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What is the procedure for prosecution under sections 352 and 351(2) of the BNS?


13-Aug-2024 (In Criminal Law)

Dear Sir, I understand that in the state of Maharashtra, the police classify offences under Sections 352 and 351(2) BNS as non-cognizable offences, meaning they cannot investigate the matter independently without a magistrate's permission. Could you please clarify: 1) the legal process or procedure that a complainant must follow to ensure the accused is punished in a timely manner, ideally within six months, and 2) whether it is truly worthwhile to invest so much effort, considering that even threats to life involving serious injury made by the accused are not taken very seriously by the police when registering a non-cognizable complaint or offence? Thank you and best regards.

Answers (2)


LawRato

Sections 352 (intentional insult to provoke breach of peace) and 351(2) (criminal intimidation) of the Bharatiya Nyaya Sanhita are treated as non-cognizable and bailable under the BNS, so police cannot independently arrest or start an investigation without a Magistrate's order; you should (1) lodge a written complaint at the local police station and obtain the station diary/NCR entry, (2) if police refuse effective action ask the SHO to refer the matter to the Magistrate or file a private complaint before the Judicial Magistrate asking the Magistrate to take cognizance or direct investigation, and (3) if police still do not act invoke the Madhu Bala and Lalita Kumari lines of authority to request magistrate-ordered investigation or approach the High Court or supervisory authorities (SP/State Police Complaints Authority) for mandamus; these steps are supported by BNSS provisions requiring police to record non-cognizable information and to refer the informant to a Magistrate [BNSS s.174/175: https://indiankanoon.org/doc/91117739/], and by the BNS provisions creating offences under s.351 and s.352 [BNS s.351: https://section1.in/bharatiya-nyaya-sanhita-2023/; BNS s.352: https://www.latestlaws.com/bare-acts/central-acts-rules/bns-section-352-intentional-insult-with-intent-to-provoke-breach-of-peace/]. The Supreme Court and higher'court precedents make clear a magistrate can order police investigation and that police must not 'burke-complaints (Madhu Bala v. Suresh Kumar, see https://indiankanoon.org/doc/740262/; Lalita Kumari v. Govt. of U.P., see https://indiankanoon.org/doc/61439929/). In practice the remedy works but is often slow and requires persistent follow up; in Maharashtra you can also complain to the State Police Complaints Authority or move the High Court if there is inaction (Maharashtra SPCA directives on FIR/registration noted in local orders and press reports: https://timesofindia.indiatimes.com/city/mumbai/fir-now-must-if-plaint-clearly-discloses-cognizable-offence/articleshow/121698383.cms). Evidence and trial procedures will follow the Bharatiya Sakshya Adhiniyam rules on proof and witness examination [BSA overview: https://courtbook.in/search/act/the-bharatiya-sakshya-adhiniyam-2023-6690db0827e75d8a5ebb2db5]. Bottom line: it is usually worthwhile to pursue the magistrate route because the law gives statutory and judicial remedies, but expect delays and consider cost, alternative dispute resolution, or civil remedies depending on your objectives.

Answer #1
874 votes

Section 352 BNS, is Insult intended to provoke breach of peace and Section 351(2) BNS, is criminal intimidation both of which are bailable. After registration of the crime the accused can seek bail from the court. Thereafter the Police will investigate and file the chargesheet in a reasonable period of time. After filing the chargesheet the trial is conducted by the Magistrate court and the Judgement is passed. The entire process won't be completed in 6 months as asked by you. Regarding the threat to your personal security, you can always approach the same magistrate before whom the case is going on to complain about the threat received by you and action will be taken. You must take the help of a good criminal lawyer for your matter. 

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Answer #2
933 votes

To prosecute the Accused for the offense u/s. and 352 and 351 (2), after registration of the, NC we have to approach the Magistrate for the appropriate order. The effort are worth or not would completely depend on the facts of the case which needs to be studied.

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