This article comprehensively outlines how investigations are to be conducted under the newly legislated Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (formerly Criminal Procedure Code, 1973) and how criminal trials will be conducted under BNSS and Bhartiya Sakshya Adhiniyam, 2023 (BSA) (formerly Indian Evidence Act, 1872).
This article is divided into two parts: Part I discusses A) Investigations B) Stages of Evidence and C) Stages of Bail. Part II discusses D) Police Report E) Commitment of a Case and F) Sessions Trial.
In this stagewise overview, it is generally observed that these new statutes provide for definitive and hence relatively expeditious timelines. These provisions will arguably enhance the efficiency with which criminal matters are handled by law enforcement and the judiciary. Further, there are new provisions which prescribe the use of technology during investigation and in trials which not only demonstrates statutory adaptation but also advancement. However, there are provisions which expand the powers of the police and judiciary which may raise potential concerns.
For an investigation to commence, a crime must be committed which is punishable under the Bhartiya Nyaya Sanhita, 2023 (BNS) (formerly Indian Penal Code, 1860) or any other penal statute.
Cognizable crimes/ offences are mostly non-bailable in nature while non-cognizable are mostly bailable in nature. The BNSS has divided different types of crimes/ offences into several chapters. The classification of whether an offence cognizable or non-cognizable, bailable or non- bailable and compoundable or non-compoundable are listed in the First Schedule of the BNSS.
i. Cognizable Offences
Most cognizable offences are non-bailable and are of a more serious nature than non-cognizable offences. In cases involving cognizable offences, a police officer may, in accordance with the First Schedule or under any other law, arrest without a warrant.
As soon as the local Police is intimated that a cognizable offence has been committed in their local jurisdiction, the police officer in charge may with the prior permission of a senior officer conduct a preliminary enquiry to determine whether a prima facie case for proceeding in the matter exists under Section 173(3) BNSS. This must be within a period of 14 days. However, this directly contradicts the Hon’ble Supreme Court’s ruling in Lalita Kumari vs. Government of Uttar Pradesh where it was held that a police officer must mandatorily register an FIR (First Information Report) if the information received discloses any cognizable offence (as was mandated under Section 154 of the CrPC). While this approach may limit the number of FIRs being filed and in turn reduce the burden of frivolous FIRs being registered, it inevitably raises concerns over complainants being dependent on the police’s discretion to have their FIRs registered.
ii. Non-Cognizable Offences
Any offence of which cognizance cannot be taken by the police is a non-cognizable offence. In cases of non-cognizable offences, a police officer has no authority to arrest without a warrant from the magistrate; the police must obtain an order under Section 174(2) of BNSS from the magistrate. Once such an order is obtained, the police may treat the said case in the same way as a cognizable offence.
If the police at any point refuses to register an offence, the aggrieved person can approach the magistrate by making an application under Section 175(3) of the BNSS to present their case. A direction may then be given by the magistrate to the police to take cognizance of the case. Before approaching the magistrate, the aggrieved person will have to comply with Section 173(4) of BNSS to inform the Superintendent of Police/ Deputy Commissioner of Police (SP/ DCP) about the failure of the police officer to register an FIR. The SP/ DCP may, on being satisfied that a cognizable offence has been committed, investigate the case themselves or direct the investigation to be made by any officer subordinate to him.
As opposed to Section 154 of the CrPC which was jurisdiction-centric, a police officer can now register an FIR at his/ her police station, irrespective of the area where the offence is committed. The said police station registering the FIR can transfer the FIR/ investigation to the concerned police station under whose jurisdiction the offence has been committed.
The police officer has to register an FIR through the prescribed Integrated Investigation Form – ‘I’ (IIF-I). A statement of the first informant, narrating the facts of the incident is required to be recorded by the police officer and the said FIR under the IIF-I form must be signed by the Investigation Officer. Once the FIR is lodged it must be sent to the Chief Metropolitan/ Judicial Magistrate’s court in writing within 24 hours of it being registered.
Once an FIR has been registered by the police, the evidence stages are mainly divided into three parts:
i. Recording statements under Section 180 of BNSS.
ii. Collecting evidence.
iii. Recording of confessions/ statements under Section 183 of BNSS before the magistrate.
i. Recording of Statement under Section 180 of BNSS
Section 180 of BNSS deals with the examination of witnesses by police. The Investigation Officer may issue a notice under Section 179 of BNSS to the witness to attend the police station for recording of a witness statement under Section 180 of BNSS. This recorded statement is not admissible as evidence and must be proved in a trial court by adducing evidence. Further, Section 180 (3) of BNSS also provides for the possibility statement being recorded by audio-video electronic means. Imperatively, the legislature has opted for the use of a precatory rather than mandatory language and using electronic means for recording a statement remains discretionary.
ii. Collecting evidence
Police officers are empowered to conduct inspections of a crime scene and/ or any other required place for the collection of evidence. Evidence may include - blood remains, weapons, soil, wall scrapings, car paint, clothes, etc. In crimes where documentary evidence is relevant, the police can summon a witness/ accused under Section 94 of BNSS for the production of documents and electronic communication, including devices that contain digital evidence.
iii. Recording of a Section 183 statement
It is not mandatory for the investigating agency to record Section 183 statements in all the cases, but as per the sub-clause 6, that is, Section 183(6A), in any case where offence is committed under Sections 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79 and 124, of BNS, the magistrate has to record a statement, under Section 183, of the person against whom the offence has been committed.
A statement recorded under Section 183 is admissible as evidence as the same is recorded before a judicial officer under oath. A statement recorded under Section 183 can be retracted by a person making the statement by way of an application before the Metropolitan/ Judicial Magistrate.
A person named as an accused in the FIR can seek pre-arrest bail from a Court of Sessions or a High Court and/ or an arrested accused person can seek regular bail from a trial court and/ or a Court of Sessions or a High Court.
i. Anticipatory Bail under Section 482
High Courts and Courts of Sessions are empowered under Section 482 of BNSS to issue directions for bail to be granted to a person apprehending arrest. Anticipatory bail can only be sought for offences that are non-bailable in nature. While making such directions, the concerned court can put the person under conditions depending on the case-specific facts including that a person shall make himself available for interrogation by a police officer as and when required, a condition to not tamper with evidence, etc.
The striking difference between Section 438 of the CrPC and Section 482 of BNSS is that the legislation has now deleted factors which are required to be taken into consideration by courts for granting anticipatory bail. These factors include the nature and gravity of the accusation, antecedents of the applicant, the possibility of fleeing from justice etc. This provision has relaxed the stringent conditions on which anticipatory bail was earlier granted. This a welcome step which will be appreciated by the courts while deciding applications for anticipatory bail.
However, it must importantly be noted that anticipatory bail is not available for offences under Sections 65 and 70(2) of BNS, namely, for the offences of rape of a minor (below 16 years of age) and gang rape of a female (below 18 years of age) respectively.
ii. Bail
Regular bail can only be sought by a person who is in judicial custody for offences which are non-bailable in nature. If any person accused of a bailable offence is arrested or detained by a police officer without a warrant or is produced before a court, then such an officer or court can grant bail to such a person.
a. Bail under Section 480 for non-bailable offences
An application for regular bail can be moved by a person who has been arrested or detained without a warrant for any non-bailable offence before any court other than a High Court or Court of Sessions.
b. Bail under Section 483
Section 483 of BNSS grants special powers to High Courts and Courts of Sessions for granting bail to a person accused of an offence and who is in custody on conditions that the said court deems fit. No High Court or Court of Sessions shall grant bail to a person accused of an offence triable under Section 65 or Section 70(2) of BNS without giving prior notice of the application for bail to the Public Prosecutor. Additionally, the presence of the first informant or any other person authorised by him/ her is also obligatory at the time of hearing the application for bail for a person accused of an offence triable under Section 65 or Section 70(2) of BNS.
c. Cancellation of bail
Any court granting bail under Section 480 of BNSS can cancel a bail that has been granted and direct that the person in question be arrested and committed to custody. The same can be done under Section 480(5) of BNSS. Similarly, a High Court and a Court of Session can cancel the bail granted under Section 483, by invoking powers under Section 483(3) of BNSS. It is worth mentioning that despite there being several judgments on the cancellation of bail, the legislature has chosen to remain silent on the grounds on which bail can be cancelled. This grants wide powers to the judiciary for cancelling bail once granted. This allows for the potential hampering of an individual’s fundamental right to life and liberty as guaranteed by the Constitution of India.
The next steps are further discussed in Part II of this article.
About the authors: Pushkraj Deshpande is an Associate Partner and Yohaan Abraham is an Associate at ALMT Legal.
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