Definitions and Key Terminology
Classification of Offences
The Bharatiya Nagarik Suraksha Sanhita, 2023, like its predecessor, the CrPC, classifies criminal offences based on certain characteristics. These classifications are crucial as they determine the procedure to be followed by the police and the courts during investigation and trial.
Cognizable and Non-cognizable Offences
This classification is based on the power of the police to arrest without a warrant.
Cognizable Offence: As defined in Section 2(1)(g) of BNSS, a "cognizable offence" means an offence for which, and "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 a warrant.
These are generally more serious offences (e.g., murder, rape, theft, rioting).
Police can register an FIR and start investigation without prior permission from a Magistrate (Section 173).
Non-cognizable Offence: As defined in Section 2(1)(r) of BNSS, a "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without a warrant.
These are generally less serious offences (e.g., assault, cheating, defamation).
Police cannot arrest the accused without a warrant issued by a Magistrate.
Police cannot register an FIR or start investigation without the express permission of a Magistrate (Section 155).
The First Schedule of the BNSS lists most offences under the Bharatiya Nyaya Sanhita (BNS) and classifies them as cognizable or non-cognizable, bailable or non-bailable, and triable by which court.
Bailable and Non-bailable Offences
This classification determines whether bail is a matter of right or discretion.
Bailable Offence: As defined in Section 2(1)(c) of BNSS, a "bailable offence" means an offence shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.
In bailable offences, the accused has a right to be released on bail, either by the police officer in custody or by the Court, upon furnishing a bail bond (Section 436).
These are generally less serious offences.
Non-bailable Offence: These are offences not listed as bailable in the First Schedule or made bailable by any other law.
In non-bailable offences, the accused does not have a right to bail. Granting bail is at the discretion of the Court (Section 437 & 439).
These are generally more serious offences.
The Court considers various factors like the nature and gravity of the offence, the severity of punishment, the possibility of the accused absconding or tampering with evidence, etc., while deciding on a bail application.
Again, the First Schedule of the BNSS provides the classification for offences under the BNS.
Summons-cases and Warrant-cases
This classification determines the procedure for trial, particularly how the accused is brought before the court and the manner of framing charges.
Summons-case: As defined in Section 2(1)(w) of BNSS, a "summons-case" means a case, relating to an offence, not being a warrant-case.
These are cases relating to offences punishable with imprisonment for a term not exceeding two years.
The trial procedure is simpler and shorter than a warrant-case trial (Chapter XXI).
The accused is typically required to appear in court via a summons.
Warrant-case: As defined in Section 2(1)(zi) of BNSS, a "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
The trial procedure is more detailed and lengthy (Chapter XIX & XX).
The accused is typically brought before the court via a warrant of arrest, though summons can be issued in certain circumstances.
This classification dictates whether the trial will proceed under the procedure for summons-cases or warrant-cases, which have distinct rules for recording evidence, framing of charges, etc.
Key Definitions in BNSS
The BNSS contains numerous definitions that are fundamental to understanding its provisions and the criminal justice process it outlines. Some of the key definitions are:
Victim
Section 2(1)(zh) of the BNSS defines "victim" expansively:
"'victim' means a person who has suffered any harm or loss caused by reason of the act or omission for which the accused person has been charged and includes his or her guardian or legal heir."
This definition is broader than under the previous CrPC, explicitly including the guardian or legal heir, which is significant, especially in cases involving death or incapacity of the direct victim.
This definition underpins the enhanced rights and role given to victims in the BNSS, such as the right to be heard during trial and to receive information about the case progress.
Complainant
Section 2(1)(f) of the BNSS defines "complaint" and implicitly the "complainant":
"'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report."
A "complainant" is the person who makes such an allegation to a Magistrate. Proceedings initiated upon such a complaint are known as "complaint cases", distinct from cases initiated on a police report.
Anyone can be a complainant, provided they have knowledge of the commission of an offence, and they make the allegation to a Magistrate with the intention of initiating legal action.
Complaint cases follow a specific procedure involving examination of the complainant and witnesses before the Magistrate decides to issue process against the accused.
Police Officer
While the term "police officer" is not explicitly defined comprehensively as a single term in the general definition section (Section 2), the BNSS refers to police officers of different ranks and assigns specific powers and duties to them throughout its chapters.
Police officers are functionaries of the State responsible for the prevention and detection of crime, maintenance of law and order, and investigation of offences.
Their powers and duties under the BNSS include registering FIRs (Section 173), conducting investigations (Chapter XII), arresting persons (Chapter V), search and seizure (Chapter VII), presenting accused before Magistrates, filing police reports (charge sheets/final reports) (Section 193), etc.
The powers vested in a police officer under the BNSS are determined by their rank and the nature of the offence (e.g., a police officer in charge of a police station, or a higher-ranking officer for specific purposes).
Magistrate
The BNSS refers to different classes of Magistrates, deriving their powers from the Code and other laws:
Judicial Magistrates: These include Chief Judicial Magistrates (CJM), Additional Chief Judicial Magistrates, Judicial Magistrates of the First Class (JMFC), and Judicial Magistrates of the Second Class (Section 6). They are part of the criminal court hierarchy under the High Court.
Their functions are primarily judicial, including taking cognizance of offences (Section 190), conducting trials for less serious offences (Summons and Warrant cases), examining witnesses on oath, issuing warrants and summons, granting remand (Section 187), etc.
Their sentencing powers are specified in Section 29 of BNSS (e.g., CJM can pass sentence up to 7 years imprisonment or fine, JMFC up to 3 years or fine up to ₹10,000, JM Second Class up to 1 year or fine up to ₹5,000).
Executive Magistrates: These are appointed by the State Government (Section 20). They include District Magistrates (DM), Additional District Magistrates (ADM), Sub-divisional Magistrates (SDM), Executive Magistrates, and Special Executive Magistrates.
Their functions are primarily executive and administrative, including maintaining law and order, preventing public nuisance (Chapter X), directing investigations in certain cases, conducting inquests (Section 176), and exercising powers related to security for keeping the peace or good behaviour (Chapter VIII).
The specific powers and jurisdiction of each class of Magistrate are detailed throughout the BNSS.
Court
The term "Court" in the context of the BNSS generally refers to the Criminal Courts established under the Code. Section 6 of BNSS lists the classes of Criminal Courts:
Courts of Session
Judicial Magistrates of the First Class and, in any metropolitan area, Metropolitan Magistrates
Judicial Magistrates of the Second Class
4.
Executive Magistrates
The Court of Session is the highest criminal court in a district, presided over by a Sessions Judge. It tries the most serious offences (warrant cases) that are committed to it by Magistrates and has the power to pass any sentence authorised by law, including the death penalty (though death sentences require confirmation by the High Court) (Section 28 & 29).
Judicial Magistrates conduct trials for less serious offences based on their specified powers and jurisdiction.
Executive Magistrates perform administrative functions related to criminal procedure.
Thus, "Court" under BNSS refers to the judicial forums responsible for conducting inquiries, trials, and passing judgments and sentences in criminal cases, ranging from the lowest Magistrate courts to the Courts of Session.