Section 277 of BNSS, 2023 — Procedure When Not Convicted

Introduction

Section 277 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure to be followed in a summons-case when the Magistrate does not convict the accused under Section 275 or Section 276.

Where the accused is not convicted on a plea of guilty, the case proceeds to the regular evidentiary stage. The Magistrate hears the prosecution, records the prosecution evidence, hears the accused, and records the defence evidence.

The provision also enables the Magistrate, on the application of either side, to summon witnesses or require the production of documents or other things.

Meaning of Procedure When Not Convicted

Section 277 applies when the Magistrate does not convict the accused under:

• Section 275, which deals with conviction on plea of guilty; or
• Section 276, which deals with conviction on plea of guilty in the absence of the accused in petty cases.

In such a situation, the case does not end. Instead, the Magistrate proceeds with the evidence of the prosecution and defence.

Statutory Basis

Section 277 contains three main components:

1. Hearing of the prosecution and recording of prosecution evidence, followed by hearing of the accused and recording of defence evidence.
2. Power of the Magistrate to issue summons to witnesses or require production of documents or other things on the application of the prosecution or accused.
3. Power of the Magistrate to require reasonable witness expenses to be deposited in Court before issuing such summons.

Object and Purpose

The purpose of Section 277 is to ensure that a summons-case proceeds to a proper evidentiary hearing when the accused is not convicted on a plea of guilty.

The provision protects the right of both sides to present their case and enables the Court to secure the attendance of witnesses and production of relevant material where necessary.

Essential Elements

1. No Conviction Under Section 275 or Section 276

Section 277 becomes applicable when the Magistrate does not convict the accused under Section 275 or Section 276.

This means that the simplified guilty-plea procedure has not resulted in conviction.

2. Prosecution Must Be Heard

The Magistrate must proceed to hear the prosecution.

The prosecution is given an opportunity to present its case and produce evidence supporting the accusation.

3. Prosecution Evidence Must Be Taken

The Magistrate must take such evidence as may be produced by the prosecution in support of its case.

This is the evidentiary stage of the summons-case.

4. Accused Must Be Heard

After dealing with the prosecution evidence, the Magistrate must hear the accused.

The accused is given the opportunity to present the defence.

5. Defence Evidence Must Be Taken

The Magistrate must take such evidence as the accused produces in the defence.

The defence therefore has an opportunity to place its evidence before the Court.

Procedure

The procedure under Section 277 can be understood in the following stages:

1. The Magistrate does not convict the accused under Section 275 or Section 276.
2. The Magistrate proceeds to hear the prosecution.
3. The prosecution produces its evidence.
4. The Magistrate takes the prosecution evidence.
5. The Magistrate hears the accused.
6. The accused produces evidence in defence.
7. The Magistrate takes the defence evidence.
8. On the application of either the prosecution or accused, the Magistrate may issue summons to witnesses or require production of documents or other things.
9. Before summoning a witness on such an application, the Magistrate may require reasonable expenses of the witness to be deposited in Court.

The subsequent stage of the case is governed by Section 278, which deals with acquittal or conviction.

Summoning of Witnesses

Section 277(2) gives the Magistrate power, if the Magistrate thinks fit, to issue a summons to any witness on the application of:

• the prosecution; or
• the accused.

The summons may direct the witness:

• to attend the Court; or
• to produce a document or other thing.

The power is discretionary because the provision uses the expression “may, if he thinks fit.”

Deposit of Witness Expenses

Before summoning a witness on an application made under Section 277(2), the Magistrate may require the reasonable expenses of the witness incurred for attending the trial to be deposited in Court.

This provision is intended to address the reasonable expenses associated with requiring a witness to attend Court.

The requirement is discretionary and is not an automatic condition in every case.

Powers and Duties of the Magistrate

Duty to Hear the Prosecution

The Magistrate shall hear the prosecution and take the evidence produced in support of the case.

Duty to Hear the Accused

The Magistrate shall also hear the accused and take the evidence produced in defence.

Power to Summon Witnesses

The Magistrate may issue summons to witnesses on the application of the prosecution or accused where the Magistrate considers it appropriate.

Power to Require Expenses

The Magistrate may require reasonable witness expenses to be deposited before issuing a summons under Section 277(2).

Rights of the Accused

Section 277 ensures that the accused receives an opportunity to:

• be heard;
• present a defence; and
• produce defence evidence.

The provision therefore forms part of the procedural safeguards associated with a fair criminal trial.

Important Distinctions

Section 275 and Section 277

Section 275 deals with conviction when the accused pleads guilty.

Section 277 applies when the Magistrate does not convict the accused under Section 275 or Section 276 and therefore proceeds with the evidence.

Section 277 and Section 278

Section 277 deals with the recording and consideration of prosecution and defence evidence.

Section 278 deals with the final result of the case, namely acquittal or conviction.

Prosecution Evidence and Defence Evidence

Prosecution evidence is presented to establish the accusation against the accused.

Defence evidence is presented by the accused in support of the defence.

Section 277 expressly provides for both stages.

BNSS and CrPC

Section 277 BNSS corresponds to Section 254 of the Code of Criminal Procedure, 1973.

The provision has been substantially retained under BNSS. The core procedure remains the same: where the Magistrate does not convict the accused under the guilty-plea provisions, the prosecution evidence is taken, the accused is heard and defence evidence is taken.

The Magistrate also continues to have the power to summon witnesses or require production of documents or other things on the application of either side, and may require reasonable witness expenses to be deposited before issuing the summons.

Common Confusions

Does the case end if the accused is not convicted under Section 275?

No.

If the Magistrate does not convict under Section 275 or Section 276, the case proceeds under Section 277.

Does Section 277 provide for prosecution evidence?

Yes.

The Magistrate hears the prosecution and takes the evidence produced in support of the prosecution.

Can the accused produce defence evidence?

Yes.

The Magistrate must hear the accused and take such evidence as the accused produces in defence.

Can the Court summon witnesses?

Yes.

On the application of the prosecution or accused, the Magistrate may issue a summons to a witness to attend or produce a document or other thing.

Must witness expenses always be deposited?

No.

The Magistrate may require reasonable expenses to be deposited before summoning a witness. It is a discretionary power.

Topic at a Glance

• Topic: Procedure when not convicted
• BNSS Section: Section 277
• Chapter: XXI
• Applies to: Summons-cases
• Trigger: No conviction under Section 275 or Section 276
• Prosecution: Heard and evidence taken
• Accused: Heard and defence evidence taken
• Witness summons: May be issued on application of prosecution or accused
• Documents: May be required to be produced through witness summons
• Witness expenses: May be required to be deposited in Court
• CrPC counterpart: Section 254
• Next stage: Section 278, dealing with acquittal or conviction

Quick Revision

• Section 277 BNSS deals with the procedure when the accused is not convicted under Section 275 or Section 276.
• The Magistrate must hear the prosecution and take its evidence.
• The Magistrate must also hear the accused and take the defence evidence produced by the accused.
• Either the prosecution or accused may apply for a witness summons.
• A witness may be summoned to attend Court or produce a document or other thing.
• The Magistrate may require reasonable witness expenses to be deposited before issuing the summons.
• Section 277 is the main evidentiary stage of the summons-case after the guilty-plea procedure does not result in conviction.
• Section 277 corresponds to Section 254 CrPC.
• Section 278 subsequently deals with acquittal or conviction.

ALSO READ: Section 276 – Conviction on plea of guilty in absence of accused in petty cases

Conclusion

Section 277 BNSS ensures that a summons-case proceeds to a proper hearing when the accused is not convicted on a plea of guilty. It provides for the examination of prosecution and defence evidence while giving the Magistrate a controlled power to secure witnesses and documents. The provision thereby establishes the evidentiary foundation for the subsequent decision of acquittal or conviction under Section 278.