Section 246 BNSS: What persons may be charged jointly (Formerly Section 223 CrPC)

Section 246 of Bharatiya Nagarik Suraksha Sanhita, 2023: What persons may be charged jointly

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

The following persons may be charged and tried together, namely:—

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section 242 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;

(f) persons accused of offences under sub-sections (2) and (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023 or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter X of the Bharatiya Nyaya Sanhita, 2023 relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.

Legal Commentary & Landmark Judgments: Section 246

Section 246 specifies what persons may be charged and tried jointly, setting forth the statutory categories of co-accused who may be tried together in a single criminal trial (replacing Section 223 CrPC).

Permitted Joint Accused Categories: Persons accused of: (1) same offence committed in same transaction; (2) an offence and abetment/attempt; (3) different offences in same transaction; (4) theft/extortion and receiving/retaining stolen property.
Same Transaction Nexus: Essential connecting link between acts of different co-accused.
Accused Application Option: Co-accused may apply in writing for joint trial if they desire consolidation.

Key Landmark Precedents:

Nasib Singh v. State of Punjab (2022) 2 SCC 89: The Supreme Court delivered a comprehensive restatement of the law on joinder of accused under Section 223 CrPC (Section 246 BNSS), holding that joint trials must preserve the right of each accused to an individual, unbiased assessment of evidence.
State of A.P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850: The Supreme Court held that joint trial of persons committing distinct offences outside the same transaction is illegal and vitiates the trial.
Purushottamdas Dalmia v. State of West Bengal AIR 1961 SC 1589: Affirmed that conspirators and perpetrators operating under a common conspiracy are properly tried jointly.

Courtroom Practice & Strategic Litigation Guidance:

Linchpin severance motion: If the prosecution joins an accused charged with an independent petty assault with a gang charged with a separate murder with which the client had no connection, move for severance of charges under Section 246. Misjoinder of accused causes grave prejudice.