Law and You >Procedural Laws > BNSS > Conviction under Minor Offence (S. 245 BNSS)
The law relating to criminal charges is designed not only to inform the accused of the allegations against them but also to ensure that criminal proceedings result in substantive justice rather than being defeated by technical defects in the framing of charges. In practice, the evidence adduced during a trial may establish a lesser offence included within the offence charged or may prove only an attempt to commit the offence instead of its completed commission. If courts were confined strictly to the precise charge originally framed, an accused who is clearly guilty of a lesser or attempted offence could escape criminal liability merely because the prosecution failed to prove every element of the principal charge. Section 245 of the Bharatiya Nagarik Suraksha Sanhita, 2023, addresses this situation by empowering courts to convict an accused of a minor offence included within the offence charged or of an attempt to commit the offence, even where no separate charge for such offence or attempt has been framed. At the same time, the provision preserves important procedural safeguards by prohibiting such a conviction where the law requires special conditions, such as a prior sanction or a complaint by a specified person, for initiating proceedings in respect of the minor offence and those conditions have not been fulfilled.
Conviction for Minor Offence (S. 245(1) and (2) BNSS):
When Offence Proved Included in Offence Charged (S. 245 BNSS):
According Section 245(1) BNSS, when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
According Section 245(2) BNSS, when person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
Illustrations:
(a) A is charged, under sub-section (3) of section 316 of the Bharatiya Nyaya Sanhita, 2023, with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under sub-section (2) of section 316 of that Sanhita in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said sub-section (2) of section 316.
(b) A is charged, under sub-section (2) of section 117 of the Bharatiya Nyaya Sanhita, 2023, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under sub-section (2) of section 122 of that Sanhita.
A minor offence is one, whose ingredients are completely included within the major offence; and which carries a lesser punishment or is less serious.
The accused is charged with a major offence, which requires proof of several legal ingredients (called “particulars”). During the trial, the prosecution proves only some of those ingredients. Those proved ingredients, by themselves, amount to a complete but lesser (minor) offence. In such a case, the court may convict the accused of the minor offence, even though no separate charge for that minor offence was framed. The law prevents an accused from being acquitted merely because the prosecution failed to prove every ingredient of the major offence.
Examples:
- A is charged with robbery (major offence) for snatching B’s mobile phone by allegedly threatening him with a knife. During trial it is proved that A dishonestly took B’s mobile phone. However, the prosecution fails to prove that A threatened B with a knife or used violence. The offence of robbery is not proved because one essential ingredient (violence or threat of violence) is missing. However, theft (minor offence) is completely proved. Therefore, the court may convict A of theft, even though A was charged only with robbery.
- A is charged with voluntarily causing grievous hurt (major offence) after assaulting B. Medical evidence proves that B suffered injuries. The injuries do not legally qualify as “grievous.” The prosecution fails to prove grievous hurt. However, the offence of voluntarily causing hurt (minor offence) is fully proved. The court may convict A of hurt.
- A is charged with entering B’s house by breaking open the door in order to commit theft (major offence). It is proved that A unlawfully entered the house. Theft is not proved. The major offence fails. However, house-trespass (minor offence) is completely proved. The court may convict A of house-trespass.
- A shoots at B. The prosecution charges A with attempt to murder (major offence). It is proved that A injured B. The prosecution fails to establish the intention or knowledge necessary for attempt to murder. The ingredients of attempt to murder are not fully proved. However, the offence of voluntarily causing hurt (minor offence) is established. The court may convict A of hurt.
- Five persons are alleged to have committed robbery. The prosecution charges A with dacoity (major offence). It is proved that A committed robbery. It is not proved that five or more persons participated, which is an essential ingredient of dacoity. The charge of dacoity fails. However, robbery (minor offence) is completely proved. The court may convict A of robbery.
- A is charged with extorting money by threatening to kill B (major offence). It is proved that A dishonestly induced B to deliver money. The prosecution fails to prove the specific threat of death. The aggravated form of extortion is not proved. However, the offence of extortion (minor offence) is proved. The court may convict A of extortion.
The object of this provision is to prevent the failure of justice merely because the prosecution fails to prove every element of the major offence; to avoid unnecessary retrials; and to enable the court to convict for the offence that the evidence actually establishes.
Difference between Section 245(1) and Section 244(2) BNSS:
| Section 245(1) | Section 244(2) |
| Under this provision the accused is charged with a major offence, but only the ingredients of a minor offence are proved. | This provision is applicable when there is uncertainty about which offence the facts constitute. |
| There is no doubt about the offence charged; the prosecution simply fails to prove all its ingredients. | At the time of framing the charge, it is doubtful which offence the evidence will establish. |
| There is a conviction for a minor (lesser included) offence contained within the major offence charged. | There is a conviction for a different offence that could have been charged under Section 244(1). |
| The minor offence is included within the major offence. | The offences are alternative legal possibilities arising from the same facts. |
| The evidence proves only part of the major offence, but that part completely establishes the minor offence. | The evidence establishes a different offence than the one charged. |
Conviction for Attempt to Commit Offence (S. 245(3) BNSS):
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
A person is charged with the completed offence. During the trial, the prosecution fails to prove that the offence was actually completed. However, the evidence clearly proves that the accused attempted to commit that offence. In such a case, the court may convict the accused of the attempt, even though there was no separate charge of attempt. The law recognizes that an attempt is a lesser form of the completed offence. Therefore, a separate charge of attempt is not necessary.
Examples:
- A shoots at B intending to kill him. The charge is murder because the prosecution initially believed B had died. During the trial, it is proved that B survived and A intended to kill B. The offence of murder is not proved because death did not occur. However, attempt to murder is fully proved. The court may convict A of attempt to murder even though no separate charge was framed.
- A breaks open a shop and tries to remove jewellery. Before A can take anything, the police arrest him. A was charged with theft. The prosecution cannot prove completed theft because no property was taken. However, the evidence proves an attempt to commit theft. The court may convict A for the attempt.
- A threatens B with a knife and demands B’s wallet. Before B hands over the wallet, passers-by intervene and A is arrested. A is charged with robbery. Since no property was taken, robbery is not completed. However, the evidence establishes an attempt to commit robbery. The court may convict A of the attempt.
- A breaks the lock of a house intending to steal valuables. Before entering the house, A is apprehended. A is charged with house-breaking to commit theft. The intended offence is not completed. The court may convict A of attempting to commit the offence.
The provision prevents an accused from escaping criminal liability merely because the prosecution cannot prove that the offence was completed. It ensures that where the evidence establishes criminal intention, and acts going beyond mere preparation, the accused can still be punished for the attempt.
Difference between Sections 245(2) and 245(3) BNSS:
| Sections 245(2) | Sections 245(3) |
| Under this provision there is conviction for a minor (lesser) offence. | Under this provision there is conviction for an attempt to commit the offence charged. |
| The facts proved reduce the major offence to a minor offence. | The completed offence is not proved, but the evidence proves an attempt to commit it. |
| The minor offence is a less serious form of the charged offence. | The attempt is an incomplete commission of the charged offence. |
| The facts establish all the ingredients of the minor offence. | The facts establish an attempt but not the completed offence. |
According Section 245(4) BNSS, nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Certain offences cannot be prosecuted like ordinary offences. The legislature has imposed safeguards to prevent frivolous or unauthorized prosecutions. Section 245 cannot be used to bypass those safeguards.
Although the court is generally permitted to convict an accused of a minor offence or an attempt even without a separate charge, it cannot do so if the law requires certain conditions to be fulfilled before proceedings for that minor offence can legally begin and those conditions have not been met. In other words, procedural safeguards applicable to the minor offence must still be respected.
The powers given under Section 245(1) BNSS are not absolute. The court cannot automatically convict for every lesser offence merely because it is proved. Some offences require special legal conditions before a court can take cognizance, such as a complaint by a specified person, previous sanction from the Government, or authorization by a competent authority. If those mandatory conditions are absent, the court cannot convict for that minor offence.
Examples:
- A public servant is charged with a serious offence. During trial, the evidence proves only a minor offence. However, prosecution for that minor offence legally requires previous sanction of the Government. If no sanction has been obtained, the court cannot convict for that minor offence, even though the evidence proves it.
- The accused is charged with a major offence. The evidence ultimately proves only a minor offence. However, that minor offence can be prosecuted only upon a written complaint by the aggrieved person, or a complaint by a specified public authority. If no such complaint exists, the court cannot convict for the minor offence.
- Assume an accused is charged with another offence, but the evidence only establishes defamation. If, under the applicable law, the court could take cognizance of defamation only on a complaint by the person defamed, and no such complaint has been filed, the court cannot use Section 245 to convict the accused of defamation.
The object is to ensure that procedural safeguards created by substantive law are not defeated; mandatory requirements such as sanction or complaint remain effective; Section 245 is used only to avoid technical failures of justice, not to bypass statutory conditions.
Section 245(4) limits powers by saying Ss. 245(1) and 245(3) BNSS cannot override statutory preconditions for prosecuting the minor offence.
Conclusion:
Section 245 of the Bharatiya Nagarik Suraksha Sanhita, 2023, embodies the principle that criminal trials should be decided on the basis of the offence established by the evidence rather than being constrained by technical imperfections in the framing of charges. By permitting conviction for a minor offence included within the offence charged or for an attempt to commit the charged offence, the provision ensures that an accused does not escape criminal liability merely because the prosecution fails to prove every ingredient of the principal offence. At the same time, it preserves the accused’s right to a fair trial by limiting such convictions to offences that are legally and factually connected to the original charge.
Equally significant is the safeguard contained in sub-section (4), which makes it clear that the procedural flexibility conferred by the section cannot override statutory requirements governing the initiation of criminal proceedings. Where the law mandates a prior sanction, a complaint by a specified person, or any other condition precedent for prosecuting a minor offence, those requirements must be satisfied before a conviction can be recorded. This ensures that the provision operates harmoniously with other substantive and procedural safeguards.