Introduction
Section 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with discharge of the accused in a warrant-case instituted otherwise than on a police report.
This provision is important because it provides an opportunity for the accused to seek discharge before the charge is framed, where the prosecution evidence does not disclose a case against the accused that would justify proceeding further.
Section 268 should be studied together with Section 267, which deals with evidence for the prosecution in cases instituted otherwise than on a police report.
Meaning of Section 268
Section 268 provides that after the prosecution evidence has been taken, the Magistrate considers the evidence and hears the accused.
If the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant their conviction, the Magistrate shall discharge the accused.
However, if the Magistrate considers that the evidence gives rise to a presumption that the accused has committed an offence which is triable under the relevant provisions, the Magistrate proceeds to frame a charge.
Simple Formula
Prosecution evidence → Court considers evidence → No case made out → Discharge
Sufficient basis to proceed → Charge framed
Object and Purpose of Section 268
The main objectives of Section 268 are:
- To protect an accused from an unnecessary trial.
- To examine the prosecution evidence before framing a charge.
- To prevent a case from proceeding where the evidence is insufficient to warrant conviction even if unrebutted.
- To provide a judicial check on the prosecution case.
- To ensure that only cases having a sufficient evidentiary foundation proceed to the charge stage.
When Does Section 268 Apply?
Section 268 applies to a warrant-case instituted otherwise than on a police report.
The procedural sequence can broadly be understood as:
Case instituted otherwise than on police report
↓
Section 267 — Prosecution evidence
↓
Section 268 — Consideration of discharge
↓
Discharge OR Framing of charge
This makes Section 268 different from Section 262.
Section 267 and Section 268
These provisions are closely connected.
Section 267
Deals with evidence for the prosecution in a warrant-case instituted otherwise than on a police report.
Section 268
Deals with discharge of the accused after the prosecution evidence has been taken.
Easy Formula
Section 267 → Evidence
Section 268 → Discharge after evidence
When Shall the Accused Be Discharged?
The key test under Section 268 is whether the prosecution evidence has made out a case which, if unrebutted, would warrant the conviction of the accused.
If the answer is No, the accused shall be discharged.
This means that the prosecution evidence, even if accepted in its present form and left unrebutted, must be capable of supporting a conviction for the offence alleged.
If it cannot, there is no justification for requiring the accused to face the remaining stages of the trial.
Meaning of “No Case”
The expression “no case” means that the prosecution evidence does not provide a sufficient foundation for continuing against the accused.
The Court is not required to assume that the accused is guilty merely because the complaint was filed or because the prosecution produced some evidence.
The evidence must disclose a case which is capable of supporting conviction if it remains unrebutted.
Meaning of “If Unrebutted”
The phrase “if unrebutted” is particularly important.
At the discharge stage, the Magistrate asks:
If the prosecution evidence currently on record remains unchallenged or unrebutted, would it be sufficient to warrant conviction?
If the answer is No, the accused should be discharged.
If the answer is Yes, the proceedings can move forward towards framing of charge.
Simple Test
Evidence + If unrebutted → Would it warrant conviction?
No → Discharge
Yes → Proceed to charge
Hearing of the Accused
Before deciding the question of discharge, the Magistrate hears the accused.
This provides the accused with an opportunity to respond to the prosecution evidence.
The accused may point out:
- missing ingredients of the offence;
- weaknesses in the prosecution evidence;
- contradictions;
- absence of essential facts;
- lack of legally sufficient evidence; or
- other reasons why the evidence would not warrant conviction even if unrebutted.
Role of the Magistrate
The Magistrate must consider the prosecution evidence placed before the Court.
The Court determines whether the evidence makes out a case that would warrant conviction if it remained unrebutted.
The Magistrate therefore acts as an important judicial filter between:
Prosecution evidence
and
Framing of charge
Discharge Is Not Acquittal
Discharge under Section 268 must not be confused with acquittal.
Discharge
The accused is discharged at the pre-charge stage because the prosecution evidence does not make out a case which, if unrebutted, would warrant conviction.
Acquittal
Acquittal generally follows the relevant trial process when the Court finds that the prosecution has failed to establish the guilt of the accused.
Easy Difference
Discharge → Before charge is framed
Acquittal → After the relevant trial process
Discharge Is Not a Finding of Innocence
When an accused is discharged, the Court is not necessarily declaring that the accused did not commit the offence.
The Court is determining that the prosecution evidence before it is insufficient to require the accused to proceed further in the case.
Therefore:
Discharge ≠ finding of factual innocence
It means that the case cannot proceed against the accused on the available material at that stage.
Section 268 and Framing of Charge
Section 268 creates two possible outcomes after consideration of prosecution evidence.
Situation 1 — No case made out
If the evidence does not make out a case which, if unrebutted, would warrant conviction:
Accused → Discharged
Situation 2 — Sufficient basis to proceed
If the evidence gives the Magistrate sufficient ground to presume that the accused has committed the offence:
Charge → Framed
Example
Suppose A is accused of committing an offence in a private complaint.
The complainant produces witnesses under Section 267.
After the prosecution evidence is recorded, the Magistrate examines the evidence.
Suppose the evidence does not establish an essential ingredient of the offence.
Even if the evidence remains unrebutted, it would not be sufficient to warrant A’s conviction.
The Magistrate should therefore discharge A under Section 268.
Another Example
Suppose B is accused of an offence.
The prosecution produces witnesses and documents which, taken together, disclose all the essential elements of the alleged offence.
If the evidence remains unrebutted, it would provide a sufficient basis for conviction.
The Magistrate therefore does not discharge B.
The case proceeds towards framing of charge.
Difference Between Section 268 and Section 262
This is an important examination point.
Both provisions deal with discharge, but they apply to different types of warrant-cases.
| Section 262 | Section 268 |
|---|---|
| Warrant-case instituted on a police report | Warrant-case instituted otherwise than on a police report |
| Discharge considered primarily on police report and accompanying documents | Discharge considered after prosecution evidence |
| Accused may apply for discharge within prescribed period | Magistrate considers whether prosecution evidence makes out a case |
| Test involves whether charge is groundless | Test involves whether there is a case which, if unrebutted, would warrant conviction |
| Corresponds broadly to Section 239 CrPC | Corresponds broadly to Section 245 CrPC |
Easy Formula
Section 262 → Police report → Groundless charge
Section 268 → No police report → No case warranting conviction if unrebutted
Difference Between Section 268 and Section 255
Section 268 should also be distinguished from acquittal provisions.
Section 268
Deals with discharge before the charge is framed.
Section 255
Deals with acquittal after the relevant trial procedure.
Therefore:
Section 268 → Discharge
Section 255 → Acquittal
Importance of the “If Unrebutted” Test
The phrase “if unrebutted” prevents the Court from conducting a complete trial at the discharge stage.
The Magistrate does not need to finally determine every question concerning credibility or guilt.
Instead, the Court asks whether the evidence, assuming it remains unrebutted, is sufficient to warrant conviction.
This makes the discharge stage a preliminary judicial assessment rather than a final determination of guilt.
Is the Accused Required to Prove Innocence?
No.
The accused does not have to establish innocence merely because a discharge application is being considered.
The primary question is whether the prosecution evidence itself makes out a case which, if unrebutted, would warrant conviction.
The accused may point out deficiencies in the prosecution evidence, but the prosecution must still establish the necessary basis for proceeding.
Importance of Section 268
Section 268 prevents an accused from being forced to undergo the remaining stages of a criminal trial where the prosecution evidence is fundamentally insufficient.
It therefore serves as a safeguard against:
- unnecessary trials;
- weak prosecutions;
- continuation of proceedings without sufficient evidentiary basis; and
- misuse of criminal process.
At the same time, it ensures that a case with sufficient evidentiary foundation is allowed to proceed.
Practical Working of Section 268
The process can be remembered as follows:
Step 1 — Prosecution Evidence
The prosecution presents its evidence under Section 267.
Step 2 — Court Examines Evidence
The Magistrate considers the evidence placed before the Court.
Step 3 — Accused Is Heard
The accused is given an opportunity to explain why the case should not proceed.
Step 4 — Court Applies the Test
The Magistrate asks whether the evidence, if unrebutted, would warrant conviction.
Step 5 — Outcome
No → Discharge
Yes → Proceed towards framing of charge
Important Principle
The discharge stage is not intended to become a full trial.
The Magistrate is primarily concerned with whether the prosecution evidence establishes a sufficient foundation for proceeding against the accused.
The Court does not finally determine guilt at this stage.
Section 267 vs Section 268 — Easy Revision
Section 267
Evidence for prosecution
Section 268
When accused shall be discharged
Remember:
267 = Evidence
268 = Discharge
And:
265 = Police-report warrant case
267 = Non-police-report warrant case
Common Confusions
Does Section 268 apply to cases instituted on a police report?
No.
Section 268 concerns warrant-cases instituted otherwise than on a police report.
Is prosecution evidence considered under Section 268?
Yes.
The discharge decision is based on whether the prosecution evidence makes out a case which, if unrebutted, would warrant conviction.
Does discharge mean acquittal?
No.
Discharge and acquittal occur at different stages and have different procedural consequences.
Must the accused prove innocence?
No.
The prosecution must first make out a sufficient case for proceeding.
What happens if the evidence is sufficient?
The accused is not discharged, and the case proceeds towards the framing of charge.
Topic at a Glance
- BNSS Section: 268
- Subject: When accused shall be discharged
- Court: Magistrate
- Type of case: Warrant-case instituted otherwise than on a police report
- Previous stage: Section 267 — Evidence for prosecution
- Main test: Whether prosecution evidence, if unrebutted, would warrant conviction
- If no case is made out: Accused discharged
- If sufficient basis exists: Case proceeds towards framing of charge
- Accused’s opportunity: Accused is heard before the decision
- Related provision: Section 267
- Corresponding CrPC provision: Section 245
Quick Revision
- Section 268 deals with when the accused shall be discharged.
- It applies to a warrant-case instituted otherwise than on a police report.
- It follows the prosecution evidence stage under Section 267.
- The Magistrate considers whether the prosecution evidence makes out a case which, if unrebutted, would warrant conviction.
- If no such case is made out, the accused shall be discharged.
- The accused is given an opportunity to be heard.
- If the evidence provides sufficient basis to proceed, the accused is not discharged and the case moves towards framing of charge.
- Section 268 is different from Section 262 because the two provisions apply to different categories of warrant-cases.
- Section 268 BNSS broadly corresponds to Section 245 CrPC.
One-Line Exam Answer
Section 268 BNSS provides for discharge of an accused in a warrant-case instituted otherwise than on a police report where, after the prosecution evidence is taken and the accused is heard, the Magistrate finds that the evidence does not make out a case which, if unrebutted, would warrant the conviction of the accused.
Conclusion
Section 268 of the BNSS is an important pre-charge safeguard in warrant-cases instituted otherwise than on a police report. After the prosecution has presented its evidence under Section 267, the Magistrate examines whether that evidence, if left unrebutted, would be sufficient to warrant conviction. If it would not, the accused is discharged. If the evidence provides a sufficient basis to proceed, the case moves forward towards the framing of charge.
This section should be remembered alongside Section 267:
ALSO READ: Section 267 – Evidence for prosecution
Section 267 — Evidence for prosecution
Section 268 — Discharge when prosecution evidence does not make out a case
