The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” For Short) At A Glance-Comments By Justice Ramkumar

This is in continuation of my earlier article titled “IS THE LEGISLATIVE MEASURE OF REPEAL AND SUBSTITUTION OF THE THREE EXISTING MAJOR PENAL STATUTES, AN INEVITABLE DESIDERATUM?”. On a closer scrutiny I find BNSS fraught with certain other illegalities and improprieties, although some of the provisions are welcome changes. I am sharing my thoughts with respect to the same.

A The first and foremost hindrance experienced by all concerned is the fact that the numbers of most of the “sections” in the BNSS corresponding to those in the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) have been changed causing great difficulty and confusion for locating the appropriate “sections”. One has to depend upon the “comparative tables” given by the law publishers to locate the corresponding “sections”. Consequent on the dropping of “Metropolitan Area” and “Metropolitan Magistrates”, BNSS does not contain “sections” corresponding to Sections 8, 16 to 19 of Cr.P.C. Excluding the above 5 “sections”, and Section 27 (pertaining to juveniles) of Cr.P.C. and 4 definitions (“India”, “metropolitan area”, “pleader”, “prescribed”) under Section 2 of Cr.P.C. there are only 2 Sections (Sections 144 A and 153) in the Cr.P.C. for which there are no corresponding Sections in the BNSS. Still the “section numbers” of all the Sections corresponding to those in the Cr.P.C. have been changed in the BNSS causing untold hardship to all concerned. If appropriate amendments had been effected to the existing “sections” of Cr.P.C. all the confusion and resultant hardship could have been averted.

B CERTAIN PROVISIONS IN THE Cr.P.C DELETED BY BNSS

BNSS has “dropped” certain provisions in the Code of Criminal Procedure, 1973 (“the Cr.P.C.” for short). Those provisions are the following :-

1. The definition of the word “India” in Section 2 (f) of Cr.P.C. which read “India means the territories to which this Code extends”, has been deleted.

My comments:- But strangely enough, Section 1 (2) of Cr.P.C. which originally read “it extends to the whole of India except the State of Jammu and Kashmir” has also been deleted in Section 1 of BNSS the title of which continues to read as “Short title, extent and commencement”. Sub-section (2) of Section (1) of BNSS only shows that the BNSS does not apply to certain areas. What is significant is that sub-section (2) of Section 1 of BNSS does not say that it extends to the whole of India or Bharat.

2. Sections 2 (k), 8, 16, 17, 19, 355 and 404 of Cr.P.C. dealing with “Metropolitan areas” and “Metropolitan Magistrates” have been deleted.

My comments :- What exactly is the real objection to the existing classification of metropolitan area based on population, is not known. It is easy to efface or obliterate metropolitan areas on paper. But, actual re-alignment at the site may be a herculean task.

3. The word pleader in the definition of “pleader” in Section 2 (q) Cr.P.C. has been replaced by the word “Advocate”.

My comments :- This is an advisedly welcome change. After the advent of the Advocates Act, 1961, the expression “pleader” may be a misnomer.

4. The expression “prescribed” in Section 2 (t) Cr.P.C. to mean “prescribed by rules made under the Code”, has been deleted.

My comments :- Wherever the expression “prescribed” existed or has been replaced by the expressions “specified”. Actually there was no need for this deletion.

5. From Section 9 (3) Cr.P.C., Assistant Sessions Judges have been deleted in the new Section 8 of BNSS. This is reflected in Sections 214 and 422 of BNSS (corresponding to Section 194 and 381 of Cr.P.C.)

My comments :- Instead of discontinuing Assistant Sessions Judges, it would have been better to retain them and discontinue judicial Magistrates of the second class. As on now, Assistant Sessions Judges shoulder a sizable bulk of the work-load in the Courts of Session in the country. What exactly was the object behind the abolition of the Assistant Session Judges, is not known.

6. Section 27 of Cr.P.C. which was dealing with the “jurisdiction in the case of juveniles” has been deleted.

My comments :- This deletion is presumably because of the passing of the various Children Acts and allied legislations.

7. Section 144 A of the Cr.P.C. conferring power on the District Magistrate and the State Government to prohibit the carrying of arms in procession or mass drill or mass training with arms, has been deleted.

My comments :- It is not known whether this deletion was in view of the insertion of Sections 111 to 113 in the Bharatiya Nyaya Sanhita, 2023 (“BNS” for short) or is as a measure of regularizing such anti-social activities.

8. Section 153 of Cr.P.C. for detection of false weighing instruments and measures has been deleted.

My comments:- This may presumably be due to the enactment of The Standards of Weights and Measures Act, 1976.

C BNSS HAS “INSERTED” A FEW NEW SECTIONS AS FOLLOWS:-

1. Section 2 (1) (a) – This is the definition of “audio-video electronic means”.

My comments:- This may be in tune with the technological advancements and is a welcome provision.

2. Section 2 (1) (b) – This is the definition of “bail”.

My comments:- This definition which means only “release” of an accused person from the custody of law, is incomplete. The word “bail” not only means “release” but also means the “surety” to whose custody an arrested person is delivered. The words “does furnish bail” occurring in Section 187 (3) and Explanation-I to Section 187 (5) of BNSS (corresponding to Section 167 (2) first proviso and Explanation-I to Clause (c) of Section 167 (2) Cr.P.C.) confirm the fact that the word “bail” also means “surety”. The word “bail” also means “the privilege of being released on bail”.

3. Sections 2 (1) (d) and 2 (1) (e) which define a “bail bond” (which is an undertaking for release with surety) and a “bond” (which is an undertaking for release without surety).

My comments: - This is a welcome distinction made.

4. Section 2 (1) (i) definition of “electronic communication”.

My comments:- This is also for coping up with the digital revolution.

5. Section 35 (7) – This provision prohibits arrest without permission of an officer of and above the rank of DYSP in cases where the offence is punishable with imprisonment for less than 3 years and the persons to be arrested is infirm or is above 60 years of age.

My comments:- This is a welcome provision.

6. Section 86 – This is a provision for enabling identification, attachment and forfeiture of the property of a “proclaimed person” in accordance with the procedure set out in Chapter VIII of BNSS.

My comments: - There could be no objection to such a provision.

7. Section 105 – This is a provision enabling the recording of search and seizure through audio-video electronic means.

My comments:- This is also a welcome provision, provided all the safeguards are scrupulously followed.

8. Section 107 – This is for attachment, forfeiture or restoration of property.

My comments:- There could be no objection to this provision as well.

9. Section 172 – This is a provision obligating persons to conform to lawful directions of police occurring in Chapter XII dealing with preventive action of the police.

My comments: - As long as police officers act in good faith, this provision will not be misused. The question as to whether the directions in a given case were lawful or not, will always depend upon the facts and circumstances of each case.

10. Section 336 – This provision enables the successor-in-office of a public servant, scientific experts or medical officer to prove during inquiry or trial any “document” or “report” prepared by such public official who, due to the reasons stated in the Section, is incapable of or unable to give evidence before Court.

My comments:- Even though, this is a welcome provision, it is not clear whether, in the absence of a non-obstante clause, this provision can override or supplant the Indian Evidence Act corresponding to Bharatiya Sakshya Abiniyam, 2023 (“BSA” for short), particularly, Section 47 of the Indian Evidence Act (corresponding to Section 41 (1) of BSA).

11. Section 356 – This is a provision enabling inquiry, trial and judgment in the absence of a proclaimed offender.

My comments: - I am afraid that even with the safeguards provided in the Section, it is likely to be misused.

12. Section 398 – This Section directs every State Governments to prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.

My comments:- This provision coupled with Section 195 A of the Indian Penal Code corresponding to Section 231 of BNS, is welcome. But, how far any such measures can really protect “whistle-blowers” and other witnesses, is a moot question, especially when their anonymity cannot be preserved throughout.

13. Section 472 – Deals with the procedure to be followed in mercy petitions in cases where a sentence of death has been pronounced.

My comments:- This is a welcome provision particularly fixing a time limit for invoking the clemency jurisdiction of the Governor and President of India. But it is doubtful whether sub-section (2) which obligates the petitioner to move the Governor initially, can be insisted in the event of “death penalty” imposed under a law other than the Indian Penal Code or BNS and which falls under the Union List in the Seventh Schedule to the Constitution of India.

14. Section 530 – Providing for trial and proceedings to be held in electronic mode.

My comments:- This again is a welcome provision provided it is effective and foolproof. After all, we are dealing with the life and property of individuals who unfortunately figure as accused before our Courts.

A FEW ABNORMALITIES DISCOVERED IN THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (“BNSS” for short)

D SECTION 173 OF BNSS STATED TO BE CORRESPONDING TO SECTION 154 Cr.P.C, READS AS FOLLOWS:-

“Information in cognizable cases - 173. (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given—

(i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it;

(ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf:

Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

Provided further that—

(a) in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;

(b) the recording of such information shall be videographed;

(c) the police officer shall get the statement of the person recorded by a Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim.

(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,—

(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or

(ii) proceed with investigation when there exists a prima facie case.

(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate”.

MY OBSERVATION No. 1

Under sub-section(1) of Section 173 of BNSS when “information” regarding a cognizable offence is given to an officer-in-charge of a police station (“SHO” for short), he is bound to register it in the “FIR Book” irrespective of the area where the offence was committed. So, if “information” is given to the SHO of a police station in Punjab regarding the commission of a cognizable offence at Kochi in Kerala, the SHO at Punjab is bound to register the FIR. But, strangely enough, the jurisdiction of the Magistrate and that of the police station continues to be co-extensive under Section 175 (1) of BNSS as in the case of Section 156 (1) Cr.P.C.

What was actually needed was a provision to register the FIR and transfer the same to the police station having jurisdiction to conduct investigation. That would have been in accordance with the verdict in State of A.P v. Punati Ramulu AIR 1993 SC 2644 = 1994 Supp. (1) SCC 590 – Dr. A. S. Anand, N. P. Singh – JJ. Alternatively, the new provision to be inserted could at least direct the forwarding of the FIR to the Magistrate empowered to take cognizance of the offence as held in paras 8 to 10 of Satwinder Kaur v. State AIR 1999 SC 3596 = (1999) 8 SCC 728 – K. T. Thomas, M. B. Shah – JJ.

MY OBSERVATION No. 2

1. We are concerned for the present with sub-section (3) of Section 173. The said provision of BNSS says that if the “information” received by the SHO relates to the commission of any “cognizable offence” punishable with imprisonment (“with imprisonment” is absent in the provision) for 3 years or more but less than 7 years, the SHO may with the prior permission from an officer of and above the rank of DySP considering the “nature” and “gravity” of the offence —

(i) Proceed to conduct a “preliminary enquiry” to ascertain whether there exists a prima facie case for proceeding in the matter within 14 days.

(ii) Proceed with the investigation when there exists a prima facie case.

2. All of us know that a Constitution Bench of the Supreme Court of India in paras 49, 72, 73, 114, 120.6 of Lalita Kumari v. Govt. of U. P. AIR 2014 SC 187 = (2014) 2 SCC 1 – 5 Judges - P. Sathasivam – CJI, Dr. B. S. Chauhan, Ranjana Prakash Desai , Renjan Gogoi, S. A. Bobde – JJ, held that when “information” (FIR) relating to the commission of a cognizable offence is received by the SHO he has to mandatorily register the FIR in the “FIR Book” or “FIR Register”. The above view was taken by the Constitution Bench after noticing that the compulsory requirement of Section 154 (1) Cr.P.C, was being misused by police officers taking discriminatory attitude towards the informants. Now the new Section 173 (3) throws to the wind the above mandate of Lalita Kumari.

3. In Lalita Kumari's case, the only categories of cases where “preliminary enquiry” by the SHO prior to the registration of the FIR, was permitted, were –

1. Where the FIR does not disclose a cognizable offence.

2. Where the dispute is a matrimonial/family dispute.

3. Where the offence is a commercial offence.

4. Where the case is a medical negligence case.

5. Where the case is a corruption case.

6. Where there is unexplained delay of more than 3 months in reporting the offence.

But now Section 173 (3) provides for “preliminary enquiry” in all categories of cases punishable with imprisonment between 3 years and 7 years. So, if an “information” in that regard is given to the SHO by a person in any such cases, the SHO will have to first obtain the permission of the superior officer and then conduct a “preliminary enquiry” to find out whether a prima facie case exists. While an outer period of 14 days is fixed for conducting the “preliminary enquiry”, no time-limit is fixed for obtaining the prior permission of the superior officer. This means that the First Informant who approached the SHO for registering his FIR will have to wait endlessly to see whether his FIR will be registered or not.

Does not the new provision impede speedy administration of justice?

Moreover, Lalita Kumari held that it is not open to the SHO to examine the “genuineness” or “veracity” of the FIR and that the SHO can examine only whether or not the FIR discloses a “cognizable offence”. But Clauses (a) and (b) of Section 173 (3) of BNSS permits the SHO to examine whether there exists a “prima facie case” in the FIR. To this extent, the verdict in “Lalita Kumari” is flouted.

NOTES BY THE AUTHOR :- “Preliminary enquiry” is a judge-made conundrum and I had occasion for more than once to pen articles against such “preliminary enquiry” which is not a procedure envisaged by the Cr.P.C. Earlier a Constitution Bench of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi AIR 1965 SC 1251 – 5 Judges - P. B. Gajendragadkar – CJI, M. Hidayatullah, J. C. Shah, S. M. Sikri, R. S. Bachawat – JJ, had observed that conducting an “inquiry” is within the exclusive domain of the Magistrate and not of the police. Even Lalita Kumari (Supra – AIR 2014 SC 187) has noticed that the police do not have any power of “inquiry”. In fact, the expression “preliminary inquiry” to be conducted by a Magistrate is to be found only in Section 159 Cr.P.C which is faithfully copied in Section 178 of BNSS. The only occasion in which way back in 1970 the Supreme Court of India recognized a sort of “preliminary enquiry” in the SHO before registering a crime was in “corruption cases” where it was held that registration of an FIR against a “public servant” could cause incalculable harm to the “public servant” against whom there would be many disgruntled elements waiting for launching vexatious prosecutions. (Vide P. Sirajuddin v. State of Madras AIR 1971 SC 520 = (1970) 1 SCC 595 – J. M. Shelat, G. K. Mitter – JJ). Now the judge-made law of “preliminary enquiry” has unfortunately received legislative recognition under Section 173 (3) of BNSS and is made applicable to all cases punishable with imprisonment between 3 years and 7 years. Such a freedom should not have been conferred at all on an SHO. It may be worthwhile to note that even without any Court conferring any power of “preliminary inquiry”, intelligent police officers do conduct a discrete enquiry to find out whether or not a cognizable offence has been committed. It is pertinent to remember that even in cases where the SHO is obligated to register the FIR as mandated by Section 175 (1) of BNNS (corresponding to Section 154 (1) Cr.P.C.), Section 176 (1) (b) of BNNS (corresponding to Section 157 (1) (b) Cr.P.C.) clothes the SHO with enough discretion to decide whether or not he should enter on an investigation. That would have been sufficient.

E SECTION 187 (1) AND (2) OF BNSS, BY AND LARGE, CORRESPONDING TO SECTION 167 (1) AND (2) OF Cr.P.C. READS AS FOLLOWS:-

“187. Procedure when investigation cannot be completed in twenty-four hours (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

(4) No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means.

(5) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in sub-section (3), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under sub-section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may be:

Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution:

Provided further that no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government.”

(Sub-sections (6) to (10) omitted since not relevant for the present purpose.)

MY OBSERVATION No. 1

There are a few deviations from Section 167 (2) Cr.P.C. made in Section 187 (2) BNSS. I will consider the first deviation now.

When a person who has been arrested and detained in custody and forwarded to the nearest Magistrate with copy of the entries in the “case diary”, sub-section (2) of Section 187 BNSS requires the Magistrate to take into consideration whether –

• such person has not been released on bail, or
• the bail of such person has been cancelled.

I fail to understand the reason for the Magistrate to take the above circumstance into consideration. Sub-section (2) contemplates a situation where a person who has been arrested on “information” or “accusation” of having committed a cognizable offence, is forwarded to the nearest Magistrate under Section 187 (1) BNSS. Why should the Magistrate consider whether the person brought in custody has not been released on bail or his bail has been cancelled. The nearest Magistrate in almost all cases will not be the jurisdictional Magistrate. There cannot be any dispute that it is the jurisdictional Magistrate alone who can grant bail to an accused person. In my humble view the above grounds for consideration are totally irrelevant and alien. If what was intended by the framers of BNSS was that “police custody” of persons released on bail also should be granted, the said object is not achieved by the above words and Section 187 of BNSS is not the provision meant for that.

MY OBSERVATION No. 2

I will now consider the second deviation made in Section 187 (2) of BNSS. Before that, let us understand the scope of the existing Section 167 (2) Cr.P.C. and its proviso. As per Section 167 (2) read with clause (a) of the first proviso to Cr.P.C., every person arrested and produced before the nearest Magistrate can be remanded to “police custody” only for the first 15 days of remand. This “police custody” can also be for broken periods altogether totaling to 15 days during the first 15 days of remand. All further remands, if any, beyond first 15 days can only be to “judicial custody”. (Vide Chaganti Satyanarayana v. State of A. P. AIR 1986 SC 2130 = (1986) 3 SCC 141 – A. P. Sen, S. Natarajan – JJ; CBI v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 –A. M. Ahmadi, K. Jayachandra Reddy – JJ; Budh Singh v. State of Punjab (2000) 9 SCC 266 = 2001 Cri.L.J. 2942 – 3 Judges – A. S. Anand, R. C. Lahoti, S. N. Variva – JJ; Naresh Kumar Yadav v. Ravindra Kumar AIR 2008 SC 218 = (2008) 1 SCC 632 – Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ; Devender Kumar v. State of Haryana (2010) 6 SCC 753 – Altamas Kabir, Cyriac Joseph – JJ.)

The Supreme Court has been very strict in interpreting Clause (a) of the proviso to Section 167 (2) Cr.P.C. Even when more offences in the very same occurrence have been subsequently disclosed during investigation after the initial period of 15 days of remand (whether to police or judicial custody), it has been held that no “police custody” can be granted after the first remand of 15 days. It has also been held that the said bar, however, will not operate if a new occurrence comes to light after the first remand for 15 days. But of late, even the Supreme Court is seen relaxing the interpretation given to the aforesaid clause in Section 167 (2) Cr.P.C. (Vide V. Senthil Balaji v. State rep. by Deputy Director 2023 SCC OnLine SC 934 = 2023 KHC 6758 – A. S. Bopanna, M. M. Sundresh - JJ.) In paragraph 88 (v) of its verdict the Supreme Court in Senthil Balaji (Supra) has gone to the extent of holding that the maximum period of 15 days of police custody is meant to be applied during the entire period of investigation of 60 days or 90 days as a whole. This interpretation is patently contrary to the interpretation placed on the above clause under Section 167 (2) Cr.P.C. in all the 5 earlier verdicts of the Supreme Court referred to above of which Budh Singh (Supra) was by a three Judge Bench binding on the Bench which decided Senthil Balaji.

Now let us examine the scope of Section 187 (2) of BNSS. The proclaimed object of deviating from Section 167 (2) Cr.P.C. and its proviso, was to enable the Magistrate to order “police custody” of the accused for a total period of 15 days in the whole or in parts any time within the default period of 60 days or 90 days as the case may be. In other words, it was not intended to confine the “police custody” only to the first remand of 15 days. But, sub-section (2) of Section 187 of BNSS as now enacted, provides for a still more dangerous consequence. Shorn of the unnecessary words in the said provision, Sub-section (2) of Section 187 of BNSS now reads as follows :-

“The Magistrate to whom an accused person is forwarded under this Section may, irrespective of whether he has or has no jurisdiction to try the case, authorise, 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 forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3).”

A plain reading of the above provision suggests that the nearest Magistrate may, from time to time, authorise the detention of the accused in “police custody” or “judicial custody” as he thinks fit, for a term not exceeding 15 days in the whole or in parts, at any time during the first 40 days of detention in a case where the default period is 60 days and at any time during the first 60 days of detention in a case where the default period is 90 days. To put it differently, the nearest Magistrate (who in most cases will not be the jurisdictional Magistrate) can go on ordering “police custody” or “judicial custody” alternatively (but for 15 days or parts at a time) during the first 60 days or the first 90 days, as the case may be. There is no mention that the “police custody” ordered can only be for a total period of 15 days during the entire period of 40 days or 60 days of detention.

First and foremost, is that the nearest Magistrate (who need not be the jurisdictional Magistrate) is given the power to make such authorizations during the period of 40 days or 60 days, as the case may be. This is in naked violation of the mandate under Article 22 (2) of the Constitution of India the salutary object of which is to render illegal the detention of the accused in the custody of the Police beyond 24 hours. Once the nearest Magistrate authorizes the detention of the accused in judicial or police custody for a total period of 15 days or parts beyond 24 hours of detention in police custody, there are two objectives achieved by such authorization. One is legalizing the custody of police beyond 24 hours. The second is, after the first remand, the authority of the nearest Magistrate who is not the jurisdictional Magistrate, to deal with the accused comes to an end. He has to thereafter order the accused to be forwarded to the jurisdictional Magistrate who alone can pass further orders of remand or grant bail even as per the second limb of Section 187 (2) of BNSS. It is this great principle which is flagrantly violated by sub-section (2) of Section 187 of BNSS by making the aforesaid deviation from Section 167 (2) Cr.P.C. and its proviso. Even if the intendment behind Section 187 (2) of BNSS was to give a total period of 15 days of police custody any time within the 40 days or 60 days, as the case may be, that would be a patently unjust provision which is likely to be misused by the police and other investigating agencies. In such a case, the sword of Damocles in the form of police custody will be hanging over the head of the accused for the entire period of detention. Moreover, the object of a provision like Section 167 (2) Cr.P.C. and its proviso is not to continue the investigation till 60 days or 90 days as the case may be. The said outer period has been fixed as the penalty which the investigating officer should pay if his investigation is not concluded within the said period.

Sub-section (2) of Section 187 of BNSS is patently unconstitutional and cannot, therefore, stand the scrutiny of the Court. What the framers of BNSS should have taken into consideration was, in case, the accused in a given situation was incapable of being interrogated due to illness or any other valid reason, a provision to exclude the period of illness etc. with adequate safeguards from the first 15 days of remand would have been more appropriate.

MY OBSERVATION No. 3

The “second proviso” to Section 187 (5) of BNSS is a new provision which says that

“no person shall be detained otherwise than in Police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government”

This again is another absurd provision. Police custody of an accused under Section 187 of BNSS is granted for the purpose of investigation and not for the purpose of confining him to the police station. As to where the accused is to be confined when judicial custody is ordered is already covered by Section 457 of BNSS (corresponding to Section 417 of Cr.P.C.). Hence the latter part of the above proviso is otiose.

F SECTION 223 OF BNSS IS STATED TO BE CORRESPONDING TO SECTION 200 Cr.P.C. SECTION 223 READS AS FOLLOWS:-

COMPLAINTS TO MAGISTRATES 223 - (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

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

Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—

(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.

MY OBSERVATION No. 1

What I wish to highlight here is the “discriminatory treatment” given between a “police report” and a “complaint”. Under Section 210 of BNSS (corresponding to Section 190 Cr.P.C) a “police report” and a “complaint” are treated on par while enumerating the 3 sources for taking cognizance of an offence. In fact, “complaint” occupies the first position there. But, when it comes to the actual taking cognizance of an offence, the first proviso to Section 223 (1) of BNSS says that no cognizance of an offence on a “complaint” shall be taken by the Magistrate without giving the accused of an opportunity of being heard. This is unheard of in the criminal jurisprudence followed in this country for more than a century and a half. “Taking cognizance of an offence” is the first curial act happening in a Court by way of “INITIATION OF PROCEEDINGS” in Chapter XIV Cr.P.C much before the accused is summoned to the Court. The right of the accused to participate (even address the Court) in the proceedings before Court arises only after “COMMENCEMENT OF PROCEEDINGS” under Chapter XVI Cr.P.C. This statutory scheme under Chapters XIV and XVI Cr.P.C have been scrupulously maintained in Chapters XV and XVII respectively of the BNSS as well. As per the BNSS also, issuance of summons under Section 227 BNSS (which is corresponding to Section 204 Cr.P.C.) is only after the Magistrate takes cognizance of the offence. If cognizance of the offence on a “private complaint” alone is to be taken only after giving the accused an opportunity of being heard, it does not fit in with the statutory scheme followed hitherto for decades and decades. Moreover, when notice of hearing is given to an accused he may either challenge it before a superior Court and obtain a stay of the trial Court proceedings or, in the alternative, he may come out with a false story. Is the Magistrate going to conduct a “mini-trial” to find out the truth or otherwise of the story put forward by the accused ? Our experience shows that in the majority of cases the usual defense taken by an accused is one of total denial. Similarly, during examination under Section 313 (1) (b) Cr.P.C. the extent of denial goes even to the range of disputing his paternity if he is asked whether he is the son of his parents. Everyone practicing before the trial Courts knows that the answers given by the accused are stock denials made on instructions. After following all these formalities, when exactly is the Magistrate going to take cognizance of the offence even if he concludes that the story put forward by the accused is either true or false?

In that case, will not the Magistrate be approaching the case with a pre-judged view?

MY OBSERVATION No. 2

In the case of a “public servant” also sub-section (2) of Section 223 BNSS enjoins that a Magistrate shall not take cognizance on a “complaint” against a “public servant” for any offence alleged to have been committed in the course of the discharge of his official functions or duties unless he is given an opportunity to make assertions as to the situation which led to the alleged incident. The said provision further obligates the Magistrate to call for a report containing the facts and circumstance of the incident from the official superior of such “public servant”. This again is an instance of patent discrimination between a “police report” and a “complaint”. Even otherwise, there is enough public opinion condemning the tardiness of “investigation”, “prosecution” and the resultant “trial” of criminal cases in our country. Are we trying to hasten the administration of justice by bringing in such provisions ? Of course not. The assertions, if any, made by the “public servant” consequent on a notice to him need not necessarily be true. Is the Magistrate going to examine the veracity of the version given by the “public servant” at the stage of cognizance ? Clause (b) of Section 223 (2) of BNSS is so worded as if the official superior in all cases will be will be aware of all the facts and circumstances of the incident. The Magistrate by obtaining the assertions from the “public servant” and thereafter obtaining the report from his official superior, will be doing a disservice to the administration of justice by contributing to the delay.

G SECTION 250 OF BNSS STATED TO BE CORRESPONDING TO SECTION 227 OF CR.P.C., READS AS FOLLOWS :-

“Discharge – 250 - (1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.

(2) If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

MY OBSERVATION

As per the scheme under the Cr.P.C, “discharge” of an accused under Section 227 and “framing of charge” against the accused under Section 228 (1) (b) is a continuous process and no application for “discharge” by the accused is contemplated. But, in case the accused files a petition for “discharge”, the same would be considered by the Sessions Judge. As per the existing scheme, it is the duty of the Sessions Judge to consider whether the accused deserves a discharge and if so, to discharge him even without a petition for discharge. But, Section 250 (1) of BNSS specifically confers a right in the accused to file a discharge petition. There is nothing wrong in such a provision. However, fixing a time-limit of 60 days from the date of commitment of the case should have been avoided. This is because, now the Sessions Judge cannot frame charge within 60 days of commitment of the case. He will have to await a discharge petition for 60 days. It may even happen that the accused comes with a belated petition for discharge. If at all, a time-limit was to be fixed, it could be within 3 days of the opening of the case by the Public Prosecutor under Section 249 of BNSS (corresponding to Section 226 Cr.P.C.) and specifically providing that the said time-limit shall not be enlarged under any circumstance.

Even the Form of summons to be issued to the accused could be suitably amended to incorporate a direction that he should file his discharge petition, if any, within 3 days of his appearance.

H SECTION 262 OF BNSS WHICH IS STATED TO BE CORRESPONDING TO SECTION 239 OF Cr.P.C., READS AS FOLLOWS:-

“When accused shall be discharged – 262 - (1) The accused may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under section 230.

(2) If, upon considering the police report and the documents sent with it under section 193 and making such examination, if any, of the accused, either physically or through audio-video electronic means, as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing”.

MY OBSERVATION

Here also the Cr.P.C does not contemplate a separate application for discharge to be filed by the accused. The Magistrate while considering the “police report” and the “documents” would suo motu discharge the accused if he finds the charge against the accused to be groundless. But now Section 262 (1) of BNSS confers a right in the accused to file a petition for discharge. There is nothing wrong in such a provision. But, here also there was no necessity for fixing a time-limit of 60 days from the date of compliance of Section 187 of BNSS (Corresponding Section 207 Cr.P.C). By fixing such a long time, the Magistrate is precluded from framing charge before the lapse of 60 days. In other words, the Magistrate will have to wait till the expiry of 60 days in order to frame charge. This will cause unnecessary delay especially in cases where the accused does not file a petition for discharge. If at all any time limit were to be fixed it could be within 3 days of the appearance of the accused before the Magistrate under Section 261 of BNSS (corresponding to Section 238 of Cr.P.C.) and specifically providing that the said time-limit shall not be enlarged under any circumstance.

Even the Form of summons to be issued to the accused could be suitably amended to incorporate a direction that he should file his discharge petition, if any, within 3 days of his appearance.

I SECTION 274 OF BNSS IS STATED TO BE CORRESPONDING TO SECTION 251 OF CR.P.C, ADDITIONALLY CONTAINS A PROVISO. SECTION 274 OF BNSS READS AS FOLLOWS:-

“Substance of accusation to be stated – 274 - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge:

Provided that if the Magistrate considers the accusation as groundless, he shall, after recording reasons in writing, release the accused and such release shall have the effect of discharge”.

MY OBSERVATION

The proviso to Section 274 is a welcome provision. After the verdict by a Three Judge Bench of the Supreme Court in Adalat Prasad v. Ruplal Jindal AIR 2004 SC 4674 = (2004) 7 SCC 338 – N. Santosh Hegde, S. B. Sinha, A. K. Mathur – JJ, (which overruled K. M. Mathew v. State of Kerala AIR 1992 SC 2206 = (1992) 1 SCC 217 – Jagannatha Shetty, Yogeshwar Dayal – JJ), it was impermissible for a Magistrate to prematurely terminate the proceedings after the commencement of trial. The above view in Adalat Prasad was reiterated in Subramanium Sethuraman v. State of Maharastra AIR 2004 SC 4711 = (2004) 13 SCC 324 - N. Santosh Hegde, S. B. Sinha, Tarun Chatterjee – JJ. Hence, in cases where the so-called “substance of accusation” did not make out any offence, much less, any of the ingredients of the offence, we Judges in Kerala used to drop the proceedings without stating the “substance of accusation” (“particulars of the offence”) to the accused. By resorting to such a procedure, the Magistrate will not be violating the rule in Adalat Prasad etc. because at that stage the trial does not commence. (Vide paras 5 to 8 of Dr. Kamala Raja Ram v. Dy.S.P, Office of S. P. (Rural) Neyyattinkara 2005 (3) KLT 617 – R. Basant – J (Here it was a summons case on a “police report”, hence Section 258 Cr.P.C also was pressed into service) and Anandavel v. Food Inspector 2010 (3) KLT 49 – V. Ramkumar – J (Here it was a summons case pure and simple).

The proviso to Section 274 of BNSS has now obviated the necessity of the Court dropping the proceedings even before the commencement of trial. On the Magistrate taking the view that the accusation against the accused was groundless, he can “release” the accused and the said release will have the “effect of a discharge”, even though “discharge” is foreign to a summons trial.

Here also, suitable amendments could be made to the Form of summons to be issued to the accused.

Author is Former Judge, High Court of Kerala

Views Are Personal