BNSS NOTES

LAQ’S

Q1) Brief note on appeals in BNSS. Can an appeal be made in petty cases to
the H.C?

A)a Introduction
Appeals provide individuals a mechanism to challenge judgments or orders they find
unsatisfactory. In this article, we will be studying about the key sections governing
the concept of appeals under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Introduction
Appeal is a complaint to a superior court of an injustice done or error committed
by an inferior court, whose judgement or decision the Court calls upon to correct or
reverse.
 Appeal is statutory right, and no one has an inherent right to appeal.
 Appeals under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is placed
under Chapter XXX from Section 413 to 435.

Objectives of Appeal
 The objectives of appeal under CrPC can be summarized as follows:
o Ensuring Justice: To provide a mechanism for correcting errors or
injustices in lower court judgments.
o Protecting Rights: To safeguard the rights of parties involved by
allowing them to challenge unfavorable decisions.
o Ensuring Fairness: To promote fairness and equity in legal proceedings
through higher court review.
o Legal Redress: To offer a pathway for legal redressal and remedy
against wrongful convictions or inadequate sentences.

Grounds of Appeal
Under the CrPC there are several grounds on which an appeal can be filed against
the decision of a lower court. These grounds generally include:
  Errors of Law: This includes mis-interpretation or misapplication of the law by
the lower court.
 Errors of Fact: Appeals can be made if there are substantial errors in the
findings of fact by the lower court, which are material to the case.
 Procedural Errors: Any procedural irregularities or violations during the trial
process that may have affected the fairness of the trial can be grounds for
appeal.
 Perversity: This refers to a decision by the lower court that is so unreasonable
that no reasonable person could have come to such a conclusion based on the
evidence presented.
 Improper Admission or Rejection of Evidence: If the lower court improperly
admitted or rejected crucial evidence that significantly affected the outcome of
the case, it can be grounds for appeal.
 Violation of Legal Principles: Any violation of fundamental legal principles or
rules of natural justice during the trial process can also be raised on appeal.
 Excessive Sentence: If the sentence imposed by the lower court is
considered excessive or disproportionate to the offense committed, it can be
challenged on appeal.
Notes
1. Right to Appeal (Section 413):
Section 413 of BNSS says that no appeal shall lie from any judgment or order of a
Criminal Court except as provided for by the BNSS or any other prevailing law.
However, inherent right of appeal is granted to victims against orders acquitting the
accused, convicting for a lesser offense, or imposing inadequate compensation.
2. Supreme Court's Authority (Section 415):
Section 415 of BNSS outlines the scenarios in which an appeal may be made
directly to the Supreme Court.
3. Appellate Jurisdiction of High Courts (Section 416):
Section 416 of BNSS defines the appellate jurisdiction of High Courts, specifying the
types of cases over which they have authority.
4. Restrictions on Appeals (Section 417):
Section 417 of BNSS imposes certain limitations on the right to appeal, categorically
specifying cases where no appeal lies.
5. Appeal Procedure (Section 423):
Section 423 of BNSS details the procedure for filing an appeal, emphasizing the
importance of a written petition accompanied by a copy of the judgment or order
being appealed against.
6. Suspension of Sentence and Bail (Section 430):
Section 430 of BNSS provides provision for the suspension of the execution of a
sentence pending appeal. It also grants the Appellate Court the authority to release
the appellant on bail, ensuring that individuals are not unduly subjected to
incarceration during the appeal process.
7. Finality of Appellate Judgments (Section 434):
Section 434 of BNSS emphasizes the finality of judgments and orders passed by
Appellate Courts, instilling legal certainty in the system.
8. Abatement of Appeals on Death (Section 435):
Section 435 of BNSS introduces the concept of abatement, concluding appeals upon
the death of the accused or appellant. However, recognizing the gravity of certain
cases, it allows near relatives to seek leave to continue the appeal.

Can an appeal be made in petty cases to the H.C?

Section 417 of the Bharatiya Nagarik Suraksha Sanhita, 2023, restricts the ability to
appeal in certain petty cases. It specifies conditions under which appeals cannot be
made based on the sentence issued by different courts for minor offenses.
 High Court: No appeal if sentenced to imprisonment for up to three months or
a fine up to ₹1000.
 Court of Session: No appeal if sentenced to imprisonment for up to three
months or a fine up to ₹200.
 Magistrate of the first class: No appeal if sentenced to a fine up to ₹100.
 Magistrate (summary case): No appeal if sentenced to a fine up to ₹200.
However, if any other form of punishment is combined with the sentence, an appeal
may be possible. Certain conditions such as the furnishing of security, imprisonment
for default of payment, or multiple fines do not provide grounds for an appeal if the
total fine does not exceed the set limit.

Q2)Bail? Types of bail? Circumstances of it’s grant by police officer?

A)a Definition of Bail under Bharatiya Nagarik Suraksha Sanhita
The Criminal Procedure Code has not defined bail, bail bond and bond but
BNSS has introduced this term. According to the definition clause under
Section 2 of BNSS:
 Clause (b) defines “bail” as “bail” means release of a person accused of or
suspected of commission of an offence from the custody of law upon certain
condition imposed by an officer or court on execution by such person of a bond
or a bail bond.
 Clause (d) defines “bail bond” as, “bail bond” means an undertaking for
release with surety.
 Clause (e) defines “bond” as “bond”, which means a personal bond or an
undertaking for release without surety.
Types of Bail:
 Regular Bail: – A court can order the release of a person in custody on
suspicion of committing an offence.
 Anticipatory Bail: – Can be sought under Section 438 CrPC by any individual
who anticipates being charged with a non-bailable offense.
 Interim Bail: – A temporary form of bail granted during the pendency of an
application for an anticipatory or regular bail.
 Default Bail: – If the accused can demonstrate that the required 60 or 90 days
have passed since their arrest without any chargesheet or complaint being
filed.
 Medical Bail: – Granted to individuals based on solely on medical grounds.

When can bail be granted?

Section 479 (1) BNSS:
The person detained during any investigation, inquiry, or trial shall be
released on bail by the court if the offense is not punishable by death or
imprisonment for life and that person has already served half of the
maximum period of imprisonment provided for that offense. If the
individual is a first-time offender with no prior criminal convictions, the
Court shall grant bail upon detention for a period not exceeding one-third
of the maximum imprisonment prescribed for the offense under the
applicable law.
Section 479 (2) BNSS:
Despite the provisions of Section 479(1) BNSS and subject to its third
proviso, if an investigation, inquiry, or trial for multiple offenses or cases is
pending against an individual, they shall not be granted bail by the court.
When can bail be cancelled?
Cancellation of Bail:
Sections 480 (5) & 483 BNSS:
Courts possess the authority to cancel bail granted under Section 480 of the BNSS.
This power extends to High Courts and Courts of Session under Section 483 BNSS.
Notably, despite numerous judicial interpretations regarding bail cancellation, the
legislature has refrained from codifying specific grounds for such action. This grants
the judiciary extensive discretion in revoking bail, potentially infringing upon an
individual's constitutional rights to life and liberty.

Q3) Discuss in detail about fair trial?

A)Introduction:
The principles of fair trial in criminal law forms the bedrock of a just and equitable
criminal justice system. These principles ensure the protection of the rights of the
accused while maintaining the integrity of the legal process. From the presumption of
innocence to the right to legal representation, these safeguards uphold justice and
fairness in every trial. Exploring key elements of a fair trial, including judicial
safeguards, speedy trials, and international human rights norms, highlights the
judiciary’s critical role in ensuring fairness and protecting fundamental rights in
criminal proceedings.

1. Presumption of Innocence
One of the most crucial principles of a fair trial is the presumption of innocence. This
principle dictates that an accused person is considered innocent until proven guilty
beyond a reasonable doubt. The burden of proof lies with the prosecution, and the
accused is not required to prove their innocence. This principle is enshrined
in Article 11 of the Universal Declaration of Human Rights (UDHR) and has been
upheld in numerous Indian cases, including Kali Ram v. State of Himachal Pradesh
(1973 AIR 2773).
2. Right to a Speedy Trial
The right to a speedy trial is an essential aspect of a fair trial. Delays in the trial
process can lead to prolonged periods of incarceration for the accused, causing
undue hardship and potentially violating their rights under Article 21 of the Indian
Constitution, which guarantees the right to life and personal liberty. The Supreme
Court of India, in Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1360),
emphasized the importance of this right, leading to significant reforms in criminal
procedure to reduce delays.
3. Right to Legal Representation
The right to legal representation ensures that the accused has access to a lawyer
who can defend their interests during the trial. This right is guaranteed under Article
22(1) of the Indian Constitution and further supported by Section 303 of the Code
of Criminal Procedure (CrPC). The case of Suk Das v. Union Territory of
Arunachal Pradesh (1986 AIR 991) underscored the necessity of providing legal aid
to the accused, particularly to those who cannot afford a lawyer, as an essential
component of a fair trial.
4. Right to a Public Hearing
A public hearing is a critical aspect of transparency in the judicial process. It allows
the public and the media to observe the proceedings, ensuring that the trial is
conducted fairly and without bias. Section 327 of the CrPC mandates that criminal
trials should be conducted in open court, subject to certain exceptions, such as
cases involving sexual offenses where the proceedings may be held in-camera to
protect the privacy of the victim.

5. Right to Be Heard
The right to be heard, also known as the principle of audi alteram partem, is a
fundamental aspect of natural justice. It ensures that both parties in a dispute have
the opportunity to present their case before the judge. The Supreme Court
in Maneka Gandhi v. Union of India (AIR 1978 SC 597) reinforced that a fair trial
includes the right of the accused to be heard and to present evidence in their
defense.
6. Right Against Self-Incrimination
The right against self-incrimination is a safeguard against coercive interrogations and
forced confessions. Article 20(3) of the Indian Constitution provides that no
person accused of an offense shall be compelled to be a witness against
themselves. This principle was notably upheld in Nandini Satpathy v. P.L. Dani (AIR
1978 SC 1025), where the Supreme Court ruled that an accused person cannot be
forced to answer questions that may incriminate them.
7. Right to an Impartial Judge
An impartial judge is crucial to ensuring a fair trial. The judge must be free from bias
and should not have any personal interest in the outcome of the case. Section 479
of the CrPC reflects this principle by prohibiting judges from hearing cases in which
they have a personal interest. The maxim “nemo judex in causa sua” (no one
should be a judge in their own cause) is fundamental to this principle, as highlighted
in the case of A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531).
Conclusion
In conclusion, the principles of fair trial in criminal law are indispensable for
safeguarding the rights of the accused and upholding the rule of law. Through judicial
safeguards and adherence to international human rights standards, the judiciary
ensures transparency, accountability, and fairness in criminal trials. Case laws further
emphasize the importance of these principles in preventing injustice and reinforcing
trust in the criminal justice system. By protecting fair trial rights, the legal system
maintains a delicate balance between societal interests and individual liberties,
fostering a culture of justice and equality.

Q4) How to deal a case through plea bargaining?

A) Plea bargaining is a legal process where an accused individual in a criminal case
consent to plead guilty to a lesser charge or accepts a reduced sentence in return for
certain concessions from the prosecutor or the court. The concept of plea bargaining
was first implemented in India in 2006. As per section 289 BNSS, plea bargaining is
permissible after a charge sheet has been filed under Section 193 BNSS or when a
magistrate has taken cognizance of the offence. However, it is prohibited for
offences that carry a death penalty, life imprisonment, or a prison term longer than
seven years. It will not apply when such offence affects the socio-economic condition
of the country or has been committed against a woman or a child.
Application for Plea Bargaining:
290 BNSS:
1. An individual facing charges for an offense may submit an application for plea
bargaining within thirty days from the date when the charges are formally
presented in the court where the case is being tried.
2. The application referred to in subsection (1) must include a concise overview of
the case for which it is submitted, detailing the specific offense involved. It
should also be filed with an affidavit signed by the accused, affirming that they
have voluntarily chosen to pursue plea bargaining, having fully comprehended
the nature and extent of the potential penalties outlined by law for the offense.
Furthermore, the affidavit must indicate that the accused has not been
previously convicted by any court for the same offense.
3. Upon receipt of the application mentioned in subsection (1), the court will notify
the Public Prosecutor, the complainant involved in the case, and the accused
to appear on the scheduled date for the proceedings.
 4. When the Public Prosecutor or the complainant and the accused appear on the
scheduled date mentioned in sub-section (3), the Court will conduct a private
examination of the accused, ensuring that the other party is not present. This is
to verify that the accused has submitted the application voluntarily:
a. If the Court is convinced that the application was indeed filed voluntarily
by the accused, it will grant a period not exceeding sixty days for the
Public Prosecutor or the complainant and the accused to negotiate a
mutually agreeable resolution of the case. This resolution may include
the accused providing compensation to the victim as well as covering
other expenses related to the case. Following this, the Court will set a
date for the next hearing.
b. If the Court determines that the application was submitted involuntarily by
the accused or that he has previously been convicted by a Court for the
same offence, it will continue to proceed according to the provisions of
this Sanhita (Code) from the stage at which the application was filed
under sub-section (1).

Guidelines for Reaching a Mutually Acceptable Resolution

Section 291 BNSS: When determining a mutually agreeable resolution in accordance
with clause (a) of sub-section (4) of section 290 BNSS, the Court shall adhere to the
following procedure:

a. In cases initiated based on a police report, the Court shall issue a notice to the
Public Prosecutor, the investigating police officer, the accused, and the victim,
inviting them to participate in a meeting aimed at achieving a satisfactory
resolution of the case.

Throughout the process of reaching an agreeable resolution for the case, it is

the responsibility of the Court to ensure that all parties involved in the meeting
do so voluntarily. Additionally, if the accused wishes, they may attend the
meeting accompanied by their advocate, if they have one.

b. In cases that are not initiated based on a police report, the Court must notify
both the accused and the victim to attend a meeting aimed at finding a
satisfactory resolution. The Court is also responsible for guaranteeing that this
resolution process is conducted voluntarily by all parties involved in the
meeting. Furthermore, if either the victim or the accused wishes to participate,
they may do so with the assistance of their legal representative engaged in the
case.
Q5) Differentiate between cognizable and non-cognizable cases with
examples?
A) Introduction
Criminal offenses are classified into two primary categories to facilitate effective
investigation and trial processes. These categories are cognizable and non
cognizable offences. In this article, we will understanding the concept of cognizable
and non cognizable cases in light of Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS)

Cognizable offences
Cognizable offenses, as defined by Section 2(g) of the Bharatiya Nagarik Suraksha
Sanhita (BNSS), empower the police to arrest the accused without a warrant or
magistrate approval. These crimes, outlined in the First Schedule of the Sanhita,
encompass severe acts such as rape, murder, kidnapping, theft, and abduction.
Upon filing a First Information Report (FIR), the police initiate an investigation,
strengthening the prosecution's case. Section 175 of the BNSS grants police officers
the authority to start investigation into cognizable cases promptly, without the need of
a warrant by magistrate.

Non-Cognizable Offenses
Non-cognizable offenses, defined by Section 2(o) of the BNSS, require police officers
to obtain a warrant for arrest and court permission to initiate an investigation. These
offenses, generally less severe in nature, necessitate police reports submitted to the
magistrate under Section 174(2) BNSS and Section 177 BNSS for both cognizable
and non-cognizable offenses.
In the case of reporting a non-cognizable offense to a police officer, the information is
noted, but immediate action, including arrest, cannot be taken without the
magistrate's directive (Section 178 BNSS).
Key differences: Cognizable vs. Non-Cognizable Offenses
1. Definition:
- Cognizable offenses: Police can arrest without a warrant or prior court permission
(Section 2(g) of BNSS).
- Non-cognizable offenses: Police require court permission for arrest (Section 2(o)
of BNSS).
2. Investigation Procedure:
 - Cognizable offenses: Outlined in Section 175 of the BNSS.
- Non-cognizable offenses: Governed by Section 174 of the BNSS.
3. Police Powers:
- Cognizable offenses: Police can arrest and initiate an investigation upon lodging
an FIR without magistrate permission.
- Non-cognizable offenses: Police cannot initiate an investigation without
magistrate orders.
4. Arrest:
- Cognizable offenses: Accused can be arrested without a warrant or court
permission.
- Non-cognizable offenses: Arrest requires prior court permission.
5. Gravity of the Crime:
- Cognizable offenses: Generally more serious and heinous.
- Non-cognizable offenses: Generally less severe and grave in nature.

6. Punishment Severity:
- Cognizable offenses: Punishments typically exceed three years, including life
imprisonment or the death penalty.
- Non-cognizable offenses: Punishments usually less than three years.

7. Bail for the Accused:

- Cognizable offenses: May be bailable or non-bailable, depending on the nature of
the offense and court discretion.
- Non-cognizable offenses: Generally bailable due to lesser severity.

Example:
Rape-section 63, Murder-Section 101
Chain snatching: Section 304
Q6) Limitations to exercise power of search? Consequences of of illegal search?
A)