The Welcome And Unwelcome Changes In Section 183 Of BNSS
Justice V Ramkumar
13 Sep 2024 6:17 AM GMT
Before evaluating the merits and demerits of Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short), it is necessary to make a comparison of the above Section with the corresponding Section 164 of the Code of Criminal Procedure, 1973 (“Cr.P.C” for short).
Section 164 Cr.P.C | Section 183 BNSS |
Section 164: Recording of confessions and statements (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-- “I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate”. (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (5A) (a) In cases punishable under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, sub-section (1) or sub-section (2) of Section 376, 55DA[Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB], Section 376E or Section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. | Section 183: Recording of confessions and statements.-- (1) Any Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 316 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate." (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) (a) In cases punishable 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, the Magistrate shall record the statement of the person against whom such offence has been committed in the manner specified in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that such statement shall, as far as practicable, be recorded by a woman Magistrate and in her absence by a male Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or with imprisonment for life or with death, the Magistrate shall record the statement of the witness brought before him by the police officer: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means preferably by mobile phone; (b) a statement recorded under clause (a) of a person, who is temporarily or permanently, mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 142 of the Bharatiya Sakshya Adhiniyam, 2023 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. (7) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. |
THE WELCOME AND UNWELCOME CHANGES IN SECTION 183 OF B.N.S.S.
2. (a) The expression “Magistrate of the District” in Section 183 of BNSS is a welcome change. Section 164 Cr.P.C did not confer the right to record confessions and statements to any “Judicial Magistrate” of the district. Hence, it could even be argued that a “Judicial Magistrate” of Tamil Nadu could record the confession of an accused involved in an offence committed in New Delhi. Now such an interpretation will not be possible.
(b) But the Magistrate under Section 183 of BNSS is not the Magistrate of the district in which the offence was committed, but the Magistrate of the district in which the FIR is registered. As per Section 173 (1) of BNSS the FIR need not necessarily be registered in a Police station within whose local limits the offence was committed. The said Section says that an FIR can be given to and registered by any Police station irrespective of the area where the offence was committed. This again defeats the very purpose for which any Magistrate of the district has been empowered to exercise jurisdiction under Section 183 of BNSS. To take an example, if the offence was committed in Punjab but the FIR was registered in a Police station in Ernakulam district in the State of Kerala, any Magistrate of Ernakulam district alone can record a “confession” or a “statement” under Section 183 of BNSS. The laudable insertion of “Magistrate of the district” in Section 183 of BNSS, has been rendered nugatory by circumscribing the operational limit of the said Magistrate. Actually, the Magistrate under Section 183 of BNSS ought to have been the Judicial Magistrate of the district in which the offence was committed.
(c) Sub-Sections (1) to (5) of Section 183 of BNSS are identical to sub-Sections (1) to (5) of Section 164 Cr.P.C. Section (5.A) including clauses (a) and (b) of Section 164 Cr.P.C is reproduced with some changes as sub-Section (6) of Section 183 of BNSS. The 1st proviso to Section 183 (6) (a) of BNSS is a new provision which is somewhat in tune with the 1st proviso to Section 154 (1) of Cr.P.C. While the 1st proviso to Section 154 (1) Cr.P.C insists that the FIR of a female victim to the sexual offences specified therein shall be recorded by a woman police officer or a woman, the 1st proviso to sub-section (6) (a) of Section 183 of BNSS says that as soon as any of the sexual offences specified in the Section have been committed, the statement of the victim shall, as soon as practicable, be recorded by a woman Magistrate or by a male Magistrate in the presence of a woman. This is a welcome provision presumably incorporated in compliance of the directions of the Supreme Court in para 9 of State of Karnataka, Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014) 8 SCC 913 = 2014 KHC 4321 (SC) – Gyan Sudha Misra, Gopala Gowda – JJ.)
(d) The 2nd proviso to clause (a) of sub-section (6) of Section 183 makes interesting reading. If the offence is punishable with imprisonment for 10 years or more or with imprisonment for life or with death, the Magistrate should record the “statement” of the witness brought before him by the police. (Here again not by a police officer).
It appears that the framers of the BNSS were blissfully ignorant about the pre-requisite for the recording of the “statement” of a victim or a witness. Unlike in the case of recording of the “confession” of an accused, the “statement” of a “victim” or “witness”, even otherwise could be recorded only if he or she was sponsored by the Police and that was irrespective of the punishment prescribed for the offence. (Vide paras 12, 19 and 22 of Jogendra Nahak v. State of Orissa AIR 1999 SC 2565 = (2000) 1 SCC 272 – 3 Judges – K. T. Thomas, D. P. Mohapatra, U. C. Banerjee – JJ; Para 21 of Mahabir Singh v. State of Haryana AIR 2001 SC 2503 = (2001) 7 SCC 148 – K.T. Thomas, R. P. Sethi – JJ; Para 19 of Sankhi Chiba v. State of Arunachal Pradesh 2008 Cri.L.J. 1734 = 2008 KHC 5606 (SC) – Aftab H Saikia, P K Musahary – JJ; Paras 5 to 7 of Ajay Kumar Parmar v. State of Rajasthan AIR 2013 SC 633 = (2012) 12 SCC 406 - Dr. B. S. Chauhan, F. M. Ibrahim Kalifulla – JJ).
Thus, irrespective of the punishment prescribed, if the statement of a “witness” or a “victim” is to be recorded under Section 183 (5) of BNSS, such “witness” or “victim” should be sponsored by the Police. Without the Police requesting the Magistrate to record the statement of such a person, the witness or victim cannot (unlike in the case of an accused who wants to get his confession recorded) straightaway approach the Magistrate with a request to record his or her “statement” under Section 183 (5) of BNSS.
Author is a Former Judge, High Court of Kerala. Views Are Personal.
