The central government recently introduced three new Bills in Parliament namely, the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Bill, 2023 to replace the existing Indian Penal Code, Criminal Procedure Code and Indian Evidence Act, which were enacted during the British times. Though some amendments have been made and gaps filled through judicial pronouncements, these statutes have stood the test of time. Let us see how the proposed changes, particularly in the BNSS, will impact the law enforcement agencies of India.
To begin with, there is an explicit provision on the registration of a cognisable offence in any police station, irrespective of the area where the offence is committed. Though this practice (known as recording FIR at Zero) is in use for many years, formal inclusion in the BNSS may help complainants to get their cases registered as a matter of right.
Formalising Preliminary Enquiry
A provision has been added to allow conduct of preliminary enquiry to ascertain existence of a prima facie case even if the information discloses commission of a cognisable office for offences punishable with more than three years but less than seven years of imprisonment. This is at variance with the ratio of the Supreme Court judgment in Lalita Kumari vs Govt. of Uttar Pradesh (2013) wherein it was held that the police have no option but to register an FIR if the information discloses commission of a cognisable offence.
Though certain categories were carved out to conduct preliminary enquiry, that was only to ascertain commission of a cognisable offence and not check their veracity. As there does not seem to be an intelligent differentia vis-a-vis the rest of the cases with the overall objective of the provision, this variance may not stand scrutiny of the Constitutional Courts.
Nevertheless, there are advantages and disadvantages to this clause. The parties at dispute may compromise in the given fourteen days of preliminary enquiry, or cases may not turn out to be prima facie true. On the other hand, the police may abuse this period and avoid registering even true cases.
Arrests: Why, When, How
All provisions of the CrPC on arrest have been retained. It would be befitting if the pith and core of the Supreme Court judgment in Arnesh Kumar vs State of Bihar (2014) is also imported and made a formal part of the BNSS.
A new clause says that for offences punishable with less than three years of imprisonment, arrest could be done only with the prior permission of Deputy Superintendent of Police if the accused person is infirm or is above sixty years of age. This may provide some relief to these two categories of persons.
The new Code provides for handcuffing of at least thirteen categories of persons including for one who is a habitual offender, or has committed offence of terrorist act, murder, rape, acid attack and offences against the State. This will surely help the police to secure their custody.
But the enabling section says that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape”. Therefore, the investigating officer will still have to justify handcuffing with the possibility of escape when such criminals are produced before the court. Since the Constitutional provision and enabling provision of law remains unaltered, the Supreme Court’s guidelines on handcuffing will still prevail upon.
Modernising Forensics
Despite banning of the two-finger test and terming it as unscientific, and violative of privacy rights of a rape victim by the Supreme Court, the ban does not have a specific place in the Code.
The new Code provides for mandatory collection of forensic evidence for offences punishable with more than seven years of imprisonment. Realising the ground reality of availability of limited forensic infrastructure at field level, five years leverage has been given to the State Governments.
Therefore, unless the state governments commit sufficient resources for the development of forensic infrastructure (both technology and manpower) the impact of this change will not materialise.
The Code rightly encourages the use of audiovisual means for recording various steps of investigation including searches. However, the preferred use of smartphones (as recommended) has many limitations.
The Supreme Court in Shafi Mohammad versus State of Himachal Pradesh (2018) had directed the MHA and the States to develop facilities for videography and photography of the crime scenes during investigation at police station level. As the pilot project is already in progress, this may be taken forward to ensure that the provisions of the new Code are implemented in true spirit.
Concerns Over Police Remand
One provision of the new Code that raised eyebrows of many critics pertains to the increase of the period of police custody exceeding fifteen days as provided in the CrPC. This may help the police to interrogate the accused again if some additional evidence is found during investigation.
However, there are two caveats to this provision. First, adequate grounds must exist for permitting extension and second, the fifteen days limit can be exceeded only after initial forty days or sixty days out of total detention of sixty or ninety days (depending upon whether offence is punishable with imprisonment of up to ten years, or more).
The accused will still be eligible to be released on default bail after total detention of sixty days or ninety days as provided in the CrPC. The discretion to permit additional police custody is entirely with the judiciary.
Police Reforms, Anyone?
Though some of the proposed changes are progressive in nature, they cannot be termed as path breaking or radical. The police stations are generally under-staffed, have poor mobility and cops have poor housing facilities.
They are not given a weekly off. Therefore, the colonial mindset will go only if the police reformation is taken up in its entirety and not just by tweaking some provisions of the law.
RK Vij is a retired Indian Police Service officer. Views are personal, and do not represent the stand of this publication.
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