Overview of criminal investigations and trials under BNSS, BNS, BSA - Part II

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.

After all the three stages of evidence are complete, the police must file their report under Section 193 of BNSS before the magistrate, which is the concluding stage of investigation and evidence collected by the investigation agency. If the police authorities, after a proper investigation find evidence against the accused to be deficient, they may file a report under Section 189 of BNSS. The accused may be released on bond and with an undertaking to appear as and when required before the magistrate.

A police report can be of two kinds-

• Closure report

• Charge sheet / final report

i. Closure Report

A police officer under Section 189 may file a closure report, which suggests that there is no evidence to prove that the alleged offence has been committed by an accused in question. Once the closure report is filed by the police, the magistrate may:

1. Accept the report and close the case.

OR

2. Direct the investigation agency to further investigate the matter, if they have left any lacunae in the investigation.

OR

3. Issue notice to the first informant as he is the only person who can challenge the closure report as per the guidelines issued by the Hon'ble Supreme Court in Bhagwan Singh vs. Commissioner of Police. However, despite the Hon’ble Supreme Court’s directions the legislature has chosen not to give this statutory effect in BNSS.

OR

4. In some cases, the magistrate may outright reject the closure report and take cognizance of the case under Section 210 of BNSS and issue process under Section 227 of BNSS to the accused and direct his appearance before the magistrate.

ii. Charge sheet/ final report under Section 193 of BNSS

A charge sheet contains elements of the offence in a prescribed form. It also contains the complete investigation of the police authorities and the charges levelled against the accused. It includes the facts in brief, a copy of the FIR, all the statements recorded under Sections 180 and 183, panchnamas, list of witnesses, list of seizures and other documental evidence collected by the investigation agency during the investigation. On filing of the charge sheet, the magistrate may issue summons/ a warrant to the accused named in the charge sheet and direct him to appear before him, on the date he so directs.

In cases where the offence is punishable with imprisonment of less than 10 years, the final report under Section 193 of BNSS shall be filed by the investigation agency within 60 days. In cases where the alleged offence is punishable with imprisonment for more than 10 years, life imprisonment or death penalty, the investigating agency must file its report within 90 days from the date of the FIR being registered.

The aforementioned steps conclude the investigation stage. This is followed by the trial stage where the police authorities must hand over the case to the Prosecutor/ Special Prosecutor, if so appointed, and act as per their instructions during the course of trial.

Once the charge sheet is filed by the investigation agency before the magistrate, irrespective of whether it is triable by a sessions court or not, the magistrate will take cognizance of the case under Section 210 (1)(b) and issue a warrant under Section 227 to the accused to secure his presence before him. Further, the magistrate will direct the investigation agency to hand over the chargesheet to the accused in compliance with Section 230 of BNSS. If the offence is triable by a sessions court, then the magistrate will commit the case within 90 days from the date of taking cognizance (this period may be extended for a period not exceeding 180 days for reasons to be recorded in writing) under Section 232 of BNSS. These defined time periods help provide certainty to the progression of the trial. All the papers and proceedings of the case are sent to the District and Session court for the trial to begin.

Chapter XIX deals with the procedure of Sessions Trial. Sections 248 to 260 of BNSS, pointwise deal with how a criminal trial must be conducted by the Public Prosecutor.

i. Opening the case under Section 249

The prosecutor appointed will open the case by explaining the charges levelled against the accused in the charge sheet to the Court.

ii. Discharge under Section 250 and Framing of Charges under Section 251

The accused can prefer an application for discharge within a period of 60 days from date of commitment of case under Section 232 of BNSS. They can file an application under Section 250 of BNSS for discharging him from the charges levelled against him in the charge sheet. For discharge, the accused must submit before and satisfy the court, that all charges levelled against him are false and insufficient to proceed against him in trial.

If the said application under Section 250 of BNSS is rejected by the Court, then the Court may go ahead and frame charges against the accused under Section 251 of BNSS. At this stage, the Court can also add or delete any charge if the material available on record does not support the said charge. The Court shall read out the charges to the accused and ask the accused in person if he agrees with the said charges and pleads guilty to the same.

iii. Plea Bargain

An accused can file an application for a plea bargain under under Section 290 of BNSS. This application can be made where a chargesheet has been filed under Section 193 of BNSS by the police alleging that an offence appears to have been committed by an accused.  The requirements of a plea bargain application are a) the punishment of the offence cannot exceed 7 years b) the offence does not affect the socio-economic condition of the country c) the offence not been committed against a child or woman.

On receiving such an application, the Court may issue a notice to the Public Prosecutor and/or the complainant to work out a mutually satisfactory disposition. If such a mutually satisfactory disposition is worked out, then the magistrate may dispose of the case under Section 293 of BNSS and pass a judgment under Section 294 of BNSS taking into consideration the plea bargain application.

iv. Conviction of Plea of Guilty under Section 252 of BNSS

If at this stage of trial, the accused pleads guilty to committing the alleged offence and agrees to the charges framed, he may directly be convicted for those offences under Section 252 of BNSS. If the accused pleads not guilty, then the judge shall direct trial to proceed against the accused.

v. Prosecution’s Evidence - Sections 253 and 254 of BNSS

This stage of evidence comprises of examination of witnesses of both sides, this includes Examination of Chief, Cross Examination and Re-Examination. Under BSA, the examination of witnesses is covered under Chapter X. BNSS also provides for the possibility of recording the deposition of evidence through audio-video electronic means which was absent in the CrPC.

vi. Statement of the Accused under Section 351 of BNSS

When the prosecution’s evidence stage is completed, the judge will direct the accused to appear in the witness box and record his statement under Section 351 of the BNSS. The Court will put forth the testimony of all witnesses who have testified against the accused and asks him/her to attribute reasons for such testimony against them. This is the first and only occasion when the accused is allowed to address the Court. An oath is not administered during the recording of statement, and nothing recorded against the accused can be used against him/her at the later stage. It is advised that the accused use this as an opportunity rather than a formality and explain their side of the case to the Court. This must be done by attributing proper reasons to every question put forth to him by the Court. This will assist the counsel appearing for the accused during the defence’s evidence stage and final arguments.

vii. Defence Witness

After recording of the statement under Section 351of BNSS, the judge may allow the accused, through their counsel/advocate, to produce defence witness, if any, to get the said witness examined.

viii. Final Arguments / Verdict / Quantum of Punishment / Judgment under Sections 257 to 258

This is the final stage of trial where both parties, after proper evaluation of statements, evidence and testimony of witnesses, put their case before the Court, through oral arguments. Based on the arguments and the material evidence on record, the judge will pronounce if the accused is convicted or acquitted from the charges levelled against them. If the judge convicts the accused, then he will have to hear the accused on quantum of judgment under Section 401 of BNSS as to what shall be the period of him serving the term for the offence committed by him and on hearing the accused, the judge will pass a detailed judgment, recording all the reasons as to why, the accused shall be punished for the offence.

By enacting the BNSS, BNS and BSA, the legislature has made diligent efforts to draw up a robust mechanism to counter the challenges faced while navigating the criminal investigation and judicial system. Though the new legislation is prima facie impressive, the interpretations of some statutory provisions demand the punctilious attention of the higher judiciary to ensure their fair application. Given the overwhelming backlog of existing criminal matters, it may not be practicable for the lower courts to honour the timelines defined by BNSS. Therefore, while the legislature’s intent of achieving efficiency is admirable, drawing up new statutes alone cannot effectively address this problem. Wider systemic changes such as increasing the number of judicial appointments and improving the infrastructure of lower courts may help in achieving administrative efficiency. Further, well-resourced training programmes for the police and officials of investigative agencies are a pressing priority to ensure that the provisions of the new statutes are upheld in practice.

To read Part I of the article, click here.

About the authors: Pushkraj Deshpande is an Associate Partner and Yohaan Abraham is an Associate at ALMT Legal.

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