Bharatiya Nagarik Suraksha Sanhita, 2023
Section 402
Special reasons to be recorded in certain cases
Where in any case the Court could have dealt with,—
(a) an accused person under section 401 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or
(b) a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015
(2 of 2016) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
Why this exists
The law wants courts to actively consider lenient, reformative options for eligible offenders -- not just default to punishment out of habit. By requiring written reasons whenever a court skips probation or juvenile-friendly treatment, this section forces judges to genuinely engage with the question and creates a paper trail that a higher court can review. This mirrors the equivalent requirement that existed under section 361 of the CrPC, 1973.
Common misconceptions
- Myth: This section forces judges to always grant probation.
Fact: It does not force leniency -- it only requires the judge to explain, in writing, why leniency was not chosen when it was legally available.