BNSS

Internal Notes

Q.1 Define Bailable Offence and Non-Bailable Offence ?

Ans: Article 21 of the Indian Constitution grants the right to life and personal liberty to every
individual. It upholds the fundamental right to live with dignity and personal freedom, which
includes the entitlement to seek bail when detained by any law enforcement agency. In India,
bail is the legal mechanism that reconciles the accused person’s right to freedom with the
public interest of ensuring their appearance in court for trial. It involves the judicial release of
an accused person from custody, subject to the condition that they will appear in court at a
later stage. Criminal offenses in India are categorized as bailable and non-bailable crimes.

The provisions and regulations pertaining to bail are outlined in the Bhartiya Nagarik
Suraksha Sanhita 2023, specifically from Section 478 to 496. Section 478 stipulates that a
person accused of a bailable offense has the right to be released on bail at any stage of the
legal proceedings. This means that even if a person is arrested for a bailable offense, they can
be promptly granted bail. It is the accused person’s right to obtain bail under this section, and
neither the court nor the investigating officer can refuse it.

Section 480 defines the non-bailable offences, bail can be granted at the discretion of the
Court on the conditions given under this section. It refers to a Court other than a High Court
or Court of Sessions. In a case, it was held that it is on the court to grant bail under Section
480 and it cannot be arbitrary, or vague. In other words, the discretion to grant bail should
always be exercised by the court judicially and not according to whim, caprice, or fancy.

Offence is any type of illegal activity which is punishable under a particular law, There are
different types of offences and it depends on the nature of offence to include any particular
type of penalty. In India, offences are classified into two categories: bailable and non-
bailable offences.

The classification is based on whether the accused is entitled to bail as a matter of right or
whether the bail is a matter of discretion of the court. Section 2(c) of the Bhartiya Nagarik
Suraksha Sanhita, 2023. defines bailable offences as those offences where bail can be granted
as a matter of right and non-bailable offences as those offences where bail is not a matter of
right, but is subject to the discretion of the court.
Bailable offences

Bailable offences are relatively less serious offences and are punishable with imprisonment
for a term of less than three years or with a fine only. Some examples of bailable offences are
theft, causing hurt, mischief, defamation, and simple assault. Section 478 of the BNSS lays
down the provisions for bail in bailable offences, which states that an accused person arrested
or detained for a bailable offence shall be released on bail if he or she furnishes a bail bond
with or without sureties.

Any accused person arrested for a bailable offence willing to provide bail must be released.
The only discretion available with the police is to release the accused either on a personal
bond or with sureties. In cases where the accused is unable to provide bail, the police officer
must produce the accused person before the Magistrate within 24 hours of arrest as specified
under Sec 57 of BNSS. Subsequently, when the person accused of an offense is produced
before a Magistrate and is willing to furnish bail, then the Magistrate must release the
accused person and the only discretion available is to release either on personal bond or a
bond with sureties.

However, in certain cases, the court may deny bail even in bailable offences. For instance, if
the accused has a prior history of committing similar offences, the court may deny bail, as he
or she may be likely to commit the offence again. Bailable offences are those offences where
bail is a matter of right. However, the person may still be required to furnish bail bonds to
ensure his presence at the trial.

Non-bailable Offence

Non-bailable offences, as the name suggests, are those offences where bail is not a matter of
right. In such cases, the accused has to approach the court for bail and is required to furnish
reasons and provide sureties before the court considers the bail application.

Non-bailable offences are more serious in nature and are punishable with imprisonment for
three years or more. Some examples of non-bailable offences are murder, rape, dacoity, and
kidnapping. Section 480 of the BNSS lays down the provisions for bail in non-bailable
offences, which states that an accused person arrested or detained for a non-bailable offence
shall not be released on bail unless the court is satisfied that there are reasonable grounds for
granting bail.
While granting bail in case of non-bailable offences, some factors must be taken into
consideration. whether there are chances of absconding of the accused or attempt to tamper
with the evidence, if they were released on bail and Medical needs, nature of the offence,
criminal records of an arrested person, evidence in support of the prosecution case, age of the
arrested person at the time of arrest, severity of punishment for example punishment for life
imprisonment or death penalty etc.

In the case Nethra vs. State of Karnataka (2022), the High Court held that bail to a female
applicant may be granted for a non-bailable offence even though the offence is punishable
with life imprisonment or the death penalty.

Person detained on suspicion of committing a non-bailable offense, the grant of bail is

discretionary, and it can be availed only if a strong case is presented. However, bail for non-
bailable offenses can be granted based on specific grounds, including:

 If the accused is below or at 16 years of age.

 If the accused is a woman.

 If the accused is ill or infirm.

 For habitual offenders, bail is granted only under special circumstances.

Section 480 of the BNSS applies to bail petitions submitted in magistrate’s courts. The
decision to grant or reject regular bail is based on judicial discretion governed by the
regulations outlined in Section 480 of the BNSS. On the other hand, Section 483 applies to
bail applications submitted in Courts of Sessions or High Courts.

Bail is not a right for non-bailable offences. There are provisions of the Code, namely
Sections 480 and 482, that merely provide the grounds under which the court or the police
“may” grant bail. By ensuring that for comparatively less serious offences, bail is granted as a
right and for more serious offences, bail is a matter of discretion, the BNSS strikes a balance
between the protection of safety and the interests of the public and the individual liberty of
persons accused of offences. While granting bail for non-bailable offences, the court looks
into a number of factors to ensure that such a grant of bail will not impact the service of
justice. Moreover, the Code also permits the attachment of conditions along with bail, and on
the breach of any such condition, the bail is revoked.
Q.2 Define Cognizable Offence and Non-Cognizable Offence?
Ans: The Bhartiya Nyaya Sanhita 2023 is the official criminal code of India. It covers all the
substantive aspects of criminal law. All the acts that amount to crime are defined in it. Based
on the nature and gravity of offences, they can be classified into 3 types. These are bailable
and non-bailable offences, cognizable and non-cognizable offences, and compoundable and
non-compoundable offences.

Cognizable Offence

The punishment for each offence depends on the seriousness of the crime. Offences that are
punishable with not less than 3 years of imprisonment are serious offences and are considered
cognizable. The Bhartiya Nagarik Suraksha Sanhita 2023, states that an offence that is
punishable with death, imprisonment for life, or imprisonment for more than 3 years shall be
cognizable.

Section 2(1)(g) of BNSS defines Cognizable Offence in which police officer in accordance
with schedule 1 of BNSS can arrest the suspect without warrant.

Cognizable offences are those in which the police can arrest the suspect without a warrant.
The police can also begin an investigation without the permission of the court. The accused is
arrested and produced before the court at the stipulated time.

According to Section 173 of the BNSS, a police officer is required to register an FIR in case
of a cognizable offence.

Murder, rape, theft, kidnapping, dowry death, etc. are some of the examples of cognizable
offences. These offences are both bailable, and non-bailable.

Non-Cognizable Offence

An offence that is less serious in nature is considered non-cognizable. Section 2(l)(o) of the
BNSS defines non-cognizable offences as those in which the police have no authority to
arrest without a warrant. These are mentioned in the first schedule of the BNS and are
bailable. In these offences, the police cannot arrest the accused without an arrest warrant and
cannot start an investigation without the permission of the court. Non-serious crimes such as
assault, cheating, forgery, defamation, public nuisance, etc. are non-cognizable offences.
As per Section 174 of BNSS, if a police officer receives information about a non-cognizable
crime, he is supposed to enter the case in the station diary and refer the informant to the
magistrate. Only after receiving permission from the magistrate, the police can start
investigating the matter. After concluding its investigation, a charge sheet is filed with the
court, which is then followed by a trial. If a case has been made out, the court then issues a
final order of arrest.

In cognizable offence

Section 175 of BNSS confers power upon the police to deal with cognizable offences.

 When an FIR is filed at the police station and the offence is a cognizable one, the
police can initiate arrest without waiting for an arrest warrant from the court.

 Investigation can be started as soon as the arrest is made and the investigation is
limited to the local jurisdiction of that police station.

 The police are bound to register an FIR if the information discloses a cognizable
offence. If the place of crime is outside the jurisdiction of the police station, the police
officer cannot refuse to register the report and should forward it to the police station
that has jurisdiction.

In non-cognizable offence

Section 174 of the BNSS provides the procedure that the police have to follow while dealing
with non-cognizable offences.

 In these cases, the police cannot arrest anyone without an arrest warrant and initiate
an investigation on their own without the consent of the magistrate.
 The police officer has to get the order from the magistrate under Section 174(2) of the
BNSS.
 The police officer has to record the complaint filed and ask the complainant to
approach the magistrate having jurisdiction. After receiving permission from the
magistrate, the investigation can begin.

Cognizable Offence Non-Cognizable Offence

Can be registered and investigated by the Requires a warrant from the court to be
police without a warrant registered and investigated
Serious in nature, often involving grave Relatively less serious offences
offences

Police have the power of arrest without a Police cannot arrest without a warrant; a
warrant court's permission is required

Examples include murder, rape, kidnapping Examples include defamation, public

nuisance

Court's permission is not required for Court's permission is necessary for

investigation or arrest investigation and arrest

No provision for compromise between Parties involved can settle the matter through
parties involved compromise

Substantial police involvement in the Limited police involvement; often rely on

investigation complainant's cooperation

Swift action can be taken by the police to Investigation can be delayed as court
prevent further harm intervention is necessary

Usually non-bailable offences, requiring Can be either bailable or non-bailable,

judicial determination for bail depending on the specific offence

The accused may be remanded into police The accused is not remanded into police
custody for investigation custody; court handles the custody

Case Law
Lalita Kumari v. State of U.P.& Ors (2013)
Facts of the case
 The petitioner had filed a report before the officer-in-charge of the police station
stating that her daughter had been kidnapped.
 No action was taken, and when the Superintendent of Police was informed, an FIR
was registered. But still, no action was taken to apprehend the accused or to recover
the minor child.
  Seeing no other option, the petitioner filed a petition under Article 32 of the
Constitution.
Issue of the case
 Whether a police officer is bound to register an FIR on receiving information relating
to the commission of a cognizable offence or whether the police officer has the power
to conduct a preliminary inquiry to test the veracity of such information before
registering the case.
Judgement of the Court
 The Supreme Court held that under Section 154 of the CrPC, which is now Section
173 of BNSS a police officer is bound to register an FIR if the information discloses a
cognizable offence.
 The expression “shall” indicates the statutory intent of Parliament and leaves no
discretion to a police officer to conduct a preliminary investigation before registering
an FIR.
 Stringent action will be taken against those officers who refuse to register an FIR.

Conclusion
The Bhartiya Nagarik Suraksha Sanhita, 2023 has laid down the procedure of investigation
by a police officer in cognizable and non-cognizable offences. The differences between the
two are important to understand the powers of the police, rules of investigation, etc. In a
cognizable offence, the police can arrest the accused and initiate an investigation on their own
without the order of the magistrate. This is done in order to apprehend the accused as soon as
possible because cognizable offences are serious crimes. The accused has the probability of
harming other people in society. But this is not the case in non-cognizable cases. Hence, the
procedure to investigate remains the same in both and only the starting point, i.e., the arrest of
the accused, is different in both.

Q.3 Explain Information in Cognizable Cases under Section 173?

Ans: The First Information Report, or FIR is a key document in the field of criminal law. In
the Indian legal system, it serves as the initial step in the investigation and prosecution
process.

A written report called the First Information Report (FIR) is used to formally document
information about the commission of a crime. When a crime is considered to be cognizable, a
police officer may detain a suspect without a search warrant. The first and most important
step in the criminal justice procedure is the FIR. It starts the criminal justice system in motion
and enables the police to look into the situation.

An FIR may be filed by any person who either witnessed or has knowledge of the
commission of a cognizable offence. The police officer is under the obligation to file such an
FIR for the cognizable offence. The person against whom an FIR is being filed can be the
person who either committed an offence, has knowledge of the commission of an offence,
witnessed the offence, or abetted in such an offence.

Schedule I of the BNSS enlists the offences that are classified as cognizable offences, for
example, murder, robbery, etc. These offences require immediate police attention, and
preventive measures are needed to be taken by them. These offences are generally more
severe and graver in nature and act against the public interest at large.

Significance of an FIR

Legal Requirement: It is a legal requirement under Section 173 of the Bhartiya Nagarik
Suraksha Sanhita 2023, (BNSS) that when a person provides information about the
commission of a cognizable offence, the police must record it as an FIR.

Basis for Investigation: An FIR serves as the foundation for the investigation of a criminal
case. It outlines the initial allegations, details of the offence, and the identity of the parties
involved.

Protection of Rights: FIRs are essential for the protection of the rights of both the
complainant and the accused. They ensure that allegations are properly documented, thereby
preventing arbitrary arrests or detentions.

Evidence: FIRs are admissible in court as evidence. They can be used to corroborate the
testimony of witnesses and provide a chronological account of events.

Filing of an FIR

Information to the Police: Any person with knowledge of the commission of a cognizable
offence can provide information to the police. The information may be given orally or in
electronic mode of communication or in writing to an officer in-charge of a police station.

Provided that if the information is given by the woman against whom an offence under
section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71,
section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the
Bhartiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such
information shall be recorded, by a woman police officer or any woman officer.

Where in case that the person against whom an offence under section 64, section 65, section
66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section
76, section 77, section 78, section 79 or section 124 of the Bhartiya Nyaya Sanhita, 2023 is
alleged to have been committed or attempted, is temporarily or permanently mentally or
physically disabled, then such information shall be recorded by a police officer, at the
residence of the person seeking to report such offence or at a convenient place of such
person's choice, in the presence of an interpreter or a special educator, the recording of such
information shall be video-graphed, or the police officer shall get the statement of the person
recorded by a Judicial Magistrate under clause (a) of sub-section (6) of section 183 as soon as
possible.

A copy of recorded information shall be given free of cost to the informant or victim.

On receiving the information relating to the commission of any cognizable offence, which is
made punishable for three years or more but less than seven years, in such situation the
officer in-charge of the police station may with the prior permission from an officer not
below the rank of Deputy Superintendent of Police proceed to conduct preliminary enquiry to
ascertain whether there exists a prima facie case for proceeding in the matter within a period
of fourteen days or proceed with investigation when there exists a prima facie case.

Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section (1), may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the
powers of an officer in charge of the police station in relation to that offence failing which
such aggrieved person may make an application to the Magistrate.

Contents of an FIR: An FIR typically includes the following details:

 Date, time, and location of the offence.

 Details of the complainant, including name and address.
  Description of the offence, including sections of the Bhartiya Nyaya Sanhita 2023,
under which it falls.
 Description of the accused, if known.
 Details of witnesses, if any.

Challenges and Controversies surrounding FIR

False FIRs: False or malicious FIRs can lead to harassment, arrests, and legal complications
for innocent individuals. Therefore, there is a need to strike a balance between protecting
complainants and preventing misuse of the FIR system.

Delayed FIRs: Delay in filing an FIR can lead to a loss of crucial evidence and make the
investigation challenging. In such cases, the police may question the authenticity of the
complaint.

Pressure and Coercion: In some instances, complainants may be coerced or pressured to

withdraw or modify their FIRs, undermining the integrity of the criminal justice system.

The First Information Report (FIR) serves as a fundamental thread in the convoluted legal
system of India, tying together the onset of each criminal case. Its importance cannot be
emphasised because it not only initiates the criminal justice system but also protects the rights
and interests of all parties concerned.

Fundamentally, the FIR is a strong weapon for enforcing accountability and upholding the
rule of law. There is no place for ambiguity or doubt in the criminal justice system since it
provides an organised and standardised framework for reporting and documenting cognizable
offences. By documenting crucial details such as the date, time, location, nature of the
offence, and descriptions of both the complainant and the accused, the FIR serves as the first
building block for subsequent investigations and court proceedings.

Q.4 Elucidate concept of plea Bargaining?

Ans: Plea bargaining is a process in which a defendant(accused) in a criminal case agrees to
plead guilty to a lesser charge or to a reduced sentence in exchange for some concession from
the prosecutor or the court. For example, if Mr. X was accused of an offence for which the
minimum punishment was say 6 years so in such cases the court can reduce the offence to 3
years i.e.: half of such minimum punishment. The notion of plea bargaining was first
introduced in India in 2006.
Application of Plea Bargaining

According to Section 290 of BNSS, A person accused of an offence may file an application
for plea bargaining within a period of thirty days from the date of framing of charge in the
Court in which such offence is pending for trial.

The application must include the brief description of the of the case relating to which the
application has been filed including the offence. It should also be accompanied by an
affidavit from the accused, stating that they have willingly chosen plea bargaining after
understanding the possible punishment for the offence, and confirming that they have not
been previously convicted of the same offence.

After receiving the application, the Court shall issue notice to the Public Prosecutor or the
complainant of the case and to the accused to appear on the date fixed for the case.

When the Public Prosecutor or the complainant of the case and the accused appear on the date
fixed, the Court shall examine the accused in camera, where the other party in the case shall
not be present, to satisfy itself that the accused has filed the application voluntarily.

When the Court is satisfied that the application has been filed by the accused voluntarily, it
shall provide time, not exceeding sixty days, to the Public Prosecutor or the complainant of
the case and the accused to reach a mutually agreeable solution. This may include the accused
compensating the victim and covering other related expenses. After that, the Court will set a
date for the next hearing.

And when the Court finds that the application has been filed involuntarily by the accused or
he has previously been convicted by a Court in a case in which he had been charged with the
same offence, it shall proceed further in accordance with the provisions of this Sanhita from
the stage such application has been filed.

Section 290 of BNSS fixes a time limit for filing of application of plea bargaining by the
accused. Such application must be filed within a period of thirty days from the date of
framing of charge in the Court.

Section 290 of BNSS provides that Court will allow time not exceeding 60 days for the
Public Prosecutor/Complainant and accused to work out a mutually satisfactory disposition.

As per Section 291 of the BNSS When working out a mutually satisfactory solution under
section 290, the Court will follow these steps:
 a. For cases started by a police report, the Court will notify the Public
Prosecutor, the investigating police officer, the accused, and the victim to
attend a meeting to resolve the case.

Provided that throughout such process of working out a resolving of the case, it shall be the
duty of the Court to ensure that the entire process is completed voluntarily by the parties
participating in the meeting. The accused can also bring their advocate if they desire to do so.

b. In a case instituted otherwise than on police report, the Court shall issue notice
to the accused and the victim of the case to participate in a meeting to work
out for resolving of a case.

Provided that it shall be the duty of the Court to ensure, throughout such process of the case,
that it is completed voluntarily by the parties participating in the meeting.

The victim or the accused so desire they may participate in such meeting with their advocate
in the case.

Section 292 of BNSS states that where in a meeting under section 291 of BNSS, a
satisfactory resolving of the case has been worked out, the Court shall prepare a report of
such disposition which shall be signed by the presiding officer of the Court and all other
persons who participated in the meeting and if no such resolving has been worked out, the
Court shall record such observation and proceed further in accordance with the provisions of
this Sanhita from the stage the application under subsection (1) of section 290 BNSS has
been filed in such case.

Disposal of Case under Section 293 of BNSS

When a satisfactory solution has been reached under section 292, the Court will handle the
case as follows:

(a) The Court will award compensation to the victim, as agreed, and then hear both sides on
the punishment. It will consider releasing the accused on probation or under the Probation of
Offenders Act, 1958, or any other applicable law, and follow the procedure for imposing
punishment.

(b) After hearing both sides, if the Court decides that the accused qualifies for probation or
other benefits under the Probation of Offenders Act, 1958 or similar laws, it may release the
accused on probation.
(c) If there is a minimum punishment for the offence, the Court may reduce the sentence to
half of the minimum. If the accused is a first-time offender, the Court may reduce the
sentence to one-fourth of the minimum.

(d) If the offence doesn’t qualify for clauses (b) or (c), the Court may reduce the sentence to
one-fourth of the maximum punishment for the offence. If the accused is a first-time offender,
the Court may reduce the sentence to one-sixth of the maximum punishment.

Judgement of Court 294 of BNSS.

The Court shall deliver its judgment in terms of section 293 of BNSS in the open Court and
the same shall be signed by the presiding officer of the Court.

Power of Court in plea bargaining 296 of BNSS.

A Court shall have, for the purposes of discharging its functions under this Chapter, all the
powers vested in respect of bail, trial of offences and other matters relating to the disposal of
a case in such Court under this Sanhita.

Conclusion

Plea bargaining has a vital role as well as a valuable tool in the Indian criminal justice
system. It serves as a means of negotiation between the prosecution and the accused, allowing
for the possibility of a mutually beneficial agreement that presents an alternative resolution to
criminal cases, promotes efficiency in the courts, and preserves judicial resources. Plea
bargaining can help expedite the legal process and provide a fair and efficient resolution to
criminal matters. However, it is also essential for the judges also to exercise their discretion
judiciously and wisely when approving plea bargains, taking note of the gravity and
seriousness of the offence, the interests and needs of the victim, and the impact on the
administration of justice. Taking these factors into consideration, the judges can ensure that
plea bargaining contributes to the fair and efficient resolution of criminal cases while
maintaining the integrity of the legal system.
Q.5 Explain section 482 Anticipatory Bail?
Ans: Bail is a legal concept that allows a person accused of a crime to be released from
custody while awaiting trial or other legal proceedings. It is a fundamental right enshrined in
Article 21 of the Indian Constitution, which guarantees the right to personal liberty. Bail
ensures that individuals are not unjustly detained before being proven guilty and allows them
to prepare their defence adequately. In India, bail is governed by the Bhartiya Nagarik
Suraksha Sanhita (BNSS) which distinguishes between regular bail and anticipatory bail.

‘Bail’ entails securing the release of an accused individual charged with specific offenses,
ensuring their appearance in court for trial while remaining under the court’s jurisdiction.
Black’s Law Dictionary defines bail as the security required by a court for the release of a
prisoner who is to appear at a future date.

Anticipatory Bail

Anticipatory bail is a provision under Section 482 of the BNSS that allows a person to seek
bail in anticipation of their arrest. This provision was introduced to prevent harassment and
abuse of the legal process by authorities. Anticipatory bail is granted by the High Court or the
Court of Sessions and is intended to protect individuals from unjust arrest and detention.

To obtain anticipatory bail, the applicant must demonstrate to the court that they have reason
to believe they may be arrested for a non-bailable offence. The court may grant anticipatory
bail with or without conditions, depending on the circumstances of the case. The purpose of
anticipatory bail is to ensure that individuals are not arrested without sufficient cause and to
protect their personal liberty.

Condition for Granting Anticipatory Bail

 The person seeking anticipatory bail should have reason to believe that they may be
arrested for a non-bailable offense.

 The court may also impose a monetary bond, which the person seeking anticipatory
bail will have to pay if they fail to appear before the court or violate the conditions
imposed.

 The person seeking anticipatory bail must make themselves available for
interrogation by the investigating officer as and when required.
  The court may grant anticipatory bail for a limited period, and the person will have
to surrender to custody once the period expires.

 It is important to note that the granting of anticipatory bail is at the discretion of the
court and is not an absolute right. The court will consider various factors, such as the
nature and gravity of the offense, the antecedents of the person seeking anticipatory
bail, and the likelihood of the person absconding or tampering with evidence, before
deciding whether to grant anticipatory bail.

Grounds Anticipatory Bail can be Cancelled

 Sec. 480(5) & Sec. 483 of BNSS deal with the cancellation of anticipatory Bail. They
imply that a Court which has the power to grant anticipatory Bail is also empowered
to cancel the Bail or recall the order related to Bail upon appropriate consideration of
facts.

 A High Court or Court of Session may direct that any person who has been released
on Bail by it be arrested, and brought under custody after filing of an application by
the complainant or the prosecution. However, a Court does not have the power to
cancel the Bail granted by the police officer.

 Over the years, anticipatory Bail has acted as the protection (granted under Sec.
482 of BNSS to safeguard a person against whom false accusation or charges have
been made. It ensures the release of such falsely accused person even before they are
arrested.

Anticipatory bail is sought in anticipation of arrest. It is requested by an individual who has a

reasonable apprehension of being arrested for a non-bailable offence. Anticipatory bail is
only available for non-bailable offences. It is a pre-arrest bail that seeks to protect individuals
from arrest for offences where bail is not a matter of right. Anticipatory bail is also at the
discretion of the court, but it is intended to be a safeguard against unjust arrest. The court may
grant anticipatory bail with or without conditions, depending on the circumstances of the
case. Anticipatory bail may also be granted with or without conditions. However, the
conditions are typically more stringent to ensure that the accused does not evade justice. The
court may impose conditions such as surrendering the passport, providing sureties or
appearing before the court as and when required. The purpose of anticipatory bail is to
protect individuals from arbitrary arrest and detention. It is intended to prevent harassment
and abuse of the legal process by authorities and to uphold the principle of presumption of
innocence until proven guilty.

Bail and anticipatory bail are important legal concepts that protect the rights of individuals
accused of crimes. Bail ensures that individuals are not unjustly detained before being proven
guilty, while anticipatory bail provides a safeguard against arbitrary arrest.

The provisions governing bail and anticipatory bail in the BNSS strike a balance between the
interests of the accused and the need for justice. These provisions ensure that individuals
accused of crimes are treated fairly and that their rights are protected under the law.

Q.6 Role of Probation Officer under Probation of Offenders Act 1958?

Ans: The object of Criminal Law is more inclined towards the reformation of the offender
than to punish him. Instead of keeping an accused with hardened criminals in prison, the
court can order personal freedom on the promise of good behaviour and can also order a
period of supervision over an offender. This is the concept behind ‘probation’. Black’s law
dictionary defines ‘probation’ as ‘allowing a person convicted of some minor offence
(particularly juvenile offenders) to go at large, under a suspension of sentence, during good
behaviour, and generally under the supervision or guardianship of a ‘probation officer’.

Thus, instead of keeping the accused with hardened criminals in jail, the court may order
personal freedom on the basis of good behaviour. The court can also grant a supervision
period for the accused. The main aim behind the Probation of Offenders Act, of 1958 is to
give an opportunity to offenders to reform themselves rather than turning into hardened
criminals. Section 401 of Bhartiya Nagarik Suraksha Sanhita 2023, that any person not below
twenty-one years of age who may have not been convicted for an offence for imprisonment
up to seven years or not convicted to death or imprisonment of life can be released on the
basis of probation for good conduct.

The Probation Officer is appointed by the State Government or recognised by the State
Government if the society prefers any social worker. The Probation O fficer is under the
control of a District Magistrate. The period of supervision is called the ‘Probation Period’.

Eg.:- When a child or young person is convicted for the commission of a crime, he is not sent
to prison (in the execution of the sentence) but is kept under probation under the supervision
of a Probation Officer. Therefore, ‘Probation’ means “the conditional suspension of a
sentence by the Court, in selected cases, especially of young offenders, who are not sent to
prisons but are released on probation, on agreeing to abide by certain conditions”. Earlier,
probation was designed only for child offenders (juvenile delinquents). Now, it can be
extended to a delinquent of any age (Generally up to 21 years).

The Probation of the Offenders Act, 1958 excludes the application of Section 401 of BNSS,
whenever the Act is applied. Section 3 to Section 12 of the Probation of the Offender Act,
1958 deals with the procedures of the court to deal with the release of the offenders. The
important aspects of the provisions are discussed in five ways:

Admonition, Probation on Good Conduct, Cost and Compensation, Offenders under 21 years
of age, Report of Probation officer.

Duties of a Probation Officer

According to the Offenders Probation Act 1958 – Section 14 Gives details concerning the
duties of probation officers that, subject to such conditions and limitations as may be
imposed, a probation officer is expected to do:

1. Investigate the circumstances or domestic environment of any person accused of an

offence with the intention, in accordance with any direction of the Court, to help the
Court to determine and report the most appropriately advised approach to his dealing
with it;

2. Supervising probationers and other persons under his supervision and seeking suitable
employment where necessary;

3. Counselling and supporting victims in the payment by the Court of penalties or costs;

4. Advice and assist persons released pursuant to Section 4 in such situations and
manner as may be prescribed;

5. Perform the other duties prescribed as may be.

A probation agent, as laid down in Section 14 of the Act, has main functions, such as
investigation, supervision and guidance, counselling and professional control of criminal
probation. As an inspiring, guiding and supporting probationer, this probation officer
facilitates the rehabilitation of the criminal as a law-abiding member of society.

Role and Responsibilities of Probation Officer

Analysis and Monitoring

 Probation officers conduct a detailed review of the life history and background history
of delinquent individuals.
 Psychological approaches are used to extract information about the offenders
antecedents to assess their chances of rehabilitation through the probation process.
 Continuous monitoring of probationers is not always feasible and supervision is
carried out through field visits and intermittent contacts.

Supervision and Counselling

 Probation officers provide supervision and guidance to probationers, helping them

resolve issues that may hinder their re-adjustment in society.
 The focus is on rehabilitation and probationers should not feel continuously pressured
or controlled.
 Probation officers balance the rights of the offender with the safety of society and act
as guardians for society when probations do not show improvement.

Probation Control

 Probation is an alternative sentence that allows offenders to serve their sentence

within the community under the supervision of probation officers.
 Probation orders may include conditions like maintaining good conduct, complying
with the supervisors orders, and reporting changes of address.

Link to the Court

 Probation officers act as a link between probationers and the court, advocating for the
interest of both.
 They report on the progress of probationers to the court and may recommend
adjustments to the probation order based on the individuals adaption to regular life in
society.

Pre-sentence Report

 Probation officers are responsible for providing pre-sentence report to the court which
assist judges in deciding whether to grant the benefit of probation.
 These reports include accurate and truthful information about the offenders character,
family history, education, employment and other relevant details.
Decision making

 Probation officer decisions are crucial for both the offender and the safety of the
community.

Probationer Rehabilitation and Aftercare

 Probation officer play a role in the social rehabilitation of probationers by assisting

them in finding training, job opportunities, financial support, and connections to
social and civic groups.
 They maintain contact with discharged probationers to monitor their progress and
submit follow-up reports.
 Aftercare schemes and organizations are involved in the rehabilitation process, with
probation officers collaborating with these entities.

These key responsibilities demonstrate that probation officers play a multifaceted role that
involves assessment, supervision, counselling and advocacy. They strive to balance the
rehabilitation and reintegration of the offender into society with the safety of the community.
Additionally, probation officer are actively involved in decision-making processes such as
recommending probation or modifications to probation orders, and they continue to support
probationers even after their release to ensure a successful reintegration into society.

Q.7 Classify the various Criminal Courts and state the powers of each courts provided
under BNSS?
Ans: A court is a place where legal trials take place. It is an institution where several
disputes are settled via the legal process. There are three types of courts: Civil Court,
Criminal Court and Revenue Court.

A Criminal Court is a court that has the jurisdiction and authority to try and punish the
persons accused of committing a crime as per criminal law. Generally, the government files a
case in Criminal Courts against a person who has committed any crime. The reason behind
this is that whenever a crime is committed, it is considered an act against a state and not only
the victim. It is the paramount duty of the state to protect its citizens. Therefore the state
becomes operative when a crime is committed.

Criminal courts can be categorised or classified, in the hierarchy, as given below:

1. Supreme Court.

The Supreme Court of India has the jurisdiction to deal with criminal cases. The Constitution
of India has created this court for each state. Also, the jurisdiction and powers of this court
are very well mentioned in the Indian Constitution.

In addition to this, section 420 of Bhartiya Nagarik Suraksha Sanhita 2023, provides
provisions related to appeal in the Supreme Court under certain circumstances. And, section
446 of BNSS also grants the Supreme Court the power to transfer cases and appeals from one
High Court to the other High Court.

Powers of Supreme Court

 Federal Court– Article 131 gives the power of original jurisdiction to the Supreme
Court, to resolve the dispute arising between the Centre and the States or between two
States.

 Interpretation of the Constitution- Only the Apex Court has the power to settle a
question based on any issue related to the Constitution.

 Power Of Judicial Review (Article 137)- All the laws enacted are subjected to
scrutiny by the Judiciary.

 Court of Appeal – The apex court is the highest court for appeal in India. It has the
power to hear appeals from all the cases lying in the various High Courts and
subordinate courts of our country. A certificate of the grant is to be provided
according to Article 132(1), 133(1) and 134 of the Constitution with respect to any
judgment, decree or final order of all cases of the High Court involving the question
of law. Appeals to the Supreme Court can be made under the following categories:-

 Constitutional Matters

 Civil Matters

 Criminal Matters

 Special Leave Petition

2. High Court.

Along with the Supreme Court of India, High Courts are also established for each state by the
Constitution of India. Article 227 of the Indian Constitution provides that except for the court
formed for the armed forces, every High Court must have supervision over all courts and
tribunals throughout the territories over which it exercises jurisdiction.

Further, BNSS imposes a duty on the High Court under section 529 to exercise continuous
control over the courts of Judicial Magistrates subordinate to it. The code has also granted
several powers and duties to the High Court, including those related to appeals and
amendments. The High Court has the power to pass any sentence authorised by law.

3. Sessions Court.

As per section 6 of BNSS, apart from the Supreme Court, High Court, and the courts
composed under any law, the following courts must be present in every state:

 Sessions Court.
 Judicial Magistrates of the First Class (Metropolitan Magistrates in the metropolitan
area).
 Judicial Magistrates of Second Class.
 Executive Magistrates.

The provisions related to the Court of Session are contained under section 8 of BNSS. It
provides that the state must establish a Court of Session for every Sessions Division, which is
to be governed by a judge. The High Court appoints the judge. The High Court can also
appoint Additional Sessions Judges and Assistant Sessions Judges to govern the Court of
Session.

Section 22 of BNSS provides the sentence that a Court of Session can pass. Accordingly, the
Sessions Judge can give any punishment authorised by law. But any sentence of death passed
by any such judge shall be subject to confirmation by the High court. And the Assistant
Session Judge can-not provide punishment for a death sentence, imprisonment for life or
imprisonment for a term beyond 10 years.

4. Courts of Judicial Magistrates of First and Second Class.

The provisions regarding the Courts of Judicial Magistrates are described under sections 9
and 10 of the BNSS. Section 9(1) of BNSS provides that the Court of Judicial Magistrates of
the First Class and the Second Class must be established in such number and at such places,
as the High Court may by notification, specify. The state government must consult with the
High Court. However, these courts are not to be established in a metropolitan area. The state
government can also establish special courts of Judicial Magistrate of the First Class or the
Second Class to attempt any particular case or a particular class of cases after consulting with
the High Court.

As given in section 9(2) of BNSS, the presiding officers of these courts are appointed by the
High Court. Section 9(3) of BNSS also grants the power to the High Court to direct the
powers of a Judicial Magistrate of the First Class or the Second Class on any member of the
Judicial Service of the state who is functioning as a judge in a Civil Court.

The powers can be granted only when it is necessary. Further, section 10(1) of BNSS
provides that the Judicial Magistrate of the First Class must be appointed as a Chief Judicial
Magistrate in every district by the High Court.

As per section 23(2) of BNSS, the Judicial Magistrate of the First Class can punish an
accused with imprisonment up to 3 years or/and a fine up to Rs 50000 or both or community
service And, as per section 23(3) of BNSS, the Judicial Magistrate of the Second Class can
pass the sentence of imprisonment of up to 1 year or/and fine up to Rs 10000 or both or
community service.

5. Executive Magistrates.

Executive Magistrates are appointed by the state government under section 14 of BNSS and
are known as Special Executive Magistrates. The term for the appointment is decided by the
state government (section 15 of BNSS). These are appointed either to fulfil special needs of
particular areas or for serving particular functions in the specified areas.

As per Section 14(1) of BNSS a State government may appoint as many persons as it thinks
fit to be executive Magistrate and shall appoint one of them to be the District Magistrate.

As per Section 14(2) the BNSS The state government may appoint any Executive Magistrate
to be an Additional District Magistrate and such Magistrate shall have the powers of a
District Magistrate under the BNSS or under any law for the time being in force as may be
directed by the state government.

As per Section 14(5) of the BNSS the state government may by general or special order and
subject to such control and directions as it may deem fit may delegate its power under
subsection 4 of section 14 of BNSS to the District Magistrate
According to section 16(1) of BNSS, the local jurisdiction of the Executive Magistrates is
determined by the District Magistrate. However, it is subject to the control of the state
government. Furthermore, section 16(2) provides that the jurisdiction and power of every
such magistrate shall extend throughout the district.

The Executive Magistrates are requested to send the records of the cases whenever the Court
of Session asks for them.

Metropolitan Magistrate

 The concept of Metropolitan Magistrate, earlier present in the CrPC, no longer exists
under the new criminal act of BNSS.

Conclusion

The Constitution of India holds the absolute authority and value in India. Hence, it becomes
necessary to provide safeguards for its protection and therefore, the courts have been vested
with various powers to keep a check and to ensure that no authority misuses its powers and
encroaches upon others domain. The courtrooms are the places where people can take their
grievances and get their disputes resolved upon the failure of other systems of the
Government.

The hierarchy of the Courts has been developed in such a manner that it becomes easy for
everyone who is living in this country to knock the doors of the courts whenever a dispute
arises. It provides a platform for the citizens for appealing to higher courts, in case they feel
that justice has been denied to them by the lower courts.