Section 238 BNSS: Effect of errors
Bharatiya Nagarik Suraksha Sanhita, 2023
Section 238 BNSS at a Glance
Section 238 BNSS deals with effect of errors. It replaced Section 215 CrPC on 1 July 2024.
Section 238 BNSS Bare Act Text
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) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Source: Section 238, Bharatiya Nagarik Suraksha Sanhita, 2023
Section 238 BNSS in Simple Words
Section 238 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with an error in stating the offence or the particulars required to be stated in the charge, and an omission to state them. Such an error or omission shall not be regarded at any stage of the case as material, unless the accused was in fact misled by it and it has occasioned a failure of justice.
When Section 238 BNSS Applies
- Section 238 BNSS applies to an error in stating either the offence or the particulars required to be stated in the charge, and to an omission to state the offence or those particulars.
- Such an error or omission shall not be regarded at any stage of the case as material.
- The exception is where the accused was in fact misled by the error or omission, and it has occasioned a failure of justice.
Example of Section 238 BNSS
When Section 238 BNSS Does Not Apply
- Section 238 BNSS speaks of an error or omission in stating the offence or its particulars in the charge. It does not deal with altering or adding to a charge, which Section 239 BNSS covers.
- Section 238 BNSS speaks of an error or omission in the charge. It does not deal with separate charges for distinct offences, which Section 241 BNSS covers.
Section 238 BNSS in the CrPC (Previous Law)
Section 238 BNSS replaces Section 215 CrPC from the old criminal code.
Section 238 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has the same heading as Section 215 of the Code of Criminal Procedure, 1973. The text of Section 238 BNSS is the same as Section 215 CrPC except in the illustrations. The first illustration to Section 238 BNSS refers to section 180 of the Bharatiya Nyaya Sanhita, 2023 where the first illustration to Section 215 CrPC referred to section 242 of the Indian Penal Code. In the illustrations about the murder of Khoda Baksh and Haidar Baksh, Section 238 BNSS gives the dates 20th January, 2023 and 21st January, 2023 where Section 215 CrPC gave the dates 20th January, 1882 and 21st January, 1882.
View CrPC Section 215 →FAQs on Section 238 BNSS
When is an error in a charge regarded as material under Section 238 BNSS?▼
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.
Does Section 238 BNSS cover an omission as well as an error?▼
Yes. It speaks of an error in stating the offence or the particulars, and of an omission to state the offence or those particulars.
What do the illustrations to Section 238 BNSS say about the Court inferring from the facts?▼
The illustrations say that the Court may infer from the facts whether the accused was misled. Where the accused defends against the charge, calls witnesses and gives an account of the transaction, the Court may infer that the omission is not material. Where the accused had no means of knowing which of many transactions the charge referred to and offered no defence, the Court may infer that the omission was a material error.
What changed from Section 215 CrPC to Section 238 BNSS from 1 July 2024?▼
Section 238 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has the same heading as Section 215 of the Code of Criminal Procedure, 1973. The text of Section 238 BNSS is the same as Section 215 CrPC except in the illustrations. The first illustration to Section 238 BNSS refers to section 180 of the Bharatiya Nyaya Sanhita, 2023 where the first illustration to Section 215 CrPC referred to section 242 of the Indian Penal Code. In the illustrations about the murder of Khoda Baksh and Haidar Baksh, Section 238 BNSS gives the dates 20th January, 2023 and 21st January, 2023 where Section 215 CrPC gave the dates 20th January, 1882 and 21st January, 1882.
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Sources: Bare Act Text, Bharatiya Nagarik Suraksha Sanhita, 2023 · Last updated: 20 Oct 2026 ·