Bharathiya Nagarik Suraksha Sanhita 2023- A Critique

New Enactment unnecessary – Amendment would have served the purpose

The Code was enacted in 1973, replacing the Code of Criminal Procedure 1898 i.e., more than 25 years after independence. So, it cannot be termed as a colonial legacy. The Sanhita is virtually a reenactment of the Code with some minor changes. These changes could have been conveniently effected by amending the Code itself. The whole exercise of having a new enactment was wholly unnecessary. It is relevant to note that while the Code was drafted after taking the views of expert committee with extensive deliberations and considerations, the Sanhita is drafted in a hurry making some changes without required deliberations and considerations. Even for Lawyers, Judges and Police Officials, it will take a couple of years to become familiar with the new sections which compel them to continuously refer to and rely upon table of old and new sections. Ultimately the beneficiary of new enactment appears to be only the law book publishers and sellers. The Sanhita does not protect the citizens but confuses them.

FIRST INFORMATION REPORT

Section 154 of the Code provides for registration of the first information report (FIR) by the station house officer of the police station on receipt of information of cognizable offences. Section 173 of the Sanhita corresponds to Section 154 of the Code. The Code provides that when information of any cognizable offence is received by the SHO, he must immediately register the FIR. There was conflict of opinion among various High Courts and also some decisions of the Supreme Court as to whether the police have any right to hold preliminary enquiry before registering such FIR. This conflict was resolved by the constitution bench of the Supreme Court in the case of Lalitha Kumari. The constitution bench held that the police have no right to postpone registration of the FIR by holding preliminary enquiry and they are bound to register the FIR immediately on receipt of the information. However, the Supreme Court permitted such preliminary enquiry only in very few categories of cases such as cases under the Prevention of Corruption Act, matrimonial matters etc., The provisions of the Sanhita have now the effect of overruling the judgment of the Supreme Court by providing that in any case where the offence alleged is punishable with imprisonment of more than 3 years and less than 7 years, police have the absolute discretion to hold preliminary enquiry on condition that such preliminary enquiry may be conducted only with the prior permission of an officer of the rank of DSP. It is further provided that the SHO is not bound to register the FIR if he does not find a prima-facie case after such preliminary enquiry. The provision also mandates that such preliminary enquiry has to be concluded within 14 days. One fails to understand the rationale on the basis of which power to hold preliminary enquiry is excluded in respect of cognizable offences punishable with imprisonment for less than 3 years.

It is submitted that the present provision in the Sanhita vesting discretion in the police officer to hold preliminary enquiry or not is undesirable and unwarranted. Such discretion gives scope for misuse by the police, also leading to giving scope for corruption. Rival parties will approach the police officer for favourable decision in their favour on the result of preliminary enquiry.

In case the SHO declines to register the FIR, the complainant can send the complaint to SP by registered post who has to investigate or get it investigated. Similar provision was there under the Code also. However, the Sanhita now provides that in case the complainant does not get relief at the hands of the SP, he has to apply to the Magistrate with affidavit who can then direct investigation as provided under Section 175(3). This is in a way a new provision which enables the informant to approach the Magistrate for a direction for investigation. Under the Code there was no such provision and the remedy under the Code was only to file a private complaint under Section 200 of the Code in which, of course, the Magistrate had a right to order investigation under 156(3) of the Code. The net result is that now if a private complaint is filed, under section 223 of Sanhita, there is no power vested with the magistrate to direct an investigation by the police, as in the Sanhita there is no provision similar to section 156(3) of the Code.

Section 173 of the Sanhita provides for furnishing information regarding cognizable offence by electronic communication. On first blush this appears to be a welcome provision beneficial to the informant. However, in practice this is likely to cause unwarranted and mischievous consequences. Clause 173(1) (b) provides that such electronic communication shall be taken on record by the SHO only on the informant signing the same within 3 days. If the informant does not approach the police within 3 days, no further action is contemplated. It is reasonable to apprehend that this provision may give scope for flooding the police stations with baseless and frivolous complaints forwarded electronically by mischievous elements, disrupting the normal functioning of the police. Instances of hoax telephone calls or messages, scaring the people of bomb explosion are not uncommon. The present provision enabling electronic communication by irresponsible people will cause more harm than good. Afterall the informant could give the information at the nearest police station, irrespective of the area where the offence has taken place. It is settled law that informant need not give the information only to the police within whose jurisdiction offence has been committed and such information could be given to the officer in charge of any police station. This position is now clarified in section 173 (1) by inserting the clause “irrespective of area where the offence is committed”. Therefore, the informant must give the information orally or in writing in a responsible manner with his signature. In the circumstance, provision enabling electronic communication is neither desirable nor warranted and the same will lead to undesirable consequences as explained above.

POLICE REMAND

Section 167 of the Code corresponds to of the 187 of the Sanhita regarding remand of the accused to custody. Though under both the enactments total period of police custody cannot exceed fifteen (15) days, under the Code such police custody could be only during first 15 days after arrest. The provision in Sanhita enables the Magistrate to permit the police custody for intermittent period extending up to 60 or 90 days, with the limitation that the same cannot exceed 15 days on the whole. This is a retrograde step enlarging the power of police remand anytime during the period of investigation (60 days or 90 days), provided total of such period does not exceed 15 days on the whole. The net result is, while under the Code the possibility of the accused being sent to police custody expired on completion of 15 days from the date of arrest, now under the Sanhitha such possibility extends up to the whole period of investigation (60 days or 90 days and in some cases even 180 days). This could lead to harassment by the investigating officer during investigation. The provision thus unnecessarily extends the power of the police and curtails the right of the accused.

FURTHER INVESTIGATION

Section 173 of the Code corresponds to Section 193 of the Sanhita, both dealing with the final report after the investigation. In substance, the provisions are similar. Section 193(9) of the Sanhita provides for further investigation by the Police after the filing of the charge sheet corresponding to Section 173(8) of the Code.

This provision enabling further investigation even after filing charge sheet was originally inserted in the Code to enable investigating agency to submit any clinching material which came to light subsequently in the interest of justice in exceptional circumstances. However, we now find that this is one of the most misused provisions by the investigating officers. In fact, generally no charge sheet is filed without a clause that further investigation will be conducted and supplementary chargesheets will be filed. And in many cases, such further investigation is continued not only months together but also years together and more than even two or three supplemental chargesheets are filed involving more persons as accused and even replacing the accused already charged in the original charge sheet. In some cases, the provision is misused to gather material to help the accused to get an order of acquittal. (In the Jayalalitha's Case such further investigation was held at the instance of the Government to help the accused and the Karnataka High Court intervened and quashed such further investigation as malafide act).

However, notwithstanding such routine misuse of the provision, Sanhita also has reenacted such provision even without clarifying that such further investigation could be done only in exceptional cases and not as a matter of course in every case.

While the Code conferred unrestricted power to conduct any further investigation for any length of time even while the trial Court is seized of the matter and trail is in progress, the Sanhita has added a proviso which mandates that any such further investigation, when the trial is in progress could be only after obtaining the permission of trial court. This is a welcome step, though it does not go far enough. It would have been better if the proviso mandated permission of the Court for any further investigation after the charge sheet is filed and Court has taken cognizance, instead of confining the same only to period during trial. Trial commences only on framing of charge and recording of the plea of the accused. Thus, as on today, under the Sanhita, no permission of the trial Court is necessary for further investigation even after the trial court has taken cognizance till charges are framed. This could have been avoided if permission of the Court was mandated for any investigation after the Court has taken cognizance.

PROVISIONS REGARDING PRIVATE COMPLAINTS UNWORKABLE

Section 223 of the Bharathiya Nagarik Suraksha Sanhita 2023 corresponds to Section 200 of the Criminal Procedure Code 1973. The said provision deals with the procedure to be followed when a private complaint is filed before a Magistrate. While Section 200 of the Code contains only one section without any subsections, Section 223 of the Sanhita consists of two clauses (1) & (2).

The present subsection (1) of Section 223 of the Sanhita is almost verbatim identical to S.200 of the Code with addition of a proviso which reads as follows:

“Provided that no cognizance of an offence shall be taken by Magistrate without giving the accused an opportunity of being heard”.

The scheme of the Code as can be seen from S.200 to 204 does not contemplate presence of the accused and hence the accused has no role to play at all till the stage of S.204 which provides that if the Magistrate is of the opinion that there is sufficient ground to proceed, then only he issues process for the attendance of the accused. (This could be either summons or warrant). It is only thereafter the accused appears before the court and takes part in further proceedings as provided in the Code. It is settled law that an accused person has no right to insist on his presence and have any say in the matter, even if he voluntarily appears and seeks to participate in proceedings before reaching the stage of S.204 when process is issued.

Same is the position even under the scheme of Sanhita embodied in S.223 to 227 (Corresponding to S.200 to 204 of the Code). Under the Sanhita also as can be seen from S.227 for the first time provision for issue of process to the accused is contemplated after the Magistrate forms the opinion that there is sufficient ground to proceed.

Thus, when both the Code as well as the Sanhita do not contemplate or permit presence of the accused till he is summoned by the Magistrate. (This is under S.204 of the Code and S.227 of the Sanhita).

However, the provisions of the Sanhita, make important departure from the above settled position by inserting the proviso quoted above, which mandates that the Magistrate cannot take cognizance of an offence “without giving the accused an opportunity of being heard”.

Necessarily the accused has to be present at that stage because it is impossible for the Magistrate to afford such opportunity without his presence. Thus, the procedure under the Sanhita imposes an obligation on the Magistrate to do something impossible i.e., to say before taking cognizance he has to give opportunity to the accused who is not before the court at that stage. There is no provision enabling the Magistrate to summon the accused prior to S.227 stage.

Even if it is assumed that the provision for affording opportunity of hearing empowers the Magistrate to summon him for that purpose, it means that the Magistrate even before forming an opinion contemplated by S.227 has to issue summons to the accused.

The net result is according to the procedure in the Sanhita when the Magistrate takes cognizance of the complaint, he has to secure the presence of the accused by summoning or otherwise even before taking cognizance for affording the accused an opportunity of being heard. This procedure on the face of it looks absurd. How can the accused be given an opportunity even before the complainant and his witnesses are examined on oath, which can be done only after taking cognizance?

According to the procedure contemplated in the Sanhita, the accused will be present at the time of examination of the complainant and his witnesses, as this follows taking cognizance. Can the accused at that stage have an opportunity to cross examine them?

If as explained above, upon filing of complaint, immediately the Magistrate is required to issue summons to all the accused to secure their presence, same will result in chaos. It is opposed to all cannons of justice to provide for presence of the accused, even before the Magistrate has taken cognizance of the offence and the statement of the complainant and his witnesses are recorded.

Hence aforesaid provision providing for giving the accused an opportunity of being heard even before taking cognizance is most unreasonable and totally unworkable. This provision appears to have been inserted even without elementary consideration of its futility and disastrous consequences.

SUGGESTION

The object behind insertion of the aforesaid proviso providing for giving the accused an opportunity of being heard appears to be based on principles of natural justice. The idea appears to be to prevent abuse of law by the complainant and avoid unnecessary harassment of the accused in frivolous or vexatious complaints. It is true that an accused in private complaint should not be subjected to harassment by compelling him to face protracted proceedings till the case ends in discharge/acquittal/conviction. Therefore, it appears reasonable to afford an opportunity to the accused to have his say before the commencement of regular enquiry or trial before the Magistrate. However as explained above giving of such an opportunity even before taking cognizance is absurd and impracticable as explained above.

The question is at what initial stage affording of such an opportunity can be just, reasonable and practicable. In the opinion of the author, such an opportunity should be given before the Magistrate forms an opinion that there is sufficient ground for proceeding as contemplated by section 227 of Sanhita. It is advisable to amend section 227 so as to authorize the Magistrate to issue summons to the accused, to secure his presence and afford him an opportunity of being heard. Formation of such opinion to proceed further or not should be after taking into consideration entire material including the response of the accused. This suggestion will satisfy the object of proviso to section 223 which will now be shifted to section 227 with necessary modification.

Further in a case where the Magistrate directs an investigation or enquiry under section 225 of Sanhita (corresponding to section 202 of the Code), the need for affording an opportunity to the accused even at initial stage can be achieved by specifically providing that in the enquiry or investigation under section 225, the accused should be given an opportunity of being heard. In such an event, affording an opportunity under section 227 could be dispensed with.

SPECIAL PROTECTION TO PUBLIC SERVANTS

Section 223 (2) of the Sanhita provides that in the case of a complaint against public servant alleging offence committed in the course of discharge of his official functions / duties the Magistrate is debarred from taking cognizance unless the following two conditions are satisfied:

• The public servant is given an opportunity to have his say in the matter.
• A report from an officer superior to such public servant containing facts and circumstances of the incident is received by the Magistrate.

This provision affording this extra protection to the public servants is not only undesirable and unwarranted but it is also impracticable. The provision contemplates this exercise even before taking cognizance and (and not issue of process) so it is unworkable. Further even expecting a report from a superior officer at that stage is also not practicable apart from procedural delay. Who that superior is also not clear. Further it is not proper for the Magistrate to expect such a report from the superior even before cognizance is taken. In effect, an impracticable and unworkable practice is made with the sole object of giving special protection to the public servant. In fact the whole procedure contemplated will make it impossible for anyone to file private complaint against a public servant.

The other result is that a public servant has to be always at the mercy of the superior, whose report will decide the fate of the private complaint against him.

Similar unwanted protection is also provided to a public servant in section 175(3) and (4) of the Sanhita

Conclusion

Large number of decision rendered by the Supreme Court interpreting and explaining the relevant provisions of the Code and making several recommendations to improve the system are totally ignored while enacting the Sanhita. For instance, in section 227(b) corresponding to section 204 of the Code, the Magistrate is empowered to issue warrant at the first instance itself in a warrant case, though the Supreme Court in series of rulings has held that in such cases without exception summons alone should be issued at the first instances. Still retaining the provision enabling the Magistrate to issue warrant is a retrograde step.

Enactment of the Sanhita in a hurry without due application of mind is an exercise in futility. Whatever changes have been made could have been done by amending the Code by deletion or addition. Most of the changes effected were unnecessary and impracticable as explained above and the same has been done, increasing the power of the police to the detriment of the interest of the citizens.

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