Monday 24 June 2024

Important changes brought about by Bharatiya Nagarik Suraksha Sanhita, 2023{Part 2}

1) Recording of evidence of successor of public servant

In order to expedite trials, a very timely provision has been added by way of Section 336 of BNSS. Whenever a report/document prepared by a public servant, scientific expert, or investigating officer is supposed to be used as evidence in a court, the maker of such document needs to testify before such court. However, due to unavoidable circumstances such as death, retirement, inordinate delay etc. in getting such person, the court can secure the attendance of the successor officer of such person. 

2) Another step taken to expedite trials is that now as per revised Section 274 of BNSS or Section 251 of CrPC regarding summons cases, a magistrate after recording reasons can now discharge the accused in case of groundless accusations.

3) In multiple instances, the role of other laws and agencies has been explicitly recognised by BNSS. For instance, earlier as per Section 268(2) of CrPC only state government could have passed a notification regarding prisoners, but now as per the revised corresponding Section 303(2) of BNSS even “Central government in cases instituted by its central agency” can do the same.

4) The procedural law is finally giving recognition to the fact that special judges equivalent to (Additional) Sessions Judges can be appointed under several legislations such as NDPS Act 1985, POCSO Act 2012 etc. In this line, Section 249 of BNSS corresponding to Section 226 of CrPC which relates to ‘opening case for prosecution’ in a sessions trial, mentions “any other law for the time being in force”. Similarly, the exact same phrase has also been added to Section 306(2) of CrPC or the revised Section 343(2) of BNSS to signify that special judges could have been appointed under other laws as well.  In Sections 418 and 419 of BNSS corresponding to Sections 377 and 378 of CrPC, references to agency under ‘Delhi Special police Establishment Act, 1946’ have been removed and replaced by ‘any agency under any Central Act’.

Many proceedings under this code, both judicial and executive, have now been mandated to become time-bound by providing maximum time limits in which they must be done. Some of the specific section-wise changes implementing this are:

A) In proceedings for ‘Conditional order for removal of nuisance’ under Section 152 of BNSS or 133 of CrPC, such proceedings are now mandated to be completed within 90 days as per a new proviso to Section 157 of BNSS as corresponding to Section 138 of CrPC.

B) Information regarding non-cognizable offences:By amending erstwhile section 155 or the new section 174 of BNSS, police is required to send information regarding non-cognizable offences to the concerned Magistrate on a fortnightly basis.

C) Medical examination of a victim of rape under new section 184(6) of BNSS corresponding to the old section 164A(6) has been time bound by substituting the words ‘within seven days’ instead of ‘without delay’.

D) Further investigation during trials under section 173(8) of CrPC or Section 193(9) of BNSS needs to be completed within 90 days as per proviso to Section 193(9) of BNSS.

E) Inquest proceedings under Section 196 of BNSS or Section 174 of CrPC, police is required to send a report within 24 hours to the concerned District/Executive magistrate.

F) Committal proceedings’ by Magistrate to Sessions court under Section 232 of BNSS corresponding to Section 209 of CrPC have been mandated to be completed within 90 days from date of taking cognizance. This can be extended to a maximum of 180 days by providing reasons in writing.

G) Supply of copy of chargesheet:As per Section 230 of BNSS corresponding to Section 207 of CrPC, copy of police report and other documents now need to be supplied to the accused and victim free of costs within 14 days of date of production/appearance. Earlier there was no time limit for the same as the then section 207 simply mentioned ‘without delay’.

H) A proviso added to Section 218(1) of BNSS which corresponds to Section 197(1) of CrPC i.e., ‘Prosecution of Judges and Public Servants’ is quite noteworthy as it seeks to reduce the time for such prosecutions. As per this proviso, if the concerned government fails to give a decision on the requisite sanction within 120 days, it shall be treated as ‘deemed sanction’ given by the government.

I) Discharge of accused:- In both Sessions and Magistrate trials, certain processes have been made time-bound by the new code of BNSS. If the accused wishes to be discharged in a Sessions trial as per Section 250 of BNSS corresponding to Section 227 of CrPC, he must prefer an application for the same within 60 days of committal.

J) Framing of charge:- Even the charges under Sessions Trial and Magistrate Trial in warrant cases now need to be framed within 60 days of first hearing on charge as per the addition to Section 251(1)(b) and 263(1) of BNSS as corresponding to Section 228(1)(b) and 240(1) of CrPC.

K) Delivery of Judgment:- As per Section 258 of BNSS corresponding to Section 235 of CrPC, after completion of arguments, a judgment of acquittal or conviction by Session Court has to be given within 30 days which can be extended to 60 days only by giving special reasons.

L) Closing case of complainant if witnesses fails to remain present for cross-examination:-

A pertinent addition to shorten some trial proceedings is the addition of subsection (7) in Section 269 of BNSS corresponding to Section 246 of CrPC wherein prosecution evidence can be closed if the witnesses do not turn up despite taking all reasonable measures.

M) Offences of same kind within year may be charged together

An interesting change has been incorporated to expedite trials under Section 242(1) of BNSS as corresponding to Section 219(1) of CrPC. Earlier, for offences of the same kind within a span of a year given certain circumstances, a person could be charged and tried for a maximum of ‘three’ offences at once. This limit has now been raised to ‘five’.

N) Changes regarding adjournment

A noteworthy change done to the procedure to shorten the trial duration is the addition of sub-clause (b) to the proviso under Section 346(2) of BNSS corresponding to Section 309(2) of CrPC.

The said clause is being reproduced from BNSS 2023: “where the circumstances are beyond the control of a party, not more than two adjournments may be granted by the Court after hearing the objections of the other party and for the reasons to be recorded in writing”. It has often been felt that undue adjournments taken in a trial often leads to significant delays. Now, some accountability has been sought to be fixed by disallowing unwarranted adjournments.

O) Copies of Judgment

  • Parties’ woes usually don’t cease after the conclusion of a trial as they might have to wait for indefinite periods for a copy of the judgment. As per Section 392(1) of BNSS or Section 353(1) of CrPC, judgment in every trial has to be pronounced within 45 days of termination of trial. The said judgment needs to be uploaded online within 7 days of pronouncement by the addition of a proviso to Section 392(4) of BNSS or Section 353(4) of CrPC.

  • P) Disposal of seized property

  • For efficacious disposal and custody of perishable property pending trial, the magistrate court shall pronounce an order for disposal/custody/delivery within thirty days as per newly added subsection 5 to Section 497 of BNSS corresponding to Section 451 of CrPC. As per the addition to Section 499 of BNSS or Section 453 of CrPC, an innocent purchaser of stolen property needs to be paid ‘within six months’ of the date of passing of any compensation order to the same effect. Earlier, such a time frame was not provided.

  • Q) Increasing the scope of Summary trial

  • By deletion of Section 260(1)(i) of CrPC and introduction of Section 283(2) in BNSS, any offence under three years of imprisonment can be tried as a summary trial. While this is a laudable change, ideally in the definitions clause, definition of a ‘warrant-case’ as per Section 2(y) of BNSS should have also been suitably amended to includes offences only with imprisonment more than 3 years instead of the original 2 years. Now, this may lead to a situation where a magistrate may be confused as to which procedure to follow i.e., Warrant Trial or Summary Trial, for offences with punishment more than 2 years but less than 3 years.

  • R) Increase in power of magistrate to give specimens/samples such as fingerprint, voice sample or handwriting samples

  •  as per a proviso added to Section 349 of BNSS corresponding to Section 311A, now a magistrate may ask any person without a history of arrest to give specimens/samples such as fingerprint, voice sample or handwriting samples. Earlier, this could not have been done unless the person was not arrested in connection with an investigation. While one might make the claim that this would reduce unnecessary arrests merely for taking samples, but this exercise of sample taking should ideally be exercised with great caution and only when it is of utmost importance to a trial.

  • S) Introduction of provisions regarding handcuff

  • Another concerning provision is the addition of a new subsection (3) to Section 43 – ‘Arrest how made’ of BNSS. This new provision now formally brings back the usage of handcuffs. On one hand, it may be argued that usage of handcuffs becomes vital in serious cases and not having the same may seriously impede investigation. However, by diluting the scope of this section as can be seen in BNSS, this provision might run contrary to the landmark 1979 Supreme Court verdict of Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 which heavily critiqued the indiscriminate use of handcuffs.

  • T) Police power of search and seizure

  • BNSS also adds a new Section 107 which gives vast powers of seizure and attachment of property. This section gives police the power to have the property of any accused seized and forfeited if it is suspected to be involved in criminal activity. 

  • U) Power of remission

  • while discussing the State government’s power to remit or commute a sentence, earlier as per Section 435 of CrPC the states were only required to ‘consult’ the Central government. Now, as per Section 477 of BNSS the word ‘consultation’ has been substituted by ‘concurrence’. This may lead to situations wherein various state governments might allege that their exclusive power has been made subservient to the will of the Centre.

  • V) Commutation of sentence

  • By amending Section 433 of CrPC, the new law also significantly curbs down the power of government to commute sentences under the revised Section 475 of BNSS. For instance, earlier a death sentence could be commuted for any punishment. Now, it can only be commuted to life imprisonment. Similarly, life sentence or sentence of rigorous imprisonment could earlier be commuted and substituted by imprisonment or fine. Now, both life sentence or sentence of rigorous imprisonment cannot be commuted to just fine.

  • W) Prosecution of public servant

  • A curious change which has been observed in the law as compared to the older code is that it has become significantly harder to successfully prosecute public servants. Notwithstanding the proviso added to Section 218(1) of BNSS by which ‘deemed sanction’ for prosecution is granted in case of state inaction, several other provisions have in fact made the process harder.

  • X) Notice not to be issued to informant 

  • Another change is the deletion of the last line “the fact that he will not investigate the case or cause it to be investigated” from Section 157(2) of CrPC as corresponding to Section 176(2) of BNSS – ‘Procedure for Investigation.’. Earlier, the fact where police chose not to investigate a case was supposed to be notified to the informant in the said case. This was supposed to ensure that an informant, who is a key stakeholder in a criminal trial and investigation is kept in loop. This fact was also recognised by the Hon’ble Supreme Court in the case of Bhagwant Singh vs. Commissioner of Police AIR 1985 SC 1285, where building upon the existence of such provisions, the Apex Court emphasised the importance of informant/victim and led to the creation of the judicial remedy of ‘Protest Petition’. But, by deletion of this phrase, BNSS has impacted the rights of an informant at the stage of investigation.

  • Y) Change in remand procedure

  • Perhaps, the most alarming change in the entire procedural law has been done to the remand procedure as prescribed under Section 167 of CrPC corresponding to the revised Section 187 of BNSS.

    BNSS in Section 187(2) also uses the following new phrase which is reproduce below:

    “…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)…”.

  • Curiously enough, the new provision in Section 187(3) of BNSS as corresponding to Section 167 (2)(a) of CrPC does not use the phrase “otherwise than in custody of the police”, can this be understood to mean that for the entire period of investigation of 60/90 days one might be sent to police custody?

  • Z) Removal of house arrest option

  • The law also introduces a new proviso to Section 187(5) of BNSS as corresponding to Section 167(2) of CrPC. The same is reproduced below:

    “Provided further that no person shall be detained otherwise than in police station under policy (sic) custody or in prison under Judicial custody or place declared as prison by the Central Government or the State Government”

  • This according to the author has seemingly come as a response to the ‘Gautam Navlakha v.s NIA’ cases. One of the arguments raised by defendants therein was that Section 167(2) can be interpreted to include “house arrest” as well. With the introduction of this proviso, the same cannot be done anymore.

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