Mohd Mustkeem Baig
India has one of the largest number of pending court cases in the world. Many judges and government officials have said that the pendency of cases is the biggest challenge before Indian judiciary. 4.5 crore out of 5.1 crore cases, i.e more than 87% cases are pending in district courts as of 2024. With the cases taking time in courts, it leads to delays in the delivery of justice for both victim and accused. In order to ensure speedy justice to all its citizens in conformity with these constitutional and democratic aspirations the need of the hour is to make a comprehensive review of the framework of criminal laws to provide accessible and speedy justice to all. With the changing scenario and social economic development the use of technology and forensic sciences in the investigation of crime and use of electronic medium of communication is necessary. The three new criminal laws – Bharatiya Nyaya Sanhita (BNS), BharatiyaNagarik Suraksha Sanhita (BNSS) and BharatiyaSakshaAdhiniyam (BSA) – which seek to replace the British-era Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence act will come into force from July 1 this year, the Centre has announced. BharatiyaNagarik Suraksha Sanhita, 2023 (BNSS) (formerly Criminal Procedure Code, 1973 has divided different types of crimes/ offences into several chapters. Beneficial provision in the BNSS is the time-bound completion of investigations (Section 193 BNSS-2023), which mandates electronic communication of investigation progress and final reports.
Section 105 is a new provision added to the BNSS. Section 105 mandates that search and seizure made by the police, including preparing the list of seized items and signature of witnesses, shall be recorded through audio-video electronic means. It further obliges the police officer to forward such recording “without delay” to the District Magistrate, Sub-Divisional Magistrate, or First-Class Judicial Magistrate. Section 105 of BNSS will ensure more transparency and curb the misuse of police powers by eliminating any likelihood of the police planting fake evidence. On-cognizable, bailable or non- bailable and compoundable or non-compoundable are listed in the First Schedule of the BNSS.It is generally observed that these new statutes provide for definitive and hence relatively expeditious timelines. These provisions will arguably enhance the efficiency with which criminal matters are handled by law enforcement and the judiciary. Any offence of which cognizance cannot be taken by the police is a non-cognizable offence. In cases of non-cognizable offences, a police officer has no authority to arrest without a warrant from the magistrate; the police must obtain an order under Section 174(2) of BNSS from the magistrate. Once such an order is obtained, the police may treat the said case in the same way as a cognizable offence.If the police at any point refuses to register an offence, the aggrieved person can approach the magistrate by making an application under Section 175(3) of the BNSS to present their case. A direction may then be given by the magistrate to the police to take cognizance of the case. Before approaching the magistrate, the aggrieved person will have to comply with Section 173(4) of BNSS to inform the Superintendent of Police/ Deputy Commissioner of Police (SP/ DCP) about the failure of the police officer to register an FIR. The SP/ DCP may, on being satisfied that a cognizable offence has been committed, investigate the case themselves or direct the investigation to be made by any officer subordinate to him.As opposed to Section 154 of the CrPC which was jurisdiction-centric, a police officer can now register an FIR at his/ her police station, irrespective of the area where theoffence is committed. The said police station registering the FIR can transfer the FIR/investigation to the concerned police station under whose jurisdiction the offence has been committed. However, the new provisions for investigation procedures, particularly Section 167 CrPC. (now Section 187 BNSS-2023), raise concerns. Section 187(2) BNSS-2023 allows for a remand period of up to 15 days at any time during the initial 40 or 60 days of detention, depending on the case, which complicates matters.This provision permits the police to seek remand even after the initial remand period is over, effectively delaying bail for the accused. No bail application can be entertained while the accused is under police remand during the initial 60 days of detention. This can be misused by the police to delay bail consideration by the Magistrate, Sessions Court, or even the High Court. Adapting these new laws will be challenging for the judiciary and law enforcement. Comprehensive training programs, workshops, and seminars are crucial to ensure that lawyers, police officers, and judges effectively understand and implement these changes.
(The author is Advocate High Court of Jammu & Kashmir and Ladakh.)
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