This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the modifications proposed to the provisions pertaining to filing discharge applications and framing of charges under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
The BNSS has introduced maximum timelines for filing of discharge applications and framing of charges. Cl.250(1) introduces a sixty-day time limit for the accused to file a discharge application from the date of committal in a sessions triable case. For warrant cases instituted on a police report, Cl.262(1) stipulates that a discharge application can be filed within sixty days from the date of framing of charge.
Additionally, Cl.272 provides discretionary powers to Magistrates to issue thirty days’ notice to the complainant prior to discharging an accused in a ‘complaints case’. The current framework under s.249 CrPC does not envisage giving such notice to a complainant. Also, Cl.274 confers express powers to Magistrates to discharge an accused in summons cases; a provision absent in corresponding s.251 CrPC.
Similarly, in the context of framing of charges, Cls.251(1)(b) and 263(1) mandate that charges against an accused should be framed within sixty days from the date of first hearing on charge, in sessions and warrant triable cases. Further, Cl.251(2) permits framing of charges in virtual presence of the accused. These changes are focussed on reducing delays in the trial process by prescribing timelines.
I. Changes related to Discharge
a. Issues regarding timeline for Filing for Discharge in cases triable by Sessions Court
Unlike s.227 CrPC, Cl.250(1) BNSS expressly recognises the right of the accused to file an application for discharge and prescribes a sixty-day time limit to file it from the date of committal to the Sessions Court.
The introduction of a timeline may prima facie appear to be a positive move towards reducing delay in the trial process. However, it ignores systemic realities regarding pre-trial processes in our country that may defeat the exercise of this right. Firstly, accused persons often do not receive timely access to their case papers[1] and may not have legal representation at this stage in the criminal proceedings. Further, there is often a considerable time lag between the committal of the matter to the Sessions Court by the Magistrate and assignment of the matter to a Sessions Judge, for the production of the accused and the receipt of the records.[2]
While considering between discharge and framing of charges, courts have to consider whether there exists a “strong suspicion”, based on some material, to support a prima facie conclusion that the accused committed the offence.[3] Considering this standard and the burden on the accused to successfully argue their discharge application, this opportunity to file for discharge would be meaningless without addressing the issues regarding timely provision of case papers and ensuring early access to a lawyer for all accused.
b. Confusions regarding the procedure for Discharge after the Framing of Charges in Warrant cases instituted on Police Report
Corresponding to s.239 CrPC, Cl.262 discusses discharge of accused in warrant cases instituted on police report. However, it introduces a timeline for filing of an application for discharge by the accused, within sixty days after the date of framing of charges. By prescribing the procedure for discharge after the framing of charges, it swaps the order of these two distinct stages and defeats the purpose of filing for discharge.
The purpose of hearing on discharge prior to the framing of charges is to protect the accused from frivolous criminal process and to conserve judicial time. It is a settled position of law that once charges are framed, either on police report or through a complaint, the Magistrate has no power to discharge the accused.[4] Further, the implication of Cl.262(1) would be that the Magistrate must wait until the expiry of sixty days after the framing of charges, in order to give an opportunity to the accused to file an application for discharge. Therefore, this would prevent the Magistrate from proceeding with the trial after framing of charges.
c. Notice to Complainant for Discharge of Accused in ‘Complaint Cases’
Cl.272 BNSS provides the Magistrate with discretionary powers to serve thirty days’ notice to the complainant, before making an order of discharge in compoundable/non-cognizable cases, where the complainant is absent on the day fixed for hearing of the case. The corresponding provision under CrPC i.e. s.249 does not stipulate any requirement of notice to the complainant. Cl.272 ensures an additional opportunity to the complainant to make submissions opposing discharge, since an order of discharge and dismissal of matter by the Magistrate is not open for recall and reconsideration.[5]
d. Discharge in Summons Cases
Corresponding to s.251 CrPC, Cl.274 prescribes the procedure for the Magistrate to state the particulars of the offence to the accused and record their plea of guilt or hear their defence. The requirement to formally frame charges is absent in summons cases. Cl.274 introduces a new proviso which provides for discharge in case the Magistrate considers the accusation to be groundless.
Presently, courts have held that under Chapter XX of the CrPC, dealing with trial of summons cases, the Magistrate does not have the power to consider discharge or recall summons.[6] The only recourse available to the accused is under the extraordinary jurisdiction of the High Court under s.482 CrPC. However, through the addition of this proviso under Cl.274, powers of discharge similar to warrant cases have been introduced, which may allow for speedier resolution of summons cases, in case they are found to be baseless by the Magistrate.
II. Changes related to Framing of Charges
a. Issues regarding stipulation of timelines for Framing of Charge
Corresponding to ss.228 and 240 CrPC, Cls.251 and 263 BNSS prescribe a sixty-day timeline for framing of charges from the first hearing on charge, in trials before Sessions courts and warrant cases instituted on a police report, respectively. As mentioned above in reference to the timelines for discharge, without addressing the systemic issues and the gaps in institutional capacity, compliance with such timelines would be ineffective and unjust.
Amongst these, an important issue regarding the lack of timely access to legal representation at the stage of framing of charges, has received significant judicial attention. Recently, the Supreme Court has noted the lack of adequate legal representation at the stage of framing of charges in a few death penalty cases, and ordered a de novo trial.[7] It is important to note that in these cases, the Supreme Court has emphasised that expeditious disposal of criminal matters cannot be at ‘the cost of basic elements of fairness and opportunity to the accused’[8] and a hasty trial would be vitiated as ‘being meaningless & stage-managed’.[9] In cases that may result in life imprisonment and death penalty, the Supreme Court also laid down guidelines that adequate time should be provided to the lawyer for preparation on hearing on charge.[10] Another significant reason for the current delays in criminal proceedings is the high levels of vacancies in the subordinate-level judiciary,[11] which needs to be addressed in order to ensure just and fair compliance with such timelines.
Another implication of this provision would be on the practice of the police filing supplementary police reports (chargesheet). Corresponding to s.173(8) CrPC, Cl.193(9) permits the police to file supplementary police reports. As per settled law, courts must conjointly examine the preliminary and the supplementary police reports before the framing of charges, unless there exists an order passed by higher courts in exercise of their extraordinary jurisdiction to exclude certain documents or parts of the police report from consideration.[12] Since Cl.193(9) prescribes a ninety-day time limit for further investigation, it is unclear how this would affect the timeline for the framing of charges.
b. Issues regarding Presence of Accused using Electronic Means during Framing of Charges
In addition to the timeline for framing of charges, Cl.251(2) also introduces the option to produce the accused, either physically or through electronic means, so that the judge can explain the charges framed and record their plea.
Considering the importance of this stage in the trial process, courts have held that it is the duty of the judge to ensure the accused understands the charges framed against them before entering their plea.[13] Production of the accused through electronic means may assist with avoiding delays due to implementational issues such as lack of adequate police escorts for court visits. Also, in cases where there may be a security risk for the accused due to their physical production in court, production through electronic means may be seen as a useful alternative.
However, production through electronic means also raises several concerns that may adversely impact the right to fair trial of the accused. Firstly, considering the limitations of a video conference, the judge may be restricted in ensuring that the accused has understood the charges framed against them and is under no form of duress or threat[14] while entering their plea. Secondly, it is unclear whether the production through electronic means would be dependent on the accused’s preference or would be based on the judge’s discretion. As a corollary, it is unclear if the accused would have a right to insist on physical production, in case the court orders otherwise. Lastly, the effective implementation of production through electronic means would be dependent on ensuring adequate infrastructure and building the capacity of prison officials within central and district prisons across India (in case the accused is in judicial custody).[15] This would include provision and maintenance of sufficient number of computer devices, uninterrupted access to the internet, separate space within prisons for attending judicial proceedings, and adequate training of prison officials. Without addressing these systemic gaps, production of the accused through electronic means may severely affect the realisation of their fair trial rights.
[1] P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161 [17], [18], [21].
[2] The National Judicial Data Grid shows that currently there are 28,112 cases pending at committal stage. See: https://njdg.ecourts.gov.in/njdgnew/?p=main/index.
[3] Dipakbhai Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC 547 [15], [23].
[4] Chandi Puliya v. State of West Bengal 2022 SCC OnLine SC 1710 [7].
[5] A.S. Gauraya v. S.N. Thakur (1986) 2 SCC 709 [9] – [10].
[6] Subramanium Sethuraman v. State of Maharashtra & Anr. (2004) 13 SCC 324 [16] – [17].
[7] Anokhilal v. State of Madhya Pradesh (2019) 20 SCC 196 [21], [22], [31]: In this case, a legal aid counsel was appointed, the day before the hearing on charge. However, as this legal aid counsel was absent during the hearing on charge, a new counsel was appointed and arguments on framing of charges were heard immediately. Considering this, the Supreme Court held that the right under the ss.227 and 228 CrPC on discharge and framing of charges was denied to the Appellant and it ultimately ordered a de novo trial; Naveen @ Ajay v. State of Madhya Pradesh Criminal Appeals No. 489-490 of 2019, Supreme Court, judgment dated 19.10.2023, [18]-[21], <https://scourtapp.nic.in/supremecourt/2019/2764/2764_2019_4_1501_47778_Judgement_19-Oct-2023.pdf>, last accessed on 20.10.2023: This was another death sentence matter wherein following the reasoning in Anokhilal, the Supreme Court remanded the matter for de novo trial; Shambhu Nath Singh v. State of Bihar 2022 SCC OnLine Pat 173.
[8] Anokhilal [26].
[9] Naveen @ Ajay [16].
[10] Anokhilal [31].
[11] ‘India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid’, 2022, Pages 90 and 91: The lower judiciary had a significant vacancy with 19,288 judges serving against a sanctioned strength of 24,631, this indicates a vacancy of about 22% among the sanctioned posts.
[12] Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 [41], [42], [53].
[13] V.C. Shukla v. State through CBI 1980 SCC (Cri) 695 [110].
[14] Sahana Manjesh, Disconnected: Videoconferencing and Fair Trial, (Commonwealth Human Rights Initiative, 2020), Pages 16 and 17: Concern regarding the limitation of the judicial officers in ensuring that the accused is not under duress, or pressure in testifying against themselves was raised in the qualitative study which interviewed lawyers and judicial officers across the country to understand their experiences on the use of videoconference in criminal trials.
[15] Sahana Manjesh, Disconnected: Videoconferencing and Fair Trial, (Commonwealth Human Rights Initiative, 2020), Page 18: Concerns were raised regarding the connectivity and poor quality of audio and video by both lawyers and judicial officers when accused were produced from prison.
