Section 402 BNSS: Special reasons to be recorded in certain cases (Formerly Section 361 CrPC)

Section 402 of Bharatiya Nagarik Suraksha Sanhita, 2023: Special reasons to be recorded in certain cases

Official Bare Act Text

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

Where in any case the Court could have dealt with,—

(a) an accused person under section 401 or under the provisions of the Probation of Offenders Act, 1958; or

(b) a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.

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 402

Section 402 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 361 of the CrPC, 1973) mandates that the Court must record special reasons in its judgment where it could have dealt with an accused under probation or youthful offender provisions but chose not to do so.

Mandatory Consideration of Probation: Where the Court could have dealt with an accused under Section 401 or the Probation of Offenders Act, 1958, or under laws for the treatment, training, or rehabilitation of youthful offenders.
Special Reasons Requirement: If the Court does not deal with the accused under such benevolent provisions, it shall record in its judgment the special reasons for not having done so.
Judicial Sentencing Discipline: Transforms probation from an executive concession into a primary statutory sentencing consideration.

Key Landmark Precedents:

Bachan Singh v. State of Punjab, (1980) 2 SCC 684: The Supreme Court highlighted that Section 361 CrPC (Section 402 BNSS) reflects the modern reformative penology mandate; failing to record special reasons when denying probation vitiates the sentence.
Santa Singh v. State of Punjab, (1976) 4 SCC 190: Held that procedural mandates governing individualization of sentencing require trial judges to record specific socio-economic and personal reasons.

Courtroom Practice & Strategic Litigation Guidance:

Whenever representing a young offender or first-time convict in offences not punishable with life imprisonment, emphasize Section 402; if the trial court imposes imprisonment without recording special reasons for denying probation, challenge the sentence in appeal.