MAGISTERIAL TRIAL: A

COMPARATIVE STUDY OF CRPC AND

BNSS
BY: ASHUTOSH KUMAR
ASSISTANT PROFESSOR AMITY LAW SCHOOL
AUP
 INTRODUCTION

Three new Criminal Laws laws

The Government of India on August 11, 2023 introduced:
Bharatiya Nyaya Sanhita, 2023 (New Penal Code)
Bharatiya Sakshya Bill, 2023 (New Evidence Act) and
Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (New Code of Criminal
Procedure)
in the Lok Sabha with the stated objective of repealing, 19th century colonial-era
criminal laws, and as a mark of 75 years of Independence
 TIMELINE TO IMPLEMENT

• The Lok Sabha passed the bill on December 20, 2023 and the Rajya Sabha passed
the bill on December 21, 2023.

• The Bharatiya Nyaya Sanhita (BNS), which replaces the Indian Penal Code, 1860;
• The Bharatiya Sakshya Adhiniya (BSA), which replaces the Indian Evidence Act, 1872;
and
• The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaces the Code of Criminal
Procedure, 1898
• were notified in the Gazette of India on December 25, 2023.

• The date to implement the three laws that were passed by the Parliament in
December 2023 yet to be Notified and will come into force in 1 July 2024
SUMMARY TRIAL

• Sec 283 to Sec 288 BNSS (EARLIER SEC 260- 265 CRPC)
• Pecuniary Jurisdiction enhanced from Rs. 2000 to Rs.
20000
• Offences of two years imprisonment extended to three
years punishment offences (JURISDICTION NATURE)
• Cases of Sec 303, Sec 305, Sec 306, Sec 317 stolen
property and Sec 331 BNS, CRIMINAL INTIMIDATION, SEC
20 CATTELE TRESSPASS ACT 1871 ETC.
• WORD “MAY” IS REPLACED WITH WORD “SHALL” U/S
283 BNSS
TRIAL IN WARRANT CASES SEC 261 TO
SEC 273 BNSS (SEC 238 TO SEC 243
CRPC)
• SEC 261- COMPLIANCE OF SEC 230- SUPPLY OF COPIES TO ACCUSED
• WARRANT CASES INSTITUTED ON POLICE REPORT ACCUSED APPEAR
BEFORE THE MAGISTRATE AND FORMALITIES OF SEC 230
COMPLETED
• SEC 262- ACCUSED MAY PREFER APPLICATION OF DISCHARGE
WITHIN 60 DAYS FROM THE DATE SUPPLY OF COPIES
• COMPLIANE OF SEC 193 AFTER GiVING OPPORTUNITY TO BOTH
SIDES IF MAGISTRATE FOUND CHARGE IS BASELESS DISCHARGE THE
ACCUSED BY RECORDINGTHE REASONS
• SEC 263 FRAMING OF CHARGE WITHIN 60 DAYS FROM THE DATE OF
FIRST HEARING
WARRANT CASES

• “warrant cases” by Magistrates and instituted

on a “Police Report”
• Proceedings under Sections 238 to 240 Cr.P.C.
are in the nature of pre-trial proceedings. An
order framing charge is a purely “interlocutory
order” and it does not terminate the
proceedings and the trial goes on until it
culminates in acquittal or conviction. (as
observed V. C. Shukla v. State through CBI AIR
1980
WARRANT CASES

• Unlike in the case of trial of a “warrant case”

instituted on a “complaint”, in the case of trial
of a warrant case instituted on a “Police
Report”, the prosecution gets opportunity to
lead evidence only after the charge is framed.
In a “complaint case” the complainant gets two
opportunities to lead evidence, first u/s 244/sec
267 BNSS before charge framed and second u/s
246 (6)/SEC 269 bnss after charge is framed -
Ajoy Kumar Ghose v. State of Jharkhand AIR
2009 SC 2282 (2009) 14 SCC 115
WARRANT CASES – PROBLEMS

• If two charges arise out of the same

transaction, one of a summons case and
another of a warrant case , warrant procedure
is to be followed
• If in the same transaction offence committed by
one of the accused is triable as a warrant case
and the offence committed by the others is
triable as a summons case, warrant procedure
is to be followed
WARRANT CASES – PROBLEMS

• Where after cognizance is taken on a

“complaint”, the police files a “police report”
for the same offence and against the same
accused and the Magistrate takes cognizance of
the offence, he shall try both the cases
together as if the cases were instituted on a
“police report” sec 210 CRPC/Sec 233 BNSS
 TRIAL IN WARRANT CASES SEC 261 TO SEC 273

• SEC 264 CONVICTION ON PLEA OF GUILTY

• SEC 265 EVIDENCE OF PROSECUTION – MAGISTRATE FIX DATE FOR
EXAMINATION OF WITNESES SUPPLY OF ALL DOCUMENTS
• SEC 266 EVIDENCE FOR DEFENCE AND WRITTEN STATEMENT CROSS
EXAMINATION ATTENDANCE OF WITNESSES
• EXAMINATION OF WITNESSES MAY BE DONE BY AUDIO-VIDEO ELECTRONIC
MEANS
• SEC 267 EVIDENCE OF PROSECUTION
• SC 268 WHEN ACCUSED SHALL BE DISCHARGED
• SEC 269 PROCEDURE WHERE ACCUSED IS NOT DISCHARGED
 TRIAL IN WARRANT CASES SEC 261 TO SEC 273

• SEC 270 EVIDENCE FOR DEFENCE

• SEC 271 – CONCLUSION OF TRIAL RESULTS INTO ACQUITTAL OR

CONVICTION READ WITH PROBATION SEC 401
• SEC 272 ABSENCE OF COMPLAINANT
• SEC 273 COMPENSATION FOR ACCUSATION WITHOU
REASONABLE CAUSE
.
FRAMING OF CHARGE

• At the stage of framing of charge the trial Court

is not to examine and evaluate in detail the
materials placed on record by the prosecution
nor is it open to the Court to consider the
sufficiency of the materials to establish the
offence alleged against the accused. At this
stage, the Court is to examine the materials
only with a view to be satisfied that a prima
facie case of commission of the offence alleged
has been made out against the accused. (Vide
para 7 of State of Delhi v. Gyan Devi AIR 2001
SC 40)
FRAMING OF CHARGE

• Once a charge is framed in a warrant case

instituted either on a complaint or on a police-
report, the Magistrate has no power under the
Code to go back to the precharge stage and
discharge the accused. Thereafter the
Magistrate can either acquit or convict the
accused unless he decides to proceed under
Section 325 or Section 360 Cr.P.C. (Vide Ratilal
Bhanji Mithani v. State of Maharashtra AIR 1979
SC 94
ERROR IN FRAMING CHARGE

• Application of sec 464/ sec 510 BNSS

• IF NOT AFFECTING FAIR JUSTICE
• IF AFFECTING FAIR JUSTICE
• RE-TRIAL-DARBARA SINGH vs. State of Punjab
• Baljinder vs. state of Punjab 2024 INSC 738
• GUIDELINES FOR FRAMING CHARGE – SAJJAN
KUMAR VS. CBI AIR 210
APPLICATION OF DISCHARGE
NOT MAINTAINABLE
• K.RAVI vs. STATE OF TAMIL NADU
• 2024 INSC 642
• FRAMING OF CHARGE IS DUTY OF COURT TRIAL
AND PROSECUTION DONE WITH CARE AND
CAUTION – SOUMDARJAN vs. IG 2024 SCC
ONLINE 424
PLEA BARGAINING SEC 289-SEC 300
BNSS/ SEC 265A- SEC 265L CRPC

• SEC 289 APPLICATION OF THIS PROVISION ON THE BASIS OF

REPORT FORWARDED UNDER SEC 193
• NOT APPLIED ON OFFENCES RELATED TO SOCIO-ECONOMIC
CONDITION OR OFFENCES COMMITTED AGAINST WOMEN AND
CHILD
• SEC 290 APPLICATION FOR PLEA BARGAINING
• 30 DAYS FROM THE FRAMING OF THE CHARGE
• SEC 291 GUIDELINES FOR MUTUALLY SATISFACTORY DISPOSITION
• NOTICE TO POLICE, PROSECUTOR, VICTIM, ACCUSED
• SEC 292 REPORT SUBMITTED BEFORE THE COURT
PLEA BARGAINING – INITIATIVE
FROM HON’BLE SUPREME
COURT
• The Supreme Court, in an order passed , issued the following guidelines
for disposal of criminal cases by resorting to the triple method of plea
bargaining, compounding of offences and under the Probation of
Offenders Act, 1958.

1. As a pilot case, one Court each of Ld. Judicial Magistrate 1st Class, Ld.
ACJM or CJM, and Court of Sessions in each district may be selected.

2. The said courts may identify cases pending at pre-trial stage, or

evidence stage and where the accused is charge sheeted / charged with
offence(s) with a maximum sentence of 7 years' imprisonment. The Ld.
Court would exclude cases mentioned in Section 265A Cr.P.C., namely
offences notified by the Central Government vide notification dated
11.07.2006 or offences committed against women or child/ children less
than 14 years.
PLEA BARGAINING

• Only sentence bargaining not offence

bargaining unlike in America
• IN RE: POLICY STRATEGY FOR GRANT OF BAIL
Criminal Cases - Disposal of criminal cases by
resorting to the triple method of plea
bargaining, compounding of offences and under
the Probation of Offenders Act, 1958 -
Guidelines issued.
PLEA BARGAINING EC 289-SEC
296
• SEC 293 DISPOSAL
• COURT AWARD COMENSATION
• RELEASING ACCUSED SEC 401 PROBATION
• MINIMUM PUNISHMENT FIRST TIME OFFENDER ONE
FOURTH OR ONE SIXTH OF THE PUNISHMENT
• SEC 294 JUDGMENT IN OPEN COURT
• NO APPEAL EXCEPT ART 226/227
• SEC 296 POWER OF COURT IN PLEA BARGAINING
 PRE-TRIAL PROCEDURE

• Section 209 & Section 232, BNSS: Commitment of case to Court of

Session when offence is triable exclusively by it:
• Section 209, the CrPC is similar to section 232, the BNSS. The BNSS, 2023
has brought in several time limits in cases for institution of speedy trials.
The “Provided that” portion of Section 232, the BNSS, 2023, provides for
an efficient timeline for transfer of cases exclusively triable by the Court of
Sessions. In cases where a case is instituted on a police report or otherwise
and the accused appears or is brought before the Magistrate, s/he is
mandated to complete the process of such transfer within a period of 90
days from the date of taking such cognizance, and such period may be
extended by the Magistrate for a period not exceeding 180 days. If this is
not complied with, the Magistrate must record such reasons in writing
COMPLAINT CASE SEC 223
BNSS/SEC 200
SUMMON TRIAL

• Summons trial or Trial of Summons cases, like Criminal Procedure Code,

1973 (CRPC) Sec 251 to section 259 CRPC) has a separate and
dedicated chapter under Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS SEC 274 TO SEC 282 )
I. Substance of Accusation and Plea Options (Sections 274-276)

• Section 274 BNSS emphasizes the importance of stating the particulars

of the offence when the accused appears before the Magistrate. Plea
options include pleading guilty or presenting a defense. It should be
remembered that, if the Magistrate deems the accusation groundless,
the accused may be released with a discharge effect.
 SUMMON TRIAL

• Conviction on Plea of Guilty (Section 275):

• Section 275 BNSS addresses situations where the accused pleads
guilty. The Magistrate, at their discretion, may record the plea and
convict the accused accordingly.
• Conviction in Absence of Accused in Petty Cases (Section 276):
• For cases where the accused desires to plead guilty without
appearing, Section 276 BNSS provides a mechanism. The accused can
transmit a plea and fine to the Magistrate. The Magistrate, exercising
discretion, may convict the accused in their absence, adjusting the
fine accordingly.
SUMMON TRIAL

• Procedure When Not Convicted (Section 277):

• Section 277 BNSS outlines the steps when the
Magistrate does not convict the accused. It involves
hearing both the prosecution and the accused,
summoning witnesses if necessary, and ensuring
reasonable expenses are deposited before witness
summoning.
 SUMMON TRIAL

• Acquittal or Conviction (Section 278 BNSS):

• Upon evaluating the evidence and hearing the accused, the

Magistrate must either record an order of acquittal or, if finding the
accused guilty, pass a sentence according to law.
• Non-Appearance or Death of Complainant (Section 279):
• Section 279 BNSS deals with scenarios where the complainant does
not appear on the appointed day. The Magistrate may acquit the
accused, but exceptions exist if the complainant is represented by a
pleader or if personal attendance is deemed unnecessary.

.
SUMMON TRIAL

• Withdrawal of Complaint (Section 280):

• Section 280 BNSS allows a complainant to withdraw their complaint before a
final order is passed, leading to the acquittal of the accused against whom
the complaint is withdrawn.
• Power to Stop Proceedings (Section 281):
• Section 281 BNSS grants the Magistrate the authority to stop proceedings at
any stage for recorded reasons, leading to either an acquittal judgment or
the release of the accused.
• Power of Court to Convert Summons-Cases into Warrant-Cases
(Section 282 BNSS):
• In certain circumstances during a summons-case trial, the Magistrate, if in
the interest of justice, may convert it into a warrant-case. This allows for a
re-hearing following the procedure outlined in BNSS for warrant-cases.
COMPLAINT CASES

• Sec 2(d) complaint in CRPC/ Sec 2(h) BNSS (not

include police report)
• There is no prescribed format to file complaint
cases.
• Filed before Chief Judicial Magistrate
• NO Change in procedure applicable to cognizable
and non cognizable cases and complaint can be file.
• Sec 223 Examination of complainant BNSS.
COMPLAINT CASES

• Section 223: Examination of Complainant

• Upon receiving a complaint, the magistrate must
examine the complainant and any witnesses present.
This examination is conducted under oath, and the
substance of the examination is documented and
signed by the complainant, witnesses, and the
magistrate. However, there are exceptions where the
magistrate need not examine the complainant, such
as when the complaint is made by a public servant or
a court.
COMPLAINT CASE

• Section 224: Procedure by Incompetent

Magistrates
• If a complaint is made to a magistrate who is
not competent to take cognizance of the
offense, the magistrate must either return the
complaint for presentation to the appropriate
court or direct the complainant to the proper
court. This ensures that the complaint is heard
by a magistrate with the necessary jurisdiction
ADDITIONS AND
RECOGNITIONS IN BNS
• Section 225: Postponement of Issue of Process
• The magistrate, upon receiving a complaint, may
postpone the issue of process against the accused.
The magistrate can either inquire into the case
themselves or direct an investigation by a police
officer or other authorized person to determine if
there are sufficient grounds for proceeding. This step
is crucial for filtering out frivolous or baseless
complaints and ensuring that only legitimate cases
proceed to trial
COMPLAINT CASE

• Section 226: Dismissal of Complaint

• After considering the statements of the complainant
and witnesses, and the results of any inquiry or
investigation, the magistrate may dismiss the
complaint if there are no sufficient grounds for
proceeding. The reasons for dismissal must be
briefly recorded. This provision safeguards against
the misuse of the legal system and ensures that the
accused are not unduly harassed by baseless
allegations.
COMPLAINT CASE

• Section 227: Issue of Process

• If the magistrate finds sufficient grounds for
proceeding with the case, they will issue a
summons or warrant to the accused. The decision to
issue a summons or warrant depends on whether
the case is a summons-case or a warrant-case. The
summons or warrant must be accompanied by a
copy of the complaint, ensuring that the accused is
fully informed of the charges against them.
COMPLAINT CASE

• section 228: Dispensation of Personal Attendance

• In cases where the magistrate issues a summons, they may dispense
with the personal attendance of the accused and permit them to appear
through a pleader. This provision is particularly beneficial in cases
involving minor offenses, allowing for more efficient management of
court resources and reducing the burden on the accused.

• Section 229: Special Summons for Petty Offenses

• For petty offenses, the magistrate may issue a special summons
requiring the accused to either appear in person or through a pleader or
to plead guilty without appearing before the magistrate. This provision
simplifies the process for minor cases, allowing for swift resolution and
reducing the court's workload.
CHANGE IN SEC 229

• pleader" is replaced by "advocate." The

threshold amount of fine for the purpose of the
definition of "petty offence" is increased by this
section from one thousand rupees to five
thousand rupees. The monetary limit of the fine
specified in summons is increased from one
thousand rupees to five thousand rupees
 COMPLAINT CASE

• In complaint case if summon case is made out than trial procedure of summon case shall
be adopted

• In complaint case if session case is made out than session trial

• Before charge prosecution evidence sec 267

• Sec 268 discharge of accused

• There is special provision for warrant case in complaint cases.

SPECIAL CASES UNDER SEC 364 AND SEC
365BNSS (SEC 325 AND SEC 326 CRPC )
COMPARISON
• Section 364 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 establishes a protocol for
Magistrates who deem that a harsher
punishment is required than they can legally
impose. It allows for the forwarding of cases to
the Chief Judicial Magistrate, who then has the
discretion to examine the evidence further and
issue a suitable judgment.
SPECIAL CASES UNDER SEC 364 AND SEC
365BNSS (SEC 325 AND SEC 326 CRPC )
COMPARISON
• Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023
outlines the procedure a Magistrate must follow when he
believes that a more severe punishment is warranted than
he is authorized to impose. Key points include:
• A Magistrate can submit his opinion and proceedings to the
Chief Judicial Magistrate.
• If multiple accused are tried together, all considered guilty
must be forwarded.
• The Chief Judicial Magistrate has the authority to examine
parties, recall witnesses, and deliver a judgment or order as
deemed appropriate.
SEC 365 BNSS/SEC 326 CRPC

• Section 365 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 provides guidelines for handling
cases where evidence is recorded by different
Judges or Magistrates. It allows the succeeding
authority to rely on prior recordings and to
summon witnesses again if further clarification
is needed, while excluding summary trials and
specific case provisions from its scope
 APPLICATION OF CERTAIN SECTION IN COMPARISON

• SEC 311 CRPC POWR TO SUMMON MATERIAL WITNESS OR EXAMINE PERSON PRESENT NOW
SECTION 348 BNSS

• Sec 313 CRPC POWER TO EXAMINE ACCUSED NOW SEC 351 BNSS

• SEC 315 CRPC ACCUSED PERSON TO BE COMPETENT WITNESS NOW SEC 353 BNSS

• SEC 319 POWER TO PROCEED AGAINST OTHER PERSONS TO BE GUILTY OF OFFENCE NOW
SEC 358 BNSS

• SEC 318 CRPC PROCEDURE WHERE ACCUSED DOEST NOT UNDERSTAND THE PROCEEDINGS
NOW SEC 357 BNSS

• SEC 356 TRIAL IN ABSENTIA NEW PROVISION ADDED

ISSUES AND CHALLENGES

• The introduction of three new criminal laws; the

Bharatiya Nyaya Sanhita (BNS for short),
Bharatiya Nagarik Suraksha Sanhita (BNSS for
short) and Bharatiya Sakshya Adhiniyam (BSA
for short), has given rise to many interesting
and intriguing legal issues. One such
conundrum, coming up for consideration in this
case, is whether Section 223(1) of the BNSS
envisages issuance of notice to the accused
named in the complaint before taking
cognisance of the offence.
ISSUES AND CHALLENGES

• In case of Suby Antony Vs. Susa & othrs CRL.MC NO.

508 Being guided by the precedents on Sections 200
and 202 of the Code and the plain language of the
proviso to Section 223(1) of the BNSS, this Court is
of the opinion that , after the complaint is filed, the
Magistrate should first examine the complainant and
witnesses on oath and thereafter, if the Magistrate
proceeds to take cognisance of the offence/s,
opportunity of hearing should be afforded to the
accused.” 2025 kerala High Court
• Court stated that hearing of accused is made
mandatory under Section 223 (1) of the BNSS
so that the Magistrate could decide whether or
not to take cognizance. It said, “Presumably,
the purpose behind the proviso is to provide an
opportunity to the Magistrate to assimilate the
correct facts, for deciding whether or not to
take cognizance of the offence.
SOLUTION TO PROBLEM

• Therefore, the procedural drill would be this way: A complaint is

presented before the Magistrate under Section 223 of the BNSS;
on presentation of the complaint, it would be the duty of the
Magistrate/concerned Court to examine the complainant on oath,
which would be his sworn statement and examine the witnesses
present if any, and the substance of such examination should be
reduced into writing. The question of taking of cognizance would
not arise at this juncture. The magistrate has to, in terms of the
proviso, issue a notice to the accused who is given an opportunity
of being heard. Therefore, notice shall be issued to the accused at
that stage and after hearing the accused, take cognizance and
regulate its procedure thereafter.” (Hon’ble Kerala High Court)
SATENDER KUMAR ANTIL PETITIONER(S)
VERSUS CENTRAL BUREAU OF
INVESTIGATION & ANR. RESPONDENT(S)
Hon’ble Court issued the following directions :

• a) All the States/UTs must issue a Standing Order to their

respective Police machinery to issue notices under Section
41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through
the mode of service as prescribed under the CrPC,
1973/BNSS, 2023. It is made amply clear that service of
notice through WhatsApp or other electronic modes
cannot be considered or recognised as an alternative or
substitute to the mode of service recognised and
prescribed under the CrPC, 1973/BNSS, 2023.
IMPORTANT JUDGMENT

• Prem Das vs. state of UP – Trial of warrant case as summon

case is only irregularity and is curable when no prejudice is
caused to accused.
• Asha Ranjan v. State of Bihar, 2016 SCC Online SC 988,
decided on 15.02.2017 has laid down the following principles
regarding right to fair trial
• In Natasha Singh vs. CBI, 2013 SC it was held that the object
of this Section 311CRPC now 346 BNSS is to do justice not
only from the point of view of the accused and the
prosecution but also from the point of view of an orderly
society