Bharatiya Nagarik Suraksha Sanhita (BNSS) And Bhartiya Nyaya Sanhita (BNS) Monthly Digest– October 2024

Allahabad High Court:

IO Can't Be Forced To Get Statement Of A Particular Witness Recorded U/S 183 BNSS: Allahabad High Court

Case title - Kajal And Another vs. State Of U.P. Thru. Prin. Secy. Lko. And Another

Case citation: 2024 LiveLaw (AB) 583

The Allahabad High Court has observed that it is the investigating agency's prerogative to sponsor the witness whose statement they want to record under Section 183 Bharatiya Nagarik Suraksha Sanhita 2023 [Recording of confessions and statements] and that an IO could not be forced to get the statement of any witness recorded under the said provision.

A bench of Justice Saurabh Lavania made this observation while dealing with a plea filed by a couple seeking a direction to the Additional Chief Judicial Magistrate concerned to record the statement of the girl (applicant no.1) under Section 183 of BNSS in connection with a case lodged against the applicant no. 2 (boy) under Sections 137(2) [Kidnapping] and 87 [Kidnapping/Abduction for Marriage] of Bharatiya Nyay Sahinta.

Bombay High Court:

All Officers Instructed To Scrupulously Enforce S.193 BNSS, Intimate Investigation Progress To Informant: Maharashtra Police Tells High Court

Case Title: Nirmala Bhavesh Parmar vs State of Maharashtra

The Bombay High Court was last month informed that the Maharashtra government has issued a circular instructing all the police officers across the State to 'scrupulously' implement the provisions of the newly enforced Bharatiya Nagarik Suraksha Sanhita (BNSS), which mandate the investigating officer to update the progress of the probe to the complainant, within 90 days of the registration of the First Information Report (FIR).

A division bench of Justices Revati Mohite-Dere and Prithviraj Chavan was hearing a writ petition filed by one Nirmala Parmar seeking directions to the Mumbai Police to strictly comply with section 173 of the Criminal Procedure Code (CrPC) which mandates an investigating officer to hand over a copy of the 'action taken report' or the chargesheet, to the complainant.

Chhattisgarh High Court:

S.482 BNSS Widened Court's Discretion On Anticipatory Bail By Deleting Guiding Factors Like Nature Of Offence, Antecedents: Chhattisgarh HC

Case Title: Smt. Parisha Trivedi & Anr. Versus State of Chhattisgarh

The Chhattisgarh High Court recently pointed that Section 482 of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) has widened the discretion conferred upon a criminal court wile deciding the anticipatory bail plea of a person apprehending arrest.

Justice Goutam Bhaduri highlighted that the legislature has deleted the "guiding factors", contained in the erstwhile CrPC, from the corresponding anticipatory bail provision in BNSS.

Delhi High Court:

Delhi HC Tells Lawyers To Not Use Old Criminal Laws In New Filings, Asks Them To Also Mention New Criminal Laws For Filings In Old Cases

Title: STATE THROUGH RPF v. DHARMENDRA @ DHARMA

Citation: 2024 LiveLaw (Del) 1072

The Delhi High Court has taken a “serious view” of the reliance upon old criminal laws by advocates to file new applications or petitions, despite implementation of new laws with effect from July 01.

Justice Chandra Dhari Singh directed the Registry to ensure that the new applications or pleas are filed under the new laws only.

Himachal Pradesh High Court:

Transgender Persons Cannot Invoke Section 69 Of BNS In False Promise Of Marriage Cases: Himachal Pradesh High Court

Case Title: Bhupesh Thakur Vs State of Himachal Pradesh

Citation: 2024 LiveLaw (HP) 56

Clarifying the limitations of Section 69 of Bharatiya Nyaya Sanhita (BNS) 2023, particularly in cases involving transgender individuals the Himachal Pradesh High Court has clarified that a transgender cannot invoke Section 69 of the which penalizes sexual intercourse on a false promise of marriage.

While explaining the actual mandate of Sec 69 and confirming the interim bail of an accused Justice Sandeep Sharma observed, “Since under BNS, “woman” and “transgender” have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS, rather he is required to be dealt with in terms of the under Section 18 (d) of the Act”.

Karnataka High Court:

S.223 BNSS | Notice To Accused Can't Be Issued Before Recording Sworn Statement Of Complainant & Witness: Karnataka HC Lays Down Procedure

Case Title: BASANAGOUDA R PATIL (YATNAL) AND Shivananda S Patil

Citation No: 2024 LiveLaw (Kar) 417

Clarifying the procedure to be followed by magisterial courts on issuance of notice on complaints under Section 223 BNSS, the Karnataka High Court Friday underlined that the opportunity of hearing to be provided to the accused in the provision is not an empty formality, without which cognizance cannot be taken.

Justice M Nagaprasanna passed the order while hearing a petition filed by BJP leader and MLA Basanagouda R Patil (Yatnal) who had approached the court questioning the notice issued to him by the magisterial court on the defamation complaint filed by Shivananda S Patil. The petitioner had claimed that the notice issued to him did not follow the procedure as per law.

Kerala High Court:

S. 250 BNSS | Court Has Discretion To Consider Discharge Plea Even After Prescribed Limit Of 60 Days: Kerala High Court

Case Title: Sajith v State of Kerala

Citation: 2024 LiveLaw (Ker) 585

The Kerala High Court has held that the limit of 60 days provided in Section 250 of Bharatiya Nagarik Suraksha Sanhita (BNSS) to file a petition of discharge is directory and not mandatory. Justice A. Badharudeen  further held that the period of 60 days will start from the date of supply of copies of documents to the accused.

BNSS Gives Wider Protection To Accused Of Unsound Mind Or Intellectual Disability, Will Apply Retrospectively: Kerala High Court

Case Title: V.I. Thankappan v State of Kerala

Citation: 2024 LiveLaw (Ker) 563

The Kerala High Court has held that protection afforded to an accused of unsound mind or with intellectual disability under the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 has wider scope and will thus apply retrospectively, to pending applications.

Justice K Babu held that BNSS will apply retrospectively to proceedings prior to July 01, 2024, to ensure fair trial for persons with intellectual disability or mental disability.

Trial Against Person With Alzheimer's Must Be Postponed Under CrPC & BNSS If Accused Incapable Of Making His Defence: Kerala High Court

Case Title: V.I. Thankappan v State of Kerala

Citation: 2024 LiveLaw (Ker) 563

The Kerala High Court has held that a person accused in a criminal case but incapable of making defence due to Alzheimer's Dementia is entitled to protection under the CrPC and The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Justice K Babu noted that dementia is a form of mental disability which include problems with language, memory loss, etc. and thus an affected person may be prevented from defending his case.

[False Promise To Marry] PIL In Kerala HC Says Section 69 BNS Regressive Towards Woman's Status, Discriminates Against LGBTQ Community

A lawyer has filed a Public Interest Litigation before the Kerala High Court challenging the constitutionality of Section 69 of Bhaaratiya Nyaya Sanhita (BNS), which criminalises sexual intercourse by employing deceitful means, like false promise to marry.

The petitioner has challenged the provision on the grounds that it violates the right of equality, right to expression and right to life guaranteed under the Constitution.

Punjab & Haryana High Court:

HC Can Entertain Plea U/S 528 BNSS To Monitor Probe By Forming SIT But Sufficient Cause For Not Approaching Magistrate Should Be Shown: P&H HC

Case title: AXXXXX v. State of Punjab and others

Citation: 2024 LiveLaw (PH) 256

The Punjab & Haryana High Court has made it clear that a High Court under Section 528 BNSS can entertain a plea for registering an FIR and monitoring an investigation by forming a Special Investigating Team (SIT) but the complainant should show a sufficient reason for not approaching the Ilaqa Magistrate first

Justice Sumeet Goel said, "In a given case, if the facts/circumstances so warrant, the High Court is well within its jurisdiction to entertain and consider plea(s) seeking registration of an FIR, monitoring of investigation in an FIR, constituting an SIT (Special Investigating Team), change of investigating officer & all such prayer(s) of such kind and nature. However, it would be prudent that an applicant/complainant, while seeking to invoke the jurisdiction of a High Court under Section 528 of BNSS, 2023 in the first instance seeking prayer(s) of above nature, shows sufficient cause for not having approached the Illaqa/Jurisdictional Magistrate in the first instance."

Whether All Criminal Pleas Filed After 1st July 2024 Will Be Governed By BNSS? Punjab & Haryana High Court Refers Issue To Larger Bench

Title: RXXXX v. STATE OF HARYANA AND ANOTHER Citation: 2024 LiveLaw (PH) 247

The Punjab and Haryana High Court has referred the issue of applicability of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to a larger bench.

Justice Harpreet Singh Brar disagreed with the opinion in Axxx v. UT Chandigarh where Justice Sumeet Goel had held that if a FIR is lodged under IPC but the application or petition in relation to it is filed after July 01, then provisions of BNSS will be applicable.

When Can Second/Successive Plea For Pre-Arrest Bail Be Granted Under BNSS? Punjab & Haryana High Court Explains

Title: XXX v. XXXX

Citation: 2024 LiveLaw (PH) 242

The Punjab & Haryana High Court has observed that for a successive anticipatory bail petition to succeed under the BNSS, the petitioner is required to show substantial change in circumstances and "a mere superficial or ostensible change would not suffice."

Justice Sumeet Goel clarified that, "No exhaustive guidelines can possibly be laid down as to what would constitute substantial change in circumstances, as every case has its own unique facts/circumstance. Accordingly, this issue is best left to the judicial wisdom and discretion of the Court dealing with such second/successive anticipatory bail petition(s)."

Punjab & Haryana High Court Stays Arrest Of Accused Who Wrongly Sought Pre-Arrest Bail Under CrPC, Grants Time To File Under BNSS

Title: Arshdeep Singh alias Arsh and another v. State of Punjab

Citation: 2024 LiveLaw (PH) 241

The Punjab & Haryana High Court has stayed the arrest of an accused who had filed anticipatory bail plea under the Code of Criminal Procedure (CrPC) instead of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Justice Anoop Chitkara said, "unintentionally choosing a wrong legal remedy should not become a technical hindrance for exercising Constitutional and statutory rights in pursuit of Justice. Given this, the appropriate relief under these compelling circumstances is limited protection and relief to exercise the correct option."

Bar On Anticipatory Bail U/S 482 BNSS In Certain Rape Cases Involving Minors Not Absolute: Punjab & Haryana High Court

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 230

The Punjab and Haryana High Court has held that bar on grant of anticipatory bail plea under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in certain cases of rape involving minors is not absolute.

Justice Sumeet Goel said, "a plea for grant of anticipatory bail/pre-arrest bail; under Section 438 of Cr.P.C. for offences under Sections 376(3)/376AB/376DA/376DB of IPC & under Section 482 of BNSS, 2023 for offences under Section 65(2)/70(2) of BNS, 2023; is maintainable."

S.111 BNS | State Can't Arrest First And Fish For Evidence Of "Organised Crime" Later: Punjab & Haryana High Court

Title: Suraj Singh @ Noni v. State of Punjab

Citation: Citation: 2024 LiveLaw (PH) 279

The Punjab & Haryana High Court has held that State cannot arrest a person for "organised crime" under Section 111 of the Bhartiya Nyaya Sanhita (BNS) without having any prima facie admissible evidence against him.

Justice Anoop Chitkara said, "Without legally admissible accusations, allegations, or evidence, the State cannot arrest a suspect to fish evidence against them or use such a suspect as custodial bait by any hook, line, and sinker to bring the case into the fold of S. 111 of BNS. Prima facie evidence must be admissible, and if such evidence is deemed inadmissible, the entire foundation will collapse."

Rajasthan High Court:

FIR For Offences Committed Before July 1 2024 To Be Lodged Under IPC Even After Enforcement Of BNS: Rajasthan High Court

Case Title: Vijay Sharma & Others Vs State of Rajasthan

Citation: 2024 LiveLaw (Raj) 282

The Rajasthan High Court has clarified that for a crime committed before July 1, 2024—the date when three new criminal laws came into effect—if an FIR is filed on or after July 1, the provisions/offences of the Indian Penal Code (IPC) will have to be invoked, and in such cases, the offences outlined in the Bharatiya Nyaya Sanhita (BNS) will not apply.

A bench of Justice Arun Monga , however, clarified that for such FIRs lodged after July 1, 2024, for offences under the IPC (as crime committed before July 1), the applicable procedure should be as prescribed in the Bhartiya Nagrik Suraksha Sanhita (BNSS) and not the Code of Criminal Procedure (CrPC).

Rajasthan HC Expands Scope of Section 95 BNSS To Include Telecom, Service Providers For Compelling Production Of Material Relevant To Trial

Case Title: Mala Ram v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 278

The Rajasthan High Court recently allowed a murder accused's plea under Section 94 BNSS by treating it as one filed under Section 95 BNSS, thereby expanding the provision's (Section 95) scope in the peculiar facts of the case and directed the trial court to obtain the call and location details of the witnesses in the case.

A single judge bench of Justice Arun Monga in its order observed that Section 94 of BNSS can be invoked only either at the instance of the court or the officer in-charge of the police station, who in a given situation, may consider any document to be produced for the benefit of the Court.