Section 402 BNSS: Special Reasons to Be Recorded in Certain Cases
Section 402 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires a court to record special reasons in its judgment when an offender could have received the benefit of specified probation or juvenile-rehabilitation provisions, but the court chooses not to apply them.
Text of Section 402 BNSS
402. Special reasons to be recorded in certain cases.
Where in any case the Court could have dealt with,-
(a) an accused person under section 401 or under the provisions of the Probation of Offenders Act, 1958; or
(b) a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
What Section 402 means
The provision applies at the stage when a court is deciding how an eligible offender should be dealt with. If the facts and the applicable law permit the court to consider a rehabilitative alternative, but the court instead chooses another course such as ordinary sentencing, Section 402 requires the judgment to state the special reasons for declining that alternative.
The provision therefore promotes a reasoned sentencing process. It ensures that statutory alternatives to conventional punishment are not overlooked without explanation and that the judgment discloses why the court considered those alternatives unsuitable in the particular case.
Provisions referred to in Section 402
| Provision | Relevance to Section 402 |
|---|---|
| Section 401 BNSS | Deals with release of eligible offenders on probation of good conduct or after admonition, subject to the conditions stated in that section. |
| Probation of Offenders Act, 1958 | Provides a statutory framework under which appropriate offenders may, in specified circumstances, receive probationary treatment rather than ordinary punishment. |
| Juvenile Justice (Care and Protection of Children) Act, 2015 | Provides the legal framework applicable to children in conflict with law, emphasizing child-specific procedures, care, rehabilitation and reintegration. |
When must special reasons be recorded?
The duty arises where the court could have dealt with the person under one of the alternatives expressly mentioned in Section 402 but has not done so. The judgment should therefore disclose the court's specific reasons for rejecting that legally available course. The wording requires more than a silent refusal.
Connection with Section 401 BNSS
Section 401 BNSS contains the substantive provisions concerning release on probation of good conduct or after admonition. Section 402 works alongside it by adding a reason-recording requirement where the court could have used Section 401 but decides not to do so.
Relationship with the earlier Code of Criminal Procedure
Section 402 BNSS substantially carries forward the function formerly performed by Section 361 of the Code of Criminal Procedure, 1973. The BNSS formulation refers to Section 401 BNSS and expressly refers to the Juvenile Justice (Care and Protection of Children) Act, 2015.
Practical significance
- It promotes transparency in sentencing and disposition of criminal cases.
- It requires the court to actively consider legally available probation or rehabilitation mechanisms where applicable.
- It creates a clear record of why a rehabilitative option was declined.
- It assists appellate or revisional scrutiny because the court's reasoning appears in the judgment itself.
Official legal resources
For authoritative and updated statutory material, consult the Government of India's official legal portals. The BNSS came into force on 1 July 2024.
This page is intended for legal information and statutory reference. For a case-specific opinion, consult a qualified legal professional and verify the latest official text and notifications.