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Section 268 BNSS - When Accused Shall Be Discharged

Section 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs discharge in warrant-cases instituted otherwise than on a police report. It operates after prosecution evidence under Section 267 BNSS and also permits discharge at an earlier stage where the Magistrate, for recorded reasons, considers the charge to be groundless.

Key rule: The Magistrate must discharge the accused if, after taking the evidence referred to in Section 267, no case has been made out which, if unrebutted, would warrant conviction. The Magistrate may also discharge the accused at an earlier stage if the charge is groundless, but reasons must be recorded.

Text of Section 268 of the BNSS, 2023

268. When accused shall be discharged. - (1) If, upon taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

Meaning and scope of Section 268 BNSS

Section 268 applies only within the procedure for warrant-cases instituted otherwise than on a police report. The preceding Section 267 BNSS requires the Magistrate to hear the prosecution and take evidence. Section 268 then provides the test for deciding whether the accused should be discharged.

1. Discharge after prosecution evidence

Under subsection (1), the Magistrate assesses the evidence taken under Section 267. If that evidence does not make out a case which, if left unrebutted, would warrant conviction, the Magistrate shall discharge the accused.

2. The "if unrebutted" test

The statutory question is whether the prosecution evidence, if it remained unanswered, would be capable of warranting conviction. If the answer is no, Section 268(1) requires discharge. At this stage, the provision is concerned with whether a sufficient case exists to require the accused to face the next stage of the warrant-case procedure.

3. Reasons for discharge must be recorded

Section 268(1) expressly requires the Magistrate to record reasons. The discharge decision must therefore be supported by a reasoned judicial order rather than a bare conclusion.

4. Discharge at an earlier stage

Subsection (2) makes clear that the Magistrate is not required to wait until all evidence under Section 267 has been taken in every case. The accused may be discharged at a previous stage where the Magistrate considers the charge to be groundless.

5. Earlier discharge also requires recorded reasons

The power under subsection (2) is subject to an express safeguard: the Magistrate must record reasons for concluding that the charge is groundless. This requirement promotes transparency and enables the basis of the judicial decision to be examined.

Procedure under Sections 267 to 270 BNSS

  1. In a warrant-case instituted otherwise than on a police report, the Magistrate hears the prosecution and takes evidence under Section 267 BNSS.
  2. The Magistrate considers whether the evidence, if unrebutted, would warrant conviction.
  3. If no such case is made out, the Magistrate must discharge the accused under Section 268(1).
  4. The Magistrate may also discharge the accused earlier if the charge is groundless and reasons are recorded under Section 268(2).
  5. If the accused is not discharged, the case proceeds under Section 269 BNSS.
  6. Defence evidence is dealt with under Section 270 BNSS.

Difference between Section 262 and Section 268 BNSS

Both provisions deal with discharge in warrant-cases, but they apply to different procedural categories. Section 262 BNSS applies to warrant-cases instituted on a police report. Section 268 applies to warrant-cases instituted otherwise than on a police report.

Section 262 considers the police report and accompanying documents and includes a statutory time period for a discharge application. Section 268 instead follows prosecution evidence under Section 267 and applies the test of whether the evidence, if unrebutted, would warrant conviction, while also preserving the power to discharge earlier where the charge is groundless.

Practical point: The distinction between Section 262 and Section 268 depends on how the warrant-case was instituted. The correct discharge provision should therefore be identified by first determining whether the case arose on a police report or otherwise than on a police report.

Corresponding provision under the CrPC, 1973

Section 268 BNSS broadly corresponds to Section 245 of the Code of Criminal Procedure, 1973, which also dealt with discharge in warrant-cases instituted otherwise than on a police report.

What happens if the accused is not discharged?

If the accused is not discharged, the case moves to Section 269 BNSS. That provision governs framing of charge and the subsequent procedure where the Magistrate finds ground for presuming that the accused has committed an offence triable under the Chapter.

BNSS commencement

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act 46 of 2023. The Central Government appointed July 1, 2024 as the date on which the Sanhita came into force, subject to the notified exception concerning the First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

Related BNSS provisions

Readers may also refer to Section 262 - When accused shall be discharged, Section 267 - Evidence for prosecution, Section 269 - Procedure where accused is not discharged, and Section 270 - Evidence for defence.