BNSS Highlights

Bhartiya Nagarik Suraksha Sanhita (BNSS) Bill, will replace the Criminal Procedure Code (CrPC) prevailing in the country. This bill was introduced in Parliament along with Bhartiya Nyaya Sanhita (BNS) which will replace the Indian Penal Code (IPC) 1860, and the Bhartiya Sakshya Bill which will replace the Indian Evidence Act (IEA) 1872. In my earlier blog of 14^th August 2023, I mainly wrote about the changes which have been proposed in BNS, and touched briefly on other bills. Today, I am writing about major changes which are being proposed in BNSS.

While BNSS addresses a range of serious issues like the Prevention of crime against women, child trafficking, and mob lynching. But a few new provisions have been added, which are trial in absentia, use of technology, mercy petitions, and other safeguards.

1 Trail in Absentia

The right of an accused to fully participate in the trial and offer a defence is part of the legal process. However, CrPC does not permit trial in absentia and only allows for the recording of evidence in the absence of the accused. With the proposed legislation, even if the accused is not present, the court can proceed to try the accused 90 days after the date on which charges are framed.

Notwithstanding anything contained in the BNSS or any other law, presently when a person declared as proclaimed offender, whether charged or not charged, has absconded to evade trial and there is no immediate prospect of arresting that person, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the court shall, after recording reasons in writing, in the interest of justice proceed with trial in the like manner and with like effect as if that person is present, under this the BNSS Section 356, and pronounce the judgment.

2 Greater Use of Technology

The Bill states that trials, appeal proceedings, and recordings of depositions including those of public servants and police officers may be held in electronic mode. The statement of the accused can be recorded through video-conferencing while the summons, warrants, documents, police reports, and statements of evidence can be done via electronic media. The Bill also allows the search and seizure of properties, articles, or things on a visit to a crime scene by a forensic expert, and the recording of the victim’s statement shall be audio-videographed, preferred on a mobile phone. The recordings will then be sent without delay to the District Magistrate Sub-divisional Magistrate or Judicial Magistrate of the first class.

3 Communication Devices

The Bill adds electronic communication including “communication devices” to the provision on summons to produce a document. It defines “ electronic communication” means the communication of any written, verbal, pictorial information or video content transmitted through a mobile phone, wireless telecommunication device, or a computer. Any device containing digital evidence can be considered and produced for the purpose of any investigation, inquiry, or trial proceedings.

4 Use of Handcuffs

The Bill states that a police officer may use handcuffs while arresting a person if the person is a “ habitual, repeat offender who escaped from custody, who has committed offence of organized crime, terrorist act, drug-related crime or offence of illegal procession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.

5 Mercy Petitions

There is a provision on procedures allowing a convict to file mercy petitions in cases of the death sentence. The convict has to file a petition within a period of thirty days after the date on which the Superintendent of the Jail informs the convicted person of the date of confirmation of the sentence of death. The BNSS Bill will do away with judicial review of decisions by the President on mercy petitions of death row convicts.  Under the BNSS Bill, the President’s decision on the mercy petition cannot be appealed. How the decision was arrived at can not be enquired into by any court.

Earlier, the Supreme Court (SC) held exercise of prerogative powers like clemency and pardon by the President and Governor may be challenged. Several death row prisoners have approached courts against rejection of their mercy please. Friends, you will recall the SC had held dramatic late-night hearings on appeals by Mumbai blasts convict Yakub Memon (2015) and Nirbhaya convicts (2020)- seen variously as a fair chance or as judicial activism.

The Bill also stipulates that in the case of many death row convicts in a case, their mercy pleas will be forwarded and decided together. If there is more than one convict in a case, the mercy plea can be made within 60 days, and where no such petition is received, the Jail superintendent can send the names, addresses, copy of the case record, and all other details to the Central or State government along with the original mercy petition.

The Bill seeks to give the Central government 60 days from the date of receipt of the State government’s comments on the mercy plea to send its recommendation to the President. However, no time limit is specified for the President to dispose of the mercy petition.

In my opinion, the Bill should have also recommended the time frame for the President to decide on the mercy petition.

This is a very proactive Bill that has come out from more than a century-old colonial past.

Waiting for your views on this blog.

Anil Malik

Mumbai, India

31^st August 2023