UNIT 3

1. REFERENCE
CHAPTER 32 OF BNSS
2. REVISION

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), like the Criminal Procedure Code,
1973 has a detailed framework for the reference and revision in criminal cases. This article
will study the key provisions related to reference and revision, under BNSS.

Reference to High Court (Section 436):

Section 436 of the BNSS provides a mechanism for lower courts to refer cases involving
questions about the validity of Acts, Ordinances, or Regulations to the High Court. The court,
upon forming an opinion about the invalidity or inoperability of such legal provisions, states
its opinion and reasons, referring the case to the High Court.

Powers of Sessions Judge (Section 437-438):

Section 437 of BNSS empowers a Court of Session to refer questions of law to the High
Court, even in cases not covered by Section 436. The court can either commit the accused to
jail or release them on bail pending the High Court's decision. Section 438 of BNSS grants
the High Court and Sessions Judge the authority to call for and examine records from inferior
Criminal Courts within their jurisdiction to ensure correctness, legality, and propriety of
findings, sentences, or orders.

Revisionary Powers (Section 439-440):

Section 439 of BNSS allows the High Court or Sessions Judge to examine records and order
further inquiry into dismissed complaints or discharged cases.

The Sessions Judge under Section 440 of BNSS exercises revision powers akin to the High
Court. The decision of the Sessions Judge on revision is final for the person involved, barring
further revision by the High Court or any other court.
Section 441 - Powers of Additional Sessions Judge:

Section 441 of BNSS bestows upon an Additional Sessions Judge the authority to exercise all
powers of a Sessions Judge under the BNSS concerning any case transferred to them by the
Sessions Judge.

Section 442 - General Powers of Revision by High Court:

Section 442 of BNSS says that when judges composing the Court of revision are equally
divided in opinion, the case is disposed of following the procedure outlined in Section 433 of
BNSS.

Section 433 of Bharatiya Nagarik Suraksha Sanhita says that:

'When an appeal under this Chapter is heard by a High Court before a Bench of Judges and
they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge
of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and
the judgment or order shall follow that

Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before
another Judge under this section, that Judge, so requires, the appeal shall be re-heard and
decided by a larger Bench of Judges.'

Section 443 - Multiple Convictions at the Same Trial:

Section 443 of BNSS addresses a scenario where multiple persons convicted at the same trial
file revision applications. In such situations, the High Court determines, considering the
general convenience of the parties and the importance of the questions involved, whether the
High Court or the Sessions Judge should handle the applications for revision.

Section 444 - Right to be Heard in Revision:

Section 444 of BNSS clarifies that, save as otherwise expressly provided by the BNSS, no
party has an inherent right to be heard personally or by an advocate before any court
exercising its powers of revision. However, the court, if it deems fit, may allow any party to
be heard during the revision proceedings, adding an element of discretionary fairness to the
process.
Section 445 - Certification of Decision:

Section 445 of BNSS outlines the procedural steps after the conclusion of a revision
application. When a case is revised under the BNSS by the High Court or a Sessions Judge,
the decision or order is certified in the manner provided by Section 429. This certified
decision is then sent to the court where the original finding, sentence, or order was recorded
or passed.

The court, upon receiving the certified decision, is obligated to make orders conformable to
the certified decision.
 3. APPEALS (CHAPTER 31 OF 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.

▪ Criminal appeals are discussed in Chapter 29 of the Criminal Procedure Code,1973

(CrPC) covering Section 372 to 394.

▪ The chapter is not absolute and exhaustive, as many provisions related to appeals
are provided out of this chapter, for instance, sections 86, 250, 351, 449, 454, 458(2).

▪ Appeals under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is placed

under Chapter XXXI 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.

Types of Appeals
▪ Appeal in Court of Session: Section 414 OF BNSS grants individuals the right to
appeal to the Court of Session against certain orders. These orders pertain to Section
117, which mandates individuals to provide security for peace or good behavior, and
Section 121, which deals with the court's acceptance or rejection of sureties. This
provision enables individuals to request a judicial review of these orders, ensuring
that the legal process remains fair and accountable.

▪ Appeal from Convictions: Section 415 of the BNSS offers different appeal routes for
convictions:

▪ Convictions by a High Court (under its extraordinary original criminal jurisdiction)

can appeal directly to the Supreme Court.
 ▪ Convictions by a Court of Session or Additional Court of Session can appeal to the
respective High Court.

▪ Convictions by Lower Courts (like Metropolitan Magistrates, Assistant Sessions

Judges, or Magistrates of the first or second class), including sentences under Section
325 or orders under Section 360 of the CrPC, can appeal to the Court of Session.

▪ State Appeals: The State Government has specific provisions for appeals. Section
418 allows the State to appeal for the enhancement of a sentence imposed by a lower
court. Conversely, under Section 419, the State can appeal against the acquittal of an
accused person by a lower court.

▪ Appeal Against Conviction by High Court in certain cases: Section 420 of BNSS
allows for appeals in specific cases by the accused. If a High Court overturns an
acquittal and convicts someone, sentencing them to death, life imprisonment, or ten
years or more, the accused has the right to appeal to the Supreme Court.

▪ Special Right of Appeal in certain cases: Section 421of the BNSS grants a special
right of appeal to an accused under specific circumstances. If one co-accused receives
a sentence that can be appealed, the accused who received a non-appealable sentence
also gains the right to appeal.

Grounds of Appeal
Under the BNSS 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.

Instances when an Appeal is Lodged

Appeals arise in the following situations:

▪ A person convicted by a High Court can appeal to the Supreme Court. If convicted by
a Sessions Court or similar lower court with a sentence exceeding seven years, they
also have the right to appeal to the Supreme Court.

▪ Anyone can appeal against orders requiring security or rejecting surety for
maintaining peace or good behavior.

▪ Section 418 OF BNSS allows the government to direct the public prosecutor to
appeal court decisions deemed too lenient in sentencing.

Important Sections of Appeal

Section 374 of CrPC (SECTION 415 OF BNSS):

▪ Convictions from the High Court can be appealed to the Supreme Court.

▪ Convictions from the Court of Session or Additional Court of Session can be

appealed to the High Court.

▪ Sentences over seven years from the Court of Session or Additional Court of Session
can be appealed to the High Court.

Section 376 of CrPC (SECTION 417 OF BNSS):

▪ Minor offenses are generally not eligible for appeal.

▪ Procedures for handling such matters differ across jurisdictions.

Section 378 of CrPC (SECTION 419 OF BNSS):

▪ If a magistrate acquits someone of a serious, non-bailable crime, the district

magistrate can instruct the prosecutor to appeal to the court of session.

▪ If acquitted in another court, the state can appeal by filing a request there too.

Section 386 of CrPC (SECTION 427 OF BNSS):

▪ The Appellate court can:

o Dismiss an appeal if there are insufficient grounds to intervene.

 o Overturn an acquittal, order further inquiry or retrial, and pass a lawful
sentence.

o Reverse, modify, or uphold a conviction.

o Increase a sentence by changing findings or altering the nature of the

sentence.

o Make necessary amendments or other just or appropriate orders.

Section 394 of CrPC (SECTION 435OF BNSS:

▪ As per the Section, if an accused dies, appeals are typically dismissed, except for
fines.

▪ However, if the appeal involves a death sentence or imprisonment and the appellant
dies during it, a close relative can apply within thirty days to continue.

▪ If allowed, the appeal won't be dismissed.

Case Laws
▪ Navjot Singh Sidhu Case (1988):

o In this case, the Punjab and Haryana High Court held that Section 389 of
CrPC ensures fair appeals without undue hardship for the appellant,
allowing time for the appeal to be decided.

▪ Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2006):

o An individual convicted of an offense possesses an inherent right to pursue an
appeal as outlined in Section 374 of the Code. Considering the expansive
scope of Article 21, which encompasses fundamental freedoms, the ability to
appeal a conviction affecting one's liberty remains a fundamental entitlement.
Consequently, the right to appeal cannot be restricted or contingent upon
any conditions. Article 21 of the Indian Constitution and Section 374 of the
Criminal Procedure Code unequivocally guarantee the right to appeal.
 4. SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION
(CHAPTER 30 OF BNSS)

Introduction

Sections 407-41 contained in Chapter XXX of the BNSS deals with the confirmation of the
death sentence and Chapter XXXIV of BNSS deals with the execution of the death sentence.
Our Indian criminal laws are framed in a manner to avoid or minimize errors and facilitate
the smooth functioning of the criminal law system.

Offences That Are Subjected to Death Sentence in India

There are certain offences that are subjected to death sentence under the Indian Criminal
Laws.

▪ Rape (Section 376 of Indian Penal Code, 1860 (IPC))

▪ Murder (Section 302 of IPC)

▪ Dacoity with murder (Section 396 of IPC)

▪ Waging or attempting to wage war against the Government of India (Section 121 of
IPC)

▪ Abetting mutiny actually committed (Sec. 132 of IPC)

▪ Giving or fabricating false evidence upon which an innocent person suffers death.
(Section 194 of IPC).

Statutory Provisions
▪ Section 366 of CrPC (SECTION 407 0F BNSS)

o This Section deals with the sentence of death to be submitted by Court of

Session for confirmation. It states that-
(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted
to the High Court, and the sentence shall not be executed unless it is confirmed by the
High Court.

(2) The Court passing the sentence shall commit the convicted person to jail custody under a
warrant.

▪ Section 367of CrPC (SECTION 408 0F BNSS)

o This Section deals with the power to direct further inquiry to be made or
additional evidence to be taken. It states that—
(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry
should be made into, or additional evidence taken upon, any point bearing upon the guilt or
innocence of the convicted person, it may make such inquiry or take such evidence itself,
or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted person may be
dispensed with when such inquiry is made, or such evidence is taken.

(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result
of such inquiry or evidence shall be certified to such Court.

▪ Section 368 of CrPC (SECTION 409 0F BNSS)

o This Section deals with the power of the High Court to confirm sentence or
annul conviction. It states that—

In any case submitted under section 366, the High Court—

(a) May confirm the sentence, or pass any other sentence warranted by law, or
(b) May annul the conviction, and convict the accused of any offence of which the Court of
Session might have convicted him, or order a new trial on the same or an amended charge, or

(c) May acquit the accused person.

Provided that no order of confirmation shall be made under this section until the period
allowed for preferring an appeal has expired, or, if an appeal is presented within such period,
until such appeal is disposed of.
▪ Section 369 of CrPC (SECTION 410 0F BNSS)

o This Section deals with the confirmation or new sentence to be signed by

two Judges.
o It states that in every case so submitted, the confirmation of the sentence, or
any new sentence or order passed by the High Court, shall, when such Court
consists of two or more Judges, be made, passed and signed by at least two
of them.

▪ Section 370 of CrPC (SECTION 411 0F BNSS)

o This Section deals with the procedure in case of difference of opinion.

o It states that where any such case is heard before a Bench of Judges and such
Judges are equally divided in opinion, the case shall be decided in the manner
provided by Section 392.

▪ Section 371 of CrPC (SECTION 412 0F BNSS)

o This Section deals with the procedure in cases submitted to the High Court
for confirmation.
 o It states that in cases submitted by the Court of Session to the High
Court for the confirmation of a sentence of death, the proper officer of the
High Court shall, without delay, after the order of confirmation or other order
has been made by the High Court, send a copy of the order, under the seal of
the High Court and attested with his official signature, to the Court of
Session.

Case Laws:

▪ In Jagmohan Singh v. State of UP (1973), the Supreme Court held that according
to Article 21 of the Constitution of India, 1950 (COI) deprivation of life is
constitutionally permissible if that is done according to the procedure established by
law. Thus, the death sentence imposed after a trial in accordance with legally
established procedures under CrPC and is not constitutional.

▪ In Bachan Singh v. the State of Punjab (1980), the Supreme Court propounded
the dictum of rarest of rare cases according to which death penalty is not to be
awarded except in the rarest of rare cases when the alternative option is
unquestionably foreclosed.
 UNIT 4

A. INHERENT POWERS OF COURT

Introduction

The term inherent means existing and inseparable from something, a permanent attribute or
quality. Inherent powers are the powers which are inalienable from Courts and may be
exercised by a Court to do full and complete justice between the disputed parties before it.
The Court has inherent power to mould the procedure to enable it to pass such orders as
the ends of justice may require.

▪ Section 482 of the CRPC (SECTION 528 OF BNSS) deals with the inherent powers
of the High Court.

Section 482 of CrPC (SECTION 528 OF BNSS)

▪ This Section deals with the saving of inherent powers of the High Court.

▪ It states that nothing in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give effect to
any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.

▪ This section does not confer any inherent power on the High Courts, and it
only recognizes the fact that High Courts have inherent powers
▪ This Section is silent as regards inherent powers of subordinate courts.

▪ The use of the word "otherwise" in this Section has the avowed effect of boundlessly
broadening the boundaries of inherent powers of the High Court in exercise of its
criminal jurisdiction.

▪ No limitation period has been prescribed for making an application under this
Section. However, the application is to be filed within a reasonable period.

Purpose of Section 482 of CrPC (SECTION 528 OF BNSS)

▪ Section 482 lays down as to when the inherent power may be exercised.

▪ It enumerates three purposes for which the inherent power may be exercised.

o The first purpose is that the inherent power may be exercised to make
orders necessary to give effect to any order under the Code.
 o The second purpose is that the inherent power may be exercised to prevent
abuse of the process of any court.

o The third purpose is that the inherent power may be exercised otherwise
to secure the ends of justice.

Principles for the Application of Section 482 of CrPC (SECTION 528 OF BNSS)

▪ In the case of Madhu Limaye v. Maharashtra (1977), the Supreme

Court enumerated the following principles that would govern the High Court’s
inherent jurisdiction:

o That inherent power must not be resorted to, if specific provision for
redressal of grievances has been given.

o That it should be carefully used to prevent abuse of process of any Court or

otherwise to secure ends of justice.
o That it should not be exercised against the express provision given in any
other statute.

Exercise of Inherent Powers of High Court

▪ As stated by the Supreme Court in State of Haryana v. Bhajan Lal (1992), the
inherent powers under Section 482 can be exercised in the following cases: -

o Where the allegations in the FIR/complaint, even if they are taken at their face
value, do not prima facie constitute any offence against the accused.

o Where the allegations in the FIR or other materials do not

constitute a cognizable offence justifying an investigation by the police under
Section 156(1) of the CrPC. except under an order of a Magistrate within the
purview of Section 155(2) of the CrPC.

o Where the unconverted allegations in the FIR/complaint and the evidence

collected thereon do not disclose the commission of any offence.

o Where the allegations in the FIR/complaint do not constitute any cognizable

offence but constitute only non-cognizable offence to which no investigation
is permitted by the police without the order of Magistrate under Section 155(2)
of the CrPC.

o Where the allegations are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.

o Where there is an express legal bar engrafted in any of the provisions of the
Code or the Statute concerned (under which the proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
 provision in the code or in the statute concerned, providing efficacious redress
for the grievance of the aggrieved party.

o Where a criminal proceeding is manifestly attended with mala fide intentions

and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused with a view to spite him due to private
and personal vengeance.

o The list is not exhaustive but only illustrative in nature.

▪ In the following cases, the inherent powers of the High Court cannot be invoked:

o To quash the proceedings in police investigation consequent upon a FIR

made to the police in a cognizable case; to interfere with the statutory rights of
the police to investigate a cognizable case.
o To quash an investigation just because the FIR does not disclose any
offence when investigation could be carried out on the basis of other
materials.

o To embark upon an enquiry as to the reliability or genuineness or otherwise

of the allegations made in the FIR/complaint.

o Inherent jurisdiction can be invoked only against final orders and not against
interlocutory orders.

o To order stay of arrest of accused during investigation.

Section 482 of CrPC (SECTION 528 OF BNSS) and Bail Provisions

▪ The inherent power under Section 482 CrPC cannot be used by the High Court to
reopen or alter an order, after disposing a bail petition decided on merits.
▪ Bail cannot be granted by virtue of Section 482 CrPC.

▪ If bail is granted in a bailable offence, there is no provision in CrPC to cancel it.

However, the High Court can cancel it by invoking inherent power on the grounds of
tampering with the witness, bribing the officials, or an attempt to abscond etc.

Section 482 of CrPC (SECTION 528 OF BNSS) and Quashing of the Proceedings

▪ In the case of R.P. Kapoor v. State of Punjab (1960), the Supreme Court ruled that
in the following cases the inherent jurisdiction of High Court could be exercised to
quash the proceedings:
 o Where there is a legal bar against the institution or continuance of
proceedings.

o Where the allegations in the FIR or complaint do not constitute the offence
alleged.

o Where either there is no legal evidence adduced in support of the charge or

the evidence adduced clearly failed to prove the charge.

Case Laws

▪ In the case of M/s Pepsi Food Ltd. v. Special Judicial Magistrate (1998), the
Supreme Court held that a fresh investigation or re-investigation after filing of
chargesheet by police can be ordered by High Court under Section 482 of CrPC to
secure the ends of justice.
▪ In the case of Sakiri Vasu v. State of U.P and Ors. (2008), the Supreme Court
cautioned against entertaining Section 482 CrPC petitions if the FIR remains
unregistered, advocating for the pursuit of alternative remedies like approaching
police officers or the Magistrate.

▪ In the case of Bhisham Lal Verma v. State of Uttar Pradesh and Anr.,(2023), the
Supreme Court held that a second petition under Section 482 of CrPC would not be
maintainable on grounds that were available for challenge at the time of filing of the
first petition.

FOLLOWING ARE THE NOTES FROM CHAT GPT:

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which is set to replace the Code
of Criminal Procedure, 1973 (CrPC), retains several core features of the existing criminal
procedural law while bringing certain reforms. One such area is the inherent powers of the
court, which plays a crucial role in ensuring justice where no specific provision of the law
exists.

Inherent Powers of Court under BNSS, 2023

Relevant Provision: Section 482 of CrPC vs. BNSS

• Under the CrPC, Section 482 provides the High Courts with inherent powers.
• In the BNSS, 2023, this is largely retained and re-numbered.
 Section 528 of BNSS, 2023 corresponds to Section 482 of CrPC.

Section 528 of BNSS – Inherent Powers of High Court

Wordings (Paraphrased):

“Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to:

• give effect to any order under this Sanhita,

• prevent abuse of the process of any Court, and

• secure the ends of justice.”

Scope and Purpose

The inherent powers are residual and discretionary in nature. They are intended to:

1. Correct miscarriage of justice where no specific remedy exists.

2. Prevent abuse of court process, such as frivolous or malicious prosecution.

3. Ensure justice, especially where rigid application of procedural law would result in
injustice.

Limitations

• Not a substitute for appeal or revision.

• Can only be exercised by the High Court, not by Magistrates or Sessions Courts.
• Cannot be used to override specific provisions of BNSS/CrPC.

• Used sparingly and in exceptional circumstances.

Judicial Precedents (Still Applicable Post-BNSS)

Though under CrPC, these principles will still guide interpretation under BNSS:

• State of Haryana v. Bhajan Lal (1992): Listed categories where criminal

proceedings can be quashed under inherent powers.

• Zandu Pharmaceutical Works v. Mohd. Sharaful Haque (2005): Inherent power

must be used to prevent injustice, not to stifle legitimate prosecution.
 Conclusion

The inherent powers under BNSS (Section 528) continue to empower the High Courts to
act as a check against misuse of judicial processes. These powers ensure that justice prevails
over procedural technicalities, making them a cornerstone of fair criminal trials in India.
 B. TRANSFER OF CRIMINAL CASES (CHAPTER 33 OF BNSS)

Introduction:

The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines provisions for the transfer of
criminal cases under Sections 446 to 452. These sections empower the Supreme Court, High
Courts, Sessions Judges, and Magistrates to transfer cases or appeals under specific
circumstances.

Transfer by the Supreme Court (Section 446 of BNSS):

The Supreme Court, when convinced that it is necessary for the ends of justice, can direct the
transfer of a particular case or appeal from one High Court to another or from a Criminal
Court under one High Court to another Criminal Court. This authority is exercised upon the
application of the Attorney-General of India or a party involved.

High Court's Jurisdiction (Section 447 of BNSS):

The High Court, upon certain conditions such as the impossibility of a fair trial or the
existence of legal complexities, can order the transfer of cases. The High Court may act based
on reports from lower courts, applications from interested parties, or its own initiative.
Notably, an application for transfer from one Criminal Court to another within the same
sessions division must first be made to the Sessions Judge.

Procedure and Powers (Sections 447, 448 of BNSS):

Applications for transfer must be supported by affidavit or affirmation, and accused persons
may be directed to execute bonds for compensation. The High Court can stay proceedings in
subordinate courts if it deems it necessary for justice. The High Court, when transferring a
case to itself, follows the same procedure as the original court.
Sessions Judges also have the power to transfer cases within their sessions division under
Section 448 of BNSS.
Sessions Judge's Authority (Section 449 of BNSS):

Section 449 of BNSS empowers a Sessions Judge to withdraw any case or appeal which he
has made over to a Chief Judicial Magistrate subordinate to him.

Magistrates' Powers (Sections 450, 451 of BNSS):

Under Section 450 of BNSS, Chief Judicial Magistrates and Judicial Magistrates have the
authority to withdraw or recall cases from subordinate magistrates and inquire into or try the
cases themselves.

District Magistrates or Sub-divisional Magistrates can make over proceedings to subordinate

magistrates or withdraw cases for disposal under Section 451 of BNSS.

Recording Reasons (Section 452 of BNSS):

Sessions Judges and Magistrates, when making orders under Sections 448, 449, 450, or 451,
are required to record their reasons for the decision, ensuring transparency and accountability
in the transfer process.

FOLLOWING ARE THE NOTES FROM CHAT GPT:

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the transfer of criminal
cases is addressed similarly to the provisions in the Code of Criminal Procedure, 1973
(CrPC), with some structural and numbering changes.

Transfer of Criminal Cases under BNSS, 2023

The provisions for transferring cases are primarily intended to:

• Ensure a fair trial,

• Avoid bias or prejudice,

• Maintain public confidence in the judicial process.

Key Provisions in BNSS Related to Transfer of Cases

BNSS Corresponding
Provision Summary
Section CrPC Section

Power of Supreme Court to transfer cases and appeals

Section
Section 406 from one High Court to another or between subordinate
447
courts of different states.

Section Power of High Court to transfer cases and appeals within

Section 407
448 its jurisdiction (from one Sessions Court to another, etc.).

Power of Sessions Judge to transfer cases and appeals

Section
Section 408 within the Sessions Division (e.g., from one Magistrate to
449
another).

Detailed Breakdown

Section 447 – Transfer by Supreme Court

• The Supreme Court may transfer any case or appeal from:

o One High Court to another, or

o One Criminal Court subordinate to one High Court to another.

• Can be done on application by the Attorney-General or a party, and in the interest

of justice.

Section 448 – Transfer by High Court

• The High Court may transfer cases from:

o One Sessions Court to another within the state,

o One Magistrate’s Court to another,

o Or withdraw a case to itself and dispose it.

• Grounds include:

o Fair and impartial inquiry/trial,

o Convenience of parties/witnesses,

o Public interest.

Section 449 – Transfer by Sessions Judge

• A Sessions Judge may transfer a case from one Magistrate to another within the
same Sessions division.
 • Also may withdraw a case and try it himself or assign it to an Additional Sessions
Judge.

Application Process for Transfer

1. Written application needs to be filed by an aggrieved party or the prosecutor.

2. Must state grounds such as bias, fear of unfair trial, convenience of parties, etc.
3. Notice is usually given to the opposite party.

4. The court may allow the transfer after hearing both sides.

Limitations and Cautions

• Transfer is not granted merely on allegations of bias or inconvenience.

• Courts consider whether there is a real likelihood of prejudice.
• It is a discretionary power, used only when necessary.

Conclusion

The BNSS, 2023 continues the framework of case transfer as a vital judicial safeguard.
Sections 447 to 449 of BNSS ensure that cases can be transferred between courts when
required to uphold justice, impartiality, and fairness in criminal trials.
C. IRREGULAR PROCEEDINGS (CHAPTER 37 0F BNSS)
 FOLLOWING ARE NOTES FROM CHAT GPT

Section 506 – Irregularities Which Do Not Vitiate Proceedings

This section specifies that certain irregularities committed by a Magistrate, when done in
good faith and without malice, shall not invalidate the proceedings. Examples include:

• Issuing a search warrant under Section 97.

• Ordering a police investigation under Section 174.
 • Holding an inquest under Section 196.

• Issuing process for apprehension beyond local jurisdiction under Section 207.

• Taking cognizance of an offence under Section 210(1)(a) or (b).

• Making over a case under Section 212(2).

• Tendering a pardon under Section 343.

• Recalling a case to try it himself under Section 450.

• Selling property under Sections 504 or 505.

Even if the Magistrate was not legally empowered to perform these actions, the proceedings
shall not be set aside solely on that ground, provided they were done erroneously but in good
faith.

Section 507 – Irregularities Which Vitiate Proceedings

This section outlines actions by a Magistrate that, if performed without legal empowerment,
render the proceedings void. Such actions include:

• Attaching and selling property under Section 85.

• Issuing a search warrant for items in postal custody.

• Demanding security to keep the peace or for good behavior.

• Discharging a person bound to be of good behavior.

• Cancelling a bond to keep the peace.

• Making an order for maintenance.

• Making orders under Sections 152 (local nuisance) or 162 (public nuisance).

• Making orders under Parts C or D of Chapter XI.

• Taking cognizance of an offence under Section 210(1)(c).

• Trying an offender or passing a sentence under Section 364.

• Deciding an appeal or calling for proceedings under Sections 438 or 491.

These actions, if performed without proper authority, render the proceedings void.

Section 508 – Proceedings in Wrong Place

This section addresses situations where proceedings are conducted in an incorrect

jurisdiction. It states that no finding, sentence, or order shall be set aside merely because the
inquiry or trial took place in the wrong sessions division, district, sub-division, or other local
area, unless it results in a failure of justice. This provision ensures that minor jurisdictional
errors do not lead to the dismissal of cases if no prejudice to the accused is shown.

Section 509 – Non-Compliance with Provisions of Sections 183 or 316

This section pertains to the recording of confessions or statements. If a confession or

statement recorded under Sections 183 or 316 is tendered in evidence and the court finds that
the provisions of these sections were not complied with, it may still admit the statement if it
is satisfied that the non-compliance did not harm the accused's defense and that the statement
was duly made. This provision ensures that technical non-compliance does not automatically
invalidate such statements.

Section 510 – Effect of Omission to Frame, or Absence of, or Error in, Charge
This section deals with errors related to the framing of charges. It states that no finding,
sentence, or order shall be set aside merely because of the omission to frame a charge, the
absence of a charge, or an error in the charge, unless it results in a failure of justice. This
provision allows for the correction of minor errors in the charge without invalidating the
entire proceedings.

Section 511 – Finding or Sentence When Reversible by Reason of Error, Omission, or

Irregularity

This section provides that no finding, sentence, or order passed by a court of competent
jurisdiction shall be reversed or altered by an appellate or revisional court due to any error,
omission, or irregularity in the proceedings, unless it has resulted in a failure of justice. In
determining whether a failure of justice has occurred, the court shall consider whether the
objection could and should have been raised at an earlier stage in the proceedings.

Section 512 – Defect or Error Not to Make Attachment Unlawful

This section states that no attachment made under the BNSS shall be deemed unlawful, nor
shall any person making the attachment be deemed a trespasser, due to any defect or want of
form in the summons, conviction, writ of attachment, or other proceedings relating thereto.
This provision ensures that minor procedural defects do not invalidate the attachment of
property.
 D. LIMITATIONS OF TAKING COGNIZANCE (CHAPTER 38 OF BNSS)

Introduction

▪ Chapter XXXVII of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) deals
with the provisions relating to limitation for taking cognizance of certain Offences.

▪ It imposes certain restrictions on the power of the magistrate.

▪ Sections 513 to 519 of BNSS deal with the provisions related to limitation for taking
cognizance of certain offences.

What is Cognizance?

▪ The word cognizance has been derived from the Latin word “Cognosis” which
means to know.
▪ This word has not been defined under BNSS, but the meaning of cognizance has
been derived from the number of precedents and judicial pronouncements.
▪ Cognizance means knowledge or notice and taking cognizance of offence means
taking notice or becoming aware of the commission of offence.

What are the Provisions for Limitation for Taking Cognizance of Certain Offences?

▪ Definition (Section 513):

o It states that ‘period of limitation’ means the period specified under Section
514 of BNSS for taking cognizance

▪ Bar to taking Cognizance after Lapse of Period of Limitation (Section 514):

o Sub section (1) states that no Court shall take cognizance of an offence of the
category specified in sub-section (2), after the expiry of the period of
limitation.

o Sub section (2) states that the period of limitation shall be:

• Six months, if the offence is punishable with fine only.

• One year, if the offence is punishable with imprisonment for a term not
exceeding one year.

• Three years, if the offence is punishable with imprisonment for a term

exceeding one year but not exceeding three years.
 o Sub section (3) states that the offences which shall be tried together the period
of limitation shall be decided based on the offence which has the most severe
punishment.

o This section is further accompanied with an explanation that for the purpose of
computing the period of limitation, the relevant date shall be the date of filing
complaint under section 223 or the date of recording of information under
section 173 of BNSS.

▪ Commencement of Period of Limitation (Section 515):

o Sub section (1) states that the period of limitation for an offender shall
commence:

• On the date of the offence.

• Where the commission of the offence was not known to the person
aggrieved by the offence or to any police officer, the first day on which
such offence comes to the knowledge of such person or to any police
officer, whichever is earlier.

• Where it is not known by whom the offence was committed, the first
day on which the identity of the offender is known to the person
aggrieved by the offence or to the police officer making investigation
into the offence, whichever is earlier.

o Sub section (2) states that the day on which the period is to be computed shall
be excluded for computing the period.

▪ Exclusion of Time in Certain Cases (Section 516):

o Sub section (1) states that to compute the period of limitation the time during
which any person has been prosecuting with due diligence another
prosecution, whether in a Court of first instance or in a Court of appeal or
revision, against the offender, shall be excluded.

o Sub section (2) states that where the institution of the prosecution in respect
of an offence has been stayed by an injunction or order, then, in computing the
period of limitation, the period of the continuance of the injunction or order,
the day on which it was issued or made, and the day on which it was
withdrawn, shall be excluded.

o Sub section (3) states that Where notice of prosecution for an offence has
been given, or where, under any law for the time being in force, the previous
consent or sanction of the Government or any other authority is required for
the institution of any prosecution for an offence, then, in computing the period
 of limitation, the period of such notice or, as the case may be, the time
required for obtaining such consent or sanction shall be excluded.

• This has further explanation as in computing the time required for

obtaining the consent or sanction of the Government or any other
authority, the date on which the application was made for obtaining the
consent or sanction and the date of receipt of the order of the
Government or other authority shall both be excluded.

o Sub section (4) states that for computing the period of limitation the time
during which the offender:

• Has been absent from India or from any territory outside India which is
under the administration of the Central Government or

• Has avoided arrest by absconding or concealing himself,

• Shall be excluded.

▪ Exclusion of Date on which Court is Closed (Section 517):

o This section states that where the period of limitation expires on a day when
the Court is closed, the Court may take cognizance on the day on which the
Court reopens.

o A further explanation is given as a Court shall be deemed to be closed on any

day within the meaning of this section, if, during its normal working hours, it
remains closed on that day

▪ Continuing Offence (Section 518):

o This section states that a fresh period of limitation shall begin at every
moment during which the offence continues.

▪ Extension of Period of Limitation in Certain cases (Section 519):

o Any Court may take cognizance of an offence after the expiry of the period of
limitation, if it is satisfied on the facts and in the circumstances of the case that
the delay has been properly explained or that it is necessary so to do in the
interests of justice.

Landmark Judgements

▪ Nirmal Kanti Roy v. State of West Bengal (1998):

o The Supreme Court in this case held that Section 468 of the Code of
Criminal Procedure, 1973 (CrPC) shall not be applicable to an offence
under Section 7 (1) (A) (ii) of Essential Commodities Act, 1955.
▪ State of Rajasthan v. Sanjay Kumar (1998):
 o In this case the Court held that the limitation period will not commence from
the date when the sample was taken but from the date when the report of
Public Analysts was received in case of adulteration.

Conclusion

It is important to bring a suit within the specified period as with the passage of time it
becomes difficult to gather evidence as there is a high chance of deterioration of evidence.
With the enactment of Chapter XXXVIII, it has set a limit to bring the suit, and it helps to
prevent unnecessary delay.