Sections 227 and 239 CrPC vs Sections 250 and 262 BNSS — Discharge

In India, Sections 250 and 262 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the discharge provisions in Sections 227 and 239 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The test is unchanged, but each now opens with a sixty-day window for the accused's discharge application.

At a glance

Discharge is a procedural stage with no punishment or First Schedule entry. Whether a case goes to the Court of Session or stays with a Magistrate depends on the First Schedule classification of the offence.

What changed

• New — Section 250(1): "The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232." Section 227 CrPC had no time limit.
• Identical — Section 250(2): every word of Section 227 CrPC is repeated, from "If, upon consideration of the record of the case" to "record his reasons for so doing".
• New — Section 262(1): "The accused may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under section 230." Section 239 CrPC had no time limit.
• Expanded — Section 262(2): "the documents sent with it under section 173" becomes "under section 193" (a minor edit); and after "such examination, if any, of the accused" the words "either physically or through audio-video electronic means," are added. The rest of Section 239 is repeated.
• Minor edit — Section 268 (formerly Section 245): "all the evidence referred to in section 244" becomes "section 267". Sub-section (2) is identical.
• Related time limits (neighbours): Section 230 BNSS requires the Magistrate to supply the police report and documents "without delay, and in no case beyond fourteen days from the date of production or appearance of the accused"; the proviso to Section 232 requires committal proceedings to be completed within ninety days from the date of taking cognizance, and the Magistrate may extend that period "for a period not exceeding one hundred and eighty days" for reasons recorded in writing; Sections 251(1)(b) and 263(1) require the charge to be framed "within a period of sixty days from the date of first hearing on charge".
• State amendments not carried over: the CrPC text as printed carries a West Bengal amendment inserting a sub-section (3) in Section 245 (discharge if the prosecution evidence is not produced within four years of the accused's appearance, unless the prosecution shows special reasons; West Bengal Act 24 of 1988). Section 268 BNSS as enacted has no such sub-section.

Statutory text (relevant extract)

Extract, Section 239 CrPC (repealed from 1 July 2024):

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Extract, Section 250 BNSS:

(1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.

(2) If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

How it works — the steps

Sessions trial (Sections 232, 250, 251 BNSS)

1. The Magistrate supplies documents (Section 230, or Section 231 in a case not on a police report) and commits the case (Section 232), within ninety days of cognizance unless extended.
2. The accused may apply for discharge within sixty days of commitment (Section 250(1)).
3. The Judge considers "the record of the case and the documents submitted therewith" and hears the accused and the prosecution (Section 250(2)).
4. If there is not sufficient ground to proceed, the Judge discharges and records reasons. Otherwise the Judge frames the charge under Section 251 — within sixty days of the first hearing on charge where the offence is exclusively triable by the Court of Session — and reads and explains it to the accused, who may be present physically or through audio-video electronic means (Section 251(2)).

Magistrate's warrant case on a police report (Sections 230, 262, 263 BNSS)

1. Copies of the police report and documents are supplied within fourteen days (Section 230).
2. The accused may apply for discharge within sixty days of that supply (Section 262(1)).
3. The Magistrate considers the police report and the documents sent with it under Section 193, may examine the accused physically or by audio-video means, and hears both sides (Section 262(2)).
4. If the charge is groundless, the Magistrate discharges and records reasons; otherwise he frames the charge within sixty days of the first hearing on charge (Section 263(1)).

Warrant case not on a police report (Sections 267, 268 BNSS) — the Magistrate first takes the prosecution evidence (Section 267), then discharges if no case is made out which, if unrebutted, would warrant conviction (Section 268(1)); he may also discharge at any previous stage if the charge is groundless (Section 268(2)).

What this means in practice

For the accused and defence advocate

• Diary the sixty days: from the date of commitment in a Sessions case, from the date of supply of documents in a Magistrate's case on a police report. The sections do not state what follows a later application (see the FAQ); filing within the window avoids the question.
• Argue discharge on the prosecution's own record. Padhi (2004) and Eluri (2025) hold that the court cannot act on material produced by the accused at this stage; the remedy suggested in Padhi for unimpeachable defence material is the High Court's inherent power (now Section 528 BNSS).
• If discharge is refused and the charge framed, a fresh "discharge" application dressed as a request to alter the charge will not lie (K. Ravi, 2024). The court's power to alter a charge is now Section 239 BNSS.

For the prosecutor

• Ensure the police report and every document relied on are before the court and supplied within fourteen days; the discharge hearing is confined to them.
• In complaint-based warrant cases, lead the pre-charge evidence under Section 267 before any charge is framed (Ajoy Kumar Ghose, 2009).

For the court

• Record reasons for discharge in every case (both sub-sections (2) require it). Eluri notes that an order of discharge "must speak for itself" because it is open to revision (para 26.3).

Judgments that still matter

Union of India v. Prafulla Kumar Samal, [1979] 2 S.C.R. 229 (1978 INSC 223) — 6 November 1978. S. Murtaza Fazal Ali and D.A. Desai JJ. upheld a Special Judge's discharge of a Land Acquisition Officer and a claimant under Section 227. The Court set out principles: the Judge may sift and weigh the evidence for the limited purpose of finding out whether a prima facie case is made out; "grave suspicion" not properly explained justifies framing a charge; and if two views are equally possible and the evidence gives rise to "some suspicion but not grave suspicion", the Judge may discharge. The Judge should not make "a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial". The report has no paragraph numbers. Section 250(2) BNSS repeats the words these principles construe.

State of Orissa v. Debendra Nath Padhi, Supreme Court, 29 November 2004. A three-Judge Bench (Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee JJ.; judgment by Sabharwal J.) held that "No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge", and that hearing the accused under Section 227 "has to be confined to the material produced by the police". It held that Satish Mehra v. Delhi Administration, which allowed the trial court to consider material produced by the accused, "has not been correctly decided". The text read has no paragraph numbers.

Ajoy Kumar Ghose v. State of Jharkhand, Supreme Court, 18 March 2009. In a judgment by V.S. Sirpurkar J., the Court contrasted Sections 238-239 (warrant case on a police report, where the prosecution leads evidence only after charge) with Sections 244-245 (warrant case otherwise than on a police report, where the complainant leads evidence before charge and again after it) (paras 13-14). Under Section 245(1) the Magistrate considers the evidence taken; under Section 245(2) he may discharge at an earlier stage only on finding the charge groundless (paras 16-17). A charge framed without first taking the Section 244 evidence was quashed as premature (para 27). Sections 262 and 268 BNSS preserve the same two tracks.

K. Ravi v. State of Tamil Nadu, [2024] 8 S.C.R. 700 (2024 INSC 642) — 29 August 2024. Bela M. Trivedi and Satish Chandra Sharma JJ. held that Section 216 CrPC "does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed" (para 11), and that an order refusing to modify a charge is interlocutory and barred from revision by Section 397(2) (para 8). The High Court's order was set aside with costs (para 13).

State (CBI) v. Eluri Srinivasa Chakravarthi, [2025] 5 S.C.R. 988 (2025 INSC 758) — 22 May 2025. Pankaj Mithal and S.V.N. Bhatti JJ. set aside a discharge under Section 239 that rested on two letters summoned at the accused's instance. Following Padhi, the Court held that Section 239 confines the examination to the final report and the documents sent with it under Section 173 (para 26.1), that the Magistrate "neither acts as a post office nor conducts a mini-trial" (para 26.2), and that considering "material invited at the instance of the defence" was a path unavailable to the court (para 27). Section 262(2) BNSS keeps these words, with Section 193 in place of Section 173.

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial, inquiry or application pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force"; on a reading of that text, discharge in such a case is under Section 227, 239 or 245 CrPC, which carry no sixty-day window. On the same reading, Sections 250 and 262 BNSS govern cases instituted on or after that date. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What are the BNSS equivalents of Sections 227 and 239 CrPC? Section 250 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 227 CrPC (discharge in a Sessions trial), and Section 262 BNSS replaces Section 239 CrPC (discharge in a Magistrate's warrant case instituted on a police report). Both came into force on 1 July 2024, and each adds a new sub-section (1) on the time for applying for discharge.

What is the time limit for filing a discharge application under the BNSS? Under Section 250(1) BNSS, the accused may apply for discharge within sixty days from the date the case is committed to the Court of Session under Section 232. Under Section 262(1), in a warrant case on a police report, the period is sixty days from the date copies of documents are supplied under Section 230. The CrPC had no such provision.

What happens if the discharge application is filed after sixty days? Sections 250(1) and 262(1) BNSS say the accused 'may prefer an application' within sixty days but do not state the consequence of a later application, and the page records no Supreme Court ruling on the point. Separately, Section 250(2) and Section 262(2) still require the Judge or Magistrate to discharge the accused where the ground is insufficient or the charge groundless.

Has the test for discharge changed under the BNSS? No. Section 250(2) BNSS repeats Section 227 CrPC word for word: the Judge discharges if there is 'not sufficient ground for proceeding against the accused'. Section 262(2) repeats Section 239 CrPC: the Magistrate discharges if he considers the charge 'groundless'. Both must record reasons.

Can the accused produce his own documents to seek discharge? In State of Orissa v. Debendra Nath Padhi (29 November 2004) the Supreme Court held that the accused has no right to produce material at the stage of framing charge, and that hearing the accused under Section 227 is confined to the material produced by the police. In State (CBI) v. Eluri Srinivasa Chakravarthi (2025 INSC 758) a discharge under Section 239 based on documents summoned at the accused's instance was set aside.

Can the Magistrate examine the accused by video before discharging him? Yes. Section 262(2) BNSS allows the Magistrate, when considering discharge in a warrant case on a police report, to make such examination of the accused as he thinks necessary 'either physically or through audio-video electronic means'. Section 239 CrPC did not mention audio-video means. Section 250 BNSS, for Sessions trials, has no examination of the accused at this stage.

What is the difference between Section 262 and Section 268 BNSS? Section 262 BNSS applies to warrant cases instituted on a police report and turns on the police report and documents. Section 268 BNSS (formerly Section 245 CrPC) applies to warrant cases instituted otherwise than on a police report: the Magistrate first takes the prosecution evidence under Section 267 and discharges if no case is made out which, if unrebutted, would warrant conviction, or earlier if the charge is groundless.

Which provision applies to a case pending on 1 July 2024? Section 531(2)(a) BNSS provides that a trial or inquiry pending immediately before 1 July 2024 continues under the Code of Criminal Procedure as if the BNSS had not come into force. On a reading of that text, discharge in such a case is under Section 227 or 239 CrPC, which have no sixty-day window.

Related

• Seeking discharge or facing charges? Deadlines under BNSS 250-263
• Section 173 CrPC vs Section 193 BNSS — police report (chargesheet)
• Section 482 CrPC vs Section 528 BNSS — inherent powers of the High Court
• Section 319 CrPC vs Section 358 BNSS — summoning additional accused
• Timelines for investigation and trial
• CrPC to BNSS master table
• Section 309 CrPC vs Section 346 BNSS — Adjournments and Day-to-Day Trial
• Sections 225–237 CrPC vs Sections 248–260 BNSS — Trial Before a Court of Session
• Sections 238–250 CrPC vs Sections 261–273 BNSS — Trial of Warrant-Cases by Magistrates
• Sections 218–224 CrPC vs Sections 241–247 BNSS — Joinder of Charges

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 230, 232, 250, 251, 262, 263, 267, 268 and 531; headings of Sections 193 and 239.
• Code of Criminal Procedure, 1973 (India Code text): Sections 227, 228, 239, 240 and 245, with the State amendments printed under Sections 228, 240 and 245.
• Judgments read in full text: Union of India v. Prafulla Kumar Samal (1979_2_229_240_EN.md); State of Orissa v. Debendra Nath Padhi (Diary_20164-2000_Judgment.md); Ajoy Kumar Ghose v. State of Jharkhand (Diary_23384-2006_Judgment.md); K. Ravi v. State of Tamil Nadu (2024_8_700_708_EN.md); State (CBI) v. Eluri Srinivasa Chakravarthi (2025_5_988_1006_EN.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.