BNSS – A Case Of Missed Opportunity

Registration of FIR/Complaint:

Section 154 (1) read with Section 156 (1) of the Cr.P.C. cast a positive obligation on the Police to register an FIR and investigate any cognisable offence. In Lalita Kumari v. Stateof U.P.,, the Supreme Court emphasised on registration of FIR once information about a cognisable offence is received by the Police. In the same judgment, the Supreme Court held that a preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. Subsequent judgments in State of Telangana v. Managipet  and CBI vs. T.H. Vijayalakshmi, LL 2021 SC 551 have clarified that even for the instances mentioned in Lalita Kumari, proceedings can be initiated against an accused without conducting a preliminary inquiry.

Yet, it is a matter of common knowledge that police acts selectively in lodging an FIR. Several times desperate attempts are made by the complainant to initiate an investigation, but no FIR is registered. This is exemplified by the recent protests in New Delhi by the wrestlers. The FIR against the Wrestling Federation of India’s Chief was registered only after the wrestlers had filed a petition before the Supreme Court of India. On the other hand, some complaints are taken up on priority, even though a prima facie offence may not be made out.

Unfortunately, BNSS codifies this anomaly. The new sub–clause (3) to Clause 173 (corresponding to Section 154 of CrPC) states that for offences which are punishable for 3 to 7 years of imprisonment, the police may conduct a preliminary enquiry to confirm the existence of a prima facie case before proceeding. Only where a prima facie case exists as per the police, it would proceed with investigation.

The proposed Clause vests unbridled power to an investigative officer and allows for enquiry entirely based on the subjective satisfaction of the police. A police officer can refuse or delay registration of the FIR on the pretext of forming a prima facie case. Even though the Clause says that preliminary enquiry has to be conducted within a period of 14 days, the time period does not appear to be mandatory. It is very much possible that the time period may be extended by the police for conducting the preliminary enquiry.

In the event of a refusal by police to register an FIR, BNSS provides a lengthy procedure to approach a Magistrate. Under Clause 173 (4) read with Clause 175 (3) of BNSS, a complainant shall have to approach the Superintendent of Police, if no action is taken under Clause 173 (1). Only if the Superintendent of Police fails to initiate investigation, an application can be preferred before a Magistrate. Even though in Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287, it was held that an application under Section 156 (3) of Cr.P.C. should be filed after recourse has been taken to sub-section (1) and (3) of Section 154 of Cr.P.C., as such Section 156 (3) does not require compliance with any prior procedural requirements before moving such an application.

Further, before a Magistrate can pass an order under Clause 175 of BNSS, he will have to consider the submission of police officer. On the contrary, Section 156 (3) of the Cr.P.C. allows Magistrate to order an investigation upon finding that the allegations made by the complainant disclose commission of a cognizable offence. There is no mandatory requirement to call for a police report.

The end result is that registration of an FIR for offences punishable for a period of 3 years to 7 years could result in significant delays. It goes without saying that on account of delay, in genuine cases, the alleged accused would get enough time to cover up the tracks, effectively making the investigation redundant.

Bail:

The Bill miserably falls short of the views expressed by the Supreme Court in Satender Kumar Antil vs. CBI, 2022 LiveLaw SC 577, that a Bail Act should be enacted to streamline the cases of bail.

Anticipatory Bail:

In so far as anticipatory bail is concerned, Proviso to Section 438(1), Sections 438(1A) and 438(1B) of CrPC have been removed in Clause 484 of BNSS.

The provisions such as giving “the Public Prosecutor a reasonable opportunity of being heard” while hearing the application or securing the physical presence of an accused seeking anticipatory bail have been removed. However, the Clause does not give any guidance on factors applicable for the grant of anticipatory bail resulting in absolute discretion at the hands of the Bench hearing such an application.

In view of the Constitution Bench judgment in SushilaAggarwal vs. State (NCT of Delhi), it would have been advisable to specify the power vested with the High Court/the Sessions Court on the duration of the anticipatory bail and whether a Court hearing the anticipatory bail application, on the basis of the nature of allegations and the stage of investigation when anticipatory bail is sought, could decide that the bail shall continue till the completion of the trial or would be applicable till the framing of the charges. It should also be clarified as to whether the anticipatory bail shall continue even if some other incriminating material is found against the accused leading to adding of a graver offence during the investigation.

Regular Bail:

Clauses 480, 482 and 485 of BNSS effectively mirror Sections 436, 437 and 439 of Cr.P.C. on the issue of bail for a person in custody. Clause 482 (1) starts with a clear direction that a person “may be released on bail” and provides that bail shall not granted if:

(a) there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life; or

(b) the offence is a cognizable offence and the person had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years.

Apart from the above two circumstances, there are no further guidelines for an application of Bail. The guidelines given by the Supreme Court in Satender Kumar Antil, with regard to compliance of Section 41-A Cr.P.C., and having a Standing Order for arrest of a person; thresholds to be met for issuance of a Non-bailable warrant, and the guiding factors while deciding a bail application, have been completely ignored in BNSS.

There has been no attempt to codify the law on bail on the lines of UK Bail Act, as suggested in para 99 of Satender Kumar Antil by the Supreme Court.

Clause 481 (1) of BNSS, dealing with “maximum period of which undertrial prisoner can be detained” and corresponding to Section 436 A clarifies that an undertrial accused of an offence punishable by life imprisonment is not entitled to benefit of release merely on the basis of period of incarnation. A new provision, i.e., Provisio to Clause 481 (1) allows release of a first time offender if he has undergone detention for a period of one-third of maximum imprisonment.

Clause 481 (2) is however curiously worded. The Sub-clause provides that

“(2) Notwithstanding anything contained in sub-section (1), where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court.”

It is not clear if it is applicable only to release of undertrials in terms of Clause 481 (1) or if it is applicable for consideration as regular bail. If the Clause is used to defeat the right of bail even under 480, 482 and 485 of BNSS, it would result in serious consequences. If such an interpretation is used, then the only thing required to be done to deny bail to an individual, is to institute multiple cases against that person or add more than one offence in the FIR. Significantly the text uses two different phrases: (a) “more than one offence” or (b) “multiple cases.” Even otherwise, there should be no reason to deny bail to a person in an FIR, once he has served half of the maximum sentence prescribed, only because there are other cases pending or other offences are involved.

In its Statement of Objects and Reasons, BNSS mentions there is a need to comprehensive review of our criminal law and adopt them in accordance with contemporary needs. It also mentions about “citizen centric approach.” However, for the issues discussed above, the clauses defeat such objectives. BNSS allows wide discretion at the hands of the investigation authority and judicial system, and does not stem the possibility of abuse, both on registration of FIR and on bail.

It would be ideal if the new criminal procedure code (either BNSS or by any other name), takes into account the following:

• An FIR should be registered the moment information of cognisable offence is received by the police. There should not be any delay in registration of FIR since in genuine cases, delay is fatal. The fact whether the information is correct or false and frivolous should not be a factor for the police to refuse registration of a FIR.

• Simply because an FIR is registered should not mean that the accused has to be arrested in all circumstances. Even Lalita Kumari says so.

• The law on bail should be codified. The statute should itself provide for clear and specific factors to be taken into consideration for grant of bail with respect to the offences alleged.

• Further, to avoid false registration of cases or lodging of false and frivolous FIRs, the law should provide stringent punishment and penalties. As of now Section 182 of the IPC, which is reproduced as Clause 215 in Bhartiya Nyaya Sanhita, is hardly any deterrent. The law should not allow a free run to complainants to put the criminal investigative machinery in motion for oblique motives. If after the conclusion of trial or at the time of quashing a FIR/Complaint, the Court comes to conclusion that FIR/complaint was vitiated by malafide and falsely wrong information was given by the Complainant, then Complainant should be made to suffer through monetary penalties as well as imprisonment.

Last year in her speech on the Constitution Day, the President of India, Smt. Droupadi Murmu, gave a heartfelt speech on prisoners languishing in jails. She exhorted the system to address the issues which no one discusses openly resulting in curtailment of civil liberties. It is this unspoken truth, i.e., the whims of the police in registering information and arrest, of prosecutors to oppose the bail once a person approaches the Court, and of Magistrates and Judges to deny bail on irrelevant grounds, that needs to be addressed in a new criminal procedure code.

Amit Gupta is an Oxford and Columbia University graduate practicing law in Delhi. The author acknowledges the contribution of Mr. Shiv Verma, Advocate.Views are personal.