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Section 269 BNSS: Procedure Where Accused Is Not Discharged

Section 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023 sets out the procedure to be followed in a warrant-case instituted otherwise than on a police report when the Magistrate does not discharge the accused. It deals with framing of charge, the accused's plea, recall of prosecution witnesses for cross-examination, further prosecution evidence and closure of prosecution evidence when witnesses cannot be secured despite reasonable measures.

Current law: The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. It came into force on 1 July 2024, subject to the exception stated in the Central Government commencement notification.
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Meaning and scope of Section 269 BNSS

Section 269 applies after the Magistrate has considered the prosecution evidence in the relevant warrant-case procedure and concludes that there is ground for presuming that the accused has committed an offence which the Magistrate is competent to try and can adequately punish. In that situation, the Magistrate frames a written charge instead of discharging the accused.

The section then regulates what happens after charge: the charge must be read and explained to the accused; the accused is asked whether he pleads guilty or has a defence; and, if the case proceeds to trial, the accused may identify prosecution witnesses whom he wishes to cross-examine. The remaining prosecution evidence is then taken in accordance with the provision.

In simple terms: Section 269 is the post-discharge-stage procedure for this class of warrant cases. Once the Magistrate finds sufficient ground to proceed, a formal charge is framed and the case moves into the plea and trial-evidence stages.

Text of Section 269 BNSS

269. Procedure where accused is not discharged.

(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.

(7) Where, despite giving opportunity to the prosecution and after taking all reasonable measures under this Sanhita, if the attendance of the prosecution witnesses under sub-sections (5) and (6) cannot be secured for cross-examination, it shall be deemed that such witness has not been examined for not being available, and the Magistrate may close the prosecution evidence for reasons to be recorded in writing and proceed with the case on the basis of the materials on record.

Procedure under Section 269 BNSS explained

1. Magistrate decides whether there is ground to presume commission of an offence

Under sub-section (1), the Magistrate considers whether the material before the court provides ground for presuming that the accused committed an offence triable under the relevant Chapter. The offence must also be one which the Magistrate is competent to try and, in the Magistrate's opinion, can be adequately punished by that court.

2. Written charge is framed

If the statutory conditions are satisfied, the Magistrate must frame the charge in writing. Framing of charge identifies the accusation on which the accused will face trial.

3. Charge is read and explained to the accused

Under sub-section (2), the charge must be read and explained to the accused. The accused is then asked whether he pleads guilty or has a defence to make.

4. Plea of guilty

Under sub-section (3), if the accused pleads guilty, the Magistrate records the plea and may, in the Magistrate's discretion, convict the accused on that plea. The provision therefore does not make conviction automatic merely because a guilty plea is entered.

5. Recall of prosecution witnesses for cross-examination

If the accused does not plead guilty, claims trial, or is not convicted on the plea, sub-section (4) requires the accused to state which prosecution witnesses already examined he wishes to cross-examine. Ordinarily this is done at the commencement of the next hearing, although the Magistrate may require it forthwith for reasons recorded in writing.

6. Cross-examination and remaining prosecution evidence

Witnesses identified by the accused are recalled for cross-examination and any re-examination before being discharged. Evidence of remaining prosecution witnesses is thereafter taken, with cross-examination and re-examination as applicable.

7. Witnesses cannot be secured despite reasonable measures

Sub-section (7) addresses delay or inability to secure prosecution witnesses for cross-examination. If, despite opportunity to the prosecution and all reasonable measures under the Sanhita, the attendance of the relevant witnesses cannot be secured, the provision permits the Magistrate to treat the witness as not examined for non-availability, close prosecution evidence for recorded reasons, and proceed on the material already on record.

Key points for practice

  • The Magistrate must frame a written charge when the conditions in Section 269(1) are satisfied.
  • The charge must be read and explained to the accused before the plea is taken.
  • A guilty plea must be recorded, but conviction on that plea remains discretionary under Section 269(3).
  • If the case proceeds to trial, the accused can identify prosecution witnesses already examined whom he wishes to cross-examine.
  • The Magistrate may require that choice immediately only when reasons are recorded in writing.
  • Remaining prosecution witnesses are examined after the recalled witnesses are dealt with.
  • Section 269(7) allows closure of prosecution evidence only after opportunity to the prosecution, reasonable measures to secure attendance, and reasons recorded in writing.

Section 269 should be read with the immediately connected provisions governing evidence, discharge and defence in warrant cases instituted otherwise than on a police report. See the related section links in the sidebar for the surrounding statutory sequence.

Official sources

For the authoritative text and commencement notification, refer to the official Government of India sources: India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 and Ministry of Home Affairs - commencement notification.

This page is intended for general legal information. Court procedure can depend on the facts of the case, applicable transition provisions and judicial orders.