Introduction
Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the general rule that criminal courts should ordinarily conduct their proceedings in an open court.
- Introduction
- Meaning of Section 366
- Statutory Basis
- Open Court Principle
- Power to Exclude the Public
- Who Can Exercise the Power?
- Scope of Section 366
- Example
- Importance of the Provision
- Important Distinction: Open Court and Unrestricted Access
- BNSS and CrPC
- Common Confusions
- Important BNSS Provision
- Topic at a Glance
- Quick Revision
- Conclusion
The provision establishes the principle of open justice, under which the public is generally permitted to be present during criminal proceedings. At the same time, the law recognises that certain proceedings may require restrictions on public access, particularly where privacy, dignity, or other legally protected interests are involved.
Meaning of Section 366
Section 366 provides that the place in which a Criminal Court is held for the purpose of an inquiry or trial shall be deemed to be an open Court.
This means that, as a general rule, the public may have access to criminal court proceedings.
However, the provision also recognises the authority of the presiding Judge or Magistrate to regulate access to the courtroom.
The Court may order that the public generally, or any particular person, should not have access to the courtroom or should not remain there.
Statutory Basis
Section 366 of the BNSS is titled “Court to be open.”
The provision contains the following basic principles:
- the place where a Criminal Court conducts an inquiry or trial is treated as an open Court;
- the public may ordinarily have access to the proceedings;
- the presiding Judge or Magistrate may regulate such access;
- the Court may exclude the public generally or any particular person from the courtroom.
Open Court Principle
The open court principle is an important feature of criminal justice.
Criminal proceedings are ordinarily conducted publicly so that the administration of justice remains transparent and subject to public scrutiny.
Public proceedings promote:
- transparency;
- accountability;
- confidence in the justice system;
- openness in judicial decision-making.
The principle does not mean that every person has an unrestricted right to enter or remain in a courtroom in every circumstance. Section 366 expressly recognises the power of the presiding judicial officer to regulate access.
Power to Exclude the Public
The Judge or Magistrate presiding over the Court has the power to direct that:
- the public generally should not have access to the courtroom; or
- a particular person should not have access to or remain in the courtroom.
This power allows the Court to control the proceedings when unrestricted public access may be inappropriate.
The power is therefore an exception to the general rule of open courts.
Who Can Exercise the Power?
The power to restrict access is exercised by the Judge or Magistrate presiding over the Court.
It is therefore a judicial power connected with the conduct and management of the proceedings.
The restriction may apply to the public generally or to a specific individual.
Scope of Section 366
Section 366 applies to the place where a Criminal Court is held for the purpose of:
- an inquiry; or
- a trial.
It therefore concerns the openness of criminal proceedings during these stages.
The provision does not establish that every aspect of the criminal justice process must always be conducted publicly. It specifically addresses access to the place where the Criminal Court is conducting the inquiry or trial.
Example
Suppose a criminal trial is being conducted before a Magistrate.
Ordinarily, members of the public may remain present in the courtroom.
However, if circumstances arise in which the Magistrate considers it necessary to restrict public access, the Magistrate may order that the public generally, or a particular person, should not have access to the courtroom or should not remain there.
The proceedings can therefore be conducted with restricted access despite the general rule that the Court is open.
Importance of the Provision
Section 366 balances two competing considerations:
Open justice requires criminal proceedings to ordinarily remain accessible to the public.
Judicial control allows the presiding Judge or Magistrate to restrict access when circumstances justify such a restriction.
The provision therefore establishes openness as the general rule while preserving judicial authority to regulate access.
Important Distinction: Open Court and Unrestricted Access
An open Court does not mean that the courtroom must remain open to every person without limitation.
Section 366 itself gives the presiding Judge or Magistrate the authority to exclude the public generally or particular persons.
Therefore, openness is the general principle, but courtroom access remains subject to judicial control.
BNSS and CrPC
Section 366 of the BNSS corresponds to Section 327 of the Code of Criminal Procedure, 1973 (CrPC).
The provision continues the established principle that criminal courts should ordinarily be open to the public, while recognising the power of the presiding Judge or Magistrate to restrict access.
Common Confusions
Does Section 366 require every criminal proceeding to be completely public?
No.
The general rule is that the Criminal Court is an open Court, but the presiding Judge or Magistrate may restrict access.
Can a particular person be excluded from the courtroom?
Yes.
The provision permits the presiding Judge or Magistrate to order that a particular person should not have access to or remain in the courtroom.
Can the entire public be excluded?
Yes.
The presiding Judge or Magistrate may order that the public generally should not have access to the courtroom.
Does an open Court mean that anyone can enter whenever they want?
No.
The Court remains subject to the control of the presiding Judge or Magistrate.
Important BNSS Provision
Section 366 — Court to be open
The provision establishes the general rule of open criminal proceedings while preserving judicial power to regulate or restrict access to the courtroom.
Topic at a Glance
- BNSS Section: Section 366
- Title: Court to be open
- Corresponding CrPC provision: Section 327
- General rule: Criminal Courts are open Courts for inquiries and trials
- Purpose: Transparency and openness in criminal justice
- Authority to restrict access: Presiding Judge or Magistrate
- Restriction: May apply to the public generally or to a particular person
- Nature: Procedural provision concerning public access to criminal proceedings
Quick Revision
- Section 366 BNSS deals with the principle of open criminal courts.
- The place where a Criminal Court conducts an inquiry or trial is treated as an open Court.
- Public access is the general rule.
- The presiding Judge or Magistrate has power to regulate access.
- The Judge or Magistrate may exclude the public generally.
- A particular person may also be excluded from the courtroom.
- Open Court does not mean unrestricted access in every circumstance.
- Section 366 BNSS corresponds to Section 327 CrPC.
- The provision balances transparency in criminal proceedings with the Court’s power to control access.
Conclusion
Section 366 of the BNSS embodies the principle of open justice by providing that criminal courts conducting inquiries or trials are ordinarily open to the public. At the same time, it gives the presiding Judge or Magistrate the authority to exclude the public generally or particular persons when necessary. The provision therefore combines transparency in criminal proceedings with judicial control over courtroom access.
