PROSECUTION

The concept of prosecution in criminal law, particularly under the Bharatiya

Nagarik Suraksha Sanhita (BNSS), 2023, is a fundamental aspect of the
criminal justice system. It involves the legal process through which the state,
represented by a public prosecutor, brings charges against an individual accused
of committing a crime. The prosecution plays a critical role in ensuring that
justice is served by presenting evidence and arguments to establish the guilt of
the accused beyond a reasonable doubt.

Legal Framework

Role of the Public Prosecutor

The Public Prosecutor is a key figure in the prosecution process, acting as the
representative of the state in criminal proceedings. The responsibilities of the
public prosecutor include:

1. Filing Charges: After a police investigation, if sufficient evidence is

found, the public prosecutor files a charge sheet before the magistrate.
This charge sheet outlines the allegations against the accused and presents
the evidence collected during the investigation. Under Section 193 of
BNSS, it is mandatory for cases to be initiated by a public prosecutor in
serious offenses.

2. Conducting Trials: The public prosecutor represents the state during

trials, presenting evidence, examining witnesses, and making legal
arguments to support the case against the accused. Sections 248 to 260 of
BNSS detail how trials should be conducted by the public prosecutor,
including provisions for examining witnesses and presenting
documentary evidence.
 3. Ensuring Fairness: The prosecutor must act impartially and ethically,
ensuring that justice is served rather than merely seeking a conviction.
This includes disclosing exculpatory evidence that may benefit the
defense and refraining from using improper tactics to secure a conviction.

Stages of Prosecution

The prosecution process involves several key stages:

1. Investigation: The prosecution begins with a police investigation

following an alleged crime. Law enforcement gathers evidence,
interviews witnesses, and prepares a report. If sufficient evidence is
found, a charge sheet is filed by the police, which is then reviewed by the
public prosecutor.

2. Pre-Trial Proceedings: Once charges are filed, the magistrate takes

cognizance of the case. The court issues summons or warrants to secure
the presence of the accused and may conduct preliminary hearings to
determine if there is enough evidence to proceed to trial.

3. Trial: During the trial phase, both sides present their cases:

 Prosecution's Case: The public prosecutor presents evidence

through witness testimony and documentary evidence. They
conduct direct examinations and cross-examinations to establish
facts.

 Defence’s Case: The defense attorney has an opportunity to

challenge the prosecution’s evidence and present their own case.

 The BNSS allows for electronic recording of evidence, enhancing

transparency and efficiency in judicial proceedings.
 4. Final Arguments and Judgment: After both sides have presented their
cases, they make closing arguments summarizing their positions. The
judge then delivers a verdict based on the evidence presented during the
trial.

Withdrawal from Prosecution

The BNSS also addresses situations where prosecution may be withdrawn.

Under Section 360:

 If a public prosecutor seeks to withdraw from prosecuting a case, they

must obtain consent from the court.

 The law mandates that victims must be given an opportunity to be heard

before any decision to withdraw charges is made.

 This provision ensures that victims' rights are considered in decisions

regarding prosecution and enhances accountability within the
prosecutorial process.

Judicial Oversight

Judicial oversight plays an essential role in maintaining the integrity of

prosecutions:

 Courts can review cases where prosecutorial misconduct or negligence

occurs.

 In high-profile cases or those involving significant public interest (e.g.,

communal riots), courts may intervene to ensure that prosecutions are
conducted fairly and effectively.

 Judges have discretion to dismiss cases where there is insufficient

evidence or where prosecutorial conduct raises concerns about fairness.
Relevant Case Law

1. Best Bakery Case (Zaheera Sheikh): This landmark case highlighted

significant prosecutorial failures where key witnesses turned hostile due
to intimidation from local political figures. The Supreme Court
emphasized the need for competent prosecution and witness protection
measures to ensure justice is served effectively.

2. State vs. K.K. Verma (1977): In this case, the Supreme Court ruled that
prosecutors must present reliable evidence and conduct their duties
diligently; negligence could lead to wrongful acquittals or miscarriages of
justice.

3. Mohd. Ahmed vs. State (2009): This case reinforced that prosecutors
have an obligation not only to seek convictions but also to uphold justice
by ensuring that all relevant facts are presented before the court.

Conclusion

In summary, prosecution under the BNSS is a critical component of the criminal

justice system that ensures accountability for criminal behavior while upholding
legal standards and principles of fairness. The role of the public prosecutor is
pivotal in conducting trials fairly and ethically, representing society's interests
while safeguarding defendants' rights. Provisions for withdrawal from
prosecution and judicial oversight further enhance this process's integrity,
ensuring that justice is served effectively and equitably for all parties involved.
By emphasizing transparency, accountability, and fairness throughout its
framework, BNSS aims to foster public confidence in the criminal justice
system while ensuring that victims receive justice and offenders are held
accountable for their actions.

SUMMARY TRIAL

The concept of summary trial in criminal law, particularly under

the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, refers to a
streamlined legal process designed to expedite the adjudication of minor
offenses. Summary trials are characterized by their simplified procedures,
allowing for quicker resolutions compared to traditional trials, which can be
lengthy and complex.

Legal Framework

Provisions for Summary Trials

The BNSS outlines the procedure for summary trials in Chapter XXII Sections
283 to 288. These sections detail how summary trials are conducted, the types
of offenses that can be tried summarily, and the authority responsible for
overseeing these trials.

1. Authority to Conduct Summary Trials:

 Summary trials can be conducted by a Chief Judicial Magistrate or

a Magistrate of the First Class who has been empowered to do so.
(S.283)

 The High Court may also confer such powers on Magistrates of the
Second Class for specific offenses. (Section 284)
 2. Eligible Offenses:

 Summary trials are applicable to offenses that are not punishable

by death, life imprisonment, or imprisonment exceeding three
years. (S. 283(2))

 Examples include minor thefts (S. 303, 305, 306 of BNS) and
certain misdemeanors where the value of the property involved
does not exceed ₹20,000. (S. 283 (b) (i))

3. Procedure:

 The procedure for summary trials is less formal than that of regular
trials. Evidence may be presented through affidavits rather than
requiring witnesses to appear in court, significantly reducing the
time required for trial proceedings. The Magistrate must determine
if a case is appropriate for summary trial before proceeding.

Key Features of Summary Trials

 Quick Resolution: The primary advantage of summary trials is their

efficiency. By allowing evidence to be submitted through affidavits and
minimizing procedural requirements, summary trials can resolve cases
much faster than traditional court processes.

 Limited Sentencing Powers: In summary trials, no sentence exceeding

three months can be imposed. This limitation ensures that only minor
offenses are dealt with through this expedited process.

 No Appeal Against Summary Decisions: Decisions made in summary

trials are generally final and cannot be appealed, which underscores the
 need for careful consideration by the presiding Magistrate before
proceeding with a summary trial.

Record Keeping and Judgments

 The Magistrate is required to maintain specific records during summary

trials, including details about the offense, the accused’s plea, and the
findings. If an accused does not plead guilty, the Magistrate must record
the substance of evidence and provide a brief judgment explaining the
reasoning behind their decision. (S.286 & 287)

Judicial Oversight

While summary trials aim to expedite justice, they also require judicial
oversight to ensure fairness:

 If at any point during a summary trial it becomes clear that a case is too
complex or serious for this procedure, the Magistrate has the authority to
revert to standard trial procedures.

 This flexibility helps prevent miscarriages of justice by ensuring that

cases are handled appropriately based on their nature and complexity.

Relevant Case Law

1. State of U.P. vs. Rajesh Gautam (2003): This case highlighted the
importance of ensuring that cases tried summarily do not compromise the
rights of defendants. The Supreme Court emphasized that while
efficiency is important, it should not come at the cost of fair trial
principles.
 2. K.K. Verma vs. State (1977): This judgment reinforced that even in
summary trials, adequate records must be maintained to ensure
transparency and accountability in judicial proceedings.

Conclusion

In conclusion, summary trials under the BNSS provide an efficient mechanism

for resolving minor criminal offenses while maintaining essential legal
safeguards. By streamlining procedures and allowing for quicker resolutions,
summary trials help reduce court backlogs and promote timely justice.
However, they also require careful judicial oversight to ensure that defendants'
rights are protected and that justice is served fairly across all cases. The
provisions laid out in Sections 283 to 288 reflect a balanced approach aimed at
improving the efficiency of the criminal justice system while upholding
fundamental legal principles.

TRIAL BEFORE A COURT OF SESSION – Search Sections in BNSS

The trial before a Court of Session is a fundamental pillar of our legal

framework, particularly when dealing with the most serious criminal cases. This
judicial process ensures that justice prevails in matters such as murder, rape, and
other grave offences.

What is Trial Before a Court of Session in BNSS?

In the context of the Bharatiya Nagarik Suraksha Sanhitha (BNSS), a “trial

before a Court of Session” refers to a legal proceeding in which serious criminal
cases, such as murder or rape, are heard and adjudicated by a specialised higher
court known as the Court of Session.

This court conducts formal legal proceedings, involving the presentation of

evidence, witness examination and legal arguments, ultimately culminating in a
verdict of guilt or innocence. If the accused is found guilty, the Court of Session
has the authority to impose appropriate sentences. The process ensures fair and
thorough adjudication of major criminal offences under the jurisdiction of this
court.

Importance of Trial Before a Court of Session in BNSS

The trial before a Court of Session under the BNSS is crucial for justice and law
enforcement. It deals with serious criminal cases, ensuring a comprehensive,
fair and lawful examination of evidence and witnesses. The Court of Session, as
a higher court, plays a pivotal role in delivering justice, imposing sentences for
grave offences and maintaining public trust in the legal system.

This process upholds the principle of due process, safeguards the rights of the
accused and provides a forum for impartial adjudication. Additionally, it helps
deter and address serious crimes, contributing to public safety and the overall
rule of law.

Process of Trial Before a Court of Session in BNSS

Jurisdiction: The court of Session is a higher court with the authority to handle
complex and serious criminal cases. It can conduct trials for offences that fall
under its jurisdiction, such as murder, rape, kidnapping and other major crimes.

Procedures: The trial before a Court of Session follows specific legal

procedures, which may vary from one jurisdiction to another but generally
involve the presentation of evidence, examination of witnesses and arguments
from both the prosecution and the defence.
Role of the Judge: The judge in a Court of Session trial presides over the
proceedings, ensures that proper legal procedures are followed and makes
decisions on legal matters during the trial. In some cases, the judge may also be
responsible for determining the verdict if there is no jury.

Verdict: At the end of the trial before a Court of Session, the judge or the jury,
depending on the legal system, delivers a verdict of guilty or not guilty based on
the evidence and arguments presented during the trial.

Sentencing: If the verdict is guilty, the Court of Session also has the authority
to pass sentences, including imprisonment, fines or other penalties, depending
on the nature of the crime and relevant laws.

Provisions in BNSS Dealing with Trial Before a Court of Session in BNSS

Parties in Trial Before a Court of Session (Section 248)

In a trial in a court of session, there are two main parties involved. The
prosecution is handled by a public prosecutor. The accused person has the right
to choose a defence lawyer. If the accused cannot afford a lawyer, the court will
provide one at the state’s expense. Before the trial begins, the accused is given
copies of important documents such as the police report and FIR (First
Information Report).

Opening the Case (Section 249)

The public prosecutor begins the case by explaining the accusations against the
accused. They briefly outline the evidence they plan to use to prove the guilt.
The prosecutor’s job is not to guarantee a conviction but to present the case’s
facts to the tribunal, which will make the judgment.

Discharge of the Accused in Trial Before a Court of Session (Section 250(2))

After hearing from both sides, if the court believes there is insufficient reason to
proceed against the accused, they will release the accused and provide the
reasons for doing so. This stage does not involve witness examination but
allows both sides to present their arguments for either filing charges or
discharging the accused.

Framing of Charges for Trial Before a Court of Session (Section 251)

After listening to both parties in a trial before a Court of Session, if the court
believes the accused may have committed the offence:

If the offence can only be tried in the Court of Session, the court frames the
charges in writing.

If the offence is not exclusively for the session’s court, the court frames charges
and transfers the case to the Chief Judicial Magistrate. It’s important to note that
when framing charges under Section 251 of the BNSS, the judge doesn’t need
to provide detailed reasons. Only a prima facie case is considered at this stage.
This means that the judge doesn’t have to determine if the case is beyond a
reasonable doubt, as clarified by the Supreme Court in the case of Bhawna Bai
v. Ghanshyam & Ors.

In the case of Rukmini Narvekar v. Vijaya Satardekar, the court ruled that
the accused could not present evidence at the charge framing stage. Only
materials specified in Section 227 at the time of framing the charges are
considered.

Explaining the Charge and Inquiry About Plea (Section 251)

The details of the charge must be explained to the accused, allowing them to
either admit guilt or request a trial. In the case of Banwari v. State of UP, the
court ruled that not reading or explaining the charge to the accused doesn’t
affect the trial unless it’s proven that not following Section 251 has harmed the
accused.

Conviction on a Guilty Plea in Trial Before a Court of Session (Section 252)

If the accused pleads guilty, the judge records the plea and can choose to convict
the accused. As seen in Queen Empress v. Bhadu, the guilty plea must be
clear; otherwise, it’s treated as a plea of not guilty. Section 252 specifies that if
an accused pleads guilty, the judge can convict them at their discretion and
record it.

However, the court cannot convict the accused on a guilty plea when the offence
carries a penalty of death or life imprisonment. In Hasaruddin Mohommad v.
Emperor, the court emphasised that it’s hesitant to convict someone accused of
an offence with the death penalty or life imprisonment based solely on a guilty
plea. The accused’s right to appeal is restricted by Section 416 if they are
convicted based on a guilty plea.

Setting a Date for Prosecution Evidence (Section 253)

If the accused refuses to plead, doesn’t plead, claims to be tried or isn’t

convicted under Section 252, the judge schedules a date for the examination of
witnesses or may order the appearance of witnesses or the production of
documents or things.

Evidence for Prosecution (Section 254)

On the scheduled date, the judge gathers all the evidence to support the
prosecution’s case.

The judge may, at their discretion, allow the cross-examination of a witness to

be postponed until after other witnesses have been examined or recall a witness
for further cross-examination.
In the case of Ram Prasad v. State of U.P, the Supreme Court ruled that if the
court finds the prosecution failed to present witnesses for unreasonable or
improper reasons, it can draw a negative conclusion against the prosecution.

The court noted in State of Kerala v. Rasheed that when deciding an

application under Section 231(2), a balance should be maintained between the
rights of the accused and the prosecution’s obligation to present evidence.
Several factors should be considered, including the risk of undue influence,
threats, the potential for later witnesses to adjust their testimony to undermine
the defence and the memory of witnesses whose direct examination is complete.

Prosecution’s Arguments in Trial Before a Court of Session (Section 352)

After all witnesses have been heard, the prosecution presents a summary of their
oral arguments. A copy of these arguments is provided to the opposing party.

Examination of the Accused

The accused is questioned without being placed under oath. This process allows
the accused to clarify the circumstances alleged by the prosecution.

Acquittal in Trial Before a Court of Session (Section 278)

If, after hearing from both sides, the judge concludes that the accused did not
commit the offence, an order of acquittal is recorded.

Commencing the Defense (Section 256)

If the accused is not acquitted, they are asked to present their defence. The court
has the authority to summon or question any person as a court witness at any
stage.

Arguments (Section 257)

After recording the defence, the prosecutor summarises their case and the
accused or their representative is given the opportunity to respond. If the
defence raises any legal points, the prosecutor may be allowed to make
additional submissions.

Judgment of Acquittal or Conviction in Trial Before a Court of Session

(Section 258)

After hearing arguments from both sides, the court issues a judgment of either
acquittal (not guilty) or conviction (guilty). In the case of Santa Singh v. State
of Punjab, the Supreme Court emphasised that the judge should first decide on
a verdict of either conviction or acquittal. If the accused is convicted, they are
given an opportunity to present their side regarding the sentencing before the
court decides the punishment.

In Bacchan Singh v. State of Punjab, the court ruled that this section allows
for a two-step trial process. It grants the accused the right to a pre-sentence
hearing, which might not be directly related to the specific crime being
investigated but can impact the choice of punishment.

Previous Conviction (Section 259)

When a prior conviction is alleged, as specified in Section 259 and the accused
does not admit to the previous conviction as stated in the charge, the judge may
collect evidence related to the alleged prior conviction and make a record of
their findings.

It’s important to note that the judge should not read the charge or ask the
accused to plead to it and the prosecution should not mention the previous
conviction in any evidence until the accused has been convicted under Section
258 or Section 239.

Procedure in Cases Instituted Under Section 222(2) (Section 260)

Trial Procedure: When a Court of Session takes up a case under Section 222
(2), it follows the same trial procedure used for warrant cases initiated by means
other than a police report before a magistrate.

In-Camera Trial: All trials under this section can be held in a private session if
either party requests it or if the court deems it appropriate.

Compensation for Unfounded Accusations: If the court discharges or acquits

all or some of the accused in such a case and believes that there was no valid
reason for making the accusations, it can issue an order. This order directs the
person against whom the offence was alleged to show why they should not
compensate the accused. This applies to each or any of the accused if there are
multiple.

Determining Compensation: The court examines the reasons presented by the

person directed to pay compensation. If it concludes that there was no
reasonable cause for the accusation, it can order compensation, not exceeding
Rs. 1000, to be paid by that person to the accused or each of them.

Recovery of Compensation: Compensation awarded under subsection (4) is

collected as if it were a fine imposed by a magistrate.

No Exemption from Liability: The person ordered to pay compensation under

subsection (4) is not exempted from any civil or criminal liability regarding the
complaint made under this section.

Right to Appeal: The person instructed to pay compensation can appeal to the
High Court.

Payment Timing: When an order for compensation is made in favour of an

accused person, the compensation is not paid to them until the period allowed
for filing an appeal has passed or, if an appeal is submitted until the appeal is
decided.
Conclusion

A trial before a Court of Session is a vital component of our legal system. Its
where serious criminal cases are heard, such as murder and rape, ensuring
justice is served. The trial before a Court of Session guarantees that evidence is
carefully examined, witnesses are heard and legal procedures are followed. The
Court of Session, as a higher court, plays a crucial role in delivering a fair and
impartial verdict. This not only protects the rights of the accused but also
maintains public trust in the legal system.

Moreover, the Court of Session helps keep our communities safe by addressing
and deterring major crimes. It upholds the principle of due process, making sure
everyone is treated fairly under the law. In essence, it is a cornerstone of a just
and orderly society, providing a platform for justice and ensuring the rule of law
prevails.

JUDGEMENT
“The people’s good law is the highest law” – Cicero

In a legal sense, judgement is the decision given by the Court, after hearing both
sides, it contains reasons for reaching such a conclusion. The judgement thus
forms an important part of a legal process. A faulty judgement has the potential
to deteriorate the very foundation of the legal justice system in the country.
Object and scope

Chapter XXIX of the BNSS, deals with Judgement. However, there is no

definition of “judgement” present in the Sanhitha, but it is to be understood as
the final order of the Court. In the case of Ismail Amir Seikh vs. the State of
Maharashtra, it was held that a judgment is the act of judging. It was pointed
out that judgment should clearly mention the reason for accepting an argument
and rejecting the other.

Judgement- Has to be pronounced in Open Court-

Ajay Singh v. State of Chhattisgarh (2017) PG- 213 bare act

Pronouncing the Judgement (Section 392)

The judgement must be delivered in open court by the presiding officer (judge).
This can be done by:

 Reading the entire judgement

 Delivering the whole judgement orally (in shorthand)

 Reading the operative part (consequences) and explaining the judgement

in a language understood by the accused.

 A copy of the judgement needs to be provided to the parties

(accused/advocate) free of cost.

 If the accused is in custody, they must be brought to court to hear the

judgement (or via audio-video).
  If the accused is not in custody, they are required to be present for the
judgement pronouncement, unless special permission is granted (e.g., fine
only sentence and no prior attendance issues).

Content and Language of the Judgement (Section 393)

 The judgement must be written in the court’s language.

 It should mention the points for decision, the court’s decision and the
reasons behind the decision.

 It should specify the offence (if any) and the relevant law section under
which the accused is convicted. It should also mention the sentence.

 If the accused is acquitted, the judgement should specify the offence for
which they are acquitted and order their release.

 In case of a death sentence or alternative sentences (death/life

imprisonment/imprisonment for years), the judgement needs to explain
the reasons for the specific sentence awarded.

Order for Notifying Residence of Previously Convicted Offender (Section

394)

 This section allows courts to order someone convicted of a serious

offence (3+ years imprisonment) to notify their residence and any
changes in residence after release, for up to 5 years.

 This provision applies to criminal conspiracies, abetment and attempts to

commit such offences.

 The order can be cancelled if the conviction is overturned.

 Appellate courts and higher courts can also issue such orders.
Order to Pay Compensation (Section 395)

 When a court imposes a fine (or a sentence including a fine), it can also
order the fine to be used for various purposes:

 Defraying prosecution costs

 Compensating victims for loss or injury caused by the offence

 Compensating families in case of death caused by the offence

 Compensating someone who unknowingly received stolen property

 Compensation cannot be paid before the appeal period ends or until the
appeal is decided (if applicable).

 The court can also order the convict to pay compensation directly to the
victim.

 Appellate courts and higher courts can also make such compensation
orders.

Victim Compensation Scheme (Section 396)

 Each state government, in coordination with the central government,

needs to prepare a scheme to provide funds for compensating victims of
crime who need rehabilitation.

 Courts can recommend compensation for victims.

 The District or State Legal Services Authority will decide the amount of
compensation awarded.

 Trial courts can recommend compensation even in acquittal cases where

the victim needs rehabilitation.
  Victims or dependents can apply for compensation if the offender is not
identified.

 Legal Services Authorities can award compensation after an enquiry

within 2 months.

 Authorities can also order immediate medical aid for the victim free of
cost.

 Compensation by the state government is in addition to any fines paid to

the victim under other sections.

Treatment of Victims (Section 397)

 All hospitals (public/private) must immediately provide free first-aid or

medical treatment to victims of certain offences.

 These offences include assault, rape, sexual offences against children etc.

 The hospitals must also inform the police about such incidents.

Witness Protection Scheme (Section 398)

 Each state government needs to prepare and notify a Witness Protection

Scheme to ensure witness safety.

Compensation to Persons Groundlessly Arrested (Section 399)

 If a magistrate finds that someone was arrested without sufficient reason,

they can award compensation to the arrested person for their time and
expenses.
Order to Release on Probation of Good Conduct or After Admonition
(Section 401)

 This section allows courts to release first-time offenders on probation

instead of punishment under certain conditions.

 Offenders must be above 21 years old (unless female or minor)

Relevant Case Laws

1. Ismail Amir Seikh vs. State of Maharashtra: This case emphasized that
a judgment should clearly articulate reasons for accepting certain
arguments while rejecting others, reinforcing that clarity is crucial in
judicial reasoning.

2. State of Bihar vs. Radha Krishna Singh: The Supreme Court

highlighted the importance of following stringent evidentiary guidelines
and ensuring that all evidence is reliable and admissible according to law.
The Court stressed that each case must be evaluated on its own merits.

Conclusion:

In conclusion, Chapter XXIX lays the foundation for a fair and transparent
criminal justice system within the framework of the BNSS. By prioritizing
clear communication, victim support, and a balanced approach, this chapter
ensures that justice is served for all parties involved.
SUSPENSION OF SENTENCE

Introduction to the Concepts of Suspension, Remission and Commutation

of Sentences

When an individual is convicted of a crime, the court imposes a sentence that

must be carried out according to the law. The execution of this sentence
involves strict adherence to legal procedures, ensuring that the punishment is
enforced appropriately. However, the law also provides mechanisms to modify
sentences in certain situations. Suspension, remission and commutation are
three such mechanisms that allow for temporary or permanent alterations to the
sentences imposed by courts.

 Suspension: Refers to a temporary halt in the execution of a sentence,

without altering the sentence’s nature or duration. It is a legal provision
that pauses the enforcement of the punishment for a specific period or
under certain conditions.

 Remission: Involves reducing the length of the sentence without changing

its nature. The convict still serves the sentence but for a lesser duration
than originally imposed.

 Commutation: Entails substituting the punishment with a less severe

form. Unlike remission, commutation alters the nature of the sentence,
such as converting the death penalty to life imprisonment.

These concepts are not merely administrative tools but are deeply rooted in the
principles of justice and mercy. They balance the rigid enforcement of laws
with the need for compassion and rehabilitation.

Laws Governing Suspension, Remission and Commutation

The Indian Constitution and various statutes provide the legal basis for
suspension, remission and commutation of sentences. The primary
constitutional provisions are found in Articles 72 and 161, which vest the
President of India and the Governors of States with the power to grant pardons,
reprieves, respites or remissions of punishment.

 Article 72: Grants the President the authority to suspend, remit or

commute sentences in certain cases. This includes cases where the
sentence is for an offence under union law or where the punishment is a
death sentence.

 Article 161: Confers similar powers on the Governors of States, but this
power is exercised in cases involving state laws.

The concept of suspension of sentence in criminal law, particularly under

the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, refers to the
temporary halting of the execution of a sentence imposed on a convicted
individual. This provision allows for the possibility of releasing an offender
from serving their sentence under specific conditions, which may include the
execution of a bond or bail.

What is Suspension of Sentences?

Suspension of a sentence implies a temporary delay in the enforcement of the

sentence imposed by the court. This delay does not affect the nature or the
duration of the sentence but merely postpones its execution. The suspension can
be granted by the court that passed the sentence or by a higher authority, such as
the President or Governor.
Legal Framework

Section 464: Suspension of Sentence

Section 464 of the BNSS outlines the circumstances under which a court may
suspend the execution of a sentence:

1. Suspension for Fine Defaults: If an offender is sentenced to

imprisonment for non-payment of a fine, the court may suspend the
prison sentence and release the offender upon their execution of a bond.
The offender must agree to appear before the court on specified dates for
payment.

2. Conditions for Suspension: The court can impose conditions on the

suspension, and if the offender fails to comply with these conditions, such
as not paying the fine, the court may order that the sentence be executed
immediately.

Section 473: Power to Suspend or Remit Sentences

This section grants the appropriate government authority to suspend or remit

sentences at any time, either unconditionally or under specified conditions. Key
points include:

 Application Process: When an application for suspension or remission is

made, the government may seek the opinion of the presiding judge
regarding whether to grant it.

 Conditions: Conditions for suspension can be imposed, and if they are

not fulfilled, the government has the right to cancel the suspension,
 allowing law enforcement to arrest the individual without a warrant to
serve their remaining sentence.

Section 430: Suspension Pending Appeal

Section 430 provides that during an appeal process, an appellate court may
suspend a sentence if it finds sufficient grounds. This includes:

 Bail Considerations: If a convicted person is appealing and satisfies

certain criteria (e.g., they are sentenced to imprisonment for a term not
exceeding three years), they may be released on bail while their appeal is
pending.

 Public Prosecutor's Role: Before releasing individuals convicted of

serious offenses (e.g., punishable by death or life imprisonment), courts
must allow public prosecutors to present their objections.

Judicial Considerations

The courts exercise discretion in suspending sentences based on various factors:

 Nature of Offense: The seriousness of the crime plays a significant role

in determining whether a sentence should be suspended.

 Potential for Appeal Success: Courts often consider whether there is

prima facie evidence that suggests a conviction might be overturned on
appeal.

 Public Interest and Safety: The potential impact on public safety and
interest is also a critical consideration in deciding whether to suspend a
sentence.

Relevant Case Law

 1. Bhupatji Sartajji Jabraji Thakor v. The State of Gujarat: The
Supreme Court established stringent criteria for suspending life
sentences, emphasizing that such relief should only be granted when there
is clear evidence suggesting that the conviction may not withstand
scrutiny upon appeal.

2. State of TN v. A Jaganathan (1996): This case outlined guidelines for

exercising discretion in suspending convictions and sentences during
appeals, particularly emphasizing moral considerations related to serious
offenses.

3. In the case of K.M. Nanavati v. State of Maharashtra (1961), the Supreme

Court upheld the suspension of Nanavati’s sentence pending the appeal,
highlighting the judiciary’s discretion in such matters. The case
exemplifies how the suspension of a sentence can be a crucial legal tool
to ensure justice is not only done but also seen to be done.

Conclusion

In summary, the suspension of sentence under the BNSS provides a mechanism

for temporarily halting punishment under specific conditions, allowing for
flexibility in judicial proceedings. It reflects a balance between upholding
justice and providing opportunities for rehabilitation while ensuring that public
safety and legal integrity are maintained. The provisions outlined in Sections
464, 473, and 430 highlight how courts and governments can manage
sentencing effectively while considering individual circumstances and broader
societal implications.
REMISSION AND COMMUTATION OF SENTENCE

What is Remission of Sentences?

Remission involves the reduction of the length of a sentence without altering its
character. It is a discretionary power exercised by the appropriate government
under certain conditions, such as good behaviour by the convict or other
mitigating circumstances.

Grounds for Remission

Remission may be granted for various reasons, including:

 Good Conduct: A convict who demonstrates good conduct during

incarceration may be eligible for remission of a portion of the sentence.

 Rehabilitation: If the convict shows signs of rehabilitation and

reintegration into society, remission may be granted to facilitate early
release.

 Special Occasions: Governments may declare remission of sentences on

special occasions, such as national holidays or anniversaries.

 Humanitarian Grounds: Remission may also be granted on

humanitarian grounds, such as the advanced age of the convict or serious
health issues.

Legal Provisions and Case Law

Section 473 of the BNSS empowers the government to remit sentences, subject
to certain conditions. The section requires the government to act in consultation
with the presiding judge of the court that passed the sentence, ensuring that the
remission is granted judiciously.
In Maru Ram v. Union of India (1980), the Supreme Court emphasised that
remission should not be used arbitrarily or for political gains. The court ruled
that while the executive has the power to grant remission, it must be exercised
within the framework of the law and for the purpose of achieving justice.

What is Commutation of Sentences?

Commutation refers to the substitution of a harsher form of punishment with a

less severe one. Unlike remission, which merely reduces the duration of the
sentence, commutation changes the nature of the sentence itself.

Grounds for Commutation

Commutation is generally granted on grounds such as:

 Humanitarian Considerations: In cases where the convict is facing a

severe sentence, such as the death penalty, commutation may be granted
on humanitarian grounds, converting the death sentence to life
imprisonment.

 Judicial Review: Courts may recommend commutation in cases where

the original sentence is found to be too harsh or disproportionate to the
offence.

 Presidential or Gubernatorial Clemency: The President or Governor

may commute sentences as part of their clemency powers, often after
considering petitions for mercy.

Legal Provisions and Case Law

Section 474 of the BNSS outlines the government’s power to commute
sentences. The section provides for the commutation of death sentences,
rigorous imprisonment and simple imprisonment under specific conditions.

In Kehar Singh v. Union of India (1989), the Supreme Court examined the
President’s power to commute sentences under Article 72. The court held that
the President’s decision to commute a sentence is subject to judicial review, but
the scope of this review is limited to ensuring that the power is exercised fairly
and without malice.

Another landmark case is Swami Shraddananda v. State of Karnataka

(2008), where the Supreme Court commuted a death sentence to life
imprisonment without the possibility of remission, creating a new category of
punishment for heinous crimes.

Difference Between Suspension, Remission and Commutation

Here’s a table summarising the key differences between suspension, remission

and commutation of sentences:
Aspect Suspension Remission Commutation

Temporary postponement Reduction in the length of Substitution of a harsher

Definition of the sentence the sentence without sentence with a less severe
execution. changing its nature. one.

Nature of Changes to a different, less

Remains unchanged. Remains unchanged.
Sentence severe form of punishment.

Execution is temporarily
Original sentence duration is
Duration of halted, but the total Duration is reduced, leading
irrelevant; a new sentence is
Sentence duration remains the to early release.
imposed.
same.

Postponing the execution Reducing a 10-year

Changing a death sentence
Example of a prison term until an sentence to 7 years based on
to life imprisonment.
appeal is heard. good behavior.

Appropriate Government
Authority Courts, President or Appropriate Government
(State or Central), President
Involved Governor. (State or Central).
or Governor.

Legal Article 72, 161; Section Article 72, 161; Sections Article 72, 161; Sections
Provision 389 of CrPC. 432 and 433 of CrPC. 433 and 433A of CrPC.

To delay execution, often To reward good behavior or

To reduce the severity of the
Purpose while an appeal is other mitigating
punishment.
pending. circumstances.

Execution is paused; Punishment duration is Punishment is altered to a

Impact on
punishment remains the shortened; nature remains less severe one, e.g., from
Punishment
same. the same. death to life imprisonment.

Kehar Singh v. Union of

Examples
K.M. Nanavati v. State of Maru Ram v. Union of India India (1989); Swami
from Case
Maharashtra (1961) (1980) Shraddananda v. State of
Law
The Role of Judicial Review in Suspension, Remission and Commutation

The powers of suspension, remission and commutation, though vested in the

executive, are not beyond the scope of judicial review. The judiciary plays a
crucial role in ensuring that these powers are exercised in accordance with the
law and principles of justice.

Judicial review allows the courts to scrutinise the decisions of the President,
Governor or government authorities to ensure that they are not arbitrary,
unreasonable or based on extraneous considerations. However, the scope of
judicial review is limited, as the courts are generally reluctant to interfere with
the executive’s discretion unless there is clear evidence of malafide intent or
gross injustice.

In Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. (2006), the Supreme Court
laid down the grounds for judicial review of the pardoning power. The court
held that the exercise of the power must be fair, reasonable and free from
political influence or favoritism.

The Impact and Importance of Suspension, Remission and Commutation

The mechanisms of suspension, remission and commutation serve several

important functions within the criminal justice system:

 Correcting Judicial Errors: These powers provide a means to rectify

potential judicial errors or miscarriages of justice, ensuring that the
punishment fits the crime.

 Promoting Rehabilitation: By allowing for the modification of

sentences, these mechanisms encourage convicts to reform and
reintegrate into society.
  Upholding Humanitarian Values: The power to suspend, remit or
commute sentences reflects the values of compassion and mercy, which
are essential in a just and humane society.

However, the exercise of these powers must be balanced against the need for
accountability and the rule of law. Arbitrary or politically motivated use of these
powers can undermine public confidence in the justice system.

Conclusion

Suspension, remission and commutation of sentences are vital components of

the criminal justice system in India. They provide flexibility and a means to
temper justice with mercy, ensuring that the law serves both its punitive and
rehabilitative functions. The legal framework governing these powers, including
the provisions in the Constitution and the BNSS, ensures that they are exercised
judiciously and fairly.

However, the exercise of these powers must be subject to checks and balances,
including judicial review, to prevent abuse and maintain the integrity of the
justice system. In a country as diverse and complex as India, these mechanisms
play a crucial role in upholding the principles of justice, fairness and humanity.

EXECUTION OF SENTENCE

The concept of execution of judgment in criminal law, particularly under

the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, refers to the
implementation of a court's decision following a trial. This process ensures that
the penalties imposed by the court, whether they involve imprisonment, fines, or
other forms of punishment, are carried out effectively and in accordance with
legal provisions.

Legal Framework

Execution of Sentences

The execution of sentences is governed by various sections within the BNSS,

particularly Chapter XXXIV, which outlines the procedures and authorities
involved in executing different types of sentences, including death sentences
and imprisonment.

1. Imprisonment:

 Section 459 details the power to appoint places of imprisonment

and stipulates how sentences should be executed. It ensures that
individuals sentenced to imprisonment are held in designated
facilities and that their rights are respected during confinement.

 Section 460 discusses the issuance of warrants for execution,

specifying who may issue such warrants and the procedures to be
followed.

2. Death Sentences:

 Sections 454 to 456 outline the execution of death sentences,

including provisions for postponement in cases where appeals are
pending or for specific circumstances, such as when the convict is
a pregnant woman.

3. Levy of Fines:
  Section 461 details the process for levying fines, including issuing
warrants for recovery and ensuring compliance with court orders
regarding financial penalties.

Conditions and Procedures

 The execution of judgments must adhere to principles of natural justice

and fairness. Courts are required to ensure that all procedural safeguards
are observed during execution.

 If an offender fails to comply with a sentence (e.g., non-payment of a

fine), the court may order immediate execution of imprisonment as
stipulated under Section 464. This section allows for flexibility in
managing offenders who do not fulfill their obligations.

Judicial Oversight

Judicial oversight is critical in the execution process:

 Courts have the authority to review cases where there may be concerns
about wrongful execution or where new evidence emerges that could
affect the validity of a sentence.

 The Supreme Court has established guidelines that require careful

consideration before executing sentences, especially in cases involving
life imprisonment or death penalties.

Relevant Case Law

1. Bachan Singh vs. State of Punjab (1980): The Supreme Court ruled that
death sentences should be executed only after thorough scrutiny and that
any ambiguity regarding the legality of a conviction must be resolved
before proceeding with execution.
 2. Shatrughan Chauhan vs. Union of India (2014): This case emphasized
that delays in executing death sentences could violate constitutional
rights, leading to calls for timely implementation while ensuring all legal
avenues have been exhausted.

Conclusion

In summary, the execution of judgment under the BNSS is a critical aspect of

ensuring justice within the criminal justice system. It encompasses various
procedures related to implementing court decisions regarding imprisonment and
fines while upholding principles of fairness and legal integrity. The provisions
outlined in Chapter XXXIV ensure that executions are conducted lawfully and
judiciously, reflecting a commitment to protecting individual rights while
enforcing legal penalties.

APPEALS- CW

What is Appeal?
An appeal is a request made to a higher court to review and change the decision
of a lower court. Appeals serve as a check on the justice system, allowing
parties who believe there has been a legal error, unfair judgment, or new
evidence to seek reevaluation of their case.

Key Sections
BNSS outlines several specific sections that govern how appeals are to be filed,
heard, and decided. Understanding these sections is essential for effectively
navigating the new system.

Section 416: Appeals Not Permitted in Certain Cases

Under Section 416, appeals are restricted in cases where the accused has
pleaded guilty, except in specific circumstances such as sentencing errors. This
section ensures that appeals are focused on cases where substantial grounds
exist for reconsideration.

Section 417: Appeals Excluded for Petty Cases

This section excludes appeals in minor cases where the original judgment
involves a fine not exceeding a certain amount, or imprisonment not exceeding
a minimal period. The aim is to expedite the resolution of minor cases without
prolonged appeals.

Section 418: State Government’s Right to Appeal Against Inadequate

Sentences

Section 418 grants the State Government the authority to appeal if it believes
the sentence imposed by the lower court is unduly lenient. This change
empowers the State to seek stricter enforcement in cases where it deems the
punishment insufficient.
Section 419: Appeals Against Acquittals

This section permits appeals against acquittals, allowing the complainant or

prosecution to request a higher court review in cases of acquittal. It ensures that
cases of potential judicial error or bias can be re-examined.

Section 420: Special Provisions for Appeals in the High Court

Appeals in High Court come with distinct provisions under BNSS 2023,
outlined in Section 420. This section sets specific conditions and standards for
High Court appeals, particularly in cases involving significant legal questions or
complex procedural matters.

Sections 421-425: Filing, Hearing, and Summary Dismissal of Appeals

These sections outline the practical steps for filing appeals, including
requirements for documentation, timelines, and hearing processes. Section 421,
for example, specifies how appellants in jail can appeal, while Section 425
covers summary dismissal, allowing courts to dismiss cases at an early stage if
they lack substantial grounds for appeal.

Types of Appeals

BNSS specifies different types of appeals based on the nature of the case,
verdict, and court jurisdiction. Here’s a breakdown of the main types:
  Criminal Appeals: Criminal appeals can be filed against convictions,
acquittals, or sentences. Changes in Section 418 allow the State to appeal
for increased sentencing if the original ruling is deemed inadequate.
 Civil Appeals: Although it primarily governs criminal cases, certain
procedural standards for appeal filings, such as documentation and
jurisdiction, can be applicable to civil cases handled within criminal court
jurisdiction.
 Bail-Related Appeals: Includes updates for bail appeals, including
specific procedures for anticipatory and regular bail appeals. The sections
governing these appeals provide more structure to ensure
timely resolution, especially in cases involving repeated bail denials.

GROUNDS FOR APPEAL

Step-by-Step Guide to Filing Appeals Under BNSS 2023

Filing an appeal requires adherence to specific procedural steps and

documentation. Here’s a step-by-step breakdown:

1. Determine Grounds for Appeal (Section 416 and Section 417)

Assess whether your case qualifies for an appeal by reviewing Sections 416 and
417. Ensure there are substantial grounds, such as legal error or unfair
judgment, as appeals are restricted for minor cases and guilty pleas.

2. Prepare Necessary Documentation (Section 421)

Collect all relevant documentation, including court transcripts, the original
judgment copy, evidence of error, and any new information supporting the
appeal. Section 421 lists required documents, emphasizing thorough preparation
to avoid delays.

3. Submit to the Correct Court (Section 420 and Section 425)

Identify the appropriate jurisdiction based on BNSS jurisdictional rules. High
Court appeals have specific criteria (Section 420), and some cases may be
eligible for summary dismissal under Section 425 if insufficient grounds exist.

4. Meet Filing Deadlines (Section 418)

Timely filing is critical. Adhere to the revised deadlines for different types of
appeals to ensure your case is accepted for review. Criminal appeal timelines, in
particular, are more stringent under BNSS.

5. E-Filing and Digital Submission (Section 225)

BNSS encourages digital filing, especially in cases where remote submission is
practical. Section 225 outlines digital submission requirements, allowing
electronic documentation to simplify the filing process.

Noteworthy Changes in Appeal Processes

Several key changes to streamline the appeals process and reduce case
backlogs:
 Preliminary Review for Appeals (Section 420): Courts now conduct a
preliminary review of appeals to determine admissibility before a full
hearing, reducing time spent on non-meritorious cases.
 Digital Submission Requirements: E-filing has been encouraged to
make submission faster and reduce paperwork, with Section 225 covering
protocols for online appeals.
 Special Considerations for Vulnerable Groups (Section 230): Appeals
involving women, children, and senior citizens are given priority to
ensure swift and sensitive handling of these cases.

IMPORTANT JUDGEMENTS

Dhananjay Rai vs. State of Bihar (2022)

Conclusion
BNSS presents significant updates to the appeals process in the Indian criminal
justice system. From stricter documentation standards to revised deadlines and
jurisdictional guidelines, understanding these changes is essential for legal
professionals and individuals involved in appeal cases. Familiarity with key
sections such as 416, 418, and 425 is important for effectively filing appeals
under the new framework. Staying updated on procedural changes will help
ensure compliance and improve the efficiency of appeal processing in India.

REVIEW, REFERENCE AND REVISION – CHP-32, S. 436- 445

Every human being commits a mistake and Judges are also human beings. So,
the provisions of reference, review and revision are given under the BNSS in
order to maintain the fairness and accuracy of the justice system.

In India, there are three tiers Judiciary i.e. District Courts, High Courts and
hon’ble Supreme Court of India. The appeal, review and revision lies in all the
three Courts depending on which Court’s Order is being challenged. Therefore,
it is necessary to know the nature and scope of all these three words and also
how they are different from each other. It is imperative to know the scope of all
these to exercise the power of reviewability against the impugned order of the
respective Court.
1.Reference

Reference involves a situation where lower courts seek guidance from higher
courts on legal questions that arise during proceedings. This mechanism ensures
that subordinate courts can clarify doubts regarding legal interpretations before
making decisions.

A reference can only be made by a Court when there is a reasonable doubt about
a question of Law or only when it is of opinion that Act is ultra vires.
Unnecessary observations made by the High Court while disposing of the
reference having no legal effect must be treated to have been rendered
infructuous and superfluous but such power of reference is discretionary.

Key Features:

 Purpose: References are made when a lower court encounters significant

legal questions that could affect its judgment.

 Legal Provision: Section 436 of the BNSS allows lower courts to refer
questions to the High Court for authoritative interpretation.

 Impact: This process helps maintain consistency and uniformity in

judicial decisions across different levels of the court system.

Landmark Case

In State of U.P. vs. Rajesh Gautam (2003), the Supreme Court emphasized
that references serve an important role in clarifying legal ambiguities,
reinforcing that subordinate courts should consult higher courts when faced with
significant legal issues.
2. Revision

Revision is a process through which higher courts review orders made by

subordinate courts after final judgments have been rendered. This mechanism
serves as a check on lower court decisions to ensure they are lawful and just.

Key Features:

 Scope: Revisions can be initiated if an order is believed to be illegal or

improper.

 Legal Provisions: Sections 438 to 443 of the BNSS govern revisions,

allowing higher courts to call for records from inferior courts and
examine their legality.

 Outcome: The revisional powers help ensure that justice is upheld by

correcting any wrongful decisions made by lower courts.

Landmark Case

In K.K. Verma vs. State (1977), the Supreme Court affirmed that higher courts
have the authority to initiate revisions if they find an order from a subordinate
court to be illegal or improper, thereby ensuring accountability within the
judicial system.

3. Review

Review refers to the process by which a court re-examines its own judgment or
order. The primary purpose of a review is to correct any apparent errors or to
consider new evidence that could significantly affect the outcome of the case.
Review means to reconsider, to look again or to re examine. In legal sense, it is
a judicial re-examination of the case by the same court and by the same Judge.

B. Nature and Scope

According to the general principle of law, once the judgment is passed the court
becomes functus officio. A power of review should not be confused with the
appellate powers which enables an appellate court to enable all errors
committed by the subordinate Court. Greater care, seriousness and restrain
should be given in review application as would not be fair to court to deal with
the same case with the same party over again and again and it would increase
the backlog of the case over the court.

A right of review is both substantive as well as procedural. As a substantive

right, it has to be conferred by law, either expressly or by necessary
implications. There can be no inherent right of review. As a procedural
provision, every Court or tribunal can correct an inadvertent error which has
crept in the order due to procedural defect or mathematical or clerical error or
by misrepresentation or fraud of a party to the proceeding, which can be
corrected asex debito justitae. If a review is not maintainable I, it cannot be
allowed by describing such application as an ‘’clarification’’ or ‘’modification’’.

Key Features:

 Grounds for Review: A party may seek a review on the basis of new
evidence that was not available during the original proceedings or if there
is an error apparent on the face of the record.
  Limitations: The power to review is limited and does not allow for a
complete re-evaluation of the case. It is meant to address clear mistakes
rather than re-assess the merits of the case.

 Legal Provision: Under Section 403 of the BNSS, once a judgment is

pronounced, it cannot be altered except for clerical or arithmetical
mistakes.

Landmark Case

In Raj Narain vs. The State (1958), the Supreme Court highlighted that the
High Court possesses inherent powers to review its judgments when necessary
to prevent injustice, establishing that this power is crucial for maintaining
fairness in judicial proceedings.

Key Differences

Aspect Review Reference Revision

Re-examination of Referral of legal Examination of

Definition own judgment questions subordinate court orders

Governing Sections 438- 443

Law Section 403 BNSS Section 436 BNSS BNSS

Correct judicial Seek clarification on Ensure legality and

Purpose errors legal issues propriety

Timing After judgment While case is After final judgment

Aspect Review Reference Revision

pending

In summary, while all three concepts—review, reference, and revision—serve to

uphold justice within the criminal justice system, they do so through different
mechanisms and at various stages of legal proceedings.

TRANSFER OF CRIMINAL CASES- CW

Chapter XXXIII of the Sanhitha contains the provisions related to the transfer
of the criminal cases from Section 446 to 452. The main reason behind the
incorporation of transfer of cases is that of delivering justice to people and to
achieve the same, the provisions regarding the right to appeal is also provided.
The overburden of pending cases and appeals results in delayed justice thus, it
creates unrest in judicial processes. So, to address this problem, certain
provisions have been brought to transfer the criminal cases from one court to
another.

Key Objectives:
  Ensuring Fairness: To guarantee that a fair and impartial inquiry or trial
can occur, especially if there are concerns about bias or undue influence
in the original court.

 Legal Complexity: To address situations where complex legal questions

arise that may be better handled by a different court.

 Convenience: To facilitate the convenience of parties involved, including

witnesses, thereby promoting efficiency in the judicial process.

Legal Framework under BNSS

Transfer of cases and appeals by SC

Section 446 of the BNSS confers the power upon the Supreme Court to transfer
cases and appeals. The Sanhitha grants the widest discretionary powers to the
Supreme Court to transfer any case or appeal lying before the High Court to any
other High Court of any state in the country in order to meet the ends of justice
and fulfil the principle of natural justice. The application requesting the transfer
of any case or appeal pending before the High Court can be moved to the
Supreme Court by any of the following persons:

 Who is under the apprehension of unfair trial by the court; or

 Who is unable to find any proper justice being served to himself; or
 Attorney General or Advocate General of India.

The power granted to the Supreme Court under Section 446 of the Sanhitha is
discretionary, meaning that applicants are not required to conclusively prove
that a fair trial would be impossible without the transfer; they only need to
reasonably substantiate their claims in the application. Such applications must
be made in the form of a motion supported by an affidavit, except when filed by
the Attorney General or Advocate General. The Supreme Court’s authority
extends to transferring cases from any subordinate court in the country, ensuring
that fairness and natural justice principles are upheld during the process.
Additionally, parties involved in any suit can present reasonable grounds to any
court with appropriate jurisdiction if they believe certain factors inhibit their
right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an

application for the transfer of a case on the contention that he was under the
apprehension that he wouldn’t be able to engage a counsel in the court where a
case against him was already pending in the case. However, the District Bar
Association submitted an application assuring the court that a defence counsel
from among the members of the Bar Association would be made available to the
applicant. The Supreme Court held the application to be invalid dismissing the
prayer for the transfer.

Neelam Pandey vs. Rahul Shukla (2023)

In this case, the Supreme Court addressed a plea for transferring a trial from
Ratlam (Madhya Pradesh) to Faizabad (Uttar Pradesh) due to alleged
intimidation faced by the complainants. The court emphasized that transfers
should only be ordered in exceptional circumstances and noted that merely
having witnesses residing in another jurisdiction does not warrant a transfer.
The bench highlighted that such transfers could adversely reflect on the
credibility of the state judiciary and prosecution agency.

GROUNDS FOR TRANSFER OF APPEAL AND CASES

To uphold the spirit of justice: The ultimate goal of any judicial system on the
earth is the deliverance of justice and protection of the rights of every person.
The courts are highly revered institutions of justice with people having high
expectations of justice which is sought after by the aggrieved party. Therefore,
the court is under high moral obligations for keeping the machinery of justice,
equity and good conscience alive.

Recommendations made by the superior judicial officers: The courts while

deciding whether to transfer the cases and appeals from one court to another
takes into consideration the inquiries and findings as revealed by the reports
carried on by the senior judicial officers such as Chief judicial magistrate or any
sessions judge.

Upon request by the trial court: Where the court before which the matter is
pending deems the case to be outside its scope of jurisdiction due to
involvement of a substantial question of law which is outside its purview. It may
request the higher judiciary to transfer the case.

Lack of complete jurisdiction: In certain cases, the court has limited

jurisdiction over the subject matter of the case before it. In such cases of shared
or limited juridical issues, the court trying the case has the liberty of transferring
the case to the court which possesses the conclusive jurisdiction of trying the
matter. This process ensures that complete justice has been done to the parties
before the court.

Differences between the party and the judicial officer: In circumstances

where there is already a presence of differences between the judicial officer and
any of the party the chances of an unfair and partial trial being carried out are
relatively higher. Therefore, the party apprehending such consequences of
carrying on of the trial is granted the opportunity by the judicial system to apply
for transfer of the case.
Infringement of principles of natural justice: Where the proof of continued
contravention of the principles of natural justice by any court or judicial officer
is rendered by a party to the Supreme Court, then in order to uphold the
principles of natural justice, the court may order the transfer of the case.

TRANSFER OF CASES AND APPEALS BY HIGH COURT

Section 447 of the BNSS empowers the High Courts to transfer cases and
appeals.

Circumstances in which HC may order the transfer of a case or appeal

The High Court has the authority to transfer the cases when it is satisfied that:

 The right to a fair and impartial trial which is guaranteed under Article 21
of the Indian Constitution can not be exercised by any of the party to the
suit if the case is tried by any of the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of
unusual difficulty;
 The transfer of the appeal or the case is made inevitable by any of the
provisions under the Code;
 The order of transfer will be in the interest of the general convenience of
the parties or witnesses involved in the suit.

Zaheera Sheikh Case (Best Bakery Case)

The Best Bakery case involving Zaheera Sheikh is a notable example

highlighting the need for transferring criminal cases due to witness intimidation.
Following the Gujarat riots in 2002, Zaheera was a key eyewitness in a trial
where she initially testified against several accused individuals but later
retracted her statements due to alleged threats from local political figures. The
Supreme Court intervened, transferring the case from Gujarat to Maharashtra to
ensure a fair trial free from local biases and intimidation, thereby underscoring
the importance of protecting witnesses and maintaining judicial integrity.

State vs. K.K. Verma (1977)

In this landmark judgment, the Supreme Court clarified that while transferring
cases, courts must consider whether a fair trial can be conducted in the current
jurisdiction. The ruling emphasized that transfers should not be made lightly
and should only occur when necessary to meet the ends of justice.

CONCLUSION

Transfer of cases does not alter the nature of the trial or relief which is provided
to the parties to the suit. It is a mechanism ensuring the parties are rendered
justice. The authority of transferring of criminal cases from one court to another
is conferred upon Supreme Court, the High Court and the Sessions Court.
However, the powers with each of the institute differ. If the party to the suit
enforces their rights guaranteed to them under the Sections and it is found that
the intention of the party is vexatious then the courts have the discretion of
ordering compensation to be paid by such person to the person who has opposed
it.
COMPOUNDING OF OFFENCES-- blog_ipleaders.pdf

The maxim “interest reipublicae ut sit finis litium”. This Latin maxim
indicates that it would be in the best interests of the state to keep litigation to a
minimum. There have been several cases pending before the high court and
other subordinate courts for a long time. The legislation provides the criminal
justice system with an effective tool that, when used, may drastically decrease
the time it takes to resolve a case. This tool is a compounding of offence.

Introduction to Compoundable Offences

Compoundable offences are defined under Section 359 of BNSS. These

offences allow the aggrieved party (the complainant) to withdraw charges
against the accused, facilitating a resolution without further legal proceedings.
The principle behind this is to minimize litigation and promote amicable
settlements.

Characteristics of Compoundable Offences

 Nature: Compoundable offences are generally less serious and impact

individuals rather than society at large. Examples include hurt, wrongful
restraint, and fraud.

 Legal Provisions: The BNSS specifies which offences can be

compounded, dividing them into two categories:

 Without Court Permission: Certain offences can be compounded

directly by the parties involved (e.g., minor assaults).
  With Court Permission: Other offences require judicial consent
before compounding (e.g., causing grievous hurt).

Legal Framework and Examples

The article lists specific offences that fall under each category according to the
IPC. For instance:

 Offences that do not need court permission include:

 Voluntarily causing hurt (Section 323)

 Wrongful restraint (Section 341)

 Offences requiring court permission include:

 Voluntarily causing grievous hurt (Section 325)

 Cheating (Section 420)

Effects of Compounding

Once an offence is compounded, it results in the acquittal of the accused,

meaning that all charges against them are dismissed. This applies regardless of
whether an FIR was lodged or if a trial had commenced.

Conclusion

The concept of compounding offences serves as an essential mechanism in

Indian criminal law, allowing for flexibility in resolving disputes while
alleviating the burden on courts. It underscores the importance of reconciliation
in less severe cases where both parties may prefer to settle amicably rather than
engage in prolonged litigation.