BNSS 2023 – P39A Criminal Law Blog

Criminal Law Bills 2023 Decoded #23: Admissibility of Electronic Records

Editor 2 — Wed, 15 Nov 2023 12:09:10 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the implications of the changes proposed to the provisions pertaining to the admissibility of electronic evidence under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

Similar to s.65B IEA, Cl.63 BSB provides a specific procedure for the admissibility of electronic records. However, it introduces the following changes to the other provisions relating to primary and secondary evidence, that would impact the evidentiary nature and admissibility of electronic records:

Cl.2(c) BSB which replaces s.3 IEA, defines documents to also include ‘electronic or digital records’. Accordingly, separate references to electronic records have been deleted in certain provisions.^[1]
Cl.57 BSB, which replaces s.62 IEA, introduces explanations 4 to 7, which expand the meaning of primary evidence to include electronic or digital records. These explanations introduce the following changes:

Any electronic file which is created, or stored simultaneously or sequentially in multiple files (which would include copies) would be primary evidence.
If the proper chain of custody of electronic or digital records is produced, then it would be primary evidence.
Any video recording which is transmitted, broadcasted or stored in another device would be primary evidence.
If an electronic record is stored in multiple storage spaces in a computer, then each automated storage, including the temporary files, would be primary evidence.
Cl.62 BSB, which replaces s.65A IEA, states that electronic records must be proved as primary evidence, unless mentioned.
Newly introduced Cl.61 BSB, prescribes that the admissibility of electronic records cannot be denied on the basis of their nature as electronic records and their legal effect, validity and enforceability shall be at par with paper records.

Notably, Cl.63(4) BSB introduces the stage at which the certificate regarding the electronic record must be submitted. Further, it proposes changes to the authorship of such certificates, which may include the person in charge of the computer or communication device and an expert that retrieves the electronic record. Lastly, it also introduces a format for a two-part certificate to be submitted. Part A of the certificate should be filled by the party, who owns, manages or maintains the computer device from which the electronic record is retrieved. Part B of the certificate should be filled by the expert who retrieves the electronic record from the device. Currently, due to a lack of format for a certificate under s.65B IEA, there is no uniformity in the information that may be present in such certificates.^[2]

I. Background

Information Technology Act, 2000 amended IEA inter alia, to recognise electronic records as documentary evidence under s.3 IEA and provide a special procedure to govern their admissibility under ss.65A and 65B IEA.

There were contrary judicial opinions about the applicable procedure for the admissibility of electronic records. On the one hand, courts held that ss.65A and 65B IEA are merely clarificatory, and do not bar the applicability of general provisions for adducing documentary evidence, i.e. ss.63 and 65 IEA, to electronic records.^[3]On the other hand, special provisions under ss.65A and 65B IEA were considered to be a complete code applicable to electronic records, and therefore, adherence with the requirements under s.65B IEA was necessary for the admissibility of electronic records.^[4] In Arjun Panditrao Khotkar,^{^[5]} the Supreme Court resolved this conflict in judicial opinion in favour of the latter interpretation.

The Court clarified the following aspects regarding the admissibility of electronic records:

The non obstante clause (‘notwithstanding anything contained in this Act’) in s.65B(1) IEA makes it clear that the admissibility and proof of electronic records must necessarily follow the special procedure therein.
The general provisions regarding documentary evidence under ss. 62 to 65 IEA have no relevance for the admissibility and proof of electronic records.
S.65B(1) IEA differentiates between the ‘original’ document – which would be the original electronic record contained in the computer, in which the original information is first stored – and the copies made therefrom.
S.65B(1) IEA creates a deeming fiction that copies of electronic records shall be deemed to be a document if the conditions specified in s.65B(4) are satisfied. The deemed document would be admissible in evidence without production of the original document.
The original document being primary evidence would be admissible on producing the same without any requirements under s.65B; whereas copies of the original document being secondary evidence would be admissible only on satisfaction of conditions specified in s.65B IEA.

II. Removal of distinction between Originals and Copies of Electronic Records

Electronic or digital records are susceptible to alteration, transposition and modifications. These changes may occur either through manual intervention or even as unintended digital artefacts. Recognising this, s.65B IEA was introduced as a safeguard to ensure the authenticity of the copies of electronic records. It prescribes conditions for ensuring the lawful custody and operability of the computer from which it was originally produced and the chain of custody of such records. Therefore, the distinction between original and copies of electronic records is essential, as the latter should be admissible only if the requirements under s.65B IEA are met. However, explanations 4 to 7 in Cl.57 BSB remove the distinction between the original and copies of electronic records, by treating both as primary evidence. This may permit the admissibility of copies of electronic records, without the application of safeguards under Cl.63 BSB (equivalent of s.65B IEA).

As per explanation 4, any copies of electronic records, which may be sequentially stored in multiple files, would also be considered as primary evidence. For instance, this means that any electronic file such as CCTV footage, which is stored in a digital video recorder (DVR) and thereafter transferred to a USB drive, the footage in USB drive would also be primary evidence. This is despite the fact that the footage in the USB drive is a copy of the original DVR footage. Similarly, as per explanation 6, television broadcasts which are recorded by the users would also be primary evidence.

Further, it is unclear whether the explanations 4 to 7 are to be read together or separately. For instance, there may be electronic records which are covered within explanations 4, 6, or 7, but may not meet the requirement under explanation 5, due to lack of proper chain of custody. In this case, it is unclear whether such electronic records that lack proper custody would be considered as primary evidence.

III. Uncertainty regarding the procedure for Admissibility of Electronic Evidence

As discussed above, the explanations 4 to 7 to Cl.57 BSB, consider both originals and copies of electronic records as primary evidence. Therefore, it is uncertain whether copies of electronic records would be governed by the special conditions specified in Cl.63 BSB or would be directly admissible as primary evidence under Cl.57 BSB.

a. Option 1: special procedure may continue to govern Admissibility

In view of the non-obstante clause (‘notwithstanding anything contained in this Adhiniyam’) in Cl.63(1) BSB, the ratio of Arjun Panditrao Khotkar may continue to be good law. Therefore, the procedure prescribed in Cl.63(1) BSB would continue to govern the admissibility of copies, irrespective of whether they come within the purview of primary evidence as per explanations 4 – 7 to Cl.57 BSB.

b. Option 2: general provisions regarding Admissibility of Documentary Evidence may be applicable to Electronic Records

Unlike s.65A IEA which specified that contents of electronic records would be proved in accordance with special provisions under s.65B; Cl.62 BSB marks a significant shift as it prescribes that electronic records may be proved in a similar manner to other documentary evidence under Cl.59 BSB. Further, Cl.61 BSB, which also begins with a non-obstante clause, mandates that the admissibility of electronic records shall be at par with paper records.

These changes may be interpreted to mean that copies of electronic records within the purview of explanations 4 to 7 to Cl.57 BSB, may be proved as primary evidence, without following the special procedure in Cl.63 BSB. This may resurrect the view taken by the Supreme Court in Navjot Sandhu and Shafhi Mohammad, that the general provisions governing the admissibility of documents may also apply to electronic records. In these judgments, the Supreme Court held that the special procedure in s.65B IEA is not mandatory, and can be relaxed, for instance if the electronic record is produced by a party not in possession of the device.

IV. Changes to the conditions specified in Cl.63 BSB

Cl.63 BSB makes three broad changes to the conditions specified in s.65B IEA for the admissibility of electronic records.

Firstly, the definition of computer output in Cl.63(1) BSB has been expanded to include output from any communication device. It also adds that information in an electronic record may be ‘stored, recorded or copied in any electronic form’ to be covered within this provision. Similarly, Cl.63(3) BSB provides that computer output may be produced by computers or communication devices working standalone or in any system or network, including those managed by an intermediary such as telecom service providers, social media services etc.

Secondly, unlike s.65B(4) IEA, which does not clarify the stage at which the certificate must be submitted,^[6] Cl.63(4) BSB mandates that such a certificate shall be submitted along with the electronic record for admission. This is a positive change as it may ensure more meaningful compliance with the admissibility requirements under Cl.63 BSB.

Thirdly, Cl.63(4)(c) provides that the certificate shall be signed by ‘a person in charge of the computer or communication device and an expert (whichever is appropriate)’ as per the format specified in the schedule. This marks a change from the position under s.65B(4) IEA which specified that the certificate may be signed by a person in an official position in relation to the operation of the device or in the management of relevant activities. The proposed changes under Cl.63(4)(c) may help ensure only those persons directly in control of the device, irrespective of their official position or designation, who may be better suited to certify the operability of the computer and the authenticity of the electronic record are permitted.

However, the use of the terms ‘whichever is appropriate’ creates uncertainty regarding whether the certificate should be issued by both the person in charge of the device and an expert or whether it merely indicates the type of expert that may issue the certificate. This interpretation would be significant since Part A of the prescribed format of the certificate, which must be filled by the person in charge of the device, varies from Part B which has to be filled by the expert. Only Part B of the certificate carries the requirement to state that the computer device was operating properly and to specify the hash value of the file, which is essential for authenticating the electronic record.^[7] Therefore, in case submission of Part A of the certificate filled by the person in charge of the computer or communication device is sufficient, then the proper operation of the device and the hash value of the file may not be specified.

[1] References to electronic records in Cls.20 and 54 BSB, which replace ss.22 and 22A, and s.59 IEA respectively, have been removed.

[2] Courts have attempted to close this gap by laying down guidelines for investigating authorities for information to be included in a certificate under s.65B IEA. These guidelines emphasise that the details of the computer devices, storage devices or software for making copies of electronic record (including make and model, serial number) and hash value of the electronic record must be mentioned; Saibunisha (died) & Syed Jameel v. The State represented by the Inspector of Police CBCID Madurai Town and Ors. (2023) Madras High Court Crl. A. (MD). No. 423 of 2019 and 181 of 2021 [39], <https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/899140>, last accessed on 20.10.2023; Yuvaraj v. The State, represented by the Additional Superintendent of Police CBCID Namakkal District & Ors. (2023), Madras High Court, Crl.A.(MD).Nos.228, 230, 232, 233, 515, 536 &747 of 2022 [206]-[208], <https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/883500>, last accessed on 20.10.2023.

[3] State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600; Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801.

[4] Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473.

[5] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1.

[6] Arjun Panditrao Khotkar [52]-[59]: The Supreme Court held that considering the absence of stage for production of certificate under s.65B IEA, the trial court may allow its submission at any stage before the conclusion of the trial.

[7] Yuvaraj [206]-[208].

Criminal Law Bills 2023 Decoded #22: Provisions Pertaining to Bail and Bonds

Editor 2 — Wed, 15 Nov 2023 11:58:13 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the various modifications in the chapter relating to bail, including the introduction of definition and changes in the scheme of maximum period of detention as an undertrial under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

Chapter XXXV of the BNSS (Cls.479 to 498) deals with the provisions relating to bail and bail bonds. While the contents of most of these clauses are identical to their corresponding sections in the CrPC (ss.436 to 450), some substantive changes have been proposed. For instance, new insertions in the BNSS include definitions of bail, bail bond, and bond. Further, significant changes have been proposed in two provisions – the provision regarding the maximum period of detention of an undertrial, and the provision on anticipatory bail.

A vital amendment proposed is in Cl.482 BNSS which replaces s.437 CrPC (bail in non-bailable offences). Under this provision, two categories of persons who are not to be released on bail are provided,^[1] and the exception to this ineligibility is mentioned in the first proviso: women, persons who are sick or infirm, and persons under the age of 16. Under the corresponding Cl.482 BNSS, the age is increased from sixteen to eighteen. This amendment makes the provision consistent with the Juvenile Justice (Care and Protection of Children) Act, 2015.^[2]

I. Introduction of definitions

The terms ‘bail’, ‘bond’ and ‘bail bond’ while used throughout the CrPC, have not been defined therein. The BNSS introduces definitions for these terms for the first time in Cl.479. Bail is defined under sub-clause (a) as ‘release of a person accused of an offence from the custody of law upon certain conditions imposed by an officer or court including execution by such person of a bond or a bail bond.’^[3] Bond is defined under sub-clause (b) as a ‘personal bond or an undertaking for release without payment of any surety’ and; bail bond under clause (c) as ‘an undertaking for release with payment of surety.’ A combined reading of these definitions makes apparent the two ways by which a person may be released on bail i.e. execution of a bond (without surety) or a bail bond (with payment of surety).

Although, bail has been understood to include release with or without surety, in jurisprudence, there is currently some confusion regarding the textual usage of the terms bail and bond. This confusion arises as some provisions in CrPC use the term bail to include release either with or without surety, however, there are a few provisions that make a distinction between release on bail with surety, and on a personal bond without surety. For instance, the proviso to s.436 CrPC assumes that bail requires surety, and where a person is unable to pay such surety, instead of bail, can be released on a personal bond. S.441 CrPC is another such provision which uses the language ‘released on bail or released on his own bond.’ Interestingly, s.441 (2) and (3) CrPC use the term bail generically to include release with or without surety.^[4]

The BNSS attempted to bring in the much needed clarity on distinction between bail with and without surety. Some changes have further been made to the remaining provisions in the chapter as well, in accordance with these new definitions.^[5] However, despite the definition, the confusion on the usage of the terms and bail and surety continue since the Bill seems to have retained the language of the present CrPC in some provisions. For instance, Cl.482(2) distinguishes between ‘release on bail’ and ‘release on bond without surety’.^[6]

II. Maximum Period of Detention for Undertrials

S.436A CrPC was inserted vide the Criminal Law (Amendment) Act, 2005 (‘2005 Amendment’).^[7] This provision states that where a person has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence he is under investigation, inquiry or trial for, he shall be released by the Court on bail (with or without surety).

This provision envisages the right of an accused to a speedy trial by prescribing the maximum period for which such accused may be detained. Interestingly, despite vast jurisprudence which has developed over the years on bail being the rule and jail the exception,^[8] the BNSS instead of increasing the scope of bail as a right this provision, has in many ways restricted it.

a. Exclusion of Offences punishable by Life Imprisonment

A significant exclusion from this provision is that of a person accused of offences punishable by life imprisonment. So far, the provision under s.436A has excluded persons who are accused of an offence punishable with death. However, the proposed Cl.481 expands this category by also excluding those accused of an offence punishable with imprisonment for life. Thus, the application of this provision has been made narrower, and also excludes persons arrested for a number of offences where the maximum sentence prescribed is either imprisonment for life or imprisonment for life for the remainder of one’s natural life.

Notably, Cl.482 BNSS (which is in pari materia to s.437 CrPC relating to bail) also excludes the category of persons who are accused of offences punishable by death or imprisonment for life. Cl.483 however has exceptions to this ineligibility,^[9] which does not apply in case of Cl.481. Further, the language of Cl.482 provides that such persons would be ineligible for bail if there is a reasonable apprehension that they have committed the offence punishable with death or imprisonment for life. This allows a court to consider the prima facie case against the accused while deciding the bail application, which is not the case in Cl.481. This defeats the objective of a provision introduced to release undertrials who have spent long durations in jail without trial, to prevent further violation of their Art.21 rights and right to speedy trial.^[10]

b. Reduction in maximum period of Detention for a First Time Offender

Cl.481 BNSS proposes insertion of a proviso which states that a person who is a first time offender (never convicted of any offence in the past), shall be released on bail if he has undergone a third of the maximum sentence prescribed. This benefit is not made subject to any other consideration, such as the seriousness of the offence of previous conviction or judicial discretion, and remains a matter of right for an undertrial who hasn’t been convicted previously.^[11]

Under the CrPC, courts have held ‘prior conviction’ as a relevant consideration for grant of bail^[12] under ss.437 or 438.^[13] Such categorisation was, however, not envisaged under s.436A.

c. Exclusion of a person against whom Inquiry/Trial is Pending

Sub-clause (2) to Cl.481 BNSS, which is an addition to the existing provisions under s.436A CrPC, provides that where an investigation, inquiry or trial in more than one offence, or in multiple cases are pending against a person, he shall not be released on bail by the court.^[14] This sub-clause excludes a category of persons from the benefit of this provision. Not only is this sub-clause palpably contrary to the tenet of presumption of innocence – as it precludes one from the benefit of this section based on the existence of a pending investigation, inquiry or trial – but also raises several other concerns.

First and foremost, the textual language of the provision is extremely wide. Investigation, inquiry or trial in ‘more than one offence’ could also include a situation where a person is accused under several sections for a series of acts forming a part of the same transaction given that it is differentiated from ‘multiple cases’. As such, this sub-clause excludes a substantial number of persons from the benefit of this provision. Secondly, this sub-clause does not consider the nature of these other cases and thus, fails to account for the possibility of the other offence the person is accused of being bailable or non-cognizable. There may also be a situation where the person is not required to be in custody for investigation, inquiry or trial of such other offence. Thirdly, the sub-clause makes the operation of this provision inapplicable even where a person accused of multiple offences has served half of the maximum prescribed punishment in all of those offences.

Through the inclusion of these broad exclusions, the sub-clause defeats the purpose of this provision, as it substantially narrows the scope, and denies the right conferred by the provision to a wide category of persons who are entitled to this relief under the present law. Further, the exclusion under this sub-clause allows for misuse by filing frivolous complaints against a person already in custody, for the purpose of precluding them from release under this provision.

d. Obligation of the Prison Superintendent

A notable insertion proposed under the BNSS is Cl.481(3) which places the responsibility of applying for bail under this provision upon the superintendent of the prison where the accused is lodged. This is especially relevant as often due to lack of effective (or any) legal aid, prisoners are denied release despite meeting the requisite criteria.

For the first time a statutory obligation is sought to be imposed on the Superintendent of the Jail to ensure that this provision is made use of, and the prisoners eligible for bail under this provision are given the benefit of this right. While it is a welcome step to cast statutory responsibility on the superintendents to file a bail application, this provision misses the point of assigning responsibility for determining eligibility under the provisions. Assessing the eligibility of inmates for bail under this section might involve an in-depth technical understanding of penal laws and their application, which superintendents may not be equipped with.

By means of several notifications by the Ministry of Home Affairs and judicial decisions, processes to ensure operation of this section were laid down. Steps taken by the government to ensure compliance with s.436A CrPC were discussed by the Supreme Court in In Re: Inhuman Conditions In 1382 Prisons.^[15] These steps included issuance of an advisory for creation of an undertrial review committee in every district, which would meet every three months to review undertrial cases. Interestingly, the standard operating procedure of the Undertrial Review Committee had also refrained from giving this responsibility of identification of eligibility for release to prison authorities and left it to the legal services authorities.^[16] In Bhim Singh,^{^[17]} the Supreme Court cast the duty of looking at eligibility under s.436A on the Magistrates and Sessions Judges.^[18]

III. Anticipatory Bail

Anticipatory bail or grant of a bail to a person apprehending arrest is presently enshrined under s.438 CrPC. The provision allows a person who has reason to believe that he may be arrested for committing a non-bailable offence, to apply before the High Court or the Sessions Court seeking a direction that in event of such arrest he be released on bail. Cl.484 BNSS seeks to replace s.438 CrPC.

a. Reverting to pre-2005 provision

The changes proposed to the provision on Anticipatory Bail include replacement of the sub-section (1), and deletion of the proviso to sub-section (1), and sub-sections (1A) and (1B). In doing so, Cl.484 seeks to revert to the provision on anticipatory bail as it existed before 2005.Vide the 2005 Amendment the following changes were made to the provision on anticipatory bail:

S.438(1) CrPC was amended to insert language, which provided guidance to courts regarding factors to be considered while deciding grant of anticipatory bail. A non-exhaustive list of these factors was enumerated in 1(i) to (iv).^[19]
The amended sub-section (1) also stated that an application can either be rejected, or an interim order granting anticipatory bail may be made.
A proviso was inserted which said that where no interim order has been passed or where the application seeking anticipatory bail has been rejected, it shall be open to an officer incharge to make arrest without warrant, if there are reasonable grounds for such arrest.
Sub-section (1A) was inserted which states that notice with a copy of an interim order under s.438(1) shall be sent to the public prosecutor with a notice of at least seven days, to give a reasonable opportunity of being heard when the application is finally heard.
Sub-section (IB) was inserted which provides that if the public prosecutor makes an application or if the court considers it necessary, the presence of the application seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of the final order.

The changes made to the provision on anticipatory bail in 2005 came under widespread scrutiny from lawyers and jurists. The amendment to s.438 was believed to interfere with the independence of the judiciary and rights of the accused. Firstly, the proviso to s.438 was criticised as it permitted an officer in-charge to arrest the applicant without warrant in the pendency of the anticipatory bail application. Secondly, sub-section (1B), gave an opportunity for the accused to be arrested in court, should the application be rejected. Thus, it was argued that the amendments to the section defeat the purpose behind s.438 CrPC.

As a response to this criticism, the Law Commission discussed the amended provision,^[20] and recommended inter alia that the proviso, as well as sub-section (1B) be omitted.^[21] The BNSS does away with these sub-sections which have been problematised. At the same time, it also removes the grounds to be considered while deciding grant of anticipatory bail. However, given that these grounds were instructive in the first place, their removal may not change the manner in which courts decide applications seeking anticipatory bail, especially in light of the vast jurisprudence on the subject.^[22]

The BNSS also does away with the language of s.438(1) CrPC which implies that the initial order made in an application for anticipatory bail is only an interim order. Read together with the s.438(1A), the provision required for the interim order to then be sent to the public prosecutor and to allow them an opportunity to argue against grant of anticipatory bail. However, in practice courts tend to grant an ad interim order on anticipatory bail before hearing the final application, even before the 2005 Amendment, this may not substantially affect the manner in which anticipatory bail applications are decided.

b. Offences for which Anticipatory Bail cannot be granted

An inexplicable amendment proposed in the BNSS is in the scheme of offences prescribed under s.438(4) CrPC.^[23] This sub-section provides that the provisions of the section will not apply to any case involving arrest of a person accused of committing an offence under ss.376(3), 376AB, 376DA, and 376DB IPC. These sections pertain to offences involving rape of minor women. The corresponding provision, Cl.484(4), however, precludes those persons who are accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS from being granted anticipatory bail irrespective of the age of the victim. A similar amendment has been proposed to the scheme of offences mentioned in s.439(1A) as well, which states that the presence of the informant or a person authorised by the informant is obligatory while considering an application of bail of a person accused of offences under ss.376(3), 376AB, 376DA, and 376DB IPC. Like Cl.484(4) above, the corresponding provision to s.439(1A) CrPC in BNSS, i.e. Cl.485 (IA) also applies to bail application of a person accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS.

[1] These two categories are: (i) persons against whom there are reasonable grounds for believing that they committed an offence punishable with death or imprisonment for life; and (ii) persons who have been convicted of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more; or have been convicted two or more times for committing cognizable offences punishable with three years or more.

[2] Under s.12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 all children in conflict with the law under eighteen years of age are entitled to be released on bail and thus the provision does not expand the scope of bail law.

[3] Previously, the 268th Report of the Law Commission of India attempted to define ‘bail.’ The Commission noted that “(T)he literal meaning of the word ‘bail’ is surety. Bail, therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on release subject to monetary assurance—either one’s own assurance (also called personal bond/recognizance) or through third party sureties”.

[4] Moti Ram v. State of Madhya Pradesh (1978) 4 SCC 47: The Supreme Court discussed this ambiguity and held inter alia that bail ought to include both release with and without surety, and persons who are indigent or unable to pay surety ought to be released on their own recognisance.

[5] For instance, in Cls.480 and 481 BNSS the word bond has been inserted after bail wherever in the corresponding CrPC provisions bail was used to denote a bail with surety.

[6] Notably, there are other provisions in the BNSS which speak of executing a bond with or without surety; and thus are inconsistent with the definitions prescribed in Cl.479. Although, Cl.479 does state that the definitions therein shall prevail unless the context provides otherwise, and thus an explicit prescription in a provision that a bond could be with or without surety would mean that the definition of ‘bond’ provided under Cl.479 (which provides that a bond is without payment of any surety) shall not be applicable to such provisions.

[7] S.36 Code of Criminal Procedure (Amendment) Act, 2005.

[8] Recentdirections of the Supreme Court in Satendra Kumar Antil v. Central Bureau of Investigation & Anr. (2021) 10 SCC 773.

[9] As mentioned in the proviso to Cl.482, these exceptions are – women, persons under the age of 18, or persons who are sick or infirm.

[10] Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731.

[11] In 2017, the 268th Report of the Law Commission of India recommended a similar categorisation within this provision – undertrials accused of offences punishable with less than seven years of imprisonment to be released on bail if they had served a third of the maximum sentence prescribed.

[12] Harjit Singh v. Inderpreet Singh 2021 SCC OnLine SC 633.

[13] S.437(1)(i) CrPC provides that bail in non-bailable offences shall not be granted to persons who have been previously convicted of offences punishable with imprisonment for seven years, life imprisonment or death; or have been convicted two or more times of cognizable offences punishable with three years or more. S.438 CrPC presently also prescribes antecedents as one of the factors to be considered for grant of anticipatory bail.

[14] A literal reading of the provision implies that such a person is not to be released by court on bail at all. This literal interpretation, however, is in all likelihood a result of an oversight in drafting of the provision.

[15] Inhuman Conditions in 1382 Prisons, In re, (2016) 3 SCC 700 (Supreme Court order dated 05.02.2016).

[16] National Legal Services Authority, Standard Operating Procedure (SOP) for Undertrial Review Committees (UTRCs), WP(C) 406/2013 – In Re: Inhuman Conditions in 1382 Prisons.

[17] Bhim Singh v. Union of India (2015) 13 SCC 605.

[18] Supreme Court directed that jurisdictional Magistrates/Sessions Judges hold a sitting each week in every jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of s.436A CrPC by identifying and passing release orders for prisoners who are eligible for release under the provision.

[19] The factors enumerated in the subsections are– (i) the nature and gravity of offence, (ii) antecedents of the applicant, (iii) possibility of the applicant to flee from justice, and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.

[20] Law Commission of India, ‘Two Hundred and Third Report on Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)’ (Law Commission Report No. 203, 2007).

[21] The Law Commission of India had also recommended that an explanation be inserted clarifying that a final order on an application seeking anticipatory bail shall not be construed as an interlocutory order; and that new subsection be inserted stating that conditions may be imposed upon an applicant while grant of anticipatory bail – including condition that the person make themselves available for interrogation when required, condition that a person does not make inducement, threat, promise etc to any person acquainted with facts of the case, condition that the applicant shall not leave India without permission of the court, and any such other condition which may be imposed under s.437(3). These recommendations had not been incorporated in the CrPC.

[22] Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694: the Supreme Court laid down factors to be considered while deciding an application seeking anticipatory bail, which go beyond the factors mentioned in s.438 CrPC. These included the possibility of the accused fleeing from justice, the alleged role of the accused in the offence, material available against the accused, impact of grant of anticipatory bail etc.

[23] This subsection was inserted in the CrPC by s.22 Criminal Law (Amendment) Act, 2018.

Criminal Law Bills 2023 Decoded #21: Powers of Commutation

Editor 2 — Wed, 15 Nov 2023 11:46:02 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the changes made to the provision on commutation of sentences under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

In addition to the President or Governor’s constitutional power to commute a sentence, under Art.72 and Art.161 respectively, the Central and the State governments can also statutorily commute a sentence. In the BNSS, Cl.475 titled ‘Power to commute sentence’ lays down the extent of this statutory power. Cl.475 corresponds to s.433 CrPC. However, new changes proposed in the BNSS lead to ambiguity in the manner in which different sentences are to be treated for commutation, while also reflecting a tendency towards enhanced punishments.

At the outset, a comparative table of changes in Cl.475 BNSS against s.433 CrPC is useful:

Changes in Cl.475 of the BNSS against s.433 of the CrPC

Initial Sentence	Commuted Sentence/Range
Initial Sentence	Clause 475 BNSS	Section 433 CrPC**
Sentence of Death	Clause 475(a) Imprisonment for life	Section 433(a) Any other punishment provided by the IPC
Sentence of Life Imprisonment	Clause 475(b) Imprisonment for a term not less than seven years	Section 433(b) Imprisonment for term not exceeding fourteen years OR fine
Sentence of Imprisonment for 7 years or 10 years*	Clause 475(c) Imprisonment for a term not less than three years	–
Rigorous Imprisonment	Clause 475(d) Simple imprisonment for any term to which that person might have been sentenced	Section 433(c) Simple imprisonment for any term to which that person might have been sentenced OR fine
Imprisonment up to 3 years*	Clause 475(e) Fine	–

* New category created under the BNSS

** Section 433(d) CrPC allows for the commutation of ‘a sentence of simple imprisonment, or (sic) for fine’, which has been deleted in the proposed bill.

I. Limit on Executive Discretion and Enhanced Punishments

The first major change brought about by the BNSS is with respect to the limit imposed on the commutation of a death sentence. Under s.433(a) CrPC, a sentence of death could be commuted to ‘any other punishment’ stipulated in the IPC. However, the BNSS restricts the discretionary power of the government by limiting the scope of commutation of a death sentence to a sentence of life imprisonment alone. However, a prisoner whose death sentence has been commuted to life imprisonment continues to be eligible for consideration for remission after completion of fourteen years of imprisonment, under Cl.476. Nevertheless, the change in Cl.475(a) limits the power of the government to directly commute a death sentence to any term sentence.

In Cl.475(b) BNSS, for the commutation of a sentence of imprisonment of life, the words imprisonment for a term ‘not exceeding fourteen years or of fine’ of the CrPC have been replaced with ‘not less than seven years’. Thus, the BNSS removes the upper limit of fourteen years created by the CrPC. Instead, the BNSS creates a lower limit of seven years, thereby removing any restrictions on the maximum period of sentence that the government can impose while commuting a sentence of life imprisonment.

Thus, changes proposed through Cls.475(a) and (b) limit the discretionary power of commutation by governments, while also tending towards enhanced punishments.

II. Overlaps and confusion in categorisation of punishments under Cl.475

Cl.475(c) has been newly added in the BNSS which states that a sentence of imprisonment for seven years or ten years can be commuted to imprisonment for a term not less than three years. Curiously, this sub-clause does not mention a range between seven to ten years but only applies to two specific terms of imprisonment, that is either seven years or ten years. It also does not mention the description of imprisonment where sub-clause (c) will be applicable – simple imprisonment or rigorous imprisonment – thus, leaving the possibility of overlap with sub-clause (d) which applies to all sentences of rigorous imprisonment.

This overlap can be understood with the help of an hypothetical example. A and B get convicted separately, under Cl.69 of the BNS, punishable with imprisonment of either description for a term which may extend to ten years and a fine. A gets a sentence of rigorous imprisonment for seven years while B gets a sentence of rigorous imprisonment for eight years. Under Cl.475 of the BNSS, the only sub-clause applicable to B is sub-clause (d) that allows for commutation of a sentence from rigorous imprisonment to simple imprisonment. Thus, B’s sentence can only be commuted to simple imprisonment of eight years. However, for A, both sub-clause (c) and sub-clause (d) could be applicable due to the overlap enabled by the BNSS. If Cl.475(c) is applied, then A’s sentence of seven years can be commuted to that of three years (and not below that). Whereas, if Cl.475(d) is applied, their sentence can only be commuted from rigorous imprisonment to simple imprisonment for the term of their original sentence. Depending upon the provision applied, the commuted sentence will vary.

A situation of such overlap is missing from the CrPC because rather than classifying sentences on the basis of fixed terms, s.433 CrPC provides rules for commutation of specific categories of punishment provided under s.53 IPC. Therefore, each sub-section in s.433 pertains to distinct types of punishment: sentence of death, life imprisonment, rigorous imprisonment or simple imprisonment. While s.53 IPC has been retained in the BNS as Cl.4, the same logic of categorisation for commutations does not extend to Cl.475 BNSS.

Another implication of straying away from this logical categorisation can be seen in Cl.475(e). From s.433(d) CrPC, sub-clause (e) removes ‘simple imprisonment’ and replaces it with ‘imprisonment up to three years’. The most absurd impact of the removal of ‘simple imprisonment’ in the BNSS is that a sentence of simple imprisonment, which is not either of a term of seven years, ten years or up to three years, appears to be ineligible for commutation under Cl.475. The only provisions where simple imprisonment can be accommodated are sub-clauses (c) and (e) but they only apply to terms of imprisonment for ten years, seven years or up to three years. For example, in the previous illustration, if B gets a sentence of simple imprisonment of 8 years, then they would entirely be out of consideration for commutation due to the anomaly created by Cl.475 BNSS.

Further, since sub-clause (d) is applicable to all cases of rigorous imprisonment, there is a possibility of overlap of this provision with sub-clause (e) which pertains to imprisonment of either description up to three years. Therefore, rigorous imprisonment up to three years can either be commuted to simple imprisonment (as per (d)) OR be commuted to fine (as per (e)).

III. Removal of Fines

BNSS removes the scope of commutation of any sentence above three years into a fine. Sub-clauses (a), (b) and (d), that have been taken from the corresponding provision in the CrPC allowed for the possibility of commutation of term sentences to fines. In the proposed bill, only imprisonment (of either description) up to three years, can be commuted to fine. This is a significant limitation from the provision for commutation under s.433 CrPC.

Criminal Law Bills 2023 Decoded #20: Mercy Petitions

Editor 2 — Wed, 15 Nov 2023 11:35:32 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the newly added provision in the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 that lays down the procedure for filing of mercy petitions by death row prisoners.

Cl.473 BNSS is a new provision titled ‘Mercy Petition in death sentence cases’ which lays down the procedure for submitting mercy petitions to the President and Governor under Art.72 and Art.161 of the Constitution, respectively. A statutory written procedure with respect to mercy petitions does not exist presently; limited guidance is available in jurisprudence, guidelines released by the Ministry of Home Affairs, and jail manuals of different states where the procedure varies from state to state.^[1]

This piece discusses the changes brought in Cl.473 BNSS along with its possible implications. While there may be benefit in attempting to streamline the procedure applicable to mercy petitions, Cl.473 BNSS runs contrary to the mercy jurisprudence judicially developed over the years. As a result, it appears to adversely affect a convict’s constitutional right to file mercy petitions.

I. Background

Art.72 and Art.161 of the Constitution provides the President and Governor respectively with wide powers to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. These powers, granted to the highest dignitaries of the State, operate on a different plane than judicial powers. Their exercise does not modify the judicial record.^[2] Further, these powers are very expansive – the President and Governor can look beyond the case files, and into any circumstance pertaining to the convict and their life. These powers also cannot be restricted by statute.^[3] They are significant since this gives convicts a constitutional right to file a mercy petition,^[4]often a last hope for those sentenced to death.^[5]

II. Restriction on who can file Mercy Petitions

Cl.473(1), through the phrase ‘convict under the sentence of death or his legal heir or any other relative’ appears to limit the right to file a mercy petition to the convict or persons related to them. Presently, there is no such restriction. Although Art.72 and Art.161 are rights available to convicts, mercy petitions are often filed by third parties on their behalf, such as organisations or unrelated individuals.^[6]

It is not uncommon for death row convicts to lose contact with their families.^[7] In such situations, under the BNSS, only one option would remain – for the death row convicts to themselves file the petition. Most death row convicts are extremely poor;^[8] lack of education and other vulnerabilities results in their inability to understand and meaningfully exercise their legal rights.^[9] This inability is possibly exacerbated by the emotional distress that accompanies the knowledge of an imminent execution. Importantly, an overwhelming majority of death row convicts suffer from mental illnesses, and many have intellectual disability,^[10] which might render them incapable of filing a mercy petition, or giving instructions to lawyers to file on their behalf. Thus, by barring third parties from filing mercy petitions, the BNSS fails to recognise these realities and is likely to have a severe adverse impact on a meaningful exercise of this right.

III. Restriction on the number of Mercy Petitions

Cl.473(1) BNSS uses the phrase ‘if he has not already submitted a petition for mercy’. This may imply a restriction on the number of mercy petitions that can be submitted on behalf of the convict to only one; that is, one before the Governor and one before the President. Presently, the Court has recognised the right to file multiple mercy petitions before the same authority, in case of change of circumstances.^[11] For instance, if a convict develops mental illness subsequent to filing of the first mercy petition, they can file another petition on the basis of this new ground. Restricting the number of permissible petitions to only one would deprive a convict of any opportunity to submit such subsequent developments for consideration. Such a right would be especially required under the BNSS, which permits only convicts or their families to file the petition, and that too within a short and rigid time limit as discussed below. This increases the likelihood of the filed petitions being hurried and not comprehensive.

IV. Introduction of timelines

Cl.473 provides for several time limits. First, where a mercy has not already been submitted, Cl.473(1) imposes the time limit of thirty days for submitting mercy petitions to the Governor or the President, from the date on which the Superintendent of Jail informs the prisoner: (a) about the rejection of their special leave petition by the Supreme Court, or (b) about the date of confirmation of the death sentence by the High Court and the time for filing an appeal or a special leave petition in the Supreme Court has expired. Second, Cl.473(2) states that the petition may be first made to the Governor and upon rejection, the convict will have sixty days from the date of rejection, to make a petition to the President. Since the President is required to act in accordance with the advice of the Council of Ministers, sub-clause (4) requires the Central Government to seek comments of the State Government. Upon receipt of these, the Central Government is required to make recommendations to the President within sixty days. Third, Cl.473(6) requires communication of the President’s decision on the mercy petition by the Central Government within forty-eight hours, to the Home Department of the State government and the Superintendent of the Jail or officer in charge of the Jail.

Note that while an unreasonable executive delay is a valid supervening circumstance for reduction of a death sentence, the Supreme Court has been wary of creating fixed timelines for consideration of mercy petitions by the President and Governor.^[12] In line with this jurisprudence, Cl. 473 does not create such time limits for the President or the Governor.

a. Issues with thirty-day timeline for submission of Petitions under Cl.473(1)

The procedure under the BNSS may be aimed at achieving efficiency, however, the creation of rigid time limits is extremely problematic; practically nullifying the prisoner’s ability to file a comprehensive petition. Presently, the Supreme Court has held that ‘reasonable’ time must be afforded to convicts to file a mercy petition.^[13] BNSS introduces a thirty-day deadline for submission of mercy petitions under Cl.473(1), which may not be sufficient time for the convicts/their families to go through all the necessary documents and prepare the petition. For instance, other than case records, factors like post conviction mental illness and solitary confinement are also relevant in mercy petitions. Procuring records documenting these, especially from the prison administration after filing various applications, may take time. Further, given that mercy petitions are filed as a last resort against executions, it is important to seek legal advice. Locating and engaging an affordable lawyer is a time-consuming process, especially given the likely poor socio-economic profile of the convict. Communicating with and instructing lawyers is also generally a time consuming exercise since most jails permit visits only for a few minutes, across a metal barrier.

b. Issues with timeline for submission of Mercy Petition to President under Cl.473(2)

It is unclear why the BNSS has a thirty-day deadline for filing an application before the Governor but a sixty-day deadline for filing it before the President. In any event, while Cl.473(1) provides that the time period of thirty days will commence after the prisoner is informed about the relevant event as provided, Cl.473(2) states that the sixty-day period for filing a petition before the President would commence from the date of rejection/disposal of the mercy petition by the Governor. Thus, the latter deadline for filing a mercy petition before the President, does not commence from the date of the prisoner being informed. Further, there is no sub-clause mandating forthwith communication of rejections by the Governor to the concerned convict, or even to the Superintendent of Jail.^[14] Cl.473(6) provides a forty-eight hour timeline for communication of rejections including to the Superintendent but pertains only to rejections by the President. This lapse is significant, since it can result in a situation where the convict’s petition is rejected by the Governor, however they are informed of the rejection only after sixty days, leaving no time to submit a petition to the President.

c. Effect on ability to avail other available Judicial Remedies

As per the timelines stipulated under Cl.473, it seems that convicts could be forced into filing a mercy petition without even exhausting all available judicial remedies. Presently, after imposition of a death sentence by the Sessions Court, the case goes to the High Court for confirmation under s.366 CrPC. If the High Court confirms the sentence, an appeal can be filed before the Supreme Court. The Supreme Court routinely hears such appeals on merits in all death penalty cases.^[15] Even if a special leave petition is dismissed, convicts have the right to file a review petition.^[16] To further reduce any scope of error, the Supreme Court has carved out an exceptional remedy of curative petitions; these can be filed on limited grounds to prevent miscarriage of justice or abuse of power.^[17] In the context of mercy petitions, the Supreme Court has repeatedly emphasised the importance of review petitions,^[18] and directed that convicts should have the right to file review petitions before they are required to file a mercy petition.^[19]

Cl.473 is then contrary to present jurisprudence, and in effect forces convicts to file mercy petitions when the options to file a review petition and curative petition exist. For instance, after dismissal of their appeal in the Supreme Court, convicts will only have thirty days to file both a mercy petition under Cl.473(1), as well as a review petition, which also has a time limit of thirty days.^[20] While courts can condone delays in filing of review and curative petitions, these simultaneous time limits may still adversely affect the ability of convicts to pursue either remedy effectively. Further, not filing the mercy petition within the set time limit may amount to forfeiture of this right.

V. Impact on cases involving Multiple Accused

Cl.473(3) requires that in cases having multiple convicts, if one convict prefers a mercy petition, then all other co-accused must also make their mercy petitions within sixty days. If other co-accused do not make such petition, the Superintendent of the Jail is required to send their names, addresses, copy of the record of the case and ‘all other details of the case’ to the Central Government or State Government for consideration along with the mercy petition of the convict who has filed a petition. Sub-clause (5) provides that all mercy petitions for cases having multiple convicts shall be decided together by the President. A similar provision is absent for the Governor.

Filing a mercy petition allows convicts to present their individual grounds; it is highly unlikely that two persons convicted in the same case will have the same plea. For a meaningful consideration, in addition to the case record, the President and the Governor can also consider a convict’s socio-economic background, medical records/illnesses if any, jail conduct records etc. Each of these personalised documents will be different for different convicts. However, Cl.473(3) undermines this by enabling the Superintendent to simply share the name and address along with case records for the co-accused. This would leave out pertinent information about their life circumstances, preventing a meaningful realisation of the right to seek mercy. Significantly, despite this major lapse, the convict may not be permitted to file another mercy petition before the same authority, if the sending of details by the Superintendent is construed as submission of a mercy petition.

VI. Restriction of Judicial Review

Cl.473(7) states that the President’s order made according to Art.72 of the Constitution will be final and cannot be appealed against. It further mentions that ‘any question as to the arriving of the decision by the President’ shall not be enquired into in any court.

At the outset, it is unclear why this clause only deals with the President’s decision and not the Governor’s. In any case, the first part of this sub-clause appears to reiterate the existing position. Given the extraordinary nature of mercy powers, it is settled law that appeals against the decision of the President or the Governor cannot be made before any court, and reasons for their decision also need not be given.^[21] Judicial review of the decision of the President or the Governor is restricted, and courts can only intervene to remedy a fundamental rights violation.^[22]

The second part of Cl.473(7) appears to contradict judicial developments, and might conflict with fundamental rights of a convict. The phrase ‘any question as to arriving of the decision’ is very broad. It can cover within its ambit questions regarding procedural aspects of decision making, such as the time taken to decide, and whether relevant materials were kept out of consideration while deciding. Presently, Writ Petitions under Art.226 or Art.32 of the Constitution can be filed, and judicial review of the order passed by the President or the Governor is permissible mainly on limited procedural aspects of the decision making and on grounds of breach of fundamental rights.^[23] The Supreme Court has held that judicial review could be allowed: (i) if the order is passed without application of mind, (ii) is malafide, (iii) is passed on extraneous or wholly irrelevant considerations, (iv) relevant materials had been kept out of consideration, or (v) the order is arbitrary.^[24] Courts have widened the scope of enquiry to include ‘supervening circumstances’, the presence of which violate fundamental rights of the convict, necessitating a reduction of the death sentence. Such supervening circumstances can include inordinate and unexplained delay in deciding the mercy petition, insanity, solitary confinement etc.^[25]

It is important to note that Cl.473(7) BNSS cannot take away this limited power of judicial review of the courts, even if it seeks to. The exercise of these powers by the judiciary in respect of the President’s mercy decision is rooted in Art.32 of the Constitution, which cannot be restricted by a statutory provision.

[1] Ministry of Home Affairs, Government of India, ‘Guidelines for Safeguarding the interest of the Death Row Convicts’, 4 February 2014, No. VII-17013/1/2014-PR.

[2] Kehar Singh v. Union of India (1989) 1 SCC 204.

[3] Shatrughan Chauhan v. Union of India (2014) 3 SCC 1; Maru Ram v. Union of India (1981) 1 SCC 107.

[4] Shatrughan Chauhan.

[5] Jagdish v. State of Madhya Pradesh (2020) 14 SCC 156.

[6] Narayan Chetanram Chaudhary v. State of Maharashtra 2023 SCC OnLine SC 340: petition filed by public spirited individuals; Balwant Singh v. Union of India 2023 SCC OnLine SC 555: petition filed by Shiromani Gurdwara Parbandhak Committee.

[7] Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 226.

[8] Project 39A, Death Penalty India Report, 2016; Shatrughan Chauhan [241.11].

[9] Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 219.

[10] Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 269.

[11] Yakub Abdul Razak Memon v. State of Maharashtra (2015) 9 SCC 552.

[12] Triveniben v. State of Gujarat (1989) 1 SCC 678: In dealing with the question of executive delay, the Supreme Court held that fixing a time limit for the exercise of Art.72 and Art.161 powers meant creating a restriction on a constitutional scheme; T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68: it was held that delay of two years in executing a sentence of death (from the time it is first passed by the Trial Court) would be sufficient to entitle the prisoner to have his sentence quashed and commuted to life imprisonment. However, this decision was overturned in Sher Singh v. State of Punjab (1983) 2 SCC 344 where it was observed that no hard and fast rule can be laid down for fixing a time limit. The Court was cognizant of the fact that the cause of delay in each case has to be assessed according to the facts of that case.

[13] Shabnam v. State of Uttar Pradesh (2015) 6 SCC 702.

[14] In Shatrughan Chauhan, the Supreme Court laid down guidelines, requiring that the prisoner be informed forthwith and in writing about rejection of their mercy petitions.

[15] Babasaheb Maruti Kamble v. State of Maharashtra (2019) 13 SCC 631.

[16] Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737: the right of an open hearing in review petitions in death penalty cases, was held as essential to uphold Art.21 rights of the convicts.

[17] Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 [51]: The grounds identified were violation of principles of natural justice and apprehension of bias.

[18] Shabnam.

[19] B.A. Umesh v. Union of India 2022 SCC OnLine SC 1528; Shabnam.

[20] Order XLVII Supreme Court Rules, 2013.

[21] State v. Jasbir Singh 1979 SCC OnLine Del 220.

[22] Maru Ram [57]-[70]; Kehar Singh; SR Bommai v. Union of India (1994) 3 SCC 1.

[23] Kehar Singh.

[24] Epuru Sudhakar v. Govt. of Andhra Pradesh (2006) 8 SCC 161.

[25] Supervening circumstances can be delay in execution, insanity, mental illness or schizophrenia, solitary confinement, reliance on judgments declared per incuriam, and procedural lapses in the disposal of the request; Epuru Sudhakar; TV Vatheeswaran; Triveniben; Sher Singh v. State of Punjab (1983) 2 SCC 344; Shatrughan Chauhan; Accused X v. State of Maharashtra (2019) 7 SCC 1.

Criminal Law Bills 2023 Decoded #19: Witness Protection Scheme

Editor 2 — Wed, 15 Nov 2023 11:29:11 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the insertion of cl. 398 (directing States to frame witness protection schemes) under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

Cl.398 BNSS provides: ‘Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.’ While this clause is an entirely new addition proposed in the criminal procedural framework, it is only an enabling provision for state governments to prepare and notify schemes for witness protection. However, when considered in light of legal developments and discourse on witness protection, the purpose and significance behind the inclusion of this provision is not discernible. In other words, the legislative aim behind the insertion of this clause is unclear.

I. Witness Protection Law in India

The most recent legal development concerning witness protection was the Witness Protection Scheme 2018. The Supreme Court in Mahender Chawla^{^[1]} declared this scheme to be law until the Parliament or various state governments prepared and notified their own Witness Protection Schemes. Although various provisions in the IPC, IEA and CrPC recognise the vulnerabilities faced by witnesses and provide some support,^[2] the 2018 scheme was the first to develop a comprehensive approach towards ensuring the protection of witnesses in criminal proceedings. This scheme was based on a draft witness protection scheme supplied by the Central government, after deliberation and consultation with state governments.

The decision in Mahender Chawla, comes on the heels of a long line of judicial decisions and committee reports acknowledging the vulnerability of witnesses in the criminal justice system, and the need for an institutional response for their protection. The judgment recognises the extent of problems faced by witnesses ranging from difficulty in accessing courts due to expenses, travel, time and expense costs due to frequent adjournments,^[3] callous treatment by court officials, as well as threats, intimidation and harassment. Through precedents, the Supreme Court also discusses the varying kinds of protection required depending on factors including the context of the crime, social status of the witness, and the power dynamics concerning the accused. For instance, child witnesses in sexual offence cases come with a unique set of protection needs to prevent intimidation and to protect them from the trauma of such proceedings.^[4] Similarly, witnesses in offences committed by organised crime syndicates, such as terror outfits, may find their safety far more likely to be jeopardised.^[5]

The 2018 scheme took an expansive approach to establish a holistic legal and institutional framework for the protection of witnesses. This included categorising risk/vulnerability levels of witnesses; procedures for witness protection; introduction of threat analysis reports by the police to gauge the level of protection required by witnesses; and constituting a body comprising police officials and Sessions/District Court judges to implement and oversee its functioning. While, there may be limits to the framework proposed by the 2018 Scheme – including its overreliance on the police for threat assessment or limiting the scope of witness protection to three months; this scheme was a first step towards a comprehensive legal framework for witness protection.

II. Implications of Cl.398

The change, or the purpose behind Cl.398, remains unclear in the face of the aforementioned developments. Cl.398 merely reiterates the direction under Mahender Chawla, enabling states to frame their own witness protection schemes. Thus, in the absence of any further guidance, it appears then that the 2018 scheme will remain operational, in the absence of specific state legislation.

[1] Mahender Chawla v. Union of India (2019) 14 SCC 615.

[2] S.195A IPC criminalises threatening of witnesses. S.151 and 152 IEA prohibit parties from asking scandalous or insulting questions to the witnesses. S.327 CrPC empowers the magistrate to shield the proceedings of the court from the public view. S.327(2) CrPC requires that trial for rape be conducted in camera. It also empowers the judge to control the publication of proceedings. S.22 UAPA, criminalising the threatening of witnesses using violence and other means; s.74 Juvenile Justice (Care and Protection of Children) Act, 2015, prohibiting disclosure of the identity of child witnesses.

[3] Law Commission of India, Fourteenth Report (Reform of Judicial Administration), Volume II, (Law Commission of India Report No. 14, 1958).

[4] Sakshi v. Union of India (1999) 6 SCC 591; Delhi Domestic Workers Union v. Union of India (1995) 1 SCC 14.

[5] People’s Union for Civil Liberties v. Union of India (2007) 1 SCC 719.

Criminal Law Bills 2023 Decoded #18: Fitness to stand trial

Editor 2 — Wed, 15 Nov 2023 11:21:16 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

The post analyses the implications of replacing unsound mind with mental illness in provisions pertaining to fitness to stand trial under the Bharatiya Nyaya Suraksha Sanhita Bill, 2023.

Chapter XXV of the CrPC, pertaining to procedure in case of accused persons with ‘unsound mind’, has been recast as Chapter XXVIII in the BNSS (‘Chapter’), wherein the scope of its application has been restricted to persons with ‘mental illness’. Cl.368 in the proposed BNSS seeks to replace s.329 CrPC, and deals with the procedure for fitness to stand trial.

A separate framework had been devised under criminal law to safeguard the fair trial rights of persons who are incapable of mounting a defence to their best advantage due to their mental condition and consequent incapacity.^[1] Under the fitness to stand trial scheme of ss.329 and 330 CrPC, persons who are ‘lunatic’ or of ‘unsound mind’ shall have their trial postponed or be discharged without a trial^[2] if they are found to be incapable of making their defence,^[3] and persons with ‘mental retardation’ shall in all cases be discharged without a trial. However, the BNSS does not recognise the distinction between ‘unsound mind’, ‘lunatics’ and ‘mental retardation’, and instead uniformly replaces these terms with ‘mental illness’. This excludes persons with ‘mental retardation’ from the fitness to stand trial framework, which is in complete contradiction to the object of the Chapter. This further causes uncertainty over the treatment of persons with ‘mental retardation’ under the law. The phrasing of Cl.368 also gives rise to procedural anomalies leading to absurd consequences.

I. Implications of Change in Terminology

The term ‘mental illness’ has been introduced in the BNSS without providing any definition. However, the BNS clarifies that ‘mental illness’ shall have the same meaning as provided under s.2(a) MHCA.^[4] The MHCA defines ‘mental illness’ as ‘a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.’.^[5] Thus, the definition of ‘mental illness’ unambiguously excludes ‘mental retardation’ from its scope.

There is a clear distinction between ‘mental illness’ and ‘mental retardation’, and the law has consciously sought to treat both differently. While mental illness can be treated,^[6] mental retardation is an ‘organic disablement of the mind’ which one may be taught to cope with, but cannot be ‘cured’.^[7] The term ‘mental retardation’ has now been widely replaced by ‘intellectual disability’,^[8] which is defined under the RPwD.^[9] Persons with intellectual disability (mental retardation) have high support needs which need to be accommodated under the law. Acknowledging the need for protection of persons with mental illness or ‘mental retardation’, the Law Commission also recognised the need for a different procedure under the CrPC for the latter category of persons.^[10] Even though conceptually different, both mental illness and intellectual disability (mental retardation) have been classified as ‘specified disabilities’ under the RPwD Act,^[11] and have been beneficiaries of protections under the fitness to stand trial framework.

The CrPC currently uses ‘unsound mind’, ‘lunatics’ and ‘mental retardation’ in the fitness to stand trial framework. The term ‘unsound’ has suffered from a lack of definitional clarity, leading to inconsistent application of protections under the law.^[12] However, this term is broad enough to include varying degrees of mental illness^[13] as well as mental retardation^[14] within its scope. By using consistent terminology of ‘mental illness’, the BNSS proposes some clarity about who is eligible for protection under the law. However, troublingly, it also unambiguously excludes an important category of persons (persons with intellectual disability) thereby denying them their fair trial rights and protection under the BNSS.

II. Procedural Anomalies

Ss.329 and 330 CrPC, provides two distinct procedures to deal with persons with mental illness and persons with intellectual disability (mental retardation), who are incapable of making their defence. By excluding persons with intellectual disability, the BNSS fails to recognise the separate framework that was designed under the CrPC for this category of persons. Consequently, the BNSS suffers from procedural anomalies that adversely impact the treatment of both persons with intellectual disability and persons with mental illness.

S.329(3) CrPC provides a distinct procedure for treatment of persons with intellectual disability (mental retardation). Since intellectual disability is a permanent condition, these persons are eligible to be discharged without trial under s.330(3). By proposing to replace ‘mental retardation’ with ‘mental illness’, the BNSS revokes the protection to this category of persons and unfairly excludes them from any protection under the fitness to stand trial framework. Considering the nature of their mental condition, it is absurd that persons with intellectual disability may be compelled to stand trial, exposing them to prolonged detention and violation of liberty even though they do not have the requisite ‘capacity’.^[15]

Persons with intellectual disability (mental retardation) are further excluded from other protections under BNSS. Unlike the CrPC, there is no provision in the BNSS allowing persons with ‘mental retardation’ to either be delivered to family or friends;^[16] sent to safe custody;^[17] undergo periodic review or assessment;^[18] or be discharged^[19] or acquitted due to mental incapacity at the time of commission of the offence.^[20] This exclusion of persons with intellectual disability from safeguards under the BNSS puts them in a precarious position and adversely impacts their fair trial rights and personal liberty.

The BNSS is not only inconsistent with the rights of persons with intellectual disability (mental retardation) but also creates procedural anomalies in the treatment of persons with mental illness under the fitness to stand trial framework. Both Cl.368(4) and proviso to Cl.368(3) is applicable to persons with mental illness against whom a prima facie case is made out. The anomaly lies in the fact that both clauses provide different outcomes for the treatment of the same class of persons without any conditions on application. While one provides for postponement of trial, the other provides for discharge under Cl.369, and neither makes any distinctions between the circumstances under which either of the outcomes would apply. As discussed earlier, the CrPC provides separate procedures for persons with mental illness and intellectual disability. Further, s.329 CrPC has been interpreted to provide distinct procedures for persons with treatable and untreatable mental illness.^[21] While persons with mental illness are eligible for postponement of their trial, persons with untreatable mental illness and intellectual disability could be discharged under s.330 CrPC. The BNSS does not recognise any of these distinct categories but allows for separate outcomes without any guidance, leading to potential anomalies.

III. No Real Solution

While the CrPC is largely incongruent with the values and principles under the RPwD Act and the MHCA, these infirmities are carried forward in the proposed BNSS. The MHCA and RPwD Act are rights-based legislations which prioritise the liberty and dignity of persons with mental disability. Through the provision of accommodation and support, informed consent and periodic mental health assessment and reporting, the legislations allow for the realisation of the rights of all persons with mental disabilities. These priorities are not reflected in the present criminal law framework. The proposed bill makes no changes to the current framework of the CrPC. Instead it introduces a widespread change in terminology, leading to further confusion and discrimination.

[1] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996).

[2] Caveat: This is dependant on the treatability of the mental condition.

[3] Incapable of making their defence is understood as they are unable to understand the charges, nature of evidence, any aspect of court proceedings; provide information relevant to the circumstances of the act; or instruct counsel; Vijay Pradap Singh v. State 2016 SCC OnLine Mad 13831; State of Gujarat v. Manjuben 2019 SCC OnLine Guj 6937; Vivian Rodrick v. State of West Bengal (1969) 3 SCC 176; Gurjit Singh v. State of Punjab 1986 SCC OnLine P&H 195.

[4] Cl.2(19) BNS.

[5] S.2(r) MHCA.

[6] Lok Sabha, ‘Joint Committee on Mental Health Bill, 1978: Evidence’, CB(II) No. 318, 1978.

[7] Amita Dhanda, Rights of the Mentally Ill – A forgotten domain, India International Centre Quarterly, Volume 13, Issue 3/4, December 1986, Pages 147-160.

[8] L Salvador-Carulla L, GM Reed, LM Vaez-Azizi, SA Cooper, R Martinez-Leal, M Bertelli, et al., Intellectual developmental disorders: Towards a new name, definition and framework for ‘mental retardation/intellectual disability’, World Psychiatry, Volume 10, Issue 3, October 2011; Bhargavi Davar, Legal Frameworks for and against People with Psychosocial Disabilities, Economic and Political Weekly, Volume 47, Issue 52, December 2012, Pages 123 -131; Department-Related Parliamentary Standing Committee on Health and Family Welfare, Seventy-Fourth Report on Mental Healthcare Bill, 2013 (Parliamentary Standing Committee on Health and Family Welfare Report no. 74, 2013).

[9] It is defined as ‘a condition characterised by significant limitation both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behaviour which covers a range of everyday, social and practical skills’, including special learning disability and autism spectrum disorder.

[10] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996).

[11] Schedule, RPwD Act.

[12] Soumya AK, Maitreyi Misra & Anup Surendranath, Shape Shifting And Erroneous: The Many Inconsistencies in the Insanity Defence in India, NUJS L. Rev., Volume 14, Issue 195, 2021.

[13] Bapu v. State of Rajasthan (2007) 8 SCC 66; R. Deb, Reform of the Indian Lunacy Act, Journal of the Indian Law Institute, Volume 17, Issue 3, 1975, Pages 398-409; Ketki Ranade, Arjun Kapoor, Tanya N. Fernandes, Mental Health Law, Policy & Program in India – A Fragmented Narrative of Change, Contradictions and Possibilities, SSM – Mental Health, Volume 2, December 2022.

[14] Amita Dhanda, Rights of the Mentally Ill – A forgotten domain, India International Centre Quarterly, Volume 13, Issue 3/4, December 1986, Pages 147-160.; Bapu v. State of Rajasthan (2007) 8 SCC 66; K.M. Sharma, Defence of insanity in Indian criminal law, Journal of Indian Law Institute, Volume 7, Issue 4, 1965, Pages 325-383; Kaliyappan v. State 2020 SCC OnLine Mad 2030.

[15] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996); Cl.357 BNSS.

[16] Cl.378 BNSS.

[17] Cls.370 and 374 BNSS.

[18] Cl.376 BNSS.

[19] Cl.370 BNSS.

[20] Cls.372 and 374 BNSS.

[21] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, Chapter XVI, Enquiry and trial of persons of unsound mind (Law Commission of India Report No. 154, 1996); Kaliyappan v. State 2020 SCC OnLine Mad 2030.

Criminal Law Bills 2023 Decoded #17: Forensic evidence

Editor 2 — Wed, 15 Nov 2023 10:55:58 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the changes proposed to the collection of forensic evidence and the scope of examining forensic science experts under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

The use of technology and forensic sciences in the criminal justice system is a stated aim of the BNSS.^[1] This part discusses the main provisions that deal with the use of forensic evidence i.e. Cls.176(3), 349, 329 and 330.

Cl.176(3) introduces a new requirement to the procedure for investigation prescribed under s.157 CrPC i.e. collection of forensic evidence from crime scenes by a forensic expert. Cl.349 expands the types of forensic samples that may be collected from any person upon a Magisterial order under s.311A CrPC. Corresponding to s.293 CrPC, Cl.329 BNSS retains the exemption for certain government scientific experts from appearing as witnesses before the court. Cl.330(1) adds a new proviso to s.294 CrPC regarding when formal proof of documents is not required. This proviso disallows calling any experts to appear before the court, unless the genuineness of their report is disputed by the parties. It is evident from these changes that the BNSS seeks to expand and enhance the State’s power to collect forensic evidence, both from crime scenes and individuals, while simultaneously reducing the scope of examination of forensic experts.

I. Enhanced Evidence Collection from Crime Scenes

Cl.176(3) introduces a mandate for the collection of forensic evidence at the crime scene by a ‘forensics expert’ in all offences punishable by imprisonment of seven years or more. The clause prescribes a five-year period regarding the implementation of the provision. However it is unclear whether the time limit has been prescribed for states to notify the date of implementation (which may be beyond the five-year period), or for the implementation of the provision itself.

Considering the lack of statutory requirements on crime scene management, the introduction of this clause is a significant step towards ensuring proper collection of forensic evidence from crime scenes in serious cases. Currently, the practices for evidence collection vary across states. In many states, scientific staff from forensic science laboratories (FSLs)^[2] or District/Mobile Forensic Science Units (DFSU/MFSU)^[3] may also be called for crime scene visits by police officials depending on the nature of the case.^[4] Additionally, in states such as Karnataka, the state police have created posts to hire civilian forensic experts as Scene of Crime Officers (SoCOs) to assist with crime scene management.^[5] Thus, while mandating evidence collection by an expert is a positive change, implementation of the measure may prove challenging in the current forensic science system.

a. Broad Scope of ‘Forensics Experts’ could include Private Experts

Under Cl.176(3), the term ‘forensics expert’ could include both government (FSL officers or SoCOs working with the police), as well as private forensic experts. Currently, the CrPC permits reliance on registered medical practitioners who are privately employed, to conduct medical examinations.^[6] Medical professionals are regulated by the National Medical Commission through a system of registration and licensing, along with standards monitoring their professional conduct. On the other hand, there are presently no oversight mechanisms or standards to regulate the system of forensic science education or profession in India.^[7] In this context, allowing private forensic experts to assist with crime scene examination, without any regulatory body to ensure their proficiency or compliance with professional and ethical standards, would be problematic and should be reconsidered.

b. Potential issues with involving FSL Experts for Crime Scene Visits

Forensic scientists currently working in FSLs would be covered within the term ‘forensic experts’ under this provision for crime scene examination. The same experts may proceed to examine the evidence collected from the crime scene within the FSL as well. This poses a serious risk for issues of cognitive and contextual bias, as the forensic examiner would be exposed to a wide range of task-irrelevant information during the crime scene inspection.^[8] In case accused persons or witnesses are present during the crime scene examination, the forensic expert may be exposed to confession by the accused, witness statements, or other information which may be irrelevant for their forensic examination, such as the gruesome nature of the crime scene. Further, visiting crime scenes in addition to grappling with a heavy caseload, with vacancies in their divisions, is often demanding for forensic examiners.^[9] The necessary infrastructure for crime scene visits and evidence collection, in the form of mobile vans equipped with the requisite instruments and material, would also require significant investment across sta

II. Wider Evidence Collection from Individuals

The power of Magistrates to order collection of forensic samples from individuals under s.311A CrPC has been expanded by Cl.349 in two significant ways. Firstly, the types of samples that may be collected have been expanded from signatures and handwriting to include fingerprints and voice samples^[10] as well. Secondly, in addition to ordering collection of samples from persons who may have been previously arrested in connection with the investigation as provided in s.311A, under Cl.349 the Magistrate can order collection of samples from any person while providing the reasons for such collection in writing.^[11]

a. Expanding the scope of collection of Personal Data

Concerns regarding the expansive powers of collection of personal data under the CPIA hold true for Cl.349 as well.^[12] Under Cl.349, fingerprint and voice analysis samples can be collected from any person with reasons to be recorded in writing. There is no requirement for establishing either the person’s connection with the offence or the relevance of their samples to the criminal investigation. Given that the samples sought to be collected constitute an individual’s personal data, this raises serious concerns regarding the disproportionate impact on the right to privacy. This gains particular significance in light of questions regarding the validity and reliability of these forensic techniques and the existing practices in forensic science laboratories in India.

Fingerprint Examination

Studies on the accuracy of fingerprint analysis have found different false positive rates (1 in 306 in a 2011 study and 1 in 18 in a 2014 study).^[13] In case of two fingerprints from different sources that have many common features and few dissimilarities (close non-matches), the error rate is as high as 28.1%.^[14] This raises critical questions regarding the perceived accuracy and infallibility of fingerprint comparison that currently exists within the criminal justice system. Besides the high rates of error in fingerprint examination which impact its reliability, there is also a lack of empirical evidence of the ‘uniqueness’ of fingerprints.^[15] Further, many studies have found that fingerprint examiners are susceptible to issues of confirmation (where examiners are prone alter the features they mark in an unknown fingerprint based on the features seen in the known fingerprint) and contextual bias (where the examiners’ decision-making is influenced by task-irrelevant information), which raises concern about the reliability of fingerprint examination.^[16]

Voice Analysis

Characteristics which impact voice comparison, such as the relevant linguistic population, conditions in which the voice recording was made, and storage and transmission conditions of the voice clip, vary greatly.^[17] The characteristics of a single individual’s voice in saying the same thing also varies from one instance to another, depending on the language, accent, dialect, speaking style, and their emotional and physical condition.^[18] Voice analysis can be done through various kinds of methods, and while jurisdictions move from highly subjective methods to more objective ones based on automated software,^[19] empirical research to validate and measure the accuracy of different forensic voice comparison systems is ongoing.^[20] Until the scientific foundations of voice analysis have been tested, legal reliance on such evidence has been cautioned against.^[21]

Lack of Validation of Procedures in Indian FSLs

Besides issues with the validity and reliability of fingerprint and voice analysis methods, there is also an issue of quality management within Indian forensic practice, to ensure that the forensic methods have been correctly applied in an individual case. Besides the absence of best practices or guidelines for laboratories to undertake such examinations,^[22] FSLs widely lack their own working procedure manuals (WPMs). WPMs provide stepwise instructions on all aspects of the forensic examination. Such manuals should be prepared after internal validation studies to ensure that these procedures perform as expected within the laboratory’s set-up and provide accurate results.^[23] Thus, the move to collect more personal data from a wider group of people, without proper procedures within FSLs to ensure reliable analysis, needs further consideration.

III. Exemption to Forensic Experts from Judicial Scrutiny

Corresponding to s.293 CrPC, Cl.329 allows the submission of a report by a government scientific experts as evidence, without requiring their oral testimony in court as a witness. Cl.329 expands the categories of experts exempted from court deposition: any scientific expert certified by the central or state governments (which can include private experts) may be notified under the clause.

a. Background

S.293 CrPC draws from s.510 under the 1882 and 1898 CrPC, which stipulated that reports of Chemical Examiners could be used as evidence in court. While under the current CrPC 1973, s.293 grants courts the discretion to summon the exempted experts as witnesses, it allows the experts to depute a fellow expert to depose to the contents of the report on their behalf.

Cl.329 widens the exemption from oral examination for forensic experts.^[24] This exemption to experts from fulfilling their duty to the court is in stark contrast to the law in other jurisdictions,^[25] including the United Kingdom, where courts must provide reasons for not examining an expert whose report has been admitted as evidence.^[26]

b. Conflict with s.45 of the Indian Evidence Act, 1872 and issues of Fair Trial

S.45 IEA permits reliance on opinions of experts on a diverse range of areas, including on matters of science. Courts have held that despite the specialised nature of expert evidence, the accuracy and reliability of the expert’s findings should be independently reviewed, based on the data and materials underlying the examination.^[27] In Rahul v. State (NCT of Delhi),^[28] the Supreme Court disregarded the DNA evidence on the basis that the lower courts had failed to examine the underlying basis of the DNA report and whether the expert had reliably conducted the examination.

However, Cl.329 impedes any meaningful judicial scrutiny of forensic evidence. Although sub-clause (2) formally allows judicial discretion to summon and examine experts, in practice this depends upon an application by the defence explaining why the particular expert ought to be summoned.^[29] This inhibits meaningful examination of forensic evidence and makes it dependent on the quality of legal representation. Without oral examination of experts, courts cannot properly examine issues regarding the admissibility and weight of the forensic evidence. This includes the foundational validity of the techniques used, qualifications and necessary experience of the expert in that type of examination, and whether they reliably performed it in that particular case. Given the crucial role that forensic evidence plays in criminal justice administration, lack of adequate scrutiny of forensic reports would adversely affect the right to fair trial of both victims and accused, alike.^[30]

c. Issues of arbitrariness while exempting specific Government Scientific Experts from Oral Deposition

Like s.293 CrPC, the exemption from deposing before courts is applicable to specific government scientific experts mentioned in Cl.329(4). This creates an artificial distinction between forensic examiners practising the same forensic discipline, with those holding specific designations being exempted from testifying before the court. Such an exemption lacks a determining principle and appears to be manifestly arbitrary.^[31] Further, the exempted category of government scientific experts as notified by the state governments, may vary across states. Cl.329(2) also does not provide any parameters to guide the court’s discretion on when they may summon experts as witnesses which can lead to arbitrariness.

IV. Curtailing Judicial Scrutiny of Forensic Evidence

The impediment to challenging forensic reports in Cl.329 is further strengthened by Cl.330. It corresponds to s.294 CrPC, which omits the requirement of formal proof for documents whose genuineness are not challenged by the opposing party.^[32] Cl.330(1) requires parties to admit or deny the genuineness of documents within thirty days of their being supplied, a time limit that can be relaxed by the Magistrate upon giving reasons. Importantly, a new proviso to Cl.330(1) stipulates that an expert cannot be called to appear before the court unless their report is disputed by a party. Unlike Cl.329, this proviso is applicable to all experts.

a. Background

Like s.294 CrPC, Cl.330 applies to the pre-trial stage of criminal proceedings where parties are given the opportunity to challenge the genuineness of documents to be relied on by the other party i.e. whether the documents are true, devoid of any forgery or fabrication. While discussing s.294 CrPC, courts have differed on the issue of whether expert reports, like medical or post mortem reports can be admitted as evidence without the testimony of the experts who prepared such reports, in case the genuineness of such reports has not been challenged.

Some courts have held that this provision would only apply to certain documents, like letters, which speak for themselves once they are formally proved.^[33] However a medical or post mortem report can only be used to corroborate or contradict the doctor and cannot be a substitute for their oral testimony.^[34] A similar view has been that even if the genuineness of a post mortem report is not disputed under s.294 CrPC, the requirements under s.45 IEA regarding expert evidence would continue to apply, which necessitates the examination of the expert. Without the expert’s testimony, their report would be a mere certificate, which cannot be considered as evidence.^[35] On the other hand, courts have also held that a medical or post mortem report may be considered as a document s.294 CrPC. Therefore, if the accused or his counsel has admitted the genuineness of such reports, they would be admissible as evidence without requiring the oral testimony of the experts as witness.^[36] The proviso to Cl.330(1) seeks to clarify this divergence in judicial opinions by adopting the latter interpretation.

b. Examination of Experts arbitrarily restricted to issues regarding Genuineness

The proviso to Cl.330(1) restricts the examination of experts during trial only if the genuineness of their reports have been challenged during this pre-trial stage. This restriction is unreasonable and arbitrary as it presumes that the deposition of experts as witnesses would be necessary only for the purposes of establishing the genuineness of their report. Therefore, it precludes the examination of experts on crucial aspects which determine the accuracy and reliability of their opinions, such as the scientific validity of the testing methods, their qualifications and experience in performing such forensic examinations, and whether they reliably followed the techniques.^[37]

c. Limiting Inquiry into reliability of Expert Reports and issues regarding Fair Trial

The proviso to Cl.330(1) limits the parties to the trial (both accused and victims) from examining experts only to matters regarding the genuineness of the report. It is also important to note that FSL reports are often submitted by the prosecution during the course of the trial or after the recording of the prosecution evidence or the statement of the accused under s.313 CrPC.^[38] In such a scenario, the accused does not receive an opportunity to object to the genuineness of the report under s.294 CrPC.

Further, under this proviso, as experts would be called as witnesses during trial only if opposing parties dispute the authenticity of their report, it may prevent courts from conducting an independent review of the accuracy and reliability of the expert’s opinion. Therefore, such a restriction would adversely impact the right to fair trial for the accused and the victims.

[1] Statement of Objects and Reasons, BNSS.

[2] Directorate of Forensic Science Services, Ministry of Home Affairs, ‘DFSS Report 2018-2022’, Page 16: There are 145 FSLs in India, comprising 7 Central, 32 State and 106 regional laboratories.

[3] Directorate of Forensic Science Services, Ministry of Home Affairs, ‘DFSS Report 2018-2022’: there are 552 mobile forensic science units in India.

[4] Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 3: Case Management, Pages 152-153.

[5] The Hindu, ‘In a first, Karnataka to have ‘scene of crime officers’’, (The Hindu, 13 July 2021).

[6] Ss.53, 53A, 54 and 164A CrPC: references to registered medical practitioners. While s.53 may include any registered medical practitioner (whether employed within a state hospital or institution or not), ss.53A, 54 and 164A CrPC state a preference for government medical practitioners, and in case they are unavailable, then any other registered medical practitioner.

[7] Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 2: Recruitment, Education & Training, Page 112.

[8] Itiel Dror,Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias, Analytical Chemistry, Volume 92, Issue 12, June 2020, Pages 7998-8004: describes eight sources of bias in scientific experts including contextual bias, discussing how contextual information about the case creates expectations that influence calls made during scientific analysis and interpretation of results; Itiel Dror, Justice Bridget M McCormack & Jules Epstein, Cognitive Bias and Its Impact on Expert Witnesses and the Court, The Judges Journal, Volume 54, Issue 4, (2015), Page 8.

[9] Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 3: Case Management, ‘Challenges in crime scene & court visits’, Page 152: Between 2013-2018, 40.3% of the total sanctioned posts were vacant, out of which 69.6% of the posts were for scientific staff; Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 2: Recruitment, Education & Training, Pages 95-104.

[10] Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1: The Supreme Court held that collection of voice samples from an accused vide Magisterial order under s.91 CrPC does not amount to a violation of their right against self-incrimination under Art.21.

[11] There is an overlap between Cl.349 BNSS and the provisions under the CPIA, which replaced the Identification of Prisoners Act, 1920. CPIA permits the collection of a wide range of personal data or ‘measurements’ from convicted persons, arrestees, and persons under preventative detention. The Magistrate may also direct any person to give their measurements, if it is considered ‘expedient’ for the investigation.

[12] Project 39A, Research Brief: Analysis of the Criminal Procedure (Identification) Act, 2022, September 2022, Pages 38-41: Issues of scientific validity forensic disciplines.

[13] United States President’s Council of Advisors on Science and Technology (PCAST), ‘Report to the President – Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods’, September 2016: cites, amongst others, these studies:- Pacheco et al., ‘Miami-Dade Research Study for the Reliability of the ACE-V Process: Accuracy & Precision in Latent Fingerprint Examinations’, 2014; Ulery et al., Accuracy and Reliability of Forensic Latent Fingerprint Decisions, Proceedings of the National Academy of Sciences, Volume 108, Issue 19, 2011, Pages 7733-7738.

[14] Jonathan Koehler & Shiquan Liu, Fingerprint Error Rate on Close Non-Matches, SSRN, August 2020.

[15] William Thompson, John Black, Anil Jain and Joseph Kadane, ‘Latent Fingerprint Examination, Forensic Science Assessment: A Quality and Gap Analysis, American Association for the Advancement of Science (AAAS), 2017, Report 2, Pages 13-16; SWGFAST Individualisation/Identification position statement, Document #103.

[16] United States President’s Council of Advisors on Science and Technology (PCAST), ‘Report to the President – Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods’, September 2016, Pages 98-102.

[17] Geoffrey Stewart Morrison, Ewald Enzinger, Multi-laboratory evaluation of forensic voice comparison systems under conditions reflecting those of a real forensic case, Speech Communication, Volume 110, 2019.

[18] Geoffrey S Morrison & William C Thompson, Assessing the Admissibility of a New Generation of Forensic Voice Comparison Testimony, Colum. Sci. & Tech. L. Rev., Volume 18, 2017, Page 337.

[19] Andrzej Drugajlo et al., Methodological Guidelines for Best Practice in Forensic Semiautomatic and Automatic Speaker Recognition, European Network of Forensic Science Institutes, 2015.

[20] The Speaker Recognition Subcommittee of the US National Institute of Standards and Technology (NIST) is developing various studies on forensic speaker recognition to understand the effect of different conditions on speaker recognition and validating its use which may assist with the assessment of its admissibility.

[21] Catanzaro et al., ‘Voice Analysis Should be Used with Caution in Court’, (Scientific American, January 5 2017), last accessed on 19.10.2023; Geoffrey S Morrison & William C Thompson, Assessing the Admissibility of a New Generation of Forensic Voice Comparison Testimony, Colum. Sci. & Tech. L. Rev., Volume 18, 2017, Pages 326-434.

[22] While the Directorate of Forensic Science Services publishes best practices and guidelines for different forensic disciplines, it has not yet published them for fingerprint examination or forensic voice comparison.

[23] Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 5: Quality Management, Pages 207-209, 212-213: ‘Trends’ and ‘Lack of Internal validation & WPMs’.

[24] Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 7: Law on Expert Evidence, ‘Procedural law on the examination of experts’, Pages 253-254: Concerns regarding s.293 generally.

[25] Melendez-Diaz v. Massachusetts 557 US 305 (2009).

[26] S.30 of UK Criminal Justice Act, 1988: the permission of the court must be sought in case the expert does not depose. The court shall consider the reasons for seeking exemption and the unfairness that it may cause the accused.

[27] State of Himachal Pradesh v. Jai Lal (1999) 7 SCC 280 [18]; Ramesh Chandra Aggarwal v. Regency Hospital (2009) 9 SCC 709 [16]; Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263; Pattu Rajan v. State of Tamil Nadu (2019) 4 SCC 771 [51]; Rahul v. State (NCT of Delhi) (2023) 1 SCC 83 [38].

[28] Rahul [38].

[29] Rajkishorsingh Ranvirsing Tomar v. State of Maharashtra 2021 SCC Online Bom 326 [2]-[4], [10]: the Bombay High Court held that it is incumbent on the prosecution to examine the expert when the court is moved by the accused for issuing summon to expert or when the court itself deems it just and proper to summon the expert; Nana Ram & Anr. v. State 1996 SCC Online Raj 692 [2]-[4]; discussion on Cl.330 below.

[30] Anokhilal v. State of Madhya Pradesh, Criminal Reference No. 6 of 2022, Madhya Pradesh High Court, Order dated 11.09.2023 [13]-[14],

<https://mphc.gov.in/upload/jabalpur/MPHCJB/2022/CRRFC/6/CRRFC_6_2022_FinalOrder_11-Sep-2023.pdf>, last accessed on 19.10.2023; Naveen @ Ajay v. State of Madhya Pradesh, Criminal Appeals No. 489-490 of 2019, Supreme Court, judgment dated 19.10.2023 [18]-[21], <https://scourtapp.nic.in/supremecourt/2019/2764/2764_2019_4_1501_47778_Judgement_19-Oct-2023.pdf>, last accessed on 20.10.2023.

[31] Shayara Bano v. Union of India (2017) 9 SCC 1 [101].

[32] Shamsher Singh Verma v. State of Haryana (2016) 15 SCC 485 [11].

[33] Dhirai v. State of Tripura 1998 SCC OnLine Gau 233 [7].

[34] Ram Deo Yadav v. State of Bihar 1987 SCC OnLine Pat 257 [5]; Nagina Sharma v. State of Bihar 1990 SCC OnLine Pat 173 [82].

[35] Nahadariya v. State of Madhya Pradesh 1980 JLJ 501.

[36] Saddiq v. State 1980 SCC OnLine All 614 [11]; K. Pratap Reddy v. State of Andhra Pradesh 1984 SCC OnLine AP 211 [6]; Shaikh Farid Hussinsab v. State of Maharashtra 1981 SCC OnLine Bom 26 [16].

[37] As mentioned in reference to Cl.329 BNSS, courts have emphasised on the importance of examination of experts, including those that may be covered under the exemption under s.293 CrPC; Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 7: Law on Expert Evidence, ‘Procedural law on the examination of experts’, Page 253.

[38] Anokhilal; Naveen @ Ajay.

Criminal Law Bills 2023 Decoded #16: Framing of charge and discharge

Editor 2 — Wed, 15 Nov 2023 10:48:55 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the modifications proposed to the provisions pertaining to filing discharge applications and framing of charges under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

The BNSS has introduced maximum timelines for filing of discharge applications and framing of charges. Cl.250(1) introduces a sixty-day time limit for the accused to file a discharge application from the date of committal in a sessions triable case. For warrant cases instituted on a police report, Cl.262(1) stipulates that a discharge application can be filed within sixty days from the date of framing of charge.

Additionally, Cl.272 provides discretionary powers to Magistrates to issue thirty days’ notice to the complainant prior to discharging an accused in a ‘complaints case’. The current framework under s.249 CrPC does not envisage giving such notice to a complainant. Also, Cl.274 confers express powers to Magistrates to discharge an accused in summons cases; a provision absent in corresponding s.251 CrPC.

Similarly, in the context of framing of charges, Cls.251(1)(b) and 263(1) mandate that charges against an accused should be framed within sixty days from the date of first hearing on charge, in sessions and warrant triable cases. Further, Cl.251(2) permits framing of charges in virtual presence of the accused. These changes are focussed on reducing delays in the trial process by prescribing timelines.

I. Changes related to Discharge

a. Issues regarding timeline for Filing for Discharge in cases triable by Sessions Court

Unlike s.227 CrPC, Cl.250(1) BNSS expressly recognises the right of the accused to file an application for discharge and prescribes a sixty-day time limit to file it from the date of committal to the Sessions Court.

The introduction of a timeline may prima facie appear to be a positive move towards reducing delay in the trial process. However, it ignores systemic realities regarding pre-trial processes in our country that may defeat the exercise of this right. Firstly, accused persons often do not receive timely access to their case papers^[1] and may not have legal representation at this stage in the criminal proceedings. Further, there is often a considerable time lag between the committal of the matter to the Sessions Court by the Magistrate and assignment of the matter to a Sessions Judge, for the production of the accused and the receipt of the records.^[2]

While considering between discharge and framing of charges, courts have to consider whether there exists a “strong suspicion”, based on some material, to support a prima facie conclusion that the accused committed the offence.^[3] Considering this standard and the burden on the accused to successfully argue their discharge application, this opportunity to file for discharge would be meaningless without addressing the issues regarding timely provision of case papers and ensuring early access to a lawyer for all accused.

b. Confusions regarding the procedure for Discharge after the Framing of Charges in Warrant cases instituted on Police Report

Corresponding to s.239 CrPC, Cl.262 discusses discharge of accused in warrant cases instituted on police report. However, it introduces a timeline for filing of an application for discharge by the accused, within sixty days after the date of framing of charges. By prescribing the procedure for discharge after the framing of charges, it swaps the order of these two distinct stages and defeats the purpose of filing for discharge.

The purpose of hearing on discharge prior to the framing of charges is to protect the accused from frivolous criminal process and to conserve judicial time. It is a settled position of law that once charges are framed, either on police report or through a complaint, the Magistrate has no power to discharge the accused.^[4] Further, the implication of Cl.262(1) would be that the Magistrate must wait until the expiry of sixty days after the framing of charges, in order to give an opportunity to the accused to file an application for discharge. Therefore, this would prevent the Magistrate from proceeding with the trial after framing of charges.

c. Notice to Complainant for Discharge of Accused in ‘Complaint Cases’

Cl.272 BNSS provides the Magistrate with discretionary powers to serve thirty days’ notice to the complainant, before making an order of discharge in compoundable/non-cognizable cases, where the complainant is absent on the day fixed for hearing of the case. The corresponding provision under CrPC i.e. s.249 does not stipulate any requirement of notice to the complainant. Cl.272 ensures an additional opportunity to the complainant to make submissions opposing discharge, since an order of discharge and dismissal of matter by the Magistrate is not open for recall and reconsideration.^[5]

d. Discharge in Summons Cases

Corresponding to s.251 CrPC, Cl.274 prescribes the procedure for the Magistrate to state the particulars of the offence to the accused and record their plea of guilt or hear their defence. The requirement to formally frame charges is absent in summons cases. Cl.274 introduces a new proviso which provides for discharge in case the Magistrate considers the accusation to be groundless.

Presently, courts have held that under Chapter XX of the CrPC, dealing with trial of summons cases, the Magistrate does not have the power to consider discharge or recall summons.^[6] The only recourse available to the accused is under the extraordinary jurisdiction of the High Court under s.482 CrPC. However, through the addition of this proviso under Cl.274, powers of discharge similar to warrant cases have been introduced, which may allow for speedier resolution of summons cases, in case they are found to be baseless by the Magistrate.

II. Changes related to Framing of Charges

a. Issues regarding stipulation of timelines for Framing of Charge

Corresponding to ss.228 and 240 CrPC, Cls.251 and 263 BNSS prescribe a sixty-day timeline for framing of charges from the first hearing on charge, in trials before Sessions courts and warrant cases instituted on a police report, respectively. As mentioned above in reference to the timelines for discharge, without addressing the systemic issues and the gaps in institutional capacity, compliance with such timelines would be ineffective and unjust.

Amongst these, an important issue regarding the lack of timely access to legal representation at the stage of framing of charges, has received significant judicial attention. Recently, the Supreme Court has noted the lack of adequate legal representation at the stage of framing of charges in a few death penalty cases, and ordered a de novo trial.^[7] It is important to note that in these cases, the Supreme Court has emphasised that expeditious disposal of criminal matters cannot be at ‘the cost of basic elements of fairness and opportunity to the accused’^[8] and a hasty trial would be vitiated as ‘being meaningless & stage-managed’.^[9] In cases that may result in life imprisonment and death penalty, the Supreme Court also laid down guidelines that adequate time should be provided to the lawyer for preparation on hearing on charge.^[10] Another significant reason for the current delays in criminal proceedings is the high levels of vacancies in the subordinate-level judiciary,^[11] which needs to be addressed in order to ensure just and fair compliance with such timelines.

Another implication of this provision would be on the practice of the police filing supplementary police reports (chargesheet). Corresponding to s.173(8) CrPC, Cl.193(9) permits the police to file supplementary police reports. As per settled law, courts must conjointly examine the preliminary and the supplementary police reports before the framing of charges, unless there exists an order passed by higher courts in exercise of their extraordinary jurisdiction to exclude certain documents or parts of the police report from consideration.^[12] Since Cl.193(9) prescribes a ninety-day time limit for further investigation, it is unclear how this would affect the timeline for the framing of charges.

b. Issues regarding Presence of Accused using Electronic Means during Framing of Charges

In addition to the timeline for framing of charges, Cl.251(2) also introduces the option to produce the accused, either physically or through electronic means, so that the judge can explain the charges framed and record their plea.

Considering the importance of this stage in the trial process, courts have held that it is the duty of the judge to ensure the accused understands the charges framed against them before entering their plea.^[13] Production of the accused through electronic means may assist with avoiding delays due to implementational issues such as lack of adequate police escorts for court visits. Also, in cases where there may be a security risk for the accused due to their physical production in court, production through electronic means may be seen as a useful alternative.

However, production through electronic means also raises several concerns that may adversely impact the right to fair trial of the accused. Firstly, considering the limitations of a video conference, the judge may be restricted in ensuring that the accused has understood the charges framed against them and is under no form of duress or threat^[14] while entering their plea. Secondly, it is unclear whether the production through electronic means would be dependent on the accused’s preference or would be based on the judge’s discretion. As a corollary, it is unclear if the accused would have a right to insist on physical production, in case the court orders otherwise. Lastly, the effective implementation of production through electronic means would be dependent on ensuring adequate infrastructure and building the capacity of prison officials within central and district prisons across India (in case the accused is in judicial custody).^[15] This would include provision and maintenance of sufficient number of computer devices, uninterrupted access to the internet, separate space within prisons for attending judicial proceedings, and adequate training of prison officials. Without addressing these systemic gaps, production of the accused through electronic means may severely affect the realisation of their fair trial rights.

[1] P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161 [17], [18], [21].

[2] The National Judicial Data Grid shows that currently there are 28,112 cases pending at committal stage. See: https://njdg.ecourts.gov.in/njdgnew/?p=main/index.

[3] Dipakbhai Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC 547 [15], [23].

[4] Chandi Puliya v. State of West Bengal 2022 SCC OnLine SC 1710 [7].

[5] A.S. Gauraya v. S.N. Thakur (1986) 2 SCC 709 [9] – [10].

[6] Subramanium Sethuraman v. State of Maharashtra & Anr. (2004) 13 SCC 324 [16] – [17].

[7] Anokhilal v. State of Madhya Pradesh (2019) 20 SCC 196 [21], [22], [31]: In this case, a legal aid counsel was appointed, the day before the hearing on charge. However, as this legal aid counsel was absent during the hearing on charge, a new counsel was appointed and arguments on framing of charges were heard immediately. Considering this, the Supreme Court held that the right under the ss.227 and 228 CrPC on discharge and framing of charges was denied to the Appellant and it ultimately ordered a de novo trial; Naveen @ Ajay v. State of Madhya Pradesh Criminal Appeals No. 489-490 of 2019, Supreme Court, judgment dated 19.10.2023, [18]-[21], <https://scourtapp.nic.in/supremecourt/2019/2764/2764_2019_4_1501_47778_Judgement_19-Oct-2023.pdf>, last accessed on 20.10.2023: This was another death sentence matter wherein following the reasoning in Anokhilal, the Supreme Court remanded the matter for de novo trial; Shambhu Nath Singh v. State of Bihar 2022 SCC OnLine Pat 173.

[8] Anokhilal [26].

[9] Naveen @ Ajay [16].

[10] Anokhilal [31].

[11] ‘India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid’, 2022, Pages 90 and 91: The lower judiciary had a significant vacancy with 19,288 judges serving against a sanctioned strength of 24,631, this indicates a vacancy of about 22% among the sanctioned posts.

[12] Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 [41], [42], [53].

[13] V.C. Shukla v. State through CBI 1980 SCC (Cri) 695 [110].

[14] Sahana Manjesh, Disconnected: Videoconferencing and Fair Trial, (Commonwealth Human Rights Initiative, 2020), Pages 16 and 17: Concern regarding the limitation of the judicial officers in ensuring that the accused is not under duress, or pressure in testifying against themselves was raised in the qualitative study which interviewed lawyers and judicial officers across the country to understand their experiences on the use of videoconference in criminal trials.

[15] Sahana Manjesh, Disconnected: Videoconferencing and Fair Trial, (Commonwealth Human Rights Initiative, 2020), Page 18: Concerns were raised regarding the connectivity and poor quality of audio and video by both lawyers and judicial officers when accused were produced from prison.

Criminal Law Bills 2023 Decoded #15: Custody of Arrested Persons During Investigation

Editor 2 — Tue, 14 Nov 2023 06:21:02 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the proposed modifications in the provision on remand, and discusses the implications of changes in the period and nature of custody.

Cl.58 of the BNSS, like s.57 CrPC, provides that arrested persons cannot be detained in police custody^{^[1]} beyond 24 hours. Cl.187 BNSS provides for the procedure when investigation cannot be completed within such 24 hours, and the accused is produced before a magistrate to determine custody. This clause seeks to replace s.167 CrPC, with some crucial modifications.

Cl.187 BNSS retains the timelines of sixty or ninety days and the concept of default bail, as in the CrPC. However, unlike s.167 CrPC, Cl.187(2) additionally provides that the detention in custody of fifteen days (in whole or in part) can be at any time during the initial forty or sixty days out of the sixty or ninety days period, as the case may be. Consistent with the position under the CrPC, Cl.187(2) empowers any magistrate to authorise detention, irrespective of whether they have jurisdiction to try the case; whereas Cl.187(3) requires a jurisdictional Magistrate. Further, Cl.187(3) provides that detention in custody can be authorised beyond the period of fifteen days, but omits the phrase ‘otherwise than in police custody’; implying that police custody can also be provided in such further period. It also specifies that the Magistrate should consider the status of the accused regarding bail, while giving custody. Additionally, through a new proviso added in Cl.187(5), it defines the kind of custody permissible under the provision. This piece discusses the significant modifications proposed in Cl.187, especially concerning police custody, along with possible implications.

I. Background

S.167 of the erstwhile CrPC, 1898 simply provided that the Magistrate could authorise detention not exceeding fifteen days. However, this provision was observed more in its breach than its compliance, with the police filing preliminary reports to extend the detention period till the investigation was completed.^[2] Ultimately in the new CrPC of 1973,^[3] a proviso was introduced in s.167(2) to empower the Magistrate to authorise detention in custody beyond the period of fifteen days, but up to a maximum of sixty or ninety days (depending on the extent of punishment prescribed); provided that such further custody beyond the period of fifteen days, could not be in police custody. Cl.167 also introduced default bail for the accused, if investigation was not completed within such sixty or ninety days.

It is clear from the scheme of ss.57 and 167 CrPC that the intention is to limit police custody and protect the accused from unscrupulous police officers.^[4] Sub-clauses (2)(b), (2)(c), and (3) of s.167 CrPC^[5] make it evident that the law understands the necessity of safeguards before such custody is granted. Custodial torture and deaths in police custody are a well documented reality,^[6] and has been consistently acknowledged by the judiciary for its pervasiveness and as a matter of grave concern.^[7] Constitutional protections against police excesses include Art.22(2) which provides for the right of every arrested and detained person to be produced before the nearest magistrate within twenty-four hours; Art.21 has been judicially interpreted to include the right against torture and assault by the state and its functionaries.^[8] Further, the judiciary has brought in specific safeguards to prevent police excesses during custody, such as by laying down guidelines for arrest and detention in D.K. Basu v. State of West Bengal,^[9] and measures like installation of CCTV cameras in police stations.^[10]

II. Modifications in Duration and Manner of granting Police Custody

a. Extended duration of Police Custody

The total period of detention of an accused is the same under both s.167 and Cl.187, i.e. sixty or ninety days depending on the offence to which the investigation relates. Under the CrPC, police custody cannot exceed fifteen days. However, under Cl.187(3) BNSS, the Magistrate can authorise police custody detention for a period exceeding fifteen days. In fact, such police custody may be authorised for the entire period of detention, i.e. a maximum of sixty or ninety days, as the case may be. Given this, the only difference between Cl.187(2) and (3) is that detention under Cl.187(3) needs to be authorised by a magistrate with jurisdiction to try the case, unlike Cl.187(2). Otherwise unlike the CrPC, police custody detention can be authorised under both sub-clauses.

The proposed change is excessive and in stark contrast to even special legislations such as the UAPA where the duration of police custody permissible is only thirty days; and the investigating officer is required to file an affidavit providing reasons for seeking police custody if the accused is in judicial custody.^[11] Even this safeguard is absent in the BNSS.

Extended police custody magnifies the likelihood of custodial violence; practically nullifying the constitutional and other safeguards against police excesses which recognise the pervasiveness of custodial violence, as noted above. This proposed change is bound to seriously undermine the accused’s fundamental rights under Art.21, including the rights to life, dignity, and physical and mental well being.^[12]

This is also likely to adversely affect the accused’s fair trial rights; especially if they are from a marginalised background and do not have access to a lawyer at this stage, which is often the case.^[13] Extended police custody increases the accused’s vulnerability to forced confessions and other fabrication of evidence. For instance, the accused are tortured into signing blank papers, which are used by the police to fabricate ‘disclosure statements’. These statements usually involve the accused revealing the location of the dead body or other objects related to the crime. It is then shown as if the body/objects were ‘discovered’ by the police due to the accused’s statement.^[14] Such ‘discovery’ can then be treated as strong evidence against the accused under s.27 IEA. Courts have widely recognised the adverse effect of extended police custody on the reliability of evidence, and have routinely disregarded such disclosures as being involuntary and coerced, if obtained after prolonged police custody or multiple interrogations.^[15] Courts have also doubted the voluntariness of confessions made to judicial magistrates, if the accused was produced from judicial custody but had been in extended police custody before that.^[16]

b. Initial Police Custody in tranches, beyond the first fifteen days

Courts have differing interpretations of s.167(2) CrPC on the issue of whether police custody can be granted only in the first fifteen days after production before the magistrate or even thereafter. In Central Bureau of Investigation v. Anupam Kulkarni, a division bench of the Supreme Court held that police custody can be authorised only in the first fifteen days.^[17] This is even if the accused was unavailable for interrogation for some days in this period, or if his involvement in other offences (in the same case) was discovered later during investigation.^[18] In holding so, the court recognised the legislature’s intention in placing limitations on police custody, to protect the accused from methods adopted by unscrupulous officers.^[19] This decision in Anupam Kulkarni was followed with approval by a larger three judge bench of the court.^[20] However, other division benches of the Supreme Court sought reconsideration of Anupam Kulkarni. In Central Bureau of Investigation v. Vikas Mishra, the Supreme Court granted police custody after the first fifteen days because the accused had ‘frustrated the process’ by getting hospitalised and being unavailable for interrogation.^[21] Recently, in V. Senthil Balaji v. State, the Supreme Court again held that s.167(2) does not mention that police custody can only be in the first fifteen days, and could be at any time during the investigation period, for any other interpretation of this subsection would cause serious prejudice to the investigation.^[22]

In this background, Cl.187(2) BNSS resolves this issue by adopting the rationale in the latter line of cases. It explicitly allows detention in police custody for fifteen days, at any time in the first forty or sixty days out of the investigation period of sixty or ninety days respectively. It thus expands the reach of police custody to the later stages of investigation. When the investigation is at an advanced stage, the police are likely to have their version of how the offence unfolded. At such time, granting them unrestricted access to the accused may incentivise and facilitate fabrication of evidence towards ensuring that the police’s version is tenable in court.

Even presently, courts routinely disbelieve evidence that is obtained belatedly after arrest, for being involuntary. For instance, police often obtain ‘disclosure statements’ (discussed above), belatedly i.e. several days after the accused’s arrest. There is also a practice of obtaining disclosures in a piecemeal manner. Courts have disbelieved such belated and piecemeal disclosures^[23] due to the likelihood of them being obtained pursuant to police pressure.

Another concern is with respect to collection of forensic evidence. Courts have recognised the possibility of police tampering with crime scene samples and falsely planting the accused’s biological material. In such situations, courts have disregarded forensic evidence if there is unexplained delay in dispatching samples to forensic labs or issues with sealing after collection.^[24] Under the BNSS, such tampering would be made easier if unrestricted access to the accused is permitted via police custody during the later stages. Cl.187(2) is thus likely to incentivise such malpractices and exacerbate these existing issues.^[25]

Further, note that the possibility of securing police custody beyond the first fifteen days may reduce the incentive for timely investigations, contrary to the constitutional and legislative prerogatives to limit detention, and to the BNSS’ own objective of reducing investigative delays.^[26]

c. Consideration of the status of Bail

Cl.187(2) BNSS further requires the magistrate to consider whether the accused ‘is not released on bail or his bail has not been cancelled’ while authorising detention. The reason to introduce such language is unclear; it is unclear how the magistrate’s decision on remand is sought to be guided, based on the bail status of the accused.

III. Kinds of Custody Permissible

S.167 CrPC uses the terms ‘custody’ and ‘other than in custody of the police’; the provision is thus generally interpreted to permit police custody or judicial custody.^[27] Cl.187 BNSS however introduces a new proviso after sub-clause (5). This provides that detention shall only be in a police station in police custody or in a prison in judicial custody or in a place declared a prison by the central or state government.

Restricting the places of detention to police stations and jails through such a definition may at first blush be seen as safeguarding the rights of the accused. The detention would be in designated places governed by a set of rules including some procedural safeguards; these would also be known places, making it easier for families and lawyers to access the accused. However, the proviso precludes other forms of custody and restricts broader interpretations of ‘custody’ under this provision. For instance, courts have interpreted custody under s.167 CrPC to include custody of investigating agencies such as the Enforcement Directorate and Central Bureau of Investigation,^[28] transit remands required for transporting accused from one state to another,^[29] and house arrest.^[30]

The need for many of these forms of custody would continue to exist in reality. Their exclusion from permissible custody under Cl.187 might then be harmful in practice. It may result in situations where the accused’s liberty would be curtailed, but the period would not count towards default bail as it would not be ‘custody’ under Cl.187 BNSS.

[1] In police custody, the accused is in the custody of the police for interrogation and investigation purposes, and is held in a lock-up at the police station. In judicial custody, the accused is in the custody of the magistrate and is held in a jail or prison.

[2] Law Commission of India, Forty-first Report (The Code of Criminal Procedure, 1898), Vol I, Pages 76-77 (Law Commission of India Report no. 41, 1969); Central Bureau of Investigation v. Anupam Kulkarni (1992) 3 SCC 141, Page 147.

[3] The statement of objects and reasons of CrPC 1973 referred to fair trial, timely investigations and procedures that ensured a fair deal to the poorer sections of the community.

[4] Central Bureau of Investigation v. Anupam Kulkarni (1992) 3 SCC 141 [10].

[5] These provisions are retained in the BNSS. Cl.187(4) BNSS (similar to s.167(2)(b) CrPC) requires physical production of the accused before police custody can be granted. Cl.187(5) BNSS (similar to s.167(2)(c) CrPC) bars second class magistrates, unless specially empowered by the High Court, from authorising police custody. Cl.187(7) BNSS (similar to s.167(3) CrPC) imposes an additional requirement of recording written reasons on the magistrate while granting police custody.

[6] Project 39A, Death Penalty India Report, Volume II, 2016, Page 20 onwards; National Campaign Against Torture, India: Annual Report on Torture-2020, 2021.

[7] D.K. Basu v. State of West Bengal (1997) 1 SCC 416; Nilabati Behera v. State of Orissa (1993) 2 SCC 746; State of Madhya Pradesh v. Shyamsunder Trivedi (1995) 4 SCC 262; Prakash Kapadia v. Commissioner of Police (Ahmedabad City) 2014 SCC Online Guj 11365.

[8] D.K. Basu [17], [22].

[9] D.K. Basu [35].

[10]D.K. Basu; Prakash Kapadia v. Commissioner of Police (Ahmedabad City) 2014 SCC Online Guj 11365.

[11] S.43D UAPA deals with some unlawful and terrorist acts. This also requires the investigating officer to explain the delay if any in requesting for police custody.

[12] Shabnam v. Union of India (2015) 6 SCC 702 [14].

[13] Project 39A, Death Penalty India Report, 2016: 76% (of 373 prisoners) of those on death row belonged to the most socio-economically marginalised sections. 97% (of 191 prisoners) did not have a lawyer during police interrogations. Of these, 155 prisoners spoke about their experience of custodial violence, with 82.6% (i.e. 128 prisoners) claiming they were tortured in police custody.

[14] Project 39A, Death Penalty India Report, 2016.

[15] Ashish Jain v. Makrand Singh (2019) 3 SCC 770 [32]: disclosures by the accused were held to be non-voluntary and disbelieved since the investigating officer deposed that they were extracted after multiple grillings and interrogations; Nathu v. State of Uttar Pradesh AIR 1956 SC 56 [6]: prolonged custody immediately preceding the confession is sufficient to make it involuntary, unless properly explained.

[16] Babubhai v. State of Gujarat (2006) 12 SCC 268 [16]: the accused had been in police custody for 16 days previously.

[17] Central Bureau of Investigation v. Anupam Kulkarni (1992) 3 SCC 141.

[18] Anupam Kulkarni (1992) 3 SCC 141 [8], [13]: In this case, the Central Bureau of Investigation argued for custody of the accused beyond the first 15 days, since he had been admitted in hospital for some days in that period and had not been available for interrogation. This plea was rejected.

[19] Anupam Kulkarni (1992) 3 SCC 141 [10], [11].

[20] Budh Singh v. State of Punjab (2000) 9 SCC 266 [5].

[21] Central Bureau of Investigation v. Vikas Mishra (2023) 6 SCC 49 [15]-[17], [19].

[22] V. Senthil Balaji v. State 2023 SCC Online SC 934 [68]-[69], [82]-[83], [95], [98].

[23] Ashish Jain v. Makrand Singh (2019) 3 SCC 770; Sattatiya v. State of Maharashtra (2008) 3 SCC 210 [26].

[24] State of Rajasthan v. Tara Singh (2011) 11 SCC 559;Sahib Singh v. State of Punjab (1996) 11 SCC 685.

[25] This is especially given the recently enacted Criminal Procedure (Identification) Act, 2022 which permits the police to compel arrested individuals to give ‘measurements’ including their biological samples, which are then to be preserved.

[26] Statement of objects and reasons of BNSS mentions that delays in delivery of justice, including delays in the investigation system are big hurdles in speedy delivery of justice which impacts the poor man adversely; citizen centric criminal procedures are the need of the hour.

[27] Gautam Navlakha v. National Investigation Agency 2021 SCC Online SC 382 [103]-[104].

[28] V. Senthil Balaji v. State 2023 SCC Online SC 934 [95].

[29] Gautam Navlakha [84]: A transit remand is considered as police custody, and might be necessary for instance if the accused is arrested in one state but FIR is lodged in a different state

[30] Gautam Navlakha: While expanding the meaning of custody to include house arrest, the court discussed concerns of overcrowding in prisons and of cost-saving.

Criminal Law Bills 2023 Decoded #14: Conditions Requisite for Initiation of Proceedings – Cognizance

Editor 2 — Fri, 10 Nov 2023 13:47:26 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the changes proposed to the proceedings pertaining to taking cognizance under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

Judicial response to a crime, or ‘initiation of proceedings’, begins with the act of taking ‘cognizance’ of the alleged crime by a Magistrate. It is a morally and procedurally significant stage in the criminal trial, where a judicial officer, and thus the court, officially becomes aware of the commission of an offence. Cognizance is the precursor to ‘initiation of proceedings’, whereby a summons or warrant is issued against the accused and charges are framed, while also marking the end of the investigation.

The BNSS proposes three significant changes to the operation of cognizance proceedings. Firstly, it relaxes the precondition of government sanction for taking cognizance in cases involving public servants such as judges (Cl.218). This is a laudable development that brings the legislative provision in consonance with case law. Secondly, it creates an opportunity for the accused to be heard at the stage of cognizance in private complaint cases (Cl.223), and thirdly, it specifically provides for cognizance based on complaints filed under special laws (Cl.210). These two changes, however, raise concerns about their possible implications.

I. Background: Procedure for Cognizance

S.190 CrPC enumerates the situations in which the Magistrate may (and ‘must’)^[1] take cognizance of an offence. The first scenariorelates to cases involving commission of cognizable offences, where the police can begin investigation and arrest the accused without permission from the court, and are generally considered to be more ‘serious’.^[2] The police investigates the commission of the alleged offence after registration of an FIR, with or without arresting the accused, and at the end of the investigation, submits a report to the Magistrate. This report is generally called a chargesheet, if the police concludes that a criminal offence was committed; or a final report, if the police concludes that no criminal offence was committed. The report of the police, consisting of all evidence collected by them, forms the material on the basis of which a Magistrate takes cognizance of the commission of an offence.^[3]

Second, in non-cognizable offences or where the police has refused to register an FIR,^[4] a complaint regarding the commission of a crime can be submitted directly to the Magistrate, without involving the police or registration of FIR. In such cases, the Magistrate conducts their own inquiry, as opposed to a police investigation, by examining the complainant and any witnesses mentioned by the complainant. These statements, in turn, form the basis for taking cognizance in non-cognizable cases. Thus, there is a largely impermeable distinction between the investigative and judicial stages of criminal prosecution.

Lastly, cognizance is also taken based upon the Magistrate’s own knowledge or information received from any person ‘other than a police officer’. This last provision, s.190(1)(c), is generally utilised in situations where the police has filed a closure report in cognizable cases, but the Magistrate disagrees with the closure and takes cognizance of the offence.^[5]

The above structure has been retained in the newly proposed bill, in Chapter XV, with the addition of changes discussed below.

II. Sanction for Prosecution of Public Servants/Judges

Cl.218 BNSS mandates that government sanction must be obtained before a Magistrate can take cognizance of an offence alleged to be committed in the course of duty by a judge, magistrate, or public servant. This corresponds to s.197 CrPC pertaining to the ‘Prosecution of Judges and public servants’. A new proviso to Cl.218 adds to this by providing a timeline of one-twenty days within which sanction must be given; and further, prescribes that where the government fails to give sanction within one-twenty days, sanction would be ‘deemed to have been accorded’ by the government.

Under the extant regime, this provisional protection for public servants, essentially turned to immunity for these officers. Instead of forestalling vexatious cases, governments often did not act on the requests for sanction even for non-frivolous complaints. Thus, the requirement for sanction has often acted as a barrier to prosecution of even prima facie legitimate cases of corruption or custodial violence.^[6] Consequently, the Supreme Court took note of the inaction of governments in granting sanction, and prescribed a time limit of three months (or one hundred and twenty days) for grant of sanction.^[7] Similarly, the Central Vigilance Commission has also prescribed a one hundred and twenty days time period for grant of sanction by the government under s.197 CrPC.^[8] Cl.218 proviso follows on the heels of this development in jurisprudence.

The implementation of a time period did not curb the culture of impunity that developed due to delays in prosecution of public servants, due to failure of the government to grant or reject sanction.^[9] The accused public servant would seek to take benefit of the delay in grant of sanction, by moving to quash the proceedings entirely. This forced the Supreme Court, in 2022, to unequivocally hold that delay in sanction would not result in quashing of the criminal proceedings, but instead subject the competent authority to administrative action and judicial review.^[10] Thus, the provision of a ‘deemed sanction’ is a laudable addition to these developments initiated by the Supreme Court, in preventing the misuse of the power to grant sanction. It also mirrors case law development in the context of a parallel provision in the Prevention of Corruption Act,^[11] where the Supreme Court had similarly held that if a sanction is neither granted nor refused within the prescribed period, the sanction would be deemed to be granted.

III. Opportunity for Hearing the Accused

Complications arise in the context of complaint cases, through the addition of a proviso to Cl.223 on ‘Examination of complainant’. The extant provision, s.200 CrPC, provides that the magistrate must examine the complainant and any witnesses while taking cognizance of a non-cognizable offence on the basis of a private complaint. A new caveat has been added to this provision, which prohibits taking of cognizance in complaint cases without affording the accused an ‘opportunity of being heard’.

The right to be heard, while unquestionably beneficial for an accused at any stage of criminal adjudication, has until now not been provided at the stage of cognizance. This is for multiple reasons, all relating to the nature of cognizance as a judicial function. At the outset, it may be noted that cognizance does not involve any formal action. It is the mere application of judicial mind to the suspected commission of an offence.^[12] When a Magistrate reads the complaint or chargesheet, and applies their mind to determine whether the avermentsin the complaint or chargesheet disclose the commission of an offence for the purposes of proceeding further, they are said to take cognizance.^[13] Courts have highlighted that at this stage, the Magistrate need not examine the evidence with a view to determine if it would support conviction of the accused, nor assess the reliability or validity of the evidence.^[14] As such, the Magistrate is also not bound to give a reasoned order, nor is a superior court ordinarily allowed to substitute its opinion for the Magistrate’s. Immediately after cognizance is taken of an offence, the accused is directed to be produced, their plea of guilt or innocence is recorded, and charges are framed. The framing of charges is the first stage where the accused is permitted to be heard and make submissions relating to the commission of the crime.^[15] A caveat is that in rare circumstances, where there is irrefutable evidence (sterling quality) to suggest that the prosecution version is ‘totally absurd or preposterous’, it may be brought to the notice of court at the stage of taking cognizance as well.^[16]

In essence, cognizance is a stage where the law officially recognises the commission of an offence. After this, the Magistrate issues process against an accused person and affords them a right of hearing, i.e. at the framing of charges. Naturally, then, the CrPC does not envisage a right of hearing to the accused, or anyone, at the stage of taking cognizance.

This creates a host of issues, not the least of them being that the purpose of taking cognizance in complaint cases would be frustrated. Complaint cases are lodged either in cases where the offence is non-cognizable, or where, despite the offence being cognizable, the police refuses to register an FIR or the complainant is unable to register an FIR.^[17] The object of allowing this is to ‘ensure the freedom and safety of the subject in that it gives him the right to come to the court if he considers a wrong has been done to him or the Republic and be a check on police vagaries.’^[18] This provision is often utilised by vulnerable complainants where the perpetrator holds relatively more power. This includes instances of violence against members of the SC/ST community by persons from dominant caste; sexual violence against women by men in positions of power including those from dominant caste, class or religious community; and domestic violence against women. In these situations, the victims find it difficult, if not dangerous, to register an FIR and choose to file a private complaint instead. In the context of these power dynamics, the refusal of the police to take these allegations seriously or to register FIRs in these situations, further contributes to the victims’ difficulties. By allowing the accused an unrestricted right of hearing at this stage, under Cl.223 before even taking notice of the commission of an offence, gives scope for witness manipulation and suppression. The importance of complaint cases in ensuring ‘freedom and safety’ of victims is jeopardised.

This might also exacerbate the concerns of an already overburdened system. As per the provision in the BNSS, to even take note of a crime, the Magistrate will be required to hear every accused in a complaint case. The contours of this hearing are also not specified. Courts have been clear that accused persons have no right to produce any material, as cognizance is taken based on chargesheet /complaint,^[19] apart from the aforesaid evidence of sterling quality. Judicial clarity would be needed to determine if the hearing would be limited to this point. To allow a hearing beyond that, or on the evidence, would also frustrate the purpose of taking cognizance, and be a duplication of the stage that follows immediately after, i.e. hearing on charge.

Crucially, this right has been created only in the context of complaint cases. This creates an anomalous situation, where an additional right has been created for complaint cases, whereas no such right exists where the offence has been investigated by the police. A potential explanation would be that an accused in a cognizable offence would be aware when cognizance is taken, as accused persons must (at the very least) be produced when chargesheet is filed. On the other hand, no provision mandates that the accused in a complaint case must be made aware of the lodging of a complaint or at the stage of taking cognizance. However, as discussed above, for the provision to be workable, the contours of the hearing must be clarified.

Similar concerns also arise in the context of Cl.210(3), which restrains the Magistrate from taking cognizance of allegations raised against a public servant arising in the course of discharge of official duties, until (a) receipt of a report from an officer superior to the public servant; and (b) consideration of ‘assertions made by the public servant’ regarding the incident. This may have been introduced with a view to prevent vexatious or frivolous complaints against public servants discharging their duties. However, it simultaneously raises concerns about power dynamics highlighted above, and potentially contributes to the culture of impunity generally surrounding actions of public servants.

Cl.210(3) has been duplicated in Cl.175(4). Cl.175 falls within Chapter XIII of the BNSS, which deals only with investigative powers of the police, a stage of the criminal legal process that precedes the stage of cognizance. Issues of cognizance and Magistrate’s role after investigation begin with Chapter XV. Thus, the addition of the new sub-clause (4), which is identical to Cl.210(3), does not fit in the scheme contemplated within the BNSS (or the CrPC). This is likely a clerical error.

IV. Circumstances for taking Cognizance

The first clause of s.190(1) has been modified in Cl.210(1)(a) BNSS, which now provides that cognizance may be taken of any offence ‘upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence’. The underlined text is the addition made to s.190(1)(a). Thus, cognizance of reports of specialised agencies (who are authorised under special laws to investigate specific offences) is not only explicitly included under the Cl.210(1)(a), but these ‘complaints’ are curiously treated on par with private complaints, rather than a police report.

On the face of it, this equalisation sits odd. The concerning theme with complaints filed under special laws, is that they often pertain to offences which are otherwise ‘serious’ (as they carry a punishment of more than three years’ imprisonment) and require specialised agencies for their investigation. Such specialised agencies are also authorised to undertake investigative procedures of arrest, interrogation and/or seizure. Yet, despite the gravity of offence and detailed investigation, the report submitted by the authorised person^[20] is treated as a ‘complaint’, rather than a ‘chargesheet’. More than a mere issue of terminology, the filing of a chargesheet (as opposed to a complaint) at the end of the investigation is a crucial (but not decisive) barometer for whether an investigative agency acts in the role of ‘police’.^[21] This, in turn, determines whether safeguards which guide the exercise of police powers,^[22] would also apply to the investigative acts of such agencies. Thus, this proviso may indicate legislative intent to not treat the entities filing the complaint under special law as exercising ‘police powers’.

This addition, however, is not an unexpected development. In the context of the PMLA, the Supreme Court has held that Enforcement Directorate, the specialised agency which investigates offences therein, does not exercise ‘police powers’, and thus, the report filed by the agency is not comparable to a chargesheet.^[23]Other special statutes also reflect a similar trend in the terminology adopted. The NDPS Act, 1985, allows cognizance of listed offences to be taken on the basis of a complaint filed by an officer of the Central or State government.^[24] Other instances of complaints filed by authorised officers under a special law, may be found in s.439 r/w s.212 of Companies Act, 2013, and s.13(1D) FEMA, 1999. In the absence of specific provisions for taking cognizance under these special legislations, the procedure under s.190 CrPC for inter alia taking of cognizance is applicable.

[1] Umer Ali v. Safer Ali Calcutta High Court, judgment dated 19.08.1886: The Magistrate has no discretion in whether to take cognizance; if the materials prima facie disclose the commission of a criminal offence, the Magistrate must take cognizance.

[2] S.2(c) CrPC states that an offence that is punishable with death, imprisonment for life, or imprisonment for more than three years shall be cognizable.

[3] S.190(1)(b) CrPC: ‘upon a police report of such facts’.

[4] S.190(1)(a) CrPC: ‘upon receiving a complaint of facts which constitutes such offence’.

[5] R.N. Chatterji v. Havildar Kuer Singh (1970) 1 SCC 496; Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668.

[6] Polis Project, Chasing accountability: The case of custodial deaths in India, Part IV, ‘Impunity and Complicity: The Role of the State and non-State Institutions in cases of custodial deaths in India – 4, last accessed on 26.09.2023.

[7] Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226.

[8] Ministry of Finance, Department of Financial Services (Vigilance Department), Guidelines for checking delay in grant of sanction for prosecution, F No. 5/5/2012-Vig; Central Vigilance Commission, Guidelines for checking delay in grant of sanction for prosecution, No. 005/VGL/011.

[9] Vijay Rajmohan v. Central Bureau of Investigation (2023) 1 SCC 329.

[10] Vijay Rajmohan.

[11] S.9 Prevention of Corruption Act, 1988.

[12] Sourindra Mohan Chuckerbutty v. Emperor 1910 SCC OnLine Cal 41; R.R. Chari v. State of Uttar Pradesh 1951 SCC 250.

[13] Bhushan Kumar v. State (2012) 5 SCC 424.

[14] Subramanian Swami v. Manmohan Singh (2012) 3 SCC 64.

[15] S.228 CrPC; This is not to assert that prior to the hearing on charge, no other hearings happen. In instances where, even on a private complaint, the accused has been arrested, there would be hearings prior to the hearing on charge on limited aspects of custody, bail, etc.

[16] Rukmini Narvekar v. Vijay Sataredkar (2008) 14 SCC 1.

[17] Seeni Ammal, In re, 1960 SCC OnLine Mad 115.

[18] SC Sarkar et al, The Code of Criminal Procedure, (Volume I, 12th edn, LexisNexis 2018); Chinnaswami Reddiar v. K. Kuppuswamy 1954 SCC OnLine Mad 378.

[19] State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568.

[20] An officer of the specialised agency, such as the Enforcement Directorate, SFIO, NIA, etc. in this context.

[21] Abdul Razzak v. Sudip Kr. Dutta Gupta 1989 SCC OnLine Cal 167; Badaku Joti v. State of Mysore (1966) 3 SCR 698.

[22] Such as statements of guilt made by the accused person to the police officer cannot be used in evidence.

[23] Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929; Cognizance is taken by the special court under the PMLA on the basis of this complaint filed by designated officers, with the prior sanction of the government.

[24] S.36A NDPS Act.