Section 211 of BNSS, 2023 — Transfer on Application of Accused

Introduction

Section 211 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a procedural safeguard for an accused where a Magistrate has taken cognizance of an offence under Section 210(1)(c).

Section 210(1)(c) covers cases where cognizance is taken upon information received from a person other than a police officer or upon the Magistrate’s own knowledge that an offence has been committed.

In such circumstances, Section 211 requires the Magistrate to inform the accused of the right to have the case inquired into or tried by another Magistrate. If the accused objects to further proceedings before that Magistrate, the case is transferred to another Magistrate specified by the Chief Judicial Magistrate.

Meaning of Transfer on Application of Accused

Section 211 means that an accused has a specific statutory safeguard against continuing proceedings before the Magistrate who took cognizance in the circumstances covered by Section 210(1)(c).

The provision does not create a general right to seek transfer of every criminal case. It applies specifically where cognizance has been taken on information from a person other than a police officer or on the Magistrate’s own knowledge.

Statutory Basis

Section 211 of BNSS applies when a Magistrate takes cognizance under Section 210(1)(c).

The provision requires that:

• The accused must be informed of the right to have the case inquired into or tried by another Magistrate.
• The information must be given before any evidence is taken.
• If there is more than one accused, any one of them may object.
• If the accused objects to further proceedings before the Magistrate who took cognizance, the case must be transferred.
• The other Magistrate is specified by the Chief Judicial Magistrate.

Object and Purpose

The purpose of Section 211 is to provide a safeguard where the Magistrate taking cognizance has obtained the information through a non-police source or has personal knowledge of the alleged offence.

The provision gives the accused an opportunity to object to continuing before that Magistrate and have the case dealt with by another Magistrate.

It therefore seeks to maintain procedural fairness and confidence in the impartial conduct of the proceedings.

When Does Section 211 Apply?

Section 211 applies only where cognizance has been taken under Section 210(1)(c).

There are two situations covered by this clause:

Information from a Person Other Than a Police Officer

The Magistrate takes cognizance upon receiving information from a person other than a police officer that an offence has been committed.

Magistrate’s Own Knowledge

The Magistrate takes cognizance upon the Magistrate’s own knowledge that an offence has been committed.

Where either situation exists, Section 211 becomes relevant.

Essential Elements

1. Cognizance Must Have Been Taken

The provision operates after the Magistrate has taken cognizance of an offence.

2. Cognizance Must Be Under Section 210(1)(c)

The safeguard is specifically connected with cognizance based on information from a non-police person or the Magistrate’s own knowledge.

3. Accused Must Be Informed

The Magistrate must inform the accused that the accused has a right to have the case inquired into or tried by another Magistrate.

4. Information Must Be Given Before Evidence

The statutory safeguard must be communicated to the accused before any evidence is taken.

5. Accused Must Object

The transfer mechanism operates when the accused objects to further proceedings before the Magistrate who took cognizance.

6. Any One of Several Accused May Object

Where there are several accused persons, an objection by any one of them is sufficient to invoke the statutory transfer mechanism.

7. Chief Judicial Magistrate Specifies the Other Magistrate

The case is transferred to another Magistrate specified by the Chief Judicial Magistrate.

Procedure

The operation of Section 211 can be understood through the following steps:

1. The Magistrate takes cognizance under Section 210(1)(c).
2. Before any evidence is taken, the accused is informed of the right to have the case dealt with by another Magistrate.
3. The accused may object to further proceedings before the Magistrate who took cognizance.
4. If there are several accused, any one of them may make the objection.
5. Upon the objection, the case is transferred.
6. The Chief Judicial Magistrate specifies the other Magistrate before whom the case is to proceed.

Rights of the Accused

Section 211 expressly provides the accused with the right to be informed that the case may be inquired into or tried by another Magistrate.

This is an important procedural safeguard because the Magistrate taking cognizance may have personal knowledge of the alleged offence or may have received information about it directly from a non-police source.

The accused can therefore object to further proceedings before that Magistrate in accordance with the section.

Role of the Chief Judicial Magistrate

The Chief Judicial Magistrate plays a specific role when the accused objects under Section 211.

The Chief Judicial Magistrate specifies the other Magistrate to whom the case is to be transferred.

The accused does not have an unrestricted statutory right to choose the Magistrate before whom the case will subsequently proceed.

Important Distinctions

Section 211 vs General Transfer of Criminal Cases

Section 211 deals with a specific statutory safeguard arising from the manner in which cognizance was taken.

It should not be confused with the broader provisions governing transfer of criminal cases by competent courts.

Section 211 vs Section 210

Section 210 deals with the circumstances in which a Magistrate may take cognizance of an offence.

Section 211 operates where cognizance has been taken under Section 210(1)(c) and provides a safeguard for the accused.

Section 211 vs Section 212

Section 211 concerns transfer following an objection by the accused in the specific circumstances prescribed by the section.

Section 212 deals with the making over of cases to Magistrates and is a separate procedural mechanism.

Cognizance vs Transfer

Taking cognizance is the judicial act of considering an alleged offence for the purpose of proceeding under criminal law.

Transfer under Section 211 concerns which Magistrate will subsequently inquire into or try the case when the statutory conditions are satisfied.

BNSS and CrPC

Section 211 of BNSS substantially corresponds to Section 191 of the CrPC, 1973.

The basic safeguard has been retained under BNSS.

Under both provisions, where cognizance is taken on information from a person other than a police officer or on the Magistrate’s own knowledge, the accused must be informed before evidence is taken of the right to have the case dealt with by another Magistrate.

The BNSS therefore continues the essential procedural protection contained in the earlier CrPC framework.

Relationship with Section 210

Section 211 must be read together with Section 210.

Section 210(1)(c) provides the basis for cognizance where information is received from a person other than a police officer or where the Magistrate has personal knowledge of the offence.

Section 211 then provides the accused with a specific opportunity to object to further proceedings before that Magistrate.

Thus, Section 211 operates as a procedural safeguard connected directly to one of the modes of taking cognizance under Section 210.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) deals primarily with offences and punishments.

The BNSS deals with criminal procedure, including cognizance and transfer of proceedings.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 211 is therefore a procedural safeguard under BNSS and does not itself determine the substantive offence or rules of evidence.

Important BNSS Provisions

• Section 210 — Cognizance of offences by Magistrate.
• Section 211 — Transfer on application of accused.
• Section 212 — Making over of cases to Magistrates.
• Section 213 — Cognizance of offences by Court of Session.
• Section 223 — Examination of complainant.
• Section 225 — Postponement of issue of process.
• Section 227 — Issue of process.

Common Confusions

Does Section 211 apply to every criminal case?

No.

It specifically applies where cognizance has been taken under Section 210(1)(c).

When does Section 210(1)(c) apply?

It applies when the Magistrate takes cognizance upon information received from a person other than a police officer or upon the Magistrate’s own knowledge that an offence has been committed.

Must the accused be informed before evidence is taken?

Yes.

The accused must be informed of the right to have the case inquired into or tried by another Magistrate before any evidence is taken.

Can one accused object when there are several accused?

Yes.

Where there is more than one accused, any one of them may object to further proceedings before the Magistrate who took cognizance.

Does the accused choose the Magistrate to whom the case is transferred?

No.

The other Magistrate is specified by the Chief Judicial Magistrate.

Is Section 211 the same as an ordinary transfer petition?

No.

Section 211 creates a specific statutory mechanism applicable to the circumstances expressly covered by the provision.

Example

Suppose a Magistrate receives information from a private individual that X has committed an offence. The Magistrate takes cognizance under Section 210(1)(c).

Before any evidence is taken, the Magistrate must inform X of the right to have the case inquired into or tried by another Magistrate.

If X objects to further proceedings before the Magistrate who took cognizance, the case must be transferred to another Magistrate specified by the Chief Judicial Magistrate.

Topic at a Glance

• Topic: Transfer on application of accused
• BNSS Section: Section 211
• Connected provision: Section 210(1)(c)
• Applies when: Cognizance is taken on information from a non-police person or on the Magistrate’s own knowledge
• Key safeguard: Accused must be informed of the right to another Magistrate
• Timing: Information must be given before any evidence is taken
• Objection: Any one of several accused may object
• Transferring authority: Chief Judicial Magistrate specifies the other Magistrate
• CrPC counterpart: Section 191 of the CrPC
• Nature: Procedural safeguard for the accused

Quick Revision

• Section 211 BNSS deals with transfer on application of the accused.
• It applies when cognizance is taken under Section 210(1)(c).
• Section 210(1)(c) covers information from a person other than a police officer and the Magistrate’s own knowledge.
• The accused must be informed of the right to have the case inquired into or tried by another Magistrate.
• The information must be given before any evidence is taken.
• If the accused objects, the case is transferred.
• Where there are several accused, any one of them may object.
• The Chief Judicial Magistrate specifies the other Magistrate.
• Section 211 substantially corresponds to Section 191 CrPC.
• The provision is a specific procedural safeguard and should not be confused with general transfer provisions.

ALSO READ: Section 210 – Cognizance of offences by Magistrate

Conclusion

Section 211 of BNSS protects the accused where a Magistrate has taken cognizance on information from a non-police person or on the Magistrate’s own knowledge. By requiring the accused to be informed of the right to have the case dealt with by another Magistrate and providing for transfer upon objection, the provision introduces an important procedural safeguard at the early stage of criminal proceedings.