Introduction
Section 289 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the application of Chapter XXIII relating to plea bargaining.
It specifies the types of criminal cases in which the provisions of plea bargaining may apply and identifies cases that are excluded from this Chapter.
Object and Purpose
The main purpose of Section 289 is to define the scope of plea bargaining.
It aims to:
- identify cases in which plea bargaining may be available;
- exclude serious offences carrying severe punishments;
- exclude specified offences affecting the socio-economic condition of the country;
- exclude offences committed against women and children; and
- establish the conditions that must be satisfied before the plea-bargaining procedure can be invoked.
Cases to Which the Chapter Applies
Chapter XXIII applies to certain cases where the offence falls within the statutory limits prescribed under Section 289.
1. Cases Instituted on a Police Report
The Chapter applies where the officer in charge of a police station has forwarded a report under Section 193 alleging that the accused appears to have committed an offence.
However, the offence must not be punishable with:
- death;
- imprisonment for life; or
- imprisonment exceeding seven years.
2. Cases Instituted on Complaint
The Chapter may also apply where:
- a Magistrate has taken cognizance of an offence on a complaint;
- the offence is not punishable with death, imprisonment for life, or imprisonment exceeding seven years;
- the complainant and witnesses have been examined under Section 223; and
- the Magistrate has issued process under Section 227.
Thus, Section 289 covers both qualifying police-report cases and complaint cases.
Cases Excluded From the Chapter
The plea-bargaining provisions do not apply to certain categories of offences.
1. Offences Affecting the Socio-Economic Condition of the Country
Offences affecting the socio-economic condition of the country are excluded from the application of Chapter XXIII.
The Central Government may, by notification, specify the offences that fall within this category.
2. Offences Committed Against a Woman
The provisions of the plea-bargaining chapter do not apply to an offence committed against a woman.
3. Offences Committed Against a Child
The provisions also do not apply to an offence committed against a child.
Seven-Year Rule
One of the most important aspects of Section 289 is the punishment threshold.
Plea bargaining is not available where the offence is punishable with:
- death;
- imprisonment for life; or
- imprisonment exceeding seven years.
Therefore, an offence punishable with imprisonment of exactly seven years is not excluded merely because of this threshold.
The other statutory conditions and exclusions must still be considered.
Role of the Central Government
The Central Government has the authority to determine, by notification, which offences are considered to affect the socio-economic condition of the country for the purpose of Section 289.
This provides a mechanism for identifying offences that cannot be dealt with through plea bargaining on socio-economic grounds.
Procedure Under Section 289
The application of Section 289 can be understood through the following steps:
- A criminal case is instituted against an accused.
- The Court determines whether the case falls within Chapter XXIII.
- If it is a police-report case, the report must have been forwarded under Section 193.
- If it is a complaint case, the required examination and issuance of process must have taken place.
- The offence must not be punishable with death, life imprisonment, or imprisonment exceeding seven years.
- The offence must not fall within the excluded categories.
- If the statutory conditions are satisfied, the plea-bargaining provisions may be invoked.
Important Distinctions
Plea Bargaining and Acquittal
Section 289 does not itself result in the acquittal or conviction of the accused.
It only determines whether Chapter XXIII can apply.
The actual procedure relating to plea bargaining is dealt with in the subsequent provisions.
Seven Years and More Than Seven Years
The distinction is important:
- Up to seven years — not excluded merely because of the punishment threshold.
- More than seven years — excluded.
- Life imprisonment — excluded.
- Death penalty — excluded.
Police Report and Complaint
Section 289 recognises both:
- cases instituted on the basis of a police report; and
- cases instituted upon a complaint.
However, different procedural requirements apply to each category.
BNSS and CrPC
Section 289 of the BNSS corresponds to Section 265A of the Code of Criminal Procedure, 1973.
The provision continues the statutory framework governing the application of plea bargaining while incorporating the corresponding provisions and terminology of the BNSS.
Common Confusions
Is plea bargaining available for every offence punishable up to seven years?
No.
The offence must satisfy all the requirements of Section 289 and must not fall within any of the specified exclusions.
Is an offence punishable with exactly seven years excluded?
No.
The exclusion applies to an offence punishable with imprisonment exceeding seven years.
Can an offence punishable with life imprisonment be subject to plea bargaining?
No.
Life imprisonment is expressly excluded.
Can an offence committed against a woman be dealt with through plea bargaining?
No.
Offences committed against a woman are excluded from Chapter XXIII.
Can an offence committed against a child be dealt with through plea bargaining?
No.
Offences committed against a child are excluded.
Who identifies offences affecting the socio-economic condition of the country?
The Central Government, by notification.
Topic at a Glance
- Topic: Application of Chapter
- BNSS Section: Section 289
- Chapter: XXIII — Plea Bargaining
- Police-report cases: Covered subject to statutory conditions
- Complaint cases: Covered subject to statutory conditions
- Excluded punishments: Death, life imprisonment, imprisonment exceeding seven years
- Other exclusions: Socio-economic offences, offences against women and children
- Authority for socio-economic offences: Central Government
- CrPC counterpart: Section 265A
Quick Revision
- Section 289 BNSS deals with the application of the plea-bargaining chapter.
- It applies to qualifying cases based on a police report or complaint.
- Offences punishable with death, life imprisonment or imprisonment exceeding seven years are excluded.
- Offences affecting the socio-economic condition of the country are excluded.
- Offences committed against a woman or child are excluded.
- The Central Government may specify socio-economic offences by notification.
- Section 289 corresponds to Section 265A CrPC.
- Section 289 is the opening provision of Chapter XXIII — Plea Bargaining.
ALSO READ: Section 288 – Language of record and judgment
Conclusion
Section 289 BNSS establishes the scope and limitations of plea bargaining. It allows the plea-bargaining provisions to operate in qualifying criminal cases while excluding serious offences and specified categories involving socio-economic interests, women and children.
The key point to remember is that Section 289 determines whether the plea-bargaining chapter can apply to a case; the detailed procedure for plea bargaining is dealt with in the subsequent sections.
