Section 366 BNSS: Court to be open (Formerly Section 327 CrPC)

Section 366 of Bharatiya Nagarik Suraksha Sanhita, 2023: Court to be open

Official Bare Act Text

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

(1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 64, section 65, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012 shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court:

Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the Court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

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 366

Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 327 of the CrPC, 1973) enshrines the fundamental rule of open justice, declaring that criminal courts shall be open courts to which the public generally may have access, while establishing mandatory in-camera trials for sexual offences.

Open Court Doctrine: The place in which any Criminal Court is held shall be an open Court to which the public generally may have access so far as the same can conveniently contain them.
Discretion to Exclude Public: The presiding Judge or Magistrate may, if they think fit, order that the public generally or any particular person shall not have access to or remain in the court room.
Mandatory In-Camera Trial for Sexual Offences: Inquiry and trial of rape and sexual assault offences under BNS shall be conducted in camera, presided over by a woman Judge or Magistrate wherever practicable.
Ban on Publishing Proceedings: Unlawful to print or publish any matter in relation to in-camera sexual offence proceedings without previous permission of the Court.

Key Landmark Precedents:

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1: The Constitution Bench established that open justice is a primary safeguard of judicial integrity; holding in-camera trials is an exception to be justified only by strict statutory necessity or administration of justice.
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: The Supreme Court issued stern directions mandating that trials involving rape victims must be held in camera to protect victim dignity and prevent traumatic public exposure.

Courtroom Practice & Strategic Litigation Guidance:

In POCSO, rape, or sensitive matrimonial cases, invoke Section 366(2) immediately to ensure proceedings are held strictly in camera and warn media representatives against violating Section 366(3) publication bans.