An overhaul, the criminal law Bills, and the big picture (GS Paper 2, Polity and Governance)
Context:
- The central government 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 they are to replace the existing Indian Penal Code, 1860, the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872, respectively.
- Though some amendments have been made and gaps filled through judicial pronouncements, the statutes have stood the test of time.
The Bharatiya Nagarik Suraksha Sanhita:
Registration of a cognisable offence:
- There is an explicit provision in the BNSS 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 first information report, or FIR at Zero) has been in use for many years now, its formal inclusion in the BNSS may help complainants get their cases registered as a matter of right without running around.
Preliminary inquiry:
- A provision has been added to permit the conduct of a preliminary inquiry to ascertain the existence of a prima facie case even if the information discloses commission of a cognisable offence 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 versus Govt. of Uttar Pradesh (2013), where 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 a preliminary inquiry, this was only to ascertain commission of a cognisable offence and not check their truthfulness.
Pros & cons of preliminary inquiry:
- The parties at dispute may arrive at a compromise in the given limit of 14 days to conduct a preliminary inquiry, or cases may not turn out to be true, prima facie, to proceed further.
- On the other hand, the police may misuse this period and avoid registering even true cases.
- All provisions of the CrPC on arrest have been retained in the BNSS. It would have been appropriate to include the ratio of the Supreme Court judgment in Arnesh Kumar versus State of Bihar (2014) to justify an arrest by making it mandatory for the police officer to mention reasons of arrest supported with justifiable material, and for the judicial magistrate to record satisfaction and make it a formal part of the BNSS.
Punishable offenses:
- A new clause says that for offences punishable with less than three years of imprisonment, an arrest could be done only with the prior permission of Deputy Superintendent of Police if the accused person is infirm or is aged over 60.
- This may provide some relief to these two categories of persons provided the Deputy Superintendent of Police uses the clause judicially.
Guidelines on handcuffing:
- The new Codes provide for handcuffing in at least a dozen categories of persons who are accused of serious offences inter alia such as one who commits a terrorist act, murder, rape, acid attack or offence against the state. This is sure to help police, who may be short staffed, to secure their custody.
- But the enabling section that guides handcuffing has not changed. It 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 (or physical attack) when such criminals are produced before court.
- Since the constitutional provision and enabling provision of the law remain unaltered, the Supreme Court’s guidelines on handcuffing will still prevail.
Forensic experts:
- The new Sanhita provides for a mandatory visit of the crime scene by a forensic expert and the collection of forensic evidence for offences punishable with more than seven years of imprisonment.
- But on realisation of the ground reality (of limited forensic infrastructure at field level), a maximum five years of leverage has been given to State governments to bring this clause into operation.
- Therefore, unless State governments commit themselves to the provision of sufficient resources for the development of forensic infrastructure (technology and manpower), the impact of this change may not be visible soon.
Audio-video means in recording:
- The Sanhita rightly encourages the use of audio-video means in recording the various steps of investigation; this includes searches. However, the preferred use of smartphones (as recommended) has its limitations. The Supreme Court in Shafhi Mohammad vs The State Of Himachal Pradesh (2018) directed the Ministry of Home Affairs and States to develop facilities for the videography and photography of crime scenes during investigation at the level of the police station.
- A pilot project is in progress, and this needs to be taken forward to ensure that the provisions of the new Code are implemented in their true spirit.
Issues related Rape cases
Two-finger test:
- Despite a ban on the two-finger test in a case of rape, and this test having been termed by the Supreme Court to be unscientific and violative of the dignity and privacy of a rape victim/survivor (in Lillu @ Rajesh & Anr vs State Of Haryana, 2013), the ban does not have a place in the Code.
- Since the Union Ministry of Health and Family Welfare had also issued similar instructions, with guidelines for the medical examination, this was a good opportunity for the central government to have ensured compliance of its own instructions in a legal way.
Disclosure of identity of victim:
- On the disclosure of identity of victim/survivor of rape, the provision of giving authorisation (to disclose identity) to the next of kin in case the victim is minor, may also be omitted as the Protection of Children from Sexual Offences Act, which exclusively deals with this issue and does not have a similar provision.
- The Supreme Court in Nipun Saxena vs Union of India (2018) also expressed reservations as the next of kin may not be an appropriate party to delegate such authority.
Duration of police custody:
- A provision in the Sanhita that has raised the eyebrows of critics is the increase in the period of police custody exceeding 15 days, as provided in the CrPC. This may help the police to interrogate an accused person again if additional evidence is found during an investigation.
However, there are two caveats to this provision.
- First, there must be adequate grounds to permit an extension.
- Second, the 15 day limit can be exceeded only after the initial 40 days or 60 days out of a total detention of 60 days or 90 days (depending on whether an offence is punishable with imprisonment of up to 10 years, or more).
- The accused will still be eligible to be released on default bail after a total detention of 60 days or 90 days, as provided in the CrPC. Thus, the discretion to permit additional police custody rests with the judiciary.
Judicial inquiry into suspicious deaths:
- The Sanhita also proposes enlarging the scope of judicial inquiry into suspicious deaths by including dowry deaths, but relaxes the provision of the mandatory recording of statement of a woman, a male under the age of 15 or above 60 (65 years in the CrPC) at the place of their residence based on their willingness.
- It is hoped that this provision is not misused by the police, especially in crimes against women and children.
Custodial death:
- A standing order that could have been included in the Sanhita with respect to inquest is the videography and photography of a post-mortem, particularly in cases where it is a custodial death or is a death caused in an exchange of fire with the police or other authorities.
- The Supreme Court and the National Human Rights Commission of India have repeatedly asked States to comply with such instructions.
- Another observation of the Court to make a spot sketch of the scene of crime drawn on scale by a draftsman in order to make it admissible in court, could also be included in the Sanhita to improve the quality of investigation.
Way Forward:
- Overall, some of the proposed changes are definitely progressive in nature, but cannot be termed as path-breaking or radical. What must not be forgotten is that police stations are generally under-staffed, have poor mobility, insufficient training infrastructure and poor housing facilities.
- Police personnel work under stressful conditions. Therefore, the colonial mindset will go only if police reformation is taken up in its entirety and not just by tweaking some provisions of the applicable laws.
