Introduction
Section 381 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the power of the Court to order costs in proceedings connected with Section 379 and Section 380.
The provision gives the Court discretion to make an appropriate order regarding costs while dealing with:
- an application for making a complaint under Section 379; or
- an appeal under Section 380.
The underlying principle is that the Court may allocate the costs of such proceedings in the manner it considers just.
Meaning of Section 381
Section 381 empowers the Court dealing with an application under Section 379 or an appeal under Section 380 to make such order regarding costs as it considers just.
The provision does not prescribe:
- a fixed amount of costs;
- an automatic award of costs; or
- a mandatory formula for calculating costs.
The decision regarding costs is left to the judicial discretion of the Court.
Statutory Basis
The principal provision is:
- Section 381, BNSS, 2023 — Power to order costs
It is directly connected with:
- Section 215 — Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
- Section 379 — Procedure in cases mentioned in Section 215.
- Section 380 — Appeal.
- Section 382 — Procedure of Magistrate taking cognizance.
Object and Purpose
The main purpose of Section 381 is to provide the Court with flexibility to deal with the expenses arising from proceedings under Sections 379 and 380.
The Court may consider the circumstances of the case and determine whether an order regarding costs is appropriate.
The provision therefore helps prevent unfair financial consequences arising from proceedings connected with complaints concerning offences affecting the administration of justice.
When Does Section 381 Apply?
Section 381 applies in two principal situations.
1. Application under Section 379
Where a person makes an application to a Court requesting that a complaint be made under Section 379, the Court dealing with that application may make an order regarding costs.
The power exists whether the application succeeds or fails.
2. Appeal under Section 380
Where an appeal is filed under Section 380, the Court hearing the appeal may also make an order regarding costs.
Thus, Section 381 covers both:
Application → Section 379
and
Appeal → Section 380
Nature of the Power
The power under Section 381 is discretionary.
The Court has to determine what order regarding costs would be just in the circumstances.
Therefore:
- costs are not automatically imposed;
- there is no fixed statutory amount;
- the Court has discretion regarding costs;
- the discretion must be exercised judicially; and
- the circumstances of the particular proceeding are relevant.
What Are Costs?
Costs generally refer to expenses associated with the legal proceeding.
An order regarding costs is a procedural financial order.
It is different from:
- a criminal punishment;
- a sentence;
- a conviction; or
- compensation for an injury or loss.
The purpose of costs is generally connected with the expenses of litigation and achieving fairness between the parties.
Procedure under Section 381
Section 381 does not prescribe a detailed independent procedure for determining costs.
The basic process is:
- An application under Section 379 or an appeal under Section 380 comes before the Court.
- The Court considers the application or appeal.
- The Court considers whether an order concerning costs is appropriate.
- The Court determines what would be just in the circumstances.
- The Court makes an appropriate order regarding costs.
Power of the Court
The Court may:
- award costs;
- order one party to pay costs;
- decline to award costs; or
- make any other appropriate order regarding costs that it considers just.
The precise order depends upon the circumstances of the case.
Section 381 and Section 379
Section 379 deals with the procedure for making a complaint concerning specified offences affecting the administration of justice.
Section 381 supplements that procedure by giving the Court power to make an order regarding costs while dealing with an application for such a complaint.
Therefore:
Section 379 → Complaint procedure
Section 381 → Costs relating to the application
Section 381 and Section 380
Section 380 provides an appeal against specified decisions made under Section 379.
Section 381 gives the Court hearing that appeal the power to make an appropriate order regarding costs.
Therefore:
Section 379 → Procedure
Section 380 → Appeal
Section 381 → Costs
Important Distinctions
Costs vs Criminal Punishment
Costs under Section 381 are not criminal punishment.
An order regarding costs does not itself amount to a criminal conviction or sentence.
Costs vs Compensation
Costs and compensation are different concepts.
Costs relate primarily to expenses associated with the proceeding.
Compensation is generally intended to compensate a person for legally recognised loss, injury or damage.
Section 381 specifically concerns costs.
Costs vs Fine
A fine is a criminal penalty imposed upon conviction or under a specific statutory provision.
Costs under Section 381 are different. They arise in connection with the Court’s proceedings under Sections 379 and 380.
Example 1 — Application under Section 379
A person believes that an offence affecting the administration of justice has been committed during a court proceeding.
The person applies under Section 379 requesting the Court to make a complaint.
The Court considers the application and decides that a complaint should not be made.
While disposing of the application, the Court may consider whether an order regarding costs is appropriate.
Under Section 381, the Court may make such order regarding costs as it considers just.
Example 2 — Appeal under Section 380
A person applies under Section 379 for a complaint to be made.
The Court refuses the application.
The applicant files an appeal under Section 380.
The appellate Court hears the appeal and decides the matter.
While disposing of the appeal, the appellate Court may also make an appropriate order regarding costs under Section 381.
Example 3 — Complaint Made Against a Person
A Court makes a complaint under Section 379 against a person.
That person appeals under Section 380.
The appellate Court considers the appeal and may, while deciding it, make an appropriate order regarding costs under Section 381.
Important Features of Section 381
1. Discretionary power
The Court has discretion to decide whether costs should be ordered.
2. No fixed amount
The section does not prescribe a fixed amount of costs.
3. Standard of justice
The Court must determine what order regarding costs would be just.
4. Limited application
The provision applies specifically to proceedings concerning:
- an application for making a complaint under Section 379; and
- an appeal under Section 380.
5. Procedural nature
Costs under this provision are procedural and financial in nature and are distinct from criminal punishment.
BNSS and CrPC
Section 381 of BNSS corresponds to Section 342 of the Code of Criminal Procedure, 1973.
The corresponding provisions are:
| BNSS | CrPC |
|---|---|
| Section 379 | Section 340 |
| Section 380 | Section 341 |
| Section 381 | Section 342 |
The basic legal mechanism concerning the Court’s power to order costs has been substantially retained.
Relationship with Other Provisions
Section 215
Section 215 establishes restrictions concerning cognizance of specified offences affecting public justice and documents connected with judicial proceedings.
Section 379
Section 379 provides the procedure for making the complaint in the circumstances covered by Section 215.
Section 380
Section 380 provides the appellate remedy against specified decisions under Section 379.
Section 381
Section 381 provides the power to make an appropriate order regarding costs in proceedings under Sections 379 and 380.
Section 382
Section 382 deals with the procedure to be followed by the Magistrate taking cognizance in the relevant proceedings.
Common Confusions
Are costs automatically imposed under Section 381?
No.
The Court has the power to order costs, but an award of costs is not automatic.
Is there a fixed amount of costs?
No.
The provision does not prescribe a fixed amount.
Does Section 381 apply to every criminal proceeding?
No.
It specifically concerns applications under Section 379 and appeals under Section 380.
Are costs the same as punishment?
No.
Costs are a procedural financial consequence and are distinct from criminal punishment.
Are costs the same as compensation?
No.
Costs and compensation serve different purposes.
Can the Court decide not to award costs?
Yes.
The power is discretionary, and the Court may decide that no costs should be awarded.
Case Law
Section 381 is a brief provision corresponding substantially to the earlier Section 342 of the CrPC.
Judicial decisions interpreting the corresponding CrPC framework may therefore assist in understanding the nature of the power to order costs, subject to the differences between the two statutory schemes.
However, a decision under the CrPC should not automatically be treated as a direct interpretation of Section 381 BNSS.
Constitutional Connection
Section 381 has a broader connection with the principle of fair and reasonable judicial procedure.
The expression “as may be just” gives the Court flexibility to ensure that the order concerning costs is fair and appropriate to the circumstances.
The discretionary power should therefore be exercised judicially rather than arbitrarily.
Topic at a Glance
- Topic: Power to order costs
- BNSS Section: Section 381
- Chapter: XXVIII — Provisions as to Offences Affecting the Administration of Justice
- Applies to: Applications under Section 379 and appeals under Section 380
- Nature of power: Discretionary
- Standard: What is just
- Fixed amount: Not prescribed
- Purpose: To deal fairly with costs arising from the relevant proceedings
- Related provision: Section 379
- Appeal provision: Section 380
- Corresponding CrPC provision: Section 342
Quick Revision
- Section 381 BNSS deals with the power to order costs.
- It applies to an application for making a complaint under Section 379.
- It also applies to an appeal under Section 380.
- The Court may make such order regarding costs as it considers just.
- The power is discretionary.
- Costs are not automatically awarded.
- The section does not prescribe a fixed amount of costs.
- Costs are different from criminal punishment.
- Costs are different from compensation.
- Section 381 operates in connection with the special procedure concerning offences affecting the administration of justice.
- Section 381 BNSS corresponds to Section 342 CrPC.
- Section 379 BNSS corresponds to Section 340 CrPC.
- Section 380 BNSS corresponds to Section 341 CrPC.
Conclusion
Section 381 of the BNSS gives the Court a discretionary power to make an appropriate order regarding costs in proceedings connected with Section 379 and Section 380.
The Court may determine whether costs should be awarded and what order would be just in the circumstances. The provision does not prescribe a fixed amount and does not treat costs as a criminal punishment.
ALSO READ: Section 380 – Appeal
In simple terms:
Section 379 → Complaint
Section 380 → Appeal
Section 381 → Costs
