court in finding the facts of the
case.
Q22. What is FIR? What is evidentiary value of FIR?
2020+2018+2017
Ans:
FIR stands for First Information Report, which is a written document
prepared by the police in India when they receive information about a
cognizable offense.
An FIR is a police report that contains preliminary details about an
offense, such as the date, time, place, and identity of the accused. It is
the first information about the offense to reach the police, which is why
it is called a First Information Report.

Evidentiary Value of F.I.R.

An FIR is not a substantive piece of evidence. That is, it cannot be
considered as evidence of facts stated therein.
However, FIR may be used for the following purposes:

1. It can be used to corroborate an informant witness u/s 160 of BSA.

But it cannot be used to contradict or discredit other witnesses.
2. It can be used to contradict an informant witness u/s 148 of BSA.
3. FIR can be used by the defence to impeach the credit of the maker
under sec. 158(c) of the BSA.
4. A non-confessional FIR given by an accused can be used as an
admission against him u/s 21 of BSA
5. FIR can be used as a dying declaration as substantive evidence If it
relates to the cause or occasion or circumstances and facts which
resulted in the informant's death. within the meaning of section 26 of
the BSA.

If the accused himself lodges the FIR, it cannot be used for

corroboration or contradiction because the accused cannot be a
prosecution witness, and he would very rarely offer himself to be a
defence witness.

Conclusion
The FIR is the stepping stone of the whole justice delivery system. It is a
very crucial document for every criminal case. It marks the beginning of
the criminal prosecution.

Q23. What is Plea Bargaining? Write an elaborate note on the process of plea bargaining.
2018
Ans:

Meaning Of Plea Bargaining

Plea bargaining is a process in which a defendant in a criminal case agrees to plead
guilty to a lesser charge or to a reduced sentence in exchange for some concession
from the prosecutor or the court. The concession could be a reduced sentence, a lesser
charge, dropping some charges, or any other agreement that benefits the defendant.

The aim of plea bargaining is to resolve a criminal case without going to trial, thereby
saving time, resources, and expenses for both the prosecution and the defendant. Plea
bargaining is also seen as a way to ensure that the defendant receives a fair and
appropriate sentence for their offense, while avoiding the risks and uncertainties of a
trial.

Plea bargaining can take place at any stage of the criminal justice process, from the
initial charge to the trial itself. It is a voluntary process, and both the prosecutor and the
defendant must agree to the terms of the plea bargain.

Plea bargaining is a controversial issue, with some arguing that it undermines the
integrity of the justice system by allowing guilty defendants to receive reduced
sentences, while others argue that it is a necessary tool to ensure that the criminal
justice system functions effectively and efficiently.

Procedure For Plea Bargaining In India

Here are the general steps involved in the plea bargaining process in India:

 The accused, through their counsel, may initiate the plea bargaining process by
making an application to the court expressing their willingness to plead guilty to
the charges in exchange for a lesser sentence.
 The court will then inform the prosecution of the accused's application and may
ask for their opinion on the matter.
 If the prosecution agrees to the plea bargaining proposal, they will inform the
court of the terms of the plea bargain.
 The court will then conduct a preliminary hearing to ensure that the accused has
voluntarily and knowingly agreed to the plea bargain and that they understand
the consequences of their plea.
 If the court is satisfied that the plea bargain has been entered into voluntarily and
knowingly, it will dispose of the case in accordance with the terms of the plea
bargain.
 If the court rejects the plea bargaining proposal or if the accused does not
comply with the terms of the plea bargain, the case will proceed to trial.

It is important to note that not all offenses are eligible for plea bargaining in India. Only
offenses that are punishable with imprisonment up to seven years or with a fine are
eligible. Additionally, certain offenses such as those committed against women or
children, and those under special laws like the Narcotics Drugs and Psychotropic
Substances Act are not eligible for plea bargaining.

It is also important to note that the terms of a plea bargain will depend on the facts of
the case and the discretion of the prosecutor and the judge. Plea bargaining is a
voluntary process, and both the defendant and the prosecution must agree to the terms
of the agreement.
State of Uttar Pradesh v. Chandrika (2005):[iii]
This case was decided soon after the introduction of the plea bargaining provision in the
Code of Criminal Procedure. The court held that the purpose of plea bargaining was to
expedite the disposal of cases and reduce the burden on the courts, and it should not
be used as a tool to let the guilty go unpunished.
Conclusion
In conclusion, plea bargaining is a legal process in the Indian legal system that allows
an accused person to plead guilty to a lesser offense or to receive a lighter sentence in
exchange for cooperating with the prosecution or admitting guilt.

Q24. What is the stage of issuance of ‘process’ by the Magistrate? Discuss

warrant of arrest including search warrant.
Ans:
Issue of Process
The issue of process is defined under Section 227 of BNSS,2023. Section 227
empowers the magistrate to issue summons or warrant (as the case appears) for the
attendance of the accused after the witnesses of the prosecution have been filed. There
is no requirement for the Magistrate to record detailed reasons for issuing process
against the accused persons. If he feels that there is adequate ground to proceed
against the accused, he shall issue the process. it is very essential that the Magistrate
must have applied his mind to the materials filed therewith and the accusations made in
the police report.

Warrant of Arrest and Search Warrant:

Warrant of Arrest
A warrant of arrest is a written order issued by a Magistrate or a Sessions Judge,
directing a police officer to arrest a person accused of a crime. The warrant is issued
when the Magistrate or Sessions Judge is satisfied that there is sufficient evidence to
justify the arrest.

Provisions under BNSS

- Section 72 of the BNSS empowers a Magistrate or Sessions Judge to issue a warrant
of arrest.
- Section 73 of the BNSS provides that a warrant of arrest shall be in writing and shall
bear the seal of the court.
- Section 74 of the BNSS states that a warrant of arrest shall be executed by a police
officer.
Search Warrant
A search warrant is a written order issued by a Magistrate, directing a police officer to
search a place or a person for evidence related to a crime. The warrant is issued when
the Magistrate is satisfied that there is sufficient reason to believe that the evidence is
concealed in the place or on the person.

Provisions under BNSS

- Section 96 of the BNSS empowers a Magistrate to issue a search warrant.
- Section 97 of the BNSS provides that a search warrant shall be in writing and shall
specify the place or person to be searched.
- Section 103 of the BNSS states that a search warrant shall be executed by a police
officer.

Key differences between Warrant of Arrest and Search Warrant

- Purpose: A warrant of arrest is issued to arrest a person accused of a crime, while a
search warrant is issued to search for evidence related to a crime.
- Authority: A warrant of arrest can be issued by a Magistrate or Sessions Judge, while
a search warrant can only be issued by a Magistrate.
- Scope: A warrant of arrest is limited to the arrest of a person, while a search warrant
can be used to search a place or a person for evidence.

In conclusion, warrants of arrest and search warrants are important tools used by law
enforcement agencies to investigate and prosecute crimes. The BNSS provides a
framework for the issuance and execution of these warrants, ensuring that they are
used in a fair and transparent manner.
Q25. How is a criminal matter transferred from one court to another court?
Explain the process in detail. 2018
Ans:

Meaning of Transfer of Cases under BNSS

Transfer of cases under the BNSS refers to moving a criminal case or appeal from
one court to another within the same jurisdiction or to a different jurisdiction. The
BNSS contains provisions that empower higher judicial authorities to transfer cases
and appeals under specific circumstances to ensure a fair trial, uphold the
principles of justice and promote the convenience of the parties involved in the
litigation.
The nature of the trial or the relief granted to the parties involved remains
unchanged when a case is transferred. The power to transfer of cases in BNSS is
granted to various authorities, including the Supreme Court, High Courts, Sessions
Judges, Chief Judicial Magistrates, and Executive Magistrates, depending on the
level and nature of the case.

1. Section 446 – Power of Supreme Court to Transfer Cases and

Appeals
Section 446 of the BNSS grants the Supreme Court the discretionary power to transfer
cases and appeals. This broad discretionary power allows the Supreme Court to transfer
any case or appeal to the High Court of any other State in the country to uphold the
principles of justice and natural justice.

In the case Suman Gambhir v. State of Rajasthan & Ors., the complainants and accused
are based in Delhi, the civil suit between them is pending in Delhi, and the state has no
objection to transferring the case from Rajasthan to Delhi.

2. Section 447 BNSS - Power of High Court to transfer cases and appeals.

The high court is also vested with the similar authorities to transfer a case from one court
of its sub ordinance to another court of its sub ordinance or the high court may even the
try the case by itself.

The High court after receiving any such application from the applicant the court may even
if require conduct an enquiry and then decide whether such transfer is in the interest of
justice or it is filed with an intention to defeat the justice. If the grounds of filing such
application are found to be false, frivolous or vexatious the court would dismiss the
application. The Attorney general of the state may also file application of such transfer to
the High court with an affidavit which on oath would again affirm the contents of the
application. The trail court can also refer to the High court any such cases which may need
transfer from one court to another to meet the ends of justice.

3. Section 448 BNSS - Power of Sessions Judge to transfer cases and

appeals.

In sub ordinance to the High court the session court also have vested authority to
transfer one from one court to another under his jurisdiction within his session
division.

4. Section 449 - Withdrawal of Cases and Appeals by Sessions Judge

This provision empowers the Sessions Judge to withdraw or withdraw the case, or to
appeal to any Assistant Sessions Judge or Chief Judicial Magistrate under him. But, in
the case of the Additional Sessions Judge, that can only be done if the trial does not
begin. Pursuant to the provisions of this Code, the Sessions Judge may try the case or
appeal to his / her own court or to another court.

In Subrata Pal v. Ratna Gope & Anr., the Agartala Bench of Gauhati, High Court said
that if the case or appeal is withdrawn from the Court of Additional Sessions Judge, the
Sessions Judge will report to the High Court when the trial or proceedings are
commenced.

5. Section 450 - Withdrawal of Cases from Judicial Magistrates

It empowers the Chief Judicial Magistrate to withdraw or recall any case made to any
Magistrate under him and refer it to the Magistrate who is able to try and prosecute any
case.
In Mehfooz Khan & Anr. v. R. J. Parakh & Anr., the Bombay High Court held that the
power of a judicial magistrate under section 410 is not an administrative order but a
judicial order. Withdrawal or recall of the use of words is similar to word transfer. Since
the state is the leading party in all criminal cases, the state may file an application to
transfer the criminal case if compelling reasons exist.
6. Section 451 - Withdrawal of Cases from Executive Magistrates
Similar to Sections 449 and 450, Section 451 empowers the Executive Magistrates to
withdraw or recall any case made to the Subordinate Magistrate and to dispose of such
proceedings in his / her own court or to submit it to another Subordinate Magistrate.

7. Section 452 – Reasons to be recorded

Section 452 of the BNSS stipulates that if any transfer order is made under Section
448, Section 449, Section 450, or Section 451, the reasons for such transfer must
be recorded in writing. This requirement ensures that transfer orders are not
arbitrarily issued based on fair, just, and compelling reasons.

Conclusion
The transfer of criminal cases under BNSS is a crucial mechanism designed to
uphold the principles of justice and ensure a fair and impartial trial. Various
provisions within the BNSS empower higher judicial authorities to transfer cases
and appeals when compelling reasons exist. The process aims to address issues
such as jurisdictional conflicts, local biases, the convenience of parties and
witnesses, and the complexity of the case.

Q25. Write, in detail, the powers of criminal revision vis-à-vis the respective
courts. 2018

Ans:

The power of criminal revision is a vital aspect of the criminal justice system in
India, which enables higher courts to review and correct the decisions of lower
courts. The BNSS,2023, provides for the power of criminal revision, which is
exercised by the High Court and the Sessions Court.
Powers of High Court in Revision

The High Court has the power to revise the decisions of subordinate courts,
including the Sessions Court and the Magistrates' Courts, under Section 428-442
of the BNSS

1. Revision by High Court

The High Court may, in its discretion, call for and examine the record
of any proceeding before any subordinate court for the purpose of
satisfying itself as to the correctness, legality, or propriety of any order
passed by such subordinate court.

2. Power of High Court to revise orders

The High Court may, in its discretion, revise any order passed by a
subordinate court, including an order of acquittal, conviction, or
sentence.

3. Power of High Court to call for records

The High Court may call for the records of any case from any
subordinate court for the purpose of revising any order passed by
such subordinate court.

4. Power of High Court to stay execution

The High Court may stay the execution of any order passed by a
subordinate court, pending the disposal of a revision petition.
 5. Power of High Court to make rules

The High Court may make rules for regulating its own procedure and
the procedure of subordinate courts in respect of revision petitions.

Powers of Sessions Court in Revision

The Sessions Court has the power to revise the decisions of subordinate courts,
including the Magistrates' Courts:

1. Revision by Sessions Court

The Sessions Court may, in its discretion, call for and examine the record of
any proceeding before any subordinate court for the purpose of satisfying
itself as to the correctness, legality, or propriety of any order passed by such
subordinate court.

In conclusion, the power of criminal revision is an important aspect of the criminal

justice system in India, which enables higher courts to review and correct the
decisions of lower courts. The High Court and the Sessions Court have the power
to revise the decisions of subordinate courts, and their revisional powers are limited
to reviewing the correctness, legality, and propriety of the decisions of subordinate
courts.
Q26. Discuss the procedure to be followed by a Magistrate to prevent breach of
peace arising out of a dispute concerning immovable property. 2017+2020

Ans:

Introduction
The provisions of the law on the prevention of offences relating to immovable property
disputes are found in Chapter 11 of the BNSS, 2023, from sections 164 to 167. Proceedings
pursuant to section 164 are intended to prevent the breach of the peace as well as to avoid any
conflict as a safety measure. Also, the important thing to note here is the word 'land or water'
in these particular sections applies to houses, markets, fisheries, crops, other land products,
and the leases or incomes of all such properties.

Breach of Peace
If there is a conflict between two parties/groups over the ownership of land, water, or borders,
and if the conflict is likely to do a breach of peace, then the Executive Magistrate can take
action under Section 164 BNSS The police report or the information must contain the nature of
the conflict, the clear description of the property, the parties to the conflict, and the nature of
the danger it poses to the public peace.

Procedure for prevention of breach of peace

Section 164 of BNSS defines the procedure of disputes concerning land or water which is likely
to cause breach of peace. Whenever an Executive Magistrate is convinced by a police officer's
report or other evidence that there is a conflict likely to result in a violation of peace involving
any land or water or its borders within its local jurisdiction, he can make a written order
specifying the reasons for his satisfaction and also mandating the involved parties to attend the
court in person or by a pleader at a stated date and time in such dispute.
The parties have to make written explanations of their respective claims, as regards the fact of
actual possession of the subject of dispute. A copy of the order has to be issued in the form
given by this code, for the service of a summons to such individual or persons as directed by the
Magistrate, and at least one copy has to be published by being attached to some prominent
place at or near the subject of conflict.
The Magistrate, without giving regard to the grounds or allegations of either of the parties to
the right to possess the subject-matter of the dispute, has to review the claims submitted, hear
the parties, accept all such evidence as may be provided by them and also take further proof, if
he considers it necessary. The magistrate has to determine whether any of the parties were in
possession of the subject-matter of the dispute, on the date of the order rendered by him.
Parties are not prohibited to address or prove that the conflict does not exist or has ever
existed and in that case, the Magistrate can cancel his order, and no further proceedings will
continue. But the order of the Magistrate always remains final subject to such cancellation. If
the Executive Magistrate believes that one of the parties was or should be regarded as being in
possession, he may declare the possession in that party's favour. If the party's possession is
determined and ruled, the party shall be allowed to remain in possession until the competent
court orders otherwise.
If the Executive Magistrate is not satisfied as to which of the aforementioned parties was in
custody, he may issue orders to move the case to the District Judge for further proceedings as
provided by the statute. If any party to the proceedings dies, the Magistrate may allow the legal
representative of the deceased to become a part of the proceedings and thereby start the
proceedings, and if any dispute emerges as to who the legal representative of the deceased is
for the sake of such proceedings, all persons proposing to be representatives of the deceased
shall be included in the proceedings.
If any standing crop or other product of the property in conflict is prone to rapid and gradual
decline, the Executive Magistrate may issue an order for the appropriate custody or sale of the
property and, once the inquiry has been completed, it can make the order for the disposal or
sale of the property as it considers fit. Nothing in this provision shall be considered to be in
derogation of the powers of the Magistrate to function under Section 127.

Conclusion
Section 164 BNSS is implemented in real life when there is a dispute over an immovable property
and the dispute is such that it may likely cause a breach of peace. Then, in order to prevent the
disturbance and breach of peace, this power is given to the magistrate to resolve the issue of the
right of possession.

Q27. Define bail. Under what circumstances a person can claim bail in a non-bailable offence? What
is anticipatory bail? Mention the provisions.
Ans:
The term "Bail" is not defined anywhere in the code, but in the attempt of definition, it means setting
a person at liberty after arrest on a charge. Such liberty is granted to the accused after fulfillment of
paramount condition i.e. Security. In Bail, security is provided through the filling of bail bonds and
through a person who acts as a security that accused person would not run away from the eyes of
law after being released.

Section 480 BNSS deals with the provision regarding bail in non-bailable offences.
What is Anticipatory Bail?
Anticipatory bail means bail in anticipation of arrest. It can also be called pre-arrest bail in some
cases. When a person apprehends or fears that he can be arrested in a particular case, he can avail
this remedy. Section 482 of the BNSS contains express provisions relating to Anticipatory bail.

This provision allows a person to seek bail in a case where such person has a reasonable
apprehension of arrest on accusation/allegations of the non-bailable offence alleged to have been
committed by him.

Consider a scenario where 'A' has committed a non-bailable offence and he is aware that he
can get bail before he gets arrested. The Indian criminal law system provides an individual
under Chapter XXXV of the BNSS, 2023, three kinds of bail: regular, interim, and anticipatory.
Therefore, if 'A' wants to seek bail before getting detained, then 'A' may invoke one of the most
significant defences of personal liberty defined under Section 482 of the BNSS, that is,
anticipatory bail. If a person believes they are likely to be arrested on non-bailable charges,
they can move to the Court of Session or the High Court for anticipatory bail. Anticipatory bail is
a type of pre-arrest bail, and the court's authority to grant anticipatory bail is discretionary.
QUESTIONS FOR 6 MARKS:
A. Summary trial:
In the adversarial legal system, the parties are represented by their advoactes before an
impartial person, who attempts to determine the truth and pass judgement accordingly.

The word ‘trial’ has not been defined in the BNSS per se. according to the Black’s Law
Dictionary, a trial is defined as a judicial examination according to the law of the land, over a
cause which could be either civil or criminal before a court that has jurisdiction.

A trial is a procedure where the court adjudicates after hearing the case from both sides. It
gives a fair opportunity to examine, re-examine and cross-examine the witnesses produced in
the court. The judges delivers a judgement on the basis of the merits of the case. It is essential
that the trial is fair, prudent and without any undue influence.

There are three kinds of trial primarily- warrant, summons and summary. Summary trials are
mentioned in Chapter XXII of the BNSS, 2023. In this trial, the cases are disposed of speedily as
the procedure is simplified and the recording of such cases are done summarily.

In this type of trial, only the offences which fall into the small/ petty category are tried.
Complex cases are reserved for warrant or summons trial. To determine whether a case should
be tried summarily, the facts stated in the complaint form the primary basis. The objective of
summary trials is the expeditious disposal of cases to lessen the burden on the judiciary. The
trial gives a fair opportunity to people for procuring justice in less time.

The legal provisions governing summary trials under BNSS are section 283-288.
B. Execution of order:

Execution of order passed under section 409

When in a case submitted to the High Court for the confirmation of a sentence of death, the
Court of Session receives the order of confirmation or other order of the High Court thereon, it
shall cause such order to be carried into effect by issuing a warrant or taking such other steps as
may be necessary.

C. Cognizable offence:
Section 2(1)(g) of theBNSS, defines a cognizable offence.

According to the definition given in the sanhita, trsuch offences are those where the police are
empowered to make an arrest of the accused without a warrant or permission from the
magistrate. These offences are more serious and heinous. This classification of offences and
whether a particular offence falls under the category of cognizable offence or not is given under
the First Schedule of the Code. Examples of such offences are rape, murder, abduction, theft,
kidnapping, etc. These offences create a threat to society and disturb the peace and harmony
therein.

In these offences, the police can arrest the accused without any warrant or permission from the
court and initiate the investigation proceedings. The punishment in such offences is usually
more than 3 years and may extend up to life imprisonment or death. However, these offences
may either be bailable or not, which also depends on the discretion of the court. The first
schedule in the Code also mentions whether the particular offence is bailable or not.

D. trial of summon cases by magistrate:

The trial of summons case has been dealt with under Chapter 21 of the BNSSfrom section 274
to 282.
According to section 2(1)(x) of bnss, summons cases are those cases that are not warrant
cases. Summons cases are punishable with a fine or imprisonment of less than two years.
Summons cases are triable only by Magistrate.
Under summons cases, it is not necessary to frame the charge in writing, stating the substance
of the offence to the accused is enough. The particulars of the offence of which the person is
accused are stated to him.
 Analysis

The trial of the summon cases is less formal than other trial procedure just for the speedy
remedy. Therefore the Section 281 which does not empower the Magistrate to drop the case,
even in the absence of sufficient ground is somehow prejudice to the accused. Court's opinion
in the K.M. Matthew case was that the Magistrate has the implied power to drop the case if the
allegation against accused does not prove the commission of any crime. In various judicial
pronouncements, it has dissented. In Arvind Kejriwal case Supreme Court held law does not
specifically empower Magistrate in regard to dropping of the case under 281 and passed the
case to the high court to deal with it under section 528. But the point needs to be considered
that the High court also again need to look into the case to find out whether there is any
sufficient ground to proceed against the accused, all this will impede the main objective of the
summon case i.e. speedy trial. Though this matter was addressed before the apex court in
various cases, it must be scrutinized again to keep the fair trial and the right of the accused out
of jeopardy in such circumstances.

Procedure For Summons Cases

 Section 274: Substance of accusation to be stated

 Section 275: Conviction on plea of guilty

 Section 276: Conviction on plea of guilty in the absence of accused in petty cases

 Section 277: Procedure when not convicted

 Section 278: Acquittal or conviction

 Section 279: Non-appearance or death of the complainant

 Section 280: Withdrawal of complaint

 Section 281: Power to stop proceedings in certain cases

 Section 282: Power of court to convert summon cases into warrant cases

 Section 273: Compensation for accusation without reasonable ground

E. TRIAL OF WARRANT CASES BY MAGISTRATE:

Section 261 to 273 of the BNSS deals with the trial of warrant cases by magistrates. Trial of
warrant cases are of two types:
1. By a police report- Section 193 of BNSS mentions a police report as a report forwarded by a
police officer to the Magistrate. In this case, the accused appears or is brought before a
magistrate at the commencement of trial. Section 193(2)(1) mentions that as soon as the police
investigation is completed, the police station must forward it to the Magistrate empowered to
take cognizance of the offence.

2. By other than a police report- The complaint is filed directly with the Magistrate in this case.

The procedure of trial in warrant cases by magistrates in the following way:

 Compliance with Section 230;
 When accused shall be discharged;
 Framing of charge;
 Conviction on a plea of guilty;
 Evidence for Prosecution;
 Evidence for Defence Side;
 Evidence for Prosecution;
 When accused shall be discharged;
 Again Evidence for Defence;
 Acquittal or conviction;
 Absence of Complaint;
 Compensation for accusation without a reasonable cause.
Short Notes:
1. Rights of arrested persons:
a. Right to know the grounds of arrest, section 47;
b. right to be produced before the magistrate without unnecessary delay, section 78;
c. rights to be released on bail, section 47;
d. rights to a fair trial;
e. right to consult a lawyer;
f. right to free legal aid;
g. right to keep silence;
h. right to be examined by the medical practitioner.

2. Public Prosecutor:

A public prosecutor is one who represents the interest of the state. A ‘Public
Prosecutor’ is considered as the agent of the state to represent the interest of
common people in the criminal justice system.

3. Warrant cases:

Warrant cases refer to cases involving a criminal offence with the death penalty,
life imprisonment, or imprisonment for a period exceeding two years. These cases
typically involve serious or grave offences that are considered cognizable,
allowing the police to make arrests without a warrant. A court of session tries the
most severe warrant cases, while Magistrates handle the rest.

4. What are Non-cognizable Offences?

Section 2(1)(o) of the BNSS defines non-cognizable offences are those offences for which a
police officer cannot arrest the accused without a warrant and cannot initiate an investigation
without the permission of a court. A non-cognizable offence is a criminal act that is typically less
serious in nature.
5. Non-bailable offence:

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it.
On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to
be released on bail as a matter of right.

In the case of a non-bailable offence the police cannot release anyone on bail and so the arrested
person has to make an application for bail before a magistrate or court.

6. Compoundable offences:

The meaning of a compoundable offence can be understood as those offences

where, the complainant (one who has filed the case, i.e. the victim), enters into a
compromise, and agrees to have the charges dropped against the accused.
However, such a compromise should be a 'bonafide' and not for any
consideration to which the complainant is not entitled.

7. Investigation:

Section 2(1)(l) of the BNSS defines investigation as any proceeding conducted

by a police officer or a person authorized by the Magistrate (other than the
Magistrate herself) for the purposes of collecting evidence regarding the crime.