The Bharatiya Nagarik Suraksha Sanhita, 2023

Dr. Krishna Murari Yadav, Assistant Professor, LAW CENTRE – I, DU, 7985255882

HP 1/29/25 [Course title]

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CHAPTER 1: INTRODUCTION

Contents
CHAPTER 1: INTRODUCTION .............................................................................................................. 1
1.1. Substantive law v. Procedural law...................................................................................................... 4
1.2. Importance of the Code of Criminal Procedure/ BNSS ................................................................... 4
(1.2.1.) Law Commission of India, 37th Report (1967) ............................................................................. 5
(1.2.2.) Lqbal Ismail Sodawala v. The State of Maharashtra and Ors. .................................................... 5
(1.2.3.) Joginder Kumar v. State of U.P. .................................................................................................. 6
(1.2.4.) The Malimath Committee Report (2003) ..................................................................................... 6
(1.2.5.) Satender Kumar Antil Case – ...................................................................................................... 6
1.3. Stakeholders and Functionaries in the Criminal Justice Administration ...................................... 6
(1.3.1) State ............................................................................................................................................... 6
(1.3.2.) Judges ........................................................................................................................................... 7
(1.3.3.) Police ............................................................................................................................................ 8
(1.3.4.) Victims ......................................................................................................................................... 8
(1.3.5.) Accused......................................................................................................................................... 9
(1.3.6.) Advocates ................................................................................................................................... 10
(1.3.7.) Witnesses.................................................................................................................................... 11
(1.3.8.) Society ........................................................................................................................................ 11
(1.3.9.) Members of the general public ................................................................................................... 11
1.4. Adversarial System v. Inquisitorial System ..................................................................................... 11
(1.4.1.) Adversarial System .................................................................................................................... 11
(1.4.2.) Inquisitorial System.................................................................................................................... 12
1.5. Definitions ........................................................................................................................................... 12
(1.5.1.) The CrPC .................................................................................................................................... 12
(1.5.2.) The BNSS................................................................................................................................... 15
(1.6.) Classification of Offences under the CrPC. .................................................................................. 20
(1.6.1.) Differences between Bailable and Non-Bailable Offences ........................................................ 21

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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(1.6.2.) Differences between Cognizable and Non-Cognizable Offences .............................................. 23

(1.6.3.) Differences between Summons-cases and Warrant-cases .......................................................... 24
(1.6.4.) Process to compel appearance .................................................................................................... 25
(1.6.5.) Difference between Summons-cases/ Warrant-cases and Summons/Warrant ........................... 26
(1.6.6.) Differences between Inquiry and Trial ....................................................................................... 26
(1.6.7.) Differences between Inquiry and Investigation .......................................................................... 26
(1.6.8.) Differences among complaint, inquiry and trial ....................................................................... 27
(1.6.9.) Differences between Complaint and FIR .................................................................................. 27
(1.7.) Hierarchy, powers and duties of Criminal Courts ....................................................................... 28
Chapter 2: FIRST INFORMATION REPORT ......................................... Error! Bookmark not defined.

41st Report (Sep. 1969) of the Law Commission of India became the basis of the introduction of
the Code of Criminal Procedure Bill. The Bill was introduced in the Rajya Sabha on December
10, 1970. It was referred to the Select Committee. It received the assent of the President of India
on January 25, 1974. The Code of Criminal Procedure, 1973 (in short ‘the CrPC’) came into force
on April 1, 1974.1 Section 484 of the Code of Criminal Procedure, 1973 repealed the Code of
Criminal Procedure, 1898. The Criminal Law (Amendment) Act, 2018 came into force on April
21, 2018.2

The Cr.P.C.1973 contains Sections 484, Chapters XXXVII and two Schedules.3 The unique
character of Cr.P.C.1973 is the separation of the executive from the judiciary.4 This is in
consonance with the Article 50 of the Constitution of India.5 After the commencement of the
Jammu and Kashmir Reorganisation Act, 2019, Code of Criminal Procedure, 1973 is applicable
to the whole of India.6 The Jammu and Kashmir Reorganisation Act, 2019 came into force on
October 31 2019.7 Only a limited part of Cr.P.C applies to the State of Nagaland and to the Tribal
Areas. Tribal Areas means those areas which are mentioned in the Sixth Schedule of the

1 M.P. Civil Judge, 1986, M.P.APO, 1993 and Uttarakhand Civil Judge, 2002.
2 UP (J) 2018.
3 MP Civil Judge, 1986.

4UPAPO 2002, 2007 and Raj. APO, 2011.

5 Article 50 .Separation of executive from judiciary.

6 Before the commencement of the Jammu and Kashmir Reorganisation Act, 2019 Cr.P.C. was not applicable

to the Jammu and Kashmir. Code of Criminal Procedure, 1973 is applicable to the whole of India except the
State of Jammu and Kashmir.
But now Cr.P.C. is also applicable to Union Territory of J&K. The Fifth Schedule, Table 1S.No. 9 of Jammu
and Kashmir Reorganisation Act, 2019 provides – ‘In sub-section 2 of section 1, word “except the State of
Jammu and Kashmir” shall be omitted.
7 Gazette of India is available at: http://egazette.nic.in/WriteReadData/2019/210412.pdf (Visited on January

6, 2020). October 31 is the birth anniversary Hon’ble Sardar Ballabhbhai Patel.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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Constitution of India. Only Chapter VIII (Security for keeping the peace and for good behaviour,
Sections 106 - 124), Chapter X (Maintenance of Public Order and Tranquility, Sections 129 - 148),
and Chapter XI (Preventive action of the Police, Sections 149-153) which are related to
maintenance of peace and security are applicable to the State of Nagaland and to the tribal areas.
State Government of Nagaland and Tribal Areas may apply the whole Cr.P.C. in these areas.

The BNSS demanded major change in the CrPC and amendment would create more confuse. So,
it was better to enact the BNSS. There was need of time to introduce many newer concepts in
consonance of the Indian Constitution for establishing fair trial. Object of the BSS is establishment
of fair trial.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ‘the BNSS’) was enacted by the Lok
Sabha and Rajya Sabha on December 20 and December 21, 2023 respectively. 141 members had
been suspended from the Parliament. We can say that this Act was enacted without opposition
opinion. It was assented by the President on the birth anniversary of the Bharat Ratna Mr. Atal
Bihari Bajapai and Pt. Madan Mohan Malaviya i.e., on December 25, 2023. It came into force on
July 01, 2024. This Sanhita contains sections 531, chapters XXXIX and two schedules. First
Schedule contains classification of offences and second schedule contains forms. Section 531
repeals the Code of Criminal Procedure, 1973. Chapters IX, XI and XII of the BNSS are applicable
to State of Nagaland and to the tribal areas. Application of remaining chapters depends upon
discretion of concerned State Government. The concerned State Government may by notification
apply these chapters in their respective states.

Application of the
BNSS

Mandatory Discretionary
Application application

State
Whole India
Nagaland & tribal Government of
except Nagaland
areas Nagaland & tribal
& tribal areas
areas
..may apply other
provisions of the
All provisions of Chapters IX, XI &
BNSS whole or
the BNSS XII
any part of the
territory...

S. No. The BNSS The CrPC

1 Chapter IX – [Security for Chapter VIII (Security for keeping the
keeping the peace and for good peace and for good behaviour, Sections 106
behaviour {Sections 125 to 143}] - 124),

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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2 Chapter XI – [Maintenance of Chapter X (Maintenance of Public Order

Public Order and Tranquility and Tranquility, Sections 129 - 148), and
{Sections 148 to 167}]
3 Chapter XII – [Preventive action Chapter XI (Preventive action of the
of the police {Sections 168 to 172}] Police, Sections 149-153)

Some positive changes which were demand of society had been introduced in the BNSS. The
BNSS deals with general procedure law. It does not affect special and local laws. It mainly deals
with offences under the BNS.

Chapters IX, XI and XII of the BNS deal with law and order. So, there was need to change section
1 of the CrPC. 21 new offences were added in the BNS. There was need to change classification
of offences. There are many examples of this. Time line was inserted in 35 sections.8 Use of
technology has been promoted to control misuse of power of the police and to enhance quality of
evidence. Use of this has been promoted during crime scene, investigation and trial.9 Video
recording is mandatory for collection of evidence, search and seizure. Some definitions have been
added.

1.1. Substantive law v. Procedural law

Laws are mainly classified into two categories, namely: (1) substantive law and (2) procedural
law. Substantive law determines the rights and liabilities of the parties, while procedural law lays
down the practice and procedure for enforcement of those rights and liabilities.10 The BNS, the
Dowry Prohibition Act, 1961, the Prevention of Corruption Act, the Indian Contract Act, and the
Transfer of Property Act etc., are examples of substantive law. The BNSS, the Bharatiya Sakshya
Adhiniyam and the Limitation Act are a few examples of procedural law. The BNSS is mainly
procedural law. Certain provisions of the Sanhita confer substantive rights, e.g. section 144, the
BNSS confers a substantive right of maintenance on wives, children, and parents. 11 It also deals
with prevention of offences (Sections 125 – 143, 148 – 167, 168 -172) and preventive action of
the police (Sections 168 to 172, the BNS).

1.2. Importance of the Code of Criminal Procedure/ BNSS

The BNSS is part of procedural law. The realization of rights and imposing duties is not possible
without procedural laws. This is based on the principle of natural justice. According to Article 21

8 Available at: https://www.youtube.com/watch?v=6lhME2LiXos ( At 22 minutes of the video). (Visited on

March 7, 2024 ).
9 Available at: https://www.youtube.com/watch?v=6lhME2LiXos ( At 1 hour of the video). (Visited on

March 7, 2024 ).
10 CK Thakkar, Takwani Criminal Procedure 1(LexisNexis, Gurgaon 4 th edn., 2015).

11 Id. p.2

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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of the constitution of India, “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” The BNSS deals with the procedure by which life and
liberty of a person can be deprived. It creates confidence among all persons, including the poor. It
also provides speedy laws related to maintenance. It also lays down the procedure for a fair trial.
Several rights and remedies are also available in favour of the accused and victims.

The BNSS provides the machinery for detecting crime, apprehension of suspected criminals,
collection of evidence, determination of the guilt or innocence of the suspected person, and the
imposition of suitable punishment on the guilty. It is further aimed at providing a balance between
the needs of the investigating and adjudicatory bodies to detect crime maintain law and order and
the rights of the accused. With the increasing complaints regarding abuse of powers of arrest by
the police, custodial torture and death, denial of bail, etc., the course particularly focuses on
investigation, arrest, bail and principles of a fair trial. The provision relating to plea bargaining has
been included to critically examine its operation under the criminal law, which may be oppressive
unless all the stakeholders are equally positioned.
Importance of procedural laws can be understood with the help of the following reports and cases
–

S. No. Reports & Cases Remarks

1 The Law Commission of India, 37th Report, (1967)
2 Lqbal Ismail Sodawala v. The State of (1974) Justice H R Khanna
Maharashtra and Ors.

3 Joginder Kumar v. State of U.P. (1994) Chief Justice M.N.

Venkatachalliah
4 The Malimath Committee Report, (2003). (2003)

5 Satender Kumar Antil v. Central Bureau of (2022) Justice M. M.

Investigation & Anr. Sundresh

(1.2.1.) Law Commission of India, 37th Report (1967)12

The importance of the Code of Criminal Procedure is based on two considerations: -
First – expense, delay or uncertainty in applying the best laws for the prevention and punishment
of offences would render those laws useless or oppressive:
Secondly – law relating to the criminal procedure is more constantly used and affects more persons
than any other law.
(1.2.2.) Lqbal Ismail Sodawala v. The State of Maharashtra and Ors.
In Lqbal Ismail Sodawala v. The State of Maharashtra and Ors,13 Hon’ble Justice H.R. Khanna
observed, "The Code of Criminal Procedure is essentially a Code of procedure and like all
procedural laws, is designed to further the ends of justice. At the same time, it has to be borne in

12 LCI, 37th Report on Code of Criminal Procedure, 1889, P.2 Para 4. Available at;
http://lawcommissionofindia.nic.in/1-50/Report37.pdf
13 AIR 1974 SC 1880. Date of Judgment: August 13, 1974)

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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mind that it is a procedure that spells much of the difference between the rule of law and rule by
whim and caprice. The object of the Code is to ensure for the accused a full and fair trial, in
accordance with the principles of natural justice." The main purpose of procedural law is to
establish the rule of law.
(1.2.3.) Joginder Kumar v. State of U.P.
In Joginder Kumar v. State of U.P. (1994)14, Hon’ble Chief Justice M.N. Venkatachalliah
observed, “The quality of a nation’s civilization can be largely measured by the methods it uses in
the enforcement of criminal law". In this way, criminal procedure is a measurement of civilization.
(1.2.4.) The Malimath Committee Report (2003)
The Malimath Committee Report observed, “Substantive penal laws are enacted prescribing
punishment for the invasion of the rights. When there is an invasion of these rights of the citizens,
it becomes the duty of the State to apprehend the person guilty of such invasion, subject him to a
fair trial and, if found guilty to, punish him. Substantive penal laws can be effective only when the
procedural laws for enforcing them are efficient. This in essence, is the function of the criminal
justice system”.15 It means the efficiency of substantive law depends upon procedural law.
(1.2.5.) Satender Kumar Antil Case –
Hon’ble Justice M. M. Sundresh in Satender Kumar Antil v. Central Bureau of Investigation &
Anr.16 (2022) at para 19 observed that the Code of Criminal Procedure, despite being a procedural
law, is enacted on the inviolable right enshrined under Articles 21 and 22 of the Constitution of
India.

1.3. Stakeholders and Functionaries in the Criminal Justice Administration

Apart from the main functionaries of the criminal justice system, others who have a stake in the
system are the victims, the society and the accused. Other players are the witnesses and the
members of the general public.17
Stakeholders and functionaries are those persons and organizations involved in the administration
of criminal justice. These stakeholders and functionaries are the following - (1) State (2) Judges
(3) Police (4) Victims (5) Accused (6) Advocates (7) Witnesses (8) Society (9) Members of the
general public.18

(1.3.1) State – The State discharges the obligation to protect citizens’ life, liberty, and property by
taking suitable preventive and punitive measures that also serve to prevent private retribution,
essential for maintaining peace and law and order in the society.19 The main functions of the State
are to protect the life and liberty of its subjects and to punish culprits. The State also has the

14 AIR 1994 SC 1349.

15 The Malimath Committee Report (2003) Page15 (Para 2.1)
16 (2022) 10 SCC 51. Date of the judgment: July 11, 2022.

Available at: https://main.sci.gov.in/supremecourt/2021/27955/27955_2021_5_1505_36261_Judgement_11-

Jul-2022.pdf (Visited on July 12, 2022).
17 The Malimath Committee Report

18 The Malimath Committee Report, Para 1.35 Vol. 1,

https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
19 The Malimath Committee Report,

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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responsibility to protect the sovereignty and integrity of the nation. Commission of a crime is
treated crime against State. The State establishes machinery to administer justice according to a
law made by the State. Several laws have been enacted to administer justice in India. These laws
may be divided mainly into two parts (1) civil laws and (2) criminal laws. These laws may further
be divided into two parts, namely, (i) substantive laws and (ii) procedural laws.

(1.3.2.) Judges - Independent and efficient judges are sine qua non for the administration of justice.
The shortage of a number of judges in the higher and lower judiciary is a big challenge in India.
Near about one-third seats are vacant. Huge pendency of cases and poor rate of convictions are the
twin problems of the judiciary. The major area that needs attention for improving the situation is
providing an adequate number of Judges who are proficient in dealing with criminal cases.20
Judges should not sit as mute spectators. There is a hierarchy of judges in India, namely the
Supreme Court, High Courts, Court of Sessions/ Additional Court of Sessions, Assistant Court of
Sessions, Chief Judicial Magistrate/ Chief Metropolitan Magistrate, Metropolitan Magistrate/
Magistrate of the First Class, Magistrate of the Second Class. They have different powers and
responsibilities. In Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors.21 The Supreme
Court observed, “Fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm.” Fair trail is triangulation of interest of interest of the
accused, the victim and the society.22

In Rakesh Tiwari, Advocate v. Alok Pandey, C.J.M.23 decided by Hon’ble Justices of Supreme
Court consisted of Mr. Arun Mishra and Mr. Naveen Sinha on May 10, 2019. They observed,
“Judges are not fearful saints, but they should be fearless preachers”. It was observed regarding
independence of judiciary. This was related to contempt proceeding.
Fact of case-
“Sri Rakesh Tripathi, Advocate, on 21st December, 2012 during lunch hour without taking
permission from C.J.M., Allahabad entered into his chamber along with 2-3 colleagues and at the
said point of time he started hurling filthy abuses to the CJM and the matter did not end there, as
he also raised his hand to beat the Chief Judicial Magistrate and also threatened him of dire
consequences. The contemnor also asked the C.J.M. as to why he has not passed an order for
lodging F.I.R. when he had asked for the same.
Decision - This act on the part of the contemnor constitutes criminal contempt within the meaning
of Section 2(c) of Contempt of Courts Act, 1971, as this act has not only lowered the authority of
the Court but also scandalised the Court and the same has also the tendency of interference with
the due course of administration of justice.”
Ratio
The judiciary is one of the main pillars of democracy and is essential to peaceful and orderly
development of society. The Judge has to deliver justice in a fearless and impartial manner. He
cannot be intimidated in any manner or insulted by hurling abuses. Judges are not fearful saints.
They have to be fearless preachers so as to preserve the independence of the judiciary which is
absolutely necessary for survival of democracy.

20 Dr. Justice V.S. Malimath Committee Report,

21 (2004) 4 SCC 158.
22 Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374. The date of the judgment: March 08,2006.

23 (2019) 6 SCC 465.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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Muzaffar Husain v. State of Uttar Pradesh And Anr.24 was decided by the Division Bench on May
06, 2022. The Court dismissed the appeal and said that the High Court was perfectly justified in
exercising its supervisory jurisdiction under Article 235 of the Constitution. The Court observed
at para 15 of the judgment. There are the following observations of the Court, “ …showing undue
favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty
and misconduct. The extraneous consideration for showing favour need not always be a monetary
consideration. It is often said that “the public servants are like fish in the water, none can say when
and how a fish drank the water. A judge must decide the case on the basis of the facts on record
and the law applicable to the case. If he decides a case for extraneous reasons, then he is not
performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must
be above suspicion”.
Protection of judges within premises and outside of the premises is sine qua non. Firing and
fighting in premises of many courts is indirectly affecting security of judges. Stern action in such
cases is good.25
There must be cooling period for judges before joining any post including political post. Recent
joining of judges to political parties had created doubts regarding independence of judiciary.26
(1.3.3.) Police – Police have very wider power. It has the power to arrest culprits and investigate
the offences. It also has a responsibility to maintain law and order. The police system has been
politicized. It is overloaded from work. There is time to divide the police system into two wings,
namely; (1) investigation wing and (2) law and order wing. The investigation wing should be
separated from the law and order wing.
(1.3.4.) Victims – At the initial stage, whole concentration of the criminal law justice system was
on the accused. Later on, a new concept victimology i.e. the right of the victim, started. In 2009
several amendments were made to give rights and relief to the victims. Section 2(wa) (definition
of victim), section 357A27 (Victim Compensation Scheme), section 357C28 (Treatment of victims
of sexual offences), section 372, Provided29 (Right of victim to appeal in certain cases) deal with
victims. Under section 357A, District Legal Services Authority or State Legal Services Authority
is authorized to decide the quantum of compensation.30 In Jagjeet Singh & Ors v.
Ashish Mishra @ Monu & Anr.31 Hon’ble Supreme Court held that victim is entitled at the hearing
of all stage.

The BNSS contains some important provisions regarding victim –

1. Section 2(1)(y) defines victim.

24 2022 SCC OnLine SC 567. Date of Judgment: May 6, 2022.

Available at: https://main.sci.gov.in/supremecourt/2019/25735/25735_2019_16_1501_35496_Judgement_06-
May-2022.pdf (Visited on May 9, 2022).
25 Gopal Krishna & Anr. v. State of Bihar, Pat. H C May 10, 2022.

26 Calcutta HC Judge Abhijit Gangopadhyay resigned and immediately joined BJP.

27 UP(J)2018.

28 DJS (Pre.) 2019.

29 MP(J) Pre. 2011.

30 MP(J) Pre. 2011.

31 (2022) 9 SCC 321. Date of Judgment: April 18, 2022.

Available at: https://main.sci.gov.in/supremecourt/2022/5499/5499_2022_1_302_35135_Judgement_18-Apr-

2022.pdf (Visited on May 9, 2022).

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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2. Section 173(2). A copy of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant or the victim.
3. Section 184. Medical examination of victim of rape
4. Section 360. Provided further that no Court shall allow such withdrawal without giving an
opportunity of being heard to the victim in the case
5. Section 396. Victim compensation scheme.
6. Section 397. Treatment of victims.
7. Section 413. No appeal to lie unless otherwise provided - Provided that the victim shall
have a right to prefer an appeal against any order passed by the Court acquitting the accused
or convicting for a lesser offence or imposing inadequate compensation, and such appeal
shall lie to the Court to which an appeal ordinarily lies against the order of conviction of
such Court.
But in practice, even FIR is not lodged against powerful politicians without interference of
courts.32

(1.3.5.) Accused –The well recognized fundamental principles of criminal jurisprudence are
'presumption of innocence and right to silence of the accused', 'burden of proof on the Prosecution'
and the 'right to a fair trial'. Several rights for the accused have also been prescribed in the
Constitution of India, especially Article 20 and Article 22. Legal aid to the accused at the expense
of the State is also provided in certain cases (Article 39A of the Constitution, Section 304 of
Cr.P.C. and M.H. Hoscot v. Maharashtra, 1978 - Right to free legal aid is a fundamental right
under article 21 of the constitution of India.) In the case of Hussainara Khatoon & Others v. Home
Secy., State of Bihar, (March 9, 1979) Supreme Court held that ‘right to speedy trial’ is a
fundamental right under Article 21.33

Section 340. Right of person against whom proceedings are instituted to be defended. - Any
person accused of an offence before a Criminal Court, or against whom proceedings are instituted
under this Sanhita, may of right be defended by an advocate of his choice.

Section 341. Legal aid to accused at State expense in certain cases. –

(1) Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and
where it appears to the Court that the accused has not sufficient means to engage an advocate, the
Court shall assign an advocate for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules
providing for— (a) the mode of selecting advocates for defence under sub-section (1); (b) the
facilities to be allowed to such advocates by the Courts; (c) the fees payable to such advocates by
the Government, and generally, for carrying out the purposes of sub-section (1).

32 K.P.S. Gill v. Rupan Deval Bajaj,. Supreme Court in XYZ & Ors. v. NCT & Ors. passed an order dated April
28, 2023 for lodging FIRs against Brij Bhushan Singh.
33 LL.B DU, 2013. Question 8 (a) Right of the arrested person and the victim under the Cr.P.C.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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(3) The State Government may, by notification, direct that, as from such date as may be specified
in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of
trials before other Courts in the State as they apply in relation to trials before Courts of Session.

(1.3.6.) Advocates – Advocates, including Public Prosecutors and Assistant Public Prosecutors,
are part and parcel of the criminal justice system. In the adversarial system, they play vital roles in
finding truth and delivering justice. In Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors.
(08/03/2006) Hon’ble Supreme Court observed, “Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm”.34

Section 2(1)(v) of the BNSS says, “Public Prosecutor” means any person appointed under section 18, and
includes any person acting under the directions of a Public Prosecutor.
Section 18. Public Prosecutors.

Section19. Assistant Public Prosecutors. 20. Directorate of Prosecution

Kinds of prosecutors can be easily understood with the help of the following table -

Ground Public Prosecutor/ Special Public Assistant Public

Additional Public Prosecutor Prosecutor
Prosecutor
Provision (1). Sections 2(1) (v) & (1) Section 18(8) – For Sect.19(1)..shall…State
18(1) –For High Court any case or class of Gov.
(2). Section 18(2), (3) & cases. Sect.
(6) – For District or 19(2)..may…Central
local areas. He conducts Gov.
trial before Court of They conducted trial
Session [Section 248]. before Magistrate.

Forum for High Court or District High Court or District Magistrate.

function or local areas or local areas
Qualification Section 18(7) - Practice Section 18(8) -
It depends upon State.
not less than 7 years Practice not less than
In Uttar Pradesh for this
10 years post qualification is
LL.B. Degree.
Appointment Central Government or Central Government Central Government or
State Government or State Government State Government

34 Available at: https://main.sci.gov.in/judgment/judis/27561.pdf (Visited on September 3, 2021).

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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(1.3.7.) Witnesses - According to Bentham, “Witnesses are the eyes and ears of justice”. In the
case of Mrs Neelam Katara v. Union of India (2003), Delhi High Court, after observing the laws
of several countries, laid down exhaustive guidelines for the protection of witnesses. In the case
of Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (08/03/2006) the Supreme Court
observed, "Fair trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are
forced to give false evidence, that also would not result in a fair trial. The failure to hear material
witnesses is certainly a denial of a fair trial".35

The Witness Protection Bill, 2015, was introduced in Lok Sabha for the protection of witnesses.

The BNSS : Section 398. Witness protection scheme.—Every State Government shall prepare and notify
a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.

(1.3.8.) Society – Society has huge shareholders in the criminal justice system. 'Social Danger
Theory' has also been developed for the making difference between attempt and preparation. Fair
criminal justice systems build up confidence in society and other members. Instead of taking
revenge and taking the law into his own hands, he takes recourse to the State-sponsored criminal
justice system. In K.M. Nanavati v. State of Maharashtra, the Supreme Court said that at the time
of deciding ‘Grave and Sudden Provocation’ society of the accused must also be considered.
(1.3.9.) Members of the general public – Public are wider term than society. Terrorist attacks,
economic offences, and food adulteration cases affect the public at large.

1.4. Adversarial System v. Inquisitorial System

There are two major systems in the world. There are adversarial systems which have borrowed
from the inquisitorial system and vice versa. The inquisitorial system is followed in France,
Germany, Italy and other Continental countries is more efficient and, therefore, a better alternative
to the adversarial system. The Inquisitorial System is certainly efficient in the sense that the
investigation is supervised by the Judicial Magistrate, which results in a high rate of conviction.
(1.4.1.) Adversarial System
The system followed in India for dispensation of criminal justice is the adversarial system of
common law inherited from the British Colonial Rulers. The accused is presumed to be innocent,
and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The
accused also enjoys the right to silence and cannot be compelled to reply. The aim of the Criminal
Justice System is to punish the guilty and protect the innocent. In the adversarial system, truth is
supposed to emerge from the respective versions of the facts presented by the prosecution and
the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution
has been able to prove the case beyond reasonable doubt and gives the benefit of the doubt to the
accused. As the adversarial system does not impose a positive duty on the judge to discover the
truth, he plays a passive role. The system is heavily loaded in favour of the accused and is
insensitive to the victims’ plight and rights.

35 LL.B DU, 2013. Question 8 (c) Write a short note on the witness protection scheme?

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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(1.4.2.) Inquisitorial System

In the inquisitorial system, the power to investigate offences rests primarily with the judicial police
officers (Police/ Judiciary). They investigate and draw the documents on the basis of their
investigation. The Judicial police officer has to notify in writing of every offence which he has
taken notice of and submit the dossier prepared after investigation to the concerned prosecutor. If
the prosecutor finds that no case is made out, he can close the case. If, however, he feels that further
investigation is called for, he can instruct the judicial police to undertake further investigation. The
judicial police are required to gather evidence for and against the accused in a neutral and
objective manner as it is their duty to assist the investigation and the prosecution in discovering
the truth. Exclusionary rules of evidence hardly exist. Hearsay rules are unknown in this system.
Suppose the prosecutor feels that the case involves serious offences or offences of complex nature
or politically sensitive matters. In that case, he can move the judge of instructions to take over the
responsibility of supervising the investigation of such cases.

1.5. Definitions
(1.5.1.) The CrPC
Section 2 of the CrPC provides many definitions alphabetically. Section 2(y) is the bridge between
the CrPC and the IPC. Section 2 has not been divided into sub-sections.

Section 2 (a) “bailable offence” means an offence which is shown as bailable in the First
Schedule36, or which is made bailable by any other law for the time being in force, and “non-
bailable offence” means any other offence.37 & 38
Section 2 (b) “charge” includes any head of charge when the charge contains more heads than
one.
Section 2 (c)39 “cognizable offence” means an offence for which, and “cognizable case” means a
case in which, a police officer may, in accordance with the First Schedule or under any other law
for the time being in force40, arrest without warrant.41
Section 2 (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a
view to his taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.

36 Offences related to IPC.

37 MP APO 1993 and 2008, MP Civil Judge 2007. Meaning of bailable and non-bailable offence.
38 The Muslim Women (Protection of Rights on Marriage) Act, 2019. According to Section 7 of this Act,

offences under this Act are 'Cognizable', 'Compoundable' and 'Non-bailable'. Non-bailable offences mean
bail cannot be demanded as a matter of right. It depends upon the discretion of the court.
39 Uttarakhand Civil Judge, 2009 & 2011. Cognizable offence has been defined under section 2 (c).

40 For example, Dowry Prohibition Act, 1961, Section 8 Every offence under this Act shall be cognizable,

non-bailable and non-compoundable.

41 UP APO 2002, 2007, MP (J) 2005-2006 and MP APO 2008. In case of cognizable offence Police can arrest

[section 2 (c)] and investigate (Section 156(1) without warrant. Under section 154 FIR is lodged regarding
cognizable offences. Generally these are serious offences and punishable for three years or more than three
years. But there are certain offences which are punishable less than three years but they are cognizable
offences.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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Explanation. - A report made by a police officer in a case which discloses, after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer
by whom such report is made shall be deemed to be the complainant.
Section 2 (e) “High Court” means,-
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been
extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory
other than the Supreme Court of India.
Section 2 (f) “India” means the territories to which this Code extends.
Section 2 (g) “Inquiry” means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court.
Section 2(h) defines ‘investigation’.42 Purpose of investigation is the collection of evidence.43 It
is not a judicial proceeding.44 An investigation is conducted by (i) a police officer or (ii) by any
person (other than a Magistrate) who is authorized by a Magistrate in this behalf.45
Section 2 (i) “judicial proceeding” includes any proceeding in the course of which evidence is or
may be legally taken on oath.
Section 2 (j) “local jurisdiction”, in relation to a Court or Magistrate, means the local area within
which the Court or Magistrate may exercise all or any of its or his powers under this Code and
such local area may comprise the whole of the State, or any part of the State, as the State
Government may, by notification, specify.
Section 2 (k) “metropolitan area” means the area declared, or deemed to be declared, under section
8, to be a metropolitan area.
Section 2 (l) "non-cognizable offence" means an offence for which, and "non-cognizable case"
means a case in which, a police officer has no authority to arrest without a warrant.46
Section 2 (m) “notification” means a notification published in the Official Gazette.
Section 2 (n) “offence" means any act or omission made punishable by any law for the time being
in force and includes any act in respect of which a complaint may be made under section 20 of the
Cattle-Trespass Act, 1871 (1 of 1871).
Section 2 (o) “officer in charge of a police station” includes, when the officer in charge of the
police station is absent from the station house or unable from illness or other cause to perform his
duties, the police officer present at the station- house who is next in rank to such officer and is
above the rank of constable or, when the State Government so directs, any other police officer so
present.
Section 2 (p) “place” includes a house, building, tent, vehicle and vessel.
Section 2 (q) "pleader", when used with reference to any proceeding in any Court, means a person
authorized by or under any law for the time being in force, to practise in such Court, and includes
any other person appointed with the permission of the Court to act in such proceeding.

42 Uttarakhand Civil Judge 2009.

43 Uttarakhand Civil Judge 2002, 2010, UPAPO 2007, 2002
44 UPAPO 2002.

45 MP APO 1997.

46 The Sexual Harassment Of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013

Section 27 (3) Every offence under this Act shall be non-cognizable. On the issue of bailable and non-
bailable offences this law is silent. It will be decided according to Schedule I , List II of Cr.P.C.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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Section 2 (r) "police report" means a report forwarded by a police officer to a Magistrate under
sub-section (2) of section 173.
Section 2 (s) “police station” means any post or place declared generally or specially by the State
Government, to be a police station, and includes any local area specified by the State Government
in this behalf.
Section 2 (t) “prescribed” means prescribed by rules made under this Code.
Section 2 (u) “Public Prosecutor” means any person appointed under section 24, and includes any
person acting under the directions of a Public Prosecutor.
Section 2 (v) “sub- division” means a sub- division of a district.
Section 2 (w) “summons-case” means a case relating to an offence, and not being a warrant- case.
47

Section 2 (wa)48 “victim” means a person who has suffered any loss or injury caused by reason of
the act or omission for which the accused person has been charged and the expression “victim”
includes his or her guardian or legal heir.

The Indian Parliament enacted the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of
2009) in 2009. The Act came in force on December 31, 2009. The Act inserted Section 2(wa) and
provided definition of ‘victim’. The Act also inserted Section 372 provided and Section 357A. In
Jagjeet Singh & Ors v. Ashish Mishra @ Monu & Anr.49 Hon’ble Supreme Court discussed
history of victims in criminal law with the help of international conventions, US law and the Law
Commission of India’s 154th report. Sections 147, 148, 149, 302, 307, 326 read with Sections 34
and 120-B of IPC, 1860 as well as Sections 3, 25 and 30 of the Arms Act, 1959 were involved. The
Allahabad High Court granted bail to Ashish Mishra @ Monu s/ o Mr. Ajay Mishra @ Teni,
Union Minister of State for Home without giving proper opportunities to victims. Uttar Pradesh
Government run by Mr Ajay Singh Bist @ Yogi Adityanath decided not to challenge granting of
bail. But victims decided to challenge and filed petition under Article 136 of the Constitution of
India. Shri Mahesh Jethmalani, Senior Counsel appearing for Respondent No.2, i.e., State of Uttar
Pradesh opposed this petition in the Supreme Court. In this case, there were three issues at para 15
of the judgment. One of them was ‘Whether a ‘victim’ as defined under Section 2(wa) of the Code
of Criminal Procedure, 1973 is entitled to be heard at the stage of adjudication of bail application
of an accused? The Hon’ble Supreme Court replied in positive. The Court observed the following
points at paras 23 and 24 -
Para 23. “It cannot be gainsaid that the right of a victim under the amended Cr.P.C.
are substantive, enforceable, and are another facet of human rights. The victim’s right, therefore,
cannot be termed or construed restrictively like a brutum fulmen50. We reiterate that these rights
are totally independent, incomparable, and are not accessory or auxiliary to those of the State under

47 UPAPO 2005, 2006, 2007. UPAPO 2005, 2006 -"summons-case" are those which are not warrant cases.
UPAPO 2007 – Summon cases are those cases which are not punishable for more than two years.
48 Ins. in 2009 (w.e.f. 31-12-2009).

49 Date of Judgment: April 18, 2022. Available at:

https://main.sci.gov.in/supremecourt/2022/5499/5499_2022_1_302_35135_Judgement_18-Apr-2022.pdf
(Visited on May 9, 2022).
50 Brutum fulmen means empty threat or noise.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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the Cr.P.C. The presence of ‘State’ in the proceedings, therefore, does not tantamount to according
a hearing to a ‘victim’ of the crime.
Para 24. A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement
of trial for asserting his/her right to participate in the proceedings. He / She has a legally vested
right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled
participatory rights from the stage of investigation till the culmination of the proceedings in an
appeal or revision. We may hasten to clarify that ‘victim’ and ‘complainant/informant’ are two
distinct connotations in criminal jurisprudence. It is not always necessary that the
complainant/informant is also a ‘victim’, for even a stranger to the act of crime can be an
‘informant’, and similarly, a ‘victim’ need not be the complainant or informant of a felony”.
Section 2 (x) “warrant- case” means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.51

Section 2 (y) words and expressions used herein and not defined but defined in the Indian Penal
Code (45 of 1860) have the meanings respectively assigned to them in that Code.

(1.5.2.) The BNSS

Section 2 of the CrPC provides many definitions alphabetically. Section 2(y) is the bridge between
the CrPC and the IPC. Section 2 has not been divided into sub-sections. Section 2 of the BNSS
has been divided into two sub-sections. Sub-section 1 contains definition and sub-section 2 creates
bridge between the BNSS and the BNS & the IT Act, 2000. You can say that section 2(y) of the
CrPC has been converted into section 2(2) of the BNSS.
The BNSS first times defines few words which are the following –

Sr. No. Section 2(1) Detail

1 (a) “audio-video (a) "audio-video electronic means" shall include use of

electronic means” any communication device for the purposes of video
conferencing, recording of processes of identification,
search and seizure or evidence, transmission of electronic
communication and for such other purposes and by such
other means as the State Government may, by rules
provide;

2 (b) “bail” "bail" means release of a person accused of or suspected

of commission of an offence from the custody of law upon
certain conditions imposed by an officer or Court on
execution by such person of a bond or a bail bond;

3 (d) “bail bond” "bail bond" means an undertaking for release with
surety.

51 MP APO, 1995, 2009, MP Civil Judge 2005- 2006, UPAPO 2002, UK (J) 2002

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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4 (e) “bond” "bond" means a personal bond or an undertaking for

release without surety;

5 (i) “electronic “electronic communication” means the communication

communication” of any written, verbal, pictorial information or video
content transmitted or transferred (whether from one
person to another or from one device to another or from
a person to a device or from a device to a person) by
means of an electronic device including a telephone,
mobile phone, or other wireless telecommunication
device, or a computer, or audio-video player or camera or
any other electronic device or electronic form as may be
specified by notification, by the Central Government;

Section 2 (2) It was introduced first time. But contents of this is

contents of section 2(y) of the CrPC.

Section 2. (1) - In this Sanhita, unless the context otherwise requires, -

(a) "audio-video electronic means" shall include use of any communication device for the
purposes of video conferencing, recording of processes of identification, search and seizure or
evidence, transmission of electronic communication and for such other purposes and by such other
means as the State Government may, by rules provide;
(b) "bail" means release of a person accused of or suspected of commission of an offence from
the custody of law upon certain conditions imposed by an officer or Court on execution by such
person of a bond or a bail bond;
Comment
There are the following ingredients of this definition –
1. Bail is a procedure for release of accused of or suspected persons.
2. Release must be from custody of law. No authorized custody, no question of bail.
3. Release is upon certain conditions imposed by an officer or Court.
4. Such release may be either on bond i.e., without surety or on bail bond i.e., with surety.
The Supreme Court in Veera Ibrahim v. State of Maharashtra52 defined accused in the following
words with the help of ratio of M. P. Sharma and Others v. Satish Chandra, District Magistrate,
Delhi, and Others. 53 - (i) only a person against whom a formal accusation relating to the
commission of an offence has been levelled which in the normal course may result in his

52AIR 1976 SC 1167.

53M. P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi, and Others. Date of Judgment:
15/03/1954

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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prosecution, would fall within its ambit. (ii) "Normally a person stands in the character of an
accused when a First Information Report is lodged against him in respect of an offence before an
officer competent to investigate it, or when a complaint is made relating to the commission of an
offence before a Magistrate competent to try or send to another Magistrate for trial the offence.
Section 2(1)(c), the BNSS - “Bailable offence” means an offence which is shown as bailable in
the First Schedule54, or which is made bailable by any other law for the time being in force, and
“non-bailable offence” means any other offence.55 & 56
(d) "bail bond" means an undertaking for release with surety;
(e) "bond" means a personal bond or an undertaking for release without surety;
(f) "charge" includes any head of charge when the charge contains more heads than one;
(g) "cognizable offence" means an offence for which, and "cognizable case" means a case in which,
a police officer may, in accordance with the First Schedule or under any other law for the time
being in force, arrest without warrant;
“cognizable offence” means an offence for which, and “cognizable case” means a case in which,
a police officer may, in accordance with the First Schedule or under any other law for the time
being in force57, arrest without warrant.58

(h) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his
taking action under this Sanhita, that some person, whether known or unknown, has committed an
offence, but does not include a police report.
Explanation.—A report made by a police officer in a case which discloses, after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer
by whom such report is made shall be deemed to be the complainant;
(i) "electronic communication" means the communication of any written, verbal, pictorial
information or video content transmitted or transferred (whether from one person to another or
from one device to another or from a person to a device or from a device to a person) by means of
an electronic device including a telephone, mobile phone, or other wireless telecommunication

54 Offences related to IPC.

55 MP APO 1993 and 2008, MP Civil Judge 2007. Meaning of bailable and non-bailable offence.
56 The Muslim Women (Protection of Rights on Marriage) Act, 2019. According to Section 7 of this Act,

offences under this Act are 'Cognizable', 'Compoundable' and 'Non-bailable'. Non-bailable offences mean
bail cannot be demanded as a matter of right. It depends upon the discretion of the court.
57 For example, Dowry Prohibition Act, 1961, Section 8 Every offence under this Act shall be cognizable,

non-bailable and non-compoundable.

58 UP APO 2002, 2007, MP (J) 2005-2006 and MP APO 2008. In case of cognizable offence Police can arrest

[section 2 (1)(g)] and investigate (Section 175(1) without warrant. Under section 173 FIR is lodged regarding
cognizable offences. Generally these are serious offences and punishable for three years or more than three
years. But there are certain offences which are punishable less than three years but they are cognizable
offences.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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device, or a computer, or audio-video player or camera or any other electronic device or electronic
form as may be specified by notification, by the Central Government;
(j) "High Court" means,—
(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been
extended by law, that High Court;

(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other
than the Supreme Court of India.

High Court has been conferred many types of powers. Article 235 gives supervisory powers over
lower courts. Muzaffar Husain was Additional District Judge, Agra during the period from
23.05.2001 to 19.05.2003. Through his judgments, he unduly favoured parties in 2003. He took
voluntary retirement from the said services in September 2003 and he became member of the
Central Administrative Tribunal. Allahabad High Court initiated Departmental Inquiry in 2005.
The Allahabad High Court found misconduct of Muzaffar Husain and recommended State
Government to reduce pension up to 90%. He challenged this in High Court. The Court allowed
reducing pension up to 70%. He challenged in Supreme Court. Muzaffar Husain v. State of Uttar
Pradesh and Anr.59 was decided by the Division Bench on May 06, 2022. The Court dismissed the
appeal and said that the High Court was perfectly justified in exercising its supervisory jurisdiction
under Article 235 of the Constitution. The Court observed at para 15 of the judgment. There are
the following observations of the Court, “ …showing undue favour to a party under the guise of
passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous
consideration for showing favour need not always be a monetary consideration. It is often said that
“the public servants are like fish in the water, none can say when and how a fish drank the water”.
A judge must decide the case on the basis of the facts on record and the law applicable to the case.
If he decides a case for extraneous reasons, then he is not performing his duties in accordance with
law. As often quoted, a judge, like Caesar’s wife, must be above suspicion”.
Section 6 read with section 520 deals with trial before the High Court.

Section 520, the BNSS Trials before High Courts.—When an offence is tried by the High Court otherwise
than under section 447, it shall, in the trial of the offence, observe the same procedure as a Court of
Sessions would observe if it were trying the case.

(k) "inquiry" means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate
or Court;

59 Date of Judgment: May 6, 2022. Available at:

https://main.sci.gov.in/supremecourt/2019/25735/25735_2019_16_1501_35496_Judgement_06-May-
2022.pdf (Visited on May 9, 2022).

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 19

(l) "investigation" includes all the proceedings under this Sanhita for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf.
Explanation. - Where any of the provisions of a special Act are inconsistent with the provisions of
this Sanhita, the provisions of the special Act shall prevail;
(m) "judicial proceeding" includes any proceeding in the course of which evidence is or may be
legally taken on oath;
(n) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the
Court or Magistrate may exercise all or any of its or his powers under this Sanhita and such local
area may comprise the whole of the State, or any part of the State, as the State Government may,
by notification, specify;
(o) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case
in which, a police officer has no authority to arrest without warrant;
(p) "notification" means a notification published in the Official Gazette;
(q) "offence" means any act or omission made punishable by any law for the time being in force
and includes any act in respect of which a complaint may be made under section 20 of the Cattle
Trespass Act, 1871;
(r) "officer in charge of a police station" includes, when the officer in charge of the police station
is absent from the station-house or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to such officer and is above the rank
of constable or, when the State Government so directs, any other police officer so present;
(s) "place" includes a house, building, tent, vehicle and vessel;
(t) "police report" means a report forwarded by a police officer to a Magistrate under sub-section
(3) of section 193;
(u) "police station" means any post or place declared generally or specially by the State
Government, to be a police station, and includes any local area specified by the State Government
in this behalf;
(v) "Public Prosecutor" means any person appointed under section 18, and includes any person
acting under the directions of a Public Prosecutor;
(w) "sub-division" means a sub-division of a district;
(x) "summons-case" means a case relating to an offence, and not being a warrant-case;
(y) "victim" means a person who has suffered any loss or injury caused by reason of the act or
omission of the accused person and includes the guardian or legal heir of such victim;
(z) "warrant-case" means a case relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years.

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(2) Words and expressions used herein and not defined but defined in the Information Technology
Act, 2000 and the Bharatiya Nyaya Sanhita, 2023 shall have the meanings respectively assigned
to them in that Act and Sanhita.
Section 2(2) of the BNSS is bridge the BNSS & BNS, and the BNSS & the IT Act. Section 2(2),
the BNSS is pari materia to section 2(y), the CrPC.
There are three ingredients of section 2 (2) –
(1) words and expressions used in the BNSS. For example ‘he’ has been used in section 148
of the BNSS
(2) But it has not been defined in the BNSS. For example, he has not been defined in the BNSS,
and
(3) this word should have been defined in the BNS or the IT Act. For the example, he word
has been defined in the section 2(10) of the BNS.
M. Areefa Beevi was the daughter of K. M. Sahib. Father filed a petition under section 125 of the
CrPC for maintenance from the petitioner, alleging that he was unable to maintain himself and his
daughter was duty bound to maintain him. M. Areefa Beevi i.e, the petitioner was graduate in
Science as well as in Medicine and Surgery was working in a Mission Hospital. The Kerala High
Court in M. Areefa Beevi v. K.M. Sahib60 discussed section 125 & section 2(y), the CrPC in context
of section 8, the IPC. Section 8 was defining gender. It was held that ‘he’ includes ‘she’ for the
purpose of section 125 of the CrPC. Daughter was compelled to give maintenance to her father.

(1.6.) Classification of Offences under the CrPC.61

Offences under the CrPC have been classified on several grounds. These are the following –

Grounds Offences Offences

(1) Release from Bailable Offence Non-bailable Offence
custody
Section 2(1)(c), the BNSS defines Section 2(1)(c), the BNSS defines
bailable offence. Bail is a matter of non-bailable offence. Bail is the
right except cases falling under discretion of the court rather than a
section 478(2), the BNSS, right of an accused except in
exceptional circumstances.
Exceptional circumstances have been
mentioned under section 187, section
480, (2), (6), and (7), the BNSS.

601983 Cri LJ 412 (Ker). Available at: https://indiankanoon.org/doc/918754/ (Visited on September 3, 2021).
61UP (J) Mains Question no. 10 (a) Illustrate and distinguish between:
(1) Cognizable and Non-Cognizable Offence
(2) Bailable and Non-Bailable Offences
(3) Summary Cases and warrant cases
(4) Inquiry and trial.

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(2) Power of Cognizable offence Non-Cognizable Offences

police to arrest
Section 2(1)(g), the BNSS defines section 2(1)(o), the BNSS defines
cognizable offence. In such cases, non-cognizable Offence. In such
police can arrest without warrant. cases, police cannot arrest without
warrant.
(3) Trial and Summons-case Warrant Case
Issues of process
Section 2(1)(x), the BNSS defines Section 2(1)(z), the BNSS] defines
‘summons-case’. Offences warrant-case. Warrant-case means a
punishable up to 2 years are case related to an offence punishable
summons-cases. with death, imprisonment for life or
imprisonment exceeding two years.
(4) Compromise Compoundable Offences Non-compoundable Offences
between Parties
There is no definition of There is no definition of non-
compoundable offences. compoundable offences. Non-
Compoundable offences have compoundable offences have been
been mentioned under Section mentioned under Section 359, the
359, the BNSS. Schedules don’t BNSS. Schedules don’t contain any
contain any category of category of compoundable offences.
compoundable offences.
Certain offences are allowed to be Certain offences are not allowed to be
compromised between parties. compromised between parties.
Criminal cases can be disposed of Criminal cases are disposed of with
without full trial. full trial. There are exceptional cases
in which High Courts and the
Supreme Court allowed compromise
even in non-compoundable cases by
using their inherent powers.
There are two categories of this. There is no category of this.
Section 359, the BNSS deals with
those offences which can be
compromised between parties
even without permission of the
court. Section 359 (2) deals with
those offences which cannot be
compromised between parties
without permission of the court.

(1.6.1.) Differences between Bailable and Non-Bailable Offences

According to section 2(1)(b) of the BNSS, “bail” means release of a person accused of or suspected
of commission of an offence from the custody of law upon certain conditions imposed by an officer
or Court on execution by such person of a bond or a bail bond.

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Categorization viz., between bailable and non-bailable offences, is concerned, it appears by and
large to be based upon the gravity of the offence (which necessarily means the quantum of
punishment prescribed therefor) and the need to keep the offender incarcerated pending
investigation and trial.62 Differences between bailable and non-bailable offences are on the basis
of free from custody as a matter of right v. discretion. “The bail is rule, jail is exception” rule was
laid down by Hon’ble Justice V.R. Krishnaiyer in Moti Ram & Ors. v. State of M.P.63 There are
the following similarities and differences between ‘bailable offence’ and ‘non-bailable offence’ –

Bailable Offences Non-Bailable Offences

1. Similarities i. Basis - Both have been defined in the same section. The basis of classification
of both is the release of the accused or suspected person.
ii. Offences under the BNS - Both have been shown in First Schedule, First
Part and Column 5.
iii. Offences other than under the BNS - Both have been shown in First
Schedule, Second Part and Column 3.
2. Differences Differences Differences
(i). Definition Section 2(1)(c), the BNSS says Section 2(1)(c), the BNSS says “non-
“Bailable offence” means an offence bailable offence” means any other
which is shown as bailable in the offence. “Non-bailable offence” means
First Schedule, or which is made offence other than bailable offence. It
bailable by any other law for the time is residuary.
being in force.
(ii). Offences The second part of the First Schedule The second part of the First Schedule
other than of the Sanhita deals with offences of the Sanhita deals with offences other
IPC other than that of the BNS and than that of the BNS and provides that
provides that if the offence is if the offence is punishable with death,
punishable with imprisonment for imprisonment for life or
less than 3 years or with fine only imprisonment for 3 years or more
that offence shall be treated bailable than offence shall be treated as non-
offences. Sections 21 and 22 of the bailable offences. Sections 4,6,8,10,
POCSO Act are the best example of and 12 of the POCSO Act are the best
this. example of this.
(iii) Right v. In case of bailable offence, the In case of non-bailable offence, the
Discretion accused can claim bail as a matter of accused cannot claim bail as a matter
right. If he is fulfilling all other of right. Court or Officer in Charge of
conditions, Court or Officer in Police Station may grant bail. It is the
Charge of Police Station cannot deny discretion of the Court or Officer in
bail. One exception has been Charge of Police Station to grant bail.
mentioned under section 478(2), the There are certain exceptional cases
BNSS. when granting of bail is mandatory in
non-bailable offences. Exceptional
circumstances have been mentioned

62 Law Commission of India, Report 177 (Dec.2001), p. 24.

63 Date of Judgment: August 24, 1978. UP (J) 2018.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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under sections 187, 480, (2), (6), and

(7) the BNSS.
(iv). In the case of bailable offence, there In the case of non-bailable offence,
Anticipatory is no provision for anticipatory bail. there is a provision for anticipatory bail
Bail section 482, the BNSS.

Non-bailable Offence

Any other Laws

First Schedule, I Part

First Schedule, II Part, the Law is not silent. For

BNSS. Laws silent about example... The
Offences under the
nature of offence and refer the Dowry Prohibition
BNS. For example
BNSS. Act, section 8.
murder

For example The POCSO Act. Offences

Before 1986, offences
under sections 4,6,8,10, and 12 of the were bailable. Since
POCSO is Non-bailable. Any offence is 1986, offences are non-
not punishable less than 3 yrs. Section 31 bailable.
refers to the CrPC/BNSS

(1.6.2.) Differences between Cognizable and Non-Cognizable Offences

Classification of offences between cognizable and non-cognizable offence64 is on the basis of the
power of police to arrest and investigate the matter. The following differences between both are –
Basis Cognizable Offence Non-Cognizable Offence
1. Provision Section 2(1)(g), the BNSS defines Section 2(1)(o), the BNSS
cognizable offence. defines non-cognizable offence.
2. Definition “Cognizable offence” means an offence “Non-cognizable offence”
for which, and “cognizable case” means a means an offence for which,
case in which, a police officer may, in and “non-cognizable case”
accordance with the First Schedule or means a case in which, a police
under any other law for the time being in officer has no authority to arrest
force, arrest without warrant. without warrant.
“First Schedule or under any
other law for the time being in
force” are missing in the
definition of Non-Cognizable
Offence.
2.1. Offences Offences required immediate responses of Offences which do not require
under the BNS police come under category of cognizable immediate responses of police
offences. Punishment or gravity of the come under category of non-

64 UP (J) Mains 2015 Q. No. 8 Distinguish between Cognizable and Non-Cognizable Offence

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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offence is immaterial.65 Best example of cognizable offences. Sections

this is house trespass under Section 81 to 84, the BNS (Offences
329(3), the BNS. There is three months relating to marriage) deal with
imprisonment or fine of 5000/ rs or both non-cognizable offences even
for criminal trespass. some offences are punishable
up to 10 years imprisonment.
2.2. Offences The second part of the First Schedule of The second part of the First
other than BNS the Sanhita deals with offences other than Schedule of the deals with
that of BNS and provides that if the offences other than that of BNS
offence is punishable with death, and provides that if the offence
imprisonment for life or imprisonment for is punishable with
3 years or more than offence shall be imprisonment for less than 3
treated as cognizable offences. years or with fine only that
offence shall be treated as non-
cognizable offences.
3. Arrest As per Section 2(1)(g), a person may be As per section 2(1)(o), person
arrested without warrant. cannot be arrested without
warrant.
4. Nature of Generally, cognizable offences become Generally, non-cognizable
offences serious and public matters. offences become less serious
and private matters.
5. FIR/ NCR Under section 173, the BNSS, an FIR Under section 174, the BNSS,
(First Information Report) is registered NCR (Non-cognizable report)
related to cognizable offences. is registered related to non-
cognizable cases.
6. Number of As per rule 97 of the Uttar Pradesh Police As per rule 102 of the Uttar
FIR/ NCR Regulation, three copies of FIR are Pradesh Police Regulation, two
prepared. copies of NCR are prepared.
7. Power of According to Section 175, the BNSS, after As per Section 174, no police
investigation recording the FIR under section 173, the officer shall investigate a non-
BNSS any officer in charge of police cognizable case without the
station may, without the order of a order of a Magistrate having
Magistrate, investigate any cognizable power to try such case or
case. commit the case for trial.

(1.6.3.) Differences between Summons-cases and Warrant-cases

After adding 23 in the CrPC’s sections, we can reach on the provisions of the BNSS. This formula
is applicable to section 200 to 265 of the CrPC. The following differences between ‘Summons-
cases’ and ‘Warrant-cases’66 are -

Basis Summons-cases Warrant-cases

65 Law Commission of India, Report 177 (Dec.2001), p. 23. Available at:

http://lawcommissionofindia.nic.in/reports/177rptp1.pdf . Last visited on February 8, 2022.
66 UP (J) Mains 2016 Q. No. 8 Distinction between trial of summons cases and warrant cases.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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1. Definition According to section 2(1)(x) of the According to section 2(1)(z), the

BNSS “Summons-case” means a BNSS, “Warrant- case” means a case
case relating to an offence, and not relating to an offence punishable with
being a warrant- case. death, imprisonment for life or
imprisonment for a term exceeding
two years.
2. Kinds of There is only one procedure There are two types of procedure for
Procedure for prescribed for trial of summons- trial of warrant cases by Magistrates
trial cases 274 to 282, the BNSS. namely: (1) Cases instituted on police
report (261-266 and 271-273) and (2)
Cases instituted otherwise than on
police report (Sections 267 – 270,
271-273).
3.Framing of As per section 274, the BNSS, As per sections 263 & 269, the BNSS,
Charge framing of charge is not necessary. framing of charge is necessary.
4. Issue of According to Section 227(1) (a), in According to Section 227(1) (b), in
process summons-cases, summons shall be warrant-cases, either warrant or
issued. Section 227 of the BNSS is summons may be issued.
pari materia to section 204, the
CrPC
5. Conversion According to section 282, the Trial of Warrant Cases cannot be
BNSS, Trial of Summons-cases can converted into Summons-cases
be converted into a trial of warrant
cases.
6. Acquittal/ As per section 279, the BNSS, in As per section 272, the BNSS, In case
Discharge case of non-appearance of the of non-appearance of the complainant,
complainant, Magistrate may acquit Magistrate may discharge the
the accused. accused in some cases before framing
of charge.

(1.6.4.) Process to compel appearance

Summons and warrant are process to compel a person to appear before courts. There are the
following differences between summons and warrant -

Number of According to Section 61, According to Section 70, ‘Warrant’ is

Copy ‘Summons’ is issued in duplicate issued in one copy.
(two copies of summons).
Kinds There is no kind of summons There are two types of warrant,
namely; (1) Warrant under section 70.
It is also known as a non-bailable
warrant [NBW] (2) Bailable warrant
[BW] under Section 71.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
 26

(1.6.5.) Difference between Summons-cases/ Warrant-cases and Summons/Warrant

There is the following difference between summons-cases/ warrant-cases and Summons/Warrant
-

Summons Cases/ Warrant cases Summons/Warrant

These are kinds of cases. These are processes to compel an appearance

(1.6.6.) Differences between Inquiry and Trial67

There are the following differences between ‘inquiry’ and ‘trial’ 68 -

Basis Inquiry Trial

Provision An inquiry has been defined under A trial has not been defined
Section 2(1)(k). under the Sanhita.
Definition According to section 2(1)(k), "Inquiry" A trial may be said to be a
means every inquiry, other than a trial,judicial proceeding which ends
conducted under this Sanhita by a either in conviction or acquittal
Magistrate or Court. of the accused.
Purpose Inquiry is conducted by Magistrate or A trial is conducted by
Court with a view to finding out a prima-
Magistrate or Court with a view
facie case. to finding out the merit of the
case.
Stage Inquiry is conducted before the framing A trial is conducted after the
of the charge. framing of the charge.
The trial includes all steps which
a criminal court adopts
subsequent to the framing of the
charge and until the
pronouncement of judgment.

(1.6.7.) Differences between Inquiry and Investigation

The following differences between inquiry and investigation are -

Basis Inquiry Investigation

Provision Section 2 (1)(k) deals with inquiry.
Section 2(1)(l) deals with investigation.
Definition According to section 2(1)(k),
According to section 2(1)(l),
“Inquiry” means every inquiry, other
“Investigation” includes all the
than a trial, conducted under this
proceedings under this Code for the
Code by a Magistrate or Court.
collection of evidence conducted by a
police officer or by any person (other than
a Magistrate) who is authorized by a
Magistrate in this behalf;
Conducted Magistrate or Court conducts an Investigation is conducted by police
by inquiry. officer or by any person (other than a

67 UP(J) Mains 1991 Q. 10. Distinguish between Inquiry and Investigation.

68 UP(J) Mains 1991 Q. 10. Distinguish between Inquiry and Investigation.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
 27

Magistrate) who is authorized by a

Magistrate in this behalf
Purpose Inquiry is conducted by Magistrate or The purpose of an investigation is the
Court with a view to find out a prima- collection of evidence.
facie case.
Nature of It is a judicial proceeding before It is a non-judicial proceeding. So, the
proceeding Court. So, the Indian Evidence Act is Indian Evidence Act is not applicable.
applicable.

(1.6.8.) Differences among complaint, inquiry and trial

Differences among complaint, inquiry and trial are the following -

Complaint Sec. 2(1)(h) Inquiry– Sec. 2(1)(k) Trial

Sec. 2(h) defines Sec. 2(1)(k) defines inquiry. Sanhita does not define trial.
complaint.
Complaint is made to a Magistrate or Court conducts Magistrate or Court
Magistrate. inquiry.69 conducts trial
Inquiry is conducted by Magistrate Trial is conducted to find
or Court with a view to find out a out truth for the purpose of
prima-facie case.70 acquittal or conviction.
Inquiry is conducted before the Trial is conducted after
framing of charge.71 framing of charge.

(1.6.9.) Differences between Complaint and FIR

There are the following differences among complaint and FIR –

S. No. Complaint FIR

1 Complaint is made to FIR is made to Officer in charge of the police Station

Court or Magistrate.

2 There is no kind of There are two types of FIR. These are – (1) FIR, and
complaint. (2) Zero FIR.

3 Complaint may be related FIR must be related to only cognizable offence.

to cognizable or non-
cognizable offence.

69 Chhattisgarh Civil Judge, 2002, MP APO 2009. Inquiry is conducted either by Magistrate or Court.
70 UP HJS (Pre) 2009.
71 UK (J) 2002.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
 28

Court has power to In few cases, inquiry is allowed. But here meaning of
scrutinize. inquiry is not as defined under the Sanhita.

(1.7.) Hierarchy, powers and duties of Criminal Courts

The BNSS brings uniformity in name of judges all over country. It deletes, Judicial Magistrate,
third class, Metropolitan Magistrate and Assistant Session Judge. For example earlier, recording
of confession or statement before Metropolitan Magistrate was possible in Metropolitan area, and
confession before Magistrate was possible only area other than Metropolitan area.
The following SmartArt shows hierarchy of the criminal courts under the BNSS -

Supreme Court
[ Art 124]

High Courts
[ Art. 214]

Session Court (Session

Judge, Add. Session Judge)
Section 8

Chief Judicial Magistrate &

ACJM [ Section 9

Sub-Divisional
Judicial
Magistrate

Judicial Special Judicial Judicial Special Judicial

Magistrate [First Magistrate [First Magistrate Magistrate
Class] Claass] [Second Class] [Second Class]

Section 11 Section 9 Section 11

Section 9

Sentence Passed by Criminal Courts

The following table shows courts, provisions and power of courts to punish -

Courts Provisions Any sentence authorized by law

Supreme Court Any sentence authorized by law
High Courts Sec. 22(1) Any sentence authorized by law
Session Judge / Additional Sec. 22(2) Any sentence authorized by law (Sentence of
Session Judge death is subject to confirmation of High Court u/s
409)

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882
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Chief Judicial Sec. 23(1) Imprisonment up to seven years or/and fine

72
Magistrate
Judicial Magistrate of Sec. 23(2) Imprisonment up to three years or/and fine up to
First Class rs. 50,000 or community service
Judicial Magistrate of Sec. 23(3) Imprisonment up to one year or/and fine up to rs.
Second Class 10,000 or community service.

Powers of High Court – Under section 8, the BNSS, High Court has power to appoint Session
Judge & Additional Session Judge. According to section 22(1) High Court may pass any sentence
authorized by law. Punishment of death sentence passed by Session Judge / Additional Session
Judge cannot be executed unless High Court confirms it under section 409, the BNSS. High Court
may authorize Judicial Magistrate Second Class for summary trial. Under section 482 High Court
and Court of Session have concurrence power to grant anticipatory bail. Only High Court has
inherent power under section 528 of the BNSS.
Duties – According to section 529, it is the duty of the High Court to exercise continuous
superintendence over Courts of Judicial Magistrates subordinate to it to ensure that there is
expeditious and proper disposal of cases by such Magistrates.
Powers of Court of Session –All Chief Judicial Magistrate (Section 13, the BNSS) shall be
subordinate to the Sessions Judge. It may pass any sentence authorized by law subject to
confirmation of the sentence of death by the High Court [Section 22(2)]. A Sessions Judge may
withdraw any case or appeal from or recall any case or appeal he has made over to, any Chief
Judicial Magistrate subordinate to him . Session Judge also has the power to grant anticipatory bail
(section 482) and bail (section 483). It also has appellate power.
Duties -

72 UP (J) 2018.

Dr. Krishna Murari Yadav, Assistant Prof. LC- I, FOL, DU, 7985255882