Code: Exact Provision of Section 401 BNSS
(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond or bail bond to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behavior:
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating, or any offence under the Bharatiya Nyaya Sanhita, 2023, punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of Section 140 BNSS, Section 143 BNSS, and Section 414 BNSS shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, or the Juvenile Justice (Care and Protection of Children) Act, 2015 or any other law for the time being in force for the treatment, training, or rehabilitation of youthful offenders.
Explanation of Section 401 BNSS
Section 401 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) provides provisions for the release of certain offenders on probation of good conduct or after admonition. The objective is to offer a chance at rehabilitation rather than imposing a harsh sentence, especially for first-time offenders and young individuals.
- The Court can order probation instead of punishment for offenders who meet the eligibility criteria.
- Women and persons under 21 years of age are given additional leniency.
- If a Magistrate of the second class deems it necessary, he must transfer the case to a Magistrate of the first class.
- The High Court and Sessions Court have the power to review and modify the probation order.
- Specific provisions of BNSS (Sections 140, 143, and 414) apply to sureties related to probation.
Illustration
Example 1: First-Time Offender on Probation
A 19-year-old student is caught stealing a bicycle. He is convicted under BNSS, but since it’s his first offence, the Court decides to release him on probation for two years instead of sending him to jail.
Example 2: Woman Released After Admonition
A woman is convicted of shoplifting but has no prior criminal record. The Court, considering her background, decides to release her with an admonition instead of imposing a fine or jail sentence.
Common Questions & Answers
1. Can a person convicted under serious charges get probation under Section 401 BNSS?
No, probation under this section is only applicable to offences punishable with a fine or imprisonment up to seven years and does not apply to serious offences like murder or rape.
2. What happens if an offender violates probation conditions?
If an offender fails to follow the conditions, the Court may issue a warrant for his apprehension and impose an appropriate sentence.
3. Does this section override the Probation of Offenders Act, 1958?
No, Section 401 BNSS does not override the provisions of the Probation of Offenders Act, 1958. Both laws work together to provide rehabilitative measures for certain offenders.
