Sections 238–250 CrPC vs Sections 261–273 BNSS — Trial of Warrant-Cases by Magistrates

In India, Sections 261 to 273 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 238 to 250 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Magistrates still try warrant-cases in two tracks, but the BNSS adds sixty-day limits for discharge and charge, video examination of witnesses, and a power to close unavailable prosecution evidence.

A warrant-case is one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years (Section 2(1)(z) BNSS, formerly Section 2(x) CrPC). Chapter XX of the BNSS (Chapter XIX of the CrPC) is in three parts: A, cases instituted on a police report (Sections 261–266); B, cases instituted otherwise than on a police report (Sections 267–270); and C, conclusion of trial (Sections 271–273). Each old number moves 23 places up.

At a glance

These are procedural sections, so neither First Schedule classifies them. Whether an offence is a warrant-case, and which Magistrate may try it, follows from the punishment and the "triable by" column of the First Schedule.

What changed

Substantive changes

• Section 239 → Section 262 — Modified. New sub-section (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." Sub-section (2): the police report is now sent "under section 193" (was "section 173"), and the Magistrate's examination of the accused may be "either physically or through audio-video electronic means". Full treatment: Sections 227 and 239 CrPC — Discharge.
• Section 240 → Section 263 — Modified. Sub-section (1) ends "he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge" (words after "accused" are new).
• Section 246 → Section 269 — Expanded. Sub-sections (1) to (6) are unchanged. A new sub-section (7) lets the Magistrate close the prosecution evidence where witnesses cannot be secured for cross-examination (extract below).
• Section 242 → Section 265 — Expanded. Sub-section (1): "section 241" → "section 264". A second proviso to sub-section (3): "the examination of a witness under this sub-section may be done by audio-video electronic means at the designated place to be notified by the State Government". The first proviso to sub-section (1), on advance supply of witness statements (inserted in the CrPC by Act 5 of 2009, w.e.f. 31-12-2009), is retained.
• Section 243 → Section 266 — Expanded. The same audio-video second proviso is added to sub-section (2); the comma after "Provided that" in the first proviso is dropped.
• Section 249 → Section 272 — Modified. "the Magistrate may, in his discretion" → "the Magistrate may after giving thirty days' time to the complainant to be present, in his discretion".
• Section 250 → Section 273 — Modified. Sub-section (6): appeal by a complainant or informant ordered by a second-class Magistrate to pay compensation "exceeding one hundred rupees" → "exceeding two thousand rupees". Sub-section (4): "sections 68 and 69 of the Indian Penal Code (45 of 1860)" → "sub-section (6) of section 8 of the Bharatiya Nyaya Sanhita, 2023".

Drafting changes and unchanged sections

• Section 238 → 261 — Minor edit. "section 207" → "section 230", in the heading and text.
• Section 241 → 264 — Identical.
• Section 244 → 267 — Identical.
• Section 245 → 268 — Minor edit. "section 244" → "section 267". Covered on the discharge page.
• Section 247 → 270 — Minor edit. "section 243" → "section 266".
• Section 248 → 271 — Minor edit. Sub-section (2): "section 325 or section 360" → "section 364 or section 401"; sub-section (3): "sub-section (7) of section 211" → "sub-section (7) of section 234".

The CrPC text carried a Chhattisgarh amendment to Section 240(2) and a West Bengal amendment inserting Section 245(3), which required discharge if the prosecution evidence was not produced within four years of the accused's appearance, subject to exceptions. The BNSS as enacted reproduces neither; whether any State has amended the BNSS sections was not checked.

Statutory text (relevant extract)

Extract — Section 269(7) BNSS (new):

(7) Where, despite giving opportunity to the prosecution and after taking all reasonable measures under this Sanhita, if the attendance of the prosecution witnesses under sub-sections (5) and (6) cannot be secured for cross-examination, it shall be deemed that such witness has not been examined for not being available, and the Magistrate may close the prosecution evidence for reasons to be recorded in writing and proceed with the case on the basis of the materials on record.

Extract — Section 272 BNSS (words added to Section 249 CrPC in italics):

… the Magistrate may after giving thirty days' time to the complainant to be present, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

How it works

A. Cases instituted on a police report (Sections 261–266)

1. Documents (Section 261). At the start of the trial the Magistrate satisfies himself that he has complied with Section 230, which requires copies of the police report and other documents to be furnished "in no case beyond fourteen days from the date of production or appearance of the accused".
2. Discharge or charge (Sections 262–263). The accused may apply for discharge within sixty days of the supply of documents. The Magistrate considers the police report and documents sent under Section 193, examines the accused if necessary, hears both sides, and discharges if the charge is "groundless". Otherwise, if the offence is one he is competent to try and "could be adequately punished by him", he frames a written charge within sixty days of the first hearing on charge, reads and explains it, and asks for a plea.
3. Plea (Section 264). On a guilty plea the Magistrate records it and "may, in his discretion, convict him thereon".
4. Prosecution evidence (Section 265). The Magistrate fixes a date, supplies the accused in advance with the statements of witnesses recorded by the police, may summon prosecution witnesses, and takes the evidence. Cross-examination may be deferred or a witness recalled; examination may be by audio-video means at a place notified by the State Government.
5. Defence evidence (Section 266). The accused enters on his defence. Process for defence witnesses or documents must issue unless refused, on grounds recorded in writing, as sought "for the purpose of vexation or delay or for defeating the ends of justice". A witness the accused already had the opportunity to cross-examine is not compelled to attend again "unless the Magistrate is satisfied that it is necessary for the ends of justice". The Magistrate may require the witness's reasonable expenses to be deposited (Section 266(3)).

B. Cases instituted otherwise than on a police report (Sections 267–270)

1. Pre-charge evidence (Section 267). The Magistrate hears the prosecution and takes "all such evidence as may be produced in support of the prosecution", and may summon its witnesses.
2. Discharge (Section 268). If no case is made out "which, if unrebutted, would warrant his conviction", the accused is discharged, for recorded reasons; he may be discharged earlier if the charge is "groundless".
3. Charge and cross-examination (Section 269). If there is ground for presuming an offence the Magistrate can try and adequately punish, he frames a written charge and asks whether the accused "pleads guilty or has any defence to make". If the accused claims trial, he states, at the next hearing or forthwith, which prosecution witnesses he wishes to cross-examine; they are recalled, cross-examined and re-examined, and the remaining prosecution evidence is then taken (sub-sections (4) to (6)). Where witnesses cannot be secured despite all reasonable measures, sub-section (7) lets the Magistrate close the prosecution evidence and proceed on the record.
4. Defence (Section 270). The accused enters on his defence, and Section 266 applies.

C. Conclusion of trial (Sections 271–273)

• Section 271: acquittal, or, on a finding of guilt, a hearing on sentence and sentence — unless the Magistrate forwards the case under Section 364 (sentence beyond his powers) or releases the accused under Section 401 (probation or admonition). A disputed previous conviction is proved only after conviction.
• Section 272: in a complaint case, if the complainant is absent on a hearing date and the offence is compoundable or non-cognizable, the Magistrate may, after giving him thirty days' time to be present, discharge the accused at any time before charge.
• Section 273: where a case on complaint or information ends in discharge or acquittal and the Magistrate finds "no reasonable ground" for the accusation, he may call on the complainant or informant to show cause and order compensation "not exceeding the amount of fine he is empowered to impose", with simple imprisonment of up to thirty days in default. Payment waits for the appeal period (or one month where no appeal lies). The section applies to summons-cases as well (Section 273(8)).

What this means in practice

• For the accused (police-report cases): Count sixty days from the supply of copies under Section 230 to file a discharge application (Section 262(1)). Once charged, you are entitled to the police statements of prosecution witnesses in advance (Section 265(1), first proviso).
• For the accused (complaint cases): Cross-examine at the pre-charge stage under Section 267 (see Harinarayan G. Bajaj below). After charge, you must name the witnesses you wish to recall at the next hearing (Section 269(4)). Because Section 269(7) lets the Magistrate close the prosecution evidence where those witnesses cannot be secured, on a reading of the text the prosecution's inability to produce them no longer holds the trial open indefinitely.
• For the complainant: Your absence before charge can end the case under Section 272 if the offence is compoundable or non-cognizable, though only after you have been given thirty days' time to appear. An accusation found to lack reasonable ground can lead to a compensation order under Section 273.
• For the defence advocate seeking evidence: A request for process under Section 266(2), such as sending a disputed document to an expert, must be granted unless the Magistrate records that it is for vexation, delay or defeating justice (see T. Nagappa below).
• For the Magistrate's diary: Sixty days from the first hearing on charge to frame it (Section 263(1)); on a reading of the text, Sections 262 and 263 do not state the consequence if a period is missed.

Judgments that still matter

Harinarayan G. Bajaj v. State of Maharashtra & Ors., [2010] 1 S.C.R. 171 (2010 INSC 15) (Supreme Court, 6 January 2010; V.S. Sirpurkar and Mukundakam Sharma JJ.; judgment by V.S. Sirpurkar J.). A company was added as an accused under Section 319 CrPC in a complaint case after charges had been framed against the original accused. The Court held that the "proceedings" to be commenced afresh under Section 319(4) include the inquiry which begins with Section 244 and ends with framing of the charge under Section 246 (para 12). It reaffirmed that cross-examining witnesses examined before charge is "a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him" (para 16), and held that under Section 244 the accused has a right to cross-examine those witnesses (para 17). The complainant's appeal was dismissed (para 24). Sections 267 and 269(1) BNSS repeat Sections 244 and 246(1), and Section 358(4)(a) BNSS provides that the proceedings against an added accused "shall be commenced afresh, and the witnesses re-heard", so on a reading of the text the ruling bears on the new sections.

T. Nagappa v. Y.R. Muralidhar, [2008] 6 S.C.R. 959 (Supreme Court, 24 April 2008; S.B. Sinha and Lokeshwar Singh Panta JJ.; judgment by S.B. Sinha J.). In a cheque-dishonour prosecution under Section 138 of the Negotiable Instruments Act, 1881, the accused applied to have the cheque examined by the Forensic Science Laboratory to determine the age of his signature; the Magistrate and the High Court refused. The Court held that the right to defend oneself and to adduce evidence "is recognized by the Parliament in terms of sub-section (2) of Section 243" (para 7), and that while the court must decide whether such an application is bona fide, "ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc." (para 8). It found the application bona fide, limited the expert reference to one framed question (para 10), and allowed the appeal (para 12). Section 266(2) BNSS repeats Section 243(2) save for the added audio-video proviso and a dropped comma.

Santa Singh v. State of Punjab, [1977] 1 S.C.R. 229 (Supreme Court, 17 August 1976; P.N. Bhagwati and S. Murtaza Fazal Ali JJ.). The case concerned a Sessions trial under Section 235(2) CrPC, but Fazal Ali J. read the 1973 Code as splitting "the sessions trial or the warrant trial, where also a similar provision exists" into a conviction stage and a sentencing stage (report page 239). Section 248(2) CrPC is that warrant-trial provision; its successor, Section 271(2) BNSS, still requires the Magistrate to hear the accused "on the question of sentence" before passing sentence. The facts and outcome are on the Sessions trial page.

No Supreme Court judgment construing Sections 269(7), 272 or 273 BNSS was found and read for this page.

Which law applies to your case

Section 531(2)(a) BNSS provides that a trial 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 text, a warrant trial pending on that date continues under Sections 238 to 250 CrPC. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Which BNSS sections replace Sections 238 to 250 CrPC?

Sections 261 to 273 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replace Sections 238 to 250 CrPC in the same order, each old number plus 23: Section 239 is now 262, Section 246 is now 269 and Section 250 is now 273. They form Chapter XX of the BNSS, 'Trial of warrant-cases by Magistrates', and apply from 1 July 2024.

What is a warrant-case?

Section 2(1)(z) BNSS, repeating Section 2(x) CrPC, defines a warrant-case as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Chapter XX sets out how a Magistrate tries such a case, with separate procedures for cases instituted on a police report (Sections 261 to 266) and otherwise (Sections 267 to 270).

What is new in Section 269(7) BNSS?

Section 269(7) BNSS applies in warrant-cases instituted otherwise than on a police report. Where, despite opportunity and all reasonable measures, prosecution witnesses cannot be secured for cross-examination after the charge, the witness is deemed not examined 'for not being available', and the Magistrate may close the prosecution evidence for recorded reasons and proceed on the materials on record. Section 246 CrPC had no such provision.

Can a Magistrate discharge the accused if the complainant does not appear?

Yes, under Section 272 BNSS, in a case instituted on complaint, where the offence may be lawfully compounded or is not cognizable, and at any time before the charge is framed. The Magistrate must now first give 'thirty days' time to the complainant to be present'; Section 249 CrPC contained no such period.

Can an accused person be compensated for a false complaint in a warrant-case?

Yes. Under Section 273 BNSS, formerly Section 250 CrPC, a Magistrate who discharges or acquits the accused and finds no reasonable ground for the accusation may, after hearing the complainant or informant, order compensation up to the amount of fine the Magistrate can impose, with simple imprisonment of up to thirty days in default. The section also applies to summons-cases (Section 273(8)).

Can witnesses in a Magistrate's warrant trial be examined by video?

Yes. New second provisos to Sections 265(3) and 266(2) BNSS allow the examination of prosecution and defence witnesses by audio-video electronic means 'at the designated place to be notified by the State Government'. Under Section 262(2), the Magistrate's examination of the accused at the discharge stage may also be physical or through audio-video electronic means.

Does the accused have a right to cross-examine witnesses before charge in a complaint case?

In a warrant-case instituted otherwise than on a police report, the Magistrate first takes the prosecution's evidence under Section 267 BNSS (formerly Section 244 CrPC). In Harinarayan G. Bajaj v. State of Maharashtra ([2010] 1 S.C.R. 171) the Supreme Court held that the accused has a right to cross-examine witnesses at that pre-charge stage (para 17).

Which Code governs a warrant trial that was pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial pending immediately before 1 July 2024 is to be continued in accordance with the CrPC as if the BNSS had not come into force. On a reading of that text, such a trial continues under Sections 238 to 250 CrPC, which contain no sixty-day charge limit and no power like Section 269(7) BNSS.

Related

• Sections 227 and 239 CrPC vs Sections 250 and 262 BNSS — Discharge
• Section 207 CrPC — Supply of documents to the accused
• Sections 225–237 CrPC vs Sections 248–260 BNSS — Trial before a Court of Session
• Sections 251–259 CrPC — Trial of summons-cases
• Section 319 CrPC — Summoning additional accused
• Discharge application and charge-framing deadlines
• CrPC to BNSS master comparison table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text): Sections 2(1)(z), 193, 230, 261–273, 358, 364, 401, 531.
• Bharatiya Nyaya Sanhita, 2023 (official text): Section 8(6).
• Code of Criminal Procedure, 1973 (original India Code text, with footnotes and State amendments): Sections 2(x), 173, 207, 238–250, 319, 325, 360.
• Harinarayan G. Bajaj v. State of Maharashtra & Ors. — judgment_md 2010_1_171_184_EN.md; report PDF.
• T. Nagappa v. Y.R. Muralidhar — judgment_md 2008_6_959_966_EN.md; report PDF.
• Santa Singh v. State of Punjab — judgment_md 1977_1_229_241_EN.md; report PDF.

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.