Changes made by Bhartiya Nagarik Suraksha Sanita, 2023

Source: Indian Express 

Introduction 

There are several changes made in Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) that are in contradiction with settled judicial precedents and will hence create ambiguity in the legal regime. 

What are the Changes made in Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) with regard to filing of First Information Report (FIR)? 

• Section 173 of BNSS provides for filing of First Information Report in case of cognizable offences. 
• Section 173 (3) of BNSS states that on receipt of information of a cognizable offence punishable with three years or more but less than seven years, the officer in charge of the police station may with the prior permission from the officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence: 
  • Proceed to conduct preliminary enquiry to ascertain whether there exists prima facie case for proceeding with the matter within a period of 14 days. 
  • Proceed with the investigation where there exists prima facie case     
• Note that the above provision goes against the 2013 Lanmark ruling of the Supreme Court in the case of Lalita Kumari v. State of Uttar Pradesh (2014). 
• The Supreme Court in the above case held that the registration of FIR without delay is mandatory in case of receipt of information in a cognizable case.  
  • Certain categories were mentioned in the judgment itself where preliminary enquiry was allowed. These were: 
    • Matrimonial disputes 
    • Commercial offences 
    • Medical Negligence cases 
    • Corruption cases 
    • Cases where there is abnormal delay in initiating criminal prosecution. 
• Thus, while under the old regime that is Criminal Procedure Code, 1973 (CrPC) preliminary enquiry was allowed only in cases falling under specific categories, the BNSS has expanded the scope of preliminary enquiry and under it, all offences where punishment is greater than 3 years but less than 7 years preliminary enquiry can be conducted. 

What are the Changes Made with Regard to Right of Accused to be Heard in Complaint Cases?  

• Section 200 of CrPC provides that the Magistrate shall take cognizance of the offence on complaint after examining upon oath the complainant and the witnesses.  
• Once the cognizance is taken the accused is formally summoned.  
• Section 223 of BNSS retains the above, however, a proviso is added to this provision. 
  • The proviso provides that no cognizance of offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 
• In the case of State of Orissa v. Debendranath Padhi (2004) the Court has held that the accused does not have the right to produce the documents during the Framing of Charges of stage of the trial.  
  • The Court held that the judge can only consider the material produced by the prosecution to avoid “mini trial” at the stage of charge framing. 

What are the New Provisions with Regard to Cognizance in Case of a Complaint against Public Servant? 

• Section 223(2) of BNSS provides that: 
  A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless: 
  • such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and  
  • a report containing facts and circumstances of the incident from the officer superior to such public servant is received.  
• The CrPC has no such wide exemption, it only exempts examination of public servant when the complainant is a public servant and he is acting in discharge of his official duties.  

Conclusion 

The provision for preliminary enquiry and the right of accused to be heard before cognizance is taken on complaint have been introduced by the BNSS. These were not present in CrPC. Prima facie, these provisions are in conflict with the settled judicial precedents. It would be interesting to see how new laws will affect the criminal justice system of our country.