Section 190 BNSS governs the stage at which a criminal case is forwarded to a Magistrate after investigation when sufficient evidence exists. It is the statutory equivalent of Section 170 of the Code of Criminal Procedure, 1973, and marks the transition from investigation to judicial proceedings.
Bare Text Provision
| Bharatiya Nagarik Suraksha Sanhita, 2023 | Code of Criminal Procedure, 1973 |
| 190. Cases to be sent to Magistrate, when evidence is sufficient.— (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed: Provided that if the accused is not in custody, the police officer shall take security from such person for his appearance before the Magistrate and the Magistrate to whom such report is forwarded shall not refuse to accept the same on the ground that the accused is not taken in custody. (2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons. (4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report. | 170. Cases to be sent to Magistrate, when evidence is sufficient.— (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. (2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons. (4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report. |
Introduction
Every criminal case in India passes through two distinct phases. First, the police investigate. Second, the court takes over. The moment the police complete their investigation and find sufficient evidence, the law requires them to send the case to a Magistrate. Section 190 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs this critical handover.
This provision is equivalent to Section 170 of the Code of Criminal Procedure, 1973 (CrPC). The BNSS replaced the CrPC with effect from 1 July 2024. Section 190 BNSS retains the core structure of Section 170 CrPC. However, it adds a crucial proviso that resolves a longstanding problem — the unlawful practice of arresting accused persons just to file a chargesheet.
This commentary analyses Section 190 BNSS in full. It explains what the provision means, how the courts have interpreted it, and what the new BNSS reform achieves. It also discusses the leading Supreme Court judgments that shaped this area of law.
Section 190 BNSS vs Section 170 CrPC – A Comparison
The table below compares Section 190 BNSS with Section 170 CrPC:
| Point of Difference | Section 170 CrPC | Section 190 BNSS |
|---|---|---|
| Core obligation | Forward accused in custody to Magistrate when evidence is sufficient | Same |
| Key controversy | Word “custody” was widely misread as requiring physical arrest | Same language retained |
| Proviso | No proviso in original Section 170 (1) | New proviso added to Section 190 (1) – Magistrate cannot refuse chargesheet merely because accused is not in custody |
| Effect of reform | Courts had to rely on Supreme Court judgments to correct the practice | Reform is now statutory — part of the law itself |
| Witness bonds | Required | Required (same) |
| Bailable offences | Security may be taken instead of custody | Same |
The most important change in Section 190 BNSS is the explicit proviso. It makes clear in the text of the law itself that a Magistrate cannot refuse to accept the chargesheet just because the accused has not been physically arrested. This was the law as declared by the Supreme Court. BNSS now codifies it.
Understanding the Provision
Sub-section (1): The Threshold — Sufficient Evidence
The obligation to forward the case to the Magistrate arises when the officer in charge of the police station is satisfied that there is sufficient evidence or reasonable ground to proceed against the accused.
This is the same threshold that appears in Section 189 BNSS (equivalent to Section 169 CrPC) — but the outcome is the opposite. Under Section 189, when evidence is insufficient, the police release the accused. Under Section 190, when evidence is sufficient, the police forward the case to the Magistrate.
The phrase “sufficient evidence” does not mean proof beyond reasonable doubt. That is the standard for conviction, not for forwarding a case. At this stage, the officer only needs to form a prima facie view. The Supreme Court in State of Haryana v. Bhajan Lal, (1992) Supp. (1) SCC 335 confirmed that investigation and cognizance are distinct stages. The police apply an investigative mind. The Magistrate then applies a judicial mind.
The Investigating Officer forms a subjective satisfaction. This decision call belongs to the officer alone. Courts do not generally direct the police on whether to file a chargesheet or not. The decision to forward or not forward is an investigative function.
Sub-section (1): Forwarding the Accused
Once sufficient evidence exists, the officer must do one of two things:
- Forward the accused in custody to a Magistrate who is empowered to take cognizance of the offence and try the case or commit it for trial.
- Take security (i.e., a bail bond) for the accused’s appearance before the Magistrate, where the offence is bailable and the accused can provide it.
The phrase “forward the accused under custody” created enormous confusion in Indian courts for decades. Courts and police officers read it as requiring the physical arrest and production of the accused before the chargesheet could be filed. The Supreme Court finally put this controversy to rest in Siddharth v. State of Uttar Pradesh (discussed in detail below).
Sub-section (1): The Proviso — The BNSS Reform
The proviso is the most significant addition BNSS makes to this provision. It says:
If the accused is not in custody, the police officer shall take security from such person for his appearance before the Magistrate. The Magistrate to whom such report is forwarded shall not refuse to accept the same on the ground that the accused is not taken in custody.
This is a direct legislative response to the widespread malpractice of trial courts refusing to accept chargesheets unless the accused was physically arrested. The BNSS takes the Supreme Court’s position and gives it statutory force. The proviso makes two things clear:
- The police officer has to take security (a bond) from an accused who is not in custody.
- The Magistrate has no discretion to refuse the chargesheet on the ground that the accused person is not in physical custody.
Sub-section (2): Sending Weapons, Articles, and Witness Bonds
When the police forward the accused or take security, they must also send the Magistrate any weapons or articles that need to be produced. They must also require witnesses and the complainant to execute bonds to appear before the Magistrate.
This is a practical step. It ensures that the case file is complete when it reaches the court. The Magistrate receives the chargesheet, the accompanying documents, the material objects, and the bond commitments from witnesses — all at once.
This sub-section ensures that the transition from investigation to trial does not leave the court short of the material it needs to proceed to take cognizance. The police effectively handover the entire investigation docket.
Sub-sections (3) and (4): Bonds and the CJM Court
Sub-section (3) deals with a practical situation where the bond mentions the Court of the Chief Judicial Magistrate (CJM) or ACJMs. Such a bond is broad enough to cover any court to which the CJM may refer the case like to ACJM having jurisdiction of the police station, provided reasonable notice is given to the witnesses.
Sub-section (4) is an administrative provision. It requires the officer before whom the bond is executed to give a copy to the person who signed it, and to send the original to the Magistrate along with the report. Generally, police does not take bond from the witnesses as same is discretionary on its part as the word used in the sub-section is “as he may think necessary”.
The Controversy Over “Custody” – Interpretation by Supreme Court
The word “custody” in Section 170(1) CrPC [now Section 190 (1) BNSS] was the source of persistent confusion and injustice. Police officers and trial courts in several states interpreted “forward the accused under custody” as mandating the physical arrest of the accused before the chargesheet could be filed. This led to a perverse situation: an accused who had cooperated fully with the investigation was arrested on the day the chargesheet was filed, only to apply for bail immediately after.
The Supreme Court intervened through a series of landmark judgments.
Leading Supreme Court Judgments
1. Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 SC 117
This is one of the earliest Supreme Court decisions to explain the interplay between Sections 169, 170, and 173 of the CrPC (now Sections 189, 190, and 193 BNSS). The Court explained the scheme as follows:
After a cognizable offence is reported, the police investigate. If they find insufficient evidence, they act under Section 169 (now Section 189 BNSS) and release the accused. If they find sufficient evidence, they act under Section 170 (now Section 190 BNSS) and forward the accused or take security. In either case, the police file a report under Section 173 (now Section 193 BNSS).
The Supreme Court held that the entire scheme shows that the formation of opinion — whether to file a chargesheet or not — lies with the officer in charge of the police station. The Magistrate cannot direct the police to change their opinion. If the police file a chargesheet, the Magistrate may take cognizance. If the police file a final report (closure report), the Magistrate may disagree and order further investigation. But the Magistrate cannot call upon the police to submit a chargesheet in place of a final report.
This judgment established that the decision under Section 170 CrPC is investigative, not judicial. It belongs to the police, not the court.
2. Joginder Kumar v. State of UP & Ors., (1994) 4 SCC 260
This case was not directly about Section 170, but the Supreme Court made an observation that later became central to the custody debate. The Court held that the power to arrest and the justification to exercise that power are two different things. The mere existence of the power to arrest does not mean that arrest must be made.
The Court emphasised that arrest must have a clear justification. It said that no arrest should be made in a routine manner just because it is legally permissible. This distinction between the existence of a power and the justification for its exercise became a cornerstone of the later judgments on Section 170 CrPC.
3. Siddharth v. State of Uttar Pradesh, (2022) 1 SCC 676
This is the landmark decision that directly and definitively resolved the custody controversy under Section 170 CrPC.
Facts: The appellant, Siddharth, was implicated in an FIR registered seven years before the chargesheet was ready to be filed. He had joined the investigation. The investigating officer had completed the investigation and the chargesheet was ready. However, the trial court insisted that the accused must be physically arrested before the chargesheet could be taken on record under Section 170 CrPC. An arrest memo was therefore issued, compelling the appellant to seek anticipatory bail.
Issue: Does Section 170 CrPC require the physical arrest of the accused as a condition for filing the chargesheet?
Held: The Supreme Court, speaking through a bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy, answered with an emphatic no.
The Court held that the word “custody” in Section 170 CrPC does not mean police custody or judicial custody. It merely means the presentation of the accused by the Investigating Officer before the court at the time of filing the chargesheet. The accused need not be under physical detention.
The Court further held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, there is no need to produce the accused in physical custody. Making arrest a routine step causes incalculable harm to the reputation and self-esteem of the accused. The Court drew the distinction from Joginder Kumar — the existence of the power to arrest does not justify its exercise in every case.
The Court also addressed the duty of courts. It held that trial courts cannot insist on the arrest of the accused as a pre-condition for accepting the chargesheet. It directed that the position of law laid down in this judgment be impressed upon all courts and all police officers.
The Court held that arrest may become necessary only in certain situations:
- When custodial interrogation is required.
- When the crime is heinous.
- When there is a real possibility that the accused may abscond or tamper with evidence.
- When there is a risk that the accused may influence witnesses.
The Siddharth judgment is the single most important pronouncement on the correct interpretation of the word “custody” in Section 170 CrPC. The proviso in Section 190 BNSS directly codifies this ruling.
4. Satender Kumar Antil v. CBI (The Antil Trilogy — 2021–2022)
The Antil litigation before the Supreme Court produced three closely related judgments — Antil-1 (2021) 10 SCC 773, Antil-2 (2021 SCC OnLine SC 3302), and Antil-3 (2022 SCC OnLine SC 825). Together, they constitute the most detailed pronouncement on arrest, bail, and chargesheet procedure in recent Indian criminal jurisprudence.
Background: Satender Kumar Antil, an Assistant Provident Fund Commissioner, was accused of receiving bribes. The CBI filed a chargesheet against him without arresting him. Antil sought bail. The question before the Supreme Court was whether a person who had not been arrested during investigation should be taken into custody by the court upon the filing of the chargesheet.
Key Holdings on Section 170 CrPC:
The Supreme Court reiterated and reinforced the position in Siddharth. It held that in a case where the prosecution does not require custody of the accused, there is no need for arrest under Section 170 CrPC. The accused does not even need to file a bail application, because the court is not required to take the accused into custody in the first place.
The Court held that the proper procedure is:
- The court takes cognizance.
- The accused appears in court in response to summons.
- The court takes bonds under Section 88 CrPC (now Section 91 BNSS) to secure future attendance.
- No bail application is required.
The Court gave specific directions:
- Courts must not insist on bail applications when the accused appears pursuant to a chargesheet filed under Section 170 CrPC.
- The mandate in Siddharth must be strictly complied with.
- Non-bailable warrants must not be issued for accused persons who were never arrested during investigation, merely because a chargesheet has been filed.
The Antil trilogy also categorised offences into four categories (A, B, C, D) and gave differentiated bail guidelines for each. For Category A offences (tried by Magistrates), the Court held that summons alone suffice at the first instance on the accused’s appearance. A bailable warrant may be issued only if the accused fails to appear after service of summons. A non-bailable warrant may be issued only if the accused fails to appear despite a bailable warrant.
The Antil trilogy made it clear that the entire flow of bail jurisprudence after the filing of a chargesheet must be recalibrated. Arrest is never automatic. Liberty is the default. Detention is the exception.
5. Tarsem Lal v. Enforcement Directorate, (2024) SCC OnLine SC 1031
The Supreme Court extended the principle from Siddharth and Antil to complaint cases as well. It held that where an accused appears before court pursuant to summons under Section 204 CrPC (now Section 223 BNSS), the accused need not be treated as being in custody. The court need not insist on a bail application. Instead, the court may take bonds under Section 88 CrPC (now Section 91 BNSS) to secure the accused’s presence.
This decision confirmed that the correct principle is not limited to police chargesheets. It applies broadly — wherever a person appears voluntarily before a court, that court should not mechanically treat the appearance as custody and insist on bail.
The BNSS Reform — What Changes and Why It Matters
The proviso in Section 190 BNSS is the legislature’s direct response to the problem identified by the Supreme Court.
Before Siddharth (2021), the practice in many states was deeply entrenched. Police officers would arrest accused persons just to file the chargesheet. Trial courts would refuse to accept the chargesheet unless the accused was in physical custody. This led to a cascade of bail applications, unnecessary pre-trial detention, and a burden on courts.
Even after Siddharth, the problem did not disappear overnight. Courts continued to pass orders in breach of the judgment. The investigating agencies continued to arrest persons before filing chargesheets.
BNSS addresses this directly. The proviso places the law in the statute itself. Now, even without citing Siddharth or Antil, any person can point to the text of Section 190 BNSS and say: the Magistrate cannot refuse to accept the chargesheet on the ground that the accused is not in custody.
This is a significant constitutional development. It gives the protection of personal liberty under Article 21 of the Constitution a firm procedural anchor in statutory law.
Practical Implications of Section 190 BNSS
For the police: The investigating officer must assess whether the accused should be physically produced in custody or whether a security bond for appearance suffices. This decision must be made on facts — not as a matter of routine. Arrests at the time of filing a chargesheet are not justified unless there is a specific reason.
For accused persons: If an accused has cooperated with the investigation and there is no reason to believe they will abscond or tamper with evidence, they cannot be lawfully forced into custody merely because a chargesheet has been filed. They can insist on appearing voluntarily pursuant to summons.
For Magistrates: A Magistrate has no power under Section 190 BNSS to refuse to accept the chargesheet on the ground that the accused is not in custody. The proviso expressly bars this. The Magistrate must accept the chargesheet and proceed in accordance with law.
For defence lawyers: Lawyers representing accused persons must immediately invoke the proviso to Section 190 BNSS and the judgment in Siddharth if their clients face the unlawful demand to surrender before a chargesheet is accepted. They must insist on the correct procedure under Section 91 BNSS (bonds) rather than bail applications.
Relationship with Other Provisions
Section 190 BNSS does not operate in isolation. It is part of a chain of provisions:
- Section 173 BNSS (equivalent to Section 156 CrPC): Empowers police to investigate cognizable offences.
- Section 189 BNSS (equivalent to Section 169 CrPC): Deals with release of accused when evidence is insufficient.
- Section 190 BNSS (equivalent to Section 170 CrPC): Deals with forwarding accused to Magistrate when evidence is sufficient.
- Section 193 BNSS (equivalent to Section 173 CrPC): Requires the investigating officer to send a final report (chargesheet) to the Magistrate.
- Section 210 BNSS (equivalent to Section 190 CrPC): Deals with the Magistrate’s power to take cognizance of the offence after receiving the police report.
The sequence is: Investigation → Sufficient evidence found → Section 190 BNSS triggered → Accused forwarded or bond taken → Chargesheet filed under Section 193 BNSS → Magistrate takes cognizance under Section 210 BNSS.
Section 190 BNSS and Article 21 of the Constitution
Section 190 BNSS is a provision that directly implicates the fundamental right to personal liberty under Article 21 of the Constitution of India. The Supreme Court in Siddharth held that personal liberty is an important aspect of the constitutional mandate.
Arrest is a drastic step. It deprives a person of their liberty, damages their reputation, affects their livelihood, and can cause lasting harm to their family. Section 190 BNSS, read with the proviso, ensures that this drastic step is not taken without justification — even at the stage of forwarding the case to the Magistrate.
The BNSS proviso is therefore not merely a procedural reform. It is a constitutional safeguard. It ensures that the criminal justice machinery does not use the filing of a chargesheet as a backdoor method of depriving a person of liberty.
Conclusion
Section 190 BNSS occupies a vital position in India’s criminal procedure. It marks the moment when the investigation ends and the judiciary takes charge. The provision ensures that an accused person is placed before a competent Magistrate when the police find sufficient evidence — and that this handover happens in a legally disciplined way.
The most important reform in Section 190 BNSS is the proviso. It resolves, at the level of statute, a controversy that had troubled Indian courts for decades. The word “custody” in this provision was routinely misread to require physical arrest before a chargesheet could be filed. The Supreme Court corrected this through Siddharth v. State of UP and the Antil trilogy. BNSS codifies this correction.
The provision now stands as a firm statement that arrest is not a pre-condition for filing a chargesheet. The Magistrate cannot refuse to receive the chargesheet on this ground. Personal liberty under Article 21 of the Constitution demands nothing less.
Practitioners appearing before trial courts must invoke the proviso and the Supreme Court decisions discussed in this commentary wherever the unlawful practice resurfaces. The law is clear. The courts must follow it.
FAQs on Section 190 BNSS
1. What is Section 190 BNSS?
Section 190 BNSS requires the officer in charge of a police station to forward the accused to a Magistrate when the investigation reveals sufficient evidence. It is the equivalent of Section 170 CrPC.
2. Does Section 190 BNSS require the accused to be arrested before a chargesheet is filed?
No. The proviso to Section 190(1) BNSS expressly states that the Magistrate cannot refuse to accept the chargesheet merely because the accused is not in custody. The Supreme Court also held this in Siddharth v. State of UP.
3. What does the word “custody” mean in Section 190 BNSS?
The Supreme Court in Siddharth held that “custody” in this provision does not mean police custody or judicial custody. It only means the presentation of the accused before the court at the time of filing the chargesheet.
4. What happens if the accused does not surrender when a chargesheet is filed?
If the accused was not arrested during investigation, the police must take a security bond for their appearance before the Magistrate. After the chargesheet is filed, the Magistrate may issue summons. If the accused fails to appear, a bailable warrant may follow. A non-bailable warrant is the last resort.
5. What is the new addition in Section 190 BNSS compared to Section 170 CrPC?
Section 190 BNSS adds a proviso that was absent in Section 170 CrPC. This proviso says that when the accused is not in custody, the police officer must take security for appearance, and the Magistrate must not refuse to accept the chargesheet merely because the accused is not in custody.
6. Is a bail application required after a chargesheet is filed against a person who was never arrested?
No. The Supreme Court in the Antil trilogy held that there is no need for a bail application in such cases. The court should take bonds under Section 91 BNSS (equivalent to Section 88 CrPC) to secure the accused’s presence during trial.
7. Can a Magistrate refuse to take cognizance if the police file a chargesheet?
A Magistrate may refuse to take cognizance if the chargesheet does not disclose any offence. However, the Magistrate cannot refuse to accept the chargesheet merely because the accused is not in custody. This is now expressly prohibited by the proviso to Section 190(1) BNSS.
8. Who decides whether to file a chargesheet or a final report?
The officer in charge of the police station makes this decision. This is an investigative function. The Magistrate cannot direct the police to change their opinion, as held in Abhinandan Jha v. Dinesh Mishra (1968).
9. Can a chargesheet be filed without arrest under Section 190 BNSS?
Yes. Section 190 BNSS expressly clarifies that a chargesheet can be filed even if the accused has not been arrested. The proviso mandates that the Magistrate cannot refuse to accept the chargesheet on this ground.
10. Is arrest mandatory before filing a chargesheet in India?
No. The Supreme Court in Siddharth v. State of Uttar Pradesh held that arrest is not mandatory before filing a chargesheet. Section 190 BNSS now codifies this principle.
11. What is the difference between Section 189 and Section 190 BNSS?
Section 189 BNSS applies when evidence is insufficient and the accused is released. Section 190 BNSS applies when evidence is sufficient and the case is forwarded to a Magistrate for trial.
12. What does “forwarding the accused” mean under Section 190 BNSS?
Forwarding the accused does not necessarily mean physical custody. It means presenting the accused before the Magistrate or securing their appearance through a bond.
13. Can a Magistrate insist on custody before taking cognizance?
No. The proviso to Section 190 BNSS prohibits a Magistrate from refusing a chargesheet merely because the accused is not in custody.
14. What is the role of the Investigating Officer under Section 190 BNSS?
The Investigating Officer must assess whether sufficient evidence exists and then either forward the accused to the Magistrate or take security for their appearance.
15. What happens after Section 190 BNSS is invoked?
After Section 190 BNSS is triggered, the police file a chargesheet under Section 193 BNSS, and the Magistrate may take cognizance under Section 210 BNSS.
16. Can police arrest the accused at the time of filing chargesheet?
Yes, but only if justified. Arrest cannot be routine. It must be based on necessity, such as risk of absconding, tampering with evidence, or need for custodial interrogation.
17. Is bail required if the accused was not arrested during investigation?
No. The Supreme Court in Satender Kumar Antil v. CBI held that in such cases, the court should take bonds instead of requiring a bail application.
18. What is the significance of the proviso to Section 190 BNSS?
The proviso is a major reform. It prevents misuse of arrest powers and ensures that filing of chargesheets does not lead to unnecessary deprivation of liberty.
19. Does Section 190 BNSS apply to all criminal cases?
Yes, it applies to all cases where police investigation reveals sufficient evidence to proceed against an accused.
20. What is the connection between Section 190 BNSS and Article 21 of the Constitution?
Section 190 BNSS protects personal liberty by ensuring that arrest is not used mechanically. It aligns criminal procedure with the constitutional guarantee under Article 21.