Q-1 What is Trial Before a Court of Session in BNSS,2023?

In the context of the THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023,

a “trial before a Court of Session” refers to a legal proceeding in which
serious criminal cases, such as murder or rape, are heard and adjudicated
by a specialised higher court known as the Court of Session.
This court conducts formal legal proceedings, involving the presentation of
evidence, witness examination and legal arguments, ultimately
culminating in a verdict of guilt or innocence. If the accused is found
guilty, the Court of Session has the authority to impose appropriate
sentences. The process ensures fair and thorough adjudication of major
criminal offences under the jurisdiction of this court.
Importance of Trial Before a Court of Session in CRPC
The trial before a Court of Session under the THE BHARATIYA NAGARIK
SURAKSHA SANHITA, 2023 is crucial for justice and law enforcement. It
deals with serious criminal cases, ensuring a comprehensive, fair and
lawful examination of evidence and witnesses. The Court of Session, as a
higher court, plays a pivotal role in delivering justice, imposing sentences
for grave offences and maintaining public trust in the legal system.
This process upholds the principle of due process, safeguards the rights of
the accused and provides a forum for impartial adjudication. Additionally,
it helps deter and address serious crimes, contributing to public safety
and the overall rule of law.
Provisions in BNSS,2023 Dealing with Trial Before a Court of
Session
Trial to be conducted by Public Prosecutor. (Section 248)
In a trial in a court of session, there are two main parties involved. The
prosecution is handled by a public prosecutor. The accused person has the
right to choose a defence lawyer. If the accused cannot afford a lawyer,
the court will provide one at the state’s expense. Before the trial begins,
the accused is given copies of important documents such as the police
report and FIR (First Information Report).
Opening the Case (Section 249)
The public prosecutor begins the case by explaining the accusations
against the accused. They briefly outline the evidence they plan to use to
prove the guilt. The prosecutor’s job is not to guarantee a conviction but
to present the case’s facts to the tribunal, which will make the judgment.
Discharge of the Accused in Trial Before a Court of Session
(Section 250)
After hearing from both sides, if the court believes there is insufficient
reason to proceed against the accused, they will release the accused and
provide the reasons for doing so. This stage does not involve witness
examination but allows both sides to present their arguments for either
filing charges or discharging the accused.
Framing of Charges for Trial Before a Court of Session (Section
251)
After listening to both parties in a trial before a Court of Session, if the
court believes the accused may have committed the offence:
If the offence can only be tried in the Court of Session, the court frames
the charges in writing.
If the offence is not exclusively for the session’s court, the court frames
charges and transfers the case to the Chief Judicial Magistrate. It’s
important to note that when framing charges under Section 251 of the
BNSS,2023 , the judge doesn’t need to provide detailed reasons. Only a
prima facie case is considered at this stage. This means that the judge
doesn’t have to determine if the case is beyond a reasonable doubt, as
clarified by the Supreme Court in the case of Bhawna Bai v.
Ghanshyam & Ors.
In the case of Rukmini Narvekar v. Vijaya Satardekar, the court ruled
that the accused could not present evidence at the charge framing stage.
Only materials specified in Section 227 at the time of framing the charges
are considered.
Explaining the Charge and Inquiry About Plea (Section 251(2))
The details of the charge must be explained to the accused, allowing them
to either admit guilt or request a trial. In the case of Banwari v. State of
UP, the court ruled that not reading or explaining the charge to the
accused doesn’t affect the trial unless it’s proven that not following
Section 251 has harmed the accused.
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. Section
252 specifies that if an accused pleads guilty, the judge can convict them
at their discretion and record it.
However, the court cannot convict the accused on a guilty plea when the
offence carries a penalty of death or life imprisonment. In Hasaruddin
Mohommad v. Emperor, the court emphasised that it’s hesitant to
convict someone accused of an offence with the death penalty or life
imprisonment based solely on a guilty plea. The accused’s right to appeal
is restricted by Section 416 if they are convicted based on a guilty plea.
Setting a Date for Prosecution Evidence (Section 253)
If the accused refuses to plead, doesn’t plead, claims to be tried or isn’t
convicted under Section 252, the judge schedules a date for the
examination of witnesses or may order the appearance of witnesses or the
production of documents or things.
Evidence for Prosecution (Section 254)
On the scheduled date, the judge gathers all the evidence to support the
prosecution’s case.
The judge may, at their discretion, allow the cross-examination of a
witness to be postponed until after other witnesses have been examined
or recall a witness for further cross-examination.
In the case of Ram Prasad v. State of U.P, the Supreme Court ruled that
if the court finds the prosecution failed to present witnesses for
unreasonable or improper reasons, it can draw a negative conclusion
against the prosecution.
The court noted in State of Kerala v. Rasheed that when deciding an
application under Section 231(2), a balance should be maintained
between the rights of the accused and the prosecution’s obligation to
present evidence. Several factors should be considered, including the risk
of undue influence, threats, the potential for later witnesses to adjust their
testimony to undermine the defence and the memory of witnesses whose
direct examination is complete.
Prosecution’s Arguments in Trial Before a Court of Session
(Section 352(2))
After all witnesses have been heard, the prosecution presents a summary
of their oral arguments. A copy of these arguments is provided to the
opposing party.
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.
Acquittal in Trial Before a Court of Session (Section 255)
If, after hearing from both sides, the judge concludes that the accused did
not commit the offence, an order of acquittal is recorded.
Entering upon defence (Section 256)
If the accused is not acquitted, they are asked to present their defence.
The court has the authority to summon or question any person as a court
witness at any stage.
Arguments (Section 257)
After recording the defence, the prosecutor summarises their case and the
accused or their representative is given the opportunity to respond. If the
defence raises any legal points, the prosecutor may be allowed to make
additional submissions.
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.
In Bacchan Singh v. State of Punjab, the court ruled that this section
allows for a two-step trial process. It grants the accused the right to a pre-
sentence hearing, which might not be directly related to the specific crime
being investigated but can impact the choice of punishment.
Previous Conviction (Section 259)
When a prior conviction is alleged, as specified in subsection (7) of Section
211 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.
It’s important to note that the judge should not read the charge or ask the
accused to plead to it and the prosecution should not mention the
previous conviction in any evidence until the accused has been convicted
under Section 235 or Section 239.
Procedure in Cases Instituted Under Section 223(2) (Section 260)
Trial Procedure: When a Court of Session takes up a case under Section
199(2), it follows the same trial procedure used for warrant cases initiated
by means other than a police report before a magistrate.
In-Camera Trial: All trials under this section can be held in a private
session if either party requests it or if the court deems it appropriate.
Compensation for Unfounded Accusations: If the court discharges or
acquits all or some of the accused in such a case and believes that there
was no valid reason for making the accusations, it can issue an order. This
order directs the person against whom the offence was alleged to show
why they should not compensate the accused. This applies to each or any
of the accused if there are multiple.
Determining Compensation: The court examines the reasons
presented by the person directed to pay compensation. If it concludes that
there was no reasonable cause for the accusation, it can order
compensation, not exceeding Rs. 1000, to be paid by that person to the
accused or each of them.
Recovery of Compensation: Compensation awarded under subsection
(4) is collected as if it were a fine imposed by a magistrate.
No Exemption from Liability: The person ordered to pay compensation
under subsection (4) is not exempted from any civil or criminal liability
regarding the complaint made under this section.
Right to Appeal: The person instructed to pay compensation can appeal
to the High Court.
Payment Timing: When an order for compensation is made in favour of
an accused person, the compensation is not paid to them until the period
allowed for filing an appeal has passed or, if an appeal is submitted until
the appeal is decided.
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.
Moreover, the Court of Session helps keep our communities safe by
addressing and deterring major crimes. It upholds the principle of due
process, making sure everyone is treated fairly under the law. In essence,
it is a cornerstone of a just and orderly society, providing a platform for
justice and ensuring the rule of law prevails.
Q-2 Explain the Provision relating to maintenance.
Ans: Introduction:-
Section 144 of BNSS,2023 deals with “Order of maintenance of wives,
children and parents”. In this Section, it is given the name of parties who
are entitled to get maintenance, essential ingredients to claim and get
maintenance and order of the first-class magistrate.
Section 144 of the Sanhita of criminal procedure provides that any person
having sufficient means to maintain himself cannot refuse the
maintenance to the wife, children, and parents if they are unable to
maintain themselves.
Who can claim and get maintenance?
Section 144 of BNSS,2023 deals with “Order for maintenance of wives,
children and parents”.
According to Section144(1), the following persons can claim and get
maintenance:
 Wife from his husband,
 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental
abnormality) from his father, and
 Father or mother from his son or daughter.
Maintenance to Wife
According to Section 144 (1) (a) of the Sanhita, if a person with sufficient
means neglects or refuses to support his wife, who is unable to support
herself, a first-class Magistrate can order that person to provide a monthly
allowance for the maintenance of his wife. The amount will be determined
by the Magistrate, and the person must pay it as directed by the
Magistrate. In this context, "wife" includes a woman who has been
divorced by her husband or has obtained a divorce and has not remarried.
The term "wife" applies regardless of the woman's age, whether she is a
minor or an adult. The legality of the marriage will be determined by the
personal laws applicable to the parties, and if there is a dispute regarding
the validity of the marriage, the applicant will need to provide proof of
marriage.
The second wife or a woman living as 'wife' is not entitled to get
maintenance. If the marriage is void or annulled under Section 12
of the Hindu Marriage Act, a wife is not entitled to maintenance. (Krishan
Copal Vs Usha Rani, 1982 Cr.L.J. 901 Del.)
Right Of Muslim Woman to Claim Maintenance U / S 144 BNSS
after Iddat Period.
Before the Mohammad Ahmed Khan v. Shah Bano Begum case, Muslim
wives were not entitled to claim maintenance after completing their Iddat
period. However, this changed with the Supreme Court's ruling in the
case.
Case: Mohammad Ahmed Khan V. Shah Bano Begum
After her husband filed for divorce, 62-year-old Muslim Shah Bano Begum
filed a criminal complaint with the Supreme Court of India. She requested
maintenance, and the judge granted her request. The court ruled that as
long as a Muslim woman stays single and is unable to support herself
using the dower she received at the time of divorce, she has the right to
request maintenance under Section 125 of the Criminal Procedure Code
(now, Section 144 of BNSS) even beyond the Iddat period. Muslims were
outraged by this decision since it was against Islamic Law. The Muslim
Women (Protection of Rights on Divorce) Act, 1986 was subsequently
passed, which nullified the Supreme Court's ruling and prevented Muslim
women from suing their ex-husbands for maintenance.
Maintenance to Child
Son
‘Minor’ means a person who, under the provisions of Section 3 of the
Indian Majority Act, 1875 is deemed not to have attained his majority i.e.,
above the age of 18 years. Minor Son (Legitimate or Illegitimate) is
entitled to get maintenance under Section 144 of BNSS,2023
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.
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.
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.
Father or mother
 Natural father and mother can claim maintenance.
 Mother includes adoptive mother, she can claim maintenance from
adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim
cannot be defeated by pleading that the father failed to fulfil his
parental obligation.
 A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade,
Bombay High Court has held that the father or mother can claim
maintenance under Section 125(1)(d) of CrPC (Now, Section 144(1)(d) of
BNSS,2023) 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.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming
and granting maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain
himself/herself.
4. Quantum of maintenance depends on the standard of living.
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to
maintain his wives, children and parents. If sufficient means are not
available, then it will be a perfect and valid defence for people who are
legally bound for maintenance of wife, children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents
in malafide intention or in any type of egoistic behaviour on the demand
for maintenance by them.
The person who claims maintenance must be unable to maintain
himself/herself
It is a very important condition for granting maintenance that a person
who is claiming maintenance must be unable to maintain himself/herself.
For example- If a wife is earning well, then she cannot claim maintenance
under this Section. In the case of Abdulmunaf v Salima, it was held that
the wife who is hale and healthy and is sufficiently educated to earn for
herself but refuses to earn from own and claim maintenance from her
husband will be entitled to claim maintenance but that her refusal to earn
under the circumstances would disentitle her to get complete amount of
maintenance.
Special provision for maintenance of minor married girl
If the husband of a minor daughter does not have sufficient means to
maintain her, then it is the duty of her father to give maintenance. In
these circumstances, married minor daughter is entitled to get
maintenance from the father.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of
maintenance depends on the standard of living. For example- If any issues
raised in a rich family, then demand for maintenance will be more as
compared to poor family according to their standard of living in a prior life.
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 144(1)(d), If any person neglects or refuses to
maintain his wife, children or parents, then a Magistrate of the First Class
can order such person to make a monthly allowance for the maintenance
of his wife, children or parents, at such monthly rate as such Magistrate
thinks fit, and to pay the same to such person as the direction of
magistrate.
Procedure for maintenance
Section 145 of BNSS deals with “Procedure for maintenance”. This Section
says the following:
 Proceeding under Section 144 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
Evidence to be taken in the presence of a person against whom
maintenance is to be ordered. If a person is wilfully avoiding summons,
then ex-parte evidence is taken in that case.
Enforcement of order of maintenance
Section 147 deals with “Enforcement of order of maintenance”. According
to this Section, the following are the conditions for enforcement of the
order of maintenance:
 Copy of order under Section 144 is given to that person free of cost in
whose favour it is made. In case the order is in favour of children, then the
copy of the order will be given to the guardian of children.
 If any Magistrate has made an order under Section 144, then any
Magistrate of India can enforce this order where that person lives who
have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of
order:
1. Identity of parties, and
2. Proof of non-payment of allowances.

Q-3 Discuss the Power of Police to arrest without warrant.

Answer: Introduction
Chapter V of THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
(in Short, the Act) Deals with Arrest of Persons. Arrest brings
humiliation, curtails freedom, and casts scars forever.
➢ Arrest shouldn’t be done as a routine: the Supreme Court perspective.
➢ The Right to Life and Personal Liberty is the most cherished and sacred
right of a human being. The Supreme Court of India through its various
judgments has widened the scope of this right so as to bring a plethora of
rights under the shed of Article 21. Right to Life includes the right to live
a life of dignity and not a mere animal existence.
➢ However, it is often seen that unjustified arrests are made by the police
and innocent people are maliciously prosecuted. Such abuse of power by
the police causes irreparable damage to the life, liberty, reputation, and
self-esteem of a person.
➢ It is trite (used or heard so often as to be dull) that just because the
police can arrest doesn’t mean that it must arrest.
Meaning of Arrest
In simple terms, arrest means depriving a person of his freedom of
movement by use of legal authority.
According to Black’s law dictionary, ‘Arrest’ means ‘To deprive a
person of his liberty by a legal authority or taking, under real or assumed
authority, custody of another for the purpose of holding or detaining him
to answer a criminal charge or civil demand’.
‘Arrest’ is the act of apprehending a person and taking him into custody. It
is usually done by police in India. Bhartiya Nagarik Suraksha Sanhita,2023
governs the arrest of persons by the police, private persons, and
magistrates.
Arrest without a Warrant
A person can be arrested by police officers or any private person without
warrant ordered by the court. Particularly the police officers may arrest a
person without a warrant under certain conditions. The conditions to
arrest a person without warrant mentioned under Section 35 of the
Bharatiya Nagarik Suraksha Sanhita, 2023.
1. When a person commits a cognizable offense in the presence of a
police officer
The cognizable offense is defined in section 2(c) of the Code. When a
particular offense is designated as such in Schedule I of the Sanhita as a
cognizable offense, it is called a cognizable offense. Cognizable offenses
are usually offenses that are serious in nature.
2. When a reasonable complaint is made against a person or credible
information has been received, or a reasonable suspicion exists that such
person has committed a cognizable offense punishable with imprisonment
for a term which may be less than seven years or which may extend to
seven years whether with or without fine if the following conditions are
satisfied:
 the police officer has reason to believe based on such complaint,
information, or suspicion that such person has committed the said
offense;
 the police officer who is arresting is satisfied that the following
conditions have been fulfilled-
a. To prevent such person from committing any additional crime; or
b. For proper facilitation of the investigation of the crime; or
c. To stop such person from causing the proof of the crime to
disappear or tampering with such evidence in any manner; or
d. To restrain such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so as to
stop him from disclosing such facts to the Court or to the police
officer; or as unless such person is arrested, his presence in the
Court whenever required cannot be ensured;
And the police officer shall record while making such arrest, his reasons in
writing, and when the police officer does not make an arrest, he shall also
write the reasons for not making the arrest.
3. Against whom credible information has been received that he has
committed a cognizable offense punishable with imprisonment for a term
which may extend to more than seven years whether with or without fine
or with a death sentence, and the police officer has reason to believe
based on that information that such person has committed the said
offense.
4. The person so being arrested is a proclaimed offender by the Central or
the State Government.
5. When the person being so arrested is in possession of the stolen
property and who may reasonably be suspected of having committed an
offense with reference to such thing.
6. When the person being so arrested obstructs a police officer while in
the execution of his duty.
7. When the person being so arrested has escaped or attempted to escape
from lawful custody.
8. When the person being arrested is reasonably suspected of being a
deserter from any of the Armed Forces of the Union.
9. Who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would
have been punishable as an offense, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained
in custody in India.
10. When the person being arrested is a released convict, commits a
breach of any rule under subsection (5) of section 356.
11. A requisition is made or received from any other police officer. The
requisition must specify the person to be arrested with the crime that was
committeed by him. The requisition may be in writing or be oral.
For all the above situations, the police have the
power to make arrests. In all the other cases, a warrant is required from
the magistrate before making an arrest. The section is not exhaustive.
There are various other Acts like Arms Act, Explosives Act, etc, which
confer such powers on police officers.
As it can be observed from the above provision, the words, ‘reasonable
suspicion’ and ‘credible information’ have been used several times. These
words have been inserted to keep a check on the powers of the police.
The police cannot arrest on a whim or to exact revenge against the
arrestee. The information so received must be solid. The suspicion on
which the arrest is made must also be based upon solid grounds and not
mere fiction.
 Guidelines for the arrest of female persons.
Case: State of Maharashtra v. Christian Community Welfare
Council of India [AIR 2004 SC 7]
Section 41 is subject to other provisions as well. In the State of
Maharashtra v. Christian Community Welfare Council of India [AIR 2004 SC
7], guidelines were laid down for the arrest of female persons. It was said
that the arresting authority should make all possible efforts to assure the
presence of a woman constable. But if such presence cannot be assured
and delay to the investigation cannot be afforded, the arresting officer can
himself affect the arrest for lawful reasons at any time of the day or night,
even in the absence of a woman constable. Reasons for doing so must be
recorded.
The police officers have to follow certain procedures whilst arresting a
person. Following procedures need to be followed:
1. Every police officer, who is making an arrest, shall mandatorily have
a precise, perceptible, and unambiguous recognition of his name,
which will assist in easy identification of the police officer. The
reason for the same is that there must be a clear identification of
the arresting police officer and to curb personation of police officers.
2. A memorandum of arrest shall be prepared by every police officer
making an arrest. The memorandum shall be signed by at least one
member of the family of the person who has been arrested. If no
family member is available, then it must be signed by at least one
respectable member fo the locality where the arrest has been made.
3. The memorandum so prepared must be signed by the person so
arrested.
4. It the duty of the police officer making the arrest to inform the
person so arrested that he has the right to inform of the arrest to his
family members or family. But if the memorandum above mentioned
is signed by a member of the family, then the police officer is not
obligated to inform the person so arrested of the said right.
5. The police officer making the arrest needs only to actually physically
touch or confine the body of the person so arrested, unless there is
voluntary submission to custody by the person being arrested by
word or action. In simple words, if the person being arrested
voluntarily submits to custody, then there is no need to physically
touch or confine the person.
6. A male officer is not to touch a female arrestee.
7. If the person forcibly resists the endeavour to arrest him, or
attempts to evade the arrest, then then arresting police officer or
any other person may use all means necessary to make the arrest.
Arnesh Kumar v. State of Bihar (2014) : In this case, the Supreme
Court of India imposed certain checks and balances on the power of police
to arrest an accused under Section 80 of the Act (Sec. 498A of the Indian
Penal Code, 1860). The Court held that:
• All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 35 of the Act (Sec
41, Cr.PC);
• While interpreting Section 41 of Cr.P.C., the Court held that before
an arrest is done by a police officer, he should have reason to believe
based on information and material that the accused has committed the
offence and the police officer has to be satisfied that the arrest is
necessary for one or the more purposes as provided under sub-clauses (a)
to (e) of clause (1) of Section 41 of Cr. PC.
• The Court also held that before authorizing detention under the said
Section, a Magistrate has to be satisfied that the arrest made is legal and
is in accordance with the law, and all the constitutional rights of the
person. If such arrest does not satisfy the requirements of Section 41 of
Cr. P.C, the Magistrate cannot order further detention and must release
the accused.
1. A checklist containing specified sub-clauses under Section 41(1)(b)
(ii) is to be provided to all the police officers. The police officer has to
forward the checklist duly filed and furnish the reasons and materials
which necessitated the arrest while producing the accused before the
Magistrate for further detention.
2. The notice of appearance under Section 41A of Cr.PC has to be
served on the accused within two weeks from the date of institution of the
case, subject to extension of such a time period by the Superintendent of
Police of the District for the reasons to be recorded in writing.
3. If the concerned police officers fail to comply with the directions as
laid down, they shall be liable for departmental action and for contempt of
court.
4. The Court added that the aforesaid directions shall also apply to all
such cases where the offence is punishable with imprisonment which may
be less than 7 years or which may extend to 7 years.
Conclusion
The Supreme Court has laid down, in unequivocal terms, that no
arrest can be made in a routine manner. An arrest made in a routine
manner violates the fundamental rights of citizens and consequently is
against the very fabric of our constitution.
It is essential that the police be made aware of the confines within
which they can exercise their power to arrest and arbitrary exercise of
such power should be met with severe consequences.
 Q- 4 Explain Charge, Charge Sheet, Joiner of charge.
Answer: Introduction
The framing of charges under BNSS is a pivotal stage in criminal
proceedings where a court formally accuses an individual (the accused) of
committing a specific offence based on evidence and allegations
presented by the prosecution.

This process plays a crucial role in the criminal justice system by

informing the accused of the charges against them, establishing the legal
foundation for a trial and promoting transparency and fairness in legal
proceedings.

It is a fundamental aspect of due process, ensuring that the

accused’s rights are protected and setting the stage for the trial, where
guilt or innocence is ultimately determined. The framing of charges marks
a significant milestone in the journey toward justice in criminal cases.

The concept of joinder of charges under BNSS stands as a critical, yet

often perplexing, legal procedure. It’s a process that can significantly
impact the course of a trial, the rights of the accused and the overall
efficiency of the judicial system. Understanding the nuances of the joinder
of charges is not only essential for legal professionals but also for anyone
seeking a deeper insight into the intricacies of criminal law.

Imagine a scenario where multiple criminal offences are committed in a

single sequence of events or by the same individual.

Should each offence warrant a separate trial, or can they be consolidated

into one? How does this consolidation affect the accused, the prosecution
and the outcome of the case? These questions lie at the heart of the
joinder of charges, a legal procedure designed to address these complex
issues.

Any criminal case goes through three stages which are investigation,
inquiry and trial, after which a judgement is passed based on the
evidence, statements of witnesses and other relevant and admissible
information. The first phase of the investigation is conducted by police
officials and based on that investigation, a final report under Section
193 of the Bharatiya Nagrik Suraksha Sanhita,2023 (hereinafter referred
to as “BNSS”) is submitted.

1. Charge:
 Definition under Section 2 (C): According to which, “charges
means the head of the charge when there are more than one
charges”.
 Charge Simply means ‘Accusation’.
 A charge is a formal recognition of concrete accusations by a
magistrate or a court based upon a complaint or information against
the accused.
 A charge is drawn up by a court only when the court is satisfied by the
prima facie evidence against the accused.
 The basic idea behind a charge is to make the accused understand
what exactly he is accused of so that he can defend himself.
 Charges are framed by the Court itself. But before framing these
charges, the Court carries out proceedings against the accused which
is called Trial. In fact, a charge itself separates the process of inquiry
from trial.
 The case of V.C Shukla v. State (1980) explains the purpose of framing
charge is to give intimation to the accused, which is drawn up
according to the specific language of the law, and giving clear and
unambiguous or precise notice of the nature of the accusation that the
accused is called upon to meet in the course of a trial.

 Section 234 to Section 237 of the BNSS explains that “charge”

is a written allegation made by a court.
Section 234: Contents of charge
1. The charge form shall state the offence for which the accused is
charged.
2. The charge form shall specify the exact offence name for which the
accused is charged.
3. In case there is no specific name given under any law for the
offence which the accused is charged with, then the definition of the
offence must be clearly stated in the charged form and informed to
the accused.
4. The law and provisions of the law to be mentioned in the charge
form.
5. The charge shall be written in the language of the court.
 6. The accused shall be informed about his previous allegations which
would expose him to enhanced punishments if found guilty for the
offence charged.
Section 235: Particulars as to time, place and person
1. The offence for which the accused is charged and the particulars like
the time, place and the person against whom the offence is
committed and giving to the accused the precise and clear notice of
matter for which he is charged.
2. The exact time need not be mentioned in the charge form when the
accused is charged with criminal breach of trust or dishonest
misappropriation of money or any other movable property, it is
sufficient if the gross sum is specified and the dates on which such
alleged offence have been committed.
Section 236: When manner of committing offence must be stated
Section 236 of BNSS asserts When the nature of the
case is such that the particulars mentioned in Section 234 and 235 do not
give the accused sufficient notice of the matter with which he is charged,
the charge shall contain such particulars of how the alleged offence is
committed as will be sufficient for that purpose.
Alteration of charge and the procedure to follow such alteration
Section 239 of BNSS explains that courts shall have the power to alter or
add to charge at any time before the judgment is pronounced.
The trial court or the appellate court may either alter or add to the charge
provided the only condition is:
 Accused has not faced charges for a new offence.
 Accused must have been given the opportunity of meeting and
defending the charge against him.
After such alteration or any addition made to the charge, the charge shall
be explained to the accused as to enable him to prepare to meet the fresh
challenges.
If the court concludes that the alteration or addition of the charge is likely
to be prejudiced to the accused or the prosecutor then the court may
proceed with the original trial or adjourn it. The case shall not move
forward unless the sanction is obtained in respect of the facts constituting
the offence.
2. Joinder of charges
This topic comes under Part B of Chapter XVIII of the BNSS. Section 241 to
Section 247 deals with “Joinder of Charges”. This part is inserted in this
Sanhita to prevent any kind of prejudice that might develop in the
Magistrate’s mind regarding the character of the accused person due to
his offences.
Section 241 explains that every distinct offence shall be a separate charge
and every charge shall be tried separately.
In Kamalanantha v. State of Tamil Nadu [(2005)5 SCC 194: AIR 2005 SC
2132], it was upheld that if a trial is proceeded without framing separate
charges for each distinct offence then it is an irregularity and this can be
cured under Section 510 and 511 of BNSS provided that there was no
failure of justice.
This section also highlights a proviso for the accused that he can submit a
writing to the Magistrate to try together all or any number of charges
framed against him if it would cause no prejudice as such. Application can
be given under this provision only when the all the distinct offences of
that person is tried under the same Magistrate.
• EXCEPTIONS OF SECTION 241
Exception 1
Section 242 of BNSS,2023 asserts when a person is accused of an offence
of more than one, but not exceeding three of the same kind, and the
offence is committed within twelve months then the accused may be
charged and tried at one trial for all the offences committed. Offences are
said to be of the same kind when they are punishable with the same
amount of punishment under the same Section of Bharatiya Nyaya
Sanhita, 2023 or any special law or local laws.

The proviso to Section 242 of BNSS states when the accused is punishable
under Section 301 of Bharatiya Nyaya Sanhita, 2023, and it is said to be
the offence of the same kind as an offence punishable under Section
303 of Sanhita.

Exception 2 Section 243(1) of BNSS When the accused commits several

offences in the same transactions, then he may be tried jointly and it is
immaterial whether the offence is of the same kind or not, or whether the
number exceeds three or not, and whether the offence is committed
within one year or not.

Exception 3 Section 243(2) of BNSS When the accused is charged with one
or more offences of criminal breach of trust or dishonest misappropriation
of property the accused may be charged with and tried at one trial for
every such offence.

Exception 4 Section 243(3) of BNSS When the accused is charged with an

offence which is falling under two or more separate definitions of law, then
the accused may be charged with and tried at one trial for each of such
offences.

Exception 5 Section 243(4) of BNSS When the accused commits several

acts and one of which constitutes an offence and when it is combined
constitutes a different offence, the accused person may be tried at one
trial for the offence constituted by such acts when combined and for any
offence constituted by any one or more of such acts.

Example: A commits robbery on B, and in doing so voluntarily causes hurt

to him. A may be separately charged with and convicted of an offence
under Section 323, 392 and 394 of the Bharatiya Nyaya Sanhita, 2023.

Exception 6 Section 244 of BNSS lays down a few conditions:

1. When a single act or series of acts is of such a nature that it is

doubtful what offence the accused has committed then the accused
may be charged with having committed all or any of such offences
and the charges against may be tried at once or the accused may
be charged in the alternative with having committed someone of
said offences.
2. When the accused is charged with one offence but it appears that in
the evidence there is altogether a different offence for which he was
charged then the accused is convicted for the offence only which he
committed although he has not charged with it.

This section is applicable only in cognate offences such as theft and

criminal breach of trust and it does not include offences such as murder
and theft.

Exception 7 Section 246 of BNSS provides certain persons can be tried

jointly:

 Accused who committed the same offence in the same course of the
transaction.
 Accused of an offence and person accused of abetment of or
attempt to commit such offence.
 Accused of more than one offence of the same kind and committed
by them jointly within twelve months.
 Accused of different offences committed in the course of the same
transaction
 Accused of an offence which includes theft, extortion, cheating,
criminal misappropriation, concealment of property.
 Accused of offences under section 315 of the Bharatiya Nyaya
 Sanhita, 2023 or either of those sections in respect of stolen
property the possession
 of which has been transferred by one offence;
 Accused of offences under Chapter XII of Bharatiya Nyaya Sanhita,
2023
The proviso to Section 246 of BNSS provides that the magistrate on an
application of the accused person may direct their joint trial even if they
do not fall under the categories specified if the magistrate believes that
trial of such persons would not be prejudicially affected.

3. Chargesheet. (Section193)

 A chargesheet, as defined under Section 193 of Bharatiya Nagarik

Suraksha Sanhita 2023, (BNSS).
 It is the final report prepared by a police officer or investigative
agency after completing their investigation of a case.
 The evidentiary value of chargesheet is not substantive as it is
made by the Police officer and charges framed are based on his
opinion which are yet to be proved.

What is a Chargesheet?

 It is a document prepared by the investigating officer which contains

the events which otherwise would not be available in the court.
 Chargesheet contains the charges framed against the accused
based on the investigation and collection of evidence by the Police
officer.
 A chargesheet must be filed against the accused within a
prescribed period of 60-90 days, otherwise, the arrest is illegal,
and the accused is entitled to bail.
 After preparing the chargesheet, the officer-in-charge of the police
station forwards it to a Magistrate, who is empowered to take notice
of the offences mentioned in it so that the charges can be framed.

Section 173- Report of police officer on completion of

investigation

Every investigation under Chapter XII shall be completed without any

unnecessary delay.

Sub-section 1 states that for the offences under sections 64, 66, 67, 68,
70, 71 of the Bharatiya Nyaya Sanhita, 2023 or under sections 4, 6, 8 or
section 10 of the Protection of Children from Sexual Offences Act, 2012,
the investigation has to be completed within two months from the date on
which information was recorded by the officer in charge in the police
station.

Sub-section 2, clause (i), states that as soon as it is completed, the officer

in charge of the police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating-
a. The names of the parties;

b. The nature of the information;

c. The names of the persons who appear to be acquainted with the

circumstances of the case;

d. Whether any offence appears to have been committed and, if so, by

whom;

e. Whether the accused has been arrested;

f. Whether he has been released on his bond and, if so, weather with or
without sureties;

g. Whether he has been forwarded in custody under Section 190;

h. Whether the report of medical examination of the woman has been

attached where investigation relates to an offence under the offences
mentioned in sub-section 1.

(ii) The officer shall also communicate, in such manner as may be

prescribed by the State Government, the action taken by him, to the
person, if any, to whom the information relating to the commission of the
offence was first given.

(iii) the officer shall also communicate, in such manner as the State
Government may, by rules, provide, the action taken by him, to the
person, if any, by whom the information relating to the commission of the
offence was first given.

As per Sub-section (4), where a superior officer of police has been

appointed under section 177, the report shall, in any case in which the
State Government by general or special order so directs, be submitted
through that officer, and he may, pending the orders of the Magistrate,
direct the officer in charge of the police station to make further
investigation.

(5) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond or bail bond, the Magistrate
shall make such order for the discharge of such bond or bail bond or
otherwise as he thinks fit.

(6) When such report is in respect of a case to which section 190 applies,
the police officer shall forward to the Magistrate along with the report—
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation;

(b) the statements recorded under section 180 of all the persons whom
the prosecution proposes to examine as its witnesses.

(7) If the police officer is of opinion that any part of any such statement is
not relevant to the subject matter of the proceedings or that its disclosure
to the accused is not essential in the interests of justice and is inexpedient
in the public interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part from the
copies to be granted to the accused and stating his reasons for making
such request.

(8) Subject to the provisions contained in sub-section (7), the police officer
investigating the case shall also submit such number of copies of the
police report along with other documents duly indexed to the Magistrate
for supply to the accused as required under section 230:

Provided that supply of report and other documents by electronic

communication shall be considered as duly served.

CONCLUSION

BNSS is a very elaborate Act which specifies the manner in which the
criminals must be prosecuted. The topic of “charge” has been flawlessly
narrated. It has given equal powers and rights to the Court and the
accused person. Hence, if this document is efficiently utilised by our
learned Magistrates then the judiciary will run very smoothly ensuring
speedy and fair delivery of justice.