Section 246 CrPC: Procedure Where Accused Is Not Discharged
Section 246 of the Code of Criminal Procedure, 1973 explains what happens when an accused is not discharged in a warrant case instituted otherwise than on a police report. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 269.
Meaning and scope of Section 246 CrPC
This provision governs the stage after prosecution evidence is considered under Section 244 CrPC and the Magistrate does not discharge the accused under Section 245 CrPC. It concerns warrant cases instituted otherwise than on a police report, such as qualifying complaint cases. It does not prescribe the same procedural route as police-report warrant cases.
Section 246 CrPC: Original statutory text
The following six sub-sections reproduce the provision from the original page, with paragraph formatting improved for readability.
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross examination and re-examination (if any), they shall also be discharged.
Corresponding current law: Section 269 BNSS
Section 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023 retains the essential six-stage procedure of Section 246 CrPC. It also introduces sub-section (7), addressing witnesses who cannot be made available for cross-examination despite the measures required by law.
What Section 269(7) BNSS adds
Where the prosecution has been given an opportunity and all reasonable measures under the BNSS have been taken but attendance of prosecution witnesses covered by sub-sections (5) and (6) cannot be secured for cross-examination, the witness is treated as not examined because of non-availability. The Magistrate may then close prosecution evidence, recording reasons in writing, and proceed on the materials on record.
Read the full current provision in the official BNSS text hosted by the Bureau of Police Research and Development. The India Code portal is another official source for the Act and its amendments.
Procedure when the accused is not discharged
- Consider the prosecution evidence: The Magistrate evaluates whether grounds exist for presuming commission of an offence triable and punishable within the Magistrate's competence.
- Frame a written charge: A formal charge specifies the offence alleged. Framing a charge is not a finding of guilt.
- Explain the charge: The charge is read and explained to the accused, who is asked whether they plead guilty or have a defence.
- Record the plea: A guilty plea must be recorded; conviction on that plea remains discretionary.
- Allow the accused to identify witnesses for cross-examination: If the accused does not plead guilty or is not convicted on the plea, the court follows the procedure in sub-section (4).
- Recall and examine witnesses: Named prosecution witnesses are recalled for cross-examination and any re-examination. Remaining prosecution evidence is then taken.
Section 246 CrPC and Section 269 BNSS: Key provisions
| Subject | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Procedure where accused is not discharged | Section 246 | Section 269 |
| Evidence before charge in complaint warrant cases | Section 244 | Section 267 |
| Discharge | Section 245 | Section 268 |
| Defence evidence | Section 247 | Section 270 |
| Cross-examination when witnesses cannot be secured | No equivalent express sub-section (7) | Section 269(7) provides a specific mechanism |
Rights of the accused and duties of the Magistrate
The accused must understand the charge and receive the opportunity provided by law to cross-examine prosecution witnesses. The Magistrate must apply the prescribed threshold before framing the charge, properly record the plea, and follow the statutory process for recall and further evidence. Where Section 269(7) is invoked, reasons for closing prosecution evidence must be recorded in writing.
Which law applies after 1 July 2024?
The BNSS replaced the CrPC from 1 July 2024, subject to its commencement and saving provisions. Section 531 addresses specified proceedings already pending immediately before commencement. Whether a particular case continues under the CrPC or proceeds under the BNSS requires examination of its dates and procedural stage; it should not be decided solely from the date of the alleged offence.
Frequently asked questions
What is Section 246 CrPC?
It prescribes the procedure after a Magistrate finds grounds to frame a charge in a warrant case instituted otherwise than on a police report, including the plea and further prosecution evidence.
Which BNSS section corresponds to Section 246 CrPC?
Section 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponds to Section 246 CrPC.
Can the accused cross-examine prosecution witnesses after a charge is framed?
Yes. Where the accused seeks to cross-examine witnesses previously examined, the court recalls those identified witnesses under the applicable provision.
What is new in Section 269 BNSS?
Sub-section (7) addresses prosecution witnesses whose attendance cannot be secured for cross-examination despite reasonable measures, and permits the Magistrate to close prosecution evidence with recorded reasons.
Does the CrPC still apply to pending proceedings?
Section 531 BNSS contains saving provisions for specified appeals, applications, trials, inquiries and investigations pending immediately before commencement. Applicability depends on the procedural history.
Official legal references
- Bharatiya Nagarik Suraksha Sanhita, 2023 - official hosted PDF (Sections 267 to 270 and 531).
- India Code - official legislation portal (CrPC, 1973 and BNSS, 2023).
This article provides general legal information. Court procedure and transitional applicability depend on the facts and the law governing the individual case.