Section 238 BNSS: Effect of Errors in a Criminal Charge

Section 238 of the Bharatiya Nagarik Suraksha Sanhita, 2023 explains when an error or omission in a criminal charge becomes legally material. The central test is whether the accused was actually misled and whether the defect caused a failure of justice.

Act: Bharatiya Nagarik Suraksha Sanhita, 2023 Act No. 46 of 2023 In force from: 1 July 2024 Last reviewed: 11 September 2026

In simple terms: a mistake in stating the offence or its particulars does not automatically invalidate the proceedings. The error becomes material only if it actually misleads the accused and results in a failure of justice.

Text of Section 238 BNSS

238. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Illustrations

A is charged under section 180 of the Bharatiya Nyaya Sanhita, 2023, with "having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
A is charged with cheating B, and the manner in which he cheated B is not set out in the charge or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case, a material error.
A is charged with the murder of Khoda Baksh on the 21st January, 2023. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 2023. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
A was charged with murdering Haidar Baksh on the 20th January, 2023, and Khoda Baksh, who tried to arrest him for that murder, on the 21st January, 2023. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.

Meaning of Section 238 BNSS

Section 238 prevents purely technical mistakes in a charge from automatically defeating a criminal proceeding. A court must look at the practical effect of the error or omission on the accused rather than treat every drafting defect as fatal.

Two conditions are central to the provision: first, the accused must have been in fact misled by the error or omission; second, the defect must have occasioned a failure of justice. The illustrations show that the court examines the surrounding facts, including whether the accused understood the transaction or accusation, was able to cross-examine witnesses, called defence evidence, or otherwise knew the case that had to be met.

When Is an Error in a Charge Material?

An error is not material merely because the wording of the charge is imperfect.
An omission is not automatically material merely because a required detail was left out.
The court considers whether the accused actually misunderstood the accusation because of the defect.
The court also considers whether that misunderstanding caused prejudice amounting to a failure of justice.
If the accused clearly understood the case and defended it on the merits, the defect may be treated as immaterial.

Illustrations Explained

Omission of a Legal Ingredient

Illustration (a) shows that even omission of a word connected with the legal ingredients of an offence does not automatically make the charge defective in a material sense. The court asks whether the omission actually misled the accused.

Failure to State the Manner of Cheating

Illustrations (b) and (c) demonstrate the importance of actual prejudice. If the accused understands the transaction, calls witnesses and presents a defence, the omission may be immaterial. If there were many possible transactions and the accused could not know which transaction formed the charge, the omission may be material.

Wrong Name or Date

Illustration (d) shows that an incorrect name or date can be immaterial where the accused nevertheless clearly knows the incident concerned. Illustration (e), by contrast, shows a material error where the accused is effectively prepared to defend one murder allegation but is tried for another.

Relationship with Other BNSS Provisions on Charges

Section 238 should be read with the surrounding provisions governing the framing and contents of charges:

Section 234 BNSS deals with the contents of a charge.
Section 235 BNSS deals with particulars as to time, place and person.
Section 236 BNSS deals with cases where the manner of committing the offence must also be stated.
Section 237 BNSS explains the legal sense in which words used in a charge are understood.
Section 239 BNSS empowers the court to alter or add to a charge.
Section 240 BNSS deals with recall of witnesses after alteration of a charge.

Corresponding Provision under the Code of Criminal Procedure, 1973

Section 238 BNSS corresponds to Section 215 of the Code of Criminal Procedure, 1973, which also deals with the effect of errors in a charge. For proceedings governed by the BNSS, Section 238 is the relevant provision.

Related Provision on Omission or Error in Charge

Section 510 BNSS separately deals with the effect of omission to frame a charge, absence of a charge, or an error in the charge. Section 238 operates at the stage of examining whether a particular error or omission in the charge is material because it misled the accused and caused a failure of justice.

BNSS Commencement

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed 1 July 2024 as the date on which the BNSS came into force, subject to the exception stated in the commencement notification concerning the relevant First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

This page is intended as a structured legal reference. For authoritative statutory text, amendments and notifications, consult the official Government of India resources linked in the sidebar.