BNSS Section 244: Procedure When the Nature of theOffence is DoubtfulIntroductionBNSS Section 244 serves as a critical procedural safeguard within the Indian criminal justicesystem, specifically addressing scenarios where the facts of a case are clear, but the specificlegal offense they constitute is ambiguous. In the complex landscape of criminal law, actionsperformed by an accused person can often overlap between different legal definitions. Thissection ensures that the pursuit of justice is not derailed by technical uncertainties regardingthe exact labeling of a crime at the initial stage of a trial.The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, represents a modern overhaul ofIndia's criminal procedure, replacing the Code of Criminal Procedure (CrPC), 1973. Section244 of the BNSS corresponds to Section 221 of the old CrPC. Its primary importance lies inits ability to prevent a \"failure of justice.\" It empowers courts to proceed with a trial evenwhen the prosecution is unsure whether an act falls under one specific offense or another,ensuring that an accused person cannot evade accountability simply because their crime isdifficult to categorize. Understanding this provision is essential for comprehending howIndian courts balance fairness to the accused with the necessity of effective prosecution.Background and OverviewTo understand BNSS Section 244, one must first appreciate the general rule of criminaltrials: specificity. Typically, the law mandates that an accused person must be informed ofthe exact charge against them to prepare a proper defense. If a person is accused ofmurder, they cannot be suddenly convicted of theft without warning. However, strict
adherence to this rule can sometimes lead to unjust outcomes, especially in cases where thefacts are messy or open to interpretation.BNSS Section 244 addresses the \"grey areas\" of criminal acts. It originated from thelegislative realization that human behavior does not always fit neatly into the predefinedboxes of the penal code. For example, if a person is entrusted with property and thatproperty goes missing, it might be \"Theft,\" \"Criminal Breach of Trust,\" or \"CriminalMisappropriation.\" The act (missing property) is undeniable, but the legal label depends onproving specific intent or the exact manner of taking.This section provides the legal machinery to handle such ambiguity. It fits into the largersystem of \"Framing of Charges,\" acting as an exception to the rule of specificity. It allows thecourt to say, \"We know you did something illegal based on these facts, and we will determinethe exact legal name of the crime during the trial.\" This flexibility is a cornerstone of ensuringthat the substantive truth prevails over procedural technicalities.Key Features or Main PointsBNSS Section 244 is structured to handle doubt at two distinct stages: the beginning of thetrial (charging) and the end of the trial (judgment).(a) Charging with Multiple or Alternative OffencesSubsection (1) governs the framing of charges. It states that if a single act or a series of actsis of such a nature that it is doubtful which of several offenses the facts will prove, theaccused may be charged with all or any of such offenses.● Cumulative Charges: The court can charge the accused with Offense A, Offense B,and Offense C simultaneously.● Alternative Charges: The court can charge the accused with Offense A or OffenseB. This \"either/or\" capability is the defining feature of this section, allowing theprosecution to keep its options open as evidence unfolds.(b) Conviction for a Distinct OffenceSubsection (2) provides the authority for the final verdict. It applies when an accused ischarged with one offense (e.g., Theft), but the evidence presented during the trial provesthey committed a different offense (e.g., Criminal Breach of Trust). Even if the accused wasnever formally charged with the second offense, the court can convict them of it.● Condition: This is only permitted if the case falls under the category of \"doubtfulnature\" described in Subsection (1).● Safeguard: It prevents the accused from being acquitted on a technicality justbecause the prosecutor picked the wrong label initially.(c) Application to False Evidence
The illustrations provided in the law highlight a specific application regarding perjury (givingfalse evidence). If a witness makes two contradictory statements on oath—one duringinvestigation and one during trial—it is often impossible to prove which specific statement isthe lie. However, the contradiction itself proves that one of them is false. Section 244 allowsthe court to charge the person in the alternative and convict them of giving false evidence,bypassing the need to pinpoint the exact lie.Step-by-Step Process or ApplicationThe application of BNSS Section 244 follows a structured judicial process designed touphold fairness while ensuring legal efficacy.1. Evaluation of Material The process begins when the Magistrate or Judge reviews thepolice report and evidence. They identify that the sequence of events is clear (e.g., \"A tookthe money\"), but the legal classification is ambiguous (e.g., \"Was it theft or breach of trust?\").2. Framing the Charge Recognizing the ambiguity, the Judge invokes Section 244. Theydraft a charge sheet that lists the alternative offenses. The Judge explains to the accused:\"You are being charged with Act X. This act may constitute Offense A or Offense B. You arebeing tried for both possibilities.\"3. Leading Evidence The trial proceeds. Witnesses testify to the facts of the case. Theprosecution attempts to prove the elements of the crime. The defense is given theopportunity to cross-examine witnesses regarding the facts that support either charge.4. Judicial Determination At the end of the trial, the Judge reviews the proven facts. If thefacts clearly establish Offense B, even though the primary focus was Offense A, the Judgeapplies Subsection (2). The judgment will state that while Offense A was not fullyestablished, the evidence conclusively proves Offense B.5. Conviction and Sentencing The accused is convicted of the proven offense. Thesentence is passed according to the specific punishment prescribed for that offense in theBharatiya Nyaya Sanhita (BNS).Practical Relevance and Use CasesBNSS Section 244 is not just a theoretical provision; it is frequently applied in high-volumeareas of criminal litigation.In the realm of property crimes, this section is indispensable. Consider a case where aservant is found with their employer's stolen watch. Did the servant steal it from the drawer(Theft)? Or did the employer give it to the servant to clean, and the servant ran away with it(Criminal Breach of Trust)? Or did the servant find it on the floor and decide to keep it(Criminal Misappropriation)? The act of possession is the same, but the legal intent differs.Section 244 allows the court to try the servant for all three possibilities ensuring the guilty actis punished regardless of the specific legal bucket it falls into.
In corporate and financial fraud, the lines are often blurred. A company director divertingfunds might be committing Cheating, Breach of Trust, or Misappropriation. Thedocumentation for these crimes is often identical. This section allows prosecutors to pursuethe case without fear that a slight misinterpretation of a contract clause will lead to anacquittal.It ensures that accountability is maintained. Without this section, defense lawyers couldeasily win cases by arguing, \"My client committed Crime B, but you charged him with CrimeA, so you must let him go.\" Section 244 closes this escape route, reinforcing the principlethat the law is interested in the substance of the act, not just the form of the charge.Impact of Technology and Modern DevelopmentsThe modernization of the Indian legal system through the BNSS involves significanttechnological integration, which interacts with Section 244 in important ways.Precision in Evidence Digital forensics often resolve the \"doubt\" that necessitates Section244. In the past, it might have been unclear if a document was forged or stolen. Today,metadata and digital logs can pinpoint the exact nature of the manipulation. While thisreduces the frequency with which the section is used for evidentiary ambiguity, it remainsvital for legal ambiguity.Cybercrime Applications Conversely, the rise of cybercrime has given Section 244 newlife. A single click by a hacker can constitute \"Data Theft,\" \"Identity Theft,\" \"UnauthorisedAccess,\" and \"Financial Fraud.\" The nature of digital acts is inherently multi-faceted. Courtsincreasingly rely on Section 244 to frame broad charges against cyber-criminals to ensurethat if one technical charge fails (e.g., due to a jurisdictional technicality in the IT Act), aparallel charge under the BNSS (like Cheating) sticks.Automated Record Keeping Modern e-courts systems and the Inter-operable CriminalJustice System (ICJS) track charges digitally. When charges are framed in the alternativeunder Section 244, the digital system ensures that these alternatives are flagged for allstakeholders. This transparency helps the defense counsel access all relevant case laws forevery alternative charge, ensuring a fairer trial despite the complexity.Regional or Country-Specific ContextBNSS Section 244 is a specific enactment of the Parliament of India, reflecting the nation'sunique legal requirements.In India, the legal system is adversarial, meaning the judge plays the role of a neutral arbiter.However, provisions like Section 244 give the judge a more active role in ensuring justice isdone. It empowers the judge to correct the course of a trial if the evidence points in adifferent direction than the police initially thought.
This section is governed by precedents set by the Supreme Court of India. The apex courthas repeatedly clarified that while this section is powerful, it cannot be used to \"ambush\" anaccused. The \"doubt\" must be genuine and based on facts, not on a lazy investigation.The implementation of this section varies slightly across different states in India dependingon the volume of cases. In states with high pendency, judges often use this provision toavoid retrials. If a charge is defective, rather than ordering a fresh investigation (which takesyears), they use Section 244 to convict on the evidence available, prioritizing the conclusionof long-pending matters.Challenges or LimitationsWhile effective, BNSS Section 244 faces practical challenges that can complicate legalproceedings.Prejudice to the Accused The most significant limitation is the risk of prejudice. If anaccused focuses their entire defense strategy on disproving \"Theft,\" they might not presentevidence relevant to \"Breach of Trust.\" If the court suddenly convicts them of Breach of Trustat the end, the accused may claim they were denied a fair hearing. Courts must treadcarefully to ensure the new offense is not so distinct that it catches the defense off guard.Investigative Complacency There is a systemic risk that police officers may rely on thissection as a crutch. Instead of conducting a thorough investigation to pinpoint exactly whatcrime occurred, investigating officers might file vague charges, expecting the court to sort itout using Section 244. This can burden the courts with the task of doing the police's work.Legal Complexity For the average citizen involved in a legal battle, \"alternative charges\"can be confusing. It makes the legal process seem uncertain. An accused person might ask,\"Am I a thief or a cheater?\" and the legal answer \"We aren't sure yet, maybe both\" does notinspire confidence in the clarity of the legal system.Benefits and ImportanceThe overriding value of BNSS Section 244 lies in its commitment to substantive justice.Closing Loopholes Its greatest benefit is preventing the guilty from escaping ontechnicalities. It recognizes that criminal intent (mens rea) often manifests in ways thatstraddle multiple legal definitions. By focusing on the act rather than the label, it ensures thatcriminal conduct is penalized.Judicial Economy It saves immense time and resources. In the absence of this law, awrong charge would lead to an acquittal, followed by a re-arrest, a new charge sheet, and afresh trial for the correct offense. Section 244 consolidates this entire cycle into a single trial,which is crucial for a judicial system facing a heavy backlog of cases.Flexibility It provides necessary flexibility to the judiciary. Trials are dynamic; witnesses turnhostile, new documents emerge, and perspectives shift. This section allows the legal charge
to evolve alongside the evidence, ensuring the final verdict reflects the truth as it stands atthe end of the trial, not just as it appeared at the beginning.ConclusionBNSS Section 244 remains a pivotal element of India's modern criminal procedure. Byacknowledging the complexities of human conduct and the occasional ambiguity of facts, itequips courts with the necessary tools to deliver justice effectively. It strikes a difficultbalance between the accused's right to know the charges and the society's right to punishcriminal acts. As the Indian legal system transitions into the era of the BNSS, the intelligentapplication of this section will continue to play a major role in ensuring a fair, efficient, andlogical judicial process.Also read: BNSS Section 241Frequently Asked QuestionsQ1: What is the primary function of BNSS Section 244?A1: It allows courts to charge an accused with multiple alternative offenses when the natureof the crime is doubtful based on the facts.Q2: Does this section allow conviction for a crime not formally charged?A2: Yes, if the evidence proves a different offense that falls within the scope of the doubt, thecourt can convict for that offense without a specific original charge.Q3: How does BNSS Section 244 differ from the old CrPC?A3: It corresponds to Section 221 of the CrPC, retaining the same core principles butoperating under the modernized framework of the BNSS.Q4: Can this section be used for any two offenses?A4: No, it only applies when the facts are the same but the legal nature of the offense isdoubtful; it cannot connect two completely unrelated crimes.Q5: Is this section useful in cases of perjury?A5: Yes, it is specifically used to charge a witness who makes contradictory statements onoath, even if it is unclear which specific statement is false.Q6: Does the accused have the right to defend against the alternative charge?A6: Yes, the court must ensure that the accused is not prejudiced and has a fair opportunityto defend against the facts constituting the alternative offense.Q7: Who decides if the nature of the offense is \"doubtful\"?
A7: The Magistrate or Judge presiding over the case decides this during the stage offraming charges or delivering the judgment.Q8: Can a higher court overturn a conviction made under this section?A8: Yes, if the higher court finds that the accused was misled or prejudiced by the absenceof a specific charge, the conviction can be set aside.Q9: Why is this section important for victims of crime?A9: It ensures that a perpetrator does not go free simply because of a technical error innaming the crime, providing justice to the victim.Q10: Does technology affect the use of BNSS Section 244?A10: Yes, while digital evidence can reduce factual doubt, the section remains vital for legalambiguities, especially in complex cybercrimes.