An overhaul, the criminal law Bills, and the big picture

Source– The post is based on the article “An overhaul, the criminal law Bills, and the big picture” published in “The Hindu” on 9th September 2023.

Syllabus: GS2- Indian Polity

Relevance- Important bills and acts

News– The central government has introduced three Bills in Parliament in August called the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Bharatiya Sakshya (BS) Bill, 2023.

What are provisions in BNSS on registration of FIR and conducting inquiry?

The BNSS includes a provision regarding the registration of cognisable offenses at any police station, regardless of the location of committed offense. This practice is known as recording a First Information Report at Zero.

A new provision has been introduced to allow for a preliminary inquiry to determine the presence of a prima facie case.

This should be done even when the information suggests the commission of a cognisable offense punishable with imprisonment between three to seven years.

This diverges from the Supreme Court’s ruling in Lalita Kumari versus Govt. of Uttar Pradesh (2013). SC mandated the mandatory registration of an FIR when a cognisable offense is disclosed.

This clause has both advantages and disadvantages. Parties in dispute may reach a compromise within the 14-day timeframe allotted for a preliminary inquiry. But, the police might misuse this period to avoid registering even valid cases.

What are provisions in BNSS related to arrest of accused and issues related to them?

All provisions of the CrPC on arrest have been retained in the BNSS.

A new clause stipulates that for offenses carrying a sentence of less than three years of imprisonment, an arrest can only be made with prior permission from the Deputy Superintendent of Police. It is for individuals who are infirm or aged over 60.

The new Codes allow for handcuffing in at least a dozen categories of persons accused of serious offenses, including terrorist acts, murder, rape, acid attacks, or offenses against the state. This is likely to aid the police in securing the custody of such individuals.

However, the enabling section guiding handcuffing remains unchanged. It states that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

Therefore, the investigating officer will still need to justify handcuffing based on the potential for escape or physical harm when these criminals are presented before the court.

The new Sanhita introduces a requirement for a forensic expert to visit the crime scene and collect forensic evidence in cases where the punishment is more than seven years of imprisonment.

However, the new code has recognized the practical limitations of limited forensic infrastructure at the ground level. State governments have been granted a maximum of five years to implement this provision.

The Sanhita promotes the use of audio and video recording during various stages of investigations, including searches. However, the preferred use of smartphones, as recommended, has its limitations.

In the case of Shafhi Mohammad vs. The State Of Himachal Pradesh (2018), the Supreme Court directed the Ministry of Home Affairs and states to establish facilities for the videography and photography of crime scenes during police station-level investigations.

What is criticism against BNSS code?

The ban on the two-finger test in cases of rape is not explicitly included in the Code. The Supreme Court has declared in the Lillu @ Rajesh & Anr vs. State Of Haryana (2013) case that this test is unscientific and violates the dignity and privacy of rape victims.

Regarding the disclosure of the identity of rape victims, the provision allowing authorization to the next of kin when the victim is a minor needs reconsiderstion.

This is because the Protection of Children from Sexual Offences Act exclusively addresses this issue and does not include a similar provision.

The Supreme Court, in the case of Nipun Saxena vs. Union Of India (2018) expressed reservations about delegating such authority to the next of kin.

One provision in the Sanhita that has drawn criticism is the extension of the period of police custody beyond the 15 days stipulated in the CrPC.

This extension allows the police to re-interrogate an accused individual if additional evidence surfaces during an investigation.

What are some positive aspects of the BNSS code?

The Sanhita proposes broadening the scope of judicial inquiry into suspicious deaths to include dowry-related deaths.

A useful addition that could have been included in the Sanhita relates to videography and photography of post-mortems, especially in cases of custodial deaths or deaths resulting from encounters.

The Supreme Court and the National Human Rights Commission of India have consistently urged states to comply with such directives.