Introduction Of BNSS: A Step Forward Or Backward

The new laws bring forth the requisite changes coupled with the fusion of technology. The measures include online FIR registration, statutory basis to Zero FIR, to prevent unnecessary delays, courts are permitted a maximum of two adjournments. However certain provisions like the mandatory registration of Zero FIRs, extension of period of police custody and Preliminary Enquiry before registration of FIR's may at the implementation stage fall short of the desired goals with which they are introduced. This article shall in depth analyse these anomalies in law.

Mandatory Registration Of Zero FIR

The most problematic aspect of the mandatory registration of Zero FIR is ambiguity in the provisions related to the procedure after the registration of the FIR. Now Zero FIR has been given a statutory basis by including it in Section 173 which relates to registration of FIR in cognizable cases.

Zero FIR had been introduced with the primary purpose to ensure that the victims can file complaints regardless of jurisdiction, addressing a longstanding issue in crime reporting. It was introduced to eliminate the common practices among the police officers where they refused to register police complaints citing jurisdictional issues. Under this the police station must necessarily register the FIR when approached by the complainant and then transfer it to the police station having jurisdiction for investigation. The receiving police station must start investigation based upon the FIR transferred to it.

The problem with the necessary registration of Zero FIR would be firstly, jurisdictional manipulation wherein the complainant might deliberately file FIRs in distant location to harass the accused and the issue with this would be that the Police station registering the FIR can make arrests on the basis of that FIR, potentially infringing the fundamental rights of the people. The officers even without having the jurisdiction over the matter could detain a person in custody as the magistrate before whom the accused is being presented may decide whether to grant the custody to the police irrespective of the jurisdiction as per section 187(2).

Secondly, the law is silent on the procedure to be followed after the registration of filing of the Zero FIR, specifically the time taken to transfer the case to the police station of appropriate jurisdiction. Silence on the time to be taken for the transfer of FIR is a procedural anomaly which could be exploited by the police would lead to miscarriage of justice owing to the delay in transfer of cases.

Extension Of Police Custody

Earlier under Sec 167, the maximum period of police custody was 15 days. If the investigation could not be completed within 15 days, then the person would be sent in judicial custody to provide safeguard against potential custodial violence. However, under the BNSS Sec 187, the magistrate may authorise the detention of the person, beyond the period of fifteen days to ninety days where the offense is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or sixty days where the investigation relates to any other offence, whichever may the case be.

The government argues that this is a necessary measure for through examination in complex cases and shall not infringe upon the fundamental rights as the extension would require judicial oversight and approval from the magistrate. The government argues that this measure would aid in the investigative process.

Critics argue that not only it goes against the international pre-trial detention standards which provides for minimal detention period but also violate several fundamental rights, particularly the right against self-incrimination. It could also lead to rise in custodial crimes.

Preliminary Enquiry Before Registration Of FIRs

The new laws have brought in provisions which expand the powers of the police which may raise potential concerns regarding the arbitrary and capricious use of powers by the law enforcement agencies. It is ironical that the Bharatiya Nagarik Suraksha Sanghita claiming to be citizen centric has raised concerns regarding the erosion of safeguards surrounding the civil liberties of individuals. The major concern in this regard arises with the introduction of Section 173(3) of BNSS.

The police on being intimated that a cognizable offence has taken place will now be allowed a period of 14 days to conduct a preliminary enquiry before registering the FIR. The concerned police officer if satisfied that a prima facie case exists to proceed under Section 173(3), will then proceed with further investigation. The period of 14 days for conduction of preliminary enquiry provided in Section 173 (3) BNSS is a change from its corresponding provision in CRPC. Section 154 of the CRPC dealt with the registration of FIRs on receipt of information about the commission of cognizable offences.

The Supreme Court in Lalita Kumari v. Govt. of Uttar Pradesh held that it is mandatory for the police to register an FIR on being informed about the commission of a cognizable offence. Therefore, the period of 14 days for conduction of preliminary enquiry before registration of FIRs as stated in Section 173(3) BNSS is in complete contradiction of the above judgement.

The approach by the legislature is likely to reduce the no. of FIRs being registered but inevitably raises concern about the misuse of discretion by the police. The move of the legislature is being supported by some on the ground that it reduces the burden of frivolous FIRs being registered. After investigation if it is found that the information received was false then there is always an option to prosecute the complainant for filing a false FIR. Therefore, the move of legislature seems unnecessary when there are other recourses available for prosecuting complainants filing false FIR.

There are certain cognizable offences where there is a need for preliminary enquiry such as matrimonial disputes, corruption cases, medical negligence cases, etc. The Supreme Court has also expressed its view in support of preliminary enquiry being conducted in these offences. These exceptions have been carved out by the judiciary to protect the rights of the accused. It would be unfair in these cases to prosecute the accused only on the basis of allegations by the complainant.

The other argument in support of preliminary enquiry is that mandatory registration of FIRs will lead to arbitrary arrests which will violate Article 21. The registration of FIR and subsequent arrest are two complete different concepts. It would not be correct to say that registration of FIRs would lead to arrest. Furthermore, it seems relevant to mention Section 482 of BNSS which gives an accused the right to obtain anticipatory bail from the court to avoid arrest in certain cases. There are legal remedies available against arbitrary arrests by the law enforcement agencies.

However in past there have been cases from both the sides where the victim suffered due to non-registration of valid FIRs and where the accused suffered due to registration of frivolous FIRs. Therefore, a delicate balance had to be maintained between the societal interests and individual interests. The court after weighing arguments from both the sides was of the view that there already are sufficient safeguards available to individuals against registration of false FIRs and held it mandatory for the police to register FIRs in case of cognizable offences. Therefore, the implementation of Section 173(3) BNSS has to be seen in the light of previous Supreme Court judgements which have minutely analysed the consequences of non-registration of FIRs.

The laws are though a step in the right direction to break away from the colonial hangover and provide a touch of Indianness to the laws. However, it is too early to decide upon the effectiveness and the new set of complications that may arise out of the new laws. In order to better assess the impact of these laws they must be implemented and studied for a period of at least 10 to 12 months. The time shall decide whether the laws are a leap forward or a step backward.

Aditya Arun and Anushka Singh are 2nd year law students at NLU Ranchi. Views are personal.