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BHARATIYA NAGARIK SURAKSHA SANHITA BILL, 2023: An Overview

ABSTRACT

This research paper critically examines the significance, motivations, and implications of the Bharatiya Nagarik Suraksha Sanhita Bill of 2023, which aims to replace the outdated Criminal Procedure Code of 1898 with comprehensive changes across its 533 sections, including amendments to 160 sections, introduction of 9 new sections, and repeal of 9 sections. The bill’s introduction aligns with India’s transition from 75 to 100 years of independence, resonating with the Prime Minister’s call to eliminate remnants of subjugation and infuse an authentic Indian essence into the criminal justice system. The paper analyzes proposed amendments like technological integration, communication tools, protective measures, and handcuff regulations, as well as provisions related to mercy petitions, non-arrest sampling, police detention, and trials in absentia. While acknowledging the bill’s commendable efforts to modernize the system and expedite legal proceedings, the paper also highlights potential drawbacks, including evidence misuse, privacy concerns, and challenges in implementation. It concludes by stressing the need for a balanced approach that upholds individual rights while enhancing justice delivery through holistic legal reforms.

INTRODUCTION

In a significant move aimed at modernizing and strengthening India’s legal infrastructure, Mr. Amit Shah, the Minister of Home Affairs and Minister of Cooperation, took an exceptional stride by presenting three revolutionary bills in the Lok Sabha on August 11, 2023. These legislative proposals comprise the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill 2023, and the Bharatiya Sakshya Bill 2023, demonstrating the resolute dedication of the government to reforming the criminal justice system. By emphasizing the replacement of outdated laws inherited from the colonial era—the Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872—these bills indicate a profound shift towards a legal framework that is fair, impartial, and centered around the well-being of citizens.

The Bharatiya Nagarik Suraksha Sanhita Bill of 2023, intended as a substitute for the Criminal Procedure Code of 1898, initiates comprehensive modifications within its 533 segments. It is noteworthy that the bill makes revisions to 160 sections, introduces 9 novel sections, and abolishes 9 sections.

The unveiling of these legislations occurs amidst a period characterized by swift technological progress, shifts in societal dynamics, and evolving international norms. The current regulations, established during the British colonial period, have frequently faced censure for their antiquated nature and lack of relevance to modern requirements. The fresh bills mirror the administration’s desire to harmonize the legal framework with the demands of the 21st century, highlighting legal architectures that prioritize citizens, encompass gender neutrality, embrace digital modernization, and emphasize justice as opposed to mere punitive measures.

ANALYSIS

 

WHAT PROMPTED THE INTRODUCTION OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL?

The Azadi ka Amrit Mahotsav will conclude on August 15, 2023, marking the transition from 75 to 100 years of India’s independence, commencing on August 16. During his speech on August 15, 2022, from the Red Fort, the Prime Minister of India outlined the Panch Pran, or five vows, before the nation. Among these, one pledge is to eliminate all remnants of subjugation.

Spanning from 1860 to 2023, India’s legal framework for the criminal justice system persisted based on statutes enacted by the British Parliament. In light of this historical context, three bills have been introduced, aligning with the fulfillment of one of the five vows – infusing a distinct Indian essence to catalyze substantial transformation within the country’s criminal justice system.

SEVERAL KEY ALTERATIONS SUGGESTED IN THE PROPOSED AMENDMENTS TO THE CRPC INCLUDE:

  • Enhanced Technological Integration: The proposed amendments emphasize an increased utilization of technology in legal proceedings. This includes conducting trials, appeal procedures, and recording depositions, including those of public officials and law enforcement personnel, through electronic means. Accused individuals’ statements can also be documented via video conferencing. Electronic formats may be employed for summonses, warrants, documents, police reports, and statements of evidence.
  • Incorporation of Communication Tools: The bill introduces the concept of electronic communication, encompassing “communication devices.” As per court or police directives, individuals may be required to present any digital evidence-containing document or device for investigative purposes.
  • Handcuff Use Regulation: In cases involving repeat offenders who have escaped custody or committed serious crimes like organized criminal activities, terrorism, or offenses against the state, police officers may be authorized to employ handcuffs during arrests.
  • Specific Protective Measures: A prominent safeguard against arrests, currently outlined in Section 41A of the CrPC, will be renumbered as Section 35 and revised. An additional clause mandates that individuals cannot be arrested without prior permission from an officer ranked no lower than Deputy Superintendent of Police (DSP) if the offense carries a punishment of less than 3 years or if the individual is over 60 years old.
  • Mercy Petitions Framework: The bill establishes procedures concerning the timeframes for submitting mercy petitions in cases involving death sentences. Following notification from prison authorities about the disposal of a death row convict’s petition, the convict, their legal heir, or relative can submit a mercy petition to the Governor within 30 days. If denied, the person can appeal to the President within 60 days. No legal recourse against the President’s decision is permissible.
  • Prosecution Sanction: The government must decide on granting or denying sanction to prosecute a public servant within 120 days of receiving a request. Failure to do so will result in automatic sanction being assumed. Sanction is not mandated in cases involving offenses such as sexual crimes or trafficking.
  • Procession-Related Regulations: While the provisions empowering district magistrates under Section 144 of the CrPC remain unchanged, the power to prohibit carrying arms during processions, mass drills, or training sessions is omitted from Section 144A.
  • Non-Arrest Sampling: The proposed amendments permit magistrates to order individuals to provide samples of their signature, handwriting, voice, or finger impressions for investigative purposes without necessitating their arrest.
  • Police Detention Provisions: Provisions are outlined to empower the police to detain or remove individuals who resist, refuse, or ignore lawful directives during preventive actions.
  • In Absentia Trials: The framework for trials in absentia is outlined, particularly in stringent anti-terrorism legislation like the Unlawful Activities (Prevention) Act (UAPA). In such cases, the burden of proof shifts to the accused, requiring them to prove their innocence rather than the state having the responsibility to prove guilt.

 

IMPORTANCE OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

This legislation holds immense significance as it aims to consolidate and modify the legal provisions governing criminal procedures. It introduces explicit timelines for expeditious investigations, trials, and verdicts, ensuring a swift dispensation of justice.

The bill’s essence lies in its commitment to hastening the delivery of justice, a crucial aspect in today’s fast-paced world. It aligns seamlessly with the Digital India initiative of the government, embracing the use of technology to enhance legal processes. For instance, the bill grants admissibility to digital or electronic records as evidence, granting them the same legal weight and enforceability as traditional paper records.

A notable feature is its focus on citizen-centricity, exemplified by the provision for promptly supplying a First Information Report (FIR) to complainants. Furthermore, victims are kept informed about case progress through digital means.

The bill introduces the concept of a summary trial for minor offenses, enabling a swifter resolution in such cases. Additionally, the innovation of a ‘Zero FIR’ is significant. This provision empowers individuals to lodge an FIR at any police station, transcending jurisdictional limitations. Moreover, it mandates the transfer of this FIR to the appropriate police station within 15 days, ensuring efficient handling of cases regardless of the location of the crime.

 

DISADVANTAGES OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

While the Bharatiya Nagarik Suraksha Sanhita Bill brings about notable reforms in the criminal justice system, it is crucial to critically examine its potential drawbacks and concerns. These disadvantages can raise questions about the effectiveness and impact of the proposed changes:

  • Potential for Misuse: The increased use of technology, while beneficial in many ways, can also open avenues for manipulation and misuse. The admissibility of digital evidence might inadvertently allow fabricated or tampered evidence to be presented, raising questions about the reliability and authenticity of such records.
  • Privacy Concerns: The greater emphasis on electronic communication and digital records could potentially infringe upon individuals’ privacy rights. The collection and storage of electronic evidence raise concerns about data security and the potential for unauthorized access or breaches.
  • Summary Trials and Fairness: While summary trials are meant to expedite proceedings, they might compromise the principles of a fair trial. The swift resolution of cases might not allow adequate time for gathering evidence, cross-examination, or presenting a comprehensive defense, potentially leading to unjust outcomes.
  • Zero FIR Implementation Challenges: The provision of filing a ‘Zero FIR’ at any police station, although seemingly progressive, might pose practical challenges in terms of coordination between different police stations and determining the appropriate jurisdiction for investigation. The transfer of cases within 15 days might not always be feasible, causing delays and confusion.
  • Lack of Judicial Oversight: The bill places considerable responsibility on law enforcement agencies to decide whether to arrest an individual or not. This might lead to situations where the threshold for arrests becomes arbitrary, potentially resulting in the violation of individual rights and liberties.
  • Absence of Comprehensive Torture Prevention: The bill falls short in addressing comprehensive measures to prevent torture and custodial violence, which are significant concerns. The focus on speedy justice should not come at the expense of safeguarding the rights and dignity of individuals in custody.

 

CONCLUSION

In conclusion, while the Bharatiya Nagarik Suraksha Sanhita Bill presents commendable efforts to modernize and streamline India’s criminal justice system, it is important to acknowledge the potential disadvantages that come with such extensive reforms. Striking a balance between expeditious justice delivery and safeguarding individual rights is a delicate task. As the legal community and society as a whole engage in discussions surrounding these proposed changes, it is imperative to carefully address these concerns and ensure that the spirit of justice prevails, upholding both the rule of law and the protection of citizens’ rights.

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Written by- Mansi Malpani

 

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maintenance

The Karnataka High Court Ruled Section 125 Of The Crpc Does Not Necessitate A Wife To Demonstrate A ‘Valid Reason For Living Apart’ From Her Husband.

Title: Smt. Renuka & Ors. v Sri Venkatesh

Case No: RPFC No. 100033/2020

Date of Order: 31-07-2023

CORAM : HON’BLE JUSTICE C M POONACHA

INTRODUCTION

The Dharwad Bench of the Karnataka High Court has ruled that establishing a valid reason for living apart is not necessary in maintenance cases under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C).

FACTS OF THE CASE

Smt. Renuka (“Petitioner/Wife”) and Sri Venkatesh (“Respondent/Husband”) are in a marital relationship. The Wife initiated legal proceedings under Section 125 of the Criminal Procedure Code (Cr.P.C.) to request financial support (maintenance) from her Husband. On November 14, 2018, the Trial Court rejected the petition, stating that the wife did not provide any evidence indicating her willingness to live with the Husband or proving that the Husband deliberately neglected her maintenance.

Subsequently, the Wife appealed this decision to the High Court.

According to Section 125 (Order for maintenance of wives, children, and parents), if an individual with sufficient financial means neglects or refuses to provide support, a first-class Magistrate, upon establishing this neglect or refusal, can order that person to pay a monthly allowance for the upkeep of their wife, child, father, or mother. The amount of the allowance is determined by the Magistrate and must be paid to the designated recipient as directed by the Magistrate.

COURT’S ANALYSIS

Referring to Section 125 of the Criminal Procedure Code (Cr.P.C.), the Court stated that a person can seek maintenance if they can show neglect or refusal to provide support. The Court emphasized that maintenance cases do not require proving a sufficient reason for living separately. The Court explained that Section 125 is designed for summary proceedings, focusing on demonstrating negligence or refusal to provide maintenance, without delving into reasons for living apart.

The Court acknowledged the unquestionable marital relationship between the Petitioner and Respondent. However, it held that the reasons for their separation cannot be addressed in maintenance proceedings and should not be decided upon.

The Court rejected the husband’s claim that he did not neglect his responsibility to provide for his wife and children, noting that this claim cannot stand since they are living separately, and the husband cannot insist that they live with him to receive maintenance.

Highlighting that Section 125 Cr.P.C. proceedings are of a summary nature and do not conclusively determine the parties’ rights and obligations, the Court overturned the Trial Court’s decision. The Family Court was directed to consider the parties’ claims on their merits and determine the appropriate amount of maintenance to be paid.

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Written by- Shreya Sharma

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Patna High Court directed the District Court to release the car in favour of the petitioner after verifying the registration of the car

TITLE: Sukh Sagar Kumar v. The State of Bihar & Ors.

Decided on: 20-07-2023

Cr.WJC No: 1491/2022

Coram: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA 

Facts of the case:

The order dated 06.09.2022, issued in NDPS Case No. 30/2021 by the learned 1st Additional Sessions Judge, Begusarai, has been challenged in the current writ application.

The petitioner’s car, with registration number BR 09 AJ/0706, was parked outside the home of the accused identified in the FIR when a search was conducted, and 385 gms. of brown sugar were found inside the vehicle. These are the key facts that gave rise to the current writ application. It has been claimed that the car in question was used by the accused individuals listed in the FIR to carry illegal substances, and brown sugar has also been found inside. As a non-FIR named accused, the petitioner has been added.

Learned Counsel for the petitioner claims that the vehicle that was seized and whose registration number is BR 09 AJ/0706 belongs to the petitioner. He was unaware that brown sugar was kept in the vehicle. He further states that the petitioner is not named in the First Information Report and that the police actually seized his car on December 2, 2021, as would be clear from the GPS data, but that the police only revealed the actual seizure on December 3, 2021, after the First Information Report was filed against other accused parties. The petitioner has attached the registration certificate as proof of ownership. He additionally submits that the confiscation action has not yet begun and that it cannot begin until the trial is over in accordance with Section 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He also asserts that because the car in question is stored in the police station’s open area, it is constantly deteriorating and losing its ability to go on public roads. 

On the other hand, the State’s learned counsel opposes the petitioner’s request to have the car released in his favour while the trial and/or confiscation proceedings were ongoing, arguing that the petitioner knew the car was being used to transport a prohibited substance and that it was parked in front of the accused people’s home. Furthermore, he claims that the in question car has been found to contain a commercial amount of brown sugar.

Analysis of the court and decision:

The court has heard counsel for petitioner and learned Additional Public Prosecutor for the State.Reviewing Section 60 of the 1985 Narcotic Drugs and Psychotropic Substances Act, it appears that any conveyance used to transport such substances is subject to confiscation if it can be demonstrated that the owner of the vehicle or conveyance knew about or approved of its use. There cannot be any confiscation in the initial instance without any such material.

Sections 451 and 457 of the Code of Criminal Procedure, 1973, which deal with the court’s authority to order the disposal or custody of the property pending trial in certain cases and the procedure by the police upon seizure of the property, would apply to the question of the car’s release in light of the aforementioned facts.

Accordingly, the order dated 06.09.2022, passed by the learned 1st Additional Sessions Judge, Begusarai, in NDPS Case No. 30/2021, arising out of Sahebpur Kamal Police Station Case No. 288 of 2021, is set aside and the learned District Court is directed to release the car, in question, in favour of the petitioner after verifying the ownership/registration of the car within a period of four weeks from the date of receipt/production of a copy of this order, subject to the following conditions:- 

(1) That the petitioner shall furnish bank guarantee of Rs. 3 Lacs to the satisfaction of the learned District Court; 

(2) That before handing over the car to the petitioner, a detailed and proper Punchnama of the said car, after taking its photograph, shall be prepared; 

(3) That the petitioner shall also execute bond that the car, in question, shall be produced as and when required at the time of trial or confiscation proceeding; and

(4) That petitioner shall also furnish an undertaking on oath that he shall not alienate or part with the ownership of the car, in question, till pendency of the trial or confiscation proceeding, if any. 

With the aforesaid directions and observations, this application is allowed.

There shall be no order as to costs. 

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Written by- Meghana D

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Delhi High Court granted bail to the petitioner who was imprisoned for more than seventy days.

Title: Prabhakar Reddy vs State of Delhi (Govt. of NCT)

Date of decision: 13th July, 2023

+ BAIL APPLN. 2025/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

The complaint of Mr. Vivek Rana, an authorised representative of DMI Finance Private Limited (hence “complainant company”), which asserted that M/s P dot G Constructions Private Limited violated the law, led to the registration of the current FIR.

Through its directors, who included the petitioner and his wife, [hereinafter “borrower company”], obtained a loan from the complainant business for Rs. 35,000,000/- according to a first-term loan agreement dated August 18, 2015. On January 27, 2017, the parties additionally agreed to a Second Term Loan Agreement, under the provisions of which an additional sum of Rs. 17,00,000 was approved.

The parties signed a Memorandum of Settlement on January 3, 2017, which was exchanged. According to the terms of the agreement, the borrower firm allocated the complaint company the receivables from a number of identified sold units as well as rights to a number of identified unsold flats.

The lawsuit claims that the accused individuals shifted title and control of several residences that were allocated to the complainant without the complainant’s knowledge. Additionally, it is claimed that the loan money was misappropriated and utilised for other projects, resulting in the complainant’s unlawful loss of Rs. 52,000,000.

The borrower company’s forensic audit report, which was acquired from Brahmayya & Co. Chartered Accountants, showed that bank and cash receipts recorded in the internal Cash Relationship Management data of the borrower company were not accounted for in the books of accounts. The inquiry also showed that the defendants personally took the money from the different house buyers and used it for their own or other initiatives. The inquiry revealed that the accused individuals misappropriated the receivables and failed to deposit them in the Escrow Account in violation of the terms and conditions of the assignment agreement with the lenders.

By rulings dated May 26, 2023, and June 2, 2023, respectively, the learned Chief Metropolitan Magistrate and the learned Additional Sessions Judge both rejected the petitioner’s bail requests.

Analysis of the court

The petitioner’s primary domicile is in Chennai, and he solely does business there. The investigating authorities have already taken the petitioner’s passport. The petitioner is therefore unlikely to elude justice. Additionally, the petitioner is no longer a director of the borrower firm, making it less likely that she would tamper with the evidence or sway any witnesses.

When the investigation against the petitioner is already finished and a chargesheet has been filed, granting bail based only on the fact that the petitioner’s wife is the subject of the inquiry is inadmissible. At this point, the Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Refer para 21-22 & 42), may be cited.

It would not be wise to imprison the petitioner indefinitely in light of the extract above, the likelihood that the trial in the matter will take some time, and the assurance given on behalf of the petitioner that he will continue to cooperate in the investigation qua his wife as well. The petitioner has already been detained for seventy days.

Due to the aforementioned factors, this Court determines that the petitioner should be granted bail in the current instance. The petitioner is therefore ordered to be freed in exchange for a personal bond in the amount of Rs. 1,00,000 and one surety in an amount equal to that, subject to the satisfaction of the Trial Court and additionally subject to conditions.

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Written By – Shreyanshu Gupta

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The court should only use the authority granted by Section 311 CrPC to further the interests of justice.

TITLE: Anil Sehgal v State of Punjab

Decided On-: March 10, 2023

CRM-M-8107-2018 (O&M) and CRM-M-8363-2018 (O&M)

CORAM: Hon’ble Justice Mr. Aman Chaudhary

INTRODUCTION-   The defendant, Vikas Shrivastva, challenges the application in a reply, claiming that he is entitled to a speedy trial under article 21 of the Indian Constitution. While the FDR regarding the alleged incidents was registered in 2007, the challan in the case was filed on November 10, 2009, and the charge in the aforementioned case was framed on June 4, 2011. The case in question dates back to 1993. The prosecution’s case has been hanging since that point due to a lack of prosecution evidence.

FACTS OF THE CASE-

The current petitions have been filed under Section 482 CrPC to set aside the order dated 19.01.2017, Annexure P-11, passed by the learned Judicial Magistrate 1 Class, Ludhiana, and to issue the proper instructions to the learned Judicial Magistrate 1 Class, Ludhiana to consider and decide the applications dated 17.10.2010 and 24.01.2012 arising out of FIR No. 18 dated 28.02.2007, Annexure P-1, registered at Police Station Ladhowal

Allegations against the petitioner included that the complainant, who was the promoter-director of M/s Sutlej Fun Resorts Limited and owned 30% of its shares, provided sureties and securities, including personal undertakings, and signed various loan agreements in order to obtain the loan amount from different financial institutions, including PSIDC and PFC, among others. He also agreed to part with his retained titled deeds in the form of an equitable mortgage. The similarly accused G.D. Agarwal and A.K. Agarwal deposited their respective title deeds to secure the loan facilities, along with other Directors, but they did so with ulterior, dishonest motives from the start. The accused never complied with the PSIDC requirement that no changes to the Board of Directors or management of the company could be made without their prior approval when the loan was sanctioned and granted; however, they forced the complainant to sign an agreement that required him to sell 20% of his shares in favour of G.D. Agarwal and 10% of his shares in favour of Mukesh Khullar, and the remaining 30% of his shares in the company would be paid in full. Instead, they filed a false and baseless criminal complaint against the petitioner and his family members. By transferring the complainant’s share and forging his signatures, they caused the complainant to suffer an injustice and themselves to benefit unfairly. As a result, the case’s challan was delivered on September 21st, 2009.

COURT ANALYSIS AND DECISION

The learned trial Court, according to the learned counsel, erred in dismissing the application primarily on the basis of hyper technicality because the complainant lacked locus standi to file it and the prosecution should have been the one to do so. Learned According to the state attorney, the petitioner’s application was correctly rejected by the skilled trial court because it lacked locus standi, and the contested order contains no errors.

With regard to CRM-M-8363-2018, the learned State counsel claims that the applications, Annexures P-7 and P-8, have already been decided, making the petition infructuous. This petition is asking the trial court to direct itself to decide the applications.

Considering the discussion from above, this Court concludes that the order contested in CRM-M-8107-2018 is not unlawful or erroneous. Due to the infructuous disposition of CRM-M-8363-2018, the aforementioned petition is hereby dismissed.

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Written by-  Steffi Desousa

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