Section 268 BNSS: When accused shall be discharged (Formerly Section 245 CrPC)

Section 268 of Bharatiya Nagarik Suraksha Sanhita, 2023: When accused shall be discharged

Official Bare Act Text

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

(1) If, upon taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 268

Section 268 mandates that if, upon taking all the evidence referred to in Section 267, the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant their conviction, the Magistrate shall discharge them (replacing Section 245 CrPC).

Pre-Charge Discharge Standard: Evidence taken under Section 267, if unrebutted, would not warrant conviction.
Prima Facie Test: Magistrate weighs whether the evidence makes out a prima facie case; if allegations are inherently improbable or key elements missing, discharge is mandatory.
Discharge at Any Previous Stage: Under Section 268(2), the Magistrate may discharge the accused at ANY previous stage if they consider the charge to be groundless.

Key Landmark Precedents:

R.S. Nayak v. A.R. Antulay (1986) 2 SCC 716: The Supreme Court held that the standard of discharge under Section 245(1) CrPC (Section 268(1) BNSS) is higher than Section 227; the magistrate must assess whether the evidence, if unrebutted, would warrant conviction. If not, the accused must be discharged.
Ajoy G. Patel v. State of Maharashtra (2000) 10 SCC 430: Reaffirmed that the magistrate is entitled to sift and weigh the evidence for the limited purpose of finding whether a prima facie case is made out.
Harmanpreet Singh Ahluwalia v. State of Punjab (2009) 7 SCC 71: The Supreme Court held that courts must discharge the accused where the complainant's evidence is riddled with inherent contradictions and fails to make out the ingredients of the offence.

Courtroom Practice & Strategic Litigation Guidance:

Master discharge application under Section 268(1): Demonstrate through cross-examination of the complainant that the testimony, even if taken as completely true and unrebutted, fails to prove essential statutory ingredients (e.g., fraudulent inducement in cheating). The magistrate is bound to discharge.