Section 401 of BNSS, 2023 (THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023)
401. (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 sections 140, 143 and 414 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.
Advocate Anoop Verma, Punjab and Haryana High Court, Chandigarh
+91-9463742964
advanoopverma@gmail.com