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DEFINITIONS
(Ss. 2)
QUESTION BANK
Q.1. Distinguish between bailable and non-bailable offences. Under what circumstances bail may be granted in case of non-bailable offences?
Q.2. Define cognizable offence and when police can arrest any person without a warrant
SHORT NOTES
1. Distinction between cognizable and non-cognizable offence
SYNOPSIS
1] VICTIM
DEFINITIONS (S. 2):-
We will discuss some of the important definitions below-
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βBAILABLEβ AND βNON-BAILABLEβ OFFENCES
Synopsis
1. Introduction to Bailable and Non-Bailable Offences:
2. Bailable Offences:
a. Definition:
b. Nature of Offences:
c. Right to Bail:
d. Granting of Bail:
3. Non-Bailable Offences:
a. Definition:
b. Nature of Offences:
c. Discretionary Bail:
d. Factors Considered by the Court for Bail in Non-Bailable Offences (Similar to CrPC):
e. Conditions for Bail:
4. Difference between βbailableβ and βnon-bailable offencesβ:-
a. Seriousness:-
b. As of right:-
c. Police Custody:-
5. Differences from CrPC:
6. Conclusion:
1. Introduction to Bailable and Non-Bailable Offences:
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) classifies offences into various categories, including bailable and non-bailable. This classification is crucial as it determines whether an accused person has a right to be released on bail or if the grant of bail is at the discretion of the court. From the point of view of bail, the offences are divided into two parts, viz.- (1) Bailable and (2) Non-bailable.
2. Bailable Offences:
a. Definition:
Section 2(1)(c) of the BNSS (corresponding to Section 2(a) of the CrPC) defines bailable offences as those offences that are shown as bailable in the First Schedule of the Sanhita or which are made bailable by any other law for the time being in force. Offences under any other law are bailable if they are punishable with imprisonment of up to 3 years or with a fine only. Other offences are non-bailable
b. Nature of Offences:
Generally, bailable offences are considered to be less serious in nature. Examples of such offences can often be found in the First Schedule of the BNSS. Such as Assault or criminal force otherwise than on grave provocation (S. 131 of Bharatiya Nyaya Sanhita BNS), Kidnapping (Section 137(2) BNS,), Wearing a uniform or carrying a symbol used by a soldier, sailor, or airman (S. 168 BNS), bribery (S. 173), Undue influence or impersonation during an election (S. 174), Failure to keep the election accounts (S. 177 BNS) etc. (For detail refer First Schedule of BNSS).
c. Right to Bail:
In bailable offences, the accused person has a right to be released on bail. This means that the accused can claim bail as a matter of right once they are produced or appear before the court or are detained by an officer in charge of a police station.
d. Granting of Bail:
i. If the accused is arrested and is prepared to give bail, the officer in charge of the police station is obligated to release them on bail.
ii. If the accused is produced before a court, the court is also bound to release them on bail, provided they furnish the required security (bail bond).
iii. Conditions for Bail: While bail is a right in bailable offences, the person may be required to execute a bond with or without sureties to ensure their appearance before the court for further proceedings.
3. Non-Bailable Offences:
a. Definition:
Section 2(1)(c) of the BNSS defines non-bailable offences as any offence other than a bailable offence. This implies that if an offence is not listed as bailable in the First Schedule or is not made bailable by any other law, it is considered non-bailable.
b. Nature of Offences:
Non-bailable offences are generally more serious crimes that are punishable with imprisonment for a term of three years or more, or with death or imprisonment for life.
c. Discretionary Bail:
In non-bailable offences, the grant of bail is not a matter of right but is at the discretion of the court. The court will consider various factors while deciding whether to grant bail.
d. Factors Considered by the Court for Bail in Non-Bailable Offences (Similar to CrPC):
a. The nature and gravity of the accusations.
b. The severity of the punishment prescribed for the offence.
c. The danger of the accused absconding or not appearing for trial.
d. The likelihood of the accused tampering with evidence or influencing witnesses.
e. The antecedents of the accused, including their criminal history.
f. The health, age, and sex of the accused.
g. Whether the accused has been previously convicted of a similar offence.
v. Conditions for Bail:
If the court decides to grant bail in a non-bailable offence, it can impose various conditions to ensure the presence of the accused during the trial and to prevent any obstruction of justice. These conditions can include:
a. Requiring the accused to execute a bail bond with sureties.
b. Directing the accused to surrender their passport.
c. Prohibiting the accused from leaving the country without the court's permission.
d. Requiring the accused to report to the police station at regular intervals.
e. Imposing any other condition deemed necessary by the court.
4. Difference between βbailableβ and βnon-bailable offencesβ:-
a. Seriousness:-
Bailable offences are considered less serious, whereas non-bailable offences are more serious in nature.
b. As of right:-
In bailable offences, bail can be claimed as a right by an accused person. The court or police officer is bound to release the person from custody upon furnishing security or surety (of the appropriate amount).
However, in non-bailable offences, the accused person cannot ask for bail as of right. However, this does not mean that bail cannot be granted in such offences. The police officer or court has the discretion to grant bail after considering the facts and circumstances of each case.
c. Police Custody:-
In βbailable offences, β the Court cannot remand the accused to police custody if he is prepared to give bail. However, in βnon-bailableβ offences, the court can remand the accused to police custody.
5. Differences from CrPC:
i. The definitions of "bailable offence" and "non-bailable offence" under the BNSS are substantially the same as those under the Code of Criminal Procedure, 1973 (CrPC). Section 2(1)(a) of the CrPC.
ii. While the fundamental principles remain the same, any specific changes in the classification of particular offences as bailable or non-bailable would be evident upon a detailed comparison of the First Schedules of the BNSS and the CrPC.
iii. Section 480 of the BNSS (likely corresponding to Section 437 of the CrPC) will govern the provisions for bail in non-bailable offences and the considerations for the court.
6. Conclusion:
The distinction between bailable and non-bailable offences under the BNSS is crucial for understanding the rights of an accused person upon arrest. In bailable offences, bail is a matter of right, whereas in non-bailable offences, it is subject to the discretion of the court after considering various factors. The classification is primarily based on the seriousness of the alleged offence, as indicated in the First Schedule of the BNSS and other relevant laws. While the core definitions remain similar to the CrPC, a detailed examination of the Schedules is necessary to identify any specific changes in the categorization of individual offences.
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Cognizable and Non-Cognizable Offences and Cases
Synopsis
A. Cognizable Officenes-
I. Introduction-
II. Definition of cognizable offence (S. 2 (g))-
III. Important Characteristics:
1. Severity:
2. Police Powers:
a. Arrest without Warrant:
b. Investigation without Court Order:
c. Registration of FIR:
3. Procedure:
a. FIR Registration:
b. Investigation:
c. Charge Sheet:
4. Trial:
B. Non-Cognizable offences:-
I. Definition of Non-Cognizable Offence (S. 2(1) (O))-
II. Important Characteristics:
1. Severity:
2. Police Powers:
a. No Arrest without Warrant:
b. Investigation Requires Magistrate's Order:
c. No Direct FIR:
3. Procedure:
a. Information to Police (NCR):
b. Complaint to Magistrate:
c. Magistrate's Order:
i. Investigation (if ordered):
ii. Report/Trial:
Examples:
C. Relationship and Important Distinction:
D. Relation between, βCognizable-Non-Cognizableβ, βBailable and Non-bailableβ and βWarrant and summonsβ offences and cases-
1. Severity as a Common Thread:
2. Cognizable/Non-Cognizable and Trial Type:
3. Bailable/Non-Bailable and Trial Type:
I. Introduction-
In the Indian criminal justice system, offenses are broadly classified into "cognizable" and "non-cognizable" categories. This classification is fundamental as it dictates the powers of the police to investigate and arrest, as well as the procedural steps involved in bringing a case to trial. The Code of Criminal Procedure, 1973 (CrPC), and now the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces it, define and govern these distinctions.
II. Definition of cognizable offence (S. 2 (g))-
A "cognizable offence" (defined under Section 2(c) of CrPC and Section 2(g) of BNSS) refers to an offence for which a police officer may, in accordance with the First Schedule of the respective Code or under any other law in force, arrest without a warrant. A "cognizable case" is a case relating to a cognizable offence.
III. Important Characteristics:
1. Severity: These are generally serious in nature, involving grave crimes that pose a significant threat to public order and safety.
2. Police Powers:
a. Arrest without Warrant: The most defining feature is the police officer's authority to arrest a person suspected of committing a cognizable offence without needing a prior order or warrant from a Magistrate.
b. Investigation without Court Order: Police can commence investigation into a cognizable case without the permission of a Magistrate (Section 156 CrPC, now Section 175 BNSS).
c. Registration of FIR: Upon receiving information about a cognizable offence, the officer in charge of a police station is legally bound to register a First Information Report (FIR).
3. Procedure:
a. FIR Registration: The process typically begins with the registration of an FIR, which sets the criminal law in motion.
b. Investigation: The police conduct a thorough investigation, collecting evidence, examining witnesses, and recording statements.
c. Charge Sheet: If sufficient evidence is found, the police file a charge sheet (police report) before a competent Magistrate.
4. Trial: The case then proceeds to trial in court. Examples: Murder, rape, robbery, dacoity, grievous hurt, kidnapping, dowry death.
B. Non-Cognizable offences:-
I. Definition of Non-Cognizable Offence (S. 2(1) (O))-
A "non-cognizable offence" (defined under Section 2(l) of CrPC and Section 2(o) of BNSS) is an offence for which a police officer has no authority to arrest without a warrant. A "non-cognizable case" is a case relating to a non-cognizable offence.
II. Important Characteristics:
1. Severity: These are generally less serious offences, often considered private wrongs or minor infractions.
2. Police Powers:
a. No Arrest without Warrant: A police officer cannot arrest an accused for a non-cognizable offence without a warrant issued by a Magistrate.
b. Investigation Requires Magistrate's Order: Police cannot investigate a non-cognizable case without an express order from a Judicial Magistrate (Section 155 CrPC, now Section 175 BNSS).
c. No Direct FIR: An FIR cannot be directly registered for a non-cognizable offence. Instead, the information is recorded in a "Non-Cognizable Report" (NCR) or a similar police diary.
3. Procedure:
a. Information to Police (NCR): When information about a non-cognizable offence is received, the police officer records the substance of the information in a prescribed book and refers the informant to the Magistrate.
b. Complaint to Magistrate: The aggrieved person or informant must approach a Judicial Magistrate with a formal complaint.
c. Magistrate's Order: The Magistrate, after examining the complainant and witnesses, may either take cognizance of the offence and proceed with the trial, or order the police to investigate the matter.
i. Investigation (if ordered): If the Magistrate orders an investigation, the police can then proceed, but still without the power to arrest without a warrant.
ii. Report/Trial: After investigation (if ordered), a report is submitted to the Magistrate, who then decides on further proceedings, potentially leading to a trial.
Examples: Simple hurt, defamation, cheating (depending on the specific section and severity), public nuisance, trespassing.
C. Relationship and Important Distinction:
The fundamental distinction lies in the police's power to act without judicial intervention. For cognizable offences, the police have immediate authority to arrest and investigate, reflecting the serious nature of these crimes that demand prompt action. For non-cognizable offences, police action is restricted and contingent upon a Magistrate's order, emphasizing judicial oversight for less severe matters. The First Schedule of both the CrPC and BNSS explicitly lists offences and specifies whether they are cognizable or non-cognizable, along with their bailable/non-bailable status and triable court.
D. Relation between, βCognizable-Non-Cognizableβ, βBailable and Non-bailableβ and βWarrant and summonsβ offences and cases-
1. Severity as a Common Thread:
The underlying factor often connecting these classifications is the perceived severity of the offense. More serious offenses tend to be cognizable, non-bailable, and tried as warrant cases. Less serious offenses are more likely to be non-cognizable, bailable, and tried as summons cases.
2. Cognizable/Non-Cognizable and Trial Type:
a. Offenses that are cognizable are often more serious and thus frequently fall under the punishment threshold for warrant cases (imprisonment exceeding two years).
b. Offenses that are non-cognizable are typically less serious and often have punishments that lead to them being tried as summons cases.
3. Bailable/Non-Bailable and Trial Type:
a. Offenses tried as warrant cases, being more serious, are often non-bailable.
b. Offenses tried as summons cases, being less serious, are generally bailable.
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Warrant Case and Summons Case
[Discussed in details in topic no. 14 Trial of Warrant Cases]
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Compoundable and Non-Compoundable Offences under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Synopsis
I. Introduction:
1. What is Compounding of Offences?
2. Compoundable Offences (Section 359 BNSS):
Compoundable offences are further divided into two categories:
a) Offences Compoundable Without the Permission of the Court:
i. Nature:
ii. Who can compound:
iii. Procedure:
Examples (referencing BNS equivalents where applicable):
b) Offences Compoundable With the Permission of the Court:
i. Nature:
ii. Who can compound:
Examples (referencing BNS equivalents where applicable):
3. Who Can Compound an Offence?
4. Effect of Compounding (Section 359(8) BNSS):
5. Non-Compoundable Offences:
a. Nature:
b. Rationale:
c. Procedure:
Examples (referencing BNS equivalents where applicable):
6. Distinction between Compoundable and Non-Compoundable Offences:
7. Guiding Principles for Courts when Permitting Compounding:
8. Limitations and Important Considerations:q1zssaaza
Conclusion:
I. Introduction:
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which is set to replace the Code of Criminal Procedure, 1973 (CrPC), classifies offences based on various parameters. One such important classification is whether an offence is 'Compoundable' or 'Non-Compoundable'. This distinction primarily governs the possibility of a compromise or settlement between the accused and the victim, thereby terminating the criminal proceedings. Section 359 of the BNSS is the key provision dealing with the compounding of offences, similar to Section 320 of the CrPC.
1. What is Compounding of Offences?
Compounding of an offence means to amicably settle the matter between the parties. It is a process whereby the victim (the person aggrieved by the offence) agrees to drop the charges against the accused. The primary objective of allowing compounding is to promote amity and goodwill between the parties, especially in cases that are essentially of a private nature and do not have a grave impact on society as a whole. It helps in reducing the burden on courts and speeds up the disposal of less serious cases.
2. Compoundable Offences (Section 359 BNSS):
These are offences that can be legally compounded or settled out of court. Section 359 of the BNSS provides a list of such offences, primarily drawn from the Indian Penal Code, 1860 (now Bharatiya Nyaya Sanhita, 2023 - BNS) and other specific laws.
Compoundable offences are further divided into two categories:
a) Offences Compoundable Without the Permission of the Court:
i. Nature:
These are generally less serious offences, more private in nature.
ii. Who can compound:
The persons specified in the table under Section 359(1) of BNSS (usually the person aggrieved by the offence). For example, in a case of simple hurt, the person to whom hurt is caused can compound the offence.
iii. Procedure:
The parties can enter into a compromise, and the court will accept it, leading to the acquittal of the accused. No formal permission from the court is required to initiate the compromise, though the court needs to be informed and record the compounding.
Examples (referencing BNS equivalents where applicable): Voluntarily causing hurt (Sec. 114 BNS, formerly Sec. 323 IPC), Wrongful restraint (Sec. 137 BNS, formerly Sec. 341 IPC), Defamation (Sec. 356 BNS, formerly Sec. 500 IPC), except in certain cases. Criminal trespass (Sec. 331 BNS, formerly Sec. 447 IPC), Adultery (though decriminalized, if it were an offence and listed). Historically, it was compoundable by the husband.
b) Offences Compoundable With the Permission of the Court:
i. Nature:
These are more serious than the first category but still considered suitable for compounding with judicial oversight.
ii. Who can compound:
The persons specified in the table under Section 359(2) of BNSS, but only with the permission of the Court before which any prosecution for such offence is pending. iii. Procedure: The parties must apply to the court for permission to compound the offence. The court will consider factors such as the genuineness of the compromise, the circumstances of the case, and whether compounding would be against the public interest before granting permission.
Examples (referencing BNS equivalents where applicable): Theft by clerk or servant of property in possession of master (Sec. 311(2) BNS, formerly Sec. 381 IPC), when the value of property stolen does not exceed a certain amount (as specified). Voluntarily causing grievous hurt (Sec. 116 BNS, formerly Sec. 325 IPC). Criminal breach of trust (Sec. 316 BNS, formerly Sec. 406 IPC), when the value of property does not exceed a certain amount. Cheating (Sec. 318 BNS, formerly Sec. 417 IPC). Mischief by fire or explosive substance with intent to destroy house, etc. (Sec. 328 BNS, formerly Sec. 436 IPC), when the value of property does not exceed a certain amount.
3. Who Can Compound an Offence?
a. Generally, the person directly affected or injured by the commission of the offence.
b. If the person who can compound is a minor, an idiot, or a lunatic, any person competent to contract on their behalf may, with the permission of the Court, compound such offence.
c. If the person who can compound is deceased, their legal representative (as defined in the Code of Civil Procedure, 1908) may, with the consent of the Court, compound such offence.
4. Effect of Compounding (Section 359(8) BNSS):
The compounding of an offence under Section 359 of the BNSS has the effect of an acquittal of the accused with whom the offence has been compounded. This means the accused is cleared of the charges as if they had been tried and found not guilty.
5. Non-Compoundable Offences:
These are offences that cannot be settled by a compromise between the accused and the victim.
a. Nature:
These are generally more serious and heinous crimes that are considered offences not just against an individual victim but against society at large or the State.
b. Rationale:
The State has an interest in prosecuting the offenders of such crimes to maintain social order and deter others. Allowing private settlement in such cases would undermine the authority of the law and public justice.
c. Procedure:
The trial for such offences must proceed to its logical conclusion (conviction or acquittal) based on evidence, and cannot be short-circuited by a private agreement.
Examples (referencing BNS equivalents where applicable):
Murder (Sec. 101, 103 BNS, formerly Sec. 302 IPC), Culpable homicide not amounting to murder (Sec. 105 BNS, formerly Sec. 304 IPC), Rape (Sec. 63 BNS, formerly Sec. 376 IPC) and other sexual offences, Kidnapping for ransom (Sec. 139 BNS, formerly Sec. 364A IPC), Dacoity (Sec. 309 BNS, formerly Sec. 395 IPC), Offences against the State (e.g., sedition - Sec. 152 BNS, formerly Sec. 124A IPC), Offences relating to counterfeiting currency, Most offences under special statutes like the Narcotic Drugs and Psychotropic Substances Act, 1985, or Prevention of Corruption Act, 1988.
6. Distinction between Compoundable and Non-Compoundable Offences:
Feature | Compoundable Offences | Non-Compoundable Offences |
Settlement | Can be settled between victim and accused. | Cannot be settled privately. |
Nature | Generally less serious, private wrongs. | Serious offences, considered crimes against society/State. |
Court Role | May not require permission, or require court permission. | Court cannot permit compounding. |
Effect | Leads to acquittal of the accused. | Court cannot permit compounding. |
Public Policy | Encourages compromise in less grave matters. | Must go through full trial. Public interest demands prosecution and punishment. |
BNSS Section | Governed by Section 359. | Offences not listed in Section 359 are non-compoundable. |
7. Guiding Principles for Courts when Permitting Compounding:
When an offence is compoundable with the permission of the court, the court typically considers:
a. The genuineness of the compromise.
b. The free will and consent of the parties, especially the victim.
c. The nature and gravity of the offence.
d. The antecedents of the accused.
e. The impact of compounding on society.
f. Whether compounding would serve the ends of justice and promote peace between the parties.
8. Limitations and Important Considerations:
a. An offence cannot be compounded if the accused is, by reason of a previous conviction, liable to either enhanced punishment or to a punishment of a different kind for such offence (Section 359(7) BNSS).
b. The High Court or Court of Session, acting in the exercise of its powers of revision under Section 441 of BNSS (similar to Sec. 401 CrPC), may allow any person to compound any offence which such person is competent to compound under Section 359.
c. The Supreme Court has, in certain exceptional cases, used its inherent powers under Article 142 of the Constitution to permit compounding of even non-compoundable offences to do complete justice, but this is rare and depends on the specific facts and circumstances.
Conclusion:
The classification of offences into compoundable and non-compoundable under Section 359 of the BNSS plays a vital role in the administration of criminal justice. It balances the need for individual rapprochement and speedy disposal of minor cases with the State's responsibility to prosecute serious crimes that affect the fabric of society. Understanding this distinction is essential for legal practitioners, law enforcement agencies, and the general public.
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Complaint
[Discussed in detail in Topic No. 13 Taking cognizance by Magistrate]
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First Information Report [Discussed in detail in Topic No. 11 Information to Police]
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CHARGE, CHARGE-SHEET
[Change is discussed in details in topic no. 12 Information to Police]
[Charge Sheet discussed in details in topic no. 12 Information to Police]
VI] INVESTIGATION, INQUIRY AND TRIAL:- .
We will discuss them in detail as follows: -
A. Investigation-
1. Introduction to Investigation under BNSS
2. Registration of Information (FIR) (Section 173 BNSS)-
3. Preliminary Enquiry - Section 173(3)
Decision Post-Enquiry:
4. Investigation Procedure by Police (Section 174 and 175 BNSS)-
a. Non-Cognizable Cases:
b. Hierarchical Oversight:
c. Magistrate's Role in Directing Investigation:
d. Protection for Public Servants-
5. Examination of Witnesses and Recording Statements (Section 176 BNSS)-
a. Admissibility:
b. Audio-Video Recording:
c. Age and Illness Exemptions:
6. Mandatory Forensic Investigation β
7. Medical Examination β
8. Search and Seizure - (Discussed in details in the topic of Search and seizure)
9. Police Custody and Detention Powers-
a. Detention Period:
b. Detention after 24 Hours:
c. Detention for Resisting Arrest:
d. Use of Handcuffs:
e. Medical Examination during Custody:
10. Timelines in Investigation Procedures
a. e-FIR Signature:
b. Preliminary Enquiry:
c. Medical Reports (Sexual Offences):
d. Search Records to Magistrate:
e. Investigation Completion:
f. Final Report (Charge Sheet) Submission:
11. Submission of Report (Charge Sheet) β (Refore the topic of Charge Sheet for further details)
12. Further Investigation (Proviso to Section 193(9) BNSS)-
13. Evidence Collection during Investigation-
14. Inquiry vs. Investigation
15. Changes brought by BNSS in the Investigation process
a. Replacement and Modernisation:
b. Technological Integration:
c. Preliminary Inquiry:
d. Timelines:
e. Information and Reporting:
f. Investigation Process:
g. Police Powers and Custody:
h. Further Investigation:
A criminal case passes through three stages, viz. Investigation, inquiry and trial. An investigation is always to be conducted by a police officer or any other authorised person (other than a magistrate). It includes all the proceedings under the BNSS for the collection of evidence. An βinquiryβ means every inquiry that is conducted by a magistrate or court and is not a trial. Trial means the judicial process in accordance with law whereby the question of guilt or innocence of the person accused of any offence is determined.
We will discuss them in detail as follows: -
A. Investigation-
1. Introduction to Investigation under BNSS
Investigation constitutes a crucial component of criminal procedure, initiated upon receiving information about the commission of an offence. The primary objective is to identify the perpetrator and collect evidence for the subsequent trial. The BNSS aims to modernize and reform the criminal justice process, including investigations, to ensure speedy justice, transparency, accountability, and a victim-centric system. Investigation includes all proceedings under the BNSS for the collection of evidence conducted by a police officer or any person authorized by a Magistrate.
2. Registration of Information (FIR) (Section 173 BNSS)-
(Refer discussion as to FIR in the topic)
3. Preliminary Enquiry - Section 173(3)
(Refer earlier discussion in the topic charge sheet)
Decision Post-Enquiry: If a prima facie case exists after the preliminary inquiry, the police proceed with a full investigation immediately. If no prima facie case is found, the findings are documented, the inquiry is closed, and a report is sent to the approval authority. The findings are communicated to the complainant/first informant so they can pursue other remedies if needed.
4. Investigation Procedure by Police (Section 174 and 175 BNSS)-
Upon receiving the FIR, the police are required to visit the scene of the crime, collect evidence, and record statements from witnesses. Section 174 of BNSS details these initial steps. Section 175 of BNSS grants the police the authority to summon individuals for questioning and to collect further evidence.
a. Non-Cognizable Cases:
For non-cognizable cases reported to the police, the officer in charge refers the informant to the Magistrate. Additionally, under Section 174(1)(ii) of the BNSS, the officer is required to forward the daily diary report of all such cases fortnightly to the Magistrate.
b. Hierarchical Oversight:
In serious cases and those involving public servants, Section 175(1) allows the Superintendent of Police to depute a Deputy Superintendent of Police to conduct the investigation, introducing a hierarchical oversight mechanism.
c. Magistrate's Role in Directing Investigation:
Before directing an investigation by the police in cognizable offences, the Magistrate is now required to examine the complainant's application along with an affidavit and submission made by the police officer. The Magistrate may conduct inquiries in this regard.
d. Protection for Public Servants-
Section 175(4) introduces protective measures against false and frivolous cases targeting public servants acting in their official duties. Before taking cognizance of such a complaint, the Magistrate must consider the public servant's assertions about the situation and receive a report containing facts and circumstances from a superior officer.
5. Examination of Witnesses and Recording Statements (Section 176 BNSS)-
Section 176 of BNSS describes the procedure for examining witnesses and recording their statements. Witness statements are recorded under Section 180 of BNSS. The Investigation Officer may issue a notice under Section 179 of BNSS requiring a witness to attend the police station for recording a statement.
a. Admissibility:
Statements recorded under Section 180 are generally not admissible as evidence in trial court and must be proved by adducing evidence.
b. Audio-Video Recording:
Section 180(3) of BNSS provides for the possibility of recording witness statements through audio-video electronic means, including mobile phones. However, the sources indicate that the legislature used precatory language, making this method discretionary rather than mandatory.
c. Age and Illness Exemptions:
Section 179 of BNSS modifies age-related exemptions for the personal appearance of witnesses, lowering the threshold from 65 years to 60 years and including persons with acute illness.
6. Mandatory Forensic Investigation β
Section 176(3) BNSS Section 176(3) of the BNSS is a new provision that mandates forensic experts to visit the crime scene to collect forensic evidence when the offence is punishable with imprisonment of seven years or more. The entire process must be video-recorded using mobile phones or other electronic devices. If a state lacks forensic facilities, it must notify the utilization of services from another state. This provision addresses the absence in CrPC that sometimes led to incorrect collection of forensic evidence. However, concerns exist regarding insufficient funding and the ability of forensic laboratories to handle the increased workload.
7. Medical Examination β
Section 177 BNSS Section 177 of BNSS provides guidelines for the medical examination of both the victim and the accused. For sexual offences, medical reports must be forwarded by the medical practitioner to the Investigating Officer within a period of seven days.
8. Search and Seizure - (Discussed in details in the topic of Search and seizure)
9. Police Custody and Detention Powers-
BNSS makes changes to police custody and detention rules. The CrPC limited police custody to 24 hours, extendable to 15 days by a Magistrate, followed by judicial custody for 60 or 90 days depending on the offence. BNSS proposes a fragmented 15-day police custody period over 40/60 days, which could potentially complicate procedures.
a. Detention Period:
Section 187(3) of BNSS stipulates that the maximum detention period during investigation shall not exceed 90 days for offences punishable with death, imprisonment for life, or imprisonment for a term of ten years or more, and 60 days for any other offence. If investigation cannot be completed within 24 hours and there are grounds, the police officer transmits diary entries and forwards the accused to the nearest Magistrate.
b. Detention after 24 Hours:
A Magistrate, regardless of jurisdiction, can authorize detention for up to 15 days during the initial 40 or 60-day detention period when investigation is not completed within 24 hours.
c. Detention for Resisting Arrest:
BNSS adds that police can detain individuals resisting arrest or ignoring officer directions, though a clear timeframe for such detentions is lacking.
d. Use of Handcuffs:
BNSS allows handcuffs for habitual offenders or serious crime suspects. Some sources point out that this contradicts Supreme Court rulings and recommend limiting their use to high-risk scenarios.
e. Medical Examination during Custody:
Any police officer can now request medical examinations, including in rape cases, a change from the CrPC which required an officer not below the rank of sub-inspector [Key Features Summary].
10. Timelines in Investigation Procedures
BNSS introduces specific timelines for various stages of investigation.
a. e-FIR Signature:
FIRs received electronically must be taken on record if signed by the informant within three days.
b. Preliminary Enquiry:
Preliminary inquiries must be completed within 14 days.
c. Medical Reports (Sexual Offences):
Medical examination reports for sexual offences must be forwarded within seven days.
d. Search Records to Magistrate:
Copies of search records must be sent to the Magistrate within 48 hours.
e. Investigation Completion:
Investigation in certain sexual offence cases under BNS and POCSO must be completed within 2 months from the date of recording the information.
f. Final Report (Charge Sheet) Submission:
(i) For offences punishable with imprisonment of less than 10 years, the final report under Section 193 BNSS must be filed within 60 days.
(ii) For offences punishable with imprisonment for more than 10 years, life imprisonment, or death penalty, the report must be filed within 90 days from the date of FIR registration.
(iii) Updating Victim/Informant:
The police officer must inform the informant or victim of the investigation's progress within a 90-day period.
11. Submission of Report (Charge Sheet) β (Refore the topic of Charge Sheet for further details)
12. Further Investigation (Proviso to Section 193(9) BNSS)-
If new evidence comes to light after the initial investigation, the police can conduct further investigations with the Magistrate's permission. The proviso to Section 193(9) of the BNSS establishes a specific timeline of 90 days for conducting further investigation during the trial. Any extension beyond this period requires express permission from the court. This provision permitting investigation during the trial stage is noted as a departure from principles that typically restricted such powers to pre-trial stages, raising concerns about potential delays and procedural complexities.
13. Evidence Collection during Investigation-
Police officers are empowered to collect various types of evidence during investigation, including physical evidence from crime scenes, documentary evidence, and electronic communication. Section 94 of BNSS outlines the procedures for obtaining documents, electronic communications, and other necessary items for investigation. This includes communication devices that may hold digital evidence. A court or police officer can issue a summons or written order (in physical or electronic form) for the production of specified items.
14. Inquiry vs. Investigation
It is important to distinguish "investigation" from "inquiry." Investigation is the process of collecting evidence by the police. Inquiry, on the other hand, is a judicial proceeding conducted by a Magistrate or Court (but never by the police) to determine if there is prima facie evidence to initiate a criminal trial. It is distinct from the trial itself.
15. Changes brought by BNSS in the Investigation process
The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) introduces several significant changes to police investigation procedures compared to the Code of Criminal Procedure, 1973 (CrPC), which it is set to replace.
Here are some of the key changes brought by BNSS in police investigation:
a. Replacement and Modernisation:
The BNSS replaces the CrPC, aiming to modernize the criminal justice system and address contemporary challenges like cybercrime and organized crime.
b. Technological Integration:
The BNSS incorporates greater use of digital technology throughout the process, including mandatory forensic investigations for serious crimes and leveraging modern technology for evidence collection. Audio-video electronic means can be used for recording search and seizure activities, witness statements, and the examination of temporarily or permanently mentally or physically disabled persons. Summons and notices can also be issued electronically.
c. Preliminary Inquiry:
The BNSS codifies the concept of a preliminary inquiry. For cognizable offences punishable with three years or more but less than seven years of imprisonment, the officer in charge of the police station may conduct a preliminary inquiry to ascertain if a prima facie case exists before proceeding with a full investigation. This preliminary inquiry requires prior permission from an officer not below the rank of Deputy Superintendent of Police and must be completed within fourteen days.
d. Timelines:
The BNSS introduces specific timelines for various procedural activities to improve efficiency and reduce delays. For instance, there are timelines for submitting medical reports, delivering judgments, completing investigations in certain sexual offence cases within two months, framing charges within 60 days, and updating the informant or victim on the investigation's progress within 90 days.
e. Information and Reporting:
Section 173 of BNSS deals with registering the First Information Report (FIR). FIRs can be registered at any police station regardless of jurisdiction (Zero FIR) and through electronic means (e-FIR), although the e-FIR needs to be signed by the informant within three days. A copy of the recorded information must be sent to either the informant or the victim. Police reports, upon completion of investigation (charge sheets) are submitted to the Magistrate and can be forwarded electronically. The report must include the sequence of custody for electronic devices. Police officers are mandated to submit copies of the police report for supply to the accused.
f. Investigation Process:
The police are required to visit the crime scene, collect evidence, and record witness statements. They have the power to summon individuals for questioning and collect further evidence. Section 180 of BNSS covers the examination of witnesses by police, and Section 179 allows issuing notice for attendance. Witnesses can be examined through audio-video electronic means. The age threshold for exemption from personal appearance for witnesses has been lowered from 65 to 60 years, and includes persons with acute illness. The police officer's power to seize offensive weapons immediately after arrest has been clarified. Police officers must document reasons for conducting searches in the case diary and mandate audio-video recording of searches. Copies of search records must be sent to the Magistrate within 48 hours. A new section allows for the attachment, forfeiture, or restoration of property derived from criminal activity, with a procedure outlined including application by the IO (Investigation Officer) and distribution of proceeds to victims by the District Magistrate within 60 days.
g. Police Powers and Custody:
The BNSS expands police authority but includes safeguards. It retains the 24-hour production before a Magistrate but adds powers to detain individuals resisting arrest or ignoring officer directions, noting a lack of a clear timeframe for such detentions. The procedure for police custody is proposed as a fragmented 15-day period over 40/60 days, which could complicate matters. Remand to police custody after the first 15 days is not permitted. The Bill allows handcuffs for habitual offenders or serious crime suspects, which contradicts Supreme Court rulings. Section 175(4) introduces protective measures against false cases targeting public servants.
h. Further Investigation:
If new evidence emerges, police can conduct further investigations with the Magistrate's permission. Notably, the BNSS permits further investigation even during the trial stage (Section 193(9)), which is a departure from previous judicial principles and raises questions about potential delays.
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Inquiry
Synopsis
1. Introduction: The Post-Charge Sheet Stage-
a. Transition from Police Investigation to Judicial Scrutiny:
b. Meaning of "Inquiry" in this Context:
2. Initial Steps by the Magistrate
a. Receipt of Police Report (Charge Sheet) under Section 193 BNSS:
b. Taking Cognizance of Offence(s) under Section 210 BNSS:
i. Application of Judicial Mind:
ii. Meaning and Effect of Taking Cognizance:
c. Issuance of Process (if accused not already before the Court) under Section 227 BNSS:
3. Ensuring Procedural Fairness: Supply of Documents
a. Magistrate's Duty under Section 230 BNSS:
b. Significance for the Accused's Defence:
4. Inquiry in Cases Triable by a Magistrate (Warrant Cases Instituted on Police Report)
a. Consideration for Discharge of Accused (Section 262 BNSS):
i. Basis for Consideration:
ii. Opportunity of Hearing:
iii. Grounds for Discharge:
iv. Recording of Reasons:
b. Framing of Charge (Section 263 BNSS):
i. Basis for Framing Charge:
ii. Magistrate's Competence and Adequacy of Punishment:
iii. Formal Framing of Charge in Writing:
iv. Reading and Explaining Charge to Accused:
v. Plea of the Accused:
5. Procedure in Cases Exclusively Triable by the Court of Session: Committal Proceedings-
a. Identification of Case as Exclusively Triable by Court of Session:
b. Magistrate's Role under Section 232 BNSS (Commitment of case to Court of Session):
i. Ensuring Compliance with Section 230:
ii. Remanding Accused to Custody:
iii. Committing the Case:
iv. Notifying the Public Prosecutor:
v. Forwarding Records and Materials:
c. Nature of Inquiry by Magistrate in Committal Proceedings:
6. Distinction from Trial-
a. Inquiry as a Pre-Trial Stage:
b. Purpose:
7. Significance of Magisterial Inquiry Post-Charge Sheet-
a. Gatekeeping Function of the Magistrate:
b. Protection Against Unmeritorious Prosecutions:
c. Upholding Principles of Natural Justice:
d. Setting the Stage for Trial:
8. Conclusion-
1. Introduction: The Post-Charge Sheet Stage-
Once the police complete their investigation and submit a report (commonly a charge sheet if recommending prosecution) under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the matter transitions from the domain of police investigation to judicial scrutiny by the Magistrate. This phase is critical and involves an "inquiry" by the Magistrate before a trial can commence.
a. Transition from Police Investigation to Judicial Scrutiny:
The submission of the police report marks the culmination of the investigation phase. The documents and evidence collected are now placed before the Magistrate for judicial consideration.
b. Meaning of "Inquiry" in this Context:
i. As per Section 2(k) of the BNSS,- "inquiry" means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court.
ii. The proceedings undertaken by a Magistrate after the submission of a charge sheet and before the framing of charges (or discharge of the accused) fall under this definition of inquiry. It is distinct from a "trial," which commences after charges are framed and the accused pleads not guilty.
2. Initial Steps by the Magistrate
Upon receipt of the charge sheet, the Magistrate undertakes several preliminary but crucial steps:
a. Receipt of Police Report (Charge Sheet) under Section 193 BNSS: The Magistrate receives the formal report from the officer in charge of the police station detailing the outcome of the investigation.
b. Taking Cognizance of Offence(s) under Section 210 BNSS:
i. Application of Judicial Mind:
The Magistrate must apply their judicial mind to the police report and the accompanying documents to ascertain if the facts alleged constitute an offence and if there are sufficient grounds to proceed further. This is not a mere mechanical act.
ii. Meaning and Effect of Taking Cognizance:
"Taking cognizance" means becoming aware of or taking judicial notice of an alleged offence with a view to taking further steps to see whether a prima facie case for trial is made out. Once cognizance is taken, the Magistrate is said to be "seized of the matter." Section 210 BNSS (akin to Section 190 CrPC) empowers the Magistrate to take cognizance of any offence:
(1) Upon receiving a complaint of facts which constitute such offence;
(2) Upon a police report of such facts;
(3) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(In the context of a charge sheet, it is under Section 210(1)(b) BNSS).
c. Issuance of Process (if accused not already before the Court) under Section 227 BNSS:
i. If the accused is not already in custody or has not appeared, and the Magistrate takes cognizance of an offence, they shall issue a summons for the attendance of the accused.
ii. If it is a warrant-case, the Magistrate may issue a warrant, or, if they think fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. This is detailed in Section 227 BNSS (akin to Section 204 CrPC).
3. Ensuring Procedural Fairness: Supply of Documents
Before proceeding with the inquiry into the charges, the Magistrate must ensure that the accused is provided with all necessary documents.
a. Magistrate's Duty under Section 230 BNSS:
This section (akin to Section 207 CrPC) mandates the Magistrate to furnish to the accused, free of cost and without delay, copies of the following:
i. The police report (charge sheet).
ii. The First Information Report (FIR) recorded under Section 175 BNSS.
iii. Statements recorded under Section 182(3) BNSS (statements of witnesses recorded by police during investigation).
iv. Confessions and statements, if any, recorded under Section 185 BNSS (confessions to Magistrate).
v. Any other document or relevant extract thereof forwarded to the Magistrate with the police report under Section 193(6) BNSS, which the prosecution proposes to rely upon.
vi. Electronic Supply: Section 230(2) BNSS also provides for the supply of these documents in electronic form.
b. Significance for the Accused's Defence:
The supply of these documents is a vital aspect of the principles of natural justice and fair trial. It enables the accused to understand the allegations and the evidence against them, thereby allowing them to prepare their defence effectively.
4. Inquiry in Cases Triable by a Magistrate (Warrant Cases Instituted on Police Report)
For warrant cases instituted on a police report and triable by a Magistrate, the inquiry involves a careful examination of whether to discharge the accused or frame charges.
a. Consideration for Discharge of Accused (Section 262 BNSS):
i. Basis for Consideration:
The Magistrate shall consider the police report and the documents sent with it under Section 193 BNSS.
ii. Opportunity of Hearing:
The Magistrate must give the prosecution and the accused an opportunity of being heard.
iii. Grounds for Discharge:
If, upon such consideration and hearing, the Magistrate considers the charge against the accused to be "groundless," they shall discharge the accused. A charge is considered groundless if the evidence on record, even if unrebutted, would not lead to a conviction.
iv. Recording of Reasons:
If the Magistrate discharges the accused, they are required to record their reasons for doing so. This ensures transparency and allows for judicial review if necessary.
b. Framing of Charge (Section 263 BNSS):
i. Basis for Framing Charge:
If, upon such consideration of the police report and documents, and after hearing the prosecution and the accused, the Magistrate is of the opinion that there is "ground for presuming that the accused has committed an offence" triable as a warrant-case, which such Magistrate is competent to try and which, in their opinion, could be adequately punished by them, they shall frame a charge.
The standard here is a "presumption" of commission of an offence, which is a lower threshold than proof beyond a reasonable doubt required for conviction.
ii. Magistrate's Competence and Adequacy of Punishment:
The Magistrate must be competent to try the offence and be of the opinion that they can adequately punish the accused if found guilty.
iii. Formal Framing of Charge in Writing: The charge must be framed in writing.
iv. Reading and Explaining Charge to Accused:
The charge shall then be read and explained to the accused.
v. Plea of the Accused:
The accused shall be asked whether they plead guilty to the offence charged or claim to be tried. If the accused pleads guilty, the Magistrate shall record the plea and may, in their discretion, convict them thereon (Section 264 BNSS). If the accused does not plead guilty or claims to be tried, the Magistrate proceeds to fix a date for the examination of witnesses (Section 265 BNSS), and the trial commences.
5. Procedure in Cases Exclusively Triable by the Court of Session: Committal Proceedings-
If the police report indicates that the offence is one that is exclusively triable by the Court of Session, the Magistrate's inquiry is limited to committing the case to the appropriate court.
a. Identification of Case as Exclusively Triable by Court of Session:
The Magistrate examines the charge sheet to determine if the offences alleged fall under this category (e.g., murder, rape, etc., as specified in the First Schedule of BNSS or other laws).
b. Magistrate's Role under Section 232 BNSS (Commitment of case to Court of Session):
i. Ensuring Compliance with Section 230:
The Magistrate must first ensure that copies of all relevant documents as specified under Section 230 BNSS have been furnished to the accused.
ii. Remanding Accused to Custody:
Subject to the provisions of the BNSS relating to bail, the Magistrate shall remand the accused to custody during, and until the conclusion of, the trial.
iii. Committing the Case:
The Magistrate shall send the case to the Court of Session.
iv. Notifying the Public Prosecutor:
The Magistrate must notify the Public Prosecutor of the commitment of the case to the Court of Session.
v. Forwarding Records and Materials:
The Magistrate shall forward the record of the case and the documents and articles, if any, which are to be produced in evidence.
c. Nature of Inquiry by Magistrate in Committal Proceedings:
In such cases, the Magistrate does not conduct a detailed inquiry into the merits of the case to determine if charges should be framed. The primary role is to ensure procedural compliance (like supply of documents) and then transmit the case to the Court of Session, which is the competent court to try such offences. The consideration for discharge (Section 250 BNSS, akin to Sec 227 CrPC) or framing of charges (Section 251 BNSS, akin to Sec 228 CrPC) then takes place before the Court of Session.
6. Distinction from Trial-
It is crucial to understand that this stage of inquiry is distinct from the trial itself.
a. Inquiry as a Pre-Trial Stage:
The inquiry conducted by the Magistrate (or by the Court of Session after committal) is a pre-trial examination of the material on record.
b. Purpose:
Its main purpose is to determine whether there is sufficient prima facie evidence to put the accused on trial. A trial involves a more detailed examination of evidence, cross-examination of witnesses, and the final determination of guilt or innocence.
7. Significance of Magisterial Inquiry Post-Charge Sheet-
This stage of inquiry by the Magistrate holds immense significance in the criminal justice system:
a. Gatekeeping Function of the Magistrate:
The Magistrate acts as a crucial checkpoint to filter out cases where there is insufficient evidence, preventing the harassment of individuals through baseless prosecutions.
b. Protection Against Unmeritorious Prosecutions:
It safeguards citizens from being subjected to the ordeal of a full-fledged trial without adequate grounds.
c. Upholding Principles of Natural Justice:
By ensuring the supply of documents and providing an opportunity to be heard before charges are framed, it upholds the principles of natural justice and fair play.
d. Setting the Stage for Trial:
If charges are framed, this stage clearly defines the accusations that the accused will face during the trial, allowing for a focused and efficient trial process.
8. Conclusion-
The inquiry conducted by the Magistrate after the submission of a charge sheet under the BNSS is a vital judicial function. It involves careful scrutiny of the police investigation, ensuring procedural fairness to the accused, and making a considered decision on whether to proceed to trial by framing charges, discharge the accused if the charges are groundless, or commit the case to the Court of Session if required. This stage plays a pivotal role in balancing the interests of justice, the rights of the accused, and the efficiency of the criminal justice system.
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Trial
Synopsis
I. Introduction-
II. Stages of a Criminal Trial:
III. Types of Trials under BNSS:
1. Summons Trial (Ss, 274 to 282):
2. Warrant Trial (Ss. 261 to 273):
3. Sessions Trial (SS 248 to 260):
4. Summary Trial (Ss. 283 to 288):
IV. Important Provisions and Timelines:
1. Timelines for Procedures:
2. Trial in Absence of Proclaimed Offender:
3. Collection of Evidence:
I. Introduction-
Trial is the last stage in a criminal case. The trial begins when the inquiry stops. Trial is not defined in the Code. It is applied to those proceedings in which the court is empowered to convict or acquit a person accused of an offence. The trial is a proceeding that involves examining witnesses and determining a cause by a judicial tribunal that has jurisdiction over it. It is a judicial proceeding that ends in the accused's conviction or acquittal. In other words, it is an examination of the truth or falsehood of a case by examining a witness before the court on oath.
The trial commences at different stages in different types of cases. In summons cases, a formal charge is not framed; hence, trial commences when the accused appears or is brought before the Magistrate. In Warrant Cases, a formal charge is required to be framed; hence, trial commences only after the charge is framed. The stage of the trial includes appeals and revisions. Sections 248 to
Section 4 of the BNSS states that all offences under the Bharatiya Nyaya Sanhita, 2023 and any other law will be investigated, inquired into, tried, and otherwise dealt with according to the procedures outlined in the BNSS. This applies subject to any specific enactment regulating the manner or place of such processes for other offences.
II. Stages of a Criminal Trial:
While the search results mention stages primarily in the context of cybercrime trials, the general stages of a criminal trial under BNSS can be understood as follows:
Trial passes through the following stages-
1. This commences after the charge sheet is filed and the court takes cognizance of the offence. Key aspects of this stage include:
2. Framing of Charges: The court frames charges against the accused. The BNSS specifies a timeline of 60 days from the first hearing for a sessions court to frame charges.
3. Plea of Guilt: The accused may plead guilty (Section 229). The court has the discretion to accept this plea.
4. Prosecution Evidence: The prosecution presents its evidence and witnesses to prove the guilt of the accused. The burden of proof lies on the prosecution.
5. Statement of the Accused: The accused is given an opportunity to present their side.
6. Defence Evidence: The accused can present their evidence and witnesses. They also have the right to cross-examine the prosecution's witnesses.
7. Arguments: Both the prosecution and the defence present their arguments.
8. Judgment: The court delivers its judgment, either convicting or acquitting the accused. The BNSS mandates that judgments should generally be given within 30 days of the completion of arguments, extendable up to 60 days.
III. Types of Trials under BNSS:
The BNSS, like the previous CrPC, provides for different types of trials based on the nature and severity of the offence:
1. Summons Trial (Ss, 274 to 282):
This is a simpler and quicker procedure for less serious offences. The BNSS empowers Magistrates to try offences summarily where the maximum punishment is up to three years of imprisonment or for offences considered of a summary nature. The value of property involved in summary trials is now considered up to Rupees Twenty Thousand, a significant increase from the previous limit. Sections 283 to 288 of the BNSS govern summary trials.
2. Warrant Trial (Ss. 261 to 273):
This procedure is followed for more serious offences. Warrant trials can be instituted either based on a police report or otherwise (upon a complaint).
3. Sessions Trial (SS 248 to 260):
Offences punishable with more severe penalties are tried by the Sessions Court. The BNSS specifies certain timelines for sessions courts, such as framing charges within 60 days of the first hearing.
4. Summary Trial (Ss. 283 to 288):
As mentioned above, this is a fast-tracked procedure for certain less serious offences, aiming for swift justice. Offences that can be tried summarily include theft, receiving stolen property, criminal intimidation, insult, etc., especially when the value of the property involved is not high.
IV. Important Provisions and Timelines:
1. Timelines for Procedures:
The BNSS introduces timelines for various procedures to expedite the justice delivery system. Some examples include:
a. Medical practitioners examining rape victims are required to submit their reports within seven days.
b. Giving judgment within 30 days of completion of arguments (extendable up to 60 days).
c. Informing the victim of the progress of the investigation within 90 days.
d. Framing of charges by a sessions court within 60 days from the first hearing on such charges.1
2. Trial in Absence of Proclaimed Offender:
If a proclaimed offender absconds to evade trial and there is no immediate prospect of arresting them, the trial can be conducted and judgment pronounced in their absence.
3. Collection of Evidence:
The BNSS allows for the collection of specimen signatures, handwriting, finger impressions, and voice samples for investigation or proceedings, even from a person who has not been arrested.
It's important to note that the BNSS is a new legislation, and its implementation and interpretation by the courts will further clarify the nuances of these trial provisions. For a comprehensive understanding, it's recommended to refer to the bare act and commentaries on the Bharatiya Nagarik Suraksha Sanhita, 2023.
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VICTIM (S. 2. (y))
Synopsis
I. Definition of βVictimβ (S. 2 (y)-
II. rights and provisions realting to the victim-
1. Information about the Progress of Investigation (Section 193 of the BNSS):
2. Recording of Victim's Statement:
3. Victim Compensation Scheme:
4. Compensation by the Court:
I. Definition of βVictimβ (S. 2 (y)-
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the term "victim" is defined in Section 2 (y) as:
"a person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim".
This definition is similar to the definition provided in the previous Code of Criminal Procedure, 1973.
II. rights and provisions realting to the victim-
Following are some of the key rights and provisions related to victims under the BNSS:
1. Information about the Progress of Investigation (Section 193 of the BNSS):
The police officer in charge of the investigation shall inform the informant or the victim about the progress of the investigation within ninety days through any means, including electronic communication.
2. Recording of Victim's Statement:
a. As per BNSS if the victim is a woman, her statement must be recorded by a woman police officer.
b. If the victim is temporarily or permanently mentally or physically disabled, their statement should be recorded at their residence or at a convenient place of their choice, in the presence of an interpreter or special educator.
c. As per Section 173 of the BNSS, a victim can also provide information through electronic communication, which must be taken on record by the police station in charge after being signed by the informant within three days.
3. Victim Compensation Scheme:
a. Section 396 of the BNSS mandates that each State Government, in coordination with the Central Government, shall prepare a scheme for providing compensation to victims who have suffered loss or injury and require rehabilitation. This scheme will also include provisions for interim compensation, regardless of whether the offender is convicted or not.
b. If the victim is identified but the offender is not, the victim or their dependents can apply to the District or State Legal Services Authority for compensation. The Legal Services Authority, after conducting an inquiry, will award the compensation within two months.
4. Compensation by the Court:
a. Section 395 of the BNSS empowers the trial court to order the accused to pay compensation to the victim from any fine imposed.
b. Section 396 also states that if the compensation awarded under Section 395 is considered inadequate for the victim's rehabilitation, or if the accused is acquitted or discharged and the victim needs rehabilitation, the court may recommend further compensation.
c. The BNSS gives trial courts the power to order compensation to the victims of crime.
d. Section 273 provides for compensation if an accusation is made without reasonable cause.
These provisions in the Bharatiya Nagarik Suraksha Sanhita, 2023, aim to ensure that victims of crime are not only recognized but also provided with certain rights and support, including information about their case and financial assistance for their recovery and rehabilitation.
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