Registrar General, Patna High Court issues circular to comply with Supreme Court's verdict Wwhich holds rescued woman isn't state's property in Commercial Sexual Exploitation (CSE) case

“For the purposes of this Protocol: (a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) "Child" shall mean any person under eighteen years of age.”

-Article 3 of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and Children (Palermo Protocol adopted 15th November 2000, entered into force 25th December 2003) which supplements UN  Convention against Transnational Organised Crime (adopted 15th November 2000, entered into force 29th September 2003)

Ahead of the next date of hearing on December 14, 2026, in compliance of the 10-page long reminder order dated October 13, 2026 passed by the Supreme Court's  Division Bench of Justices J.B.Pardiwala and H.Mahadevan in Prajwala vs. Union of India & Ors.(2026), the Registrar General, Patna High Court has issued the Circular Order No. 03/2026 dated October 15, 2026 on the subject of "Judgment dated 29.05.2026 passed by the Hon'ble Supreme Court of India in Miscellaneous Application No. 530 of 2022 in Writ Petition (Civil) No. 56 of 2004 (Prajwala versus Union of India and Others)." The judgement was authored by Justice Pardiwala.  

The matter was listed on  October 13 for the first time after, the Court had delivered the final judgment, which "dealt with a very delicate, rather a very important and sensitive issue relating to the human trafficking of women and children for commercial sexual exploitation. The Court has provided an extensive ‘Victim Protection Plan’ for strict adherence by all stakeholders in exercise of its plenary powers under Article 142 of the Constitution. It also dealt with, in detail, the prayer as regards the constitution of the Organized Crime Investigation Agency (OCIA). Moreover, from paragraphs 387 to 424, the Court has
provided certain recommendations and suggestions for serious consideration by the Union of India.

The stakeholders involved are:-(i) All Authorities, (ii) State Governments and Departments, (iii) High Courts, (iv) Magistrates, (v) Anti Human Trafficking Units, (vi) Rescue Teams and Leaders, (vii) NGOs and NGO Workers, (viii) Protective Homes, (ix) Social and Case Workers, (x) DLSA and Lawyers, (xi) Police Officers and Police Stations, (xii) Child Welfare Committees, (xiii) Medical and Mental Health Professionals, (xiv) Crime Records Bureau, (xv) Committees Overseeing Protective Homes and (xvi) Anti-Human Trafficking Cell. 

The exact ‘Roles and Duties’ assigned to each stakeholder under the ‘Victim Protection Plan’ has been delineated in a tabular format and also indicated the corresponding paragraphs/clauses from our judgment for ease of reference. Additional Solicitor General provided the Court with a status note highlighting what all has been done so far after the judgment was pronounced by the Court. The note specifically dealt with the compliance of the additional directions issued by the Court under paragraph 456 of the main judgment.
It revealed that the four additional directions issued by the Court have not been fully complied with by all the States/UTs, as on date.

The October 13 order reads:"10. We would like to remind the all States/UTs that, (i) notifying “recognized welfare institutions/organisations” in accordance with the explanation to Section 15(6A) ITPA and for the purpose of Section 17A ITPA, (ii) preparation of a State/UT-wide list of social welfare workers eligible to
form a part of the non-official advisory board under Section 13(3)(b) ITPA and the panel maintained by the Magistrate under Section 17(5) ITPA, (iii) designation of a Police Nodal Officer (PNO), and (iv) designation of a Government Nodal Officer (GNO), are absolutely necessary for the ground-level implementation of the ‘Victim Protection Plan’. Therefore, by the next date of hearing, the Union of India
must ensure that the four additional directions as mentioned in paragraph 456 of the main judgment are fully complied with by all States/UTs....12. We are of the view that by the next date of hearing, the Union shall call for the necessary information from all the stakeholders referred to in the note furnished by the learned senior counsel appearing for the petitioner, inquiring, in what manner each of the directions have been complied with and what has been done so far for meaningful implementation of the plan which we have provided in the judgment." ITPA refers to Immoral Traffic (Prevention) Act, 1956.  

The senior counsel appearing for the petitioner, an anti-trafficking organisation operating in Hyderabad, Telangana brought to Court's notice two additional aspects that need some urgent attention. First, the Anti-Human Trafficking Unit (ATHUs) should be given status of a police station, in accordance with the directions contained in Paragraph 362 b(iii) at page no.205 of the main judgment dated May 29, 2026, at the earliest. The Court's order reads: "16. In this regard, we direct all the State/UT Governments in their respective Home Departments to give effect to this direction at the earliest by issuing an appropriate notification, in accordance with law. 17. The Union shall also take up this issue at the earliest with all the States/UTs and see to it that appropriate notifications are issued." The petitioner had filed the original petition in 2004. 

Secondly, certain guidelines pertaining to the ‘threshold inquiry’ which is to be conducted by the Magistrate under Section 17 of Immoral Traffic (Prevention) Act, 1956 (ITPA), are necessary. The Court's order reads:"19. In the ‘Victim Protection Plan’, at the stage of production of the rescued victim(s) who are adults (above the age of 18 years) before the Magistrate under Section 17 ITPA, we have incorporated some detailed directions pertaining to the conduction of a ‘threshold inquiry’ to identify voluntary sex workers and the manner in which their release/rehabilitation must be proceeded with. In other words, the need for an additional/parallel judicial determination to identify voluntary sex workers, by the Magistrate, within the framework of Section 17 ITPA, was emphasized by us. The rationale behind the need for such an inquiry is provided under paragraphs 330-356 of our judgment. 20. This judicial determination takes into account various aspects including the consent of the rescued victim and her views on whether she wishes to be placed under long-term safe custody, her statement about the voluntary/nonvoluntary nature of her work, the social worker’s assessment of said voluntariness, whether the victim’s position is influenced by any threats of coercion/undue influence/force, and whether there are any safety concerns placing the victim at real or immediate risk of danger/re-trafficking upon release, amongst others. 21. This threshold inquiry as regards the voluntary nature of the work of the rescued victim is triggered notwithstanding the opinion expressed by the rescued victim that her work is voluntary in nature. In other words, the magistrate must, under all circumstances, conduct this threshold inquiry to determine the further appropriate course of action for the protection, rehabilitation and reintegration of the rescued victim who is an adult. 

The order reads: "we request the National Judicial Academy to prepare a comprehensive protocol/guidelines to enable the Magistrates to conduct this inquiry." 

The order concluded: "23. There is one another important aspect that we wish to address. Time and again, we have observed that, although this Court painstakingly issues a slew of directions in the form of guidelines or sets up a framework to ensure that the fundamental rights of citizens are safeguarded and enforced in reality, yet once these directions are committed to the paper in the form of a judgment, the matter marks its abrupt end. This Court, more often than not, has no means of knowing whether the frameworks, guidelines or plans are making any measurable differences in people’s lives, or what hindrances stand in the way. The same anxiety grips us here. We have put in place a thorough ‘Victim Protection Plan’ but cannot tangibly ascertain whether it is having the desired impact or faltering in its implementation. To help us gauge this, we would like to hear from both the Petitioner and the Union of India on how they and other involved stakeholders can help us track progress and measure impact. 24. By the next date of hearing, let a fresh status report be placed on record by the Union of India. We would also
like to the petitioner to provide us a fair idea of the progress made by the National Judicial Academy in connection with the preparation of the aforesaid protocol/guidelines for Magistrates. Lastly, we expect both the petitioner and the Union to suggest concrete ways and methods that we can adopt to track the real implementation, progress and impact of the ‘Victim Protection Plan’. 25. Post this matter on 14th December, 2026."

The Supreme Court of India in its 298-page long judgment dated May 29, 2026 passed in Prajwala vs. Union of India & Ors.2026 INSC 609, has, inter alia, issued directions under the "Victim Protection Plan" concerning prosecution and trial of offences relating to trafficking for commercial sexual exploitation. 

3. The relevant part of the signed reportable judgment is as under:- “That all the States/UTs notify “recognised welfare institutions or organisations” in accordance with the explanation to Section 15(6A) ITPA. That all States/UTs prepare a State-wide list of social welfare workers, with sufficient representation from all districts, who may be eligible to form a part of the non-official advisory body under Section 13(3)(b) ITPA. That all States/UTs designate the ADGP level police officer heading the Anti-Trafficking Bureau in their respective States/UTs as the Police Nodal Officers for the purpose of performing the functions as delineated by us in the Victim Protection Plan. That all States/UTs shall designate the Secretary, Department of Women and Child Development in their respective States/UTs as the Government Nodal Officers for the purpose of performing the functions as delineated by us in the Victim Protection Plan. It shall be the responsibility of the respondent no. 1 to ensure that the aforesaid directions are duly complied with within a period of three months from the date of this judgment. For the purpose of reporting compliance with the additional directions mentioned in Paragraph No. 456, the Registry shall notify this matter once again sometime in September, 2026. Tackling human trafficking for CSE, with its hidden nature and multifarious forms, is indeed a very daunting task. However, there is recognition from all corners that it is an evil which needs urgent and consistent attention. Various measures have been undertaken by the multitude of stakeholders involved. However, throughout this judgment, we have noted that these measures have not yielded concrete positive results. Thus, there is no hiding away from the fact that much more needs to be done. By formulating a victim protection plan, we believe we have taken a major step in that direction. We hope this effort will have a domino effect, leading to much more sustained and coordinated action from all stakeholders. We are aware that a single plan will not be the answer to all the trials and tribulations victims face. However, our effort here should reflect more than just the formulation of a plan. It should reflect an endeavour to give the victim centre stage and to prioritise their needs. It should reflect an attempt to view victims not as passive beings but as agents in need of empowerment. Lastly, but most importantly, it should reflect a commitment to the victims that this Court will accord them the dignity that was always theirs. We direct the Registry to send one copy of the judgment to: a. All the High Courts; b. Home Secretary, Ministry of Home Affairs, Union of India c. Principal Secretary, Ministry of Women and Child Development, Union of India." CSE refers to Commercial Sexual Exploitation.

In paragraph 362(g)(iv) of the judgment, the Supreme Court has specifically directed as follows:- "All the High Courts shall ensure the effective implementation of Section 395, BNSS i.e., Order to pay compensation, by all trial courts under their jurisdiction, giving particular regard to subsections 395(1)(b) and 395(3), BNSS respectively." 

In view of the direction of the Supreme Court, all the Principal District and Sessions Judges have been hereby directed to ensure effective implementation of Section 395 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 by all the trial courts under their respective jurisdiction, with particular attention to the requirements contained in Sections 395(l)(b) and 395(3) of the BNSS. 

The Circular reads:"The Principal District and Sessions Judges shall accordingly bring the aforesaid direction of the Hon'ble Supreme Court to the notice of all the judicial officers presiding over the trial courts under their respective judgeships and shall ensure that the provisions of Section 395 BNSS are duly considered and implemented in appropriate cases, in accordance with law. The Trial Courts shall ensure that the requirement of passing appropriate orders relating to compensation under Section 395 BNSS is not ·overlooked in cases where the provision is attracted, particularly having regard to the specific emphasis placed by the Hon'ble Supreme Court upon Sections 395(1 )(b) and 395(3) BNSS. The Principal District and Sessions Judges are directed to monitor compliance with the aforesaid direction at the administrative level and to ensure that the direction of the Hon'ble Supreme Court is effectively implemented by the trial courts under their respective jurisdiction." 

It adds: "The matter relating to effective implementation of Section 395 BNSS, particularly Sections 395(1)(b) and 395(3) thereof, shall also be specifically included in the agenda of the meeting of District Criminal Injury Compensation Board, and the compliance/ implementation thereof by the trial courts under the respective judgeship shall be reviewed in the said meeting.  The aforementioned instructions shall be followed scrupulously henceforth by all concerned and its non-compliance shall be viewed seriously." 

The legal infrastructure addressing human trafficking for the purposes of Commercial Sexual Exploitation (CSE) in India comprises of multiple statutory instruments (i) Article 23 of the Constitution of India; (ii) ITPA; (iii) BNS; (iii) The Juvenile Justice (Care and Protection of Children) Act, 2000; and (v) Protection of Children from Sexual Offences Act, 2012 (POCSO) respectively. 430. Article 23 of the Constitution prohibits traffic in human beings, begar, and all other similar forms of forced labour.  

Justice Subramonium Prasad of Delhi High Court's attention drawn towards Supreme Court's verdict in Madhu Limaye vs. Sub- Divisional Magistrate, Monghyr, (1970) in Neha Bora case

In Neha vs. The State NCT of Delhi 2026 DHC 9436, Justice Subramonium Prasad of Delhi High Court delivered a 46-page long judgement dated October 23, 2026, wherein, it concluded:"50. In the opinion of this Court, the principles laid down by the Apex Court in Madhu Limaye (Supra) have not been violated at this stage. The SEM shall ensure that the principles laid down by the Apex Court as well as by this Court and the provisions of Chapter IX of the BNSS are not given a go by at later stages of the proceedings against the Petitioner also. 51. In view of the foregoing discussion, this Court is of the opinion that the Impugned Notice meets the requirements of a show cause notice under Chapter IX of the BNSS. However, it is always open to the Petitioner to raise a challenge at an appropriate stage. 52. This Court, however, deems it fit to state that the SEM must necessarily keep in mind the import of Section 135 of the BNSS and leaves it open for the SEM to decide on the insistence of a bond at the first instance, as the provision provides for furnishing a bond only if there is an apprehension of breach of peace or disturbance after the commencement and before the completion of the enquiry. Needless to state, at the time of passing an order under Section 135(3) of the BNSS, the SEM will take into account the safeguards given by the five Judges Bench of the Apex Court in Madhu Limaye (Supra), followed by the Division Bench of this Court in Aldanish Rein (Supra). 53. It is further needless to state that there will be several opportunities to the Petitioner to take recourse to the remedies under law at different stages of enquiry, including after passing of the final order upon conclusion of the enquiry. 54. It is made clear that all the observations in this Judgment are only limited to the purport of interference by this Court under Article 226 of the Constitution of India at the stage of issuance of a show cause notice. Undoubtedly, the SEM would apply his own mind to the material/information placed before him and only then, arrive at a conclusion regarding furnishing of a personal bond or bail bond. 55. With these observations, the Writ Petition is dismissed, along with pending Application(s), if any."

Notably, on October 19, 2026, the Neha Bora, the petitioner had prayed for exemption from personal appearance on health grounds. The petitioner was called on October 24, 2026 at 02:00 P.M to appear before the SEM. 

Neha appeared before the special executive magistrate (SEM) at Mandir Marg Police Station on October 24. In compliance with the High court's directions, her counsel was provided the documents that formed the basis of the police allegation that there was a likelihood of breach of peace and gave her time to reply by October 29. 

Earlier, Gopal Sankaranarayanan, senior counsel for the petitioner appaered before the High Court and placed reliance on Paragraph 42 and 43 of the judgment passed by the Supreme Court's 5-Judge Constitution Bench in Madhu Limaye vs. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746. It reads:"“42. In our opinion the words of the section are quite clear. As said by Straight J. in Emperor v. Babua, [ILR 6 All 132] the order under Section 112 is on hearsay but the inquiry under Section 117 is to ascertain the truth of the necessary information. Sub-section (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of the inquiry that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the person in custody. Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character. In Nafar Chandra Pal v. King Emperor [28 CWR 23] there was only a petition and a report and these were not found sufficient material. In some of the cases before us no effort was made by the Magistrate to inquire the truth of the allegations. The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one-sided. It cannot be described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond or placing the person in custody in default. In an old case reported in A.D. Dunne v. Hemchandra, [(1869) 12 WR (Cr) 60] a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and, therefore, there was no provision for an interim bond. But what Sir Barnes Peacock, C.J., said applies to the changed law also not only with regard to the ultimate order but also to the interim order for a bond. The section even as it is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed. 
43. The power which is conferred under this Chapter is distinguished from the power of  detention by executive action under Article 22 of the Constitution. Although the order to execute a bond, issued before an offence is committed, has the appearance of an administrative order, in reality it is judicial in character. Primarily the provision enables the Magistrate to require the execution of a bond and not to detain the person. Detention results only on default of execution of such bond. It is, therefore, not apposite to characterise the provision as a law for detention contemplated by Article 22. The safeguards are therefore different. The person sought to he bound over has rights which the trial of summons case confers on an accused. The order is also capable of being questioned in superior courts. For this reason, at every step the law requires the Magistrate to state his reasons in writing. It would make his action purely administrative if he were to pass the order for an interim bond without entering upon the inquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based. Neither the scheme of the chapter nor the scheme of Section 117 can bear such an interpretation. We accordingly, hold in the case of Madhu Limaye (Writ Petition 307 of 1970 — Madhu Limaye v. Ved Murti that as the case was simply adjourned from time to time and there was no inquiry before remanding him to custody his detention was illegal. We may now briefly notice the remaining sections of the Chapter.”

The senior counsel also relied on the judgments passed by Delhi High Court in Aldanish Rein vs. State (NCT of Delhi), 2018 SCC OnLine Del 12207, Asha Pant vs. State, 2008 SCC OnLine Del 367, Vivek Kumar vs. State (NCT of Delhi), 2024 SCC OnLine Del 417 and Ramavtar vs. State, 2025 SCC OnLine Del 8027, the judgment passed by the Madhya Pradesh High Court in Medha Patkar vs. State of M.P., 2007 SCC OnLine MP 591. 

The senior counsel for the petitioner submitted that the impugned notice does not meet the essential requirements prescribed by law under Section 126 of the BNSS. He stated that the Impugned Notice is nothing but a mere mechanical reproduction of the ingredients of the said provision. While issuing a notice under Section 126 of the BNSS, it was imperative on the part of the SEM to enquire into the material and satisfy himself that the information received by him would lead to an apprehension of breach of peace and disturb public tranquillity. He stated that without arriving at an independent opinion by conducting an enquiry on his own, the impugned notice could not have been issued by the SEM. Therefore, he submitted that without arriving at an independent opinion, neither an order under Section 130 no can a notice under Section 126 of the BNSS be issued. He drew the attention of this Court to the kalandara dated October 17, 2026, which according to him is the basis of the impugned notice, to submit that a notice under Section 126/130 of the BNSS cannot be issued only on the basis of a kalandara. He also stated that the kalandara indicates that the impugned notice was issued on the directions of “senior officers,” meaning thereby, that the impugned notice was issued as a performance of a command and not on the basis of an independent opinion arrived at by the SEM. He contended that the Order dated October 17, 2026 passed by the SEM also indicated that only the kalandara was submitted by SI Vaishali Tushir, the Investigating Officer (SI Vaishali Tushir) and on the inspection of the kalandara, the impugned notice was issued, which also was an indicator that without there being any enquiry as mandated at every stage of the proceedings under Chapter IX of the BNSS, the impugned notice was issued. The senior counsel drew the High Court's attention to the order dated August 23, 2026 issued by the Assistant Commissioner of Police, Sub-Division, Parliament Street, New Delhi, to contend that Mandi House, where the protest was being called for by the Petitioner, did not fall in the area in which prohibitory orders under Section 163 of the BNSS had been passed, meaning thereby, that there was no restriction on any kind of protest to be carried out in that area.  The senior counsel submitted that a reading of the impugned notice indicated that the "information" on which basis the same was issued by the SEM was only hearsay material, which was not sufficient to initiate proceedings under Chapter IX of the BNSS. He also stated that Neha, the petitioner had never urged people to protest in the Central Park, Connaught Place, where the protest was called for by another group. He also states that staging a peaceful protest cannot lead to breach of peace and therefore, the entire basis of the proceedings under Chapter IX of the BNSS initiated by the SEM was unsustainable. He submitted that the impugned notice did not conform to the law laid down by the Supreme Court and other Courts. 

The High Court recorded that the petitioner had sought quashing of the Notice dated October 17, 2026 (the impugned notice) issued by the Special Executive Magistrate (SEM), New Delhi District, New Delhi, under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 to show cause as to why the Petitioner be not required to execute a personal bond in the sum of Rs.10,000/- each with one surety in the like amount of Rs.10,000/- under Section 135(3) of the BNSS for keeping peace for a period of enquiry. 

The impugned notice reads:-“NOTICE UNDER SECTION 126/130 BNSS Whereas it has been made to appear to me by a credible information received from SHO/B.K. Road, New Delhi through SI Vaishali Tushir that you, Neha Bora D/o Hoshiyar Singh R/o H. No. 25, Meena Bagh, Maulana Azad Road, Delhi, created nuisance by shouting loudly in protest at round about Mandi House and you have already been involved in repeated protest related activity in and around Jantar Mantra, New Delhi, despite prohibitory orders 163 BNSS. You instigated people to participate in unauthorized demonstration at Central Park, Connaught Place which is not a designated protest site and also hoist the national flag without obtaining valid permission. There is every likelihood of apprehension of breach of public peace and tranquility within the jurisdiction of this court. That you are likely to commit a breach of peace or to do a wrongful act which may probably converted in a breach of peace or disturbance of public tranquility within the local limits and jurisdiction of this court. You may take law in your hands and likely to do a wrongful act which may cause breach of peace and public tranquility in the area. I am satisfied that there are sufficient grounds to initiate proceedings against you u/s 126/169 BNSS. I, MAHESH KUMAR MEENA, Special Executive Magistrate, New Delhi, Distt. New Delhi hereby requires you to attend in person (or with a duly authorized agent) in my court on 19.10.2026 at 2.00 P.M to show cause as to why you may not be required to execute a Personal Bond in the sum of Rs. 10,000/- each with one surety in the like amount of Rs. 10,000/- U/S 135 (3) BNSS for keeping peace for a period of enquiry.” 

"It is a truism that the penal law of a country will tend to change according to the view of the wielders of its politica' power. Accordingly change of governments or change in the views of the self-same Government will be reflected both in the recognition of an act as an offence and in the severity of the punishment for the same offence." This relationship is noted by Abul Hasanat, Crime and Criminal Justice (1939), pp. 323-4. The relative conception of crime has been dealt with in S.S. Glueck's Crime and Justice (1936). When the views held by one Government and its successor differ fundamentally a corresponding change can be expected in the law of crimes and in the administration of criminal laws. Such a fundamental change took place between 1773 and 1861 in India. For the first few years of its administration the East India Company did not interfere with the criminal law of the country and although in 1772, during the administration of Warren Hastings, the Company for the first time interfered, and although henceforth till 1861, from time to time, the British Government altered the law, yet up to 1862, when the Indian Penal Code came into operation, the previous law was in force. 

With regard to "Good Behaviour Bond", it may recalled that in 1818, the power of the Court of Circuit to require security for good behaviour, and in default, to detain in jail, was restricted to persons who might have been acquitted on a "specific charge", but who would appear to be of notoriously bad or dangerous character from the evidence on the proceedings. In this respect, the power of the Magistrate and that of the courts of circuit was normally limited to one year and three years respectively, although in the case of a prisoner being found to be a robber, or of dangerous character, the Court of Circuit was declared competent to order confinement 'indefinitely', in default of security. In the latter case, however, the court was to examine the position again after 3 years, and was to release the prisoner, if considered safe. Next year, this provision was extended to other notorious robbers, of whatever denomination, being of desperate or dangerous character, whom it would be unsafe to set at liberty without substantial security for their future good behaviour, 

Supreme Court's majority view upheld Patna High Court's judgement without going into merits of two vigilance cases against Dr Jagannath Mishra

In Sheo Nandan Paswan vs. State of Bihar and others (1983) 1 SCC 438 Criminal Appeal No. 241 of 1982, the Supreme Court's 5-judge Constitution Bench comprising of Chief Justice P.N. Bhagwati and Justices G.L.Oza, E.S. Venkataramiah, V. Khalid and S. Natarajan concluded by majority (3:2) in its 96-page long judgement dated December 20, 1986 that Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court. The majority dismissed the appeal. 

The majority upheld the Special Judge’s consent order; consequently, Dr Jagannath Mishra and co-accused remain discharged and the prosecutions stand withdrawn. The ruling reinforced a restrained, supervisory role for courts when consenting to withdrawals under Section 321 Cr.PC and affirmed that political or public-policy considerations, if bona-fide evaluated by the Public Prosecutor, may legitimately underpin such withdrawals. No new precedent overruling past case-law was set, but the judgment clarified that appellate courts ought not to re-open factual issues once both the Public Prosecutor and trial court have complied with the procedural requirements of Section 321.

The majority concluded:"...when we uphold the order of the High Court and that of the Special Judge, we have only upheld the propriety of the orders tested against the scope of Section 321 CrPC. The number of true cases that get crucified at the altar of the doctrine of benefit of doubt is legion. Since the scope of this appeal does not and cannot extend to the consideration of the merits of the case in depth, I have advisedly not embarked upon such an enquiry. I firmly believe that this Court while deciding cases should consider only the legal issues involved and not the individuals involved."

The case was concerned with the withdrawal of two vigilance prosecutions (Vigilance P.S. Case No. 9(2)78 and P.S. Case No. 53(8)78) filed against Dr Jagannath Mishra, former Chief Minister of Bihar and others for alleged offences of corruption, conspiracy and forgery in the affairs of the Patna Urban Co-operative Bank.

After a change in the State Government, a Cabinet Sub-Committee headed by Dr Jagannath  Mishra (the then Chief Minister) resolved on 24 February 1981 that continuing the cases was inexpedient. The Law Department accordingly instructed the District Magistrate to have the Special Public Prosecutor (P.P.) file an application under Section 321 of the Code of Criminal Procedure, 1973 (CrPC). On 16 June 1981 the newly-appointed Special P.P., L.P. Sinha, prayed before the Chief Judicial Magistrate-cum-Special Judge, Patna, for permission to withdraw. The Special Judge allowed the request on 28 June 1981, resulting in the discharge of all accused.

Sheonandan Paswan, Deputy Speaker of the Bihar Legislative Assembly, filed a criminal revision which the Patna High Court dismissed in limine on 14 September 1981. He obtained special leave to appeal to the Supreme Court. A 3-Judge Bench of Justices Tulzapurkar, Baharul Islam and R.B. Misra dismissed the appeal by majority on 16 December 1982. On review, a 3-Judge Bench admitted the petition and directed rehearing by a Constitution Bench. Subsequently, the 5-Judge Constitution Bench of Chief Justice P.N. Bhagwati and Justices G.L.Oza, E.S. Venkataramiah, V. Khalid and S. Natarajan delivered split verdicts; by majority, the appeal was ultimately dismissed and the withdrawal order affirmed. 

The 5-Judge Bench grappled with the following legal issues:

What is the scope of a Public Prosecutor’s discretion under Section 321 CrPC to withdraw from a prosecution?

What is the nature of the court’s “consent” under Section 321 and on what grounds may it be granted or refused?

Was the application for withdrawal filed by L.P. Sinha valid, given the earlier appointment of another Special P.P.?

Did the Special Judge and the High Court err in granting/affirming consent for withdrawal in the facts of the present case?

All the five Judges agreed that the twin considerations under Section 321 are (i) the Public Prosecutor’s independent judgment and (ii) the furtherance of public justice. The Bench, however, was divided on their application to the facts.

The majority comprising of Justices Venkataramiah, Khalid and Natarajan held: 

The Special P.P. was validly appointed and nothing showed mala fides.

His four stated grounds fell within the recognised categories of “public policy, political harmony and paucity of evidence”.

The Special Judge expressly recorded that he had examined the case diary and other materials; such brief order meets the supervisory standard set by Section 321.

Appellate interference under Article 136 is confined to glaring illegality; none existed.

The minority comprising of Chief Justice Bhagwati, C.J. and Justixe Oza held: 

Once a chargesheet was ready, insufficiency of evidence could not justify withdrawal; the Magistrate should decide under Section 239.

Because the decision to withdraw emanated from a Cabinet meeting presided over by the principal accused, public confidence in justice would be undermined.

The Special P.P. appeared to have acted on executive command rather than independent assessment.

Legal Backdrop 

The prosecution of criminal cases is conducted by the Public Prosecutor because in criminology, an offence which is done by a person is not confined to any particular individual, it extends to the whole society, therefore, the state itself is a party.

Section 321 of the Criminal Procedure Code enables the Public Prosecutor or the Assistant Public Prosecutor to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. For doing so, consent of the Court is necessary.

Section 321, Cr.P.C. corresponded to section 494 of the Old Code except that a proviso has been newly added. The proviso laid down that consent of the Central Government should be obtained before a Public Prosecutor moves the Court for the withdrawal from prosecution, whenever the offence relates to a matter to which the executive power of the Union extends or was investigated by the Special Police Establishment or involves misappropriation, destruction or damage to Central Government property or is committed by a Central Government Servant.

Section 321, Cr.P.C. has now been replaced by Section 360 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Only the Public Prosecutor or Assistant Public Prosecutor in charge of a particular case can apply for withdrawal from prosecution. A public prosecutor cannot apply for withdrawal in case of a private complaint. The consent of the Court is mandatory before any withdrawal can be granted. The court must exercise judicial discretion and scrutinize the reasons behind the withdrawal to ensure it is not sought on extraneous grounds or against the interest of justice. The withdrawal application can be made at any time before the judgment is pronounced. If withdrawal is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences. If withdrawal is made after a charge has been framed, the accused shall be acquitted in respect of such offence or offences. For certain categories of cases, prior approval from the Union Government is mandatory before the Public Prosecutor can move the court for withdrawal. These include cases where the offences relate to matters under the Union's executive power if it was investigated by the Delhi Special Police Establishment, involves misappropriation or damage to Union Government property and the offence was committed by a Union Government servant in official duty.

Section 321 does not apply to private complaints since the state is not involved in prosecuting such cases.

The court can reject withdrawal applications that lack proper justification. Valid grounds for withdrawal include: Public policy considerations, interest of administration of justice, inexpediency of prosecution for reasons of state, paucity of evidence, broader public interest like maintenance of law and order and cases against public interest.The court is required to ensure that withdrawal serves the interests of justice and is not influenced by extraneous considerations.

The new Bharatiya Nagarik Suraksha Sanhita, 2023 was introduced Section 360 to replace Section 321 of CrPC, with several significant changes: 

360. Withdrawal from prosecution.—The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,—

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Sanhita no charge is required, he shall be acquitted in respect of such offence or offences:

Provided that where such offence—

(i) was against any law relating to a matter to which the executive power of the Union extends; or

(ii) was investigated under any Central Act; or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government; or 

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution:

Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.

The most important change is that the victim must be heard before any withdrawal is allowed. The erstwhile CrPC did not provide this right to victims, but BNSS makes it mandatory for courts to hear the victim's views before granting consent for withdrawal.

Under BNSS Section 360, the requirement for Union Government permission has been significantly expanded. 

Old provision (CrPC Section 321): Only required Central Government permission for cases investigated by Delhi Special Police Establishment 

New provision (BNSS Section 360): Requires permission for any offence investigated under any Central Act, regardless of the investigating agency

In the case Sheo Nandan Paswan Vs. State of Bihar and others (1983) 1 SCC 438 the Supreme Court opined that Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court. Before on application made U/S 321 Cr.P.C. the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence and secondly that the Court, before which the case is pending can not give its consent to withdraw without itself applying mind to the fact of the case. The Supreme Court also held that the Public Prosecutor can not act like a post box or act on the dictate of the State Government. He/She has to act objectively as he is also an officer of the Court. At the same time Court is also free to assess whether the prima facie case is made or not. The Court if satisfied can also reject the prayer. But it can not be said that a public prosecutor’s action will be illegal, if he receives any communication or instruction from the Government. On the contrary the Public Prosecutor can not file an application for withdrawal from prosecution on his own without instruction from the Government. The majority of Judges in this case cited four grounds for seeking withdrawal from prosecution-

1. lack of prospect of successful prosecution in the light of evidence,
2. implication of persons as a result of political and personal vendetta,
3. inexpediency of the prosecution for reasons of State and public policy,
and

4. adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation. 

In Subhash Chandra vs. Chandigarh Administration (1980) 2SCC 155, Supreme Court held that the Public Prosecutor who alone is entitled to pray for withdrawal, is to act not as a part of executive but as a judicial limb and in praying for withdrawal he is to exercise his independent discretion even if it incurs the displeasure of his master affecting continuance of his office.

Permission for withdrawal from prosecution cannot be granted mechanically. Withdrawal must be for proper administration of justice and only in Public Interest. It has been held by the Supreme Court in Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710, that an application under Section 321 Cr.P.C. could not be allowed only on the ground that the State Government had taken a decision for withdrawing the prosecution and such an order could only be passed after examining the facts and circumstances of the case..........What the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice, if consent was given.

In Rajender Kumar vs. State through Special Police Establishment, (1980) 3SCC 435, the Supreme Court held that "It shall be the duty of the Public Prosecutor to inform the grounds for withdrawal to the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of Criminal justice against possible abuse or misuse by the Executive by resort to the provision of Section 321, Cr.P.C. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.”

Before instructing the Public Prosecutor for withdrawal from the Prosecution, State Government should also consider the matter carefully and the file in which consideration is made should contain reasons. When a matter is for benefit of society there is no scope of its being confidential. If this procedure is followed chances of favouritism or extraneous political considerations would be curbed to a great extent.
Who can withdraw prosecution:

Section 321, Cr.P.C. enables the Public Prosecutor or the Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of the Court. It is necessary that the permission of the State Government shall be filed in the Court. When the case was being conducted by a Special Public Prosecutor and subsequently another Special Public Prosecutor was appointed to conduct the case without cancelling the engagement of the earlier appointed Special Public Prosecutor, in the case of Sheo Nandan Paswan, it was held that the latter Special Public Prosecutor could apply for withdrawal from prosecution. But a Public Prosecutor has no power to withdraw a case institution on private complaint.

The application for withdrawal from prosecution may be made at any time before the judgment is pronounced. So the Public Prosecutor may file an application for withdrawal from prosecution at any time ranging between the Court taking Cognizance of the case till such time the Court actually pronounces the judgment. 

In Rajendra Jain Vs. State (1980)3 SCC 434, the Supreme Court has held that notwithstanding the fact that
offence is exclusively triable by the Court of Session, the Court of Committing Magistrate is competent to give consent to the Public Prosecutor to withdraw from the prosecution.

If a person has been convicted by trail Court and case is pending before Appellate Court, then at this stage the Public Prosecutor can not move an application before Appellate Court for withdrawal from prosecution because under Sec 321 Cr.P.C. ‘Court’ means Trial Court, not Appellate Court and also prosecution is made before a trial Court. So, the Public Prosecutor can not move an application for withdrawal from the prosecution before an Appellate Court.

Section 321, Cr.P.C. does not make it necessary for the Court to record reasons before consent is given. However, it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him the Court exercises its judicial discretion by considering such materials and on such consideration either gives consent or declines consent. For justice, it is necessary that the Court should record reasons about his satisfaction with the view of the Public Prosecutor but a detailed order is not required. Any private individual can oppose the application for withdrawal from prosecution and it cannot be discounted on grounds of locus standi.

In Sheo Nandan Paswan Vs. State of Bihar (1987) 1 SCC 288, the Supreme Court has held that since a citizen can lodge an FIR or file a complaint and set machinery of Criminal law in motion, any member of society must have locus standi to oppose withdrawal. Particularly the offences of corruption and criminal breach of trust, being offences against society, any citizen, who is interested in cleanliness of administration is entitled to oppose application for withdrawal of prosecution.

Section 321 of the Criminal Procedure Code enables to the Public Prosecutor to withdraw from prosecution with the consent of the Court. All that is necessary to satisfy the Section is to see that the Public Prosecutor acts in good faith and that the Court is satisfied that the exercise of discretion by the Public Prosecutor is proper. The judgement of the Public Prosecutor under the section cannot be lightly interfered with unless the Court comes to the conclusion that the Public Prosecutor has not applied his mind or that his decision is not in the interest of public policy. The court being the ultimate repository of legislative confidence has to be circumspect in grant of its consent to withdrawal from the prosecution.

**********

Implications of amendments in the criminal laws

In 2020, the Ministry of Home Affairs established a committee led by Prof.  Ranbir Singh, the former Vice Chancellor of the National Law University,  Delhi, to undertake a comprehensive review of the three codes of criminal law. All the members of the committee were male. They were all of similar social identity, professional background, and experience. The committee lacked diversity.

The amendments in three criminal laws-the Indian Penal Code (IPC), the Criminal Procedure Code, 1973 and the Evidence Act, 1872 has ignored the Pre-Legislative Consultation Policy of 2014. This policy was designed to ensure a fair and open process, mandates a thirty-day consultation period with the general public before a law can be approved by the Cabinet for introduction in Parliament. This consultation process, which involves sharing the draft with the public is required to be accompanied by (i) explanations for its enactment (ii) financial considerations, and (iii) an evaluation of the law's potential impact. There existed a clear absence of compelling rationale for why such a substantial reform was undertaken. There was lack of transparency. The claim about amendments being undertaken to be decolonise these three criminal laws is contradicted by the retention of certain provisions in these laws.

The changes that have been made to the existing law to enhance the coercive powers of State and its instrumentalities which allow  for the exercise of its powers at a hitherto unknown scale at which these powers can be exercised by the State. The laws in general have expanded the scope of police's power without introducing measures to keep its activities in check. From the data of the government provided in the parliament, it has come to light that 4484 persons were victims of custodial deaths in India between 2020 -2022. The criminal laws seeks to enhance the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees. There is no provision on death in police custody and police brutality. Instead it provides for the provision of more days of stay in police custody, such establishes police state and anarchy in the country.

19 Chapters and 358 Sections of Bharatiya Nyaya Sanhita (BNS) replaces 23 chapters and 511 Sections of Indian Penal Code (IPC)

In his note of dissent to the parliamentary report on BNS, the new criminal law, N. R. Elango, Member of the Parliamentary Committee on Home Affairs wrote:"I find no new clause that imbibe Indian thought process and the Indian soul." It is noteworthy that 20 new offences have been added and 19 provisions in the repealed IPC have been dropped. The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences. 

In general, like IPC, BNS deals with offences against the body. It has retained the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It has added new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.

Like IPC, it deals with sexual offences against women. It has retained the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It has increased the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.

Like IPC, it deals with offences against property. It has retained the provisions of the IPC on theft, robbery, burglary and cheating. It has added new offences such as cyber crime and financial fraud. The fact is that it was already incorporated in the IPC through amendment. 

Like IPC, it deals with the offences against the state. The BNS creates an impression about removal of sedition as an offence. The fact is that it was been brought in as a new offence for acts endangering India's sovereignty, unity and integrity. 

Like IPC, it deals with offences against the public.

The BNS has 19 Chapters and 358 Sections. 174 Sections of IPC have been changed, 8 new Sections added and 22 Sections repealed.

Chapter 1 has Sections 1 to 3 which deal with the Preliminary including definitions (2) and General explanations (3).
Chapter 2  has Sections 4 to 13 which deal with Punishments.
Chapter 3  has Sections 14 to 44 which deal with General Exceptions (14-33) and the Right to Private Defence (34 to 44).
Chapter 4 has Sections 45 to 62 which deal with Abetment, Criminal Conspiracy and Attempt.

Chapter 5 has Sections 63 to 99 which deal with Offences against Women and Children including Sexual Offences (63 to 79), Criminal Force and Assault against Women (74 to 79), Offences relating to Marriage (80 to 92) and Causing of Miscarriage and including offences against child (93-99) like Exposure and abandonment of child under twelve years, of age, by parent or person having care of it Concealment of birth by secret disposal of dead body, Hiring, employing or engaging a child to commit an offence, Procuration of child, Kidnapping or abducting child under ten years of age with intent to steal from its person, Selling child for purposes of prostitution, Buying child for purposes of prostitution.

On May 3, 2024 in Achin Gupta versus State of Haryana, the Supreme Court asked the legislature and government to reconsider the Section 85 and 86 of BNS because they are same as section 498A of IPC. Sections 85 and 86 deal with cruelty against women by their husbands or relatives. Section 85 outlines the consequences for perpetrators of cruelty against women, including imprisonment for up to three years and fines. Section 86 defines cruelty for the purposes of section 85, including harassment or other conduct that could lead a woman to commit suicide or cause serious harm. Section 86 defines cruelty as any willful conduct that could:drive a woman to commit suicide, cause grave injury or danger to the woman's life, limb, or health and involve harassment to coerce the woman or her relatives to meet unlawful demands for property or security. Section 85 is a non-bailable offense.

Chapter 6 has Sections 100 to 146 which deal with Offences Affecting the Human Body including Offences Affecting Life (100 to 113), Hurt (114 to 127), Criminal Force and Assault (128 to 136), Kidnapping, Abduction, Slavery and Forced Labour (137 to 146).

Chapter 7 has Sections 147 to 158 which deal with Offences Against the State.
Chapter 8 has Sections 159 to 168 which deal with Offences Relating to the Army, Navy and Air Force
Chapter 9 has Sections 169 to 177 which deal with Offences Relating to Elections
Chapter 10 has Sections 178 to 188 which deal with Offences Relating to Coins, Bank Notes, Currency Notes and Government Stamps
Chapter 11 has Sections 189 to 197 which deal with Offences Against the Public Tranquility
Chapter 12 has Sections 198 to 205 which deal with Offences by Or Relating to Public Servants
Chapter 13 has Sections 206 to 226 which deal with Contempt of Lawful Authority of Public Servants
Chapter 14 has Sections 227 to 269 which deal with False Evidence and Offences against Public Justice.
Chapter 15  has Sections 270 to 297 which deal with Offences affecting the Public Health, Safety, Convince, Decency and Morals
Chapter 16  has Sections 298 to 302 which deal with Offences Relating to Religion
Chapter 17 has Sections 303 to 334  which deal with Offences against Property including Theft (303), Extortion (304), Theft in a dwelling house, or means of transportation or place of worship (305), Theft by clerk or servant of property in possession of master(306), Theft after preparation made for causing death, hurt or restraint in order to committing of theft (307), Extortion (308), Robbery and Dacoity (309 to 313), Criminal Misappropriation of Property (314 and 315), Criminal Breach of Trust (316), Receiving of Stolen Property (317), Cheating (318 and 319), Fraudulent Deeds and Dispositions of Property (320 to 323), Mischief (324 to 328) and Criminal Trespass (329 to 334).
Chapter 18 has Sections 335 to 350 which deal with Offences Relating to Documents and to Property Marks.
Chapter 19 has Sections 351 to 358 which deal with Criminal Intimidation, Insult, Annoyance, Defamation, etc including Intimidation, Insult and Annoyance (349 to 353), Breach of peace (352) Public Mischief (353) Defamation (356), breach of contract to attend on and supply wants of the helpless person (357) and Repeal and Savings (358).

Section 358 states that IPC is repealed but savings pending proceedings shall continue under the repealed law

IPC has 23 chapters and 511 sections. The 119 page long IPC came into operation on January 1, 1862.

Chapter I of IPC has Sections 1 to 5 which provides introduction including definitions.
Chapter II has Sections 6 to 52 which deal with  General Explanations.
Chapter III has Sections 53 to 75 which deal with Punishments.
Chapter IV has Sections 76 to 106 which deal with General Exceptions and of the Right of Private Defence (Sections 96 to 106).
Chapter V has Sections 107 to 120  which deal with Abetment.
Chapter VA has Sections 120A to 120B which deal with Criminal Conspiracy.
Chapter VI  has Sections 121 to 130 which deal with Offences against the State.
Chapter VII has Sections 131 to 140  which deal with Offences relating to the Army, Navy and Air Force.
Chapter VIII  has Sections 141 to 160 which deal with Offences against the Public Tranquillity.
Chapter IX has Sections 161 to 171 which deal with Offences by or relating to Public Servants.
Chapter IXA has Sections 171A to 171 which deal with Offences Relating to Elections.
Chapter X has Sections 172 to 190 which deal with Contempt of Lawful Authority of Public Servants.
Chapter XI has Sections 191 to 229 which deal with False Evidence and Offences against Public Justice.
Chapter XII has Sections 230 to 263 which deal with Offences relating to coin and Government Stamps.
Chapter XIII has Sections 264 to 267 which deal with Offences relating to Weight and Measures.
Chapter XIV has Sections 268 to 294 which deal with Offences affecting the Public Health, Safety, Convenience, Decency and Morals.
Chapter XV has Sections 295 to 298 which deal with Offences relating to Religion.
Chapter XVI has Sections 299 to 377 which deal with Offences affecting the Human Body including Offences Affecting Life including murder, culpable homicide (Sections 299 to 311), Causing of Miscarriage, of Injuries to Unborn Children, of the Exposure of Infants, and of the Concealment of Births (Sections 312 to 318), Hurt (Sections 319 to 338), Wrongful Restraint and Wrongful Confinement (Sections 339 to 348), Criminal Force and Assault (Sections 349 to 358), Kidnapping, Abduction, Slavery and Forced Labour (Sections 359 to 374) and Sexual Offences including rape and Sodomy (Sections 375 to 377).
Chapter XVII has Sections 378 to 462 which deal with Offences Against Property including Theft (Sections 378 to 382), Extortion (Sections 383 to 389), Robbery and Dacoity (Sections 390 to 402),  Criminal Misappropriation of Property (Sections 403 to 404), Criminal Breach of Trust (Sections 405 to 409), Receiving of Stolen Property (Sections 410 to 414), Cheating (Section 415 to 420), Fraudulent Deeds and Disposition of Property (Sections 421 to 424), Mischief (Sections 425 to 440) and Criminal Trespass (Sections 441 to 462).
Chapter XVIII has Section 463 to 489 -E which deal with Offences relating to Documents and Property Marks including Offences relating to Documents (Section 463 to 477-A), Offences relating to Property and Other Marks (Sections 478 to 489) and Offences relating to Currency Notes and Bank Notes (Sections 489A to 489E).
Chapter XIX has Sections 490 to 492 which deal with Criminal Breach of Contracts of Service.
Chapter XX has Sections 493 to 498 which deal with Offences related to marriage.
Chapter XXA has Sections 498A which deal with Cruelty by Husband or Relatives of Husband.
Chapter XXI has Sections 499 to 502 which deal with Defamation.
Chapter XXII has Sections 503 to 510 which deal with Criminal intimidation, Insult and Annoyance. 

Chapter XXIII  has Section 511 which deals with Attempts to Commit Offences. 

A joint reading of the provisions of BNS and IPC reveals that both the laws are still in operation. The former is operational with regard to offences committed prior to July 1, 2024 and the latter with regard to offences committed after July 1, 2024. 

It is also evident that four Sections 499, 500, 501 and 502 for "defamation" under IPC have been clubbed under Section 356 of BNS. 

The nine Sections 141, 142, 143, 144, 145, 150, 151, 157 and 158 of IPC for "Unlawful Assembly" under IPC have been clubbed under Section 189 of BNS. 

The six Sections 233, 234, 235, 256, 257 and 489 D of IPC that dealt with "making or selling instruments or materials for forging or counterfeiting coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 181 of BNS.  

The six Sections 242, 243, 252, 253, 259 and 489C of IPC that dealt with "possession forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 180 of BNS. 

The nine Sections 239, 240, 241, 250, 251, 254, 258, 260 and 489B of IPC that dealt with "using as genuine, forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 179 of BNS. 

The nine Sections 230, 231, 232, 246, 247, 248, 249, 255 and 489A of IPC that dealt with "counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 178 of BNS. 

Notably, 124-A of IPC which dealt with "sedition" has been deleted but Section 152 of the BNS deals with and "act endangering sovereignty, unity and integrity of India". There are decisions of the Supreme Court in Kedarnath Singh vs. State of Bihar (1962) to S.G Vombatkare vs. Union of India (2022) on the constitutionality of the Section 124-A of the IPC. In 2022, the Court directed the governments to restrain from filing any FIR under Section 124-A of the IPC. On September 12, 2023, it has referred the matter to a Constitution Bench of the Court.

With reference to the provision in the BNS on "Sedition law", it is noteworthy that the parliamentary committee's report acknowledges the fact that the Sedition law has just been paraphrased and retained. The 22nd Law Commission had suggested that sedition should be well defined. The Union government has decided to do the opposite of that. The provision in the new bill gives it such a broad definition that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission. It talks about Acts endangering sovereignty, unity and integrity of India. Sedition gets a sinister backdoor entry in the new legal regime. This broad definition could potentially infringe on individuals' rights to free expression and peaceful dissent. The broad and vaguely worded sedition provisions can create a chilling effect on free speech and peaceful protest. Individuals may self-censor their opinions and criticisms, fearing legal consequences, which can undermine democratic values and civil liberties. The potential for misuse and abuse under the redefined sedition law has increased. Such broad and discretionary provisions can be employed to stifle legitimate dissent and criticism, limiting freedom of expression and potentially infringing on individuals' rights.

The three Sections 364, 364A and 365 of IPC which dealt with "Kidnapping for murder, ransom, etc." have been clubbed under one Section 140 under BNS. 

The eight Sections 340, 342, 343, 344, 345, 346, 347 and 348 of IPC which dealt with "wrongful confinement" have been clubbed under one Section 127 under BNS. 

Notably, certain offences defined under BNS are already defined and punishable under Unlawful Activities Prevention Act, 1967. UAPA, 1967 is a Special Enactment, it is having a special procedure with regard to investigation, bail etc. The incorporation of same provisions in the BNS will cause lot of confusion in the matter of registration of a case, investigation, inquiry and trial of a particular offence. The offenders who fall under both the enactments will attempt to escape the rigor of UAPA, 1967. There is an overlapping between UAPA and BNS and such overlapping will cause confusions. How a Police officer, though he is a senior officer can decide under which enactment a person is to be prosecuted. This is to be decided by the Court.

The provision in the BNS on the "Commutation of a sentence" is problematic. It gives the executive the powers to commute an offender’s sentence punishment for any other punishment. Allowing the executive to commute sentences can blur the separation of powers in a government. It gives the executive branch, which is responsible for enforcing the law, a role in altering or mitigating the legal punishments determined by the judiciary. This could potentially lead to an imbalance of power and an infringement on the judiciary's independence. Executive decisions might be swayed by electoral or popularity concerns rather than solely focusing on justice and the merits of individual cases. Commutations can be seen as undermining the authority and decisions of the judiciary. It may give the impression that the executive branch can override or second-guess the judiciary's determinations, eroding trust in the legal system.

With regard to the provision in the BNS on the "Solitary Confinement", it is noteworthy that solitary confinement is inhumane. There is research which shows that solitary confinement is not an effective tool for deterrence or rehabilitation. It does not reduce recidivism or promote positive behaviour change; instead, it can increase aggression and antisocial behaviour. It has been shown to have serious detrimental effects on individuals' mental and physical well-being, and it raises ethical and human rights concerns. The characterization of solitary confinement as a brutal type of incarceration by the Supreme Court of India in the case of Kishore Singh Ravinder Dev vs. State of Rajasthan highlights the court's recognition of the severe and adverse effects of solitary confinement on individuals.

With regard to the provision in the BNS on the "Promise to Marry", it must be noted that relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved, subject to only some basic safeguards that may be consensually instituted by the society Criminalizing a Promise to Marry can be seen as an undue intrusion into individuals' Right to Privacy and autonomy. Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult. Defining what constitutes a legally binding Promise to Marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments. Criminalizing a Promise to Marry can be viewed as an unwarranted intrusion into the fundamental Right to Privacy and personal autonomy, which are cherished principles in a democratic society. In this context, a more nuanced and rights-based approach to addressing matters related to promises to marry would be both pragmatic and respectful of individual freedoms and choices.

With regard to the provision in the BNS on "Kidnapping and begging", it fails to exclude the exception of lawful guardian of such child. Even guardians who wrongfully push children into begging should be rigorously punished. Excluding the exception of lawful guardians in a clause punishing those who wrongfully push children into begging is essential to safeguard the rights and well-being of vulnerable children. It sends a strong message that all individuals, regardless of their legal relationship with the child, will be held accountable for such harmful actions, acting as a powerful deterrent against child exploitation. This approach prioritizes the child's best interests, prevents potential legal loopholes, and aligns with international human rights standards, fostering a child-centered and protective legal framework that leaves no room for evading responsibility in cases of child exploitation.

The current definition of "imprisonment for life" within the BNS is not explicitly clear. It appears to be using the term "imprisonment for the remainder of a person's natural life." However, in the IPC, Section 53, the term "imprisonment for life" is used without specifying whether it means "imprisonment for the remainder of a person's natural life" or if it is equivalent to a "whole life sentence." There needs to be clarity about whether the convicts are expected to remain in prison for the entirety of their natural life or are eligible for release. The definition of "imprisonment for life" in the BNS is not explicitly clear, and it differs from how "imprisonment for life" is generally understood in the context of the IPC. To avoid confusion and ensure legal clarity, the definition in the BNS be aligned with the understanding that "imprisonment for life" means a "whole life sentence" unless otherwise specified. This would help in harmonizing the definitions and interpretations across different legal contexts in India. 

With regard to "Offences Relating to Elections", one of the general patterns in contemporary India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally while having a large-scale impact on society are addressed by ‘special statutes’. These special statutes while being harsh in punishment are rigorous in the procedural safeguards. The emphasis being that there are checks and balances present in the quest of the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. Offences related to elections should have been in the Representation of People Act.

With regard to clause on "Defamation", there is no limitation on filing cases for defamation. Imposing a time limitation on defamation claims helps protect the fundamental principle of free speech. Without such limitations, individuals or organizations could potentially bring defamation claims many years after an alleged defamatory statement was made. This could have a chilling effect on free expression and public discourse, as people may become reluctant to express their opinions or engage in critical discussions for fear of facing legal action at any time in the future.

 A new Section 69 in the BNS deals with "sexual intercourse by employing deceitful means". It penalizes sexual intercourse by employing deceitful means (false promise of employment or promotion, inducement or marrying after suppressing identity) or by making promise to marry without intention of fulfilling the same.

A sentence of community service has been introduced for six offences. This is reserved for minor offences, non-violent crimes, and first-time offenders. These are:

1. Non-appearance in response to a proclamation under Section 84 BNSS (Section 209 BNS).

2. Public servant unlawfully engaging in trade (Section 202 BNS).

3. Attempt to commit suicide to compel or restrain exercise of lawful power (Section 226 BNS).

4. Petty theft (involving property worth less than INR 5,000) by first-time offenders upon returning the stolen property (Proviso to Section 303 BNS).

5. Misconduct in public by a drunken person (Section 355 BNS).

6. Defamation (Section 356 BNS).

Notably, under section 18(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 a juvenile may be directed to undertake Community Service as a penalty.

Community service has been defined as ‘Court ordered work that benefits the community, and which is not entitled to any remuneration’ (Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita). In State through PS Lodha Colony, New Delhi v. Sanjeev Nanda (BMW Hit and Run case), Supreme Court directed community service under Article 142 of the Constitution of India as a reformative measure along with payment of compensation instead of enhancing the sentence. 

BNS misses the opportunity to the menace of ‘hate speeches’. It has not been defined in any law including the new law. Section 196 of the BNS deals with the offence of  promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. It includes electronic communication in its ambit but does not define it. It ignores Law Commission’s 267th Report on Hate Speech and the decision of the Supreme Court in Pravasi Bhalai Sangathan vs. Union of India (2014).

BNS fails to include Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms. It was enacted in 2005 by Parliament but it was not notified. 

Section 104(2) of the BNS violates Article 20(3) of the Indian Constitution which says “no person accused of an offence shall be compelled to be a witness against himself”.

The new criminal law enhances the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees.

There are several provisions in the amended law which consolidate powers introduced by the colonial powers. For instance, Section 113 (terrorist acts) of the BNS unmindful of the fact that the Unlawful Activities (Prevention) Act (UAPA), 1967 already deals with it. It is intriguing as to why create a general law provision when UAPA, a special law already exists in this regard.

The BNS retains the marital rape exception. It retains the value laden phrase ‘outraging the modesty of women’ instead of replacing it with the gender-neutral term ‘sexual assault’. It provides inadequate protection to victims of non-consensual intimate imagery. It does not include any provision for offences involving rape of males or of transgender individuals. The provision for offence for acts endangering ‘sovereignty or unity and integrity of India’, is ambiguous, with the potential to curtail freedom of speech or to stifle dissent.

The judgement of the Supreme Court in Mithu Vs. State of Punjab underlined that there is no intelligible differentia in sentencing a person only with death sentence under section 303 of IPC. The BNS attempts an alternate sentence to the death, namely imprisonment for life which means imprisonment for the remainder of the person’s life. This falls foul of the Court's judgement. 

Notably, a significant majority, or 76% (279 individuals), of those sentenced to death in India belong to backward classes and religious minority groups. 

The National Judicial Data Grid reveals that 34,180,141 criminal cases at the district and taluka courts are pending in India. 1,755,946 criminal cases are pending in the high courts. At the Supreme Court 18,049 (less than one year old) cases are pending. The new criminal laws will result 30 percent increase in criminal litigation. It is all set to create two parallel sets of laws since the criminal justice system is a combination of both substantive and procedural laws.

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaces Code of Criminal Procedure (Cr.PC), 1973

The BNSS amends the Code of Criminal Procedure (Cr.PC), 1973. It has been claimed that the important changes in BNSS are as under:

1. Special Laws Supersede General Criminal Procedures- The BNSS clarifies that in the case of special laws conflicting with the Cr.PC, the provisions of the special law take precedence.

2. Integration of Technology in Legal Processes- The Sanhita introduces the use of technology in various legal proceedings, such as serving summons, notices, and warrants electronically, enhancing efficiency and reducing paperwork.

3. Modernization of Court Structure-It simplifies the court system by eliminating British-era designations like "Metropolitan Magistrate" and "Metropolitan Area".

4. Introduction of Special Executive Magistrates- The Sanhita allows the appointment of police officers as Special Executive Magistrates for specific areas or functions.

5. Appointment of Public Prosecutors in Delhi- In the National Capital Territory of Delhi, the Central Government, in consultation with the High Court can appoint Public Prosecutors for trial, appeal, and other proceedings, ensuring efficient legal representation.

6. Establishment of Directorate of Prosecutions- The BNSS defines the roles and powers of the Directorate of Prosecutions, headed by a Director Prosecution, functioning under the administrative control of the Home Department of each state.

7. Increase in Maximum Fines and Arrest Conditions- The BNSS raises the maximum fines that Magistrates can impose and introduces conditions for arrests,  including the requirement for permission in specific cases.

8. Designated Police Officers for Information on Arrested Persons- The BNSS mandates the appointment of designated police officers in each district and police station to provide information about arrested individuals to the general public.

9. Medical Examination of Arrested Persons- The Sanhita requires medical practitioners to promptly examine arrested persons and forward examination reports to the investigating officer.

10.Arrest Procedures for Women- The BNSS stipulates that information about the arrest of a woman must be provided to her relatives, friends, or designated individuals.

11.Use of Handcuffs during Arrests-It provides guidelines for police officers to use handcuffs when making arrests, considering the nature and gravity of the offence.

12. Service of Summons on all Adult Family Members- To promote gender parity, the BNSS allows service of summons to any adult family member, including women, in the absence of the person to be summoned.

13.Declaration of Proclaimed Offenders- The Sanhita expands the category of "proclaimed offenders" to include offences punishable with imprisonment of 10 years or more, life imprisonment, or the death penalty.

14.Forfeiture of Property of Proclaimed Offenders who are staying Abroad- The BNSS introduces provisions for identifying, attaching, and forfeiting the property of proclaimed offenders located outside India.

15.Videography of Search and Seizure Operations-It mandates the videography of search and seizure operations, ensuring transparency and adherence to procedures.

16.Protection for Armed Forces Personnel- The Sanhita introduces safeguards to prevent the registration of cases against armed forces personnel for acts performed in the line of duty without prior consent from the Central or State Government.

17.Introduction of "Zero FIR"- The BNSS facilitates the filing of "Zero FIRs" for offences occurring outside the jurisdiction of a police station but within the State.

18.Procedures for Non-Cognizable Offences- The Sanhita outlines procedures for handling non-cognizable offences, requiring the police to forward case details to the Magistrate weekly.

19.Forensic Evidence Collection for Serious Offences-It mandates forensic teams to visit the crime scene to collect evidence for offences punishable by imprisonment of seven years or more.

20.Protection of Vulnerable Witnesses- The BNSS provides safeguards for witnesses, including videoconferencing for recording statements and protection for witnesses' identities.

21.Recording of Confessions and Statements- The Sanhita requires Judicial Magistrates to record statements of witnesses brought before them by police officers in cases with severe penalties.

22.Recording of Statements of Rape Victims-It stipulates that the statements of rape victims should be recorded by female Judicial Magistrates or, in their absence, by male Judicial Magistrates in the presence of women.

23.Limitation on Police Custody Duration- The BNSS sets limits on police custody, specifying maximum periods for detention during different stages of investigation.

24.Types of Custody Defined- The Sanhita defines various forms of custody, including police custody and judicial custody, clarifying their legal status.

25.Production of Accused before Magistrate-It mandates that an accused person must be produced before a Magistrate during the filing of charge sheets, preventing arbitrary arrests.

26.Informing the Informants and Victims about Progress of Investigation- The BNSS requires police officers to inform informants and victims about the progress  of investigations, including through digital means.

27.Supply of Documents to Accused- The BNSS streamlines the supply of documents to the accused, ensuring timely access to case-related materials.

28.Time Limits for Completion of Investigation-It sets timeframes for the completion of investigations, with provisions for extensions under certain circumstances.

29.Expanded the scope for complaints regarding contempt of lawful authority The BNSS broadens the scope for lodging complaints regarding contempt of lawful authority, allowing other public servants to file such complaints.

30.Revised Threshold for Petty Offences- The BNSS increases the threshold for petty offences subject to summary disposal, reducing the burden on the judicial system.

31.Timeframes for Committal Case Proceedings- The BNSS establishes timeframes for committal cases, limiting the duration of proceedings and mini trials.

32.Time Limits for Filing Discharge Applications in Session Cases-It sets time limits for filing discharge applications in session cases, expediting the legal process.

33.Timeframe for Framing Charges in Session Trials- The BNSS introduces a timeframe for framing charges in session trials, promoting procedural efficiency.

34.Timeframes for Pronouncing Judgments-It prescribes timeframe for judges to pronounce judgments, ensuring timely resolution of cases.

35.Procedures for Filing Discharge Applications in Warrant Cases- The BNSS outlines the procedures for filing discharge applications in warrant cases, streamlining the legal process.

36.Discharging Accused in Absence of Complainant-It allows for the discharge of accused persons in the absence of the complainant under specific circumstances.

37.Recording Statements through Electronic Means- The BNSS permits the recording of statements through electronic means, enhancing convenience and accuracy.

38.Limitation on Trial Adjournments- The BNSS places restrictions on the adjournment of trials, ensuring the expeditious resolution of cases.

39. Sampling for Investigation without Arrest-It introduces provisions for collecting samples for investigation without the necessity of arresting the accused.

40.Trials in Absentia for Proclaimed Offenders- The BNSS allows trials in absentia for proclaimed offenders.

41.Victim's Right to Be Heard in Case Withdrawal- The BNSS grants victims the right to be heard before any withdrawal or compromise in criminal cases.

42.Time Limits for Pronouncing Judgments and Online Publication- The Sanhita mandates specific time limits for pronouncing judgments and promotes online publication for transparency.

43.Witness Protection Schemes-It establishes witness protection schemes to safeguard witnesses who are under threat.

44.Central Government Concurrence for Sentence Remission-It requires the concurrence of the Central Government for the remission of sentences awarded by military courts.

45.Release of Undertrial Prisoners to address overcrowding- The Sanhita addresses prison overcrowding by allowing the release of undertrial prisoners on personal bond.

46.Disposal of Properties in Pending Trials- The BNSS outlines procedures for the disposal of properties that are the subject of pending trials, thereby preventing misuse.

But the fact is that 95 per cent of the clauses has been copied and pasted from the the Cr.PC.

Notably, Section 105 of BNSS, 2023 provides for mandatory videography, for statutorily giving sanctity to mobile phone recording in investigation but there is no consequence for not following this provision. It permits the use of ordinary mobile phones for the purpose of electronic recording of searches and seizures without any technical specifications. 

Supreme Court ought to take notice of the provisions in Section 187(2) (3), 43(3), 173 (3) and 85 of the Bhartiya Nagrik Surakhsha Sanhita 2023 declare them ultra vires and unconstitutional because they are violative of Article 21 of the Constitution of India.  Section 187(2) and 187(3) deals with the detention of the accused in the process of investigation. Section 43(3) of BNSS deals with use of handcuff while making the arrest of a person or while producing such a person before the court who is a habitual or repeat offender. Section 173(3) states that the investigating officer would conduct a preliminary inquiry before lodging the FIR within a period of 14 days. The Court should ensure compliance with the directions of the Court in Lalita Kumari versus State of Uttar Pradesh in Writ Petition Criminal No. 68/2008 contained in judgement of November 12, 2013 for the registration of FIR in cognizable offences. The abolition of Section 41-A of Cr.PC, the backbone of criminal procedural law of the country makes Supreme Court's judgement in Arnesh Kumar vs State of Bihar ineffective. 

The abolition of the rank of Assistant Sessions Judge in the BNSS is wrong. Now, all offences punishable with imprisonment exceeding 3 years (limit of a Judicial Magistrate) and exceeding 7 years (limit of a Chief Judicial Magistrate) must be tried by a Sessions Judge. This places a heavy burden on Sessions Judges. Now the first appeal will lie to the High Court increasing the workload of the High Court. An Assistant Sessions Judge with jurisdiction to impose a sentence not exceeding 10 years would have taken the load of such cases and the first appeal would have been to the Sessions Judge and only a revision to the High Court. The rank of Assistant Sessions Judge should be restored. 

The BNSS reflects the wrong assumption that a person arrested must be sent to police custody or judicial custody. The provision of 15 days police custody should have been continuous and normally immediately upon arrest. If police custody is allowed in bits and pieces within a period of 60/90 days, the inevitable tendency will be for Magistrates to order judicial custody for the remaining days of the 60/90 day period, overlooking the fact that the accused is entitled to liberty. It will lead to more persons sent to jail. The existing provision in the Cr.PC should have been retained.

The extension of the duration for which a detainee can be held in police custody beyond 15 days contradicts the Supreme Court's ruling in CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141, which deemed police custody beyond this period impermissible. By elongating the detention period under police custody, the new laws expose detainees to potential threats, abuse, or coercion by the police. The protection of judicial custody, where police require the Magistrate's permission to interrogate a suspect, has been entirely disregarded and nullified by the new laws. It paves the way for police raj in the name of  criminal law reforms.

The deposition of a police officer (including the investigating officer) is crucial in a criminal trial. He/She must physically depose before the Court in an open-to-the-public proceeding and must be cross-examined in an open Court by the accused. Anything less is retrograde. 

The key witnesses, especially eye-witnesses, must be made to depose physically in an open Court. For reasons to be recording in writing, the Magistrate/Judge may allow deposition of formal witnesses through audio-visual mode. The reason for physical deposition is that the Court must ensure that the witness is not being tutored or prompted or under duress and the Court must be able to observe the demeanour of the witness.

A document "prepared" by a public servant must be proved by that public servant. There should be no difficulty in summoning the author if he had retired or been transferred. It is only in the case of death of the author, the rules of evidence in case of death of the author of a document may be invoked. In particular, an Investigating Officer must always depose and prove the documents prepared by him, e.g. statements recorded by him or mahazars prepared by him. No successor can take the place of an investigating officer. A contrary provision in the BNSS is unacceptable and opposed to the normal rules of evidence as well as the principles of a fair trial.

The BNSS deals with powers to summon for evidence. It includes summoning of “digital evidence,” and covers any electronic communication such as messages, call recordings, and emails, as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that may be specified by the government through notification in the future. A court also has the right to order search and seizure of such evidence for various reasons, including if the person in possession of the evidence is not expected to produce the same. A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today's age contain all information pertinent to an individual's general existence. The invasion of the Right to Privacy because of the scope of information that is in these devices has not been safeguarded. The collection of such devices is likely to go against the Right against self-incrimination.

The BNSS expands the powers of the police while taking preventive action. The police officer “may detain or remove any  person resisting, refusing, ignoring or disregarding to conform to any  direction” under it. The Indian Criminal Justice System is  based on a due-process model, but giving the Police such wide and discretionary powers during preventive action is fraught with adverse ramifications for the citizens.

All provisions of any law that violate the principle 'Bail is the rule, jail is the exception' should have been deleted. Every person arrested is entitled to bail. It must be provided in the law that it will be the duty of the prosecution to plead and establish why the accused should not be released on bail and not the other way around. This is especially so when, by using advanced technology, the accused can be placed under restraint without custody and ensure that he appears in the trial. This will also mitigate the perennial problem of overcrowding of jails. 

Unlike Section 227 of the Cr.PC, the BNSS expressly acknowledges the accused's right to file an application for discharge. It also sets a sixty-day time limit for filing this application from the date of committal to the Sessions Court. While this timeline may seem like a step toward reducing trial delays, it overlooks systemic challenges in our pre-trial processes. Accused individuals often lack timely access to their case papers and may not have legal representation during this stage. Moreover, there can be a significant delay between the Magistrate's committal of the case to the Sessions Court and its assignment to a Sessions Judge. This gap affects the production of the accused and the receipt of necessary records. When courts consider whether to grant discharge or frame charges, they must evaluate whether there exists a "strong suspicion" supported by material that the accused committed the offense. Addressing issues related to the timely provision of case papers and ensuring  early access to legal representation is crucial for making this opportunity to file for discharge meaningful.

The issue of challenging forensic reports under BNSS is further complicated by a clause in BNSS, which mirrors Section 294 of the Cr.PC. It eliminates the requirement of formal proof for documents whose genuineness is uncontested by the opposing party. BNSS necessitates that parties admit or deny the genuineness of documents within thirty days of their supply, with the possibility of extending this time limit at the Magistrate's discretion upon providing reasons. Notably, a new proviso in the BNSS states that an expert cannot be summoned to appear before the court unless their report is disputed by a party. This proviso applies to all experts. The provision BNSS, like Section 294 of the Cr.PC, applies to the pre-trial stage of criminal proceedings, where parties have the opportunity to challenge the genuineness of documents relied upon by the opposing party, ensuring the documents are free from forgery or fabrication. However, there is a difference of opinion among courts regarding whether  expert reports, such as medical or post-mortem reports, can be admitted as evidence without the testimony of the experts who prepared them, in cases where the genuineness of such reports remains unchallenged.

The BNSS retains the established timelines of sixty or ninety days and the concept of default bail, as found in the Cr.PC. However, unlike Section 167 of the Cr.PC, BNSS additionally allows for detention in custody, whether police or judicial, for a total of fifteen days, which can be imposed at any time during the initial forty or sixty days of the respective sixty or ninety-day period. Consistent with the Cr.PC, BNSS grants any magistrate the authority to authorize detention, regardless of their jurisdiction to try the case. In contrast, BNSS requires a jurisdictional Magistrate.

BNSS permits detention in custody to be authorized beyond the fifteen-day period, without the stipulation that it must be "otherwise than in police custody," implying that police custody can also be used during this extended period. The legislation extends police/judicial custody from 15 to 90 days. This would put tremendous pressure and mental torture on the accused.

BNSS authorises detention in police custody upto 90-day for offences punishable with death, life imprisonment and imprisonment for a term not less than 10 years. It also authorises police custody for upto 60 days for offences where imprisonment is less than the above mentioned offences. This dilutes the Right to life, health (physical and mental) and fair trial. It enables trial in absentia if the judge finds the attendance of the accused in court not necessary “in the interests of justice” or if the accused “persistently” disturbs proceedings in court.

Handcuffing should have been restricted to cases where the arrested person is known to be violent or is likely to escape custody. In no other case should handcuffing ought to be permissible. A Magistrate must examine and be satisfied about the necessity and legality of the arrest before he remands the accused.

The indiscriminate arrests and the unreasonable denial of bail are the reasons why over two-third of prisoners in jail are undertrials and every prison-reform has failed because of the unmanageable number of prisoners.

 This criminal law affects the lives of the whole population of India including the economically weaker Sections and the marginalized.

Bharatiya Sakshya Adhiniyam (BSA) replaces the Evidence Act

The biggest "change" in the Evidence Act, 1872 has been the renumbering of Sections. This exercise is going to be responsible for large scale confusion resulting in unnecessary delay in the functioning of courts and the policing agencies. The law of evidence has also undergone substantial changes, particularly with regard to electronic evidence in BSA, which has replaced the Evidence Act.

The definition of ‘documents’ under section 2(1)(d) of BSA has been expanded to include electronic and digital records. Electronic record has been defined under section 2(1)(t) of Information Technology (IT) Act, 2000. The definition of ‘evidence’ under section 2(1)(e) of BSA has been expanded to include statements given electronically. This would permit the appearance of witnesses, accused, experts and victims to depose their evidence through electronic means. It also establishes ‘digital records’ as documentary evidence. Electronically provided information shall be treated on par with traditional in-person statements, considering the challenges of in-person presence.

Under section 2(2) of BSA, all words and expressions not defined herein have been given the same meaning as defined under the IT Act, BNSS and BNS. The section is comprehensive and covers all words / expressions in these statutes instead of a few expressions defined in the IT Act.

Under section 4 of BSA, the principle of res gestae is made applicable both to fact in issue and relevant fact instead of fact in issue only. Res gestae are the facts that form a part of the same transaction automatically or naturally. They are the acts that speak for themselves. Section 6 of The Indian Evidence Act dealt with facts connected with the fact in issue so as to form part of the same transaction regardless of whether occurred at the same time and place. Under section 24 of the Evidence Act, confession was irrelevant if given under inducement, threat or promise only. In section 22 of BSA, ‘coercion’ has been added as a new ground rendering confession irrelevant.

An Explanation has been added to section 24 of BSA which clarifies that in a case where a proclaimed offender is tried in absentia (Section 356 of BNSS) jointly with other accused, confession of one accused may be used against others including the proclaimed offender. Official gazette in digital/electronic form is made admissible under section 31 of BSA. Use of law books in digital/electronic form is made admissible under section 32 of BSA. Under section 35 of BSA, a final judgment, order or decree of Tribunal is relevant. Previously the relevancy was only of final judgment, order or decree of competent court. Under section 39 of BSA, the scope of an expert has been expanded to include persons especially skilled in ‘any other field’ along with the previously defined skills under section 45 of the Evidence Act. Facts which need not be proved. Facts of which Court shall take judicial notice under section 52 of BSA has been modified.

The ambit of Primary Evidence under section 57 of BSA has been expanded to include the digital electronic record created or stored simultaneously or sequentially in multiple files, each file is primary evidence. Electronic record produced from proper custody if not disputed. Video recording simultaneously stored, broadcasted and transmitted to another device. Each of its stored recording is primary evidence. Electronic record automatically stored in a multiple storage space in a computer resource. Each automated storage is primary evidence. The scope of Secondary evidence has been expanded in section 58 of BSA to include the oral admissions, written admissions, and evidence provided by a person who is skilled in examining certain documents, which being technical or voluminous cannot be conveniently examined. Digital or Electronic records have the same legal effect, validity and enforceability as any other document as per section 61 of BSA.

Section 63 of BSA includes electronic records copied in semiconductor memory in addition to optical or magnetic media as provided in The Indian Evidence Act. It also enlarges the ambit of the provision by covering electronic records produced by any communication device or otherwise stored, recorded or copied in any electronic form (e.g., DVR, Flash Drive, CD/ DVD, Server, Cloud, etc.), and not produced by a computer only, as was the case in The Indian Evidence Act. Thus, the scope of devices through which electronic or digital records can be sourced as evidence has been enlarged. Section 63 of BSA outlines the requirements for submitting certificates which have been appended in “The Schedule”. Earlier, a certificate signed by a person in charge of the computer or management of relevant activities was sufficient. As per this provision, in addition to a certificate signed by the person in charge of computer or communication device, another certificate (as provided in the Schedule to BSA) duly signed by an expert must be submitted. The certificate shall contain details such as the kind of device, model, serial number, colour, hash value, etc. The expert’s certificate ensures authenticity of electronic record admitted in evidence. Who is an expert is not defined in the section. Section 79A of the IT Act defines ‘Examiner of electronic evidence’ as an expert. In addition thereto, section 39 of BSA permits opinion of persons specially skilled in ‘any other field’ which may include electronic evidence as expert evidence. 

As per section 122 of BSA, no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. The expression “or any time thereafter” has been added. The word “lunacy” has been replaced by “mental illness” under section 124 of BSA. Under section 138 of BSA, an accomplice shall be a competent witness against an accused person and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. This removes the inconsistency with illustration (b) in section 114 of The Indian Evidence Act  (section of 119 of BSA).

Section 165 of BSA disallows any court to demand production of any communication between ministers and President of India. It is not surprising that Prime Ministers and Finance ministers who have been promoting the economic interests of commercial czars desire to get themselves elected as the President to make themselves immune from prosecution for their acts of omission and commission.  

Dr. Gopal Krishna

The author is a lawyer and a researcher of philosophy and law. His current work is focused on the philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin-based International Research Group on Authoritarianism and Counter Strategies (IRGAC).