Bharatiya Nagarik Suraksha Sanhita, 2023
Section 366 BNSS: Court to Be Open
Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the general rule that criminal courts are open to the public, while permitting exclusion in appropriate cases and requiring in-camera proceedings for specified sexual offences.
- Criminal courts are ordinarily open to the public, subject to available space.
- The Judge or Magistrate may exclude the public or a particular person from any inquiry or trial.
- Inquiry and trial of specified sexual offences must be conducted in camera.
- As far as practicable, an in-camera trial covered by sub-section (2) should be conducted by a woman Judge or Magistrate.
- Publication of in-camera proceedings is restricted unless prior permission of the Court is obtained.
Text of Section 366 - Court to be open
366. Court to be open. - (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.
Section 366(2)(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.
Section 366(3)(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.
Meaning and legal effect of Section 366 BNSS
Section 366 combines the principle of open justice with specific safeguards for privacy, dignity and fair trial. The normal rule is public access to criminal court proceedings. However, the Court retains power to restrict access where the circumstances of a particular inquiry or trial make that necessary.
- Open Court
- An open Court is a courtroom or place of criminal judicial proceedings to which members of the public may ordinarily have access, subject to the capacity of the premises and any lawful direction of the presiding Court.
- In-camera proceeding
- An in-camera inquiry or trial is conducted without general public access. Attendance is restricted in order to protect privacy, dignity, confidentiality or other interests recognized by law.
- Previous permission of the Court
- For proceedings covered by Section 366(2), printing or publication of matter relating to the proceeding is restricted unless the Court has granted permission in advance, subject to the statutory protection of party identities in rape cases.
Offences for which in-camera proceedings are mandatory
Section 366(2) expressly applies to rape and to specified offences under the Bharatiya Nyaya Sanhita, 2023 and the Protection of Children from Sexual Offences Act, 2012.
| Law | Sections referred to in Section 366(2) | Subject |
|---|---|---|
| Bharatiya Nyaya Sanhita, 2023 | Sections 64, 65, 66, 67, 68, 70 and 71 | Specified rape and sexual offences, including aggravated circumstances, certain offences involving authority or separation, gang rape and repeat offenders. |
| Protection of Children from Sexual Offences Act, 2012 | Sections 4, 6, 8 and 10 | Punishments relating to penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault. |
Can the Court exclude the public from an ordinary criminal trial?
Yes. Even where sub-section (2) does not make an in-camera proceeding mandatory, the proviso to Section 366(1) allows the presiding Judge or Magistrate to direct that the public generally, or a particular person, shall not have access to or remain in the courtroom or building used by the Court.
Publication restriction under Section 366(3)
Where proceedings are held in camera under Section 366(2), printing or publishing matter relating to those proceedings requires previous permission of the Court. In rape cases, the Court may lift the publication ban only subject to protection of the confidentiality of the name and address of the parties.
Section 366 should be read with any other applicable statutory restrictions concerning disclosure of the identity of victims, child protection, reporting of sexual offences and directions issued by the competent Court. The permission contemplated by Section 366(3) does not by itself override other independent legal prohibitions.
Official legal sources
For the authoritative text and current status of the legislation, refer to the India Code portal maintained by the Legislative Department, Ministry of Law and Justice, and the Ministry of Home Affairs commencement notification for the BNSS.
Related BNSS provisions
Section 366 appears immediately after provisions dealing with succession of Magistrates in partly recorded evidence and immediately before the provisions relating to accused persons of unsound mind. Use the related links in the sidebar to continue reading nearby sections of the BNSS.