Introduction
Section 387 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the power of a Court to discharge a person who has been found guilty of certain conduct amounting to contempt of the Court when that person submits an apology to the satisfaction of the Court.
The provision recognises that, in appropriate cases, acceptance of a genuine apology may be sufficient to end the matter instead of imposing punishment.
The power is discretionary and depends upon the Court being satisfied with the apology.
Meaning of Section 387
Section 387 provides for the discharge of an offender after an apology has been submitted to the satisfaction of the Court.
The provision applies where a person has been dealt with under the provisions concerning contempt of the lawful authority of public servants and administration of justice.
The central requirement is that the apology must satisfy the Court. A mere apology does not automatically entitle the offender to discharge.
Statutory Basis
Section 387 of the BNSS provides for discharge of the offender on submission of an apology.
The provision operates in the context of proceedings under the preceding provisions dealing with contempt and offences affecting the administration of justice.
Its essential effect is that the Court may discharge the offender where the offender submits an apology that satisfies the Court.
Object and Purpose
The provision serves a restorative and judicial purpose.
It allows the Court to take into account a genuine expression of remorse and, where appropriate, avoid punishment.
The provision recognises that the objective of proceedings for contempt or conduct affecting the administration of justice is not necessarily punishment in every case. Where an offender genuinely acknowledges the wrong and offers a satisfactory apology, the Court may consider discharge appropriate.
Essential Elements
1. There Must Be an Offender
Section 387 operates in relation to an offender who has been dealt with under the relevant provisions concerning contempt or offences affecting the administration of justice.
The provision therefore operates in the context of an existing proceeding and is not a general mechanism for withdrawing any criminal case merely because an apology has been offered.
2. Submission of an Apology
The offender must submit an apology to the Court.
The apology must relate to the conduct forming the subject matter of the proceeding.
3. Apology Must Satisfy the Court
The decisive requirement is the satisfaction of the Court.
The mere use of the word “sorry” or the submission of a formal apology does not automatically result in discharge.
The Court must determine whether the apology is sufficient in the circumstances.
4. Discharge Is Discretionary
The provision uses the expression permitting the Court to discharge the offender.
Therefore, even where an apology is submitted, discharge is not an automatic statutory right.
The Court must exercise its discretion judicially after considering the circumstances of the case.
Nature of an Apology
An apology under Section 387 should be understood as more than a technical statement made merely to avoid punishment.
The Court may examine whether the apology reflects genuine remorse and recognition of the wrongful conduct.
An apology submitted merely as a procedural formality, without genuine remorse, may not satisfy the Court.
The adequacy of an apology depends upon the facts and circumstances of each case.
Procedure
The basic procedure under Section 387 can be understood as follows:
- Proceedings are initiated against the offender under the relevant provisions.
- The offender submits an apology to the Court.
- The Court considers the nature and circumstances of the conduct.
- The Court determines whether the apology is satisfactory.
- If satisfied, the Court may discharge the offender in accordance with Section 387.
The section therefore gives the Court a discretionary power to bring the proceeding to an end through discharge where an apology is considered sufficient.
Powers of the Court
The Court has the power to determine whether the apology is satisfactory.
While exercising this power, the Court may consider matters such as:
- the nature of the conduct;
- the circumstances in which the conduct occurred;
- whether the offender genuinely acknowledges the wrongdoing;
- whether the apology is sincere;
- whether the apology appears to have been made merely to escape punishment; and
- the overall circumstances of the proceeding.
The Court’s discretion must be exercised according to the circumstances of the case.
Important Limitations
Apology Is Not an Automatic Defence
Submission of an apology does not automatically establish a defence to the underlying conduct.
The Court must be satisfied with the apology before exercising the power of discharge.
Formal Apology May Not Be Sufficient
A purely formal or conditional apology may not necessarily satisfy the Court.
The substance and circumstances of the apology are relevant.
Discharge Is Not Mandatory
Even when an apology is submitted, the Court retains discretion.
The offender cannot claim discharge as an automatic consequence of submitting an apology.
Example
Hypothetical example:
Suppose a person commits conduct falling within the provisions concerning contempt of the lawful authority of a Court. During the proceedings, the person acknowledges the misconduct and submits a genuine apology.
If the Court is satisfied that the apology is genuine and adequate in the circumstances, it may exercise its power under Section 387 to discharge the offender.
If the Court considers the apology merely formal or inadequate, it may decline to discharge the offender.
BNSS and CrPC
Section 387 of the BNSS corresponds to Section 348 of the Code of Criminal Procedure, 1973.
The underlying principle has been substantially retained under the BNSS.
The provision continues to recognise the Court’s power to discharge an offender where an apology is submitted and is considered satisfactory by the Court.
The principal difference is the corresponding section numbering under the new procedural code.
Important Distinctions
Apology vs Discharge
An apology is an act or submission made by the offender.
Discharge is the judicial consequence that the Court may grant if the statutory conditions are satisfied.
Submitting an apology does not itself amount to discharge.
Genuine Apology vs Formal Apology
A genuine apology demonstrates remorse and acceptance of the wrongful conduct.
A formal apology may simply be an attempt to avoid the consequences of the proceeding.
The Court determines whether the apology is satisfactory.
Discharge vs Acquittal
Discharge under Section 387 is distinct from acquittal.
Discharge based on a satisfactory apology does not mean that the Court has necessarily determined that the alleged conduct did not occur. It is a statutory consequence available in the circumstances contemplated by Section 387.
Important BNSS Provisions
- Section 384: Procedure in certain cases of contempt.
- Section 385: Procedure where Court considers that case should not be dealt with under Section 384.
- Section 386: When Registrar or Sub-Registrar to be deemed a Civil Court.
- Section 387: Discharge of offender on submission of apology.
Topic at a Glance
- BNSS Section: Section 387
- Subject: Discharge of offender on submission of apology
- Core requirement: Apology must satisfy the Court
- Nature: Discretionary judicial power
- Automatic discharge: No
- Relevant context: Contempt and offences affecting the administration of justice
- Corresponding CrPC provision: Section 348
- Key principle: A satisfactory apology may justify discharge of the offender
Quick Revision
- Section 387 deals with discharge of an offender upon submission of an apology.
- The apology must be satisfactory to the Court.
- Submission of an apology does not automatically result in discharge.
- The Court exercises discretion in deciding whether the apology is sufficient.
- The genuineness and circumstances of the apology are relevant.
- Section 387 operates within the statutory framework concerning contempt and offences affecting the administration of justice.
- The corresponding CrPC provision was Section 348.
ALSO READ: Section 386 – When Registrar or Sub-Registrar to be deemed a Civil Court
Conclusion
Section 387 of the BNSS provides a limited judicial mechanism for dealing with an offender who submits an apology in proceedings concerning contempt or offences affecting the administration of justice. The Court retains discretion to determine whether the apology is satisfactory and whether discharge should follow. The provision therefore balances the authority of the Court with the possibility of resolving appropriate cases through genuine remorse and apology.
