Section 259 of BNSS, 2023 — Previous Conviction

Introduction

Section 259 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure where a previous conviction of the accused is alleged in a criminal trial.

The provision ensures that where an accused is charged with an offence and a previous conviction is also alleged, the Court follows a specific procedure for dealing with that previous conviction.

Meaning of Section 259

Where an accused has been charged with an offence and it is alleged that the accused has previously been convicted of an offence, the previous conviction is dealt with separately from the determination of the present charge.

The Court must first determine the present charge without allowing the allegation of previous conviction to prejudice the accused.

If the accused is convicted of the present offence, the Court may then proceed to determine the question of the previous conviction.

Object and Purpose

The main objectives of Section 259 are:

• To ensure a fair trial when a previous conviction is alleged.
• To prevent the previous conviction from prejudicing the Court while deciding the present offence.
• To require the prosecution to establish the previous conviction properly.
• To separate the determination of the present offence from the question of previous conviction.

Procedure Where Previous Conviction Is Alleged

The basic procedure is:

Step 1 — Present Offence Is Tried

The Court first considers whether the accused has committed the offence for which they are presently being tried.

Step 2 — Present Conviction

If the accused is convicted of the present offence, the Court then proceeds to consider the allegation of previous conviction.

Step 3 — Previous Conviction Is Proved

The prosecution must establish the previous conviction in accordance with law.

Step 4 — Court Records Finding

If the previous conviction is proved, the Court records the appropriate finding concerning it.

Why Is the Previous Conviction Considered Separately?

A previous conviction may have legal consequences in relation to the present case, including where a subsequent conviction attracts a higher or different punishment under the applicable law.

However, allowing the Court to consider the previous conviction while deciding whether the accused committed the present offence could create prejudice.

Therefore, the law separates the two questions:

Did the accused commit the present offence?

and, only after that:

Has the accused previously been convicted?

Example

Suppose A is charged with an offence and the prosecution alleges that A was previously convicted of a similar offence.

The Court first conducts the trial concerning the present offence.

If A is acquitted of the present offence, the question of previous conviction does not need to be determined for the purpose of convicting A in the present case.

If A is convicted of the present offence, the Court then considers whether the alleged previous conviction has been established.

Protection Against Prejudice

The separation of the two issues is an important safeguard for the accused.

A person should not be treated as guilty of the present offence merely because they were convicted of an offence in the past.

The prosecution must independently establish the present charge.

Therefore:

Previous conviction ≠ Proof of present guilt

Proof of Previous Conviction

The prosecution must establish the alleged previous conviction through legally recognised evidence.

The mere assertion that the accused has been convicted previously is not, by itself, sufficient.

The Court must be satisfied that the alleged previous conviction has actually been established according to law.

Relevance to Sentencing

Previous convictions can become relevant to punishment in cases where the applicable substantive law provides enhanced or additional consequences for repeat offenders.

Section 259 provides the procedural mechanism for dealing with such allegations during the trial.

BNSS and CrPC

Section 259 of the BNSS corresponds to Section 236 of the Code of Criminal Procedure, 1973.

The provision continues the principle that where a previous conviction is alleged, the Court must follow a procedure that protects the accused from prejudice while allowing the previous conviction to be established where relevant.

Common Confusions

Does a previous conviction prove that the accused committed the present offence?

No.

The present offence must be independently established.

When is the previous conviction considered?

The present charge is considered first. If the accused is convicted, the Court then deals with the allegation of previous conviction.

Can a previous conviction affect punishment?

Yes, where the applicable substantive law provides consequences for a subsequent conviction or repeat offending.

Does merely mentioning a previous conviction establish it?

No.

The previous conviction must be properly proved in accordance with law.

Topic at a Glance

• BNSS Section: 259
• Subject: Previous conviction
• Main principle: Present offence and previous conviction are considered separately
• First determination: Present charge
• Subsequent determination: Previous conviction
• Purpose: Prevent prejudice against the accused
• Possible relevance: Enhanced punishment where provided by law
• Corresponding CrPC provision: Section 236
• Nature: Procedural safeguard

Quick Revision

• Section 259 deals with previous conviction.
• Where a previous conviction is alleged, the Court first determines the present offence.
• The previous conviction is considered separately.
• A previous conviction does not prove guilt of the present offence.
• The prosecution must properly establish the alleged previous conviction.
• Previous conviction may become relevant to punishment where the substantive law provides for enhanced consequences.
• Section 259 BNSS corresponds to Section 236 CrPC.

ALSO READ: Section 258 – Judgment of acquittal or conviction

Conclusion

Section 259 of the BNSS ensures that an allegation of previous conviction does not unfairly prejudice an accused during the trial of a new offence. The Court first determines the present charge and, where appropriate, subsequently examines whether the alleged previous conviction has been established. This separation promotes fairness while preserving the legal relevance of previous convictions.