When accused shall be discharged
Section 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with when accused shall be discharged. If, upon taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. The Act came into force on 01 Jul 2024.
(1) If, upon taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
Section 268, The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Replaces a provision of the Code of Criminal Procedure
CRPC 245 When accused shall be discharged Text carried over almost unchanged 100%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Ajoy Kumar Ghose v. State of Jharkhand
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Judgment of Main Case order-15.pdf 2009-03-18. Crl A 485/2009. Sirpurkar. DATE-CHECK flagged 1989-03-31 Chhabra retirement date (false positive); body is the named 18 Mar 2009 reportable. Isolates CrPC 245(1)/(2) discharge in a complaint warrant-case: the Magistrate cannot frame a charge under s.246 with zero evidence; discharge under 245 is the statutory course. Do not remap 340/204/202 (already filled). Do not pad 200 (Afaq Jahan isolates 200).
On this section: Successor of CrPC 245 (mapping.csv near-identical, score 1). The complaint-case discharge-for-no-evidence holding carries to BNSS 268.
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Tarun Jit Tejpal vs The State of Goa Home Department Home Secretary
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
At the stage of framing charges under Sections 227-228 of the Code of Criminal Procedure, the court is required to evaluate the material and documents on record with a view to finding out whether the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. The court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to be applied is whether there is ground for presuming that the offence has been committed, not whether ground for conviction has been made out. Even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused. The court cannot conduct a mini-trial or weigh the evidence as if it was conducting a trial. The submissions made by the accused on merits and probable defence are not required to be considered at this stage. The decision in Mohan Lal v. State of Punjab regarding vitiation of trial when complainant and investigating officer are the same applies prospectively only, as held in Varinder Kumar v. State of Himachal Pradesh, and does not apply to cases where criminal prosecution was initiated prior to the Mohan Lal decision.
On this section: Discharge after evidence - the Magistrate can discharge when no case against accused has been made out which, if unrebutted, would warrant conviction
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Sunil Mehta vs State of Gujarat
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Evidence recorded during preliminary inquiry under Section 202 CrPC before the accused appears in court cannot be used to frame charges against the accused under Section 246 CrPC without fresh evidence being produced and recorded under Section 244 CrPC in the presence and with the opportunity of cross-examination by the accused. The accused has a fundamental right to cross-examine prosecution witnesses before charges are framed, as this right is essential for the accused to demonstrate that allegations are groundless and no case exists warranting framing of charges. The scheme and procedure of Chapter XV (dealing with complaints and preliminary inquiry) is distinct from Chapter XIX Part B (dealing with trial of warrant cases on private complaint), and evidence recorded at the preliminary stage cannot substitute for evidence properly recorded under Section 244 in the presence of the accused.
On this section: Power to discharge accused if no case made out after taking all evidence; power to discharge at any previous stage if charges deemed groundless
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Poonam Chand Jain vs Fazru
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A second criminal complaint on substantially identical facts cannot be entertained after the first complaint has been dismissed on merits, unless exceptional circumstances exist. The exceptional circumstances are limited to: (a) previous order passed on incomplete record; (b) previous order passed on misunderstanding of nature of complaint; (c) previous order being manifestly absurd, unjust or foolish; or (d) new facts which could not with reasonable diligence have been brought on record in previous proceedings. The complainant cannot adduce some evidence before dismissal and then present more evidence through a second complaint. Suppression of material facts (such as earlier complaint and its dismissal) in filing second complaint strengthens the ground for rejection. The principle has been consistently held since Pramatha Nath Talukdar (1962) and is settled law applicable uniformly.
On this section: Section 245 provides that accused can raise all points before High Court in revision. Court considered this procedure while remanding matter to High Court.
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Rishipal vs State of U. P.
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Continuation of criminal proceedings against the appellant for commission of alleged offences under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC constitutes pure abuse of process of law and warrants quashing of the complaint case, as the uncontroverted allegations do not prima facie establish any criminal offence - at most they disclose negligence or dereliction of official duty, not criminal conspiracy or cheating. The power under Section 482 CrPC to quash proceedings must be exercised when a trained judicial mind concludes that continuation would lead to abuse of process and miscarriage of justice, even though such exercise is an exception rather than the rule. Courts must actively prevent vexatious complaints filed by frustrated litigants seeking to misuse criminal law as a tool to settle civil disputes and to harass innocent third parties.
On this section: Relates to discharge of accused. Court noted High Court's approach of directing appellant to file discharge application before trial court under this section.
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Rashida Kamaluddin Syed vs Shaikh Saheblal Maradn (d) Th. Lrs.
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Upon the death of a complainant in a criminal case, the proceedings do not abate. The Code of Criminal Procedure does not expressly provide for abatement of inquiries and trials upon death of a complainant. Legal heirs of a deceased complainant can be validly permitted by the court to continue the criminal prosecution against the accused under Section 302 of the Code of Criminal Procedure (corresponding to Section 495 of the old Code). This principle applies to all criminal cases based on the scheme of the Code and is not limited to cases triable by the Court of Session or cases involving any particular level of offence. Once such permission is granted by the court and is not challenged by the accused, it attains finality and cannot be subsequently challenged as illegal or unlawful.
On this section: Referenced in conjunction with Section 239 regarding discharge procedure
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Sudarshanacharya vs Purushottamacharya
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
In criminal proceedings, while the right to speedy trial is a fundamental component of Article 21 of the Constitution, courts cannot prescribe automatic or mechanical time limits at the end of which criminal trials must be terminated and the accused acquitted or discharged. Courts must exercise discretion based on the totality of circumstances including the conduct of parties, nature of the offence, and whether allowing proceedings to continue would constitute an abuse of process. The inherent powers under Section 482 of the Criminal Procedure Code may be invoked to quash proceedings only when the court is satisfied on material on record that continued proceedings would be an abuse of process or when ends of justice require it. In cases involving criminal breach of trust relating to institutional property, where the accused has engaged in delay tactics through repeated discharge applications and the complainant has demonstrated continued interest in prosecution, the continuation of proceedings does not constitute an abuse of process.
On this section: Provides for discharge of accused when evidence is not sufficient to put accused on trial. The magistrate relied on this section to discharge the appellant, which was later reversed.
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Rani vs Rakesh
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a Magistrate exercises discretion under Section 249 Cr.P.C. to discharge an accused due to non-appearance of complainant, such discretion being judicial in nature must be exercised reasonably and with utmost caution. The court should not automatically discharge the accused upon every instance of complainant's absence. Instead, the court must examine whether the complainant has actively pursued the case with dedication or attended casually. A single non-appearance, particularly when the complainant has been regularly appearing and pursuing the case, should not result in automatic discharge. The discretion must be exercised judiciously after thorough examination of facts, and not arbitrarily. An order of discharge under Section 249 Cr.P.C. is a final order amenable to revision before the Sessions Court, and the distinction between discharge under Section 249 and acquittal under Section 256 must be properly appreciated.
On this section: When accused shall be discharged; cited to distinguish discharge based on lack of evidence from discharge based on complainant's absence
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Bhola Ram vs Amrik Singh
Decided under Code of Criminal Procedure 245, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a revisional court under Section 398 Cr.P.C. sets aside an order of discharge, it can only direct the trial court to make further enquiry into the case after giving notice to the discharged person. The revisional court cannot directly frame charges. After further enquiry, the trial court may either discharge the accused or frame charges for offences that may be prima facie made out upon the evidence on record, in accordance with Section 245 Cr.P.C.
On this section: Referenced as the proper procedure for magistrate to reconsider discharge orders after remand by revisional court.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 268
What have the courts held on Section 268 of the Bharatiya Nagarik Suraksha Sanhita?
Ajoy Kumar Ghose v. State of Jharkhand (18 Mar 2009) is the leading judgment on this section among those set out below, though it was decided under CRPC 245, which this section replaced -- the court never mentioned this Act: Successor of CrPC 245 (mapping.csv near-identical, score 1). The complaint-case discharge-for-no-evidence holding carries to BNSS 268. Another 8 judgments on this section are set out below, 7 of them from the Supreme Court. They run from 2007 to 2023.
How do I find court cases under Section 268 of the Bharatiya Nagarik Suraksha Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNSS 268, section 268 BNSS, section 268 of the Bharatiya Nagarik Suraksha Sanhita. People searching for it also type bnss 268 2 and bns 268 section. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 9 reported judgments on this section are set out on this page, beginning with Ajoy Kumar Ghose v. State of Jharkhand (18 Mar 2009).
What should I read with Section 268 of the Bharatiya Nagarik Suraksha Sanhita, and has it changed?
Its own text turns on section 267 (Evidence for prosecution), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it. It carries forward CrPC 245 (When accused shall be discharged), so the judgments decided under that provision are the case law on this one.
When did Section 268 of the Bharatiya Nagarik Suraksha Sanhita come into force?
Section 268 of the Bharatiya Nagarik Suraksha Sanhita, cited as BNSS 268, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 359. Compounding of offences1355 words
- 187. Procedure when investigation cannot be completed in twenty-four hours1122 words
- 2. Definitions956 words
- 243. Trial for more than one offence930 words
- 35. When police may arrest without warrant881 words
- 480. When bail may be taken in case of non-bailable offence823 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.