Criminal Law Bill
Why in News?
The central government introduced three Bills in Parliament in August. Called
1. the Bharatiya Nyaya Sanhita (BNS), 2023,
2. the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and
3. the Bharatiya Sakshya (BS) Bill,
2023 they are to replace the existing Indian Penal Code, 1860, the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872, respectively.
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A Practice (known as recording first information report, or FIR at Zero)
Zero FIR: is very new concept that refers to a FIR that is registered irrespective of the area where the offence is committed. The police in such a case can no longer claim that they have no jurisdiction. Such a FIR is then later transferred to the police station that has the actual jurisdiction so that investigation can begin.
• To ensure quick redressal to victims
• To prevent unnecessary delays or obstacles in the process of registering a complaint.
has been in use for many years now, its formal inclusion in the BNSS may help complainants get their cases registered as a matter of right without running around
A provision has been added to permit the conduct of a preliminary inquiry to ascertain the existence of a prima- facie case even if the information discloses commission of a cognisable offence punishable with more than three years but less than seven years of imprisonment.
This is at variance with the ratio of the Supreme Court judgment in Lalita Kumari versus Govt. of Uttar Pradesh (2013), where it was held that the police have no option but to register an FIR if the information discloses commission of a cognisable offence
All provisions of the CrPC on arrest have been retained in the BNSS.
It would have been appropriate to include the ratio of the Supreme Court judgment in Arnesh Kumar versus State of Bihar (2014) to justify an arrest by making it mandatory for the police officer to mention reasons of arrest supported with justifiable material, and for the judicial magistrate to record satisfaction and make it a formal part of the BNSS.
A new clause says that for offences punishable with less than three years of imprisonment, an arrest could be done only with the prior permission of Deputy Superintendent of Police if the accused person is infirm or is aged over 60.
This may provide some relief to these two categories of persons provided the Deputy Superintendent of Police uses the clause judicially
The new Codes provide for handcuffing in at least a dozen categories of persons who are accused of serious offences inter alia such as one who commits a terrorist act, murder, rape, acid attack or offence against the state.
This is sure to help police, who may be short staffed, to secure their custody. But the enabling section that guides handcuffing has not changed.
It says that ‘the person arrested shall not be subjected to more restraint than is necessary to prevent his escape’.
The new Sanhita provides for a mandatory visit of the crime scene by a forensic expert and the collection of forensic evidence for offences punishable with more than seven years of imprisonment. But on realisation of the ground reality (of limited forensic infrastructure at field level), a maximum five years of leverage has been given to State governments to bring this clause into operation.
The Sanhita rightly encourages the use of audio video means in recording the various steps of investigation; this includes searches.
However, the preferred use of smartphones (as recommended) has its limitations.
The Supreme Court in Shafhi Mohammad vs The State Of Himachal Pradesh (2018) directed the Ministry of Home Affairs and States to develop facilities for the videography and photography of crime scenes during investigation at the level of the police station.
A provision in the Sanhita that has raised the eyebrows of critics is the increase in the period of police custody exceeding 15 days, as provided in the CrPC.
This may help the police to interrogate an accused person again if additional evidence is found during an investigation.
The Sanhita also proposes enlarging the scope of judicial inquiry into suspicious deaths by including dowry deaths, but relaxes the provision of the mandatory recording of statement of a woman, a male under the age of 15 or above 60 (65 years in the CrPC) at the place of their residence based on their willingness.
It is hoped that this provision is not misused by the police, especially in crimes against women and children.
A standing order that could have been included in the Sanhita with respect to inquest is the videography and photography of a postmortem, particularly in cases where it is a custodial death or is a death caused in an exchange of fire with the police or other authorities.
The Supreme Court and the National Human Rights Commission of India have repeatedly asked States to comply with such instructions.
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