Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Forms under the Second Schedule to the BNSS 2023
Forms under the Second Schedule to the BNSS, 2023: Section 522, the Statutory Forms, Their Legal Status and the Effect of a Defect in Form
The Second Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 contains the statutory forms: the summons, the warrant of arrest, the proclamation, the order of attachment, the search warrant, the bond and bail bond, the warrants of commitment, the forms of charge, and the warrant of execution of a sentence of death. They are the physical instruments through which the powers conferred by the body of the Sanhita are exercised.
A form looks like an administrative convenience, and it is easy to treat it as one. It is not. A form is a checklist of the particulars a valid exercise of the power requires, and it is drawn so that an officer who fills it in correctly has necessarily addressed each matter the statute makes relevant. The questions this topic answers are what the forms are, how binding they are, what happens when one is departed from, and what a correctly completed form does not achieve.
1. Section 522: the Governing Provision
Section 522, BNSS 2023 The forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned. |
Three things follow from the language. The word is “may”, so the forms are a model rather than a mandatory template, and a document that achieves the statutory purpose in different words is not invalid merely because it departs from the printed form. The words “with such variations as the circumstances of each case require” expressly contemplate departure, and indeed require it where the circumstances differ from those the form assumes. And the forms may be used “for the respective purposes therein mentioned”, so a form is tied to the purpose for which it is provided and cannot be pressed into service for a different one.
Section 522 corresponds to section 476 of the Code of Criminal Procedure, 1973 and is unchanged in substance. It sits in Chapter XXXIX, the miscellaneous chapter, alongside the power of the High Court to make rules in section 523 and the inherent power in section 528.
1.1 Where Chapter XXXIX sits in relation to the old Code
BNSS | CrPC, 1973 | Subject |
|---|---|---|
520 | 474 | Cases in which a High Court holds a trial |
521 | 475 | Delivery to commanding officers of persons liable to be tried by court-martial |
522 | 476 | Forms |
523 | 477 | Power of the High Court to make rules |
524 | 478 | Power to alter functions allocated to an Executive Magistrate in certain cases |
525 | 479 | Cases in which a Judge or Magistrate is personally interested |
526 | 480 | A practising advocate not to sit as a Magistrate in certain courts |
527 | 481 | A public servant concerned in a sale not to purchase or bid for the property |
528 | 482 | Saving of the inherent powers of the High Court |
529 | 483 | Duty of the High Court to exercise continuous superintendence over courts |
530 | No counterpart | Trial and proceedings to be held in electronic mode |
531 | 484 | Repeal and savings |
⚠ A correction worth noting on section 529 Section 529 is sometimes described as a new provision. It is not. It corresponds to section 483 of the Code of Criminal Procedure, 1973, which already required every High Court to so exercise its superintendence over the courts of Judicial Magistrates subordinate to it as to ensure the expeditious and proper disposal of cases. What the Sanhita changed is the wording. The duty is now expressed as one of continuous superintendence, and it is directed at courts generally rather than at the courts of Judicial Magistrates alone. Section 530, on proceedings in electronic mode, is the only genuinely new section in Chapter XXXIX. |
2. What the Second Schedule Contains
Figure 1: The forms, grouped by the stage at which each is used
The Schedule runs to several dozen forms. They are not numbered by chapter, and the convenient way to hold them is by the function each performs. Four groups cover almost all of them.
2.1 Compelling appearance and production
The largest group. It contains the summons to an accused person and to a witness; the warrant of arrest, and the separate form of warrant directed to a person other than a police officer; the proclamation requiring the appearance of a person accused; the order of attachment to compel his appearance; the search warrant and the warrant to search a suspected place of deposit; and the warrant to bring up a person confined in prison. These are the instruments of Chapters VI and VII.
2.2 Custody, bond and bail
The bond and bail bond taken on arrest under a warrant; the bond to keep the peace and the bond for good behaviour under Chapter IX; the warrant of commitment on a sentence of imprisonment or of fine; the warrant of commitment in default of payment; and the warrant to discharge a person imprisoned on his failure to give security. A bond is a document by which a person submits himself to a liability, and the form ensures that the amount, the condition and the consequence of breach all appear on its face.
2.3 Trial and judgment
The forms of charge for the several classes of case; the warrant to levy a fine by attachment and sale; the warrant of imprisonment on failure to pay compensation; and the warrant of execution of a sentence of death. The forms of charge repay study, because the charge is the document that tells the accused what he has to meet, and Chapter XVIII prescribes its contents with some precision.
2.4 Preventive and miscellaneous
Notice of the substance of an order under section 152, which deals with conditional orders for the removal of a nuisance; the forms relating to security proceedings; the warrant to take possession of attached property; and the bonds for appearance before an officer in charge of a police station or before a court.
3. The Legal Status of a Form
Section 522 says the forms “may be used”. That does not mean the particulars they contain are optional, because most of those particulars are separately required by the section that authorises the process. The correct proposition is narrower: the form is directory, while the contents the substantive section requires are not.
Instrument | What the section requires, regardless of the form | Provision |
|---|---|---|
Summons | In writing, in duplicate, signed by the presiding officer or such other officer as the High Court directs, and bearing the seal of the court; or in encrypted or other electronic form bearing the image of the seal or a digital signature | Section 63 |
Warrant of arrest | In writing, signed by the presiding officer, bearing the seal of the court, and stating the name and description of the person to be arrested and the offence charged; it remains in force until cancelled or executed | Section 72 |
Bond with security | The amount, the condition on which it is executed, and the persons bound | Sections 91 and 485 |
Proclamation | A specified place and time, not less than thirty days from the date of publication, at which the person is required to appear | Section 84 |
Search warrant | The place to be searched and, where the search is for a specified thing, that thing | Sections 96 to 99 |
Charge | The offence, the section, the particulars of time, place and person, and the manner in which the offence was committed where that is necessary to give notice | Sections 234 to 237 |
A document that omits what the section requires is defective because of the section, not because of the Schedule. A document that departs from the printed form while containing everything the section requires is not defective at all, and section 522 says so.
4. The Effect of a Defect in Form
Figure 2: How a departure from the prescribed form is treated
Chapter XXXVII of the Sanhita supplies the answer, and it is the same answer the Sanhita gives to procedural defects generally. The question is whether the defect goes to the power to act or only to the manner of acting.
- Section 507 lists the irregularities that do vitiate proceedings: attaching and selling property, issuing a search warrant, holding an inquest, or taking cognizance, among others, without being empowered to do so. The defect there is in the authority, and no form can supply what the officer did not have.
- Section 506 lists irregularities that do not vitiate proceedings, where the officer acted erroneously and in good faith.
- Section 510 provides that an omission to frame a charge, or an error in it, is not material at any stage of the case unless the accused was in fact misled by it and it has occasioned a failure of justice.
- Section 511 states the general rule: no finding, sentence or order is to be reversed or altered on account of an error, omission or irregularity unless a failure of justice has in fact been occasioned, and in deciding that question the court is to consider whether the objection could and should have been raised at an earlier stage.
📖 Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 (Constitution Bench) Facts: The accused was convicted of an offence with the aid of a provision relating to common intention, although no charge under that provision had been framed. The question referred to a Constitution Bench was whether the omission to frame a charge, or a defect in the charge, is by itself fatal to the conviction, or whether the conviction may stand where the accused knew the case he had to meet and was not prejudiced. Held: The Court held that the Code is a code of procedure and that its object is to further the ends of justice, not to provide a technical means of escape. An omission or defect in the charge is not in itself fatal. The court must ask whether the accused was in substance told of the case he had to meet and had a fair opportunity to meet it, and whether the defect has in fact occasioned a failure of justice. Where the accused was misled, or where the whole trial proceeded on a basis of which he had no notice, the conviction cannot stand; where he knew the case and met it, a defect in the form of the charge does not vitiate the trial. Ratio: Form yields to substance. A defect in the form of a charge or of any process is tested by asking whether the person affected was in fact misled and whether a failure of justice has resulted, not by asking whether the prescribed form was followed. |
5. The Other Half of the Rule
If a defect in form does not defeat a valid exercise of power, it follows equally that a correctly completed form does not validate an exercise of power that was never made. The form records a decision; it does not make one.
📖 Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 Facts: A Magistrate issued process on a complaint alleging adulteration, summoning the manufacturers as accused, without any indication on the record that he had considered whether the allegations disclosed an offence against them. The order was challenged as having been passed mechanically. Held: The Supreme Court held that summoning an accused in a criminal case is a serious matter, and that a criminal law cannot be set in motion as a matter of course. The order issuing process must reflect that the Magistrate applied his mind to the allegations and to the material before him and satisfied himself that there is sufficient ground to proceed. The Court further held that the High Court, in exercise of its jurisdiction under Article 226 and its inherent power, may quash such a proceeding, and that the accused is not obliged to undergo the ordeal of a trial merely because a process has been issued. Ratio: The issue of process is a judicial act requiring the application of mind. The use of a printed form does not discharge that duty, and an order that records nothing of the reasoning behind it is open to challenge however correctly the form was completed. |
The two decisions state the two halves of a single proposition. A defect in form does not defeat a decision properly made; a form properly completed does not supply a decision never made. What the law is concerned with in both directions is the substance of what was done.
6. Forms, Rules and the Electronic Form
The Second Schedule is not the only source of prescribed forms under the Sanhita, and it is worth distinguishing three sources.
Source | Authority | Examples |
|---|---|---|
The Second Schedule | Section 522 | Summons, warrants, proclamation, attachment, search warrant, bonds, forms of charge, warrants of commitment and execution |
Rules made by the State Government | The individual sections that say “in such form as the State Government may, by rules, provide” | The form of the book in which information about a cognizable offence is entered under section 173(1); the form of the police report under section 193(3); the form of a further report under section 193(9); the form and manner of electronic service under section 64(2) |
Rules made by the High Court | Section 523, and Article 227 of the Constitution | Criminal Rules of Practice, registers, the manner of keeping records, and practice directions on the conduct of proceedings in electronic mode |
The distinction matters because the second and third sources are where the electronic dimension of the Sanhita is actually worked out. Section 63 permits a summons to be in encrypted or any other form of electronic communication bearing the image of the seal of the court or a digital signature; section 64(2) permits service by electronic communication “in such form and manner as the State Government may, by rules, provide”; and section 70(3) deems such service to be duly served, with an attested copy kept as proof. The Second Schedule form supplies the content of the summons; the State rules supply the electronic manner of its issue and service.
⚠ Two practical consequences A form in the Second Schedule that assumes a physical document, such as one requiring a signature and a seal, is satisfied in the electronic mode by the image of the seal or a digital signature under section 63. The form is used with such variations as the circumstances require, and the circumstance here is the medium. Where a provision says the form is to be as the State Government provides by rules, the form is not in the Second Schedule at all, and until such rules are made the provision has no settled operation. The police report under section 193(3) is the most important instance. |
7. Key Takeaways
The position stated shortly 1. Section 522 provides that the forms in the Second Schedule, with such variations as the circumstances of each case require, may be used for the purposes mentioned in them. 2. The forms are a model and a checklist, not a mandatory template. A document that achieves the statutory purpose in different words is not invalid for departing from the printed form. 3. The particulars a form contains are generally required by the section that authorises the process, and it is that section, not the Schedule, that makes their omission a defect. 4. The forms fall into four groups: compelling appearance and production; custody, bond and bail; trial and judgment; and preventive and miscellaneous. 5. A defect in form is governed by Chapter XXXVII. Section 507 lists what vitiates, section 510 protects against a defect in the charge unless the accused was misled, and section 511 makes failure of justice the general test. 6. Form yields to substance: an omission or defect in a charge is not by itself fatal, and the question is whether the accused knew the case he had to meet: Willie Slaney. 7. The converse is equally true: a correctly completed form does not supply a judicial decision never made, and the issue of process requires the application of mind: Pepsi Foods. 8. Forms come from three sources: the Second Schedule, rules made by the State Government under individual sections, and rules made by the High Court under section 523. 9. Section 529 is not a new provision; it corresponds to section 483 of the CrPC, with the duty now expressed as one of continuous superintendence. Section 530 is the only new section in Chapter XXXIX. |
8. Frequently Asked Questions
What is the Second Schedule to the BNSS?
The Schedule containing the statutory forms used in criminal proceedings, including the summons, the warrant of arrest, the proclamation, the order of attachment, the search warrant, bonds and bail bonds, the forms of charge, and the warrants of commitment and of execution.
Are the forms in the Second Schedule mandatory?
No. Section 522 says they may be used, with such variations as the circumstances of each case require. What is mandatory is the content that the section authorising the process requires, and that obligation comes from the section and not from the Schedule.
Is a warrant invalid if it does not follow the prescribed form?
Not merely for that reason. It is invalid if it omits what section 72 requires, namely writing, the signature of the presiding officer, the seal of the court, and the name or description of the person and the offence. A departure that does not affect those requirements is a variation the section permits.
What happens if the charge is defective or was never framed?
Section 510 provides that the omission or error is not material unless the accused was in fact misled by it and it has occasioned a failure of justice, and the Constitution Bench in Willie Slaney held that a defect in the charge is not by itself fatal where the accused knew the case he had to meet.
Can a summons be issued in electronic form?
Yes. Section 63 permits a summons to be in encrypted or any other form of electronic communication, bearing the image of the seal of the court or a digital signature, and section 64(2) permits service by electronic communication in the form and manner State rules provide. The Second Schedule supplies the content; the rules supply the electronic manner.
Which section of Chapter XXXIX is genuinely new?
Section 530, on trials and proceedings in electronic mode. The other eleven sections of the chapter, including section 529 on the High Court’s superintendence, correspond to provisions of the Code of Criminal Procedure, 1973.
Related Topics
- Classification of Offences under the First Schedule
- Audio-Video Electronic Means under the BNSS, 2023
- Processes to Compel Appearance: Chapter VI, BNSS
- The Charge: Sections 234 to 247, BNSS
- Irregular Proceedings: Sections 506 to 512 and the Test of Failure of Justice
- Electronic Communication under the BNSS, 2023