“Pre-cognizance” hearing under the BNSS, which is unknown to criminal jurisprudence, may likely lead to miscarriage of justice and could become a weapon in the hands of powerful, unscrupulous persons.
The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), replacing the Code of Criminal Procedure, 1973 (CrPC), made certain significant changes regarding taking cognisance of an offence by the magistrate in cases where victims/informants of a crime approach a judicial magistrate.
Under the CrPC, any aggrieved person had a right to approach a jurisdictional court under Sections 190 and 200, and upon inquiry under the prescribed form, the jurisdictional magistrate concerned would order for an inquiry/registration of FIR or would take cognizance of the crime and initiate a trial. Section 156(3) of the old code states that a magistrate who is empowered to take cognizance under Section 190 may order investigation for the cognizable offence. Upon a private complaint, the magistrate would use his judicial mind and discretion to see if a prima facie case is made out and take the next steps. The accused had no right of audience at this stage under the old code.
However, in the new code, a major change is that the accused person shall be given opportunity of being heard before taking cognizance of an offence or directing the police to register FIR and investigate. For lack of a better phrase, I will call it a “pre-cognizance hearing” – a right that is given for the first time to an accused person.
Section 223 of BNSS (corresponding provision is Section 200 CrPC) describes the procedure regarding examination of complainant, where sub-section 1 reads:
“A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
As a consequence, the magistrate cannot order for an investigation, though empowered under Section 175(3) of the new code [corresponding Section 156(3)] without giving the accused an opportunity of being heard; a right that is granted for the first time ever. Furthermore, magistrates are also statutorily obliged under Section 175(3) to consider submissions made by the police (for not registering an FIR) before ordering an investigation.
In the old code, accused persons were given a chance to be heard after cognizance is taken and before framing of charges. Though the new code appears to protect the interest of an accused person before any action is initiated against them, in confirmation with the principles of natural justice, in my opinion, the principle is not only misapplied at this stage of “pre-cognizance” but is also prone to adverse consequences, given the police’s approach to the judicial process in the past. This “pre-cognizance” hearing, which is unknown to criminal jurisprudence, may likely lead to miscarriage of justice and could potentially become a weapon in the hands of powerful, unscrupulous persons.
In the case of a public servant or a judge, the old code effectively provided blanket protection under Section 197 (now 218 BNSS) with a few exceptions. Sub-clause (2) of Section 223 of the BNSS enables any person to file a private complaint, but a pre-cognizance opportunity of being heard is given to the erring public servant along with a report from superior authorities of such public servant who is alleged to have committed an offence ‘in course of the discharge of his official functions or duties’. However, Sections 218 and 223 of the BNSS read together leads to a confusion. On one hand, Section 218 BNSS prohibits any court from taking cognizance of such an offence except with previous sanction, while Section 223 BNSS enables even a private person to prosecute a public servant as stated above.
It is well-settled that the procedure under Section 197 CrPC does not extend its protective cover to every act or omission of a public servant while in service, due to which several cases were earlier filed against public servants under the Indian Penal Code (IPC). Constitutional courts ruled in many landmark cases such as custodial torture cases, that abuse of authority by public servants cannot be called as official duty.
With the new procedure under Section 218 of the BNSS, though sanction from the competent authority is required, if the same is not accorded by the authorities within 120 days, sanction is deemed to have been obtained and the public servant or judge can be prosecuted. It is unclear whether sanction is required for complaints made by private persons under Sections 210 and 223(2) of the BNSS, as a ‘report containing facts and circumstances of the incident from the officer superior to such public servant’ as defined under Section 2(b) of 223 BNSS cannot be equated with ‘sanction’. Therefore, there is every possibility that a conflict between the above said provisions may likely hamper the judicial process until the same is settled by constitutional courts.
The doctrine of audi alteram partem (hear the other side) is a sound legal principle whose basic components inlcude issue of a notice; fair hearing; production of evidence; right to cross-examination by the defense; and right to engage a legal counsel.
If one must apply the above components in the light of the language used by the legislature under Section 223 BNSS in saying “no cognizance of an offence shall be taken by the magistrate without giving the accused an opportunity of being heard,” the accused person shall also have a fair chance of hearing by producing evidence and having the right to cross-examine witnesses by engaging a legal counsel for his defence. All of this, even before any investigation is done by the police and before a chargesheet is filed.
My problem with the pre-cognizance hearing of the accused in private complaints is mainly two-fold, as it violates the constitutional guarantees explained below:
1) Right against Self-Incrimination: That no person shall be compelled to be a witness against himself is a constitutional protection under Article 20(3) of the Constitution of India. What the new BNSS indirectly implies is that an accused person will prosecute the case with evidence on his side, that may later be used against him. Moreover, every person has a constitutional right to remain silent during investigation and even the trial, as the burden to prove a case is on the prosecution.
2) State’s duty upon individuals: A crime is considered an offence against society in general and not only against an individual. That is essentially the reason why the State acts as the prosecuting party in a criminal court on behalf of the victims and society at large. The State, with all its machinery, will investigate and assist the courts to decide a case and the courts give opportunity of fair trail to the accused. Therefore, a standard presumption is that no person is guilty unless proven otherwise and the burden of proof is always on the prosecution, with exceptions under a few special cases. It is this balance between the State and the accused persons that will ultimately lead to a just and proper judicial process.
As largely claimed in Parliament, the government’s intention behind the new criminal laws is to do away with colonial laws and to administer justice, not punishments. It was expected that the State machinery will become more robust and the criminal procedure will reduce the burden on citizens and victims. However, with the above provisions where the State’s burden is shifted to accused persons in a private complaint, it cannot be seen how the claimed intention can become a possibility.
On the contrary, a pre-cognizance hearing of the accused before the investigation is initiated hampers the criminal justice system and is prone to abuse by powerful criminals who can escape from prosecution. It is common knowledge that the police in India refuse to register FIRs even in serious offences. With the above changes, we only must wait and watch if the police and administration will abuse the new code or put it to proper use. The pre-cognizance hearing will only overburden the district judiciary as it could lead to multiplicity of proceedings before the charges are framed. It could also overburden the High Courts with quashing petitions under Section 528, BNSS (482 CrPC).
In the landmark case of Lalitha Kumari v. State of UP & Ors, the Supreme Court held that registration of an FIR is mandatory if the information discloses a cognizable offense and a preliminary inquiry is not mandatory. However, preliminary inquiry was permitted in specific circumstances such as matrimonial disputes, commercial offences, medical negligence cases, corruption cases and cases with abnormal delay in reporting. But the preliminary inquiry by the police should not be misunderstood as preliminary investigation and appreciation of evidence. The scope of inquiry was only limited to know whether a cognizable case is prima facie made out or not. With the new code, it is not yet known what is the scope of preliminary inquiry by the police and what is the scope of inquiry by a magistrate in a pre-cognizance hearing stage.
