Section 400 of BNSS, 2023 — Order to Pay Costs in Non-Cognizable Cases

Introduction

Section 400 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the payment of costs incurred by a complainant in prosecuting a non-cognizable case.

Where a Court convicts an accused in a complaint relating to a non-cognizable offence, the Court may order the accused to pay the whole or part of the costs incurred by the complainant in conducting the prosecution. These costs may include reasonable expenses relating to process-fees, witnesses and advocate’s fees.

The provision also permits an order of simple imprisonment for up to thirty days in default of payment.

Meaning of Section 400 BNSS

Section 400 enables the Court to compensate a complainant for reasonable expenses incurred in prosecuting a non-cognizable offence.

The power arises after the accused has been convicted. The Court may, in addition to the penalty imposed for the offence, direct the accused to pay the complainant’s prosecution costs.

Thus, the provision concerns costs of prosecution, not compensation for the loss or injury caused by the offence itself.

Statutory Basis

Section 400 contains two sub-sections.

Section 400(1)

Where a complaint of a non-cognizable offence is made to a Court and the accused is convicted, the Court may:

• order the accused to pay the complainant the whole or part of the costs incurred in the prosecution;
• impose this order in addition to the penalty imposed upon the accused;
• specify reasonable expenses forming part of those costs; and
• provide that default in payment may result in simple imprisonment for a period not exceeding thirty days.

Section 400(2)

An order under Section 400 may also be made by:

• an Appellate Court; or
• the High Court or Court of Session while exercising revisional powers.

Object and Purpose

The purpose of Section 400 is to prevent a complainant from having to bear the entire financial burden of prosecuting a non-cognizable offence when the accused has ultimately been convicted.

The provision seeks to:

• reimburse reasonable prosecution expenses;
• provide financial relief to the complainant;
• discourage unnecessary financial hardship caused by criminal proceedings; and
• ensure that the complainant can recover appropriate costs from the convicted accused.

Essential Elements

1. Complaint of a Non-Cognizable Offence

The provision applies where a complaint concerning a non-cognizable offence is made to a Court.

It does not apply generally to every criminal proceeding.

2. Conviction of the Accused

The Court must convict the accused before exercising the power under Section 400(1).

An acquittal does not ordinarily provide the basis for an order under this provision.

3. Discretion of the Court

The Court may order payment of costs.

Therefore, the award of costs is discretionary and is not automatic merely because there has been a conviction.

4. Whole or Part of the Costs

The Court may direct payment of:

• the entire cost incurred by the complainant; or
• only a part of that cost.

The Court therefore has flexibility to determine the appropriate amount.

5. Reasonable Prosecution Expenses

The costs may include expenses incurred in relation to:

• process-fees;
• witnesses; and
• advocate’s fees.

Only expenses that the Court considers reasonable may be included.

Costs in Addition to Penalty

An important feature of Section 400 is that the order for costs is in addition to the penalty imposed upon the accused.

Therefore, payment of prosecution costs does not replace the punishment imposed for the offence.

For example, if an accused is convicted and sentenced to pay a fine, the Court may additionally direct the accused to pay the complainant reasonable costs incurred in prosecuting the case.

What Can Be Included in Costs?

Section 400 expressly identifies certain categories of expenses.

Process-Fees

Expenses incurred in connection with the issuance and service of legal process may be included where the Court considers them reasonable.

Witness Expenses

Reasonable expenses incurred in relation to witnesses may also be included.

Advocate’s Fees

Reasonable advocate’s fees incurred by the complainant in prosecuting the case may form part of the costs.

The Court has discretion to determine what amount is reasonable.

Default in Payment

Section 400 permits the Court to provide that, if the accused fails to pay the ordered costs, the accused may suffer simple imprisonment for a period not exceeding thirty days.

The imprisonment is therefore a consequence of default in payment of the costs.

The maximum period prescribed by the section is thirty days.

Appellate and Revisional Powers

Section 400(2) extends the power to make an order for costs beyond the trial Court.

An order may also be made by:

• an Appellate Court; or
• the High Court or Court of Session while exercising revisional powers.

Thus, the power is available at different stages of the criminal appellate and revisional process.

Procedure

The basic operation of Section 400 can be understood as follows:

1. A complaint concerning a non-cognizable offence is made to a Court.
2. The case proceeds before the Court.
3. The accused is convicted.
4. The Court considers whether the complainant should receive prosecution costs.
5. The Court determines the whole or part of the reasonable costs incurred by the complainant.
6. The Court may direct the accused to pay those costs.
7. The Court may provide for simple imprisonment not exceeding thirty days in default of payment.

Nature of the Power

The power under Section 400 is discretionary.

The Court is not required to award costs in every non-cognizable case resulting in conviction.

The Court may consider factors such as:

• the circumstances of the case;
• the costs actually incurred;
• whether the claimed expenses are reasonable; and
• the extent to which costs should appropriately be awarded.

Section 400 and Compensation

Section 400 should not be confused with the compensation mechanism under Section 395.

Section 395

Section 395 deals with an order to pay compensation, including compensation to persons who have suffered loss or injury because of an offence.

Section 400

Section 400 deals specifically with costs incurred by the complainant in prosecuting a non-cognizable case.

Therefore:

Compensation concerns redress for loss or injury, whereas costs under Section 400 concern expenses incurred in conducting the prosecution.

Example

Suppose A files a complaint before a Court alleging a non-cognizable offence against B. After trial, B is convicted.

During the proceedings, A incurred reasonable expenses towards process-fees, witnesses and advocate’s fees.

The Court may, in addition to the penalty imposed on B, order B to pay A the whole or part of those reasonable prosecution costs.

The Court may also provide that failure to pay the costs can result in simple imprisonment for a period not exceeding thirty days.

Common Confusions

Is payment of costs automatic after conviction?

No.

Section 400 uses the word “may”, so the Court has discretion to award costs.

Can the Court award more than the actual reasonable costs?

The provision concerns costs incurred by the complainant and permits expenses that the Court considers reasonable. The award therefore must be connected with reasonable prosecution expenses.

Is imprisonment the punishment for the original offence?

No.

The simple imprisonment of up to thirty days under Section 400 relates to default in payment of the ordered costs.

Can an Appellate Court award costs?

Yes.

Section 400(2) expressly permits an Appellate Court to make an order under the section.

Can the High Court award costs while exercising revision?

Yes.

The High Court or Court of Session may make an order under Section 400 while exercising its revisional powers.

BNSS and CrPC

Section 400 BNSS substantially corresponds to Section 359 of the Code of Criminal Procedure, 1973.

The provision has largely carried forward the earlier framework concerning costs in non-cognizable cases.

The principal structure remains the same:

• conviction in a non-cognizable complaint;
• discretionary award of prosecution costs;
• reasonable expenses for process-fees, witnesses and advocate’s fees;
• possible simple imprisonment up to thirty days in default; and
• corresponding appellate and revisional powers.

Relationship with BNS and BSA

Section 400 operates within the broader framework of the three new criminal laws:

• BNS, 2023: Defines substantive criminal offences and their punishments.
• BNSS, 2023: Governs criminal procedure, including the award of prosecution costs under Section 400.
• BSA, 2023: Governs the law relating to evidence in criminal proceedings.

Section 400 becomes relevant when a non-cognizable offence under the substantive criminal law is prosecuted before a Court.

Constitutional Connection

Section 400 has a limited but relevant connection with access to justice.

A complainant who pursues a legitimate criminal complaint may incur expenses in bringing the matter before the Court. Permitting reasonable prosecution costs to be recovered from a convicted accused can reduce the financial burden associated with pursuing the proceeding.

The provision must, however, be applied judicially because the Court has discretion over whether costs should be awarded and what expenses are reasonable.

Important Distinctions

Section 399 vs Section 400

Section 399: Compensation to a person who has been groundlessly arrested.

Section 400: Costs payable to a complainant in a non-cognizable case following conviction.

Section 395 vs Section 400

Section 395: Deals with compensation.

Section 400: Deals with prosecution costs.

Fine vs Costs

A fine is a criminal penalty imposed as part of the sentence.

Costs under Section 400 are amounts directed to be paid to the complainant towards reasonable expenses incurred in prosecuting the case.

The costs are imposed in addition to the penalty.

Important BNSS Provisions

Section 395

Deals with Order to Pay Compensation.

Section 396

Deals with the Victim Compensation Scheme.

Section 397

Deals with the Treatment of Victims.

Section 398

Deals with the Witness Protection Scheme.

Section 399

Deals with Compensation to Persons Groundlessly Arrested.

Section 400

Deals with Order to Pay Costs in Non-Cognizable Cases.

Topic at a Glance

• Topic: Order to Pay Costs in Non-Cognizable Cases
• BNSS Section: Section 400
• Applies to: Complaints of non-cognizable offences
• Condition: Accused must be convicted
• Nature: Discretionary power of the Court
• Beneficiary: Complainant
• Costs: Whole or part of prosecution costs
• Possible expenses: Process-fees, witnesses and advocate’s fees
• Standard: Expenses must be reasonable
• Default: Simple imprisonment up to thirty days may be ordered
• Appellate Court: May make the order
• Revisional Court: High Court or Court of Session may make the order
• Corresponding CrPC Provision: Section 359 CrPC

Quick Revision

• Section 400 BNSS deals with costs in non-cognizable cases.
• It applies when a complaint of a non-cognizable offence is made to a Court.
• The accused must be convicted before the Court can exercise the power under Section 400(1).
• The Court may order the accused to pay the complainant the whole or part of the prosecution costs.
• Costs may include reasonable expenses relating to process-fees, witnesses and advocate’s fees.
• The costs are imposed in addition to the penalty for the offence.
• Default in payment may result in simple imprisonment for up to thirty days.
• An Appellate Court may also make the order.
• The High Court or Court of Session may make the order while exercising revisional powers.
• Section 400 substantially corresponds to Section 359 CrPC.
• Section 400 concerns prosecution costs, not compensation for loss or injury.

ALSO READ: Section 399 – Compensation to persons groundlessly arrested

Conclusion

Section 400 BNSS provides a discretionary mechanism for awarding reasonable prosecution costs to a complainant in a non-cognizable case where the accused has been convicted. It allows the Court to consider expenses such as process-fees, witness expenses and advocate’s fees and, in case of default, permits simple imprisonment for up to thirty days. The provision balances the complainant’s financial burden with judicial control over what costs are reasonable and appropriate.