Section 439 BNSS: Power to order inquiry (Formerly Section 398 CrPC)

Section 439 of Bharatiya Nagarik Suraksha Sanhita, 2023: Power to order inquiry

Official Bare Act Text

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

On examining any record under section 438 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 226 or sub-section (4) of section 227, or into the case of any person accused of an offence who has been discharged:

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

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 439

Section 439 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 398 of the CrPC, 1973) empowers the High Court or Sessions Judge to direct the Chief Judicial Magistrate or a subordinate Magistrate to make further inquiry into any complaint dismissed or person discharged.

Trigger for Further Inquiry: Exercised upon examining any record under Section 438 or otherwise, in respect of any complaint dismissed under Section 226 or 227, or the case of any person accused of an offence who has been discharged.
Direction to Subordinate Magistrate: The High Court or Sessions Judge may direct the CJM or subordinate Magistrate to make further inquiry.
Mandatory Show-Cause Notice Before Re-opening Discharge: No Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless they have had an opportunity of showing cause why such direction should not be made.

Key Landmark Precedents:

Amur Chand v. State of Haryana, (1971) 3 SCC 412: The Supreme Court held that the power under Section 398 CrPC (Section 439 BNSS) to order further inquiry into a discharge must be exercised cautiously; the order is void if passed without giving the discharged accused a hearing.
Manharibhai Muljibhai Patel v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517: Held that an accused who was discharged or whose complaint was dismissed is entitled to be heard before further inquiry can be ordered.

Courtroom Practice & Strategic Litigation Guidance:

If a complainant obtains an ex-parte order of further inquiry from the Sessions Court setting aside your client's discharge without notice, challenge the order in the High Court under Section 442 as a patent violation of Section 439 Proviso.