Section 391 of BNSS, 2023 — Certain Judges and Magistrates Not to Try Certain Offences When Committed Before Themselves

Introduction

Section 391 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a situation where a Judge or Magistrate is personally involved in an offence committed in their own presence.

The basic principle is that a Judge or Magistrate should not ordinarily conduct the trial of an offence that has been committed before them personally. This safeguards judicial impartiality and prevents the same judicial officer from effectively becoming both a witness to the incident and the person deciding the case.

Meaning of Section 391

Section 391 provides that, except in the circumstances expressly permitted by the provision, certain Judges and Magistrates should not try an offence when the offence has been committed before themselves.

The provision is based on the principle that a judicial officer who personally witnesses the alleged offence should not ordinarily be responsible for adjudicating the guilt of the person accused of committing it.

Object and Purpose

The principal objectives of Section 391 are:

• to maintain judicial impartiality;
• to prevent a Judge or Magistrate from acting as both witness and adjudicator;
• to protect the accused against potential bias;
• to preserve confidence in the fairness of criminal proceedings; and
• to ensure that offences committed in the presence of a judicial officer are dealt with through an appropriate independent judicial process.

The provision therefore reflects the fundamental principle that no person should ordinarily be the judge of a matter in which they have personally witnessed the alleged offence.

Essential Principle

The core rule can be stated simply:

A Judge or Magistrate should not try an offence when that offence has been committed before the Judge or Magistrate personally, except where the law expressly permits otherwise.

This prevents the judicial officer’s personal involvement in the occurrence from influencing the adjudication.

Why the Rule Is Necessary

Suppose a person allegedly commits an offence in the immediate presence of a Magistrate.

The Magistrate may personally observe:

• what was said;
• what was done;
• who was involved; and
• the circumstances in which the incident occurred.

If the same Magistrate then conducts the trial, the Magistrate may effectively become a witness to the occurrence while simultaneously acting as the person deciding the case.

Section 391 prevents this conflict and promotes an independent adjudication.

Judicial Impartiality

Judicial impartiality is a fundamental requirement of criminal justice.

A Judge or Magistrate must decide a case on the basis of legally admissible evidence and applicable law rather than personal involvement in the underlying incident.

Section 391 supports this principle by restricting the ability of certain judicial officers to try offences committed before themselves.

Protection of the Accused

The provision also operates as a safeguard for the accused.

An accused person is entitled to have the case decided by an impartial judicial authority.

Where the presiding Judge or Magistrate personally witnessed the alleged offence, there may be a reasonable concern that the judicial officer’s personal knowledge of the incident could affect the trial.

Section 391 helps prevent such a situation.

Distinction Between Witness and Judge

One of the most important principles behind Section 391 is the distinction between:

Judge: The person who determines the case based on evidence presented before the Court.

Witness: A person who gives evidence about facts personally known to them.

A judicial officer who personally witnessed the alleged offence may possess direct knowledge of the occurrence. Allowing that same person to conduct the trial could blur the distinction between these two roles.

Section 391 therefore promotes separation between the role of witness and adjudicator.

Application of the Provision

The provision becomes relevant when:

1. an offence is committed;
2. the offence is committed before a Judge or Magistrate personally; and
3. the question arises whether that same judicial officer can try the offence.

The statutory restriction then operates subject to the exceptions or qualifications contained in the section.

Example

Hypothetical example:

A person appears before a Magistrate and, in the presence of the Magistrate, commits an offence against the authority or proceedings of the Court.

The Magistrate has personally witnessed the conduct.

Under the principle reflected in Section 391, the Magistrate should not ordinarily conduct the trial of that offence. The matter should instead be dealt with through the procedure provided by law so that the adjudication is undertaken by an appropriate judicial authority without the same person having to act as both witness and judge.

Relationship with Judicial Fairness

Section 391 is closely connected with the broader principles of:

• natural justice;
• judicial neutrality;
• absence of bias;
• fair trial; and
• institutional confidence in the judiciary.

The provision is not merely a technical procedural rule. It protects the credibility of the judicial process.

Important Limitations

It Applies to Specified Judicial Officers

The section concerns the Judges and Magistrates covered by its language.

It should not be interpreted as creating a blanket prohibition applicable to every judicial officer in every situation.

The Offence Must Be Committed Before the Judicial Officer

The provision is concerned with an offence committed before the Judge or Magistrate personally.

Mere knowledge of an offence from another source is not necessarily equivalent to personally witnessing the offence.

Statutory Exceptions Must Be Considered

The prohibition operates subject to the circumstances and exceptions recognised within the statutory framework.

The section should therefore be read as a whole rather than treating the general rule as absolute in every circumstance.

Section 391 and Summary Proceedings

Section 391 is particularly relevant in the context of offences or misconduct occurring in the presence of judicial authorities.

However, the fact that an incident occurs before a Judge or Magistrate does not by itself mean that the judicial officer can disregard the statutory procedure.

The appropriate procedure and the applicable provisions must still be followed.

BNSS and CrPC

Section 391 of the BNSS corresponds to Section 352 of the Code of Criminal Procedure, 1973.

The underlying principle has been retained under the BNSS.

The provision continues the rule that specified Judges and Magistrates should not try certain offences committed before themselves, thereby maintaining the separation between personal involvement in an incident and adjudication of the resulting criminal case.

Important Distinctions

Personal Observation vs General Knowledge

Personally witnessing an offence is different from merely receiving information about an offence.

Section 391 is concerned with an offence committed before the judicial officer personally.

Judge vs Witness

A Judge or Magistrate deciding a case should remain impartial.

A person who personally witnessed the alleged offence may be required to provide evidence regarding what occurred.

Section 391 helps avoid combining these two roles in the same person.

Judicial Power vs Personal Involvement

The provision does not suggest that Judges and Magistrates lose their judicial authority merely because an incident occurs before them.

Rather, it places a limitation on who should conduct the trial of that particular offence.

Important BNSS Provisions

• Section 383: Summary procedure for trial for giving false evidence.
• 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.
• Section 388: Imprisonment or committal of person refusing to answer or produce document.
• Section 389: Summary procedure for punishment for non-attendance by a witness in obedience to summons.
• Section 390: Appeals from convictions under Sections 383, 384, 388 and 389.
• Section 391: Certain Judges and Magistrates not to try certain offences when committed before themselves.
• Section 392: Judgment.

Topic at a Glance

• BNSS Section: Section 391
• Subject: Certain Judges and Magistrates not to try certain offences committed before themselves
• Core principle: Judicial officer should not ordinarily adjudicate an offence personally witnessed by them
• Purpose: Maintain impartiality and prevent conflict between the roles of witness and judge
• Key safeguard: Independent adjudication
• Underlying principle: Fair trial and absence of bias
• Corresponding CrPC provision: Section 352

Quick Revision

• Section 391 deals with certain Judges and Magistrates who personally witness an offence.
• Such a judicial officer should not ordinarily try the offence committed before them.
• The provision protects judicial impartiality.
• It prevents the same person from effectively acting as both witness and judge.
• The rule safeguards the accused’s right to an impartial adjudication.
• The provision must be read subject to the exceptions and qualifications contained in the law.
• Section 391 corresponds to Section 352 of the CrPC.

ALSO READ: Section 392 – Judgment

Conclusion

Section 391 of the BNSS embodies an important principle of judicial fairness: a Judge or Magistrate who personally witnesses an offence should not ordinarily be the person who subsequently tries that offence. By separating the role of witness from the role of adjudicator, the provision helps prevent bias, protects the fairness of criminal proceedings and strengthens public confidence in the administration of justice