Section 385 of BNSS, 2023 — Procedure Where Court Considers That Case Should Not Be Dealt With Under Section 384

Introduction

Section 385 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides the procedure to be followed when a Court does not consider it appropriate to dispose of a case under Section 384.

Section 384 permits a Court to deal summarily with certain specified offences committed in its view or presence. However, that summary procedure is subject to limits. Where the Court considers that a more serious punishment may be required, or that the case should otherwise not be dealt with under Section 384, Section 385 provides an alternative procedure.

The essential mechanism is that the Court records the facts and statement of the accused and forwards the case to a Magistrate having jurisdiction to try it. The Magistrate then proceeds, as far as may be, as though the case had been instituted on a police report.

Meaning of Section 385

Section 385 applies where a Court considers that a case falling within Section 384 should not be disposed of through the summary procedure provided by that section.

There are three principal situations:

• the Court considers that the accused should receive imprisonment otherwise than in default of payment of fine;
• the Court considers that a fine exceeding ₹200 should be imposed; or
• for any other reason, the Court considers that the case should not be disposed of under Section 384.

In such circumstances, the Court may forward the case to a Magistrate having jurisdiction to try the offence.

Statutory Basis

Section 385 should primarily be read with:

• Section 384 BNSS: Procedure in certain cases of contempt.
• Section 385 BNSS: Procedure where the Court considers that the case should not be dealt with under Section 384.
• Section 390 BNSS: Appeals from convictions under Sections 383, 384, 388 and 389.

The substantive offences to which Section 385 refers are the offences already covered by Section 384.

Object and Purpose

The purpose of Section 385 is to prevent the summary procedure under Section 384 from being used where the circumstances require a more extensive criminal proceeding.

Section 384 provides a limited and immediate procedure. If the Court believes that:

• a punishment involving imprisonment is appropriate;
• a fine greater than ₹200 should be imposed; or
• the matter otherwise requires treatment through the ordinary criminal process,

the case is transferred to a competent Magistrate.

This creates a procedural distinction between minor cases that can be dealt with summarily by the Court itself and cases that should be dealt with through the regular jurisdiction of a Magistrate.

Nature of Section 385

Section 385 is a procedural safeguard and alternative mechanism to Section 384.

It does not create a new offence or prescribe a separate substantive offence.

Instead, it determines what happens when the Court decides that the special summary procedure under Section 384 is inappropriate.

The Court that witnessed the offence does not necessarily conduct the entire criminal trial itself. Instead, it can forward the matter to the Magistrate having jurisdiction.

When Section 385 Applies

1. Imprisonment Other Than in Default of Fine

The first situation arises where the Court considers that the accused should be imprisoned otherwise than in default of payment of fine.

This is significant because Section 384 itself provides only a limited punishment, including simple imprisonment in default of payment of the fine.

If the Court considers that imprisonment should be imposed as the substantive punishment rather than merely as default imprisonment, the case should not be disposed of under Section 384.

2. Fine Exceeding ₹200

The second situation arises where the Court considers that a fine exceeding ₹200 should be imposed.

The statutory threshold is important.

Section 385 does not say that a fine of ₹200 itself necessarily requires transfer. The provision refers specifically to a fine exceeding ₹200.

3. Any Other Reason

The third ground is broader.

Even where the Court does not consider imprisonment or a fine exceeding ₹200 necessary, it may still conclude for any other reason that the case should not be disposed of under Section 384.

This gives the Court discretion to avoid the summary procedure where the circumstances of the case make that procedure inappropriate.

Procedure Under Section 385

The procedure can be understood in stages:

1. A specified offence covered by Section 384 is committed in the view or presence of the Court.
2. The Court considers whether the case should be dealt with summarily under Section 384.
3. The Court determines that Section 384 should not be used because of the nature of the proposed punishment or for another sufficient reason.
4. The Court records the facts constituting the offence.
5. The Court records the statement of the accused, as contemplated by the preceding provision.
6. The Court may forward the case to a Magistrate having jurisdiction to try the offence.
7. The Court may require the accused to furnish security for appearance before that Magistrate.
8. If sufficient security is not furnished, the Court must forward the accused in custody to the Magistrate.
9. The Magistrate then deals with the case, as far as may be, as though it were instituted on a police report.

Recording of Facts and Statement

Before forwarding the case, the Court must record:

• the facts constituting the offence; and
• the statement of the accused as contemplated by the preceding procedure.

This record forms the basis for forwarding the matter to the Magistrate.

The requirement ensures that the Magistrate receives a formal account of the conduct that led to the proceedings and the accused’s response.

Forwarding the Case to a Magistrate

The Court may forward the case to a Magistrate having jurisdiction to try the same.

The Magistrate must therefore be legally competent to try the offence concerned.

The Court that originally witnessed the offence does not retain the entire matter merely because the conduct occurred before it.

Instead, the case enters the jurisdiction of the appropriate Magistrate for further proceedings.

Security for Appearance

The Court may require the accused to provide security for appearance before the Magistrate.

The purpose is to ensure that the accused appears before the Magistrate when required.

If sufficient security is furnished, the accused can appear before the Magistrate in accordance with that requirement.

If sufficient security is not furnished, the Court must forward the accused in custody to the Magistrate.

Role of the Magistrate

Section 385(2) provides that the Magistrate receiving the case shall deal with it, as far as may be, as if it were instituted on a police report.

This is an important procedural direction.

The Magistrate does not simply treat the matter as an ordinary private complaint merely because the proceedings originated from conduct witnessed by another Court.

The statutory scheme directs the Magistrate towards the procedure applicable to a case instituted on a police report, to the extent appropriate.

Important Distinction: Section 384 vs Section 385

Section 384

Section 384 provides the summary route.

The Court itself deals with the specified offence committed in its view or presence and may impose the limited punishment authorised by that section.

Section 385

Section 385 provides the alternative route.

Where the Court considers that the matter should not be disposed of under Section 384, it forwards the case to a competent Magistrate.

The distinction is therefore primarily procedural.

Powers of the Court Under Section 385

The Court has the power to:

• determine that Section 384 should not be used;
• record the facts constituting the offence;
• record the statement of the accused;
• forward the case to a competent Magistrate;
• require security for the accused’s appearance;
• forward the accused in custody if sufficient security is not furnished.

The Court therefore acts as the initiating judicial authority but transfers the substantive trial to the competent Magistrate.

Security vs Custody

The provision creates two possibilities.

Where Security Is Furnished

If the accused provides sufficient security for appearance, the accused is required to appear before the Magistrate according to that security.

Where Security Is Not Furnished

If sufficient security is not given, the Court must forward the accused in custody to the Magistrate.

Thus, custody under Section 385 is connected with failure to furnish the required security; it is not itself the punishment for the offence.

Relationship with Section 384

Section 384 is the starting point for understanding Section 385.

Section 384 allows the Court to deal summarily with specified offences committed in its view or presence.

Section 385 recognises that not every such case is suitable for summary disposal.

For example, where the Court considers that imprisonment should be imposed as an actual sentence rather than merely in default of fine, Section 385 provides the mechanism for sending the matter to the Magistrate.

Relationship with BNS

Section 385 is a procedural BNSS provision.

The underlying offences are found in the Bharatiya Nyaya Sanhita, 2023, because the BNS creates the substantive criminal offences while the BNSS provides the procedure for dealing with them.

Section 385 specifically refers back to the offences covered by Section 384.

Therefore:

• BNS identifies the substantive offence.
• BNSS Section 384 provides the summary procedure where appropriate.
• BNSS Section 385 provides the alternative procedure where summary disposal under Section 384 is considered inappropriate.

BNSS and CrPC

Section 385 BNSS corresponds to Section 346 of the Code of Criminal Procedure, 1973.

The earlier Section 346 contained substantially the same procedural mechanism in relation to cases that were not to be disposed of under Section 345 CrPC.

The BNSS provision retains the basic structure:

• the Court may decide that summary disposal is inappropriate;
• the facts and statement of the accused are recorded;
• the case is forwarded to a competent Magistrate;
• security may be required for appearance;
• failure to furnish sufficient security can result in forwarding the accused in custody; and
• the Magistrate proceeds, as far as may be, as though the case were instituted on a police report.

The principal structural change is the renumbering from Section 346 CrPC to Section 385 BNSS, with the corresponding reference changing from Section 345 CrPC to Section 384 BNSS.

A significant point is that the statutory language of Section 385 continues to refer to a fine exceeding ₹200 as one of the circumstances for which the case should not be dealt with under the summary procedure. This should not be confused with the maximum fine that can actually be imposed under Section 384.

Example

Suppose a person commits one of the specified offences covered by Section 384 directly in the presence of a Court.

The Court considers the conduct serious enough that imprisonment should be imposed as the substantive punishment rather than merely as imprisonment in default of payment of a fine.

The Court therefore decides that the matter should not be dealt with under Section 384.

The Court records the facts constituting the offence and the statement of the accused.

It then forwards the case to the Magistrate having jurisdiction.

The Court may require the accused to furnish security for appearance before the Magistrate. If sufficient security is not furnished, the accused is forwarded in custody.

The Magistrate then proceeds with the case, as far as may be, as though it had been instituted on a police report.

Common Confusions

Does Section 385 create a new offence?

No.

It is purely procedural. The offence must already fall within the category referred to in Section 384.

Does the Court itself conduct the full trial under Section 385?

No.

The Court forwards the case to a Magistrate having jurisdiction to try it.

Is forwarding the case to a Magistrate optional?

The provision states that the Court may forward the case after deciding that it should not be disposed of under Section 384.

However, where sufficient security is not furnished after the Court requires it, the provision states that the accused shallbe forwarded in custody to the Magistrate.

When can the Court invoke Section 385?

It can do so where:

• substantive imprisonment is considered appropriate;
• a fine exceeding ₹200 is considered appropriate; or
• for any other reason, the Court considers that Section 384 should not be used.

Is custody under Section 385 the punishment?

No.

Custody may result from failure to furnish sufficient security for appearance before the Magistrate. It is not the final sentence for the offence.

Does the Magistrate treat the matter as an ordinary complaint case?

Not ordinarily under the statutory direction. Section 385(2) requires the Magistrate to proceed, as far as may be, as if the case were instituted on a police report.

Important Connected Provisions

Section 383 BNSS

Provides the summary procedure for trial for giving false evidence.

Section 384 BNSS

Provides the summary procedure in certain cases of contempt committed in the view or presence of a Court.

Section 385 BNSS

Provides the alternative procedure when the Court considers that the case should not be disposed of under Section 384.

Section 386 BNSS

Deals with when a Registrar or Sub-Registrar is deemed to be a Civil Court.

Section 390 BNSS

Provides for appeals from convictions under Sections 383, 384, 388 and 389.

Topic at a Glance

• Topic: Procedure where Court considers that case should not be dealt with under Section 384
• BNSS Section: Section 385
• Nature: Procedural provision
• Related provision: Section 384
• First ground: Imprisonment other than imprisonment in default of payment of fine is considered appropriate
• Second ground: Fine exceeding ₹200 is considered appropriate
• Third ground: Court otherwise considers Section 384 inappropriate
• Initial Court’s duty: Record the facts constituting the offence and the accused’s statement
• Next step: Forward the case to a Magistrate having jurisdiction
• Security: Court may require security for appearance
• Failure to furnish security: Accused is forwarded in custody
• Magistrate’s procedure: As far as may be, as if instituted on a police report
• CrPC counterpart: Section 346

Quick Revision

• Section 385 BNSS applies when a Court decides that a case should not be disposed of under Section 384.
• It concerns offences referred to in Section 384 and committed in the view or presence of the Court.
• The first ground is where substantive imprisonment is considered necessary.
• The second ground is where a fine exceeding ₹200 is considered appropriate.
• The third ground is where the Court has any other reason for not using Section 384.
• The Court must record the facts constituting the offence and the statement of the accused.
• The case may be forwarded to a Magistrate having jurisdiction.
• The Court may require security for appearance.
• If sufficient security is not furnished, the accused is forwarded to the Magistrate in custody.
• The Magistrate proceeds, as far as may be, as if the case were instituted on a police report.
• Section 385 BNSS corresponds to Section 346 CrPC.
• Section 384 is the summary route, while Section 385 provides the alternative route when summary disposal is inappropriate.

ALSO READ: Section 384 – Procedure in certain cases of contempt

Conclusion

Section 385 BNSS ensures that the summary procedure under Section 384 is not used where the circumstances require a more appropriate criminal proceeding. When the Court considers that substantive imprisonment, a fine exceeding ₹200, or some other circumstance makes summary disposal inappropriate, it can forward the case to a competent Magistrate after recording the necessary facts and the accused’s statement. The Magistrate then proceeds, as far as may be, as though the case had been instituted on a police report.