Section 400 BNSS: Order to Pay Costs in Non-Cognizable Cases
Section 400 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a criminal court, after convicting an accused on a complaint of a non-cognizable offence, to direct the accused to reimburse all or part of the complainant's reasonable prosecution costs. The power is additional to the penalty imposed for the offence.
Law: Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Provision: Section 400 - Order to pay costs in non-cognizable cases.
In force: The BNSS came into force on 1 July 2024, subject to the exception stated in the commencement notification concerning an entry related to BNS Section 106(2) in the First Schedule.
Text of Section 400 BNSS
400. Order to pay costs in non-cognizable cases.
(1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and advocate's fees which the Court may consider reasonable.
(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
Meaning and Scope of Section 400
Section 400 is a costs provision. It allows the court to compensate the complainant for reasonable expenses incurred in prosecuting a non-cognizable complaint when the proceeding ends in conviction. The award of costs is discretionary because the section uses the word "may"; it is not an automatic consequence of every conviction.
The costs order is separate from the substantive penalty for the offence. The court may award the whole or only a part of the prosecution costs, depending on what it considers reasonable in the circumstances.
What Is a Non-Cognizable Offence?
Under the definitions in Section 2 of the BNSS, a non-cognizable offence is an offence for which a police officer has no authority to arrest without a warrant. Section 400 specifically concerns a complaint of such an offence made to a court.
Conditions for an Order of Costs
- There must be a complaint concerning a non-cognizable offence.
- The accused must be convicted.
- The court may order payment of the whole or part of the complainant's prosecution costs.
- The amount allowed should represent costs the court considers reasonable.
- The statutory examples include process fees, witness expenses and advocate's fees.
- The court may prescribe simple imprisonment of up to thirty days for default in payment.
Costs That May Be Included
Section 400 expressly identifies process fees, expenses relating to witnesses and advocate's fees. The wording is inclusive, so the court's focus remains on prosecution expenditure that is properly incurred and reasonable.
Power of Appellate and Revisional Courts
Sub-section (2) extends the power beyond the trial court. An Appellate Court may make an order under Section 400. The High Court or the Court of Session may also do so while exercising revisional jurisdiction.
Corresponding Provision Under the CrPC
| Current law | Earlier corresponding provision | Main textual update |
|---|---|---|
| Section 400, BNSS 2023 | Section 359, Code of Criminal Procedure, 1973 | The wording is substantially carried forward; the BNSS text uses "advocate's fees" where the CrPC used "pleader's fees". |
For proceedings governed by the earlier Code of Criminal Procedure, 1973, the applicable statutory and saving provisions should be checked on the facts of the particular case. Section 400 should not be applied merely by substituting a section number in an older proceeding.
Practical Effect of Section 400
The provision gives the court a limited mechanism to shift reasonable prosecution expenses to a convicted accused in non-cognizable complaint cases. It can reduce the financial burden borne by a successful complainant while leaving the amount and appropriateness of costs to judicial discretion.
Frequently Asked Questions
Does Section 400 apply before conviction?
No. The trial-court power described in sub-section (1) arises when the court convicts the accused.
Can the complainant recover advocate's fees?
Yes, advocate's fees are expressly mentioned among the expenses that may be included, subject to the court considering the amount reasonable.
Is thirty days' imprisonment automatic if costs are not paid?
No. Section 400 permits the court to make a default order of simple imprisonment, up to a maximum of thirty days.
Can a High Court order costs under this provision?
Yes. The High Court may make an order under Section 400 when exercising revisional powers. An Appellate Court and a Court of Session exercising revision also have the power stated in sub-section (2).
Official Sources
For the authoritative statutory text and commencement notification, see the official Government of India sources: Bharatiya Nagarik Suraksha Sanhita, 2023 - India Code and Ministry of Home Affairs commencement notification S.O. 848(E), dated 23 February 2024.