Sections 169–170 CrPC vs Sections 189–190 BNSS — Release or Forwarding of the Accused After Investigation

In India, Sections 189 and 190 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 169 and 170 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Section 189 now speaks of "a bond or bail bond", and Section 190 adds a proviso barring a Magistrate from refusing a police report because the accused is not in custody.

At a glance

Both sections sit at the end of the police-investigation chapter, just before the police report under Section 193 BNSS (formerly Section 173 CrPC). Section 193(6) BNSS lists the documents the police officer forwards "When such report is in respect of a case to which section 190 applies".

What changed

A word-by-word comparison of the texts, after normalising line breaks, shows two differences. The headings of both sections are unchanged.

• Modified — new proviso to Section 190(1). Added after "until otherwise directed": "Provided that if the accused is not in custody, the police officer shall take security from such person for his appearance before the Magistrate and the Magistrate to whom such report is forwarded shall not refuse to accept the same on the ground that the accused is not taken in custody." Section 170 CrPC had no proviso.
• Minor edit — bond wording in Section 189. "release him on his executing a bond, with or without sureties, as such officer may direct" becomes "release him on his executing a bond or bail bond, as such officer may direct". The BNSS now defines both terms: a "bail bond" is "an undertaking for release with surety" (Section 2(1)(d)) and a "bond" is "a personal bond or an undertaking for release without surety" (Section 2(1)(e)). On a reading of the definitions, the choice the officer had under the CrPC — with or without sureties — is the same choice, now expressed in defined terms.
• Identical — everything else. The test in Section 189 ("not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate"), the main clause of Section 190(1), and sub-sections (2), (3) and (4) of Section 190 repeat Section 170 word for word.

The official CrPC text prints no amendment footnotes or State amendments against Sections 169 or 170.

Statutory text (relevant extract)

Extract, Section 170(1) CrPC:

… such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

Extract, proviso to Section 190(1) BNSS:

Provided that if the accused is not in custody, the police officer shall take security from such person for his appearance before the Magistrate and the Magistrate to whom such report is forwarded shall not refuse to accept the same on the ground that the accused is not taken in custody.

Extract, Section 189 BNSS:

… such officer shall, if such person is in custody, release him on his executing a bond or bail bond, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report …

How it works — the steps

At the close of an investigation the officer in charge of the police station forms an opinion on the evidence. The two sections are the two branches of that opinion.

Branch 1 — evidence deficient (Section 189).

1. The officer finds "not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate".
2. If the person "is in custody", the officer releases him on a bond or bail bond, as the officer directs.
3. The undertaking is to appear, "if and when so required", before a Magistrate empowered to take cognizance on a police report and to try the accused or commit him for trial.

Branch 2 — evidence sufficient (Section 190).

1. The officer finds "sufficient evidence or reasonable ground as aforesaid".
2. The officer "shall forward the accused under custody" to a Magistrate empowered to take cognizance on a police report — or, "if the offence is bailable and the accused is able to give security", takes security for his appearance "on a day fixed and for his attendance from day to day … until otherwise directed" (s.190(1)).
3. If the accused is not in custody, the officer "shall take security from such person for his appearance", and the Magistrate "shall not refuse to accept" the report because the accused was not taken into custody (proviso).
4. The officer sends the Magistrate "any weapon or other article which it may be necessary to produce", and requires the complainant (if any) and such persons acquainted with the facts as the officer thinks necessary "to execute a bond to appear before the Magistrate" to prosecute or give evidence (s.190(2)).
5. A bond naming the Court of the Chief Judicial Magistrate covers any Court to which that Magistrate refers the case, "provided reasonable notice of such reference is given" (s.190(3)).
6. The officer before whom a bond is executed gives a copy to one of the executants and sends the original to the Magistrate with his report (s.190(4)).

A complainant or witness who "refuses to attend or to execute a bond as directed in section 190" may be forwarded in custody to the Magistrate under the proviso to Section 191 BNSS (formerly Section 171 CrPC), which otherwise bars requiring them to accompany a police officer or subjecting them to unnecessary restraint.

What this means in practice

• For an accused who was never arrested. The Section 190(1) proviso now addresses this case in the Sanhita itself: the officer takes security for appearance, and the Magistrate cannot refuse the report on the ground that the accused is not in custody. Under Section 91 BNSS (formerly Section 88 CrPC), a Court may require a person present before it to execute "a bond or bail bond" for his appearance.
• For the investigating officer. Record which branch applies. In a Section 189 case, release the person on a bond or bail bond if he is in custody. In a Section 190 case, forward the accused, or take security (bailable offence, or accused not in custody), send the weapons or articles, and take bonds from the complainant and necessary witnesses.
• For the complainant. A Section 189 outcome is followed by the police report under Section 193 BNSS. The Magistrate's options on such a report are discussed in Abhinandan Jha (below) and on the pages on the police report and cognizance.
• For the advocate. The proviso speaks of the Magistrate "to whom such report is forwarded". On a reading of the text, it governs acceptance of the report; it does not itself address remand or bail after the report is accepted.

Judgments that still matter

No Supreme Court judgment construing Section 190 BNSS or its new proviso was traced. The judgments below construe Sections 169–170 of the CrPC or the 1898 Code. Apart from the proviso and the bond wording, the operative words repeat the CrPC, so on a reading of the text these rulings remain relevant to Sections 189–190.

Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 S.C.R. 668 — 17 April 1967, M. Hidayatullah and C. A. Vaidialingam, JJ. Decided under the Code of Criminal Procedure, 1898. In both appeals the police had submitted a "final report" that no case was made out, and the Magistrate, on a protest petition, directed the police to submit a charge-sheet. The Court explained that whether a case comes under s.169 or s.170, the police officer has to submit a report on completion of investigation (p. 673). It held that a Magistrate may accept or disagree with the police opinion and, if he disagrees, adopt the courses it described, "But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate" (p. 679). It concluded that there is "no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet" when they have reported under s.169 (p. 679).

Satender Kumar Antil v. Central Bureau of Investigation & Anr., [2022] 10 S.C.R. 351 (2022 INSC 690) — 11 July 2022, Sanjay Kishan Kaul and M.M. Sundresh, JJ. In this bail-guidelines judgment the Court addressed "a wrong interpretation of Section 170" (para 1). At para 36 it said that, "In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the magistrate under Section 170", and that there is not even a need for a bail application, since the accused is merely forwarded to the court; it reproduced a passage of Siddharth v. State of U.P. (ending at that judgment's para 11), including that Section 170 "does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the chargesheet". Para 65, in the part dealing with offences under special Acts (category C), clarified that where the accused "is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court". Among its concluding directions (para 73): "There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code", and strict compliance with Siddharth. The new proviso to Section 190(1) BNSS addresses the same situation in the text.

Sumit v. State of U.P. & Anr., 2026 INSC 145 — order of 9 February 2026, J.B. Pardiwala and K.V. Viswanathan, JJ. The FIR was under Sections 80(2) and 85 BNS and the Dowry Prohibition Act. The High Court had granted anticipatory bail only "till the filing of the police charge sheet" (para 10) and, once the charge-sheet was filed, rejected a fresh application (para 11). The Court said it failed to understand the idea of restricting anticipatory bail to that stage (para 12), reproduced the Siddharth passage on Section 170 CrPC (para 22) and noted that Satender Kumar Antil required strict compliance with it (para 23). It set aside the High Court's order (para 27) and ordered that the appellant, if arrested, be released on anticipatory bail on conditions the investigating officer imposes (para 28). The order applies CrPC case law; it does not construe Section 190 BNSS.

Which law applies to your case

Section 531(2)(a) BNSS provides that any investigation pending immediately before 1 July 2024 is to be continued in accordance with the CrPC "as if this Sanhita had not come into force". On a reading of that provision, release or forwarding at the end of such an investigation falls under Sections 169–170 CrPC, and the Section 190(1) proviso applies to investigations begun on or after that date. For the full transition rules, see which law applies to an offence before 1 July 2024.

Frequently asked questions

What are the BNSS equivalents of Sections 169 and 170 CrPC?

Section 189 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 169 CrPC (release of the accused when evidence is deficient), and Section 190 BNSS replaces Section 170 CrPC (cases to be sent to the Magistrate when evidence is sufficient). Both took effect on 1 July 2024 and keep the same headings.

What is new in Section 190 BNSS?

A proviso to Section 190(1): if the accused is not in custody, the police officer shall take security from him for his appearance before the Magistrate, and the Magistrate to whom the report is forwarded 'shall not refuse to accept the same on the ground that the accused is not taken in custody'. Section 170 CrPC had no such proviso.

Must the police arrest the accused before filing a charge-sheet?

Section 190 BNSS does not say so, and its new proviso deals with the case where the accused is not in custody. Under Section 170 CrPC, the Supreme Court in Satender Kumar Antil v. CBI, [2022] 10 S.C.R. 351, para 36, said that where the prosecution does not require custody there is no need for an arrest when a case is sent to the Magistrate, and directed strict compliance with Siddharth v. State of U.P. (para 73).

What happens under Section 189 BNSS when the evidence is insufficient?

If the officer in charge of the police station finds that there is not sufficient evidence or reasonable ground of suspicion to justify forwarding the accused, the officer shall, if the person is in custody, release him on his executing a bond or bail bond, as the officer directs, to appear before a Magistrate empowered to take cognizance on a police report if and when so required.

What is the difference between a bond and a bail bond under the BNSS?

Section 2(1)(e) BNSS defines a 'bond' as a personal bond or an undertaking for release without surety, and Section 2(1)(d) defines a 'bail bond' as an undertaking for release with surety. Section 189 BNSS uses both terms where Section 169 CrPC said 'a bond, with or without sureties'.

Can a Magistrate direct the police to file a charge-sheet after a final report?

In Abhinandan Jha v. Dinesh Mishra, [1967] 3 S.C.R. 668, at 679, decided under the Code of 1898, the Supreme Court held that there is no power, express or implied, for a Magistrate to call upon the police to submit a charge-sheet when they have reported that no case is made out. The Magistrate may accept or disagree with the report and, if he disagrees, adopt the courses the Court described, such as directing further investigation.

Do complainants and witnesses have to execute a bond under Section 190 BNSS?

Under Section 190(2), when the officer forwards the accused or takes security, he shall require the complainant (if any) and such persons acquainted with the facts as he thinks necessary to execute a bond to appear before the Magistrate. Under Section 191 BNSS, a complainant or witness who refuses to attend or execute that bond may be forwarded in custody to the Magistrate.

Which law applies to an investigation that began before 1 July 2024?

Section 531(2)(a) BNSS provides that an investigation pending immediately before the BNSS came into force is to be continued in accordance with the CrPC as if the BNSS had not come into force. On a reading of that provision, release or forwarding at the end of such an investigation falls under Sections 169 and 170 CrPC.

Related

• Police report on completion of investigation — CrPC 173 vs BNSS 193
• Remand and default bail — CrPC 167 vs BNSS 187
• Cognizance by Magistrate — CrPC 190 vs BNSS 210
• Anticipatory bail — CrPC 438 vs BNSS 482
• Police notice to appear — BNSS 35 vs CrPC 41A
• CrPC to BNSS master comparison table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text): Sections 2(1)(b), (d), (e), 91, 189, 190, 191, 193(6), 531(2)(a).
• Code of Criminal Procedure, 1973 (original India Code PDF text): Sections 88, 169, 170, 171, 173(5).
• Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 S.C.R. 668 — corpus file 1967_3_668_680_EN.md (report PDF checked for page numbers).
• Satender Kumar Antil v. Central Bureau of Investigation & Anr., [2022] 10 S.C.R. 351 — corpus file 2022_10_351_447_EN.md.
• Sumit v. State of U.P. & Anr., 2026 INSC 145 — corpus file Diary_3119-2026_Judgment.md.

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.