While tabling The Bhartiya Nagrik Suraksha Sanhita, 2023 as a replacement for the Code of Criminal Procedure, 1973, the Home Minister announced that the new law governing procedure in the criminal justice system would get rid of a backward colonial legacy and bring an Indianised law more appropriate for modern India. Even a casual comparison of the old and the new however would show...
While tabling The Bhartiya Nagrik Suraksha Sanhita, 2023 as a replacement for the Code of Criminal Procedure, 1973, the Home Minister announced that the new law governing procedure in the criminal justice system would get rid of a backward colonial legacy and bring an Indianised law more appropriate for modern India. Even a casual comparison of the old and the new however would show first, that the Criminal Code as existing pre- independence and even after its adoption by Parliament post-independence, was in many respects (except marital rape, sedition and so on) somewhat protective of the human rights of the accused. In respect of the regressive aspects of British law, the Indian Parliament accepted and incorporated both the exemption for marital rape and the sedition provisions with hardly any demur. The present government at the center went so far as to argue vehemently before the High Court and the Supreme Court that both these obnoxious provisions were constitutionally valid and suitable for India.
The new Sanhita has many glaring faults. They are (1) The Supreme Court decision in D.K. Basu’s case regarding the protection of the human rights of the accused on arrest have been substantially curtailed, (2) a new change is made allowing for police custody after judicial custody, (3) the earlier retrogressive provision in the Cr.P.C to the effect that no maintenance can be claimed if the wife is “living in adultery”, is continued, (4) the Sanhita permits video graphing and signing of statements to the police, (5) legal aid is provided in a restricted fashion only during the trial and the progressive provisions in other states allowing for legal aid from the point of arrests is not included, (6) compensation for false arrest is pegged at a pitiable Rs.1000, (7) the giving of information compulsorily to the police is maintained thus troubling law abiding citizens, (8) despite the decision of the Constitution Bench in Lalita Kumari’s case that on receiving information disclosing the commission of a cognizable offence the police are bound to register the FIR immediately, the Sanhita permits a preliminary inquiry to be conducted thus causing harassment to the public, (9) the opportunity to modernize Indian criminal law relating to search and seizures has been lost and the earlier provisions where searches do not require a judicial order and where evidence regarding illegal searches are admissible, continues to the detriment of the public, (10) the I.O will now be permitted to conduct further investigations and file supplementary chargesheets at will without a judicial order, (11) the expansion of video conferencing and statement taken on mobile by the police found in the Sanhita will trouble the integrity of criminal procedure, (12) the role of the Executive Magistrate in the performance of quasi-judicial functions continues and is troubling and (13) the uncritical continuation of plea bargaining for certain serious offences like hate speech which is a crime against society.
Police custody
The new Section 187 makes a change in respects of police custody. The present regime does not permit police custody once judicial custody is granted. The new section permits the accused to be sent from judicial custody back to police custody at any time during the detention of 60-90 days subject to a maximum of 15 days police custody.
Secondly, there is possibly a deliberate looseness in drafting which has caused other experts to suggest that police custody can be extended from the previous maximum of 15 days to a new maximum of 60/90 days. The phrase used in the new Section 187(2) “the judicial magistrate may…authorize from time to time the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding 15 days in the whole, or in parts, at any time during the initial 40 days or 60 days out of detention period of 60 days or 90 days…” The problematic part then is subsection (3) where a deliberate departure is made from the current code. Section 167(2)(a) CrPC states “provided that the magistrate may authorize the detention of the accused person otherwise than in custody of the police beyond the period of 15 days…” In the new Section 187(3) the phrase used is, “the magistrate may authorize the detention of the accused beyond the period of fifteen days…” and the earlier phrase “otherwise than in custody of the police” is omitted. This gives rise to the fear as some experts have opined that police custody can go up to 60/90 days. In CBI vs. Anupam J. Kulkarni (1992) 3 SCC 141 the Supreme Court held, “After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of the first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.”
Maintenance
Section 144 of the Sanhita, in respect of maintenance continues with the retrogressive provisions of Section 125 which provides for total denial of maintenance if the wife is “living in adultery”.
Statements to the police
In the Criminal Procedure Code and in criminal law generally there are very good reasons why the FIRs are not signed and the statements to the police under section 161 of the Code are also not signed. This is in recognition of the pernicious practices of the police in manipulating such statements and complaints. It is for this very reason why such statements were not video-graphed. In Afzal Guru’s case, the accused who was ultimately sentenced to death by the Supreme Court was at an initial stage of the investigation handcuffed to a chair and surrounded by Special Cell officers at Delhi and video-graphed from his shoulders upwards so that the handcuffs and the surrounding officers could not be seen on TV, and he was made to confess to the nation that he was the mastermind of the attack on Parliament. The frenzy that followed sealed his fate. And though it is said that judges are seasoned enough to shut out such public utterances not part of court proceedings, this is easier said than done. Regretfully judges sometimes are swamped by mob mentality particularly when the accused is from the minority community. The new section 173 opens the door for video-graphed complaints and statements and for the signing of such statements.
D.K. Basu’s Guidelines
The Supreme Court’s judgement in D.K.Basu’s case required that on arrest the officers should wear clearly identifiable name tags and the identity of the interrogating officers should be entered in a register. This entry in the register of the identity of the interrogating officers is deleted in the Sanhita. Secondly, the memo of arrest under the guidelines was to contain the place and time of the arrest. This too is deleted. Further under the Supreme Court guidelines the family is to be informed by the police of the place where the arrested person is detained. This is deleted. Under the guidelines the arrested person is required to be medically examined on arrest in respect of any injury and an inspection memo prepared which is to be signed by the arrestee and police. The arrestee has to be medically examined in a public hospital every 48 hours. This is also deleted. All the above mentioned documents including the memo of arrest and the inspection memo is to be sent with the FIR to the Magistrate. These guidelines should be displayed prominently at all police stations. This requirement is also deleted in the Sanhita.
Legal Aid
Section 341 deals with legal aid. This is a fundamental right. Many states including Delhi and Maharashtra provide statutorily for legal aid from the time of arrest. These statutes provide for the police to mandatorily inform the legal aid committees in the Trial Courts and the High Court immediately on the arrest of the person so that the legal aid lawyer can quickly meet the accused at the police station and be present in the Trial Court the next day to seek bail, oppose arrest and oppose police remand. All these provisions are left out in section 341 which only provides for legal aid once the trial begins and the judge finds that the accused in not represented by a lawyer. Legal aid has never been provided in cases of communal riots right from the Sikh genocide, the Bombay riots, the Gujarat riots and recently up to the Delhi riots. This narrow minded abridgment of the right to legal aid continues in the Sanhita. This deliberate drastic curtailment of the rights regarding legal aid has resulted in indigent persons throughout the country engaging private advocates by selling their wives jewelry and their household utensils. In Khatri (II) vs. State of Bihar (1981) 1 SCC 627 the Supreme Court held, “Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time.”
False arrests
False arrest are done in the thousands by police throughout India every day. It is the bane of the criminal justice system. The judiciary has failed repeatedly to impose substantial and punitive compensation orders even when the judges come to the conclusion that the criminal prosecution was without cause or evidence. Such was the judgment of the Supreme Court in Akshardham’s case. What would be the appropriate compensation in the case of a person illegally arrested and tried without cause and ultimately honorably acquitted after five years. In this period of globalization should she not be paid punitive and enhanced compensation of rupees 1 crore for every year of incarceration. Section 399 of Sanhita provides for rupees 1000!
Compulsory information
Section 33 expands the scope and ambit of compulsory information to the police in respect of a considerable number of offences. This is a troubling section where the police may harass many innocent persons on the grounds that they were aware of the commission of such offences and yet did not disclose that to the police. Police corruption, high handedness and use of violence naturally deter law abiding citizens from co-operating with the police. Such co-operations can only be achieved through radical reform of the police force and certainly not by legally mandating that information be given.
FIR’s
Section 173 is a shocking section which permits the police, contrary to the decision of the Constitution Bench of the Supreme Court in Lalita Kumari’s case, to not register an FIR even if it discloses the commission of a cognizable offence, but to do a preliminary inquiry which was specifically prohibited in the above mentioned case. Thus the vice of police officers refusing to register genuine FIR’s and harassing victims will continue on a rampant scale.
Advocates Rights
New Section 183 which provides for statements to the police and confessions by the accused to be recorded in the presence of her advocate though seemingly progressive is prefaced by the word “may” which nullifies the section leaving it open for statements and confessions to be recorded without the lawyer presence.
Search and seizure
Section 185 which deals with search and seizure remains one of the weakest aspects of criminal law jurisprudence. Unlike International practices where the police are required to obtain a judicial order after justifying the need for search of premises, Section 185 has no such requirement. This combined with Indian case law to the effect that even if the search is done illegally, the results of the search is admissible in evidence leaves a gaping hole in the rigor of criminal law jurisprudence.
Further investigation
New Section 193 allows the I.O, for the first time to do further investigation even without a court order thus allowing the prosecution to make up for lapses in investigation by filing additional charge sheets as the trial proceeds.
Video conferencing
New Section 187, 303, 306 and others sections of the Sanhita shows that the attempt is to shift criminal procedure against having the accused produced in court and making do with video conferencing. For the accused in jail and for the family of the accused this can be devastating as the only chance to meet one’s loved one’s is during the court days. The tendency to treat the absence of the accused in court casually and to proceed in her absence merely because her lawyer is present is a serious illegality often ignored. It’s obvious that physical presence is necessary on every court date to watch the proceedings closely, notice everything that’s being said and to instruct counsel. Secondly conducting criminal trials in a language not understood by the accused merely because her lawyer is present is another grievous fault. The right to have a translator in court is a right little understood and enforced.
Executive Magistrate
The next change is the expansion in the power and duties of the Executive Magistrate. Under the new section 95 in the Sanhita the Executive Magistrate has given the power to order search and seizure of “documents, parcels or things”. Under new section 149 the Executive Magistrate can give an order to the “armed forces” to arrest and disperse any person who is part of an unlawful assembly. Under new section 127 he may intervene in respect of “publications”. Under section 166 he is authorized to intervene in respect of land disputes and may summon parties, receive evidence and decide such land rights of persons and make orders.
All in all the Sanhita is retrogressive and disappointing. That it has been pushed through by executive fiat without prior consultation and academic rigor is obvious from beginning to end. Merely by using a title in hindi is not indianisation. Real positive change which this government seems incapable of required prior consultation with criminal law experts in India and abroad. Absent that we are left with a lingering doubt that this new Sanhita with new sections and with new words and phrases is intended to destroy the substantial edifice of criminal law jurisprudence centered around the Cr.P.C and to create confusion thus undermining human rights implementation in the country.
The author is a Senior Advocate in the Supreme Court . Views are personal.