Section 359 CrPC: Order to Pay Costs in Non-Cognizable Cases
Section 359 of the Code of Criminal Procedure, 1973 empowered criminal courts to order a convicted accused to reimburse reasonable prosecution costs incurred by a complainant in a non-cognizable case. The corresponding provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 400 BNSS.
Text of Section 359 CrPC, 1973
Order to pay costs in non-cognizable cases.
(1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader's fees which the Court may consider reasonable.
(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
Section 400 BNSS: Current provision
Section 400 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled Order to pay costs in non-cognizable cases. Its two subsections preserve the following powers:
Subsection (1): After conviction on a complaint of a non-cognizable offence, the court may require the accused to pay the complainant all or part of reasonable prosecution costs in addition to the penalty. Recoverable costs may include process fees, witness expenses and advocate's fees. The court may direct simple imprisonment of up to 30 days in default of payment.
Subsection (2): An appellate court, or the High Court or Court of Session exercising revision powers, may also make such an order.
The official text is available in the Bureau of Police Research and Development's BNSS publication. The source CrPC text remains useful for cases governed by the former procedural law.
What does an order for prosecution costs mean?
1. A complaint involving a non-cognizable offence
A non-cognizable offence is an offence for which a police officer has no authority to arrest without a warrant, as described by the relevant statutory definition and First Schedule. Section 359/400 specifically concerns complaints of such offences made to a court.
2. Conviction is necessary
The statutory power is triggered where the court convicts the accused. The section does not itself authorize prosecution-cost orders against an acquitted person merely because a complaint was filed.
3. Costs are discretionary and must be reasonable
The word may makes the order discretionary. The court may award all or part of the proven prosecution costs, including process fees, witness-related expenses and reasonable legal representation fees. There is no fixed statutory rupee amount under this section.
4. Costs are additional to the sentence
The reimbursement order is separate from the penalty imposed for the offence. It is not the same as victim compensation under Section 357 CrPC or the victim compensation scheme under Section 357A CrPC.
5. Non-payment and higher-court powers
The court may provide for simple imprisonment of no more than 30 days in default of payment. An appellate court or a revisional court specified in subsection (2) can also pass a costs order.
Practical example
Suppose a complainant prosecutes a non-cognizable offence by filing a complaint in court. After trial, the accused is convicted. If the complainant has incurred reasonable process fees, witness expenses and advocate's fees, the court may direct the convicted person to reimburse an appropriate portion of those expenses, in addition to the sentence. The court must exercise its discretion in light of the circumstances and the evidence of costs.
Frequently asked questions
What is Section 359 CrPC?
It allowed a court convicting an accused on a complaint of a non-cognizable offence to order reimbursement of all or part of the complainant's reasonable prosecution costs, in addition to the punishment.
What is the corresponding provision under the BNSS?
Section 400 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 359 CrPC and applies under the new procedural framework from 1 July 2024, subject to applicable savings.
Can the court order imprisonment if prosecution costs are not paid?
The provision permits a default direction of simple imprisonment for no more than 30 days. This is distinct from the punishment for the underlying offence.
Can an appellate or revisional court award costs?
Yes. Section 359(2) CrPC and Section 400(2) BNSS extend the power to appellate courts and to the High Court or Court of Session exercising revision powers.
Official legal sources and related provisions
- BPR&D: Bharatiya Nagarik Suraksha Sanhita, 2023 (official PDF) - see Sections 400 and 531.
- India Code - official repository of central legislation.
- Ministry of Home Affairs: New Criminal Laws - legislative resources and updates.
- Section 358 CrPC: Compensation for groundless arrest.
- Section 360 CrPC: Probation and admonition.