Section 327 CrPC vs Section 366 BNSS — Court to be Open and In-Camera Trials

In India, Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 327 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Criminal courts remain open courts, but the compulsory in-camera list now names the Bharatiya Nyaya Sanhita rape offences and adds POCSO Act Sections 4, 6, 8 and 10.

The section does three things. It makes every criminal court an open court by default (sub-section (1)). It makes the trial of rape and listed sexual offences a closed, in-camera trial by statute (sub-section (2)). And it forbids publication of anything about such an in-camera trial without the Court's previous permission (sub-section (3)).

At a glance

The section is procedural; neither First Schedule classifies it. Printing or publishing in breach of a court's control over sexual-offence proceedings is dealt with separately as an offence under Section 73 BNS — see Sections 228 and 228A IPC vs Sections 72, 73 and 267 BNS.

What changed

• Expanded — sub-section (2), new category: "or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012". Section 327(2) CrPC named no POCSO offence. In the Veritect library text of the POCSO Act, those four sections are the punishment sections for penetrative sexual assault (s.4), aggravated penetrative sexual assault (s.6), sexual assault (s.8) and aggravated sexual assault (s.10).
• Minor edit — sub-section (2), IPC references replaced: "section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB section 376E of the Indian Penal Code (45 of 1860)" → "section 64, section 65, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023". On the headings of the two Codes, these correspond: punishment for rape (376 → 64, with rape of a woman under sixteen, formerly 376(3), and rape of a woman under twelve, formerly 376AB, now in 65); death or persistent vegetative state (376A → 66); husband upon wife during separation (376B → 67); person in authority (376C → 68); gang rape (376D, 376DA, 376DB → 70); repeat offenders (376E → 71).
• Not added — Section 69 BNS (sexual intercourse by deceitful means or on a false promise to marry), a provision with no IPC counterpart, is not in the in-camera list.
• Minor edit — the list now ends "section 70 or section 71"; the official CrPC text reads "section 376DB] section 376E", with no "or".
• Identical — sub-section (1) and its proviso; both provisos to sub-section (2) (admission of "any particular person" by the presiding Judge "if he thinks fit, or on an application made by either of the parties", and "in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate"); sub-section (3) and its proviso.

History of the old section. The official CrPC text records that Section 327 was renumbered as sub-section (1), and sub-sections (2) and (3) inserted, by Act 43 of 1983; the offence list was last substituted by Act 22 of 2018 (w.e.f. 21 April 2018); and the woman-Judge proviso and the proviso allowing the publication ban to be lifted were inserted by Act 5 of 2009 (w.e.f. 31 December 2009). The same text records a Chhattisgarh amendment (Chhattisgarh Act 25 of 2015) that extended Section 327(2) in that State to sexual harassment, outraging modesty and Sections 354 to 354E and 509 to 509B IPC. The Gazette text of Section 366 carries no State amendment; whether Chhattisgarh has since amended Section 366 was not checked for this page.

Statutory text (relevant extract)

Extract — Section 366(2) BNSS (operative words):

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 64, section 65, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012 shall be conducted in camera:

Extract — Section 366(3) BNSS:

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the Court:

Extract — Section 327(2) CrPC, closing words (old):

… section 376DB] section 376E of the Indian Penal Code (45 of 1860)] shall be conducted in camera :

How it works

1. Default rule — open court (Section 366(1)). "The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence" is deemed an open court. Anyone may attend, "so far as the same can conveniently contain them". The rule covers inquiries as well as trials.
2. Discretionary closure (proviso to Section 366(1)). In any case, at any stage, the presiding Judge or Magistrate "may, if he thinks fit", exclude "the public generally, or any particular person" from "the room or building used by the Court". The section states no grounds; the judgments below describe when closure is justified.
3. Compulsory closure (Section 366(2)). For rape and the listed BNS and POCSO offences, the inquiry and trial "shall be conducted in camera". The words "Notwithstanding anything contained in sub-section (1)" displace the open-court rule without any application.
4. Admission of a particular person (first proviso to Section 366(2)). The presiding Judge may allow "any particular person" to be present — on the Judge's own view or on an application by either party.
5. Woman Judge (second proviso to Section 366(2)). The in-camera trial is to be conducted "as far as practicable" by a woman Judge or Magistrate. The Sanhita does not say what follows where that is not practicable.
6. Publication bar (Section 366(3)). No person may print or publish "any matter in relation to any such proceedings" without the Court's previous permission. In a rape case, the ban on publishing trial proceedings may be lifted, "subject to maintaining confidentiality of name and address of the parties".

Worked example. An accused is tried under Section 65(1) BNS (rape of a woman under sixteen) and, on the same facts, under Section 6 of the POCSO Act. Section 366(2) requires the whole inquiry and trial to be held in camera; the victim's parent may be admitted under the first proviso; and a newspaper wishing to report the evidence must first obtain the Court's permission under sub-section (3). A separate trial under Section 69 BNS alone would open in public unless the Magistrate or Judge orders closure under the proviso to sub-section (1).

What this means in practice

For the victim and the prosecution. In-camera trial for listed offences is not something to be applied for; sub-section (2) requires it. If a listed offence is being tried in open court, the prosecution or the victim's advocate should point the presiding officer to Section 366(2). For a trial under Section 69 BNS, or any other offence outside the list, closure needs an order under the proviso to sub-section (1).

For POCSO trials. Section 366(2) now expressly covers POCSO Sections 4, 6, 8 and 10. The POCSO Act has its own in-camera rule for trials by the Special Court (Section 37, as read in the Veritect library text: "The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence"). How the two provisions interact in a particular trial is not addressed by either text read for this page.

For the accused. Sub-section (1) remains the accused's statutory guarantee of a public hearing for every offence outside the list. Closure is an order of the presiding officer in the particular case; in Mirajkar (below) the majority upheld a High Court's inherent power to hold part of a trial in camera where the ends of justice require it.

For the media and the public. Attendance at an open court is limited by space ("so far as the same can conveniently contain them"). For an in-camera trial under sub-section (2), publication of "any matter" needs the Court's previous permission. Identity of victims is also protected by Section 72 BNS, and publication of court proceedings about those offences by Section 73 BNS — see the linked page on Sections 72 and 73 rather than this one.

Judgments that still matter

No Supreme Court judgment applying Section 366 BNSS was found in the corpus searched for this page. Sub-sections (1) and (3) and all the provisos repeat Section 327 CrPC word for word; on a reading of the text, judgments construing those words remain relevant. The POCSO additions to sub-section (2) have no counterpart in them.

Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [1966] 3 S.C.R. 744 (1966 INSC 64) — 3 March 1966. Nine Judges. A High Court Judge trying a defamation suit on the original side orally prohibited publication of a witness's evidence; journalists challenged the order under Article 32. The majority (Gajendragadkar C.J. for himself and Wanchoo, Mudholkar, Sikri and Ramaswami JJ.; with separate opinions of Sarkar, Shah and Bachawat JJ.) dismissed the petitions; Hidayatullah J. dissented. Gajendragadkar C.J. said that "Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice", but held that a High Court has inherent power to hold part of a trial in camera or to prohibit publication of part of the proceedings where the ends of justice require it (report pp. 755–760, as indexed in the headnote). The case was a civil suit; on a reading, it explains the principle that the proviso to Section 366(1) states for criminal courts.

The State of Punjab v. Gurmit Singh & Ors., [1996] 1 S.C.R. 532 (1996 INSC 75) — 16 January 1996. Dr. A.S. Anand and S. Saghir Ahmad JJ. The Court construed Section 327(2) and (3) CrPC as an exception to the general rule of an open trial, holding that sub-section (2) "casts a duty on the Court to conduct the trial of rape cases etc. invariably 'in camera'", and that "Trial of rape cases in camera should be the rule and an open trial in such cases an exception" (report pp. 555–556; the report prints no paragraph numbers). Section 366(2) BNSS keeps the same mandatory words, "shall be conducted in camera". The judgment's discussion of the victim's anonymity is covered on the Sections 72 and 73 BNS page.

Swapnil Tripathi v. Supreme Court of India, [2018] 11 S.C.R. 57 (2018 INSC 886) — 26 September 2018. Dipak Misra C.J.I., A.M. Khanwilkar and D.Y. Chandrachud JJ. The Court accepted the case for live-streaming Supreme Court proceedings, subject to rules and guidelines. Khanwilkar J. (for himself and the Chief Justice) said that "in terms of Section 327 of CrPC and Section 153-B of CPC, only court-directed matters can be heard in camera", and until such a direction the hearing "is deemed to be an open court" (para 13). Chandrachud J., concurring, said that Section 153-B CPC and Section 327 CrPC "extend the principle of open courts to all civil and criminal courts in India", subject to exceptions in the interest of fair administration of justice (para 8).

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial or inquiry pending immediately before 1 July 2024 is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a trial pending on that date remains under Section 327 CrPC, whose compulsory in-camera list names IPC Sections 376 to 376E and not the POCSO Act; the trial court may still close the court under the identical proviso to sub-section (1). See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 327 CrPC?

Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 327 of the Code of Criminal Procedure, 1973 from 1 July 2024. Sub-section (1) keeps the rule that the place where a criminal court inquires into or tries an offence is deemed an open court to which the public generally may have access, so far as it can conveniently contain them.

What changed in Section 366 BNSS?

The list of offences that must be tried in camera under sub-section (2). The IPC references (Sections 376 to 376E) are replaced by Sections 64, 65, 66, 67, 68, 70 and 71 of the Bharatiya Nyaya Sanhita, 2023, and offences under Sections 4, 6, 8 and 10 of the POCSO Act, 2012 are added. Sub-sections (1) and (3) and all the provisos are word for word the same.

Can a judge close the courtroom in an ordinary criminal case?

Yes. The proviso to Section 366(1) BNSS lets the presiding Judge or Magistrate, if he thinks fit, order at any stage of an inquiry or trial that the public generally, or any particular person, shall not have access to or remain in the courtroom. In Swapnil Tripathi v. Supreme Court of India ([2018] 11 S.C.R. 57) the Supreme Court read the same words in Section 327 CrPC to mean that only court-directed matters are heard in camera.

Is an in-camera trial compulsory in rape cases?

Yes. Section 366(2) BNSS says the inquiry into and trial of rape or an offence under Sections 64 to 68, 70 or 71 BNS, or Sections 4, 6, 8 or 10 of the POCSO Act, 'shall be conducted in camera'. The presiding Judge may allow a particular person to be present, and the trial is to be conducted, as far as practicable, by a woman Judge or Magistrate.

Is a trial under Section 69 BNS (sexual intercourse by deceitful means) held in camera?

Section 366(2) BNSS lists Sections 64, 65, 66, 67, 68, 70 and 71 BNS but not Section 69. On a reading of the text, a Section 69 trial is not automatically in camera, though the presiding Judge or Magistrate may still exclude the public under the proviso to Section 366(1).

Can the media report an in-camera trial?

Not without the Court's previous permission. Section 366(3) BNSS makes it unlawful for any person to print or publish any matter in relation to in-camera proceedings under sub-section (2) except with the previous permission of the Court. The ban on publishing trial proceedings in a rape case may be lifted, subject to keeping the names and addresses of the parties confidential.

Does a victim have to ask for an in-camera trial?

No. Sub-section (2) of Section 366 BNSS is mandatory for the offences it lists. In State of Punjab v. Gurmit Singh ([1996] 1 S.C.R. 532) the Supreme Court said the identical words in Section 327(2) CrPC cast a duty on the Court to conduct rape trials invariably in camera, and that in-camera trial should be the rule.

Which provision applies to a trial pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial pending immediately before 1 July 2024 continues under the CrPC as if the BNSS had not come into force. On a reading of that text, such a trial remains under Section 327 CrPC, whose in-camera list names the IPC rape offences and not the POCSO Act.

Related

• Sections 228 and 228A IPC vs Sections 72, 73 and 267 BNS — judicial proceedings and victim identity
• Sexual offences — IPC vs BNS
• Medical examination of a rape victim — CrPC 164A vs BNSS
• Witness and accused by video conferencing — BNSS vs CrPC
• Victim rights and compensation
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text): Sections 366, 531(2)(a).
• Bharatiya Nyaya Sanhita, 2023 (Gazette of India text): Sections 64 to 71.
• Code of Criminal Procedure, 1973 (original India Code text, with footnotes and the Chhattisgarh amendment): Section 327.
• Indian Penal Code, 1860 (original India Code text): headings of Sections 376 to 376E.
• Protection of Children from Sexual Offences Act, 2012 (Veritect Bare Act library): headings of Sections 3 to 10; Section 37.
• Judgments read (Supreme Court judgment text): Naresh Shridhar Mirajkar (1966_3_744_810_EN.md); Gurmit Singh (1996_1_532_556_EN.md); Swapnil Tripathi (2018_11_57_140_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.