The concluding part of criminal justice laws looks at BNSS which is expected to speed up trials, raise conviction rates and lower pendency by improving the quality of evidence and ensuring its integrity
By Professor Dr Pallavi Gupta and Professor NK Bahl
After more than seven decades of democracy, there was a need for a comprehensive review of India’s criminal laws, including its procedural part. An attempt is made to overhaul it by enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973. This legislation is yet to come into force.
The main objective of BNSS is to speed up trials by laying down timelines, raising the rates of conviction and lowering the pendency of cases by improving the quality of evidence and ensuring their integrity by providing protection to victims and witnesses.
The new legislation envisages decongestion of jails by releasing undertrials who have undergone half of the sentence, or one third in the case of first-time offenders. The accountability of police officers has also been fixed.
Other highlights of BNSS are introduction of summary trials for small crimes and provision for recording statements of victims of sexual violence at their home by a female magistrate. Undefined terms such as bail, bond, bail bond, audio-video electronic means and electronic communication have been defined.
Powers of magistrates
The powers of the court of a first class magistrate have been enhanced. Now he may pass a sentence of imprisonment for a term not exceeding three years, or fine not exceeding Rs 50,000, or both or community service. The court of a magistrate of second class may now pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding Rs 10,000, or both or community service.
Abolished courts
The courts of Metropolitan Magistrates and Assistant Sessions Judges are abolished.
Protection to senior citizens
Infirm and elderly above 60 years have been given some protection from arrest. They shall not be arrested in offences entailing imprisonment for less than three years without prior permission of an officer not below the rank of DSP.
Further, those with acute illnesses have been protected as witnesses too. They will not be required to meet the Investigation Officer except at their residence.
For maintenance, a dependent father or mother can file an application against their son wherever they are residing, instead of the place of residence of their son.
Speedy justice
In order to check delays in the delivery of justice, only two adjournments can be granted by courts after hearing objections of the opposite side and for the reasons to be recorded in writing. The procedure for forfeiture and attachment of the proceeds of the crime are also introduced.
In-absentia trial
Generally, the accused tries to avoid trial in order to postpone his incarceration, if found guilty. In-absentia trial for absconding accused has been introduced, which will continue up to the delivery of the judgment to curb this tendency. A person can now be declared a proclaimed offender if he is involved in a case punishable with 10 years or more, including life imprisonment and death penalty. A provision for attachment and confiscation of their property situated outside India is also enacted.
Zero FIR and e-FIR
Generally, SHOs are reluctant to register FIRs, especially when the crime is committed outside the jurisdiction of their police stations. After its registration, the FIR was redirected to that police station under whose jurisdiction the offence was committed. Now the concept of zero FIR and electronic lodging of FIR have been introduced. Any FIR can be registered outside the limits of a police station, but within the state, through electronic means, irrespective of the area where the offence was committed. e-FIR also has the enabling provision that the signature of the person giving such an FIR is to be taken within three days before the FIR is taken on record.
If an officer in charge of a police station refuses to register an FIR, provision for sending such information in writing to the superintendent of police by post has been introduced. In cognizable offences, a magistrate before ordering an investigation by the police is required to examine the application of the complainant along with his affidavit and submissions made by the police officer.
Preliminary enquiry
The concept of preliminary enquiry is introduced in cases punishable with imprisonment of three years or more, but less than seven years to ascertain whether there exists a prima facie case for proceeding in the matter. Such an enquiry may be conducted by an officer in charge of a police station only with prior permission of an officer not below the rank of DSP. The time period to complete such an enquiry is fixed at 14 days. Such an investigation officer will proceed with the investigation when a prima facie case is made out. A forensic expert report is made compulsory in all offences punishable with imprisonment of seven years or more.
Accountability in investigation
To maintain transparency and accountability in investigation, videography of search and seizure along with preparation of a list of seized items and signing of it by the witnesses is now mandatory. Such videography may be done on the mobile phone.
To enhance the credibility of investigation and accountability of the police, it is now provided that in non-cognizable offences, the police officer shall refer the complainant to the magistrate.
Information of arrest
In every district and police station, a designated police officer not below the rank of ASI will maintain and give information to the public about the name and address of the persons arrested and the nature of the charge in the FIR. This information will be prominently displayed through digital means at every police station and district headquarters.
In case of arrest under a warrant, it is the duty of the arresting police officer to inform the designated police officer of the arrest and the place where it was done and to the police officer of another district where the arrested person normally resides.
Arrest by private person
Any private person can arrest a person who in his presence has committed a non-bailable and cognizable offence. But such an arrested person has to be handed over to a police officer or to the nearest police station within six hours.
Technology compatibility
The court can issue summons in electronic form, authenticated by the image of its seal or a digital signature. If the person summoned cannot be found, it may be served by leaving a duplicate for him with some adult member of his family residing with him.
Police custody
Initially, police custody remand was allowed for 15 days only during the first 15 days of investigation in all offences. Now, 15 days police custody remand is allowed in one go or in parts for an initial 60/40 days of total detention period of 90/60 days in offences punishable with death, imprisonment for life or imprisonment for a term of 10 years/less than 10 years. But this will not be a ground for refusal of bail.
Supplementary charge sheet
The police have to provide the progress of investigation to the victim of the crime within 90 days. The charge sheet is to be filed within a period of 90/60 days if the accused is in custody for the whole of this period. The supplementary charge sheet is to be filed in 90 days. This may be extended with the permission of the court. Previously, there was no time limit for further investigation and filing of the supplementary charge sheet. This provision serves as a safeguard against possible misuse of police power and prevents delays in criminal proceedings.
Supply of copies
For speedy justice, a timeline of 14 days from the date of production of the accused has been prescribed for supplying copies of the charge sheet and other documents to him. Copies of voluminous documents may be supplied through electronic means.
Load of sessions courts
The provision for mandatory summary trial has been introduced for less serious cases like theft and house trespass, entailing punishment up to three years of imprisonment. This is likely to reduce the docket explosion in the courts of district and sessions judges.
Sexual violence survivors
The provision for recording the statements of victims of sexual violence by a female judicial officer in the presence of a female police officer at the residence of the victim has been introduced. The parents or guardians of the victim may remain present during the recording of the statement.
Public servant’s prosecution
If an offence is committed by a public servant while discharging his official duties, protection from prosecution is provided. Permission by the government or competent authority is required. But usually, this takes a lot of time. Now their prosecution will go ahead if the competent authority fails to take a decision within 120 days. It shall be a deemed permission.
Audi alteram partem
Earlier, in complaint cases, the court was taking cognizance of an offence without even the knowledge of the accused person. Now, the magistrate shall grant an opportunity to the accused person to present his version to the court before it proceeds to take cognizance of an offence on a complaint.
BNSS provides protection to public servants against false and frivolous cases while discharging their official duties. The magistrate shall now take cognizance of a complaint against a public servant after considering assertions made by him about the situation that led to the incident and after receiving a report containing facts and circumstances of the incident from his superior officer. Thus, the principle of audi alteram partem (listen to the other side) is satisfied for the accused and public servants.
Automatic bail
When a person, during the period of investigation, inquiry or trial under this Sanhita of an offence has undergone detention for a period extending up to half the maximum period of imprisonment, he shall be released on bail. However, he will have to furnish his personal bond and bail bonds as directed by the court.
But in case of a first time offender, under trial accused has undergone jail, one third of the maximum fixed sentence, he shall be released on automatic bail. No person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for that offence under that law. Such a person shall be released on bail.
Time-bound delivery
After conclusion of the trial, judgment has to be delivered within 30 days, extendable up to 45 days for specific reasons to be recorded and the judgment has to be uploaded online within seven days of its delivery.
Sentencing to unsentencing
It is commonly seen that the sentences of criminals are commuted on political considerations. To stop the use of political pressure and punishment waivers by governments, it has now been provided that death sentences can only be commuted to life imprisonment and life imprisonment can be commuted only with not less than seven years of imprisonment. A sentence of seven years or more can be commuted for imprisonment for a term not less than three years. A sentence of imprisonment for less than seven years can be commuted to punishment of fine.
Mercy petitions
The president and governor of a state have powers to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any convicted person. In BNSS, the judicial review of decisions taken by the president and/or governor on mercy petitions of death row convicts is now barred. It seeks to bar appeals against any order made by the president/governor in exercise of the power to grant pardon or to commute death sentence under Article 72/161 of the Constitution. Thus, courts cannot go into the grounds of the president’s or governor’s decision.
This provision has wide ramifications as it will rob death row convicts of one last judicial remedy or hope before that last walk to the hangman’s noose. The Supreme Court gave dramatic late night graveyard shift hearings in 2015 on appeals filed by Yakub Menon, a Mumbai blast convict and in 2020 to four Nirbhaya’s convicts. This will not be possible now.
All in all, the BNSS, is a welcome step and there has been a lot of focus on oiling, greasing and speeding up the wheels of justice, but some of it flies over infrastructure realties. For example, a forensic team mandatorily visiting the scene of the crime for offences involving punishment of more than seven years appears an impossibility due to the huge backlog. Even in metropolitan forensic laboratories, the backlog can sometimes run into years.
The government in its wisdom has rightly deferred the date of enforcement of BNSS so that infrastructure, software, training of human resources and publication of books can be done.
—Professor Pallavi Gupta is Head of the Department of law, JIMSEMTC, Greater Noida and Professor NK Bahl is a former District & Sessions judge UP