Bar Association Approaches Supreme Court Challenging Validity Of 4 BNSS Provisions

The Mannargudi Bar Association has approached the Supreme Court challenging 4 provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS). These include: Sections 43(3) [Handcuffing], 107 [attachment, forfeiture of property], 223 [non-taking of cognizance in a complaint case without opportunity of hearing to accused] and 356 [trial in absence of accused].

The matter was listed today before a bench of Justices Surya Kant and Ujjal Bhuyan, which heard arguments restricted to Section 43(3) and noted that it is limited in scope to only very serious offenders and though a possibility of misuse of the provision may need to be addressed, the whole provision can't be said to be bad.

The Court has not issued notice on the plea yet. The next hearing is likely to take place on November 25.

Section 43 of the BNSS (which replaced the CrPC) stipulates how an arrest is to be made. Sub-section (3) thereof deals with handcuffing:

"(3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences."

Senior Advocate S Nagamuthu (appearing for petitioner) submitted that the provision does not prescribe any guidance or restriction as to the circumstances under which handcuffs can be placed upon an accused. He further argued that it amounts to punity without trial and is opposed to law laid down by the Court.

Justice Kant, however, disagreed and observed that the provision specifically relates to serious offenders, who are like "parasites" to the society and whom people fear. As such, there is a need to take preventive steps when arresting them.

He posed to Nagamuthu, "you don't want sexual offenders and terrorists to be hand-cuffed? Which part according to you is offending? It's only in these categories...the category of offenders who have been included under sub-section (3) are those about whom the society has a travelling fear...it will give a chilling effect to serial offenders who are kind of parasites in society..."

Speaking on the issue, Justice Kant also referred to the recent incident in Chhattisgarh, where a history-sheeter brutally murdered a head constable's wife and minor daughter: "Have you seen this incident...person who is arrested in Chhattisgarh earlier...murdering head constable's wife and daughter!"

Nagamuthu defended saying that the petitioner's case is not that handcuffing should not be done in any case. Rather, there should be guidance about the circumstances under which handcuffs can be placed.

In response, Justice Kant asked the senior counsel to state offenses in which according to him, it would be appropriate to place handcuffs to send a message to the society. When Nagamuthu attempted to refer to a case law, Justice Kant asked him to explore international legal framework and come better prepared.

"Look into legal regime of US also, where for a traffic violation, your hands are put like this. There is no violation of human rights there. When a person accused of child rape is to be arrested, there is a violation of human rights (according to you)! we want to know what is "human right" of a criminal who is prima facie involved in such kind of offenses?"

What Does The Petition Say?

The petition is filed challenging constitutional validity of Sections 43(3), 107, 223 and 356 of BNSS. The petitioner says that the provisions are void, being violative of Articles 14, 19 and 21 of the Constitution.

The grounds taken to challenge the 4 provisions are:

(A) Section 43(3)

- It gives unrestricted and unguided power to police officer to handcuff in the stipulated situations;

- Classification of certain offenses is unreasonable and violative of Article 14 of the Constitution;

- Sub-section (3) is punitive rather than preventive, insofar as possibility of accused evading arrest is dealt with in sub-section (2);

- Classification based on "nature and gravity of offense" not intelligible, as not every person accused of serious offense would have tendency to attempt escape;

- Provision is widely worded, such that it extends to restrictions which maybe within constitutional limits, as well as those beyond it. As such, the whole provision may be struck down;

- "Repeat offender" is not defined anywhere and there is ambiguity as to whether provision applies to person who is "accused of the offence" or who has "committed the offense" (ie has a prior conviction)

(B) Section 107

- Power given to Magistrate to distribute property to persons affected by the crime, even before it is determined that there was a victim;

- After investigation, it may be found that property distributed was not a proceed of crime. In such case, accused's deprivation of the property would not be the result of a procedure that is just, fair and non-arbitrary;

- No mechanism provided as to how to enforce the provision, for example, in case property to be distributed is undivided property

(C) Section 223

- Cognizance is to be taken of the offense, not the offender. What the Magistrate needs to see is the accusation, not the accused;

- In a complaint case, there may not always be an identifiable accused. Notice and/or opportunity of hearing can't be granted in such case;

- Section 223(1) is redundant, insofar as under Sections 225 and 226, if there is no identifiable accused after investigation, complaint must be dismissed;

- No reason to distinguish between a complaint case and a police report case. This results in a situation where in one category, cognizance can be taken only after accused is heard, and in the other, such opportunity is lost

(D) Section 356

- Provision deems waiver of right to be heard of an accused under prescribed circumstances. But there can't be a waiver of the fundamental right to fair trial under Article 21 of the Constitution;

- An accused may be kept out of the proceedings by co-accused or an accused who is not alive;

- An accused can be condemned on the basis of confession of an absconding accused, without a fair trial

Case Title: MANNARGUDI BAR ASSOCIATION Versus UNION OF INDIA AND ORS., W.P.(C) No. 625/2024