THE EVOLVING CRIMINAL JUSTICE SYSTEM & CRITICAL ANALYSIS IN INDIA

The Code of Criminal Procedure (Cr.P.C.), 1973, and the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2024 are two facets of our Indian legal framework, that evolved due to societal needs and significant progression required by the criminal justice system. Over the decades, CrPC has been amended for several instances addressing issues such as trial delays, victims’ rights, and protection of civil liberties. Per contra, the BNSS passed on 21 December 2023, came into effect after a pressing need was felt to bring notable change in response to contemporary challenges faced by the criminal justice system, including public perception of safety and the effectiveness of law enforcement. The former and the latter set of procedures are pictures of the paradigm shift in the system's approach. The latter is a more victim-centric system and provides wide power to the Police.

The BNSS included a total of 533 Sections, in which 9 Sections of CrPC were repealed, a total of 9 provisions were added, and 160 provisions encountered changes that ranged from minute to major ones. So, it provides a wide area for comparative study but, for this project, I restrict my studies to a few but pertinent things, which include the new provision of handcuffing, and conviction of accused in absentia of a trial and mandatory lodging of FIR in cases of cognizable offense.

Handcuffing

Under Section 43(3) of the BNSS, a police officer is authorized to employ handcuffs during the arrest of an individual, taking into account the severity and seriousness of the crime. This provision applies to those who are habitual or repeat offenders, have escaped from custody, or are involved in offences such as organized crime, terrorism, drug-related activities, illegal possession of firearms and ammunition, homicide, sexual assault, acid attacks, counterfeiting currency, human trafficking, sexual crimes against minors, offences against the State that threaten India's sovereignty, unity, and integrity, or economic crimes.

The Advocates of CrPC find that the Provisions of BNSS contradictory to the verdicts of the Supreme Court. Some hold the view that it is against the constitutional provision which is going specifically against Article 141 of the Constitution of India, which enumerates that law declared by the Supreme Court is binding upon all. This law is construed as the principle of law which derives from judgment, interpretation of law, and judgment by the Supreme Court.

It was in the year 1980 when the Supreme Court for the first time ruled that the usage of handcuffs should be prohibited as it is against human rights value. In the landmark case of Prem Shankar Shukla v. Delhi Administration (1980), the Supreme Court of India took a strong stance against the routine use of handcuffs for prisoners. The Court observed that the use of handcuffs should be an exception rather than the rule, emphasizing that handcuffing is a violation of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

The Court explicitly stated:

“Handcuffs must be the last refuge as there are other ways of ensuring security, and handcuffs are to be shunned unless necessary.”

The judgment underscored that the imposition of fetters on a prisoner is prima facie inhumane and violative of basic human dignity, and the State must justify its use in each case. The Court further ruled that it is for the police to show if challenged, that the use of handcuffs was necessary due to the existence of reasonable grounds.

In another landmark judgement of the Supreme Court in the case of Sunil Batra v. Delhi Administration (1978), the Supreme Court pointed out that a handcuff should be the last option and must be taken off as soon as possible.

In the case of Citizens for Democracy v. the State of Assam (1995), the Supreme Court of India provided crucial guidelines regarding the handcuffing of prisoners and detainees, reinforcing the principles laid down in earlier judgments such as Prem Shankar Shukla v. Delhi Administration (1980). The Court reiterated that the practice of handcuffing is inherently inhumane and should be avoided unless absolutely necessary. Guidelines from the judgment include:

1. No Routine Handcuffing: The Court declared that no prisoner or accused should be handcuffed routinely. Handcuffs should only be used if there is a clear and imminent risk of escape or if the prisoner is violent and poses a danger to others.

2. Judicial Scrutiny: The police or jail authorities must obtain permission from the magistrate if they believe handcuffing is necessary. They must provide reasons for why handcuffs are required, ensuring that there is a judicial check on the arbitrary use of handcuffs.

3. Documentation: Whenever handcuffs are used, the reasons must be recorded in writing and reported to the concerned court, which will assess the justification for such an action.

4. Dignity and Human Rights: The judgment emphasized protecting the dignity and human rights of prisoners, stating that handcuffing without adequate justification violates Article 21 of the Constitution of India, which guarantees the right to life and personal liberty.

These guidelines serve to restrict the indiscriminate use of handcuffs and ensure that the arbitrary actions of the authorities do not infringe on the fundamental rights of individuals.

Per contra, according to me, the BNSS has justified by providing an explicit provision for handcuffing the offenders of prescribed crime under section 43(3). Offences under the same include offences of acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, the offence of organised crime, the offence of terrorist acts, drug-related crime, or offence of illegal possession of arms and ammunition, murder, rape, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences. These offences include offences of a grave nature, which are against the society at large. These offences are against the moral and legal ethics of a state, disturb the conscience of people of society at large and affect their mental well-being as well.

The fundamental right of an individual, who is an offender of a heinous crime should not be brought on the same level as that of the fundamental rights of a large number of individuals who are affected by the acts of the wrongdoer. This would be very much consistent with the objective of reformation done to CrPC to give it a new form as the BNSS which is victim-centric.

Conviction Of Accused In Absentia Of A Trial

Three pertinent sections of the BNSS deal with the provision of said legislation. This includes Sections 84, 355, and 356 of Bhartiya Nyaya Suraksha Sanhita. Earlier the CrPC did not contain anything related to in absentia trial, conviction, and sentencing of a proclaimed offender. This has been done to do away with a long-lasting trial process and staking of cases over one another due to offenders not being present for trial. These provisions are not contrary to the principle of natural justice “audi alteram partem” as the fair chance of ‘being heard’ will be provided to the proclaimed offender and there stands to be a buffer of 90 days where the proclaimed offender is given a fair chance to be present for the trial.

Provisions of BNSS

The BNSS introduces provisions for conducting trials in absentia for certain categories of accused individuals. This marks a significant shift from the previous Cr.P.C., where the presence of the accused was mandatory for trial, conviction, or sentencing, even in severe cases. Trial in absentia allows for a criminal trial to proceed without the accused being physically present in court. Previously, Indian law did not permit such trials, regardless of the offense’s severity. However, under Section 355 of the BNSS, a Judge or Magistrate can now conduct a trial without the accused if their presence is deemed unnecessary for justice or if the accused disrupts the proceedings.

Moreover, the BNSS permits the in-absentia trial of proclaimed offenders under certain conditions. Section 356 mandates that when an individual has been declared a proclaimed offender and is evading trial with no prospect of arrest, the court must proceed with the trial after a mandatory 90-day waiting period from the framing of charges. The BNSS also allows for the pronouncement of judgments in absentia, stating that if an accused voluntarily absents themselves after the trial has begun, the trial and judgment can still proceed, even if the accused is eventually arrested or appears at the trial's conclusion.

1) Section 355, BNSS

Section 355 (1) deals with two aspects:

a) During any inquiry or trial, if the Judge or Magistrate believes that the accused’s presence in court is not necessary for justice, or if the accused consistently disrupts the proceedings, they can choose to continue without the accused.

b) If the accused has a lawyer, the court may allow the trial to proceed in the accused’s absence, and may later require the accused to appear in person at any stage of the proceedings.

Section 355 (2) deals with the situation where an accused is not represented by an advocate: it states that if the accused is not represented by the advocate or if the Judge or Magistrate believes the accused’s presence is necessary, he may if he thinks fit and for a reason to be recorded by him, either:

a) Adjourn the inquiry or trial.

b) Order the case to be handled separately for that accused.

The bare provision of law explains the meaning of personal attendance as, attendance through audio video electronic means.

2) Section 356 of BNSS

It deals with inquiry, trial, or judgement in absentia of “proclaimed offender”

i) Despite anything that is contained in the Sanhita or any other law for the time being in force, when a person is declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, the court will operate as a waiver of the right of such person to be present and tried in person. And the court shall after recording the reason in writing, in the interest of justice, proceed with the trial in a manner and with the effect as if he/she was present under this Sanhita and pronounce the judgement. Provided that 90 days have lapsed from the date of framing of the charge.

ii) The second sub-section provides the guidelines to be followed before starting the proceeding under sub-section (1)

a. issuance of execution of two consecutive warrants of arrest within the interval of 30 days

b. Publication in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the court for trial and informing him that in case he fails to appear within 30 days from the date of publication, the trial shall commence of the trial.

c. inform his relatives or friends, if any, about the commencement of the trial and

d. affix information about the initiation of trial on some conspicuous part of the house or homestead where such person ordinarily resided and display in the Police Station of this district his last known address of residence

iii) Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate at the expense of the state

iv) If a court, which has the authority to try or commit a case for trial, has already examined and recorded the statements of witnesses for the prosecution, these statements can be used as evidence against the proclaimed offender during the trial or inquiry into the offence.

If the proclaimed offender is arrested or appears in court during the trial, the court may, in the interest of justice, allow the offender to examine any evidence that was taken in their absence.

v) When a trial involves a person under this section, the deposition and examination of witnesses should ideally be recorded by audio-video electronic means, like a mobile phone, and kept as directed by the court.

vi) If the accused voluntarily stays absent after the trial has started, the trial, including the delivery of judgment, can continue, even if the accused is arrested or appears at the end of the trial.

vii) No appeal against the judgment under this section is allowed unless the proclaimed offender personally presents themselves before the appellate court. Additionally, no appeal against a conviction is allowed after three years from the date of judgment.

viii) The State may extend the provisions of this section to any absconder mentioned in subsection (1) of section 84 of this Sanhita, by issuing a notification.

3) Section 84 of BNSS.

i) If the Court believes that a person, against whom a warrant has been issued, is hiding or has absconded to avoid arrest, the court can issue a written proclamation. This proclamation will require the person to appear at a specific place and time, which should be at least 30 days from the date of the proclamation.

ii) The proclamation will be published as follows:

· It will be publicly read in a noticeable place in the town or village where the person usually lives.

· It will be posted on a visible part of the person’s house or homestead or in a prominent place in the town or village.

· A copy will also be displayed in a conspicuous part of the courthouse.

· Additionally, the court may order that the proclamation be published in a local newspaper where the person usually lives.

iii) A written statement from the court, confirming that the proclamation was properly published on a certain day, will be considered conclusive proof that the proclamation was indeed published as required.

iv) If the proclamation is issued for a person accused of an offence punishable by 10 years or more in prison, life imprisonment, or the death penalty, and the person fails to appear at the specified place and time, the court may declare the person a “proclaimed offender” after conducting an appropriate inquiry.

v) The rules for publishing the proclamation also apply to the declaration of a person as a proclaimed offender.

In accordance with the above changes made to CrPC for the formulation of BNSS, I believe that the changes made for the purpose of in absentia trial are effective for the criminal system which is undergoing the lethargic energy system. The lope holes of earlier laws were used by the accused with ill motive to escape. The Bhartiya Nyaya Suraksha Sanhita's provision for in absentia trials marks a significant shift from the traditional Criminal Procedure Code (CrPC), which requires the presence of both the accused and the prosecution for a fair trial. This new approach is particularly effective in ensuring that justice isn’t thwarted by the strategic absconding of accused individuals, who may seek to delay or evade legal proceedings. By allowing the trial to proceed even in the absence of the accused, the Sanhita addresses a critical gap in the criminal justice system where high-profile or influential individuals could exploit procedural delays.

The Sanhita is specific in its application of in absentia trials, limiting them to cases where the accused has deliberately absconded or cannot be traced despite reasonable efforts. This provision ensures that in absentia trials are not used arbitrarily but only in situations where the accused's absence would otherwise result in a miscarriage of justice. Additionally, the Sanhita includes safeguards to protect the rights of the accused, such as mandatory legal representation during the trial, to ensure the proceedings remain fair. By introducing this provision, the Bhartiya Nyaya Suraksha Sanhita strengthens the judicial system, ensuring that justice can be delivered efficiently, even when the accused attempts to manipulate the system.

3) Police to register FIR in matters related to the cognizable offence

The Bhartiya Nyaya Suraksha Sanhita introduces significant reforms to the criminal justice system, including provisions that strengthen the accountability of law enforcement, particularly concerning the filing of First Information Report (FIR). Under the existing Criminal Procedure Code (CrPC), there have been instances where police officers, either due to negligence or malfeasance, refuse to register an FIR, depriving victims of their right to seek justice. The Sanhita addresses this critical issue by mandating that police officers cannot deny filing an FIR, ensuring that the first step towards justice is not hindered.

Section 173 of BNSS

Section 173 of the BNSS empowers citizens to file an FIR at any police station for a cognizable offence, regardless of jurisdiction. The mandate is that the FIR must be transferred to the appropriate station with jurisdiction over the crime location within 15 days. This provision also includes the electronic registration of FIRs, requiring the person filing it to sign within 3 days of it being recorded. The provision in the Bhartiya Nyaya Suraksha Sanhita explicitly states that police officers must register an FIR upon receiving information about a cognizable offence, whether provided in writing or orally.

This mandatory requirement eliminates discretion and reduces the possibility of police officers dismissing complaints due to bias, external pressure, or corruption. Furthermore, the Sanhita introduces strict penalties for officers who fail to comply, including disciplinary action and potential criminal liability. This provision also empowers citizens by allowing them to approach higher authorities or courts if an FIR is unjustly denied, creating a more robust mechanism for the protection of victims' rights. The Bhartiya Nyaya Suraksha Sanhita's provision that police cannot deny filing an FIR is a vital reform that enhances transparency and accountability in law enforcement. By removing the discretion of police officers to refuse an FIR and imposing stringent penalties for non-compliance, the Sanhita ensures that victims of crime have unimpeded access to justice. This reform not only strengthens the rule of law but also builds public trust in the criminal justice system, ensuring that all citizens receive fair and equal treatment under the law.

Bhartiya Nyaya Suraksha Sanhita stands as a landmark advancement in India's criminal justice system, systematically addressing the significant gaps left by the previous Criminal Procedure Code (Cr.P.C.). The Sanhita's introduction of stringent handcuffing rules, in absentia trials, and the mandatory filing of FIRs for cognizable offences fundamentally reshape the legal landscape. These provisions ensure that justice is no longer delayed by procedural inefficiencies or exploited by those seeking to manipulate the system. Victims are now better protected, with their voices amplified and their rights safeguarded. The Sanhita’s emphasis on mandatory FIR registration prevents the unlawful refusal of complaints, ensuring that the wheels of justice start turning the moment an offence is reported. The in-absentia trial provision ensures that the accused cannot evade justice by merely absconding, maintaining the integrity of the judicial process. Additionally, the reformed handcuffing guidelines strike a balance between the need for security and the protection of individual dignity, ensuring that law enforcement practices remain humane and just.

Together, these reforms bring India’s criminal justice system in line with modern-day requirements, making it more resilient and responsive to the needs of society. The Bhartiya Nyaya Suraksha Sanhita not only fills the lacunae left by the Cr.P.C. but also fortifies the legal framework against misuse, ensuring that justice is not only done but seen to be done. This comprehensive approach is a significant step forward in making the system more equitable, accountable, and reflective of the principles of justice that underpin our democracy.