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Samarth Agrawal Books LLP 1

First Edition : 2024-25

Published by
Samarth Agrawal Books LLP
7R/5, Kailashpuri Colony, Tashkant Marg
Civil Lines, Prayagraj-211001
e-mail : samarthagrawalbooks@[Link]
website : [Link]

For Sales and Distribution contact: - 7905723822

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 All Rights Reserved with Publisher

MRP : Rs. 950 (Nine Hundred Fifty Rupees Only)

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ISBN : 978-81-977505-1-9
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By :
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Samarth Agrawal & Shreya Bhargava

Former Judges, U.P. Judicial Service
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Disclaimer
Due care has been taken while compiling, editing and printing this book to avoid any error or omissions. Neither the author nor the
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publisher of the book holds any responsibility for any mistake that may have inadvertently crept in. The book is sold on a condition
that the information and views given in this book are merely for reference. Author and Publisher also take no responsibility for any
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loss or damage caused to any person on account of any action taken on the basis of the book. Any mistake or discrepancy noted may
be brought to our notice which shall be taken care of in the next edition. Explanations, guidance and references must not be taken
as having authority or having binding nature. For authoritative text kindly contact the concerned department or official publication.
All disputes are subject to the courts of Prayagraj jurisdiction only.

Printed by
Goel Printers
Prayagraj

2 Samarth Agrawal Books LLP

 Highlights of the Book

Comprehensive Study Materials for Mains Examination

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Diagrammatic presentation of important concepts

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Leading and Recent cases on important concepts

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Especially tailored to suit the needs of students

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 Contents
 Contents ......4-14

BHARATIYA NAGARIK SURAKSHA SANHITA .......15-294

1. Preliminary ............17

 Introduction ................17

 Applicability of the BNSS ................18

2. Definitions ............21

 Bail, Bail Bond, Bond, Bailable offence and Non-Bailable offence ................21

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 Charge ................23

 Cognizable and non-cognizable offence ................23

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 Complaint ................25

 Investigation, Inquiry & Trial ................26

 Judicial Proceedings Pr ................28

 Local jurisdiction ................28

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 Offence ................28

 Police report ................28

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 Warrant case and Summons case ................29

 Victim ................30
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 Compoundable and Non-compoundable offences ................30

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 Discharge and Acquittal ................31

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 Audio-Video Electronic means ................32

 Electronic Comminication ................32

3. Criminal Courts & Offices ............33

 Classes of Criminal Courts ................33

 Court of Session, Sessions Judge, Additional Sessions Judge ................33

 Courts of Chief Judicial Magistrate and Judicial Magistrates ................34

 Executive Magistrates ................35

 Public Prosecutors & Assistant Public Prosecutors ................35

 Directorate of Prosecution ................37

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4. Power of Courts ............41
 Trial Courts ................41
 Sentence which may be Passed by Criminal Courts ................42
 Sentence of imprisonment in default of payment of fine ................43
 Sentences in case of several offences ................43
5. Arrest ............45
 Meaning and Object ................45
 Cases in which a police officer can arrest without a warrant ................46
 Arrest by private person, Magistrate & Protection of members of armed forces ................50
 Mode of arrest ................51

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 Arrest in non-cognizable offences ................53
 Rights of arrested persons ................53

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 Guidelines for arrest ................56
 Other important provisions relating to arrest ................59
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Consequences of non-compliance of provisions relating to arrest ................61
6. Process to Compel Appearance ............63
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 Summons ................63
 Warrant of Arrest ................67
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 Proclamation and Attachment ................71

 Other rules regarding process ................75
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7. Process to Compel Production of Things ............77

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Search Warrant ................79

8. Maintenance of Wives, Children and Parents ............85
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 Meaning, object & scope ................85

 Who may claim maintenance? ................86
 Conditions when liability to maintain arises ................90
 Circumstances when wife not entitled to maintenance ................91
 Interim maintenance and expenses & other aspects ................93
9. Information to Police and their Powers to Investigate ............97
 Information in cognizable cases-First Information Report ................98
 Information in non-cognizable cases ................105
 Commencement of investigation ................106
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  Procedure for investigation of a cognizable case ................111
 Power to require attendance of witnesses ................113
 Examination of witnesses by police ................114
 Evidentiary value of statements made to the police during investigation ................116
 Recording of confessions and statements ................118
 Procedure when investigation cannot be completed in twenty-four hours ................125
 Release of accused when evidence deficient ................131
 Cases to be sent to Magistrate when evidence is sufficient ................131
 Case diary or Police diary ................132
 Report of police officer on completion of investigation ................133

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 Inquest report ................140
10. Jurisdiction of the Criminal Courts in Inquiries and Trials ............145

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 Place of Trial & Inquiry ................146
11. Conditions Requisite for Initiation of Proceedings ............151
 Meaning & Scope Pr ................151
 Cognizance of offences by the Magistrate ................153
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 Restrictions in taking Cognizance ................154

12. Complaints to Magistrate ............163
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 Examination of complainant ................163

 Postponement of issue of process ................164
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 Dismissal of complaint ................167

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13. Commencement of Proceedings before Magistrate ............169

 Issue of process ................169
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14. The Charge ............177

 Meaning, Object & Nature ................177
 Particulars of a valid charge ................178
 Effect of errors ................179
 Alteration or Addition in the charge ................180
 Joinder of Charges ................181
15. Trial Before a Court of Session ............187
16. Trial of Warrant Cases by the Magistrate ............193
 Cases instituted on police report ................193
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  Cases instituted otherwise than on police report ................196
 Absence of complainant ................198
 Compensation for accusation without reasonable cause ................198
17. Trial of Summons Cases by Magistrate ............199
18. Summary Trial ............203
19. Plea Bargaining ............205
 Flow Chart of Procedure of Plea Bargaining ................205
20. General Provisions as to Inquires and Trials ............211
 Persons once convicted or acquitted not to be tried for same offence ................211
 Appearance by Public Prosecutor ................213

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 Permission to conduct prosecution ................214
 Right of person against whom proceedings are instituted to be defended and legal aid................214

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to the accused at State's expense
 Tender of pardon to accomplice ................215
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Power to postpone and adjourn proceedings
Local inspection
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 Power to summon material witness, or examine person present ................218
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 Power of Magistrate to order person to give specimen signature or handwriting ................219

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 Power to examine the accused ................220

 Accused to be competent witness ................223
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 Provisions for Inquiries and Trial being held in the Absence of Accused ................223
 Inquiry, Trial or Judgment in absentia of Proclaimed Offender ................223
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 Power to proceed against other person appearing to be guilty of offence ................225

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 Compounding of offences ................227

 Withdrawal from prosecution ................228
21. Appeals, Reference & Revision ............233
 Appeals ................233
 Reference and Revision ................239
22. Bail and Bonds ............241
 Meaning & Object ................241
 When Bail may be granted as a matter of right ................242
 Bail in non-bailable offences ................245

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  Considerations for grant of bail in non-bailable offences ................247
 Powers of High Court and Sessions Courts ................248
 Anticipatory Bail ................250
 Cancellation of Bail ................253
 Forfeiture of bail bonds ................254
23. Miscellaneous ............257
 Security for Keeping Peace and for Good Behaviour ................257
 Maintenance of Public Order and Tranquility ................260
 Evidence in Inquires and Trials ................265
 Provision as the Offences Affecting the Administration of Justice ................268

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 The Judgment ................270
 Victim compensation scheme ................272

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 Release of accused on probation or good conduct or after admonition ................273
 Submission of Death Sentences for Confirmation ................276
 Transfer of Criminal Cases Pr ................277
 Execution, Suspension, Remission and Commutation of Sentences ................279
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 Disposal of Property ................284

 Irregular Proceedings ................287
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 Limitation for Taking Cognizance of Certain Offences ................289

 Inherent powers of High Court ................290
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 Evidence of Public Servants, Experts, Police Officers in Certain Cases ................292

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Trial and proceedings in electronic mode [Section 530] ................292

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BHARATIYA NYAYA SANHITA ......295-468

1. Nature, Definition, Meaning and Elements of Crime ............297

 Definitions of Crime ................297

 Elements of crime ................298

 Extent and territorial application of the Sanhita ................301

2. General Exceptions ............305

 Mistake of Fact ................306

 Exemption from liability to Judges ................309

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  Accident and misfortune ................310

 Necessity ................311

 Acts of child ................313

 Unsoundness of mind ................315

 Intoxication ................317

 Consent ................319

 Communication made in good faith ................323

 Act to which a person is compelled by threats ................323

 Act causing slight harm ................324

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 Right of Private Defence ................324

3. Principle of Joint Liability ............333

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 Common intention ................335

 Unlawful Assembly ................338

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Common object

Liability on the basis of common object

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 Rioting and Affray ................342

4. Punishments ............343
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 Theories of punishment ................343

 Sentencing policy ................344

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 Classification of punishments in Bharatiya Nyaya Sanhita ................345

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5. Abetment ............351
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 Means of abetment ................352

 Abettor ................354

 Liability of abettor when offence abetted is committed ................356

 Liability of abettor when offence abetted is not committed ................358

6. Criminal Conspiracy ............361

7. Attempt to Commit Offence ............365

8. Offences Against Women and Child ............371

 Sexual offences ................371

 Criminal force and assault against women ................378

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  Offences relating to marriage ................381

 Causing miscarriage ................388

 Offences against child ................389

9. Offences Against Human Body ............393

 Offences affecting life ................393

 Homicide: Meaning and scope ................393

 Culpable homicide ................395

 Murder ................399

 Mob Lynching ................411

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 Attempt to murder and culpable homicide ................411

 Transfer of malice ................412

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 Murder by life convict ................413

 Death by negligence
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 Punishment for culpable homicide not amounting to murder ................413

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 Suicide ................416
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 Organized Crime ................418

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 Petty organized crime ................420

 Terrorist Act ................420

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 Offences related to hurt ................422

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 Hurt and Grievous Hurt ................422

 Wrongful restraint and wrongful confinement ................425

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 Criminal Force and Assault ................426

 Force, Criminal Force and Assault ................426

 Kidnapping and Abduction ................429

Kidnapping ................429

Abduction ................432

10. Offences Against State ............435

 Waging war against the Government of India ................435

 Acts endangering sovereignty, unity and integrity of India ................436

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11. Offences Against Property ............439

 Theft and Extortion ................439

 Robbery and Dacoity ................445

 Criminal Misappropriation of Property and Criminal Breach of Trust ................448

 Cheating and Mischief ................452

 Criminal Trespass ................456

12. Offences Related to Documents and Property Marks ............459

 Forgery ................459

 Making or possessing counterfeit seal etc. with intent to commit forgery punishable ................461

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under Section 338

13. Defamation ............463

BHARATIYA SAKSHYA ADHINIYAM ......469-648

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1. Preliminary ............470
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Introduction
Evidence
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 Document ................478
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 Proved, Disproved and Not proved ................478

 May Presume, Shall Presume and Conclusive Proof ................481
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 Fact ................483
 Fact in issue ................484
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 Relevant fact ................485

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2. Relevancy of Facts ............487

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 Evidence to be confined to facts in issue and relevant fact ................487

 Relevancy and Admissibility ................488
 Res Gestae ................491
 Facts which form the occasion, cause of effect of facts in issue. ................494
 Motive, preparation and previous or subsequent conduct ................495
 Relevancy of tape recorded conversation ................498
 Facts necessary to explain or introduce facts ................498
 Test identification parade ................500
 Things said or done by a conspirator in reference to a common design ................503

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  When facts not otherwise relevant become relevant ................505
 Fact relevant when right or custom is in question ................508
 Facts showing existence of state of mind, or of body or of bodily feelings ................508
 Existence of course of business is relevant ................511
3. Admission ............513
 When and by whom admission is made ................513
 Why admissions are made admissible? ................515
 Relevancy and admissibility of admissions ................515
 Evidentiary value of admission ................517
 'Without prejudice' admissions ................519

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 Admissions not conclusive proof, but may operate as estoppel ................519
4. Confessions ............521

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 Definition of Confession ................521
 Inculpatory and Exculpatory statements ................521
 Relevancy of confession
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 Confession when irrelevant ................523
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 Confession when relevant ................529

 Evidentiary Value of Confession ................534

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 Confession by co-accused ................537

5. Statements by Persons who cannot be called as witnesses ............541
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 Dying declaration ................542

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 Statement made in course of business [Section 26(b)] ................548

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 Statement against the maker’s interest [Section 26(c)] ................549

 Statement in relation to public right, custom or matters of general ................549
or public interest [Section 26(d)]
 Statement in relation to existence of relationship between two persons [Section 26(e)]................549
 Statements relating to existence of relationship between the persons deceased ................550

[Section 26(f)]

 Statement contained in any document relating to any transaction mentioned ................550

under Section 11(a) [Section 26(g)]
 Statement by number of persons expressing feelings [Section 26(h)] ................550

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6. Relevancy of Judgments ............551
7. Expert opinion ............555
 Evidentiary value of expert opinion ................557
 Opinion as to hand writing ................559
8. Relevancy of Character ............563
 Relevancy of character in civil proceedings ................564
 Relevancy of character in criminal cases ................565
 Reputation and Disposition ................566
9. Facts which need not be proved ............567
10. Oral Evidence ............571

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 Rule of exclusion of hearsay evidence ................572
11. Documentary Evidence ............577
 Documentary Evidence: Meaning ................577

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 Admissibility of Electronic Records ................582
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Public and Private Documents
Presumptions as to Documents
Pr ................586
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12. Exclusion of oral Evidence by Documentary Evidence ............591
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 Best evidence rule ................591

 Exclusion of oral evidence ................592
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 Ambiguous Documents ................596

13. Burden of proof ............599
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 Burden of proof [Section 104] ................599

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 On whom the burden of proof lies [Section 105] ................601

 Other rules relating to burden of proof [Section 106 - 120] ................602
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 Presumption as to certain offences ................608

 Presumption of legitimacy ................608
 Presumption as to abetment of suicide by a married woman [Section 117] ................610
 Presumption as to dowry death [Section 118] ................611
 Presumption as to consent in case of sexual offences [Section 120] ................612
14. Estoppel ............613
 Estoppel under Indian law ................613
 Kinds of Estoppel ................615
 Doctrine of Promissory Estoppel ................615

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15. Witnesses ............619
16. Privileged Communications ............623
 Privilege of Judges and Magistrates [Section 127] ................623
 Communications during marriage [Section 128] ................624
 Evidence as to affairs of the State [Section 129] ................625
 Professional communications [Sections 132 – 134] ................627
 Witness not excused from answering on the ground that the answer ................628
will criminate him
 Evidence should be weighed not counted ................629
17. Accomplice ............631

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18. Examination of Witnesses ............635
 Order of production and examination of witnesses [Section 140] ................635

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 Judge to decide as to admissibility of evidence [Section 141] ................635
 Examination-in-chief, cross examination and re-examination ................637
 Leading questions Pr ................639
 Contradiction and Corroboration ................640
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 Hostile witness ................642

 Discretion of court to allow or disallow questions ................643
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 Impeaching credit of witness ................644

 Refreshing memory ................646

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 Judge’s power to put questions or order production ................647

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 Improper admission or rejection of evidence ................648

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 Bharatiya Nagarik Suraksha Sanhita

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SURAKSHA SANHITA
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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

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 Bharatiya Nagarik Suraksha Sanhita

1
Preliminary

Introduction

Object of the Bharatiya Nagarik Suraksha Sanhita

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Criminal Procedure is intended to provide a mechanism for the enforcement of criminal law. It is
meant to be complimentary to the criminal law. The substantive criminal law defines offences and pre-

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scribes punishment for it. The criminal procedure provides a mechanism by which the offender is brought
to justice. It lays down procedural rules and laws relating to investigation, arrest, search, seizure, cognizance,
jurisdiction, trial, bail, appeals etc.
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Supreme Court in Shivjee Singh v. Nagendra Tiwari, AIR 2010 SC 2261 held that provisions of
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the Code [now BNSS] are to be interpreted in light of recognized principles of construction that proce-
dural laws are meant for doing substantial justice.
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Bharatiya Nagarik Suraksha Sanhita is a compendium of law relating to criminal procedure. The
Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023 aims to modernize India's criminal justice system by
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replacing the Code of Criminal Procedure, 1973. The BNSS's objectives include, speedy justice, transpar-
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ency and accountability in investigations, victim-centric criminal justice system, and balancing law enforce-
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ment efficiency and individual rights

Interpretation of the rules of procedure

Rules of procedure are not the ends but the means to achieve the ends of justice. Supreme Court in
Sangram Singh v. Election Tribunal, Koth, AIR 1955 SC 425, held that rules of procedure are designed
to facilitate justice and further its ends. Therefore, too technical interpretation should be avoided. Procedural
laws should be construed liberally so as to make substantive law useful and workable.

If violation of procedural provision does not result in denial of fair hearing or does not cause preju-
dice to parties, such provision has to be treated as directory notwithstanding the use of the word 'shall'.

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Commencement, extent and applicability of the Sanhita

The Sanhita got the Presidential assent on 25th December, 2023 and it came into force on 1st July,
2024. According to Section 1 of BNSS the provisions of the Sanhita other than those contained in Chap-
ters IX, XI and XII shall NOT apply to :-

(i) State of Nagaland and

(ii) The tribal areas.

The concerned State Government has been empowered to apply any or all of the provisions of the
BNSS to any part of the State or such tribal areas. According to Explanation to Section 1(2) of BNSS
“tribal areas” means the territories which immediately before the 21st day of January, 1972, were included

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in the tribal areas of Assam, as referred to in Paragraph 20 of the Sixth Schedule to the Constitution, other
than those within the local limits of the municipality of Shillong.

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In Mowu v. Superintendent Special Jail, Nowgong, Assam, (1971) 3 SCC 936, Saptawana v.
State of Assam, (1972) 4 SCC (N) 945 and Naga People’s Movement of Human Rights v. Union of
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India, (1998) 2 SCC 109 Supreme Court has held that though the provisions of Cr.P.C. [now BNSS] are not
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applicable in certain districts of the State of Nagaland, it only means that the rules of Cr.P.C. [now BNSS]
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would not apply but the authorities would be governed by the substance of these rules.

Applicability of the BNSS

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According to Section 4 of the Sanhita, generally BNSS is applicable in respect of investigation, inquiry
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or trial of offences punishable under Bharatiya Nyaya Sanhita. Section 4(2) further lays down that offences
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under any other law shall also be investigated, inquired and tried according to the procedure in the Sanhita.
But if there is any enactment which regulates the manner, place of investigation, inquiry or trial of the
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offences the procedure prescribed in that enactment will be followed.

Section 5 lays down that in absence of any specific provision in the Sanhita, the provisions of any
special or local law, special jurisdiction or power conferred or special form of procedure shall not be
affected.

Thus, a conjoint reading of both sections clearly provides that for offences punishable under Bharatiya
Nyaya Sanhita procedure prescribed in Bharatiya Nagarik Suraksha Sanhita shall be applicable but if there is
any special or local law, special procedure or power conferred by any other law, such law, procedure or
power shall be applicable.

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 Bharatiya Nagarik Suraksha Sanhita

In Kaushik Chatterjee v. State of Haryana, (2020) 10 SCC 92, Supreme Court held that in case of
trial of offences under special law, offences shall be tried by the court specifically mentioned in the special
law. If the special law is silent about the court in which it can be tried then such offence can be tried either
by the High Court or in any other court as given in First Schedule of the Code [now BNSS].

Supreme Court in CBI v. State of Rajasthan, (1996) 9 SCC 735, held that Foreign Exchange
(Regulation) Act, 1973 is a special law. It contains provisions for investigation, inquiry, search, seizure, trial
etc. Therefore, in light of Section 4 and 5 of the Code [now Sections 4 and 5 of BNSS], the rules of
procedure mentioned in FERA will prevail over the rules of procedure mentioned in Code of Criminal
Procedure [now BNSS].

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 Bharatiya Nagarik Suraksha Sanhita

2
Definitions

The simple logic is that BNSS is a general law dealing with procedure in criminal cases and if any
special law provides for a different procedure then that special law will be applicable.

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Section 2(1)(a) : Audio-video electronic Section 2(1)(m) : Judicial proceeding

means Section 2(1)(n) : Local jurisdiction

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Section 2(1)(b) : Bail Section 2(1)(o) : Non-cognizable offence

Section 2(1)(c) : Bailable offence and Non-

bailable offence
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Section 2(1)(p) :

Section 2(1)(q) :
Notification

Offence
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Section 2(1)(r) : Officer-in-charge of police
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Section 2(1)(d) : Bail bond

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Section 2(1)(e) : Bond
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Section 2(1)(s) : Place

Section 2(1)(f) : Charge
Section 2(1)(t) : Police report
Section 2(1)(g) : Cognizable offence
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Section 2(1)(u) : Police station

Section 2(1)(h) : Complaint
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Section 2(1)(v) : Public Prosecutor

Section 2(1)(i) : Electronic communication Section 2(1)(w): Sub-division
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Section 2(1)(j) : High Court Section 2(1)(x) : Summons case

Section 2(1)(k) : Inquiry Section 2(1)(y) : Victim

Section 2(1)(l) : Investigation Section 2(1)(z) : Warrant case

Bail, Bail Bond, Bond, Bailable offence and Non-Bailable offence

For the purpose of bail, offences may be classified as :

Bailable Non-bailable
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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

Definition of the term 'Bail'

According to Section 2(1)(b) ‘Bail’ means release of a person accused of or suspected of commis-

sion of an offence from the custody of law upon certain conditions imposed by an officer or Court on

execution by such person of a bond or a bail bond.

This is a newly introduced provision in the Sanhita. There was no corresponding provision

of similar nature in CrPC. The term 'bail' was not previously defined.

Definition of the term 'Bail bond' and 'Bond'

According to Section 2(1)(d) ‘Bail bond’ means an undertaking for release with surety. Further,

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Section 2(1)(e) defines 'Bond'. It means personal bond or an undertaking for release without surety.

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Both these two defintions are newly introduced in Sanhita. There was no corresponding

provision of similar nature in CrPC.

Definition of the 'Bailable and Non-bailable offence'

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Section 2(1)(c) defines 'bailable' and 'non-bailable offence'. It provides that ‘Bailable offence’ means

an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for
eB

the time being in force. A ‘Non-bailable offence’ means any other offence.

Whether the offence is bailable or not is provided in the column 5 of First Schedule. First Schedule
pl

consists of Part I and Part II. Part I deals with the offences under the Bharatiya Nyaya Sanhita and Part II
m

deals with offenes under other laws. According to the First Schedule the offences under laws other than
Sa

Bharatiya Nyaya Sanhita which are punishable with imprisonment of 3 years or more are considered to be

‘non-bailable’, while offences punishable with less than 3 years of imprisonment are considered to be ‘bailable’.

The provisions relating to bail are laid down in Chapter XXXV of the Sanhita.

Although the terms have been defined in the Sanhita, but still this defintion does not give a clear

meaning of the term 'bailable' and 'non-bailable' offence. In a bailable offence, the bail is granted as a

matter of right while in a non-bailable offence the grant of bail is subject to discretion of the court. The

court decides the bail application on settled judicial principles.

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Difference between bailable and non-bailable offence :

Bailable offences Non-bailable offences

1. Bail can be claimed as a matter of right and 1. The court has full discretion to grant bail.
court has no discretion but to grant bail. However such direction must be exercised on
sound judicial principles.

2. The police officer is also empowered to grant 2. Only courts can grant bail to an accused under
bail in bailable offences. [Section 478] Sections 480 or 483, as the case may be.

3. Generally, bailable offences are less serious in 3. Non-bailable offences are more serious in nature.
nature.

iew
4. Concept of anticipatory bail is not applicable 4. Anticipatory bail can be granted in non-bailable
to bailable offence. offence.

ev
Charge
Pr
Section 2(1)(f) provides that “Charge” includes any head of charge when the charge contains more
heads than one. A ‘charge’ can be defined as a precise formulation of the specific accusation made against
k
a person. It is framed when a prima facie case is disclosed about commission of certain offence or offences.
oo

In Esher Singh v. State of A.P., (2004) 11 SCC 585, Supreme Court held that charge is an accusation
eB

made against the person in respect of offence alleged to have been committed by him.

Object of framing of charge

pl

The object of framing a charge is to give notice of the essentials facts which the prosecution proposes
m

to establish against the accused in order to prove the case against him, so that the accused may not be
prejudiced in his defence. It is the foundation of the accusation in a criminal trial. It separates the inquiry
Sa

stage from the trial. The provision relating to charge are laid down in Chapter XVIII [Sections 234-247]
of the Sanhita.

Cognizable and non-cognizable offence

According to Section 2(1)(g) a ‘cognizable offence’ means an offence for which & ‘cognizable
case’ means a case in which a police officer may, in accordance with the first schedule or under any other
law for the time being in force, arrest without warrant.

According to Section 2(1)(o) “non-cognizable offence’ means an offence for which and a ‘non-
cognizable case’ means a case in which, a police officer has no authority to arrest without a warrant.

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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

The classification of offences in to cognizable and non-cognizable is shown in column 4 of the First
Schedule of the Sanhita.

According to Section 175(1) of BNSS any officer in charge of police station may without the order
of magistrate investigate any cognizable case. This section makes it expressly clear that a cognizable case can
be investigated by the police officer without the order of the magistrate, whereas Section 174(2) of BNSS
states that police officer shall not investigate a non-cognizable case without the order of a magistrate having
power to try such a case or commit the case for trial.

On the point of arrest in cognizable and non-cognizable cases reference may be made to Section 35
(1) of BNSS. It says that any police officer may without the order of magistrate and without warrant, arrest
any person. Whereas Section 35(2) lays down that no person concerned in a non-cognizable case shall be

iew
arrested without or warrant or order from the court [Section 39 being exception].

If a case relates to two or more offences of which at least one is a cognizable one, the case shall be

ev
deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Thus, it can be
said that if there are more than one offence then even if one of the offence is a cognizable, the whole case
becomes cognizable case. Pr
Cognizable offence + Cognizable offence = Cognizable case
k
oo

Cognizable offence + Non-cognizable offence = Cognizable case

Non-cognizable offence + Non-cognizable offence = Non-cognizable case

eB

Difference between cognizable and non-cognizable offence

Cognizable Non-cognizable
pl

1. The police officer can arrest a person accused 1. The police officer has no power to arrest a
m

of cognizable offence without warrant. person for non-cognizable offence without a

Sa

[Section 2(1)(g)] warrant. [Section 2(1)(o)]

2. The police officer can investigate a cognizable 2. The police officer requires permission of
case without the permission of Magistrate [Sec- magistrate to investigate a non-cognizable case
tion 175(1)]. [Section 174(2)].

3. Information given in cognizable cases is 3. Information given in non-cognizable case is

recorded under Section 173 and it is commonly recorded under Section 174(1) and it is commonly
called First Information Report. called Non-Cognizable Report [NCR].

4. Cognizable offences are usually more serious 4. Non-cognizable offences are usually less serious
in nature. in nature.

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Complaint

Section 2(1)(h) provides that 'Complaint' means any allegation made orally or in writing to a Magistrate
with a view to his taking action under BNSS, that some person whether known or unknown has committed
an offence but does not include a police report.

Deemed complaint

Explanation appended to Section 2(1)(h) provides that a report made by a police officer in a case
which discloses, after investigation the commission of a non-cognizable offence shall be deemed to be a
complaint, and the police officer by whom such report is made shall be deemed to be the complainant.

It must be noted here that in case of deemed complaint the police officer starts investigating the case

iew
on the premise that it is a cognizable offence but, after investigation it turns out to be a non-cognizable
offence. However, if police officer treats it as non-cognizable case initially and takes permission from

ev
Magistrate under Section 174 and then investigates the case, in such a scenario the police report filed will
not be considered as deemed complaint. Supreme Court has clarified in Keshav Lal Thakur v. State of
Pr
Bihar, (1996) 11 SCC 557 that Explanation to Section 2(d) [now Section 2(1)(h) of BNSS] covers only
those cases where police initiates investigation into cognizable offence but the offence turns out to be non-
k
cognizable one.
oo

Complaint
eB

Form Commission of offence Person Made to

pl
m

Oral Written Cognizable Non-cognizable Known Unknown Magistrate

Sa

Essentials of valid complaint

Following are essentials of valid complaint-

 Allegation must be about the commission of an offence (cognizable or non-cognizable).

 Offence may be committed by known or unknown person.

 Made to a magistrate.

 It must be made with a view of his taking action under BNSS.

 It must not be a ‘police report’.

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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

A complaint may be made oral or in writing, no particular format is required. Supreme Court in
Mohd. Yusuf v. Afaq Jahan, (2006) 1 SCC 627 held that there is no particular format of complaint.
Nomenclature is also inconsequential. A complainant need not be a person aggrieved except in cases falling
under Sections 195-199 of the Code [now Sections 215 to 222 of BNSS]. Any person having knowledge of
the commission of any offence can file a complaint. Some Special & Local Acts (Cattle Trespass Act,
Prevention of food Adulteration Act, Employees Provident Fund Act etc.) provides that complaint should
be made only by some particular persons.

Investigation, Inquiry & Trial

Investigation

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Section 2(1)(l) provides that 'investigation' includes all proceedings under BNSS for the collection
of evidence conducted by the police officer or any person, other than the magistrate, authorized by him.

The basic purpose of investigation is the collection of evidence. Investigation is conducted by police

ev
officer. It must be noted here that investigation is not conducted by the magistrate. However, in certain

Pr
circumstances magistrate may authorize any person other than police officer to conduct an investigation.

Explanation to Section 2(1)(l) provides that the provisions of the special Act shall prevail, where
k
any of the provisions of a special Act are inconsistent with the provisions of this Sanhita. It is a newly
oo

added explanation. There was no corresponding explanation of this kind in [Link].

eB

Inquiry

Section 2(1)(k) provides that 'inquiry' means every inquiry, other than a trial conducted under BNSS
pl

by a Magistrate or Court. The basic purpose of inquiry is to ascertain truth or falsity of facts in order to
proceed further under BNSS. Inquiry is conducted by the Magistrate and inquiry and trial does not overlap.
m

Where trial begins, inquiry stops. Proceedings under Section 126, 127, 128, 129, 144, 152, 163, 164, 166,
Sa

167, 225, 379 of the Sanhita have been held to be inquiries.

Trial

The term ‘trial’ has not been defined in the Sanhita. There can be no universal meaning of the term
‘trial’. It can be defined as proceeding to determine guilt or innocence of the accused. Trial always ends in
either acquittal or conviction. The purpose of trial is to find out whether accused is guilty or not [Harchand
Singh v. State of Haryana, 1974 SCR (1) 583].
In Anokhilal v. State of M.P., (2019) 20 SCC 196 Supreme Court held that the object of criminal
trial is to search the truth. It must be conducted in such a manner as will protect the innocent and punish the
guilty.
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 Bharatiya Nagarik Suraksha Sanhita

Difference between Investigation and Inquiry

Investigation Inquiry
1. It is conducted by a police officer or any person 1. It is conducted by Magistrate or court.
authorized by Magistrate but not the Magistrate
himself.
2. It is a not a judicial proceeding. 2. It is a judicial proceeding.
3. The purpose is to collect the evidence for the 3. The purpose is to determine the truth or falsity
prosecution. of certain facts with a view to taking further
action.

4. Generally, investigation is the first stage of 4. Inquiry may not be preceded by an investigation

iew
criminal proceeding which is followed by inquiry. in all the cases. For instance, when a complaint is
filed before Magistrate, the court directly inquires
into the case.

ev
Difference between Investigation and Trial

Investigation Pr Trial
1. It is conducted by court.
1. It is conducted by police officer or any other
k
authorized person.
oo

2. The purpose of investigation is collection of 2. The purpose is to determine guilt or innocence

eB

evidence. of accused.
3. It is not a judicial proceeding. 3. It is a judicial proceeding.
pl

Difference between Inquiry and Trial

m

Inquiry Trial
1. All the proceedings before Magistrate or court 1. Trial begins when the charge is framed and in
Sa

prior to framing of charge is inquiry. summons trial, when the accused appears and is
2. It does not result in conviction or acquittal but told substance of accusation under Section 274.
may result in dismissal of complaint [Section 2. It either, result in acquittal or conviction of the
226] or discharge of accused or committal of accused.
case for trial.
3. An inquiry doesn't necessarily means an inquiry 3. A trial is always an examination of offence.
into an offence and it may relate to other matters.
4. The purpose is to test the truth or falsity of 4. The purpose is to determine guilt or innocence
certain facts with a view to take further action. of accused.
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Judicial Proceedings

Section 2(1)(m) provides that “Judicial Proceedings” includes any proceeding in the course of
which evidence is or may be legally taken on oath. It is proceeding whose object is to determine the jural
relation between one person and another or group of persons or community in general.

For example, maintenance proceedings under Section 144 of the Sanhita is judicial proceeding. Simi-
larly, inquiry by a Magistrate issuing an order under Section 163 is also a judicial proceeding.

Local jurisdiction

Section 2(1)(n) of the Sanhita defines ‘local jurisdiction’. In relation to a court or Magistrate it
means the local area within which the court or Magistrate may exercise all or any of its or his powers under

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BNSS and such area may comprise–

l The whole of the State; or

ev
l Any part of the State as the State Government may, by notification specify.

Pr
The Chief Judicial Magistrate is empowered under Section 12 to define the local jurisdiction of
Judicial Magistrate appointed in a district. Similarly, under Section 16, District Magistrate is empowered to
k
define local jurisdiction of executive Magistrate under him.
oo

Offence
eB

Section 2(1)(q) provides that an “offence” means :

(a) any act or omission made punishable by any law for the time being in force and,
pl

(b) any act in respect of which a complaint may be made under Section 20 of the Cattle Tresspass Act,
m

1871.
Sa

Police report

Section 2(1)(t) of Bharatiya Nagarik Suraksha Sanhita provides for the definition of 'police report'.
It states that police report means a report forwarded by police to a Magistrate under Section 193(3).
Section 193(3) provides that the officer in charge of police investigation shall forward after investigation a
report stating the name of parties, informant and all other details of the case along with the fact whether
offence is committed or not and by whom. Such police report may either be:

(a) Final report which does not disclose the commission of any offence, or

(b) Chargesheet which discloses the commission of any offence by accused name therein.
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 Bharatiya Nagarik Suraksha Sanhita

Difference between complaint and police report

Complaint Police Report

1. It can be made by any person. 1. It is submitted by a police officer in charge of a

police station.

2. It may be oral or in writing. 2. It is written and prepared in the form prescribed

by State Government.

3. It is a mere allegation that a person has 3. It consists of facts and conclusion drawn by the
committed an offence. police after investigating a case.

Warrant case and Summons case

iew
Section 2(1)(z) provides that 'warrant case' means a case relating to an offence punishable with
death, imprisonment for life or imprisonment for a term exceeding two years. Section 2(1)(x) provides

ev
that 'summons case' means a case relating to an offence which is not a warrant case.

Pr
The classification is useful for determination of type of trial procedure. The procedure in trial of summons
case is different from that of warrant case. The classification is based on the seriousness of the offence.
k
Difference between Summons and Warrant Case
oo

Summons Case Warrant Case

eB

1. They are of less serious nature and are punishable 1. They are serious in nature and are either
with imprisonment for a term less than 2 years punishable with death, life imprisonment or im-
pl

[Section 2(1)(x)]. prisonment for a term exceeding 2 years

[Section 2(1)(z)].
m

2. According to Section 227(1)(a), the court issues 2. In warrant cases, the court may either issue a
Sa

summons to the accused for his attendance. warrant or summon as it deems fit. [Section
227(1)(b)]

3. The trial in summons cases is simpler and less 3. Warrant cases for the purpose of trial are

complex and provides a single unified classified into (a) Session triable cases and (b)

procedure under Chapter XXI [Sections 274- Warrant trial by Magistrates. Warrant trial by

282]. Magistrates is further classified into two com-

prehensive procedures i.e. (a) Warrant trial on
police report and (b) Warrant trial otherwise than
on police report.

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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

4. Summons case can be withdrawn by the 4. A complainant cannot withdraw a warrant case
complainant by virtue of Section 280. but public prosecutor can withdraw it only with
the court's consent.

5. A summons case can be converted into warrant 5. Warrant case cannot be converted into
case. summons case.

6. In summons trial it shall not be necessary to 6. In warrant case it shall be necessary to frame
frame charge. charge.

7. Magistrate can stop proceedings under 7. There is no provision for stoppage of

summons case. [Section 281] proceedings.

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Victim

Section 2(1)(y) provides that 'victim' means a person who has suffered any loss or injury caused by

ev
reason of the act or omission for which the accused person has been charged. The expression “victim” also
includes his or her guardian or legal heir.
Pr
In Jagjeet Singh and Ors. v. Ashish Mishra @ Monu and Anr., (2022) 9 SCC 321 Supreme Court
k
held that victim has a legally vested right to be heard at every step post the occurrence of an offence
oo

including the stage of hearing of bail application of accused. Such a ‘victim’ has unbridled participatory
rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.
eB

Compoundable and Non-compoundable offences

pl

The term ‘compoundable’ and ‘non-compoundable’ offences are not defined in the Sanhita. Generally,
m

the offences are considered as wrong against the society large and, thus, they cannot be compounded by the
parties. However, there are certain less serious offences which are made compoundable under Section 359
Sa

of BNSS.

Offences

Compoundable Non-Compoundable

Without the With the

permission of permission of
court court
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 Bharatiya Nagarik Suraksha Sanhita

Offences mentioned in Section 359(1) r/w Table 1 are made compoundable without the permission
of the court. The application for compounding of offence is filed by the person mentioned in column 3 of

the table.

Offences mentioned in Section 359(2) r/w Table 2 are made compoundable with the permission of
the court. The application for compounding of offence is filed by the person mentioned in column 3 of

the table. Except those mentioned under Section 359 (1) and (2), all the other offences are non-
compoundable.

Difference between compoundable and non-compoundable offences

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Compoundable offences Non-compoundable offences

1. They are classified under Section 359 of BNSS 1. They are not classified under the Sanhita.

ev
2. They are less serious in nature. 2. They are more serious in nature.

3. They mostly affect private persons. Pr

3. They affect victim as well as society at large.
k
4. They can be compromised by victim and the 4. They cannot be compromised by the victim and
oo

offender without the court's permission offender in any circumstances.

[Section 359(1] or with court's permission
eB

[Section 359(2)].

5. Upon compromise, the offender is acquitted 5. Full trial is held which ends either in acquittal or
pl

without any trial [Section 359(8)]. conviction of the offender on the basis of evi-
m

dences.
Sa

Discharge and Acquittal

The terms ‘discharge’ and ‘acquittal’ are not defined in the Sanhita. Generally, discharge implies that
there is no prima facie evidence against the accused to justify framing of charge and he is released without
conducting any trial. Acquittal implies a decision of court after full trial whereby the accused is found not
guilty.

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Differences between discharge and acquittal

Discharge Acquittal

1. An order of discharge implies that there is no 1. The order of acquittal is a judicial decision taken
prima facie evidence against the accused to justify after trial establishing the innocence of the
framing of charge. accused.

2. A discharge does not bar the institution of fresh 2. An acquittal bars second trial on the same facts
proceedings when new or better evidence and for the same offence or on the same facts
becomes available against the accused. or any other offence for which different charge
[Explanation to Section 337] under Section 244(1) of the Sanhita might have

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been framed against the accused [Section 337].

3. A discharged person can be re-arrested and 3. An acquitted person cannot be re-arrested for

ev
committed for inquiry. the same case in which he has been acquitted by
the court.
Pr
Audio-Video Electronic means
k
Section 2(1)(a) provides that ‘Audio-video electronic means’ shall include use of any communication
oo

device for the purposes of video conferencing, recording of processes of identification, search and seizure
or evidence, transmission of electronic communication and for such other purposes and by such other
eB

means as the State Government may, by rules provide.

This is a newly introduced definition in the Sanhita. There was no corresponding provision
pl

of similar nature in CrPC. The term 'audio-video electronic means' was not previously defined.
m

Electronic Comminication
Sa

Section 2(1)(i) provides that 'Electronic communication' means the communication of any written,
verbal, pictorial information or video content transmitted or transferred (whether from one person to
another or from one device to another or from a person to a device or from a device to a person) by
means of an electronic device including a telephone, mobile phone, or other wireless telecommunication
device, or a computer, or audio-video player or camera or any other electronic device or electronic form as
may be specified by notification, by the Central Government.

This is a newly introduced definition in the Sanhita. There was no corresponding provision
of similar nature in CrPC. The term 'electronic communication' was not previously defined.


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 Bharatiya Nagarik Suraksha Sanhita

3
Criminal Courts & Offices

Classes of Criminal Courts

Section 6 provides for the classes of criminal courts. According to Section 6 following shall be the

iew
classes of criminal courts.

High Court (and other courts under other laws)

ev
Courts constituted under any law

Courts of Session

Classes of Criminal Courts

Pr
Judicial Magistrates of first class
k
Judicial Magistrates of second class and
oo

Executive Magistrates
eB

Territorial divisions

Section 7 provides that every State shall be a session division or shall consist of sessions division.
pl

Every sessions division shall, for the purpose of BNSS, be a district or consist of districts. State Government
m

with consultation of High Court may alter the limits or number of divisions and districts.

There is a change in Sections 6 and 7. Concept of ‘Metropolitan Area’ and ‘Metropolitan

Sa

Magistrates’, which were earlier provided in CrPC, has now been abolished in BNSS, 2023.

Court of Session, Sessions Judge, Additional Sessions Judge

Section 8 deals with the power of State Government to establish Court of Session & the power of
High court to appoint judges. Sessions Judges & Additional Sessions Judges are appointed by High Court
under Section 8.

Place of sitting: Section 8(6) lays down that the Court of Sessions shall ordinarily hold its sitting at
such place or places as the High Court may specify. In certain circumstances the court may also hold its
sitting in any other place in sessions division with the consent of prosecution and the accused.

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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

There is a change in this provision. The post of Assistant Sessions Judge has been abolished.
De facto doctrine: A de facto judge is one who is not a mere intruder or usurper, but one who holds
office under the colour of lawful authority even though his appointment is defective. Judgments made by
a de facto judge under the colour of lawful authority has the same effect as that made by a de jure judge.
Therefore, even if the appointment of a judge is found to be invalid judgments or orders made by him
will continue to be valid and effective. [Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132]

Courts of Chief Judicial Magistrate and Judicial Magistrates

Section 9 provides for establishment of Court of Judicial Magistrate of first class or of second class
in every district by the State Government after consultation with High Court. The Magistrates of such

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courts shall be appointed by High Court.

It further provides that the High Court may confer the powers of Judicial Magistrate first class or of

ev
second class to any member of judicial service functioning as Judge in a Civil Court. [Section 9(3)]

Appointment of Chief Judicial Magistrate and Additional Chief Judicial Magistrate

Pr
Section 10 provides that in every district the High Court shall appoint a Judicial Magistrate of first
k
class to be the Chief Judicial Magistrate. The High Court may also appoint Judicial Magistrate to be Additional
oo

Chief Judicial Magistrate.

Position of Chief Judicial Magistrate: Supreme Court in Delhi Judicial Service Association
eB

v. State of Gujarat, (1991) 4 SCC 406 held that the Chief Judicial Magistrate is the head of the
Magistracy in the district. He exercises control and supervision over investigating officer. He is to ensure
pl

that the police which is the law enforcing machinery acts according to the law in investigation of crime
m

without indulging in excesses and causing harassment to citizens.

Sa

Additional Chief Judicial Magistrate shall have all or any of the powers of Chief Judicial Magistrate
[Section 10(2)]. The High Court may also designate any Judicial Magistrate of first class to be Sub-divisional
Judicial Magistrates.

Special Judicial Magistrate

Section 11 provides for the appointment of Special Judicial Magistrate by the High Court on request
of the Central or State Government in respect to particular case or particular classes of cases.

Qualification: Any person who hold or has held any post under the government may be appointed
as Special Judicial Magistrate if he possesses such qualification or experience in relation to legal affairs as
specified by the High Court.
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 Bharatiya Nagarik Suraksha Sanhita

Term of appointment: Special Judicial Magistrate may be appointed for a term not exceeding one

year at a time.

Local jurisdiction of Judicial Magistrates and Special Judicial Magistrates

Section 12 lays down that subject to the control of High Court, the Chief Judicial Magistrate may,

from time to time, define the local limits of the areas within which the Magistrates appointed under Section

9 or Section 11 may exercise powers.

Subordination of Judicial Magistrates

Section 13 provides that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge.

iew
Every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to

the Chief Judicial Magistrate.

ev
Executive Magistrates
Pr
Sections 14-17 provide for provisions of appointment, jurisdiction and subordination of Executive
k
Magistrates.
oo

Section 14 provides that in every district the State Government may appoint as many persons as it
eB

thinks fit to be Executive Magistrates and shall appoint one of them to be District Magistrate.

Section 15 provides for Special Executive Magistrates to be appointed by the State Government.
pl

Section 16 provides for local jurisdiction of Executive Magistrates. Section 17 provides provisions for
m

subordination of Executive Magistrates. All Executive Magistrates other than Additional District Magistrate
Sa

shall be subordinate to District Magistrate.

Public Prosecutors & Assistant Public Prosecutors

Section 2(1)(v) defines ‘Public Prosecutor’. It means any person appointed under Section 18 and

includes any person acting under the directions of public prosecutor.

Section 18 of BNSS provides for the appointment of Public Prosecutor. He is the person appointed

for conducting and prosecution, appeal or other proceeding on behalf of the Central Government or State

Government, as the case may be in the court for which he is appointed.

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 A Compendious Guide to Judicial Services Mains Examinations : Volume 4

Who may appoint Public Prosecutor?

A public prosecutor is appointed for every High Court and every district.

(i) Appointment in High Court: Section 18(1) provides that for every High Court, Public Pros-
ecutor shall be appointed by Central Government or the State Government after the consulta-
tion with High Court. One or more Additional Public Prosecutor can also be appointed for
conducting cases.

There is an addition in this provision. A new Proviso has been added to Section 18(1) which
provides that the appointment of Public Prosecutor and Assistant Public Prosecutor for Na-
tional Capital of Delhi shall be made by the Central Government after consultation with the

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High Court of Delhi.

(ii) Appointment in District: Section 18(3) provides that for every district, the Public Prosecutor

ev
shall be appointed by the State Government provided :

(a)
Pr
His name appears in the panel of names prepared by District Magistrate in consultation
with Sessions Judge [Section 18(4) and (5)]; or
k
(b) Where in a State there exists a regular cadre of prosecuting offices, he is from among the
oo

persons constituting such cadre [Section 18(6)].

eB

There is a change in Explanation (b) to Section 18(6). Special Public Prosecutor is also now
included in the definition of term ‘Public Prosecutor’.
pl

The Central Government may also appoint one or more Public Prosecutors for conducting any case
or class of cases in any district or local area. [Section 18(2)].
m

Eligibility: Section 18(7) provides that a person is eligible to be appointed as a Public Prosecutor
Sa

only if he has been in practice as an advocate for 7 years or more.

Section 18(8) provides that a person is eligible to be appointed as a Special Public Prosecutor only if
he has been in practice as an advocate for 10 years or more.

Role of Public Prosecutor: Supreme Court in Sidhartha Vashisht v. State (NCT of Delhi),
AIR 2010 SC 2352 observed that a public prosecutor has wider set of duties than to merely ensure
that the accused is punished . Public Prosecutor has duty to ensure fair play in the proceedings for
determination of truth and justice for all parties including victim. These duties do not allow prosecutor
to be lax.

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 Bharatiya Nagarik Suraksha Sanhita

Further, in Captain Amarinder Singh v. Prakash Singh Badal, (2009) 6 SCC 260 Supreme
Court held that Public Prosecutor is an officer of the court. He cannot act on the dictates of the State
Government. He has to act objectively.

Assistant Public Prosecutor

Section 19 of the Sanhita provides for the Assistant Public Prosecutor.. It states that the State
Government shall appoint in every district one or more Assistant Public Prosecutors for conducting
prosecutions in Courts of Magistrates. Further, the Central Government may appoint one or more Assistant
Public Prosecutors for the purpose of conducting any case or class of cases in Courts of Magistrate.

Appointment of police officer as Assistant Public Prosecutor : Section 19(3) provides that if

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no Assistant Public Prosecutor is available, the District Magistrate may appoint any other person to be the
Assistant Public Prosecutor in charge of the particular case, only after giving fourteen days’ notice to the
State Government. Provided that no police officer shall be eligible to be appointed as an Assistant Public

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Prosecutor if he-

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he has taken any part in the investigation into the offence for which the accused is being pros-
ecuted
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(b) he is below the rank of inspector.
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There is a change in this provision. Section 19(3) now provides that if no Assistant Public
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Prosecutor is available, the District Magistrate may appoint any other person to be the Assistant
Public Prosecutor in charge of the particular case, only after giving fourteen days’ notice to the
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State Government.
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Directorate of Prosecution
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Section 20 provides for the establishment of Directorate of Prosecution by State Government.

Section 20(1)(a) provides for the establishment of Directorate of Prosecution in State consisting of
Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. Further, Section
20(1)(b) provides for the establishment of District Directorate of Prosecution in every district consisting
of as many Deputy Directors and Assistant Directors of Prosecution as it thinks fit.

There is a change in this provision. Earlier, CrPC provided only for the establishment of
Directorate of Prosecution but now Section 20 of BNSS, 2023 states specifically that Directorate
of Prosecution shall be established both in the State and in every district. New post of Assistant
Director of Prosecution has also been created.

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Qualification

Section 20(2)(a) provides that a person shall be eligible to be appointed as Director of Prosecution
or Deputy Director of Prosecution if he has been an advocate in practice for not less than 15 years or is or
has been a Sessions Judge.

Further, Section 20(2)(b) provides that a person shall be eligible to be appointed as Assistant Director
of prosecution if he has been an advocate in practice for not less than seven years or has been a Magistrate
of the first class.

There is a change in this provision. Eligibility criteria provided in CrPC for appointment of
Director and Deputy Director of Prosecution has been changed in BNSS, 2023. Now, any
person who has been in practice as an advocate for not less than 15 years can be appointed as

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Director and Deputy Director of Prosecution. Earlier, in CrPC, it was ten years. Also, the
requirement of concurrence of Chief Justice of High Court in their appointment has been

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removed. Now former Sessions Judge can also become Director or Deputy Director of
Prosecution.

Subordination and Hierarchy

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Section 20(3) provides that Directorate of Prosecution shall be headed by the Director of Prosecution
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and shall function under the administrative control of the Head of Home Department in the State.
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Section 20(4) provides that every Deputy Director of Prosecution or Assistant Director of Prosecution
shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be
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subordinate to the Deputy Director of Prosecution.

Section 20(5) provides that every Public Prosecutor, Additional Public Prosecutor and Special Public
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Prosecutor to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
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Section 20(6) provides that every Public Prosecutor, Additional Public Prosecutor, Special Public
Prosecutorand every Assistant Public Prosecutor to conduct cases in the District Court shall be subordinate
to the Deputy Director or Assistant Director of Prosecution

Powers and Functions

Section 20(7) to Section 20(10) provides powers and functions.

1. Director of Prosecution- to monitor cases in which offences are punishable for ten years or
more, or with life imprisonment, or with death; to expedite the proceedings and to give opinion
on filing of appeals. [Section 20(7)]

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2. Deputy Director of Prosecution-to examine and scrutinise police report and monitor the
cases in which offences are punishable for seven years or more, but less than ten years, for
ensuring their expeditious disposal. [Section 20(8)]

3. Assistant Director of Prosecution - to monitor cases in which offences are punishable for
less than seven years. [Section 20(9)]

However, the Director, Deputy Director or Assistant Director of Prosecution shall have
the power to deal with and be responsible for all proceedings under this Sanhita. [Section
20(10)]

There is a change in this provision. CrPC did not clearly specified the functions of Director
and Deputy Director of Prosecution. Section 20(7), (8), (9) & (10) of BNSS, 2023 now clearly

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specifies the role of Director, Deputy Director and Assistant Director of Prosecution.

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

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 Bharatiya Nagarik Suraksha Sanhita

4
Power of Courts

Trial Courts

Section 21 lays down courts by which offences are triable. It lays down that subject to other

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provisions of this Sanhita any offence under Bharatiya Nyaya Sanhita may be tried by—

(i) High Court

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(ii) Court of Session
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(iii) Any court by which such offence is shown in the First Schedule to be triable.
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It also provides that any offence under Sections 64, 65, 66, 67, 68, 69, 70, 71 of Bharatiya Nyaya
oo

Sanhita shall be tried as far as practicable by a court presided over by a women.

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Section 21(b) provides for offences other than those mentioned in Bharatiya Nyaya Sanhita. It provides

that such offences will be tried by the court mentioned in that law or if no court is mentioned then they may
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be tried by-
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(i) High Court

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(ii) Any other court by which offence is shown in the First Schedule to be triable.

Supreme Court in Sudhir v. State of M.P., AIR 2001 SC 826 held that a Sessions Judge has the

power to try offences under Indian Penal Code [now BNS]. It is not necessary for the Sessions Court that the

offence should be exclusively traible by a Court of Session. This power can be discerned from reading of

Section 26 of the Code [now Section 21 of BNSS]. If the case is not exclusively triable by Sessions Court and

it is committed to the Court of Sessions then Sessions Judge has to exercise his discretion regarding the case

whether he has to continue trial in his court or transfer the case of the Chief Judicial Magistrate.

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Sentence which may be Passed by Criminal Courts

Sl. Court Power

1. Supreme Court Any sentence authorised by law.

2. High Court [Section 22(1)] Any sentence authorised by law.

3. Session Court [Section 22(2)] Any sentence authorised by law; sentence of death
* Session Judge is subject to confirmation by High Court.
* Additional Sessions Judge

4. Chief Judicial Magistrate Imprisonment up to 7 years or/and fine or/and

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or Additional Chief Judicial Community Service.
Magistrate [Section 23(1)]

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5. Sub-divisional Judicial Magistrate Imprisonment up to 3 years or/and fine up to

6. Judicial Magistrate or Special

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Rs. 50,000 or Community Service.

Imprisonment up to 3 years or/and fine up to

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Judicial Magistrate of first class Rs. 50,000 or Community Service.
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[Section 23(2)]
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7. Judicial Magistrate or Special Imprisonment up to 1 year or/and fine up to

Judicial Magistrate of Second class Rs. 10,000 or Community Service.
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[Section 23(3)]
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There is a change in this provision. The amount of fine that can be imposed by Judicial
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Magistrate First Class and Second Class has been increased. New punishment in form of
Community Service has been introduced. Explanation to Section 23(3) provide the meaning of
community service.

Community Service

Punishment in form of community service has been newly introduced. Explanation to Section 23
states that states that “Community service” shall mean the work which the Court may order a convict to
perform as a form of punishment that benefits the community, for which he shall not be entitled to any
remuneration.

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Imprisonment in default of payment of fine

Section 24 provides that the court of Magistrate may award such term of imprisonment in default
of payment of fine as is authorized by law. This section only confers the power to the court to impose
imprisonment in default of payment of fine. Imprisonment awarded under this provision may be in
addition to substantive sentence of imprisonment for the maximum term awardable by the Magistrate
under Section 23. Section 24 provides two limitations:-

(i) Such imprisonment shall not be in excess of the powers of the Magistrate under Section 23.

(ii) If the imprisonment has been awarded as a part of substantive sentence then the imprisonment
for default of payment of fine shall not exceed one-fourth of the term of imprisonment which

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the magistrate is competent to inflict as punishment for the offence.

Section 8 of Bharatiya Nyaya Sanhita provide for law relating to imprisonment in default of fine.

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In Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718, Supreme Court held that

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default sentence must be in excess or in addition to substantive sentence. Concurrent running of default
sentence inter se or with default sentence is not permissible.
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Nature of imprisonment in default of fine: In Shantilal v. State of M.P., (2007) 11 SCC 243
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Supreme Court clarified that the imprisonment in defualt of payment of fine is not a 'sentence'. It is a
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penalty which a person incurs on non-payment of fine. A sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole, either in appeal or revision or other appropriate
proceedings. A term of imprisonment in default of payment of fine stands on a different footing. A
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person is required to undergo imprisonment either because he is unable to pay the amount of fine or he
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refuses to pay such amount. He can always avoid undergoing imprisonment in default of payment of fine
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by paying such amount.

Sentences in case of several offences

It is often seen that the accused is punished for the more than one offences. In such circumstances
Section 25 of Sanhita provides for sentencing in cases of conviction of several offences at a trial. According
to this section, subject to Section 9 of the Bharatiya Nyaya Sanhita, where a person is convicted for several
offences at one trial, then the court may punish him with several punishments for each of such offences
which the court is competent to inflict. The court shall, after considering the gravity of offences, order such
punishments to run concurrently or consecutively.

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In Gagan Kumar v. State of Punjab (2019) CRI. L.J. 1582, Supreme Court held that it is a mandatory
legal requirement to specify whether sentences awarded to an accused convicted for two or more offences,
would run concurrently or consecutively.

In O.M. Cerian v. State of Kerala, AIR 2015 SC 303, Supreme Court held that Section 31 of the
Code [now Section 25 of BNSS] leaves full discretion with the court to order sentences for two or more
offences at one trial to run concurrently or consecutively. Regard must be had to nature of offence, aggravating
and mitigating circumstances. It cannot be said that the normal rule is to order the sentence to run consecutively
and exception is to make it concurrent.

In Sunil Kumar v. State of U.P., (2021) 5 SCC 560 Supreme Court held that there cannot be any
straightjacket approach in manner of exercise of such discretion.

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In Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204, Supreme Court held that the
Trial Court as well as Appellate Court has full discretion to order the sentences to run concurrently in case

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of conviction for two or more offences in consonance with the provisions of Section 31 of CrPC [now
Section 25 of BNSS].
Pr
Case when aggregate of such punishment exceeds the punishment which the court is competent
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to inflict
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The law relating to such case is provided under Section 25(2) of the Sanhita. It provides that merely
because the aggregate of such punishments for several offences exceeds the punishment which the court is
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competent to inflict for single offence, the court will not send the case for trial to higher court. Section
25(2) provides following two limitations:
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(a) no person shall be imprisoned for more than 20 years.

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(b) the aggregate punishment shall not exceed twice the amount of punishment which the court is
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competent to inflict for single offence.

There is a change in this provision. Section 25(1) of BNSS, 2023 now imposes a duty upon
the Court to ascertain whether the sentences shall run consecutively or concurrently, on the
basis of gravity of offence. Earlier in CrPC, it was provided that if the Court has not specifically
mentioned the sentences to run concurrently then it would run consecutively only. Also, in case
of consecutive sentence, in Proviso (a) to Section 25(2), the maximum sentence of imprisonment
has been increased from fourteen years to twenty years.



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BHARATIYA NYAYA
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SANHITA
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 Bharatiya Nyaya Sanhita

1
Nature, Definition, Meaning and
Elements of Crime

Bharatiya Nyaya Sanhita, 2023 repealed Indian Penal Code, 1860. The Sanhita came into force from
1st July, 2024. The main objective of this Sanhita is to consolidate and amend the provisions relating to
offences and for matters connected thereto.

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Definitions of Crime

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The concept of crime has been in existence since time immemorial. However the concept of crime is
not susceptible to a precise definition. Russell has admitted that to define crime is a task which so far has not
Pr
been satisfactorily accomplished by any writer. It has been interpreted and explained from different percep-
tions from different strata of society. If we attempt to define crime then it can be said to be an act which
k
is both forbidden by law and against the moral sentiments of society. For an act to be a crime it must be
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opposed to law prevailing at the time. In T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168, Supreme
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Court held that a crime is an act that subjects the doer to a legal punishment.

Law itself is dynamic concept and it keeps on changing according to needs of society. Therefore, it can
pl

be said that the meaning and scope of crime may also change. What is not crime in one generation may be
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a crime in another generation. Similarly, moral values also change from society to society. What may be
morally wrong in one society may not be so in another society. This varying nature and content of crime
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poses problem of precise definition. Following are the definitions given by various jurists:-

 Bentham: Offences are whatever the legislature has prohibited for good behavior or for bad
reasons.

 Blackstone: A crime is an act committed or omitted in violation of a public law forbidding or

commanding it.

 Stephen: A crime is a violation of a right, considered in reference to an evil tendency of such

violations as regards the community at large.

 Austin: A wrong which is pursued by the sovereign or his subordinates is a crime.

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 Kenny: Crime is a wrong whose sanction is punitive and is in no way remissible by any private
person, but is remissible by Crown alone if remissible at all.

 Miller: Crime is commission or omission of an act which the law forbids or commands under
pain of a punishment to be imposed by the State by a proceeding in its own name.

 P.H. Winfield: Crime is a wrong the sanction of which involves punishment and punishment
signifies death, penal servitude, whipping, fine, imprisonment or some other evil which, when
once liability to it has been decreed, is not avoidable by any act of the party offending.

Nature of crime

Crime is a wrong against the society. It shakes the societal conscience and affects the sense of security

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in a society. It is for this reason the State is the chief prosecutor in any criminal case. It is the duty of the State
to bring the criminal to justice and ensure peace in society. A State is expected to have an efficient law and
order mechanism so that subjects can lead a peaceful life with no fear of injury to person or property.

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Elements of crime
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One of the most fundamental principles of criminal liability is that there must be wrongful act-actus
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reus accompanied by wrongful intention -mens rea. Following are the chief elements of crime:-
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A human being
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Chief
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Injury to another elements Evil intention (mens rea)

of crime
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Act or omission (actus reus)

Mens rea

Mens rea is a Latin word which means evil intent. The general rule applicable in criminal law is actus non
facit reum nisi mens sit rea i.e. the act itself does not make a man guilty unless his intentions are so. The existence
of liability with respect to crime is dependent upon certain mental conditions. The intent and act must
concur to constitute a crime. The responsibility in crime is dependent on doing a willful and voluntary act
with a particular intent behind the act. For any criminal liability there must be a voluntary act. It is derived

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from the maxim actus me invitio factus non est mens actus i.e. an act done by me against my will is not my act at
all. No person can be held liable for an act done against his will.

Section 2(33) of the Sanhita defines the term 'voluntarily'. A person is said to do an act voluntarily
when he causes it by means whereby he intended to cause it or by means which, at the time of employing
those means, he knew or had reason to believe to be likely to cause it.

In earlier times the criminal intention was entirely disregarded in respect of offences. The liability in
older English law was absolute. It was during 13th and 14th century that requirement of mens rea as a
necessary element of crime was established.

In Sherras v. De Rutzen, (1895) 1 Q.B. 918 the court held that in every statute mens rea is to be implied
unless the contrary is shown. The court held that mens rea is an essential element in every offence except in the

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following cases; (1) cases not criminal in any real sense but which in the public interest are prohibited under
penalty, for example Revenue Acts; (2) public nuisance and (3) cases criminal in form but which are only a

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summary mode of enforcing a civil right.

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In R. v. Prince, (1875) L.R. 2 CCR 154 Henry Prince was prosecuted for abducting a girl below the
age of 16 years under the belief that she was above 18 years of age. The court drew a distinction between
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acts that were themselves innocent but were made punishable by statute (malum prohibitum) and acts that were
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intrinsically wrong (malum in se). In cases of malum prohibitum it could be held that there can be no conviction
in absence of mens rea. But in cases of malum in se person can be convicted even in absence of mens rea unless
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the statute has made it otherwise.

In Queen v. Tolson, (1889) 23 QBD 168 it was held by the court that as a general rule there must
pl

be a guilty mind before there can be a crime but a statute may make an act criminal whether there has been
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any intention to break the law or not.

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In Brend v. Wood, (1946) 62 TLR 462 Goddard C.J. observed that the general rule applicable to
criminal case is that the court must bear in mind that unless a statute either clearly or by necessary implication
rules out mens rea as a constituent part of the crime the court should not find a man guilty of an offence
unless he has a guilty mind.

This view was also adopted by Indian Supreme Court in State of Maharashtra v. M.H. George,
AIR 1965 SC 722, Supreme Court considered the application of the principle of mens rea in statutory
offences. The court held that unless the statute either clearly or by necessary implication rules out mens rea as
a constituent part of the crime the accused should not be held guilty of an offence unless he has a guilty
mind.
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Supreme Court in Nathu Lal v. State of M.P., AIR 1966 SC 43 observed that mens rea is an essential
ingredient of criminal offence. It is a sound rule of construction to include mens rea in every offence unless
the statute by express or necessary implication excludes it. Mens rea by necessary implication can be excluded
from a statute only when it is absolutely clear that implementation of the object of the statute will not
otherwise be affected.

Mens rea in Bharatiya Nyaya Sanhita

Bharatiya Nyaya Sanhita precisely provides definition of offences. Guilt in respect of offences under
Bharatiya Nyaya Sanhita is fastened either on the ground of intention, knowledge or reason to believe.
Offences under the Sanhita are generally qualified by terms such as 'intention', 'knowledge', 'voluntarily',
'fraudulently', 'dishonestly', 'wrongful loss', 'wrongful gain' etc. All these words indicate the mental condi-

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tion required at the time of commission of offence.

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Strict liability in law of crimes

Strict liability offences are those offences in which mens rea is not required to be proved. In such kind of
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offences, the accused may be held guilty on proof of actus reus even without guilty mind. English courts
have consistently held that the liability will be strict if legislature has not defined the offence with reference
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to the guilty mind. If the intention of the law makers is to exclude mens rea then the offender will be guilty
without mental element. In modern legislations, strict liability offences are generally found in special legisla-
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tions like taxation, traffic offences, environmental offences etc.

In State of Maharashtra v. M.H. George, AIR 1965 SC 722 Supreme Court held that offences
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which adversely affect the economic conditions of the country will be strict liability offence. Common law
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has following recognized exceptions to the general principle of mens rea:-

(1) Public nuisance

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(2) Criminal libel

(3) Contempt of court

(4) Bigamy

(5) Kidnapping

Actus reus

Actus reus is a Latin term which means physical result of human conduct or consequence of human
conduct which is prohibited by law. According to Kenny, actus reus is such result of human conduct which

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the law seeks to prevent. For example, in homicide, victim's death is actus reus. Merely evil intention is not
enough to constitute a crime. There has to be some manifest voluntary act or omission on the part of
offender. Act includes illegal omission also.

Requirement of actus reus varies depending upon the definition of the crime. Each section of Bharatiya
Nyaya Sanhita defining an offence provides for a particular kind of human conduct and consequences
thereof. It is only when particular consequence required in that section is proved, then the actus reus for the
particular offence is said to be proved. Actus reus may be with reference to place, time, person, state of
mind, consent etc. In case of offence of house breaking, actus reus is with respect to place. In case of house
breaking by night, actus reus is with respect with both place and time.

Extent and territorial application of the Sanhita

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Section 1(3) provides that every person shall be liable to punishment under this Sanhita and not
otherwise for every act or omission contrary to the provisions, of which he shall be guilty within India.

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Bhartiya Nyaya Sanhita, 2023 came into force from 1st July, 2024 except provisions of Section 106(2). It
received assent of President on 25th December, 2023.

Intra-territorial operation of the Sanhita

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As a general rule, enforcement of statutory law is always intra-territorial. No country will allow an-
other country to enforce its laws within its territory. Section 1(3) provides for intra-territorial applicability
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of Sanhita. If any person commits the violation of Sanhita within the territory of India he shall be punish-
able under the Sanhita.
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Section 1(3) uses the word 'every person'. It means that every person, irrespective of caste, creed,
nationality, sex, religion, rank etc shall be amenable to the jurisdiction of the court. The word ‘every person’
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under this section means and includes citizen of India as well as non-citizens.
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In Mobarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857 Supreme Court clarified that the
phrase 'every person' means all persons without limitation irrespective of nationality, allegiance, rank, caste,
creed or colour. This section must be understood as comprehending every person without exception bar-
ring such as may be specifically exempted from criminal proceeding by virtue of Constitution or any other
statutory provision.

Further, Section 2(26) defines the term 'persons'. It is an inclusive definition and includes Company
or Association or body of persons, whether incorporated or not. Therefore, in other words, the term
'person' includes natural as well as juristic persons. The expression 'within India' in Section 1(3) indicates
intra territorial operation of the Sanhita.
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Supreme Court in Mobarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857 held that the basis of
jurisdiction under Section 2 [now Section 1(3) of BNS] is the place where the crime is committed. Corporal
presence of offender is immaterial. If all the ingredients of the offence take place within municipal limits of
a country then the accused will be liable even he was physically absent at the time of commission of offence.
Any person who commits the offence from outside India but effected upon the territory of India will also
be said to have committed the offence within the territory of India because the effect of the offence will be
directly upon the territory of India. Personal presence of the accused in India is not neessary at the time of
commission of offence.

Jurisdiction over territorial sea

Territorial sea is that part of sea over which a country exercises authority. Indian territorial waters

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extend into sea to a distance of 12 nautical miles measured from appropriate baseline. In International law
the generally accepted view is that States have complete sovereignty over territorial sea. Therefore, offences

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committed within this limit are considered to be offences committed within territory of India. It must be

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noted that territorial sovereignty does not extend to high seas, however the countries may enact legislations
to extend their jurisdiction beyond territorial waters.
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In Republic of Italy v. Union of India, (2013) 4 SCC 721 (Italian Marines Case) Supreme Court
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held that Indian Penal Code and Code of Criminal Procedure [now BNS and BNSS] duly extend to contigu-
ous zone (24 nautical miles) of India.
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Offences by corporations
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Supreme Court in Commr. v. Velliappa Textiles Ltd., (2003) 11 SCC 405 held that liability of
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corporation arises which the offence is committed in course of corporation's business by the person in
control of the affairs.
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In Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 Supreme Court clarified that there is no vicarious
liability of the directors of the company unless the statute specifically provides so. Therefore, an individual
who has perpetrated the commission of offence on behalf of company can be made an accused, along
with the company, if there is sufficient evidence of his active role coupled with criminal intent.

Extra territorial operation of the Sanhita

Sometimes, penal statutes may have extra-territorial operation. They may empower court to exercise
jurisdiction over citizens of the State even though they have committed the crime beyond jurisdictional
limits of the State concerned. Section 1(4) read with Section 1(5) deals with extra-territorial application of

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Sanhita i.e. when a person has committed a violation of the provisions of Bharatiya Nyaya Sanhita outside
the territory of India, but will be punishable under Bharatiya Nyaya Sanhita. Provisions of these sections
extend the jurisdiction of courts in India over citizens of India beyond the territorial limits of India.

Section 1(4) provides that an act constituting an offence in India shall also be an offence when
committed outside India. If any person, liable under Indian law, does an act in a foreign country which is
not an offence in that country but is an offence in India, he may be prosecuted in India. This section gives the
jurisdiction to Indian courts to try any person for offences committed beyond India, as though it had been
committed in India. Following conditions are to be fulfilled:-

1. Person should have committed an act outside India, which if committed in India would be

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punishable.

2. That person is liable under some Indian law to be tried in India for that offence.

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Section 1(5) provides for extension of Sanhita to extra-territorial offences. It provides that the provi-

1.
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sions of this Sanhita apply also to any offence committed by—

Any citizen of India in any place without and beyond India.

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2. Any person on any ship or aircraft registered in India wherever it may be.

3. Any person in any place without and beyond India committing offence targeting a computer
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resource located in India.

For example, ‘A’ who is a citizen of India, commits a murder in Uganda. He can be tried and convicted
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of murder in any place in India in which he may be found. The object of Section 1(5) is to make provi-
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sions of the Sanhita applicable to an Indian citizen who commits an offence outside India and also to any
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non-Indian who commits an offence on any ship or aircraft registered in India or for committing an
offence targeting a computer resource located in India.

Section 1(5) extends the jurisdiction of the Sanhita to extra-territorial offences, that is offences com-
mitted beyond the limits of India but the offender is found within the limits. In Jitender Panchal v.
Narcotics Control Bureau, (2009) 3 SCC 57 the Supreme Court held that even if an accused has faced
trial in a foreign country for an offence arising out of same transaction, he may be tried and punished in
India for an offence separate and distinct from previously charged offence in the foreign country, and the
subsequent trial shall not be hit by prohibition against double jeopardy.

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The question at what place a victim can file a complaint against the accused if the offence has been
committed outside India was decided by Supreme Court in Om Hemrajani v. State of U.P., (2005) 1
SCC 617. The court held that the victim can file a complaint about the said offence to any competent court
in India in which he may find convenient. Convenience is of the victim and not of the accused. It is not the
requirement that the victim shall state in the complaint as to which place the accused may be found. It is
enough to allege that the accused may be found in India.

Section 1(5) of the Bharatiya Nyaya Sanhita is almost similar to Section 208 of the Bharatiya Nagarik
Suraksha Sanhita, which lays down that no such offence shall be inquired into or tried in India except with
the previous sanction of the Central Government. Language of Section 1(5) of BNS and Section 208 of
BNSS plainly means that if at the time of commission of an offence, the person committing it is a citizen

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of India, then even if the offence is committed outside India he is subject to the jurisdiction of the courts
in India.

ev
The rule enunciated in these sections is that qua citizen the jurisdiction of the court is not lost by reason

Pr
of venue of the offence. In Central Bank of India v. Ram Narain, AIR 1955 SC 36 Supreme Court held
that if a person at the time of committing offence is not citizen of India and acquires citizenship subequently
k
then the trial in India is illegal.
oo

Combined effect of Section 1(3), 1(4) and 1(5) of the Sanhita

eB

Bharatiya Nyaya Sanhita will apply in the following circumstances in light of the combined effect of
Section 1(3), 1(4) and 1(5) of the Sanhita:-
pl

1. Indian citizen commits offence in India.

m

2. Foreigner commits an offence in India.

Sa

3. Indian citizen or a foreigner commits the offence in India and escapes to foreign country.

4. Offence committed on a foreign ship which entered territorial waters of India.

5. Indian citizen who committed offence beyond India.

6. Indian citizen or a foreigner who commits an offence on any ship or aircraft registered in India.
That ship or aircraft may be anywhere in the world.

7. Indian citizen or a foreigner who commits an offence targeting a computer resource located in
India.



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2
General Exceptions

General exception contained in Chapter 3, Sections 14-44 extinguish the criminal liability. These are
rules of evidence carrying conclusive or rebuttable presumptions. They deal with circumstances which
extinguish mens rea. The wrongdoers who committed actus reus with requisite mens rea may escape liability

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because the act falls in general exceptions. Section 3(1) of Bharatiya Nyaya Sanhita provides that definitions
in the BNS are to be understood subject to exceptions. Framers of the Sanhita have put all general excep-

ev
tions in one place and dispensed with the necessity of repeating the general exceptions in every definition or
penal provision. Pr
This chapter applies to the offences not only defined in Bharatiya Nyaya Sanhita but also the offences
k
defined by any local or special law. Section 2(24) of the Sanhita defines 'offence' as denoting a thing
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punishable under the Bharatiya Nyaya Sanhita as well as special or local law. Section 2(24) read with
eB

Section 3(1) clearly shows that general exceptions are applicable not only to the offences mentioned in
Bharatiya Nyaya Sanhita but also to penal provisions contained in other special or local laws.
pl

Categories of exceptions: General Exceptions can be broadly categorized into following categories:-
m
Sa

Excusable Justifiable
[Sections 14, 17, 18, 20, 21, 22, 23, 24] [Sections 15, 16, 19, 25, 26, 27, 30, 31,
32, 33, 34-44]

In the first category i.e. excusable, the necessary mens rea for the offence is lacking while in second
category i.e. justifiable the circumstances under which the offence is committed furnish legal justification for
its commission. In first category, the act is excused for want of necessity of guilty mind. In second category
the act is justified on account of some other considerations.

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Burden of proof

As a general rule the burden to prove the guilt of the accused is on the prosecution. However, in cases
of General Exception this rule is reversed. Section 108 of Bharatiya Sakshya Adhiniyam provides that if an
accused person claims the benefit of exceptions, the burden of proving his plea that his case falls under the
general exception lies upon the accused.

In K. M. Nanawati v. State of Maharashtra, AIR 1962 SC 605 Supreme Court observed that if an
accused pleads exceptions contained in Indian Penal Code [now BNS] then there is a presumption against
him and the burden to rebut that presumption is on him. Although the burden of proof in respect of
proving the existence of circumstances under Chapter IV of the Code [now Chapter III of BNS] is on the

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accused, the standard of proof required is not the same as that of prosecution. Prosecution is required to
prove the elements of crime beyond reasonable doubt. But in case of defence, the accused need not prove

ev
the case under Chapter IV of the Code [now Chapter III of BNS] beyond reasonable doubt.

Supreme Court in Ranjitham v. Basavraj, AIR 2012 SC 1856 held that the accused discharges his
Pr
burden as soon as he proves the preponderance of probability of the existence of the circumstances
bringing his case within the general exceptions.
k
oo

In T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 Supreme Court held that standard
of proof is not the same as expected from the prosecution. It is enough that the accused maes his case in
eB

any of the general exception by standard of preponderance of probabilities.

Mistake of Fact
pl
m

Sections 14 and 17 incorporates the law relating to mistake as an exception to criminal liability. They
are based on the principle of ignorantia facit doth excusat, ignorantia juris non excusat i.e. ignorance of fact is an
Sa

excuse but ignorance of law is not an excuse. Everyone is presumed to know the law. It is a legal fiction
created for sake of convenience and out of necessity.

The exemption on the basis of mistake of fact or ignorance of fact is based on the premise that the
man who is mistaken or ignorant about the existence of fact cannot form necessary mens rea to constitute an
offence. Mistake negatives the existence of a particular 'intent' which the penal law requires in making a
person liable. Mistake is an erroneous mental condition induced by ignorance, misapprehension or misun-
derstanding of truth. Ignorance of fact must be ignorance in respect of material fact i.e. fact which is
essential to constitute an offence.

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Mistake of law

Mistake or ignorance of law is no excuse. Mistake of law means mistake or ignorance as to whether
there is law regarding a certain subject or a mistake or ignorance as to provisions of law. Mistake of law is
not allowed to be pleaded as a defence. It applies even to a foreigner. If such kind of defence is allowed to
be pleaded then everyone will advance this defence and it will be very difficult to prove whether the person
was really ignorant of law or not.

Section 14 excuses a person from criminal liability who is bound by law to do something and has
done it, or who in good faith, owing to a mistake of fact, believes that he is bound by law to do something
and does it. Section 17 absolves a person, who believes, by reason of mistake of fact and not by reason of
mistake of law, in good faith, that his act would be justified by law.

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In Queen v. Tolson, (1889) 23 QBD 168 court held that belief in good faith about the existence of
fact which do not exist would make act innocent in law. In Tolson’s case, Mrs. Tolson was charged with

ev
bigamy. It was argued on behalf of Mrs. Tolson that she believed in good faith and on reasonable grounds
that her husband had died prior to her second marriage. After the husband of Mrs. Tolson went missing she
Pr
made several inquires about whereabouts of her husband. She was led to believe that her husband was
dead. This fact was also known to the second husband of Mrs. Tolson and the marriage ceremony was not
k
a concealed one. The court held that Mrs. Tolson acted in bona fide mistake of fact and hence she was not
oo

liable for the offence of bigamy.

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Act done by a person bound, or by mistake of fact believing himself bound by law

Section 14 provides that nothing is an offence which is done by a person who is, or who by reason of
pl

a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law
to do it.
m

Essential ingredients of Section 14

Sa

Following are the essential ingredients:

 Person is bound by law; or

 In good faith he believes himself to be bound by law.

 Such belief is by reason of mistake of fact and not by mistake of law.

For example, ‘A’, a soldier, fires on a mob by the order of his superior officer, in conformity with the
commands of the law. ‘A’ has committed no offence. Arrest under a warrant issued by a court is an act
protected by this section. So, when a person executed the warrant of arrest by a bona fide mistake and
arrested the wrong person, he will get the benefit of this section. Private persons are bound by law to assist

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the police under Section 31 of Bharatiya Nagarik Suraksha Sanhita and are also protected under Section
14 of Bharatiya Nyaya Sanhita. This section contemplates two types of situations:

(1) where a person is bound by law to do an act and

(2) where a person, by mistake of fact in good faith, believes himself to be bound by law to do an act.

Act done by a person justified, or by mistake of fact believing himself justified by law

Section 17 provides that nothing is an offence which is done by any person who is justified by law, or
who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself
to be justified by law, in doing it.

Essential ingredients of Section 17

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Following are the essential ingredients:

 Person is justified by law; or

ev
 In good faith he believes himself to be justified by law


Pr
Such belief is by reason of mistake of fact and not by mistake of law

For example, ‘A’ sees ‘Z’ commit what appears to ‘A’ to be a murder. ‘A’, in the exercise, to the best of
k
his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending
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murderers in the act, seizes ‘Z’, in order to bring ‘Z’ before the proper authorities. A has committed no
offence, it may turn out that ‘Z’ was acting in self-defence.
eB

The expression 'justified by law' means 'not prohibited by law'. This section contemplates two types
of situations:
pl

(1) where a person is justified by law to do an act and

m

(2) where a person, by mistake of fact in good faith, believes himself to be justified by law to do an
Sa

act.

Supreme Court in Pitchai v. State by Inspector of Police, Vadamadurai, (2004) 13 SCC 579 held
that Section 79 [now Section 17 of BNS] comes into play only when there is real or supposed legal justifica-
tion for a person in doing the act complained of and that the same was done with an intention of advancing
the law to the best of his judgment exerted in good faith.

In Raj Kapoor v. Laxman, (1980) 2 SCC 175 prosecution was launched against the producer of the
film 'Satyam Shivam Sundaram'. The Censor Board gave the certificate to the film for exhibition. That
certificate gave the legal right to exhibit the film in public. The court held that producers believed themselves
to be justified by law to exhibit the film.

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 Bharatiya Nyaya Sanhita

Good faith: One of the essential requirements to get protection under Section 14 and 17 is that the
action must be done in 'good faith'. Section 2(11) of Bharatiya Nyaya Sanhita defines 'good faith'. It
provides that nothing is said to be done or believed in 'good faith' which is done or believed without due
care and attention. Therefore, a person is expected to act with due care and caution. Due care denotes
degree of reasonableness in the care to be exercised. 'Good faith' is always a question of fact.

Sections 14 and 17 are complimentary to each other. In Section 14 there is an element of legal
compulsion. In this case the person is bound by law to do an act and he does it or the person, under mistake
of fact, in good faith believes himself to be bound by law to do and act and he does it. While in Section
17 there is element of legal justification. In this case the person is justified by law to do an act and he does
the act or under mistake of fact believes himself to be justified by law to do and act and does it.

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Exemption from liability to Judges

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Section 15 and 16 give protection to Judges and those officers who are acting in pursuant to judicial
orders. Section 15 provides that nothing is an offence which is done by a Judge when acting judicially in the
Pr
exercise of any power which is, or which in good faith he believes to be, given to him by law.

Protection to judges is based on the premise that they should be able to act freely, impartially and with
k
sense of security. The scope of this section is wide enough to protect the judge even if he has exceeded his
oo

jurisdiction in good faith. If the judge, in good faith, believes that a particular jurisdiction is vested in him
eB

and acts accordingly and later it turns out that he had no jurisdiction to act in that matter then also the
concerned judge will get immunity under this section because the erroneous belief of the judge was in good
faith.
pl

Section 15 provides protection to judges. Section 2(16) defines 'judge'. According to it, the term
m

'judge' means a person who is officially designated as a Judge and includes a person, who is empowered by
Sa

law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not
appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would
be definitive; or who is one of a body or persons, which body of persons is empowered by law to give
such a judgment.

Another important aspect of Section 15 is that such act should be done by the judge in course of
discharging his judicial powers. Judge is protected only 'when he is acting judicially'. The protection under
Section 15 extends not only to acts of a judge in exercise of judicial power given to him by law, but also to
acts done by him in exercise of judicial power which he believes in good faith was given to him by law. The
burden of proving 'good faith' lies on the judge.

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Section 16 provides that nothing which is done in pursuance of, or which is warranted by the judg-
ment or order of, a Court of Justice; if done whilst such judgment or order remains in force, is an offence,
notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the
person doing the act in good faith believes that the Court had such jurisdiction.

This section grants immunity to those persons who carry out the orders of the court. If the conditions
of Section 16 are fulfilled then the person carrying out the order of the court will not be liable for
prosecution even if the court issuing the order had no jurisdiction or order happened to be erroneous.

Accident and misfortune

Section 18 deals with general exception related to accident. It is also a statutory recognition to the

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common law doctrine of mens rea that there can be no crime without criminal intention. If a person
performs a lawful act, in a lawful manner, by lawful means and with proper care and caution then he is not

ev
responsible for the unintended and unknown consequences of the act.

According to Stephen an effect is accidental when the act by which it is caused is not done with the
Pr
intention of causing it and when its occurrence as a consequence of such act is not so probable that a person
k
of ordinary prudence ought, under the circumstances in which it is done, take reasonable precaution against
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it.

Section 18 provides that nothing is an offence which is done by accident or misfortune, and without
eB

any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution.
pl

Essential ingredients of Section 18

m

Following are the essential ingredients of Section 18:-

Sa

1. Act is done by accident or misfortune.

2. Without any criminal intention or knowledge.

3. Act should be lawful, done in a lawful manner and by lawful means.

4. Act should be done with proper care and caution.

For example, ‘A’ is at work with a hatchet; the head flies off and kills a man who is standing by. Here,
if, there was no want of proper caution on the part of ‘A’, his act is excusable and not an offence. In another
example, if ‘A’ work with a hatchet at a place where children are playing and the head flies off and kills a
child ‘A’ cannot plea the defence of Section 18 because his work is not done with proper care and caution.

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Accident and misfortune: Accident means such happening which is unintentional and unexpected
out of the ordinary course and no man of ordinary prudence could anticipate. To bring within the meaning
of the term 'accident' in Section 18, the happening must be one to which human fault does not contribute.
Accident implies injury to another and misfortune implies injury to the other as well as the author.

Absence of criminal intention or knowledge: It is essential to establish the absence of criminal

intention or knowledge. If the act is intentional or accompanied with the knowledge of evil consequences
it cannot be termed as an accident.

Lawful act in a lawful manner: To avail the protection of Section 18 the act must be a lawful act,
done in a lawful manner and by lawful means. Supreme Court in Sukhdev Singh v. Delhi State (Govern-

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ment of NCT of Delhi), 2003 Cri LJ 4315 (SC) held that Section 80 [now Section 18 of BNS] exempts the
doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen circumstances. If

ev
either of these elements are missing then the benefit of Section 80 [now Section 18 of BNS] will not be given.

Pr
In State of Orissa v. Khora Ghasi, 1978 Cri LJ 1305, while guarding his maize field at night the
accused in the darkness of night saw some object entering his field. Thinking it to be an animal, he shot a
k
arrow and it caused death of a person hiding. The case was covered under Section 80 [now Section 18 of
oo

BNS].
eB

In R. v. Swindall and Osborne, (1846) 2 C & K 230 two car drivers after getting drunk began race
with each other and drove over an old man. Both were charged with contributing to death of deceased by
pl

their negligence and improper conduct. The act of driving the car was not in a lawful manner.
m

Necessity
Sa

Defence of Section 19 is based on the concept of necessity. It grants immunity to person with respect
to the acts done under compelling circumstances forced by necessity. It is based on the maxim quod necessitas
non habet leegem i.e. necessity knows no law. Therefore, an act which is otherwise a crime may in certain
circumstances be excused if the person accused shows that it was done out of necessity and in order to
avoid other harm to person or property.

In Re Gopal Naidu, (1923) 46 Mad 605 court held that Section 81 [now Section 19 of BNS] rests upon
the principle that 'when, on a sudden and extreme emergency one or the other of two evils is inevitable, it
is lawful so to direct events that the smaller only shall occur'.

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Essential ingredients of Section 19

Following are the essential ingredients of Section 19:-

1. Act is done with the knowledge that it is likely to cause harm;

2. It is done without any criminal intention to cause harm;

3. Act is done in good faith for the purpose of avoiding other harm to person or property

For example, ‘A’, in a great fire, pulls down houses in order to prevent the conflagration from spread-
ing. He does this with the intention in good faith of saving human life or property. Here, if it be found that
the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the
offence.

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In order to take benefit of Section 19 it is required to show that act complained of was done in good
faith and for the purpose of avoiding or preventing a greater harm to other person or property. Explana-

ev
tion appended to Section 19 provides that it is a question of fact in such a case whether the harm to be

Pr
prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act
with the knowledge that it was likely to cause harm.
k
The act must be done without any criminal intention to cause harm. Intentional wrong doing cannot
oo

be justified. For example, ‘A’ sees a tiger attacking ‘B’. In order to save ‘B’ from tiger ‘A’ shoots the tiger
knowing that such act might kill ‘B’ if he misses the shoot. If ‘A’ kills ‘B’ then he will get the benefit of this
eB

section because he had no intention to kill ‘B’. He only acted in good faith to avoid harm to ‘B’.

Doctrine of self preservation

pl
m

The question whether how far the doctrine of necessity justifies killing of another person to preserve
one’s own life if discussed by court in R. v. Dudley and Stephens, (1884) 14 QBD 273. In this case
Sa

shipwrecked sailors killed a boy travelling along with them for food and everyone fed upon the body. It
was found that if sailors had not killed the boy they would not have survived without food. Sailors took the
defence of necessity. Court held that deliberate killing of a person howsoever great the temptation might be
cannot be justified by necessity. The court held the sailors liable for murder. Court laid down the following:-

1. Self-preservation is not an absolute necessity.

2. No man has a right to take other’s life to preserve his own life, unless it is in self defence/private
defence.

3. There is no necessity that justifies homicide.

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In Dhania Daji’s case the accused put a poison in a toddy pot with the intention of detecting thief
who was in a habit of stealing toddy from the pot. That toddy was drunk by and it caused injury to some
soldiers who purchased the toddy from unknown vendor. It was held that there was no necessity of
detecting thief as would justify the risk of causing harm to others.

Section 18 and 19 are analogous provisions. Former deals with accident and latter deals with necessity.
However, there is a difference between these two provisions. Section 18 requires absence of 'criminal
intention' as well as 'knowledge' whereas Section 19 requires absence of 'criminal intention' alone. Section
19 clearly postulates that the accused had knowledge that he is likely to cause harm but under the circum-
stances of this section such 'knowledge' is not held against him.

Acts of child

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Doli incapax Qualified immunity

Section 20 Section 21

upto 7 yrs.
Pr above 7 to 12 yrs
k
Sections 20 and 21 grant immunity to infant below a particular age from any criminal liability. Ac-
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cording to Blackstone infancy is a defect of understanding and infants ought not to be punished by any
criminal prosecution. Section 20 totally absolves a child under the age of 7 years and Section 21 grants
eB

qualified immunity to child above 7 years and under 12 years. The law presumes that child below a certain
age is incapable to taking care of his own interest and he cannot distinguish between right and wrong.
pl

Act of a child under seven years of age

m

Section 20 provides that nothing is an offence which is done by a child under seven years of age.
Sa

Children below the age of seven years are called doli incapax. This section grants absolute immunity to child
under 7 years. It presumes that he cannot distingush between 'right' and 'wrong'. It emanates from the fact
that child under seven years lacks mental ability to understand the nature and consequences of his act and
therefore, cannot form the necessary mens rea. This is a conclsuive presumption and cannot be rebutted by
adducing evidence. In Hiralal Mallick v. State of Bihar, (1977) 4 SCC 44 Supreme Court held that the
proof of age of child that he is under seven years would absolve the child of criminal responsibility.

A child exactly of seven years of age would get benefit of Section 20. The law grants such immunity
because the child under such age cannot form necessary intention to constitute a crime because he lacks
understanding between good and bad.

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This section exempts child not only from the offences under Bharatiya Nyaya Sanhita but also from
the offences under special or local laws. In Queen v. Lukhini Agradani, (1874) 22 W.R. (Cr.) 27 court held
that mere evidence of age would be conclusive proof of the innocence of the child and would ipso facto be
an answer to any charge against him.

Act of a child above seven and under twelve of immature understanding

Section 21 provides that nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to judge the nature and conse-
quences of his conduct on that occasion.

Section 21 provides cases of qualified immunity. In order to claim exception under this section the
child must not have attained sufficient maturity for understanding and judging the nature and consequences

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of the act. The prosecution has to prove that child caused actus reus with mens rea and that he had sufficient
maturity to understand the nature and consequences of his conduct.

ev
Test for qualified immunity: Test for qualified immunity depends on three factors:-

1.

2.
The nature of the act done;

Subsequent conduct of the offender;

Pr
k
3. Demeanour and appearance of the offender
oo

In Ulla Mahapatra’s case a boy over 11 years but less than 12 years threatened to kill a person by
eB

cutting into pieces and actually killed him. The court held that the actions of the boy could lead to one
inference that he did what he intended to do and knew that his actions could kill the deceased.
pl

In Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 Supreme Court held that a child below the
age of 7 years is completely free from any criminal responsibility but a child between 7 years of age and 12
m

years of age is qualified to avail the defence of doli incapax, if it is proved that he has not attained sufficient
Sa

maturity of understanding to judge the nature and consequences of his act.

Child above seven years of age and under twelve years of age is governed by the maxim malitia supplet
aetatem which means malice supplies defect of years if in a given circumstances degree of malice is such that
it would be justified that a child above seven years and below twelve years should be held liable.

Child above 12 years of age: Child above 12 years of age will incur full responsibility in criminal law.
However, in such circumstances the whole process of trial, sentencing, rehabilitation etc. will be governed
by Juvenile Justice (Care and Protection of Children) Act, 2015. Under the scheme of Juvenile Justice Act
all persons who are below the age of 18 years on the date of commission of the offence shall be treated as
juveniles even if the claim of juvenility was raised after they had attained the age of 18 years

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Unsoundness of mind

Section 22 deals with unsoundness of mind as a defence to a criminal charge. This concept is based

on the principle that a person who is of unsound mind cannot have necessary mens rea to commit a crime.

As a general rule criminal intent is necessary in order to commit the crime and therefore, mental capacity of

wrong doer is necessary. A person may lack sufficient mental capacity due to defect in mental capacity.

Unsoundness of mind is a defect of mind which impairs the mental faculties of a man. Such mental
abnormalities may arise due to various factors and may exist in various degrees. Unoundness of mind in
terms of law (legal unsoundness of mind) means disorder of mind which impairs reasoning capacity of a

person to such an extent as to render him incapable of understanding the nature and consequences of his

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action. Number of tests have been laid down from time to time to adjudge the degree of unsoundness of
mind. The most notable among them is one developed in McNaughten’s case.

ev
In Lakshmi v. State, AIR 1959 All 534 court held that what Section 84 [now Section 22 of BNS] lays
Pr
down is not that the accused claiming protection under it should not know an act to be right or wrong but
k
the accused should be incapable of knowing whether the act done by him is right or wrong. Capacity to
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know a thing is quite different from what a person knows. Inherent or organic incapacity is protected and

not the wrong or erroneous belief.

eB

In Dayabhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 Supreme Court held that when a plea
of insanity is setup the crucial point of time for ascertaining the state of mind of the accused is the time
pl

when the offence was committed.

m

Wild beast test

Sa

This test was developed in R. v. Arnold, (1724) 16 St. Tr. 695. According to this test a person can

claim exemption from liability if by reason of unsoundness of mind the person was unable to distinguish

between good and evil and also did not know what he did.

Insane delusion test

This test was developed in Hadfield’s case. According to this test unsoundness of mind is to be

determined by the fact of fixed insane delusions with which the accused was suffering and which was direct

cause of the crime.

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McNaughten Rule

McNaughten’s case is an important decision on question of unsoundness of mind. In this case the
accused suffered from a delusion that Sir Robert Peel, the then Prime Minister of Britain had injured him.
He mistook Edward Drummond, Secretary to the Prime Minister for Robert Peel. He shot and killed him.
The medical evidence showed that accused was labouring under a morbid delusion which carried him away
beyond the power of his own control. House of Lord laid down the following propositions :-

(1) Every man is presumed to be sane and to possess sufficient degree of reason until contrary is
proved to the satisfaction of the court.

(2) To establish the defence of insanity it must be clearly proved that at the time of committing the
act the accused was labouring in defect of reason.

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(3) If the accused was conscious that the act which ought not be done or it was contrary to law then
he would be punishable.

ev
The Indian law of unsoundness of mind is based on the opinion of McNaughten case. The term
Pr
'insanity' is not used in Section 22. Courts in India have treated the expression 'unsoundness of mind' as
equivalent to insanity'.
k
oo

Act of a person of unsound mind

Section 22 provides that nothing is an offence which is done by a person who, at the time of doing
eB

it, by reason of unsoundness of mind, is incapable of knowing:-

 the nature of the act; or

pl

 that he is doing what is either wrong or contrary to law.

m

The crucial point of time of such incapability due to unsoundness of mind is the time when he
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committed the offence [Hari Singh Gond v. State of Madhya Pradesh, AIR 2009 SC 31]. In order to
prove the defence of unsoundness of mind the following elements have to be proved:-

1. Medical unsoundness: Firstly, the accused will have to prove that he was suffering from some kind
of medical unsoundness. It means some kind of mental disease which is capable of taking away
the power of rational thinking. Medical unsoundness is the disease of mind which affects the
mind to such an extent that the accused loses the control upon his body and is not capable of
making right decisions. The words ‘by reason of unsoundness of mind’ under Section 22 refer
to medical unsoundness. The accused has to prove such medical unsoundness by production of
medical certificate.

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2. Legal unsoundness: Apart from the medical unsoundness referred above the accused has to prove
legal unsoundness as well. It must be noted that proving medical unsoundness simpliciter will not
give the benefit of Section 22. Legal unsoundness can be proved by proving that due to medical
unsoundness existing at the time of commission of offence the accused was incapable of knowing
the nature of the act and the act he was doing was either wrong or contrary to law.

Unsoundness of mind must exist at the time of commission of offence and the onus is on the accused
to prove the unsoundness of mind.

Supreme Court in State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 990 held that if at the
time of committing the act the accused was labouring under such a defect of reason, as not to know the
physical nature and quality of the act he was doing, or that although he knew its nature he did not know it

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was either wrong or contrary to law then the benefit of this section can be given. In coming to this
conclusion the relevant circumstances like behavior of the accused before and after commission of the

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offence must be taken into consideration.

The expression ‘nature of the act’ means the character and consequence of the act. Due to unsound-
Pr
ness of mind, the accused should have been incapable of understanding as to what he was doing and what
would be the consequences. The accused is not protected if he knew that what he was doing was wrong.
k
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In Prakash Nayi @ Sen v. State of Goa, (2023) 5 SCC 673 Supreme Court observed that the
burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while
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doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable
materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason
pl

that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt.
m

Intoxication
Sa

Indian law on involuntary and voluntary drunkenness is contained in Sections 23 and 24 respectively.
A combined reading of Sections 23 and 24 reveal that the former lays down the law relating to involun-
tary intoxication as a defence of criminal charge while the latter deals with criminal liability of a voluntarily
intoxicated person.

In order to take the benefit of Section 23 it must be proved that intoxication is caused against the will
or without the knowledge of the accused. Voluntary intoxication is not a defence even though due to such
voluntary intoxication the accused was incapable of knowing the nature of the act. Section 23 provides
that nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxica-
tion, incapable of knowing -

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 the nature of the act; or

 that he is doing what is either wrong, or contrary to law

The thing which intoxicated him was administered to him without his knowledge or against his will.

The expression ‘without his knowledge or against his will’ means ignorance of the fact that what is
being administered is an intoxicant. Where the drunkenness is involuntary the criminal act of a person will be
judged with reference to his mental condition at the time when the act was committed.

In Jethuram Sukura Nagbanshi v. State of Madhya Pradesh, (1960) Cr LJ 1093 court held that in
cases where the person is involuntarily intoxicated, he cannot be said to have acted on his own accord and
therefore, he is not responsible for his own acts.

In Paul v. State of Kerala, (2020) 3 SCC 115 Supreme Court held that so far as knowledge is

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concerned in case of voluntary drunkeness, knowledge is to be presumed in the same manner as if there is
no drunkeness. So far as intention is concerned, it must be gathered from attending general circumstances

ev
of the case.

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In Director of Public Prosecution v. Beard, 1920 AC 479 court laid down that where a specific
intent is essential element of offence, evidence of a state of drunkenness rendering the accused incapable of
k
forming such an intent should be taken into consideration in order to determine whether he had in fact
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formed the intent necessary to constitute a particular crime. It must be noted that mere fact that an intoxi-
cant was administered to him by another person without his knowledge or against his will, does not qualify
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him for exemption under this section. What is required to be established that he, by reason of the intoxicant
adminstered to him without his knowledge or against his will by someone elese, lost his ability to understand
pl

the nature of the act committed by him. The court held that evidence of drunkeness falling short of a
m

proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing
that his mind was affected by drink so that he more readily gave way to some violent passion, does not
Sa

rebut the presumption that a man intends that natural consequences of his acts.

Offence requiring a particular intent or knowledge committed by one who is intoxicated

Section 24 provides that in cases where:-

 An act done is not an offence unless done with a particular knowledge or intent;

 A person who does the act in a state of intoxication shall be liable to be dealt with as if he had the
same knowledge as he would have had if he had not been intoxicated;

 Unless the thing which intoxicated him was administered to him without his knowledge or
against his will.

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Section 24 creates a rule of presumption in cases where the intoxication is voluntary. In case of
voluntary intoxication, there can be a case where that the intoxication was so excessive that due to such
intoxication the accused became incapable of knowing the nature of the act. In such cases Section 23 shall
not apply. Section 24 provides that if an offence requiring such a knowledge or intention is committed by
self-induced intoxication, only knowledge, and not intention, of the offence on his part will be presumed.
In effect, Section 24 imputes the same knowledge to a man intoxicated voluntarily as he would have had
had be not been intoxicated. Degree of intoxication required in both the sections is same. In both the
sections it is required to be shown that the degree of intoxication made the person incapable of knowing
the nature of the act or that what he is doing is either wrong or contrary to law.

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Voluntary drunkenness under Section 24 does not afford a defence where merely knowledge re-
quired to constitute the offence was wanting, though it may be used to show that any intent it required was

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absent.

Pr
In Basdev v. State of Pepsu, AIR 1956 SC 488, Supreme Court held that the court will only presume
the existence of knowledge and not intention as mens rea. A person who gets into the state of intoxication
k
voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated.
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This presumption of knowledge in cases of voluntary intoxication is a rebuttable presumption. Intention is

the highest degree of mind and it cannot be presumed. It has to be proved by the prosecution on the basis
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of facts and circumstances of the case.

pl

Consent
m

Sections 25, 26, 27 and 30 deal with the defence related to consent. These provisions lay down
Sa

circumstances where consent may be pleaded as defence. The element of consent condones the offences
against human body and those against property. The law related to consent is based on maxim volenti non fit
injuria i.e. he who consents suffers no harm. Man is best judge of himself and no man will consent to what
he considers injurious to his interest.

What is consent?

The term ‘consent’ is not defined in the Sanhita. According to Stephen, ‘consent’ means consent freely
given by rational and sober person so situated as to be able to form a rational opinion upon the matter to
which he consents.

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Supreme Court in State of Uttar Pradesh v. Naushad, AIR 2014 SC 384 held that consent is an act
of reason coupled with deliberation. Section 28 further states that consent is no consent if it is given under
fear of injury or misconception of fact. Therefore, it follows that consent should be free in order to avail
it as a defence.

In Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203 Supreme Court held that
consent obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence is
a mere delusion and not a deliberate act.

Consent known to be given under fear or misconception

Section 28 provides that it should be proved in order to mitigate the liability that the victim has
consented to suffer wrong or injury freely. The consent should not be given by—

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(a) A man under fear of injury or under misconception of fact, and the person doing the act knows or
has reason to believe that consent was given under such fear or misconception.

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(b) Peron who, by reason of unsoundness of mind or intoxication, is unable to understand the nature

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and consequences to which he had given his consent, or

(c) A child under twelve years of age

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The term 'misconception of fact' refers to miscconception regarding true nature of facts. Consent can
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be express or implied. The question of consent is dependent on facts and circumstances of each case.
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Section 25 gives immunity to a person from criminal prosecution on the ground of consent in
general. Sections 26, 27 and 30 extend protection in those cases only where the harm is caused in good
faith during the course of doing an act for the benefit of consenting party.
pl

Act not intended and not known to be likely to cause death or grievous hurt, done by consent
m

Section 25 is based on the principle ‘volenti non fit injuria’. Following are the ingredients of Section 25:-
Sa

1. The act should not be intended to cause death or grievous hurt.

2. It should not be known by the doer to be likely to cause death or grievous hurt.

3. The harm caused to a person is with his express or implied consent.

4. The person who give consent is above 18 years of age.

5. The act should be in good faith.

For example, ‘A’ and ‘Z’ agree to fence with each other for amusement. This agreement implies the
consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play;
and if ‘A’, while playing fairly, hurts ‘Z’, ‘A’ commits no offence.

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It must be noted that the immunity granted under this section will not justify causing of death, grievous
hurt or any other harm which is known by the doer to be likely to cause death or grievous hurt. This section
will only apply when mens rea or intention to cause death or grievous hurt on part of the doer is completely
absent. This section does not permit a man to give his consent to anything intended or known to be likely
to cause death or grievous hurt.

Basis of Section 25: Section 25 is based on two fundamentals:

(1) Every person is the best judge of his own interest and

(2) No man will consent to what he thinks is hurtful to himself.

Act not intended to cause death, done by consent in good faith for person’s benefit

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Section 26 has the following ingredients. The act is not an offence if:-

 The act is done is without the intention of causing death. Although it may amount to an offence

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by reason of any harm.

 The act is done in good faith.

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The act is done with the consent (express or implied) of the victim.
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 The act is done for the benefit of the person.
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For example, ‘A’, a surgeon, knowing that a particular operation is likely to cause the death of ‘Z’, who
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suffers under a painful complaint, but not intending to cause Z’s death, and intending in good faith Z’s
benefit, performs that operation on ‘Z’, with Z’s consent.
pl

Generally, this section is used in cases related to doctors in order to grant them immunity against
surgical operations. The element of good faith and benefit of person has to be proved in order to avail the
m

benefit under this section.

Sa

Difference between Section 25 and 26

Following are the points of differences between Section 25 and 26:-

1. Under Section 25 any harm short of death and grievous hurt can be inflicted. Under Section 26
any harm can be inflicted if it is for that person's benefit.

2. Under Section 25 the person consenting must be above 18 years of age. Under Section 26 age
of person consenting is irrelevant.

3. Under Section 25 an act may not be for the person's benefit. Under Section 26 the act should
be for person's benefit.

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Act done in good faith for benefit of child or insane person, by or by consent of guardian

Section 27 has following ingredients. Act is not an offence if:-

1. The act must be done for the benefit of the person;

2. It must be done in good faith;

3. The person may be under twelve years of age, or of unsound mind;

4. The act must be done by his consent (express or implied) or consent of the guardian or other
person having lawful charge of that person.

For example, ‘A’, in good faith, for his child’s benefit without his child’s consent, has his child cut for the
stone by a surgeon knowing it to be likely that the operation will cause the child’s death, but not intending to

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cause the child’s death. ‘A’ is within the exception, in as much as his object was the cure of the child.

The immunity granted by this provision is not absolute. It is subject to 4 provisos appended to this

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section. These provisos are:

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According to Proviso (a) this provision shall not extend to the intentional causing of death, or to the
attempting to cause death.
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Proviso (b) states that this section shall not extend to the doing of anything which the person doing it
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knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or
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the curing of any grievous disease or infirmity.

Proviso (c) state that it shall not extend to the voluntary causing of grievous hurt, or to attempting to
pl

cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any
m

grievous disease or infirmity.

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Proviso (d) states that it shall not extend to the abetment of any offence, to the committing of which
offence it would not extend.

Act done in good faith for benefit of a person without consent

Section 30 provides that nothing is an offence:-

 By reason of any harm which it may cause to a person;

 For whose benefit it is done in good faith;

 Even without that person’s consent;

 If the circumstances are such that it is impossible for that person to signify consent; or

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 If that person is incapable of giving consent, and has no guardian or other person in lawful
charge of him from whom it is possible to obtain consent in time for the thing to be done with
benefit.

For example, ‘Z’ is thrown from his horse and is insensible. ‘A’, a surgeon, finds that ‘Z’ requires to be
trepanned. ‘A’ not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before ‘Z’
recovers his power of judging for himself. ‘A’ has committed no offence.

‘Z’ is carried off by a tiger. ‘A’ fires at the tiger knowing it to be likely that the shot may kill ‘Z’, but not
intending to kill ‘Z’, and in good faith intending Z’s benefit. A’s bullet gives ‘Z’ a mortal wound. ‘A’ has
committed no offence.

Section 30 covers emergency situation which are not covered under Section 27. Consent may be

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dispensed with when the circumstances are such as to render consent impossible or when the person is
incapable of giving consent.

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Communication made in good faith
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Section 31 provides that no communication made in good faith is an offence by reason of any harm
k
to the person to whom it is made, if it is made for the benefit of that person.
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For example, ‘A’, a surgeon, in good faith, communicates to a patient his opinion that he cannot live.
The patient dies in consequence of the shock. ‘A’ has committed no offence, though he knew it to be likely
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that the communication might cause the patient’s death.

In X v. Hospital Z, AIR 1999 SC 495 Supreme Court held that Hospital Z and doctors were
pl

protected under Section 93 [now Section 31 of BNS] for disclosing to the prospective bride that the appellant
m

was HIV positive. This communication led to cancellation of marriage.

Sa

Act to which a person is compelled by threats

Section 32 provides that except murder, and offences against the State punishable with death, nothing
is an offence which is done by a person:-

 Who is compelled to do it by threats;

 Which, at the time of doing it reasonably cause the apprehension that instant death to that person
will otherwise be the consequence.

The person should not on his own accord, or from a reasonable apprehension of harm to himself
short of instant death, place himself in the situation by which he became subject to such constraint.
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According to Explanation 1 a person who, of his own accord, or by reason of a threat of being
beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on
the ground of his having been compelled by his associates to do anything that is an offence by law.

According to Explanation 2 a person seized by a gang of dacoits, and forced, by threat of instant
death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to
force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.

This provision is based on the maxim actus me invite factus est nisi actus, i.e. ‘an act which is done by me
against my will is not my act and I am not responsible for it.’ In other words voluntary act is essential to
constitute crime. It is not every threat of injury that will excuse a man from punishment. The threat in order
to attract benefit of Section 32 must be of instant death to the person compelled to commit the offence.

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Act causing slight harm

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Section 33 provides that nothing is an offence by reason that it causes, or that it is intended to cause,

Pr
or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense
and temper would complain of such harm.
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This section is based on maxim De Minimus Non Curat Lex i.e law does not take into account trifles.
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This section is intended to prevent penalization of negligible wrongs. Section 33 will come into play only
when the act complained of amounts to an offence and no person of ordinary sense and temper would
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complain of it. Where the act is of such a nature that it will not be an offence, even independent of this
section, then there is no question of applying this section.
pl

In Amish Devgan v. Union of India, (2021) 1 SCC 1, Supreme Court held that Section 95 of the
m

Indian Penal Code [now Section 33 of BNS] is intended to prevent penalization of negligible wrongs or
Sa

offences of trivial nature. Whether an act, which amounts to an offence, is trivial would depend on the
evidence collected in relation to injury or harm, the knowledge or intention with which the offending act
was done and other related circumstances.

Right of Private Defence

The concept of right to private defence is based on the principle that when a person is faced with
imminent danger, he is not expected to run away from the danger, rather it is his inherent right to protect
himself from the danger. For this purpose use of reasonable force to repel the danger is allowed. Right to
private defence is absolutely necessary for the purpose of protection of one’s life, liberty and property.

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Pr
BHARATIYA SAKSHYA
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ADHINIYAM
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Sa

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Pr
k
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 Bharatiya Sakshya Adhiniyam

1
Preliminary

Introduction

Substantive law and procedural law

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Law can be defined as the rules which determine our relations and which regulate the behaviour of
individuals. It may be substantive law or procedural law/adjective law.

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The laws which prescribe our rights and duties are called substantive laws. The right to inheritance, the

Pr
right under contract, etc are the rights which are contained in rules of substantive law. For example, Bharatiya
Nyaya Sanhita, 2023, Indian Contract Act, 1872 etc. are substantive laws stating our rights, liabilities and
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duties.
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For the enforcement of right and for compelling the other to perform his duty, there are rules prescribed
by law. These rules are procedural in nature and the law which prescribes such rules is procedural law. It
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provides the rules for proceedings in matter before the authorities and judiciary. For example, the rules
contained in Code of Civil Procedure, 1908 or Bharatiya Nagarik Suraksha Sanhita, 2023, etc. are procedural
pl

laws.
m

The law of Evidence is procedural law: The law of Evidence under the Bharatiya Sakshya Adhiniyam,
Sa

2023 is a procedural law which lays down the following rules:

(a) What facts may be used in evidence,

(b) How such facts are to be proved,

(c) By whom and in what manner the evidence is to be produced.

Law of evidence, as a procedural law, deals with the ways in which the parties will show existence or
non existence of facts and circumstances so as to establish the existence or non existence of rights and
liabilities given under substantive law. The law of evidence determines whether a particular fact is relevant or
admissible or not. How is particular piece of evidence accepted or rejected, what is the role of judge etc.

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Supreme Court in Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709 held
that law of evidence is designed to ensure that court considers only that evidence which enables it to reach
a reliable conclusion.

Application of Bharatiya Sakshya Adhiniyam

Bharatiya Sakshya Adhiniyam applies to all judicial proceedings in or before any court including the
courts of 'Court Martial'. It also does not apply to (i) Affidavits and (ii) Proceedings before Arbitrator.

There is a change in this provision. Section 1(2) of the BSA omitted the words ‘convened
under the Army Act, the Navy Discipline Act or the Indian Navy (Discipline) Act or the Air
Force Act’.
The term 'judicial proceedings' is not defined in the Bharatiya Sakshya Adhiniyam but it has been

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defined under Section 2(1)(m) of BNSS. It means any proceeding in course of which the evidence is
legally taken on oath. Proceedings in which only administrative duties are discharged are not judicial pro-

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ceedings.

Pr
In Queen Empress v. Tulja, ILR (1888) 12 Bom 36, court held that any proceeding may be termed
as a judicial proceeding only when its object is to determine legal relationship between persons or between
k
him and community generally.
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Supreme Court in Union of India v. T.R. Varma, AIR 1957 SC 882 held that the Act [now BSA] has
no application to enquiries conducted by Tribunals even though they may be of judicial in character. The law
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requires that such tribunals should observe the rules of natural justice in the conduct of enquiry. If these
rules are satisfied, the enquiry is not open to attack on the ground that procedure laid down in the Evidence
pl

Act [now BSA] for taking evidence was not strictly followed.
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Law of evidence is lex fori

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The law of evidence is lex fori i.e. the law of the country or forum. It is goverened by the law of the
nation where the proceedings are taking place and not where the cause of action has taken place. It is matter
of convenience. For example if an American citizen is tried in India for a breach of contract which took
place in USA, the law of evidence as in force in India will be applicable and not the law of evidence of
USA.

Principle of fair trial and evidence

Supreme Court in Zahira Habibulla Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 observed
that principle of fair trial is reflected in numerous rules and practices. The principle of fair trial manifests
itself in virtually every aspect of our practice and procedure, including law of evidence. Application of

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these principles involve a delicate judicial balancing of competing interest in criminal trial. Interest of the
accused, public and victim has to be weighed not losing sight of the public interest involved in prosecution
of persons who commit offences.

Evidence

Section 2(1)(e) of Bharatiya Sakshya Adhiniyam defines the term 'Evidence'. The definition given in
Section 2(1)(e) includes two kinds of evidence- (1) Oral evidence and (2) Documentary evidence. But it
does not mean that there cannot be any other kind of evidence.

Oral

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Evidence

Documentary

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(a) Oral evidence : All statements including statements given electronically which the
Court permits or requires to be made before it by witnesses in relation to matters
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of fact under inquiry and such statements are called oral evidence.
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(b) Documentary evidence : All documents including electronic or digital records produced for
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the inspection of the Court, such documents are called documentary evidence.

There is a change in this provision. Section 2(1)(e) of BSA, 2023 provides new definition of the
pl

term ‘evidence’. Under this definition statements given electronically are to be treated as oral
evidence. This also correspond to Section 530 of Bharatiya Nagrik Suraksha Sanhita, 2023
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which provides for the examination of complainant and witness in electronic mode by use of
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electronic communication or by audio-video electronic means. The defintion of documentary

evidence now includes electronic and digital records.
In Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, Supreme Court has held that the definition
of evidence is exhaustive. It is exhaustive in the sense that every kind of evidence can ultimately be reduced
to the category of either oral or documentary evidence.

Evidence signifies only the instruments by means of which relevant facts are brought before the court.
It is different from proof which is the effect of evidence. According to Phipson evidence is a testimony
whether oral, documentary or real which may be legally received in order to prove or disprove some fact
or dispute.

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Direct evidence

Direct evidence is evidence which proves the fact in dispute directly without any inference or
presumption. The principal fact is proved directly by witnesses, documents or things. It is based on precise
point in issue. For example, in case of murder if the witness saw the accused commiting the offence then
the evidence of the witness will be direct evidence.

Circumstantial evidence

Circumstantial evidence is not defined under the Bharatiya Sakshya Adhiniyam. Circumstantial evidence
is that which relates to a series of other facts than the fact in issue. It means the evidences of circumstances.
When there is no direct evidence available then the courts look to the circumstances which can be linked to

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provide evidence. In case of circumstantial evidence the effort of the court is to find out whether the crime
was committed by the accused and the circumstances as proved form themselves into a complete chain

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unerringly pointing towards the guilt of the accused.

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Principles governing circumstantial evidence

Supreme Court in Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SSCC 228, Ganpat Singh
k
v. State of M.P., (2017) 16 SCC 353, State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045,
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and in many other cases held that following are the principles which must be kept in mind while dealing
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with the circumstantial evidence:-

1. The general principle is that the circumstances from which an inference of guilt is drawn must be
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cogently and firmly established.

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2. Those circumstances should be definite and unerringly point towards the guilt of accused.
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3. Circumstances should form a chain so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the accused.

4. Such circumstances should be incapable of any hypothesis other than the guilt of accused and it
should be inconsistent with the innocence of the accused.

Difference between direct and circumstantial evidence:

1. Direct evidence is based on witness’s personal knowledge or observation of a fact, whereas,

circumstantial evidence is direct evidence of a fact which reasonably infers the existence or non-
existence of fact in issue.

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2. Direct evidence does not require any reasoning or inference to arrive at the conclusion which is to
be drawn from the evidence, whereas, circumstantial evidence being an indirect evidence, re-
quires that inferences be made between the evidence and the conclusion to be drawn from it.

3. Generally, direct evidence is given to prove a fact. Circumstantial evidence, on the other hand,
comes into play when no direct evidence is available to prove a fact.

4. The Court can rely on the direct evidence of a witness if he is worthy of credit and his evidence
is reliable. But circumstantial evidence can form the basis of conviction only when the five
golden principles as laid down in Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SSCC
228, Ganpat Singh v. State of M.P., (2017) 16 SCC 353, State of U.P. v. Ravindra Prakash
Mittal, AIR 1992 SC 2045 and various other cases are fulfilled, i.e., the circumstances must be

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fully established and of conclusive nature, it must be in conformity only with the hypothesis of
guilt of accused and there must be a complete chain of circumstances supporting no other

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hypothesis that of guilt of the accused.

Real evidence
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Definition in Section 2(1)(e) does not refer to the ‘real evidences’. Real evidences are material objects
k
produced in court. For example blood stained cloth, weapons etc. This ‘real evidence’ is covered by Second
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Proviso to Section 55. It provides that if oral evidence refers to the existence or condition of any material
thing other than a document, the court may, if it thinks fit, require the production of such material thing for
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its inspection. Such ‘material thing other than document’ is what we called ‘real evidence’.

Affidavit as evidence
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According to Section 1 of the BSA, the Bharatiya Sakshya Adhiniyam does not apply to affidavits
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presented to the courts. In Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381, Supreme Court held that
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statements in affidavit do not constitute evidence within Section 3 [now Section 2(1)(e) of BSA]. The reason
for exclusion of affidavits is that in affidavits there can be statements based on information which is hearsay.
Affidavits can be used as evidence only when the court passes order under Order XIX, Rule 1 and 2 of
Code of Civil Procedure. When a court orders that a particular fact may be proved by an affidavit then it
becomes evidence. The Code of Civil Procedure (Amendment) Act, 2002 permits affidavit in the form of
evidence.

Supreme Court in Ayaaub Khan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465,
has held that where the deponent can be available for cross examination and an opportunity is given to the
other party to cross examine then the affidavit can be relied upon as evidence.

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Evidence of tracker dog

Supreme Court in Abdul Razak v. State, AIR 1970 SC 283, held that discovery of a fact with the
help of a tracker dog is scientific evidence.

Electronic evidence

In Indian Evidence Act the term ‘Electronic record’ was inserted in the definition of ‘evidence’ by Act
21 of 2000 (w.e.f. 17-10-2000). Now, in Bharatiya Sakshya Adhiniyam the term 'electronic or digital record'
is used.

Section 2(1)(f) of Information Technology Act, 2000 defines ‘electronic record’. It states that ‘electronic

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record means data, record or data generated, image, or sound stored, received or sent in an electronic form
or micro film or computer generated micro fiche’.

ev
Section 62 of Bharatiya Sakshya Adhiniyam provides that the contents of electronic records may be
proved in accordance with the provisions of Section 63.
Pr
In Anvar P.V. v. P.K. Basheer, (2014) 10 SC 473 Supreme Court held that admissibility of secondary
k
evidence of electronic record depends upon satisfaction of conditions as prescribed under Section 65-B
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[now Section 63 of BSA]. If the electronic record is used as primary evidence i.e. original electronic record is
produced in court then the same is admissible in evidence without compliance with conditions in Section
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65-B [now Section 63 of BSA]. This view was approved by Supreme Court in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
pl

 Evidence in departmental inquiry: Supreme Court in SBI v. National Housing Bank, (2013)
m

16 SCC 538, held that statements made in a departmental enquiry do not constitute evidence. The
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findings cannot be used in courts and conclusions do not bind the courts.

 Evidence obtained in other investigation: Supreme Court in Ronny v. State of Maharashtra,

(1998) 3 SCC 625 held that evidence obtained in investigation of other crime can also constitute
good evidence in any other case provided it is a relevant.

 Illegally obtained evidence: In Umesh Kumar v. State of A.P., (2013) 10 SCC 591, Supreme
Court held that it is a settled legal position that even if the evidence is procured by improper or
illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If
evidence is relevant, it does not matter how it is obtained.

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 FIR as evidence: Supreme Court in Utpal Das v. State of West Bengal, (2010) 6 SCC 493, held
that FIR is not a substantive piece of evidence. It may only be used for corroborating and contradicting
the complainant.

 Evidence through video conferencing: Supreme Court in State of Maharashtra v. Praful B.

Desai, (2003) 4 SCC 601, held that ‘evidence’ can be oral, documentary or electronic. Insertion of
word ‘electronic’ suggests that the evidence can be given by way of electronic records also. Hence,
it would include evidence through video conferencing.

Appreciation of evidence

The analysis of the evidence by the court to ascertain the reliability and genuineness of the evidence is

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called appreciation of evidence. It is the duty of the court to ascertain which part of the evidence represents
the truth and which part of it is false. In Ganesh K. Gulve v. State of Maharashtra, AIR 2002 SC 3068,

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Supreme Court held that it is the duty of the court to separate the grain from the chaff.

Pr
In R. Jayapal v. State of Tamil Nadu, (2019) 8 SCC 342, Supreme Court observed that where the
chaff can be separated from the grain it would be open for the court to convict the accused. However, if
k
the grain and chaff cannot be separated then the prosecution version has to be rejected in toto.
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In Shyamlal Ghosh v. State of West Bengal, (2012) 7 SCC 646, Supreme Court observed that the
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statements of witnesses are not to be taken into account in parts or in isolation. They have to be taken along
with the evidence of other witnesses for the purpose of arriving at a reasonable conclusion.
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Falsus in uno, falsus in omnibus: It means false in one thing is false in all others. In other words this
maxim sugggests that if the part of evidence by a witness is false the whole testimony is regarded as
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false and it must not be taken into consideration by court.

Sa

Supreme Court in Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433, has held that the
maxim falsus in uno, falsus in omnibus is not applicable in India. Minor contradictions and omissions in the
evidence are to be ignored if there is ring of truth in the testimony of witness.

In Mahendran v. State of Tamil Nadu, (2019) 55 SCC 67, Supreme Court reiterated that the
maxim falsus in uno, falsus in omnibus is not applicable in India.

Supreme Court in Khurshid Ahmed v. State of J&K, (2018) 7 SCC 429 held that while analyzing
the evidence on record the court should not adopt a hyper technical approach. The court should not
reject the evidence on minor contradictions.

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Document

The term ‘Document’ is defined in Section 2(1)(d). It means any matter expressed or described
upon any substance by means of letters, figures or marks or by any other means or by more than one of
those means, intended to be used, or which may be used for the purpose of recording that matter and
includes electronic and digital records.

For example

 Writing is a document

 A map or a plan is a document

 An inscription on a metal plate or stone is a document

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 A caricature is a document.

 Words printed, lithographed or photographed are documents.

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 An electronic record on emails, server logs, documents on computers, laptop or smartphone,

Pr
messages, website, locational evidence and voice mail messages stored on digital devices are docu-
ments.
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There is a change in this provision. The new definition of document specifically includes
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‘digital records’ within the definition of the term ‘document’. Section 2(1)(d) of BSA, 2023
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introduces sixth illustration which clarifies that an electronic record on emails, server logs,
documents on computers, laptop or smartphone, messages, website, locational evidence and
voice mail messages stored on digital devices are documents. Under the new provision in order
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to qualify as ‘document’ or ‘documentary evidence’, it is not necessary that the matter must be
m

expressed or described upon any substance by means of letters, figures or marks only. Any
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matter ‘otherwise recorded’ upon any substance ‘by any other means’ will also qualify as
‘document’ or ‘documentary evidence’.

Proved, Disproved and Not proved

Proved

Section 2(1)(j) of the Bharatiya Sakshya Adhiniyam defines ‘proved’. According to this Section, a fact
is said to be proved when after considering the matters before it, the Court either believes it to exist or
considers its existence so probable that a prudent man ought, under the circumstances of a particular case,
to act upon supposition that it exists.
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In M. Narsimha Rao v. State of A.P., AIR 2001 SC 318 Supreme Court held that proof does not
mean proof to rigid mathematical demonstration but such evidence as would induce a reasonable man to
come to a conclusion. It depends upon degree of possibility of having existed.

' Matters before it' : Section 2(1)(j), while defining the team ‘proved’, used the expression ‘matters
before it’ instead of evidence which shows that the court can consider all other matters than evidence such
as demeanour of witnesses, local inquiry conducted by the court, etc. for reaching to the conclusion.

In Rajesh Yadav v. State of U.P., 2022 (3) SCALE 135 Supreme Court held that definition of the
word “proved” though gives an impression of a mere interpretation, in effect, is the heart and soul of the
entire Act [now BSA]. This clause, consciously speaks of proving a fact by considering the “matters before
it”. The importance is to the degree of probability in proving a fact through the consideration of the

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matters before the court. What is required for a court to decipher is the existence of a fact and its proof by
a degree of probability, through a logical influence.

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Disproved

Pr
Section 2(1)(c) provides that a fact is said to be disproved when, after considering the matters before
it, the court either believes that it does not exist or considers its non existence so probable that a prudent
k
man ought (to act upon a supposition that it does) not exist. Thus, this standard of proof should be of
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ordinary prudence in person who will judge its existence or non-existence from the standard of circumstances
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before him. The definition of the term 'disproved' is only the converse proposition of 'proved'.

Chaturbhiug Pandey v. Collector of Raigad, AIR 1969 SC 225 Supreme Court held that under
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Section 3 of IEA [now Section 2(1)(c) and (m) of BSA] the proof or disproof of a fact is to be tested on the
m

touchstone of belief of the court or the probability or otherwise of a prudent man. There is no standard
by which the weight of the evidence of the parties can be ascertained.
Sa

Not proved

Section 2(1)(i) provides that a fact is said to be not proved when it is neither proved nor disproved.
In other words, the man of ordinary prudence neither believes that the fact exists nor he believes that it does
not exist.

There is a difference between ‘disproved’ and ‘not proved’. The word ‘disprove’ is akin to ‘false’. What
is disproved may normally be taken to be a false thing. When a fact is said to be disproved, a person arrives
at the firm and fixed decision after considering the matters before it. On the other hand, a fact which is ‘not
proved’ may be true or false. A doubt lingers about its truth. The phrase ‘not proved’ is the result of careful

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scrutiny of the person of ordinary prudence that the fact neither exists with certainty nor its non-existence
is proved with certainty. Thus, ‘not proved’ is a provision between existence and non-existence of the fact
in the mind of a man of ordinary prudence.

In Kuna v. State of Odisha, (2018) 1 SCC 296, Supreme Court held that the expression 'proved',
'disproved' and 'not proved' lays down the standard of proof, namely about the existence or non-existence
of the circumstances from the point of view of a prudent man. While adopting the said requirement as an
appropriate concrete standard to measure 'proof', full effect has to be given to the circumstances or conditions
of probability or improbability.

Proof

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In State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418 Supreme Court held that proof is the
effect of evidence. It is considered with establishment of material facts in issue in each particular case by
proper legal means to the satisfaction of the court by evidence, admissions, presumptions, judicial notice,

ev
etc. Such proof does not mean rigid mathematical demonstration but it must be such as would induce a
man of ordinary prudence to come to a conclusion.

Standard of Proofs
Pr
k
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The standard of proof in civil and criminal cases are different. In a civil case a mere preponderance of
probability is sufficient basis of decision, on the other hand, in criminal cases a much higher degree of
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proof is needed before a person is convicted and his guilt must be proved beyond reasonable doubt. In
criminal cases the accused is always presumed to be innocent until the prosecution proves him guilty and the
pl

evidence must exclude every reasonable doubt of the guilt of the accused.
m

In Ashish Batham v. State of M.P., (2002) 7 SCC 317, Supreme Court held that in civil cases a
matter is said to be proved when the balance of probability suggests it but in criminal cases the court
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requires the proof beyond reasonable doubt. Mere suspicion, howsoever strong, is no susbtitute of proof.

In Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377, Supreme Court held that the
more serious the offence, the stricter the degree of proof since higher degree of assurance is required to
convict the accused.

Reasonable doubt: Supreme Court in Rajesh Dhiman v. State of H.P., (2020) 10 SCC 740
explained that the term 'reasonable doubt' does not mean that the proof be so clear that no possibility
of error exists. It means that the evidence must be so conclusive that all reasonable doubts are removed
from the minds of ordinary person. It refers to the degree of certainity required by the court before it

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so that it can make valid determination of the guilt of the accused. Reasonable doubt is not an imaginary,
trivial or merely possible doubt. In Ramakant Rai v. Madan Rai, (2003) 12 SCC 395, Supreme Court
held that any doubt about the matter should be actual and substantial arising out of evidence in the case.

May Presume, Shall Presume and Conclusive Proof

Parties are required to give evidence to prove a fact in the court of law. However, there are certain
facts which are not required to be proved by the parties by giving evidence. These are:

1. When the court takes judicial notice of a fact under Section 51.

2. When a fact is admitted before the court under Section 53.

3. When the court presumes a fact.

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Meaning of ‘presumption’

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The term ‘presumption’ is not defined in the Bharatiya Sakshya Adhiniyam. In M.S. Narayana v.
State of Kerala, AIR 2006 SC 3366 Supreme Court held that presumption is any inference drawn from a
Pr
proved fact. It is a rule of law which allows the court to make inference by process of probable reasoning
drawn from the facts judicially noticed by the court or admitted before it or legally proved to the satisfaction
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of the court. It is not a piece of evidence but only absolves a party from proving any fact by giving
evidence.
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In Pratap Singh v. Shiv Ram, (2020) 11 SCC 242, Supreme Court held that presumption makes a
prima facie case for a party in whose favour it exists. The rules of presumption are deduced from enlightened
pl

human knowledge and experience. They are drawn from connection, relation and coincidence of facts and
m

circumstances.
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Kinds of Presumption

Presumptions are of three kinds :

Presumption of fact Presumption of law Mixed presumption of fact and law.

However, the Bharatiya Sakshya Adhiniyam recognizes only presumption of fact and presumption of
law. Furthermore, such presumptions may either by rebuttable or irrebuttable.

Section 2(1)(h), (l) and (b) of the Adhiniyam deals with these kinds of presumptions which are
discussed as under:

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1. Presumption of fact [‘May presume’]: Presumption of fact or presumption hominis, is based on

human logic relation of things and law of nature. According to Section 2(1)(h), where the Adhiniyam
declares that the court ‘may presume’ a fact, the court may either:-

(a) Presume that fact and regard it as proved unless and until it is disproved, or

(b) Call for the proof of it.

Thus, Section 2(1)(h) clarifies that presumption of fact is rebuttable in nature and the other party may
adduce evidence to disprove it. Further, by using ‘may’, the legislature has made it clear that the court is not
bound to presume a fact but this power is discretionary. If the court finds that it is a fit case for raising
presumptions, such facts stand proved unless and until they are disproved by other side. In case the court
refuses to exercise the discretion to presume a fact it will call upon the parties to prove the fact by leading

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evidence.

For example, presumption raised under Section 119 of Bharatiya Sakshya Adhiniyam is presumption

ev
of fact. In it the court may presume the existence of any fact which it thinks likely to have happened. The

Pr
other instances where court may, presume a fact are given under Sections 88, 89, 90, 92, 93 of the
Bharatiya Sakshya Adhiniyam.
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2. Presumption of law [‘Shall presume’]: Bharatiya Sakshya Adhiniyam further divides presumption
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of law into:
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Rebuttable presumption of law Irrebuttable presumption of law or conclusive proof

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m

(a) Rebuttable Presumption of law: Under Section 2(1)(l), it is provided that where the Adhiniyam
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declares that the court ‘shall presume’ a fact, court shall presume that fact unless and until it is disproved.
Thus, by using the word ‘shall’, no room for discretion is left to the court and it is mandatory for it to raise
such presumption unless it is disproved by the other party. The court is bound to take the fact as proved
until evidence is adduced to disprove it. The party interested in disproving the fact must produce the
evidence.

For example under Section 118 of Bharatiya Sakshya Adhiniyam, where the question is whether a
person committed dowry death of a woman, the court shall presume that such person has caused the death
if it is shown that soon before her death she had been subjected to cruelty. Other provisions relating to such
presumption are contained under Sections 78-87, 91 and 108 of the Bharatiya Sakshya Adhiniyam.

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(b) Irrebuttable Presumption of law or conclusive proof: According to Section 2(1)(b), where
the BSA declares any fact to be conclusive proof of other, the court shall, on the proof of such fact, regard
the other fact as proved and the other party will not be allowed to disprove such fact. Thus, once presumption
is raised, it cannot be rebutted by the other party and the latter will be barred to adduce evidence to the
contrary.

Supreme Court in Somawanti v. State of Punjab, AIR 1963 SC 151 clarified that there is no difference
between 'conclusive proof' and 'conclusive evidence'. The aim of both the expressions is to bring finality to
the establishment of the existence of a fact from the proof of another.

For example if any child is born within 280 days after dissolution of marriage between man and wife
and wife remained unmarried, it will be conclusive proof that the child is legitimate son of the man unless

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non-access is shown [Section 116, BSA] Thus, once the presumption is raised, it cannot be rebutted by any
evidence.

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There are only two instances of such presumption under the Bharatiya Sakshya Adhiniyam which is
provided under Sections 35 and 116. However, even if the fact is conclusively proved, it can still be
Pr
rebutted on the ground of fraud practiced upon the court. For instance, Section 38 of the Bharatiya
k
Sakshya Adhiniyam provides that the party is allowed to show that the judgment relevant under Section 35
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is as proved by the adverse party was obtained by fraud or collusion.

Fact
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Law of evidence deals with evidence of 'facts' and it is important that the evidence must be confined
pl

to facts only. Only in certain circumstances opinion is taken into consideration. According to Section
2(1)(f), ‘Fact’ means and includes:-
m

 Any thing, state of things, relation of things, capable of being perceived by the senses;
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 Any mental condition of which, any person is conscious.

Bentham has classified facts into

(i) Physical facts (external) and

(ii) Psychological facts (internal).

Physical or external facts are those facts which are capable of being perceived through senses. For
example, a man heard or saw something, is a fact. A man heard or saw something, is a fact. Psychological
facts or internal facts are mental conditions of which a person is conscious. For example, a man has a certain
reputation is a fact.

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Fact in issue

Section 2(1)(g) defines ‘fact in issue’. It means any fact from which, either by itself or in connection
with some other facts, the existence, non-existence, nature, extent of any right, liability or disability, asserted
or denied by the parties in suit or proceeding, necessarily follows.

For example ‘A’ is tried for murder of ‘B’. In this case, the following are facts in issue:

(i) Whether A murdered B?

(ii) Whether A had intention to kill B?

(iii) Whether A had received sudden and grave provocation from B?

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Thus, a fact in issue is any disputed fact in a case the adjudication upon which determines the rights and
liabilities of any parties in a suit or proceeding. From the definition of ‘fact in issue’ it is clear that a fact will

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qualify to be ‘fact in issue’ only when that fact (by itself or in connection with other facts) is crucial to

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determine the question of right and liability. Thus it can also be stated that all facts which are essential for
determining right, duty, disability, liability in question and asserted by one party and denied by other is called
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facts in issue.
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In civil matters ‘facts in issue’ are ascertained by framing issues while in criminal matter allegations in
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police report constitute the facts in issue.

‘Fact in issue’ and ‘issue of fact’

pl

Explanation to Section 2(1)(g) of the BSA defining fact in issue further clarifies that where any issue
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of fact is recorded between the parties under Order 14 Rule 1 of the Code of Civil Procedure, 1908, the
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answer given by the parties in response to such ‘issue of fact’ is called ‘fact in issue’.

An ‘issue of fact’ is framed when a material proposition of law or fact is asserted by one party and
denied by the other [Order 14 Rule 1(1)]. Thus, a fact in issue is the fact which the plaintiff proves to

support his claim and the defendant proves to defend his case.

For example ‘A’ sued ‘B’ for breach of contract. ‘A’ asserted existence of contract which was denied by
‘B’. So, the court recorded an issue of fact ‘whether there was a contract between A and B ?’ Here, the

assertion of ‘A’ that the contract existed and of ‘B’ that there was no contract as such constitute fact in issue
as per Section 2(1)(g) of the Bharatiya Sakshya Adhiniyam.

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Relevant fact

Section 2(1)(k) provides that one fact is said to be relevant to another when one is connected with the
other in any of the ways referred to in the provisions of this Act relating to relevancy of facts. According to
Section 3 evidence can only be given of existence or non-existence of facts in issue and relevant facts. The
list of facts which are relevant can be found from Sections 4-50. Thus, parties are allowed to adduce
evidences only on these facts and all others facts will not be relevant and admissible.

The definition of the term ‘relevant fact’ does not give clear definition of the term but it merely states
that one fact is relevant to other when one is connected to the other in the manner provided under Section
4 to 50 of the Adhiniyam. In general, relevant facts are those facts which are not themselves in issue but they

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are so connected with fact in issue or disputed fact so as to assist in getting at the truth or falsehood of fact
in issue. According to Stephen, it has a certain degree of probative value in it.

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For example facts which are occasion, cause or effect of fact in issue is declared relevant under
Section 5 of the Adhiniyam and thus where the question is whether ‘A’ murdered ‘B’, marks on the ground
Pr
produced by struggle at or near the place where murder was committed are relevant facts [Illustration (b) to
Section 5].
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
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pl
m
Sa

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ev
Pr
k
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eB
pl
m
Sa

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2
Relevancy of Facts

Evidence to be confined to facts in issue and relevant fact

The primary function of court of law is to ascertain facts and circumstances of the case in order to

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determine the rights and liabilities of the parties. It is therefore, important that courts will take into consideration
certain facts in order to find out the truth of the controversy before it. In any controversy before the court
there can be large number of facts. It is not possible for the court to take into account all those facts. That

ev
would lead to unnecessary wastage of time because not all facts are important.

Facts of which evidence can be given Pr

Section 3 of the Bharatiya Sakshya Adhiniyam provides that in any suit or proceeding, evidence may
k
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be given to prove the existence or non existence of:

(i) Fact in issue, and

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(ii) Such other facts as declared to be relevant under Section 4 to 50 of the Adhiniyam.

Apart from the above facts, evidence cannot be given to prove any other facts, even if it is essential for
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ascertainment of truth. The evidence of the fact in issue may be given under Section 3 and the evidence of
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relevant facts may be given under Sections 4-50 of the BSA.

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Furthermore, as per Explanation to Section 3, if some provisions in Code of Civil Procedure,

1908 disentitles the person to give evidence to a fact, he will not be entitled as of right to adduce that
evidence in Court.

The following are the facts which are declared relevant under the Act :

1. Facts forming part of the same transaction [Section 4].

2. Facts which are occasion, cause or effect of facts in issue [Section 5].

3. Motive, preparation, conduct of a party [Section 6].

4. Facts necessary to explain facts in issue [Section 7].

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5. Things said or done by conspirators [Section 8].

6. Facts inconsistent with facts in issue [Section 9].

7. Facts helping in the estimation of damages [Section 10].

8. Transaction creating right, custom, etc. [Section 11].

9. Facts showing state of mind and body [Section 12].

10. Facts showing whether act is intentional or accidental [Section 13].

11. Existence of course of business [Section 14].

12. Admissions and confessions [Section 15 to 25].

13. Statements of persons who are dead or cannot be found [Section 26 and 27].

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14. Statements made under certain cases [Section 28 to 33].

15. Judgments [Section 34 to 38]

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16. Opinions of experts and other [Section 39 to 45].

17. Character [Section 46 to 50]. Pr

Thus, apart from the above mentioned facts (in box above), evidence of no other fact can be given by
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the parties to the suit. Section 3 excludes everything which is not declared relevant under Sections 4-50.
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The expression 'and of no others' imposes an obligation on the court to exclude all irrelevant evidences.
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Relevancy and Admissibility

The expression ‘Relevancy of a fact’ is not defined under the Bharatiya Sakshya Adhiniyam. Section
pl

2(1)(k) of the Adhiniyam only defines ‘relevant fact’ as one fact is relevant to another when one is connected
m

to the other in the manner provided under Section 4 to 50 of the Adhiniyam. Thus, this definition also
Sa

does not clarify what are relevant facts and what is relevancy. In general, relevant facts are those facts which
are so connected with the fact in issue framed between the parties which suggest an inference as to the
existence or non-existence of fact in issue.

Meaning of relevancy

According to Phipson, relevancy denotes connection of two events as cause and effect. So, relevancy
denotes connection between two facts such that the existence of one fact renders the existence of other fact
probable or improbable. This is called logical relevancy based on deductive reasoning. Relevancy is that
attribute of the fact that it is related to fact in issue or relevant fact in one or the other way specified in
Bharatiya Sakshya Adhiniyam.

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However, the Bharatiya Sakshya Adhiniyam does not recognize all facts which are logically relevant. It
allows the party to prove only those facts which are expressly declared as relevant under Section 4 to 50 of
the Adhiniyam. Section 3 of the Adhiniyam makes it very clear that evidence is to be given only for fact in
issue and relevant fact and of no others. So, only legally relevant facts, are allowed to be proved and not
logically relevant fact. All facts which are logically relevant may not be legally relevant. Whatever is legally
relevant is also logically relevant but not vice versa. For example, confession made to a police office may
appear to be logically relevant but it is not legally relevant. Question of relevancy is a question of law which
is decided by the judge and it can be raised at any stage in the proceedings.

Admissibility of fact

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Unlike relevancy of fact which explains what may be proved by the parties, admissibility on the other
hand, is based on strict legal rules rather than logical reasoning. It relates to the permissibility of the evidence

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to prove a particular fact in any proceeding.

Pr
It provides the mode of proving fact in issue or relevant fact. It declares whether certain types of
evidences are admissible or are to be excluded for instance, Section 3 of the Adhiniyam provides that
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evidence for proving only fact in issue and relevant fact are allowed and for no others. This proposition is
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further strengthened by reading First Proviso to Section 168 which provides that the judgment of the
court should be based on relevant facts duly proved.
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Further Section 141 of the Adhiniyam provides that the court shall admit any evidence and allow it to
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be duly proved if it is satisfied that the fact, if duly proved, would be relevant. Thus, by reading these
provisions, it appears that all admissible facts are necessarily relevant.
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Admissibility presupposes relevancy. Admissible evidence should be received by the court unless there
Sa

is a legal reason for its rejection. Facts should not be received in evidence unless it is both relevant and
admissible. The question of relevancy arises with the question of admissibility of evidence i.e. if in a trial a
party proposes to prove a particular evidence that would be a question of admissibility of evidence but
answer to that question would depend upon the question as to whether the fact sought to proved is relevant
or not and later that relevant fact will be admissible only if it has been duly proved. Thus, if we start from
Section 3 it states that the evidence can be given only of fact in issue or relevant fact as given from Section
4-50 of the Adhiniyam. Thus if any person wishes to adduce any evidence then he has to prove that that
evidence is either the fact in issue or is a relevant fact.

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Its manifestation is found in Section 141(1) also which provides that whenever any party proposes to
give the evidence then the judge may ask that party to show that in what manner the evidence he proposes
to give, if proved, would be relevant and may allow it only if he thinks that evidence, if proved, would be
relevant.

Further Section 141(2) provides that if the party proposes to prove a fact is depended on some other
fact & will be relevant only if that other fact is proved. In such a case court shall require the party to prove
the other fact first on which the fact of which he proposes to give evidence, is depended.

For example if in a case, any person wishes to give evidence of dying declaration then he should first
prove the fact of death of 'A' as dying declaration will be a relevant fact only when 'A' is dead. Hence, if the
fact of death of 'A' cannot be proved then court will not allow the evidence of dying declaration as this fact

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will not be relevant if the other fact cannot be proved. Though it permits the proving of the second fact
first upon an undertaking [see illustration (a) or (b)].

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Section 141(3) provides that when one alleged fact depends on other alleged fact being first proved

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then the judge may in his discretion permit or require any of the evidence to be given first. The difference
between sub-section (2) and sub-section 3 is that in sub-section 3 both the facts are alleged fact & one
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of such alleged fact depends on other alleged fact. [see illustration (c) & (d)].
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Even further First Proviso to Section 168 provides that judgement must be based upon facts declared
by this Act to be relevant and duly proved. This section thus mandates two requirements. Firstly, judgement
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can be based upon relevant fact only and secondly, such relevant fact must be duly proved. Thus, when the
party who proposes to adduce evidence has proved that that evidence is relevant in said matter then he is
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further required to duly prove that relevant fact. Thus that relevant fact will be taken into account in judgment
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only when that relevant fact is duly proved and even after proving relevancy of a fact, if that fact cannot be
duly proved then that fact will not be taken into account in judgment.
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In Dhanpat v. Sheo Ram, (2020) 16 SCC 209, Supreme Court held that objections regarding
admissibility and proof of evidence is to be decided by the court at the final stage. Whenever an objection
is raised during evidence taking stage regarding admissibility of any material, trial court can make note of
such objection and decide it at the stage of final judgment.

Relevancy and admissibility not synonymous

The Supreme Court, in Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850, has clarified that
relevancy is different from admissibility and they cannot be held synonymous to each other. Relevancy is a
genus while admissibility is a specie.

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Supreme Court in State of U.P. v. Raj Narayan, (1975) 4 SCC 428 held that evidence is admissible
and should be received by the court unless there is legal reason for its rejecton. Facts should not be received
in evidence unless they are both relevant and admissible.

There are facts which even though relevant but are not admissible under the BSA. For example, a
confession made to a police officer is relevant fact but Section 23(1) of the BSA makes it inadmissible.
Similarly, communication between spouses, though relevant in certain cases, but they are declared as privileged
by virtue of Section 128 of the Bharatiya Sakshya Adhiniyam.

Furthermore, there are also instances under the Adhiniyam where the facts, even though irrelevant, are
made admissible for example, Section 158 of the Adhiniyam allows the facts to be admitted in court in
order to impeach the credibility of witness during cross-examination even though these facts are not related

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to fact in issue in any manner.

Court in this case has also held that it is a fundamental rule of law that evidence must be relevant in

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order to be admissible. But the converse is not true. Thus, relevancy of fact and admissibility of fact are
neither co-extensive nor synonymous, the former being based on probative force and logical reasoning
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while the latter is based on legal policy or legal rules. All admissible facts are relevant but all relevant facts are
not admissible.
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Res Gestae

Sections 4 to 7 lay down various ways in which the facts are so related to each other to form
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component of the principal facts. These sections enact the law which is usually laid down in England in these
terms, i.e., that acts, declarations and incidents which constitute or accompany and explain the fact or
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transaction in issue are admissible for or against either party as forming parts of res gestae.
m

Meaning of res gestae

Sa

This is a Latin phrase which means ‘things said and done in course of same transaction’. It may be
defined as those circumstances, facts or transactions which are in continuity of main transaction. It includes
everything which can be considered to be fairly connected with the main event. The essence of doctrine is
that a fact which though not in issue, is so connected with the fact in issue as to form part of same
transaction becomes relevant by itself.

These incidents may be separated from the facts by lapse of time. It may consist of sayings and
doings, thing left undone as well as things done. The test of admissibility of evidence as a part of res-gestae
is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal
facts as to be regarded as a part of the transaction itself.

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Principle: The underlying principle behind the doctrine of res gestae is that when any transaction is a
fact in issue, then evidence can be given of every fact which forms part of the same transaction. The
doctrine of res gestae enables the court to take into account all the essential details of the transaction. It serves
the purpose of completing the missing link. The rationale behind making certain statements or fact admissible
under Section 4 of Bharatiya Sakshya Adhiniyam is on account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue.

Res gestae under Bharatiya Sakshya Adhiniyam

Section 4 of the Bharatiya Sakshya Adhiniyam is a direct manifestation of the doctrine of res gestae as
followed in England. This section provides that facts, though not in issue, but are so connected with fact in
issue or relevant fact as to form part of the same transaction are relevant. They may occur at same time or

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place or at different times and places. The rational in making certain statements or facts relevant under
Section 4 is on account of spontaneity and immediacy of such statement or fact in relation to the fact in

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issue.

Supreme Court in Javed Alam v. State of Chhattisgarh, (2009) 6 SCC 450 held that the test for
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applying the rule of res gestae is that statement or fact should be spontaneous and should form part of same
transaction ruling out any possibility of concoction.
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Same transaction: The term 'same transaction' has not been defined in the BSA. According to
Stephen, a transaction is a group of facts connected together to be referred to by a single legal name, a crime,
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a wrong, a contract or any other subject of enquiry which may be in issue.

In G. Vijayvardhan Rao v. State of Andhra Pradesh, AIR 1996 SC 2971, Supreme Court held that
pl

for a statement to be part of transaction it must be spontaneous and must be contemporaneous with the
fact. If the statement is made after the act is over and its maker has time to think and reflect then it is not
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relevant.
Sa

In Teper v. R, 1952 AC 480 (PC), Privy Council held that the rule that in criminal trial hearsay evidence
is admissible if it forms part of the res gestae is based on the proposition that the human utterance is both a
fact and a means of communication. It is essential that the words sought to be proved by hearsay should be,
if not absolutely contemporaneous with the action or event, at least clearly associated with it that they are
part of the thing being done.

In Sukh v. State of U.P. (1999) 9 SCC 507, Supreme Court held that the test for determining whether
the fact forms the part of same transaction or another depends upon whether they are related to one
another in point of purpose or as cause and effect or as probable and subsidiary acts as to constitute one
continuous action.

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In Basanti v. State of Himachal Pradesh, (1987) 3 SCC 227, when shortly after murder, the person
suspected of murder described the absence of the deceased by saying that he had left the village, the court
held that the statement as part of same transaction and thus relevant.

In R v. Foster, (1834)6 C & C 325, the deceased has been killed by a speeding truck, the witness had
not seen the incident but the speeding truck. The deceased stated to him what had happened with him in the
accident. The court held that the statement of the deceased to the witness to be admissible as res gestae.

Psychological facts or words accompanying physical acts: The words spoken by the person
doing the act or by the person to whom they were done or by bystanders are relevant as a part of same
transaction, provided they are contemporaneous with transaction and there is no interval so as to give time
and opportunity for fabrication.

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In R v. Bedingfield, (1879) 14 Cox CC 341, on a trial for murder, it appeared that the deceased with
her throat cut came suddenly out of a room in which she had left the accused and she said immediately 'see

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what Harry had done to me'. The court held that her statement was not admissible in evidence either as a

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dying declaration or as res gestae. The court held that statement must strictly accompany or be made at the
same time as physical act in question. This decision was later overruled in R v. Andrews, 1987 AC 281 (HL).
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In this case House of Lords allowed the statement of the deceased to be admitted as part of res gestae even
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when there was some time gap between the statement and the event of stabbing and robbery.

The statement should not be a mere narrative of past occurrence. For example in Sanwal Das v.
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State of Bihar, AIR 1974 SC 778, ‘A’ assaulted ‘B’ on the neck with a knife and this is seen by bystanders
who exclaimed ‘A’ is killing ‘B’. The exclamation is as much part of the transaction of murder as the gushing
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out of the blood from the wound inflicted on the neck.

m

On the other hand, in State of A.P. v. Panna Satyanarayan, AIR 2000 SC 2138, the accused murdered
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his wife and daughter. The father of deceased wife stated that the father of accused told him on telephone
that his son had killed the deceased. There was no finding as to whether such information was given either
at the time of commission of crime or immediately thereafter so as to form part of the same transaction.
The statement was held not to be relevant under Section 6 [now Section 4 of BSA].

Time and Space: Section 4 specifically provides that the fact forming part of same transaction may
occur at same time and place or at different times and places. Thus, the act or transaction may be completed
in a moment of time or, if there are connecting circumstances, it may extend to a period of days, weeks or
even months. Similarly, no limitation can be imposed as to territorial boundaries within which the transaction
must occur.

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For example a person is charged for waging a war against State in pursuance of which properties were
destroyed and troops were damaged. Even though the acts were committed at different times and places,
but they form part of general transaction [Illustration (b) to Section 4]. Thus, such facts may be proved by
giving evidence even if it is hearsay or even if committed at different time and places provided they are part
of same transaction.

Hearsay and res gestae

Supreme Court in Gentela Vyayavardhan Rao v. State of A.P., AIR 1996 SC 2791 held that rule
embodied in Section 6 [now Section 4 of BSA] is an exception to general rule that hearsay evidence is not
admissible. Hearsay evidence simply means that the person has not seen the actual happening of the
incident but he has heard it from others. As a general rule evidence must be direct and hearsay evidence is

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not admissible in the court. However, if such evidence forms the part of same transaction so as to qualify
as res gestae then the evidence may be given. Doctrine of res gestae constitutes as an exception to the principle

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of hearsay. In R v. Foster, the witnesses had only seen speeding vehicle and not the incident. The injured
person explained to him the nature of the accident. The witness was allowed to give evidence of what the
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deceased said because it formed the part of same transaction i.e. res gestae. Supreme Court in Sukhar v.
State of U.P., 1999 (7) JT 537 held that for bringing hearsay evidence within the provision of Section 6
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[now Section 4 of BSA], what is required to be established is that it must be almost contemporaneous with
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the acts. There should not be an interval which will allow fabrication.
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Facts which form the occasion, cause of effect of facts in issue

Section 5 makes the following facts relevant:-

pl

 Facts which are the occasion, cause or effect (immediate or otherwise) of facts in issue or rel-
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evant facts.
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 Facts which constitute the state of things under which they happened.

 Facts which afforded an opportunity for their occurence or transaction.

Occasion

In R v. Richardson the deceased girl at the time of murder was alone at the home. This fact is relevant
because it constituted the occasion to commit murder.

Cause

The act in question must have been done by the person who had the cause for it. Evidence can be
given of such circumstances which constitute the cause for the happening of the act.

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Effect

In R v. Richardson, a girl was killed in the cottage. The scene of the crime showed that the prints of
the footsteps which suggested that the accused must have worn the shoes which had iron knobs or nails in
them. This was the effect of the fact in issue.

When a person dies because of poisoning the symptoms of poison are relevant as they are effects of
the facts in issue. Illustration (c) is the correct illustration on this point.

Opportunity

In R v. Donellan, the deceased used to take a medicine in a routine manner which was given by her
mother. The accused knew the routine of the medicine and one day he replaced the bottle of the medicine

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with bottle of poison. Mother innocently administered poison knowing it to be medicine. Knowledge of
the accused was held to be relevant as it served as an opportunity to commit the crime.

State of things

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In Ratten v. Reginam, the accused shot down his wife and took the defence of the accident. The fact
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that the accused was unhappy with his wife and was having an affair with the another woman was held to
be relevant as it constituted the state of things for the happening of the act.
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Motive, preparation and previous or subsequent conduct

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Meaning of motive

The term ‘motive’ has not been defined in the Adhiniyam. A motive is that which moves a man to do
pl

a particular act. Motive should not be confused with intention which is an act of the will directing an act or
a deliberate omission. It shows the nature of the act which the man believes he is doing.
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Supreme Court in Suresh Chandra Bahri v. State of Bihar, 1994 Cr. LJ 3271 (SC) held that motive
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is something which prompts a person to form an opinion or intention to do certain acts. Neverthless
absence of proof of motive does not render the evidence untrustworthy or unreliable. By itself, motive
does not constitute any crime but once the crime is committed the evidence of motive assumes significance.

In R v. Palmer, accused borrowed huge sum of money from his friend. His friend asked for his
money one day and died in suspicious circumstances after that. The fact that Palmer had strong motive to
eliminate his friend was held to be relevant.

In Parshwanath v. State of Karnataka, AIR 2010 SC 2914, it was held that if the case is based on
a circumstantial evidence the evidence of motive becomes material. [Illustrations (a) and (b) of Section 6
are examples of motive].

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Relevancy of motive

There is hardly any act without motive. Ordinarily, the feelings and propensities under which the parties
act are so uniform in their operation that a conclusion may safely be drawn that if a person acts in a
particular manner, he does so under the influence of particular motive. Thus, facts which show or constitute
motive are made relevant under Section 6(1) of the Adhiniyam.

For example ‘A’ is tried for murder of ‘B’. The fact that ‘B’ known that ‘A’ had murdered ‘C’ and that
‘B’ had tried to extort money from ‘A’ by threatening to make his knowledge public are relevant as they
show the motive of ‘A’ for killing ‘B’ who was blackmailing him.

Motive: How far relevant? The Supreme court, in Babu v. State of Kerala, AIR 1999 SC 3861,

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discussed the relevancy and importance of motive and held as follows:

1. Motive is relevant as it aids the court in analyzing the evidence. Absence of motive increases the duty

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of court to become more, cautious in scrutinizing the evidence.

2. Where there is convincing eye witness in a case, motive has no role to play and it recedes in back-
ground. Pr
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3. Motive alone cannot be sole ground for convicting the accused.
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4. Motive is not important when direct evidence is available. It is in case of circumstantial evidence that
motive assumes importance.
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Supreme Court in Sukhpal Singh v. State of Punjab, (2019) 15 SCC 622 held that the inability of
prosecution to establish motive in a case of circumstantial evidence is not always fatal to the prosecution.
pl

Preparation when relevant

m

Section 6(1) also lays down that preparation made by the accused to commit a crime is always
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relevant. Preparation itself is not a crime except in certain circumstances but when the crime is committed
the preparation becomes relevant. It evidences a design or plan to do certain thing as planned. The probative
force of preparation rests on the presumption that an intention to commit the offence was framed by the
accused which persisted until it carried into execution. Illustration (d) refers to the acts of preparation.

Conduct of party when relevant

According to Wigmore, conduct is the effect and expressions of inward emotions. Section 6(2) makes
conduct of any person relevant. The conduct may also include the statement accompanying and explaining
acts.

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Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 held that the
conduct, in order to be admissible under Section 8 [now Section 6 of BSA] must be such that it has close
nexus with a fact in issue or a relevant fact

Explanation 1 to Section 6 makes it clear that mere statements do not constitute ‘conduct’ unless
they accompany and explain acts other than statements. It is to be noted that the conduct of a party alone is
admissible and not of a person who is not a party to the suit. Conduct of following persons is relevant:-

1. Any party, or his agent, to any suit or proceedings in reference to such suit or proceedings or in
reference to any fact in issue or relevant fact.

2. Accused person i.e. person against whom offence is subject of any proceedings.

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For example the question is whether ‘A’ was ravished. The fact that shortly after the alleged crime, she
made a complaint relating to the crime, the circumstances under which and the terms in which the complaint

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was made are relevant. Conduct of an accused is relevant against him and not against his co-accused.

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Statements affecting conduct of a party- Explanation 2: Explanation 2 to Section 6 provides
that when the conduct of any person is relevant, any statement made to him or in his presence or hearing
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which affects such conduct is also relevant.
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For example: Where the question is whether ‘A’ robbed ‘B’, the fact, that after ‘B’ was robbed, ‘C’ said
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in A’s presence - “the police are coming to look for the man who robbed B” and that immediately
afterwards ‘A’ ran away, are relevant as the statement of ‘C’ explains and affects the conduct of ‘A’.
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Supreme Court in Amina v. Hasan Koya, (2003) 6 SCC 93, held that the reason why evidence of
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conduct is allowed is because the man’s conduct is always influenced by what he has been doing before or
after the act. It is necessary that the conduct in question should either influence the facts or be itself influenced
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by the facts.

In Queen v. Abdullah, the accused was guilty of murder of a young girl. The throat of the girl was
slit and she was unable to speak. But, while in hospital she was in a conscious state. When she was asked
about the assailant and the name of Abdullah (accused) was mentioned, she made affirmative signs. The
majority held that in this case Section 8 [now Section 6 of BSA] is not applicable and the conduct must be
influenced directly by the facts in issue/relevant facts and not by interpretation of words spoken by the
third persons. The evidence was held to be relevant as dying declaration under Section 32 of the Act [now
Section 26 of BSA].

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Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 observed that the
conduct of the accused in pointing out to the police the place of hiding the murder weapon is is relevant
under Section 8 [now Section 6 of BSA].

Relevancy of tape recorded conversation

Tape recorded conversation may be relevant under Sections 4, 5 or 6. Supreme Court in R.M.
Malkani v. State of Maharashtra, AIR 1973 SC 157 observed that the tape recorded conversation is
admissible provided the conversation is relevant to the matters in issue and there is identification of the
voice and the accuracy of conversation is proved by eliminating the possibility of erasing the tape record.
Court held that documentary evidence even in criminal matters could be by electronic records including

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video conferencing.

Supreme Court in Ram Singh v. Co. Ram Singh, AIR 1986 SC 3 held that a tape recorded statement

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is admissible in evidence, subject to following conditions:-

1. The voice of the speaker must be identified by the maker of the record or other persons
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recognizing his voice. Where the maker of the record is unable to identify the voice, strict proof
will be required to determine whether or not it was the voice of the alleged speaker.
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2. The accuracy of the tape recorded statement must be proved by the maker of the record by
satisfactory evidence; direct or circumstantial.
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3. Possibility of tampering with, or erasure of any part of the tape recorded statement must be
totally excluded.
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4. The tape recorded statement must be relevant.

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5. The recorded cassette must be sealed and must be kept in safe custody.
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6. The voice of the particular speaker must be clearly audible and mut not be lost or distorted by
other sound or disturbances.

Further, in Yusufalli v. State of Maharashtra, AIR 1968 SC 147 Supreme Court held that the
court must be satisfied beyond reasonable doubt that the tape record has not been tampered with.

Facts necessary to explain or introduce facts

Section 7 of the Bharatiya Sakshya Adhiniyam makes facts which are necessary to explain or introduce
facts in issue or relevant fact, as relevant in so far as they are necessary for that purpose. Thus, facts which are
introductory or explanatory in nature can be proved if they have direct bearing on fact in issue.
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