Arrest Under BNSS - A Careless Mistake Or Deliberate Accord Of Wide Discretionary Power
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
ARREST UNDER BNSS: A CARELESS MISTAKE OR
DELIBERATE ACCORD OF WIDE DISCRETIONARY POWER?
Avisha Singla, CT University
ABSTRACT
The new criminal laws (ie. Bharatiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita 2023, and Bharatiya Sakshya Adhiniyam, 2023) has been faced with numerous criticisms from the public and media for their bad drafting. The new criminal laws were criticized on the basis of wide discretionary power for police officers, deletion of 377 Indian Penal Code
1860 1, vagueness, and a threat of misuse2 etc. One of such criticism is based
upon the section 187 of Bharatiya Nagarik Suraksha Sanhita 2023 which replaced section 167 of the precursor act. The extension of 15 days ceiling for the first period of arrest was what which caused the unrest among the human rights activists3. When the new criminal laws were implemented, human rights activists were particularly concerned with this new provision (ie. Section 187 of BNSS) and protested the implementation of new laws4. They argued that the power of police officer under this section can result in the misuse of their discretionary power and opens up a scope for custodial violence. This paper aims to scrutinize the right related to arrest under the Bharatiya Nagarik Suraksha Sanhita 2023 and view section 187 of the BNSS in major case laws and provisions to ascertain whether the rights of an arrested person in the custody is being violated or not?
1 Anand Grover ‘The thoughtless section 377 IPC oversight in BNS’ The Leaflet June 28, 2024
https://theleaflet.in/the-thoughtless-section-377-ipc-oversight-in-the-bns/
2 Advocate Tanwar ‘critique of Bharaitya Nagarik Suraksha Sanhita’ July 13, 2024
https://advocatetanwar.com/critique-of-bharathiya-nagarik-suraksha-sanhita-2023/
3 Section 187 of BNSS
4 R. Sivaraman ‘Concerns rise over BNSS provision on police custody’ The Hindu, July 1
2024https://www.thehindu.com/news/national/concerns-rise-over-bnss-provision-on-policecustody/article68344538.ece
INTRODUCTION
The term arrest is not defined in Bharatiya Nagarik Suraksha Sanhita 2023, and was neither defined in the precursor act5. An arrest can be defined as restraining the freedom of movement by a legal authority.6 Chapter V of the BNSS 2023; from section 35 to 62 deals with the Arrest of persons7. The purpose of arrest is to prevent the accused from tampering from a kind of evidence; secure his presence during the trial; and also to prevent him from committing any other offence. While it makes sense to keep the accused in the custody we need to keep in mind that the accused is still a person and possesses every fundamental rights. Thus, the rights ensure that the person is not arrested illegally or arbitrarily.8 RIGHTS OF ARRESTED PERSON
1. Right to Remain Silent
‘Nemo Debet Prodere se Ipsum’ is a maxim which says that no one shall be bound or compelled to testify against himself. This maxim found its way in the Indian Jurisprudence through article 20(3) of the Constitution of India9. This maxim says that no person shall be compelled to be a witness and testify against himself. This right was upheld in the landmark case of Sathpathy v. P.L.Dani10 It was held that the accused has the right to remain silent and should not be forced to answer a question if it exposes his guilt. In the cases of Selvi vs. State of Karnataka11; and the State of Maharashtra vs. Bharat Chaganlal Raghani12 the Supreme Court upheld the right to remain silent during and after the arrest.
2. Right To Know About The Particulars Of The Arrest
Section 47(1) of BNSS13 says that the person who is arrested to be informed of the
5 Code of Criminal Procedure 1908
6 https://www.law.cornell.edu/wex/arrest
7 Bharaitya Nagrik Suraksha Sanhita 2023
8 Dr. Kalpna Sharma ‘What are the rights of an arrested persons?’ Last opened 5th November 2024 7:47 pm https://lc2.du.ac.in/DATA/Rights%20of%20Arrested%20person%20(Dr.%20Kalpna%20Sharma).pdf
9 The Constitution of India
10 AIR 1978 SC 1025
11 2010 (7) SCC 263
12 2001 (5) SCC 164
13 Section 47 of BNSS
grounds of arrest. The section provides that every police officer must inform the person who is arrested without a warrant about the particulars of his arrest. If a subordinate police officer is carrying out the arrest, he is obliged to inform the arrested person the substance of written order made by the senior police officer as per section 55 of the BNSS. This right is also conferred by article 22(2) of the Constitution of India.
3. Right to Bail
Section 47(2) says that every person who is arrested for non-bailable offence must be informed about his right to obtain bail and can make necessary arrangements for the surety of bail.
4. Right to medical practitioner
Section 51 of the BNSS says that the accused must be taken for a medical examination to a medical practitioner at request of the police officer. This section also provides that if the arrested person is a female the medical examination shall be carried out by a female doctor or a female medical practitioner.
5. Right to consult a legal practitioner and free legal aid.
The right to choose legal practitioner of his choice to an arrested person has been conferred by Article 22(1) of the constitution of India. In the case of AK Gopalan v State of Madras14 the supreme court upheld the importance of following the procedure laid down under article 22(1) for carrying out the arrest. Moreover, In the case of Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, Patna15 It was held that the person who is unable to hire a lawyer must be provided with free legal aid. In Khatri v state of Bihar16r the Supreme court held that the right to free legal aid is a constitutional right and state is obligated to fulfil this right of an indigent arrested person.
14 AIR 1950 SC 27
15 1979 AIR 1369, 1979 SCR (3) 532
16 (1981) I S C C 627.
6. Right to fair trial
It goes without saying that a fair trial would entail a trial before an unbiased judge, a fair prosecutor, and a peaceful judicial environment. A fair trial is one in which there is no bias or prejudice toward the accused, the witnesses, or the issue under trial. Additionally, a fair trial would not be granted if the victim, complainant, or witnesses were coerced into providing false testimony or threatened. A fair trial is unquestionably denied when relevant witnesses are not called. It goes without saying that a fair trial would entail a trial before an unbiased judge, a fair prosecutor, and a peaceful judicial environment. A fair trial is one that is held wherein bias or prejudice is either in favour of or against the defendant, the witnesses, or the case under trial.
7. Right to be produced before magistrate within 24 hours
In the case of Mohd. Hussain alias Julfikar Ali Versus State (Govt. of N. C. T. ), Delhi17 the Supreme Court held that if the accused produced before the magistrate must be informed about his right to free legal aid otherwise the right is futile and illusory. Article 22(2) provides a time limit of 24 hours period for the person arrested to be produced before the magistrate. SECTION 187 UNDER THE LIGHT OF LEGAL PRECEDENTS The precursor act empowers the magistrate to grant police custody up to 15 days if the investigation is not completed within 24 hours18 The present act made an change which allows the magistrate to extend the period of 15 days up to 60 days where the offence is punishable with at least 10 years of imprisonment the 15 days period can be spread up to 60 days or 40 days for any other offence.
19 This change caused unrest among the human rights activist as they are apprehended that this may pave the way to police taking undue advantage of the person in custody which might result in the violation of his right conferred upon him under Article 22 of the Constitution of India.
17 2012 (3) CCSC 1153
18 Section 167 Code of Criminal Procedure 1973
19 Section 187 of Bharatiya Nagrik Suraksha Sanhita 2023
Deliberate emphasis on 15 days There has been a history of legal precedents which set out to prevent the misuse of this section, and emphasized the period of 15 days as time limit for keeping the accused in a custody for any investigating agency under section 167 of CrPC. For example, in the case of Central Bureau of Investigation v Anupam J. Kulkarni. 20 In this case the Supreme Court held that the magistrate cannot extend the custodial period of 15 days of the accused under section 167 of the Code of Criminal Procedure, whether it is a judicial or police custody. In another case Kosanapu Ramreddy v. State of A. P. and others. 21 It was held by the court that the arrested person can be transferred to the police custody from judicial custody but the combined period of custody shall be 15 days. In the case of V. Senthil Balaji v.
The State Represented by Deputy Director and Ors22 it was held that the term custody under section 167 means both judicial and police custody, so the time limit is shared between any investigating agencies who takes the accused into the custody. Now, when section 167 of Code of Criminal Procedure 1973 is replaced by the 187 of Bharatiya Nagarik Suraksha Sanhita 2023. The time limit of 15 days has been severely undermined by those who drafted the new laws.
CONCLUSION
In the case of DK Basu vs State of West Bengal23 the court has emphasized the need and provided many guidelines to prevent the misuse of powers of the police and thereby violating the rights of the accused person who is in custody of the police. The 15 days’ time limit played a huge rule in ensuring that the arrested person is being treated well according to the laws. The judgment in the DK Basu laid out many guidelines which were later incorporated into the precursor act and still is being followed in the Bharatiya Nagarik Suraksha Sanhita 2023. Thus it is necessary for the drafters of the new criminal laws to ensure that they leave no scope of any kind of misuse of power by either police or magistrate. The wide discretionary power of
20 1992 AIR 1768, 1992 SCR (3) 158
21 AIR 1994 SC 1447, 1994 CRILJ 2121
22 Special Leave Petition (Crl.) No. 3986 of 2024)
https://api.sci.gov.in/supremecourt/2024/12721/12721_2024_6_1501_56009_Judgement_26-Sep-2024.pdf
23 AIR 1997 SUPREME COURT 610, 1997 AIR SCW 233
magistrate under section 187 might result in the violation of constitutional rights of the arrested person who is in the custody of police.