Section 439 BNSS: Power to Order Inquiry
Section 439 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives the High Court and the Sessions Judge a revisional power to direct a further inquiry in specified situations, including where a complaint has been dismissed or an accused person has been discharged. The provision operates as part of the BNSS revision framework and is intended to permit a superior criminal court to require further judicial scrutiny where the record calls for it.
- The power may be exercised by the High Court or the Sessions Judge.
- It may be exercised while examining a record under Section 438 BNSS or otherwise.
- The further inquiry may concern a complaint dismissed under Section 226 or Section 227(4), or a case in which an accused has been discharged.
- Before an inquiry is ordered into the case of a discharged person, that person must be given an opportunity to show cause.
Text of Section 439 BNSS
439. Power to order inquiry. 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.
Meaning and purpose of Section 439 BNSS
Section 439 is a revisional supervisory provision. It does not itself conduct the further inquiry. Instead, the High Court or Sessions Judge may direct the Chief Judicial Magistrate to conduct the inquiry personally or through a subordinate Magistrate. The Chief Judicial Magistrate may also make the inquiry himself or direct a subordinate Magistrate to do so.
The section is designed for situations in which the earlier termination of a complaint or the discharge of an accused may require reconsideration through a further inquiry. It therefore complements the revisional power to call for and examine records under Section 438 BNSS.
When can further inquiry be ordered?
Section 439 expressly covers the following situations:
- A complaint has been dismissed under Section 226 BNSS.
- A complaint falls within the dismissal contemplated by Section 227(4) BNSS.
- An accused person has been discharged.
- The High Court or Sessions Judge, after examining the relevant record under Section 438 or otherwise, considers that a further inquiry should be directed.
Related provisions referred to in Section 439
Section 438 BNSS - Calling for records to exercise powers of revision
Section 438 forms part of the BNSS revisional scheme. It enables the competent superior criminal court to call for and examine the record of a proceeding before a subordinate criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of findings, sentences or orders and the regularity of proceedings. Section 439 may operate after such examination of the record.
Section 226 BNSS - Dismissal of complaint
Section 226 concerns dismissal of a complaint at the pre-process stage. Where the Magistrate finds no sufficient ground for proceeding after considering the material required by law, the complaint may be dismissed with reasons. Section 439 permits a superior revisional court to direct further inquiry into such a complaint where the statutory conditions are met.
Section 227 BNSS - Issue of process
Section 227 deals with issuance of process after a Magistrate finds sufficient ground to proceed. Section 439 specifically refers to sub-section (4) of Section 227, so the exact procedural setting of that sub-section should be considered together with the record of the case before seeking or opposing a direction for further inquiry.
Safeguard for a person who has been discharged
The proviso to Section 439 creates an express procedural safeguard. If the proposed further inquiry concerns a person who has already been discharged, the court cannot make the direction without first giving that person an opportunity to show cause why the direction should not be made.
This requirement is important because an order for further inquiry can reopen judicial scrutiny after discharge. The opportunity to show cause ensures that the discharged person is heard before the revisional court decides whether such further inquiry should be ordered.
Who conducts the further inquiry?
| Authority | Role under Section 439 |
|---|---|
| High Court | May direct a further inquiry after examining the record under Section 438 or otherwise. |
| Sessions Judge | Has the same power under Section 439 to direct further inquiry in the situations specified by the section. |
| Chief Judicial Magistrate | May conduct the further inquiry personally or direct a subordinate Magistrate to conduct it. |
| Subordinate Magistrate | May conduct the further inquiry when directed through the Chief Judicial Magistrate. |
Section 439 BNSS and Section 398 CrPC
Section 439 BNSS substantially corresponds to Section 398 of the Code of Criminal Procedure, 1973, which also dealt with the power of the High Court or Sessions Judge to order further inquiry after dismissal of a complaint or discharge of an accused. This comparison may assist in understanding the continuity of the revisional remedy under the new criminal procedure law.
Practical points for revision proceedings
- The record of the complaint, dismissal order or discharge order should be examined in the context of the revisional provisions.
- A request for further inquiry should identify why the existing inquiry or consideration was insufficient or legally defective.
- The power is to order a further inquiry; it should not be treated as an automatic direction to summon, charge or convict the accused.
- Where a discharged person is concerned, compliance with the statutory show-cause safeguard is mandatory before a direction is made.
- The connected provisions, including Sections 438 and 440 BNSS, should be read together with Section 439.
Frequently asked questions
What is the main power under Section 439 BNSS?
It empowers the High Court or Sessions Judge to direct a further inquiry into specified complaints or cases after examining the relevant record.
Can further inquiry be ordered after discharge?
Yes, but the discharged person must first be given an opportunity to show cause why such a direction should not be made.
Does Section 439 itself authorize conviction or framing of charge?
No. Section 439 concerns a direction for further inquiry. Any subsequent procedural step must follow the applicable provisions of the BNSS and the facts of the case.
What was the corresponding provision under the CrPC?
The corresponding provision was Section 398 of the Code of Criminal Procedure, 1973.
Related BNSS provisions
For the surrounding revision provisions, see Section 436 - Reference to High Court, Section 437 - Disposal of case according to decision of High Court, Section 438 - Calling for records to exercise powers of revision, and Section 440 - Sessions Judge's powers of revision.
This page is a general legal-information resource. The applicability of BNSS or the earlier CrPC to a particular proceeding may depend on the commencement and savings provisions and the procedural stage of that matter.