Key Changes in Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 {Part 2}

 Major Themes of Reform

The BNSS 2023 focuses on speedy trials, time-bound procedures, and modernizing criminal procedure. Here are the key changes organized by theme:

1. Time-Bound Proceedings (Most Important for Interview)

Trial-Related Timelines

·       Committal proceedings: Must be completed within 90 days, extendable to 180 days with written reasons

·       Chargesheet copy supply: Within 14 days (previously no time limit)

·       Framing of charges: Within 60 days of first hearing

·       Judgment delivery: Within 30 days (extendable to 60 days with special reasons)

·       Judgment upload: Within 7 days of pronouncement

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Key Changes in Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 {Part 1}

 A. Leniency and First-Time Offender Provisions

1. Enhanced Plea Bargaining Benefits

BNSS Section 293 reduces punishment for first-time offenders to 1/4th and 1/6th of minimum punishment (previously 1/2 and 1/4th under CrPC Section 265E). This shows the law's humanitarian approach toward first-time offenders.

2. Mandatory Bail for First-Time Undertrials

BNSS Section 479 allows first-time offenders to get mandatory bail after serving 1/3rd of punishment (previously 1/2 under CrPC Section 436A). Jail superintendents now have a duty to apply for release of eligible prisoners.

B. Gender Equality and Inclusive Language

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Understanding Liberty: A Student’s Guide to BNSS Bail Jurisprudence

 The concept of bail represents the most significant intersection between criminal procedure and constitutional law. In the Indian legal landscape, this field has undergone a profound transformation with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This guide serves as a curriculum roadmap for students to navigate the shift from a discretion-heavy past toward a future defined by the "Constitutionalization of Bail."

1. The Bedrock of Freedom: Article 21 and the Constitution

Every statutory provision regarding bail must be interpreted through the lens of Article 21 of the Indian Constitution. This article is not merely a legal clause but the foundation upon which the entire architecture of personal liberty is constructed.

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Constitutional Bail Jurisprudence under BNSS and Special Statutes

1. Contextual Foundations: Article 21 and the Architecture of Liberty

In the Indian criminal justice system, bail is the primary instrument through which the guarantee of personal liberty under Article 21 is made real at the trial‑court level. The Supreme Court, beginning with State of Rajasthan v. Balchand and Gudikanti Narasimhulu, has consistently affirmed that “bail is the rule and jail is the exception”, subject only to clearly articulated risks such as absconding, witness intimidation, or repeated offending.

For a District Judge, the adjudication of bail is therefore not a matter of discretion in the loose sense, but a structured constitutional function: to balance individual liberty and the presumption of innocence against the State’s obligation to maintain public order and ensure a fair trial. The trial court becomes the first and most important “custodian of the sword of justice”, ensuring that pre‑trial detention remains a protective measure, not a pre‑emptive punishment.

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What is provision of jurisdiction of special Act under Crpc/BNSS, Explain jurisdiction of special Act with illustrations

 4. Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws.—(1) All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Corresponding Law: S. 4 of Act 2 of CRPC1974.

5. Saving.—Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Corresponding Law: S. 5 of Act 2 of 1974.

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Important articles and judgments on police investigation U/S 156 of CRPC {S 175(3 ) of BNSS }

 

1) Supreme Court: How BNSS Modernizes Section 156(3) CrPC: Key Changes and Implications

35. Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions Under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs Under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 352/2020

Decided On: 16.01.2025

Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation:  MANU/SC/0134/2025, 2025 INSC 139.

https://www.lawweb.in/2025/03/supreme-court-how-bnss-modernizes.html

2) Supreme Court: Magistrate's Order U/S. 156(3) CrPC For registration of FIR is Not Vitiated Merely Because Complainant Didn't Avail Remedy Under S.154(3)

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Delhi HC: Chargesheet Filed under S.187(3) BNSS Without Obtaining Sanction To Prosecute Under Arms Act Not Incomplete, No Default Bail

 Further, the Supreme Court in the case of Judgebir Singh v. NIA, MANU/SC/0501/2023 : 2023:INSC:472 : (2023) 17 SCC 48 referred to the judgment in Suresh Kumar (supra) and held that a chargesheet filed without sanction cannot be treated as an incomplete chargesheet and does not entitle an accused to a default bail as contemplated under Section 167(2) of the CrPC [now Section 187(3) of the BNSS]. 

"45. We find no merit in the principal argument canvassed on behalf of the appellants that a charge-sheet filed without sanction is an incomplete charge-sheet which could be termed as not in consonance with sub- section (5) of Section 173CrPC. It was conceded by the learned counsel appearing for the appellants that the charge-sheet was filed well within the statutory time period i.e. 180 days, however, the court concerned could not have taken cognizance of such charge-sheet in the absence of the orders of sanction not being a part of such charge-sheet. Whether the sanction is required or not under a statute, is a question that has to be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the court. The court in a given case, may not take cognizance of the offence for a particular period of time even after filing of the final report. In such circumstance, the accused concerned cannot claim their indefeasible right under Section 167(2)CrPC for being released on default bail. What is contemplated under Section 167(2)CrPC is that the Magistrate or Designated Court (as the case may be) has no powers to order detention of the accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to Section 167(2)CrPC. {Para 36}

46. Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court. Section 173CrPC does not speak about the sanction order at all. Section 167CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order.

 IN THE HIGH COURT OF DELHI

Bail Appln. 1713/2025

Decided On: 25.06.2025

Suraj Kanojia Vs. State Govt of Nct of Delhi

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: MANU/DE/4621/2025.

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J & K HC: Magistrate may issue pre-cognizance notice to the accused as per S 223 of BNSS in cheque bounce case

 Section 223 BNSS provides for issuance of pre-cognizance notice to the accused and said provision was not available in the corresponding Section 200 of the repealed Code. Such requirement provided under Section 223 of the BNSS by way of proviso appear to be justice orientated as the same takes care of any legitimate defence of the accused to be appreciated by the Magistrate even at an earliest, while holding a preliminary inquiry and is not barred at all even in respect of complaints under N.I. Act as hereinabove discussed. However, the non-observance of the requirements, provided under Section 223 BNSS, regarding the examination on oath of the complainant/witnesses and the issuance of the pre-cognizance notice shall not render the proceedings invalid. {Para 10}

11. The satisfaction of the competent Court, as regards the maintainability of the complaint, in terms of the accrual of cause of action, is covered under the “inquiry phase,” preceding the “taking of cognizance”. A Magistrate while entertaining a complaint under Section 138 of the Negotiable Instruments Act is not barred to have the observance of the provisions providing for pre-cognizance notice.

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394. REad full Judgment here: Click here.

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J & K HC: Magistrate should not issue non-bailable warrant against accused at pre-cognizance stage of the complaint U/S 138 of NI Act

 So far as the case in hand is concerned, the learned Magistrate upon satisfying himself regarding to record the service of pre-cognizance notice could have inferred, the forfeiture of the right of hearing by the accused at pre-cognizance stage of the complaint and proceeded ahead on the complaint in accordance with law. There was no need for the Magistrate to compel the appearance of the accused by issuance of a subsequent nonbailable warrant as the pre-cognizance hearing was meant for him which he acquiesced. The Magistrate is within its powers to compel the attendance of the accused after taking cognizance on the complaint and even under such circumstances, the normal approach of the Magistrates should be issuance of summon followed by a bailable warrant if needed and the issuance of the non-bailable warrants should be the last option.{Para 12}

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394

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Deemed sanction under the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS)

 Deemed sanction under the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a significant new legal concept introduced to address delays in prosecuting public servants for actions taken in the course of their official duties.

What is deemed sanction under BNSS?

• Section 218(1) of BNSS requires that before a court can take cognizance of an offence allegedly committed by a judge, magistrate, or certain public servants in the discharge of their official duties, prior sanction from the appropriate government (Central or State) is necessary.

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Trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS)

Trial in Absentia under the BNSS (Section 356)

Trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS), specifically governed by Section 356, introduces a structured procedure for conducting a criminal trial when the accused—declared a proclaimed offender—is deliberately absent to evade justice.

Key Features of Trial in Absentia under BNSS

1. Preconditions for Trial in Absentia

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BNSS Provision Capping Maximum Undertrial Term Applies To PMLA : Supreme Court Grants Bail

It has been observed that in the case of Vijay Madanlal

Chaudhary vs. Union of India, (2022) SCC Online SC 926 that

the beneficial provision of Section 436A of the Code of

Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’)may apply

to prosecution under the Prevention of Money-Laundering Act,

2002 (for short, ‘the PMLA’) as Section 436A has come on

statute book subsequent to enactment of the PMLA. Therefore,

a corresponding provision of Section 479(1) of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) will

apply to prosecution under the PMLA. {Para 2}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION}

CRIMINAL APPEAL NO.________/2024

(Arising Out of Special Leave Petition (Criminal) No.10846/2024)

BADSHAH MAJID MALIK  Vs  DIRECTORATE OF ENFORCEMENT & ORS. 

Dated: October 18, 2024.

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Parliament's Incorporation of Supreme Court Directions in BNSS: A Landmark Integration of Judicial Wisdom

 Introduction

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Criminal Procedure Code 1973, represents a significant milestone in India's criminal justice reform. One of the most noteworthy aspects of this new legislation is how Parliament has systematically incorporated key directions and principles established by the Supreme Court, particularly those outlined in the landmark case of Satender Kumar Antil v. Central Bureau of Investigation (2022). This integration demonstrates a remarkable convergence between judicial wisdom and legislative intent, creating a more balanced and rights-oriented criminal procedure framework.

The Satender Kumar Antil Foundation

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Important judgments on BNSS 2023

 

1) Bombay HC: Cases Filed Before July 1, 2024, Will Be Investigated As Per CrPC And Not BNSS

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO.618 OF 2024(F)

Chowgule and Company Pvt. Ltd. Vs  The Public Prosecutor,

 CORAM: BHARAT P. DESHPANDE, J.

PRONOUNCED ON: 02nd August, 2024

https://www.lawweb.in/2024/08/bombay-hc-cases-filed-before-july-1.html

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Supreme Court: under which circumstances the magistrate can release accused on bail as per S.437(6) CrPC/S.480(6) BNSS

14. The foregoing discussion lead us to conclude and answer the questions under reference as under:

Q-1 An Accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection.

Q-2 The provisions contained in Section 437(6) of the Code are not mandatory.

Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a-vis such application preferred by the Accused Under Section 437(6) of the Code may be:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the Accused?

2. Whether there are any chances of the Accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the Accused on being bailed out?

4. Whether Accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the Accused under first part of Sub-section (6) of Section 437 of the Code.

The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in Sub-section (6) of Section 437 of the Code by the legislature.

It would also be relevant to take into consideration the punishment prescribed for the offence for which the Accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of Accused being tried with Accused and their availability for trial, etc.

The factors which are quoted above by this Court are only illustrative and not exhaustive.

Q-4 The factors, parameters, circumstances and grounds for seeking bail by the Accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to Sub-section (1) and Sub-section (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications Under Section 437(6) need to be more weighty than the routine grounds of rejection.

Q-5 The parameters relevant for deciding application Under Section 167(2)(a)(I)(II) of the Code (default bail), cannot be imported for exercise of power Under Section 437(6) of the Code.

Q-6 A decision in principle rendered by a coordinate Bench of equal strength would bind another co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter.

Q-7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of Accused for a speedy trial, though, Constitutional and aimed at liberty of Accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 473(6) of the Code and Article 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly.

20. In the overall view of the matter, we are convinced that the Appellant deserves to be released on bail, subject to certain terms and conditions as may be imposed by the Trial Court. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 818/2025 (Arising out of Special Leave to Appeal (Crl.) No. 1314/2025)

Decided On: 18.02.2025

Subhelal Vs. The State of Chhattisgarh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

 Citation: 2025 INSC 242, MANU/SC/0235/2025

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Jurisprudential Framework for State Criminal Procedure Amendments: The Chaurasia Precedent

 The Allahabad High Court's decision in Sudhir Kumar Chaurasia v. State of U.P. Neutral Citation No. - 2025:AHC-LKO:34988.establishes crucial jurisprudential principles that extend far beyond the specific context of NDPS anticipatory bail restrictions in Uttar Pradesh. This landmark judgment creates a comprehensive analytical framework for determining the fate of state amendments to criminal procedure codes when central legislation undergoes repeal and substantial re-enactment.

Core Jurisprudential Principles Established

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Transit Anticipatory Bail Under the Bharatiya Nagarik Suraksha Sanhita (BNSS): Can Courts Still Grant It?

 Introduction

The concept of transit bail, also known as transit anticipatory bail, plays a crucial role in safeguarding the rights of individuals who fear arrest in a jurisdiction different from where they currently reside. With the recent enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure (CrPC), questions have arisen regarding the continued availability and legal basis of transit bail. This article explores whether courts can still grant transit bail under the BNSS and examines the current legal landscape.

What is Transit Bail?

Transit bail is a temporary relief granted to a person who anticipates arrest in connection with a case registered outside the jurisdiction of their current residence. The primary purpose of transit bail is to provide interim protection from arrest, allowing the individual sufficient time to approach the competent court in the jurisdiction where the offence is alleged to have occurred and seek regular or anticipatory bail.

Is Transit Bail Codified in the BNSS?

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Supreme Court Mandates Preliminary Inquiry Before FIR On Certain Offences Related To Speech & Expressions

 At this stage, we may refer to Clause (a) of Article 51-A of the Constitution, which reads thus:

"51-A. Fundamental duties.-It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. The preamble lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship. Therefore, liberty of thoughts and expression is one of the ideals of our Constitution. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens. Clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under sub- Clause (a) of Clause (1) of Article 19. If there is a law covered by Clause (2), its operation remains unaffected by sub- Clause (a) of Clause (1). We must remember that laws covered by the Clause (2) are protected by way of an exception provided they impose a reasonable restriction. Article 19(2) is an exception to the freedom enumerated Under Article 19(1)(a). The reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights Under Article 19(1), including the right to freedom of speech and expression. Therefore, when an allegation is of the commission of an offence covered by the law referred to in Clause (2) of Article 19, if Sub-section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the Accused. This will ensure that the fundamental rights guaranteed under Sub-clause (a) of Clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in Sub-section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option Under Sub-section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed. If an option Under Sub-section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right Under Article 19(1)(a) even though Clause (2) of Article 19 is not attracted. If, in such cases, the option Under Sub-section (3) of Section 173 is not exercised, it will defeat the very object of incorporating Sub-section (3) of Section 173 of the BNSS and will also defeat the obligation of the police Under Article 51-A(a). {Para 29}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1545 of 2025

Decided On: 28.03.2025

Imran Pratapgadhi Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/0408/2025,2025 INSC 410.

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Supreme Court: How BNSS Modernizes Section 156(3) CrPC: Key Changes and Implications

 However, before we part with the matter, we deem it necessary to discuss the changes brought to the scheme of Section 156 of the Code of Criminal Procedure by the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "the BNSS"). {Para 28}

29. Section 175 of the BNSS corresponds to Section 156 of the Code of Criminal Procedure. Sub-section (1) of Section 175 of the BNSS is in pari materia with Sub-section 156(1) of the Code of Criminal Procedure except for the proviso which empowers the Superintendent of Police to direct the Deputy Superintendent of Police to investigate a case if the nature or gravity of the case so requires. Sub-section (2) of Section 175 the BNSS is identical to Section 156(2) of the Code of Criminal Procedure. Section 175(3) of the BNSS empowers any Magistrate who is empowered to take cognizance Under Section 210 to order investigation in accordance with Section 175(1) and to this extent is in pari materia with Section 156(3) of Code of Criminal Procedure. However, unlike Section 156(3) of the Code of Criminal Procedure, any Magistrate, before ordering investigation Under Section 175(3) of the BNSS, is required to:

a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police Under Section 173(4) of the BNSS;

b. Conduct such inquiry as he thinks necessary; and

c. Consider the submissions made by the police officer.

30. Sub-section (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Code of Criminal Procedure. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance Under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure:

a. Receiving a report containing facts and circumstances of the incident from the officer superior to the Accused public servant; and

b. Considering the assertions made by the Accused public servant as regards the situation that led to the occurrence of the alleged incident.

31. A comparison of Section 175(3) of the BNSS with Section 156(3) of the Code of Criminal Procedure indicates three prominent changes that have been introduced by the enactment of BNSS as follows:

a. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application Under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police Under Section 173(4), supported by an affidavit, while making the application to the Magistrate Under Section 175(3).

b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.

c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions Under Section 175(3).

32. The introduction of these changes by the legislature can be attributed to the judicial evolution of Section 156 of the Code of Criminal Procedure undertaken by a number of decisions of this Court. In the case of Priyanka Srivastava v. State of U.P. reported in   MANU/SC/0344/2015 : 2015:INSC:239 : (2015) 6 SCC 287, this Court held that prior to making an application to the Magistrate Under Section 156(3) of the Code of Criminal Procedure, the applicant must necessarily make applications Under Sections 154(1) and 154(3). It was further observed by the Court that applications made Under Section 156(3) of the Code of Criminal Procedure must necessarily be supported by an affidavit sworn by the applicant. The reason given by the Court for introducing such a requirement was that applications Under Section 156(3) of the Code of Criminal Procedure were being made in a routine manner and in a number of cases only with a view to cause harassment to the Accused by registration of FIR. It was further observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also to see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate Under Section 156(3). 

28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees.

29. At this stage it is seemly to state that power Under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications Under Sections 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application Under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [  MANU/SC/1166/2013 : 2013:INSC:748 : (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

(Emphasis supplied)

33. In a recent pronouncement of this Court in the case of Babu Venkatesh v. The State of Karnataka reported in   MANU/SC/0214/2022 : 2022:INSC:209 : (2022) 5 SCC 639, the observations made in Priyanka Srivastava (supra) were referred to and it was held as follows:

24. This Court has clearly held that, a stage has come where applications Under Section 156(3) Code of Criminal Procedure are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications Under Section 156(3) Code of Criminal Procedure are filed in a routine manner without taking any responsibility only to harass certain persons.

26. This Court has further held that, prior to the filing of a petition Under Section 156(3) Code of Criminal Procedure, there have to be applications Under Sections 154(1) and 154(3) Code of Criminal Procedure. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, Under Section 156(3) Code of Criminal Procedure. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

(Emphasis supplied)

34. In light of the judicial interpretation and evolution of Section 156(3) of the Code of Criminal Procedure by various decisions of this Court as discussed above, it becomes clear that the changes introduced by Section 175(3) of the BNSS to the existing scheme of Section 156(3) merely codify the procedural practices and safeguards which have been introduced by judicial decisions aimed at curbing the misuse of invocation of powers of a Magistrate by unscrupulous litigants for achieving ulterior motives.

35. Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions Under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs Under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 352/2020

Decided On: 16.01.2025

Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation:  MANU/SC/0134/2025, 2025 INSC 139.

Read full Judgment here: Click here.

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LLM Notes: Evolving Legal Framework for Victim Compensation in India: A Comparative Analysis of CrPC, 1973 and BNSS, 2023

Victim compensation is a crucial aspect of the criminal justice system, aimed at providing relief and rehabilitation to individuals who suffer harm due to criminal acts. In India, the legal framework for victim compensation has undergone significant transformation with the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces the Code of Criminal Procedure (CrPC), 1973. This article explores the provisions for victim compensation under both laws, compares their features, highlights judicial precedents, and analyzes how the new framework improves upon the old system.

The CrPC, 1973, provided for victim compensation through several provisions:

1. :

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