Codification of Criminal Law (Part 2): The Cr.P.C. and BNSS

The previous post in this three-part series kicked off our discussion on the Indian criminal codes with a discussion on the Indian Penal Code 1860 and its 2023 counterpart. In this post, we turn to the procedural law underlying a bulk of the Indian criminal process: the Criminal Procedure Code 1973 [Cr.P.C.] which was replaced in 2023 with the Bharatiya Nagarik Suraksha Sanhita [BNSS].

Much like the previous post, here again the idea is to identify broad themes which have had, and continue to have, an impact on the legal system. In this post, I offer four such themes, which are kind of complementary to the previous post on the IPC.

Theme 1 — The Identity Crises within the Code

If you take a look at the BNSS or the Cr.P.C. 1973 (OK, fine, just the index), you may come away thinking what, exactly, are we dealing with here? Is this a policing law? An investigations law? A structuring of criminal courts statute? Or a law regulating criminal procedure and trial? Well, it is a law rolling all of these facets into one. In fact, it had even more bundled into it before the Indian Evidence Act was passed in 1872, and it was accompanied by different Presidency level acts on criminal procedure for a while too! 

The IPC has the lengthy Report of the Law Commissioners as a precursor which we can refer to for understanding some of the 'how' and 'why'. There is no comparable document when it comes to understanding the choices made for criminal procedure legislation in India. Sure, there are a few reports of the Law Commission dealing with this part of the codification journey, but nothing which spells out the rationale behind all of the choices, including the choice to craft a law which is dealing with so many different aspects under one roof. 

Not having a Report conveniently setting out this rationale does not mean there is none, and more enterprising scholars may look through the archive to find answers. Till they do so, I will proffer a guess, which is that the jumbling up of the Criminal Procedure Code stemmed mainly from the need to retain as much of the pre-existing regimes in place across British territories as possible for administrative convenience. And a key feature of this regime was the massive power vested in the office of the Magistrate. 

It was the office of the Magistrate which tied these threads together to weave one law of criminal procedure. If there is a sense of identity crises, it is due to the multiple roles that were played by Magistrates at the time: they performed executive as well as judicial functions. Naturally, then, the law would reflect this tendency. You had one part of the law deal with the purely executive functions of Magistrates, in taking bonds for keeping the peace and passing orders to maintain order and address emergencies. Then there was their control over investigations that are run by the police, which was again mostly an executive mandate - almost everything police did required reporting to magistrates, or would be done on their orders. Then we had the judicial part of their duties in the form of either running trials or committing cases to the sessions courts.

Unwieldy as it may be, the scheme of the criminal procedure code made some sense as a legal document speaking largely to the magistracy. Once that underlying basis goes, it becomes very difficult to justify this amalgamation of different pursuits under a single umbrella. After gaining independence, India progressively brought about a separation of the executive and judiciary and terminated the heyday of the magistrate in the letter of the law (spirit notwithstanding). However, absolutely no change was brought about to the scheme of the procedure code, which makes very little sense. Even with the BNSS no efforts were made to organise the law any better.      

The resulting problem is not just of poor design. The parts of the code which dealt with executive powers were drafted very differently from parts regulating exercise of judicial powers. There is a lot of leeway given for decision-making in the former, allowing for great misuse and abuse of wide discretionary powers. This may have made sense in a colonial setup where there was nobody superior to the executive, but it is entirely antithetical to a constitutional setup. In refusing to critically revisit the Code and resolve its identity crises, the Indian Parliament perpetuates this colonial tendency.   

Theme 2 — An Unfair Balance of Power

Which brings us to the second, related, point. The criminal procedure code was drafted at a time and place when the objective was to control subjects and not govern citizens. Famously, in the context of search and seizure clauses in the Code being overbroad, it was noted that the notion of 'rights' was absent from the considerations driving the Code. 

There is an imbalance of power, by design, within the document. It does not foster accountability in the exercise of state power. Instead, the scales are weighed in favour of the state, against the citizen. Provisions relating to exercise of discretion by an officer while performing tasks — police arrests, emergency provisions for magistrates, bail, etc. — appear to lay down some standards, but on closer scrutiny these words are hollow and confer a carte blanche upon officers. This phenomenon (in respect of executive power) has been written about by scholars like Nasser Hussain and Radhika Singha to criticise colonial lawmaking. The outcome is to create a system in which there is precious little that an ordinary individual can do in the face of oppressive state power besides submitting to it. 

There was no moment of reckoning at India's independence and adoption of Constitution for the 1898 Criminal Procedure Code. If the idea was that the Constitution would simply perform some magical blood transfusion, ridding the document of its oppressive tendencies, that did not come to pass. Neither did such a reckoning occur when the Cr.P.C. 1973 replaced the 1898 Code. Now, that trend has been continued by the 2023 BNSS.  

Theme 3 — The Rise of Special Criminal Procedure

The previous post raised this issue of the general versus special parts of the criminal law and how there have been calls for consolidation as part of reform measures for substantive criminal law in India. However, this premise of treating the general / special divide as a substantive law problem was questioned. Instead, I argue, it was and remains a matter of procedure. 

Over time, the oppressive nature of the general law was not oppressive enough. It guaranteed trials to defendants with a slew of procedural rights. Slowly, and steadily, we see that the colonial state became exceedingly unhappy in extending such procedures for mettlesome agitators, and began to introduce novel legislation with truncated trials before show courts. The highly political element charging special laws gave way to a realisation that it really was not ideal to have all kinds of cases adjudicated by the general law. Corruption, black-marketing, and other social ills in the first decade of independence got the special law treatment, where the fast-tracked and muscular procedure of the law was as important as the punishments being imposed. This trend has continued in the decades since, and its most recent avatars are laws like the UAPA, PMLA, NDPS, NIA Act, to name but a few.

What's interesting is that over time, even as special criminal procedure kept growing, it was not as if the general law remained static. It took turns to notably reduce many of the features which had made it so attractive (or unattractive) to defendants facing prosecutions. Committal hearings went out the door. Framing of charge became a process reliant on just the police papers and not sworn testimony. While the gap between them may have reduced, there still remained a slew of protections available in ordinary cases which were kept entirely away from some of the special law regimes. Perhaps the most important of these being the bar on confessions to police officers being tendered into evidence.

I would again reiterate that it is not the existence of substantive crimes in different statutes that is the problem, but this existence of special procedures to deal with some kinds of crimes. It gives obvious incentives to use some laws over others, and allows for obvious discrimination at the hands of government which can easily be masked using the language of state interests. And the problem flows from the Cr.P.C. / BNSS failing to codify any general non-negotiable rules. You can perhaps argue that it is ideally something left to the Constitution.                      

Theme 4 — 19th Century Trials, 21st Century Problems 

The 1861 Cr.P.C. and its colonial successors crafted a procedure for conducting trials which was fit for their times. In retaining wholesale the structures that were adopted for the 19th Century, notwithstanding the effort of the 1950s to try and chop off some corners, successive legislatures for independent India have ignored the obvious: that a 19th century design may not be eternally fit for purpose.

There is a lot to consider here, but let's take only a few examples. The Cr.P.C. adopts a funnel design for processing cases, asking the same question — should a case go to trial? — multiple times before actually starting trial. This might have been beneficial at a time when there were not that many cases clogging the docket, but not anymore. Especially, because a funnel design can easily collapse into farce: There is no point asking the same question if you will mindlessly give the same answer each time, with the case just taking more time to plod along.

Then there are the specifics for trials. It made sense to have different procedures 'warrant' and 'summons' cases in an era where there was a marked difference in their seriousness. But over time the gravity of summons cases increased, leaving only 'summary' trials for cases that are of a comparably lesser gravity. So why retain three categories for magistrate trials? Especially as in many statutes permitting summary trials, there is an option to shift a trial to the other track. Why not retain a unified process for trials before magistrates, which would eliminate a lot of confusion as well as arbitrary procedural gimmicks that continue to trouble courts and provide avenues for delays? No answers forthcoming in the BNSS, unfortunately.

It sounds like stating the obvious, but it needs to be said out loud: trying to solve 21st Century problems using 19th Century legal procedures is doomed to fail, even if you try and do it using video-conferencing or other digital means.                           

Concluding Remarks

In the first years after independence, the Home Ministry of the Central Government produced an interesting memo in which, it was argued, that the existing procedural setup may not be suitable for independent India with its teeming caseloads and delays. There were two paths available, the memo noted: Burn the existing system to the ground and come up with a new one, or make some necessary amendments for now and kick the can down the road. The latter approach was preferred and led to changes in 1955 designed to speed up the process (and punish perjury). 

Over the next two decades, you can see this initial debate flickering in the background as there is a review of the entire legal process by the Law Commission followed by specific reviews of the criminal procedure code by that Commission. Unsurprisingly, the appetite for radical reform had only reduced, resulting in the 1973 Cr.P.C. which, barring a couple of truly radical moves like a clause for default bail, was content in retaining the existing procedures. 

The BNSS has chosen to further this legacy by retaining the 19th Century procedures well into the 21st, and blissfully hoping for different outcomes merely on the strength of non-enforceable timelines and the promise of technology. We do not know what discussions led to drafting the BNSS, as the government is yet to release the reports, and so can only wonder whether any prospect of radical reforms ever raised or has that flickering flame of the 1950s and 60s been snuffed out.  

Guest Post: Attachment without Safeguards? Section 107 of the BNSS

(This is a guest post by Dhruvika P)

Recently various High Courts across the country have clarified that the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) does not permit unilateral police action under Section 107 of BNSS. In Headstar Global Pvt Ltd v. State of Kerala, the Kerala High Court held that the attachment of property cannot circumvent procedural safeguards and judicial scrutiny. In this case the move to freeze bank accounts under Section 107 of the BNSS without referring it to a magistrate was held to be clearly impermissible. The High Court also distinguished between Section 106 (seizing of property by police) and Section 107, affirming that under Section 107 attachment can only be ordered by a magistrate. Similar concerns have been addressed by the Delhi and Bombay High Courts. Following the reasoning of the Kerala High Court observing “blanket freezing” of bank accounts violates fundamental rights under Article 19 and 21. Seemingly, these rulings appear to reinforce procedural safeguards by judicial oversight. However, they raise a deeper and more troubling question: does involvement of a magistrate in attachment reasonably constraint exercise of arbitrary authority, or does it merely formalise a weakly regulated framework?

This post argues that Section 107 of the BNSS, despite requiring Magistrate approval, continues to enable broad and less regulated powers of attachment. In fact, compared to the much criticised Prevention of Money Laundering Act, 2002 (“PMLA”), the BNSS attachment regime lacks comparable safeguards and accountability mechanisms. Further leading to a paradox of how general procedural law is permitting attachment with fewer safeguards than a specialised penal statute. By examining Section 107 through the lens of the PMLA, this piece contends that judicial involvement alone does not cure the underlying defects in the BNSS framework. Instead, the statute allows exercise of excessive discretion thereby raising serious concerns about constitutional guarantees of fairness, proportionality, and due process.

Attachment: From CrPC to BNSS

The Code of Criminal Procedure (“CrPC”) contained limited provisions for property attachment. Section 83 dealt with attachment of property of proclaimed offenders and Section 102 allowed for seizures of movable property and bank accounts. As compared to CrPC provisions, Section 107 of BNSS introduces broader powers for attachment of proceeds of crime.

However, the BNSS does not clearly define the term "proceeds of crime" within the operative provision itself. Instead, reference must be made to Section 111 which appears in a different chapter dealing with reciprocal arrangements and procedures for attachment and forfeiture of property. According to this, “proceeds of crime” encompasses property derived directly or indirectly from criminal activities. This structural displacement creates interpretive ambiguity, as it is unclear whether the definition is intended to apply uniformly across the statute. The absence of an explicit and clear definition under Section 107 creates gaps in the definition and authorises for a broader application of this definition by investigating officers.

This ambiguity becomes significant when contrasted with the PMLA definition. PMLA is a special statute for serious economic offences and provides clear definition under Section 2(1)(u) which defines proceeds of crime comprehensively to include property derived from or generated from criminal activity related to scheduled offences (and includes property of equivalent value). 

Despite their different purposes, both the BNSS and the PMLA empower the State to attach property at the pre-trial stage. While the underlying objectives may differ in both the statutes, the means through which this power is exercised, that is the procedural framework governing attachment are structurally similar. This similarity of provisions has also been argued in Pay 10 Services Private Limited v. Union of India to prove consequences of attachment under BNSS. It is this convergence in procedure that provides a room for comparative analysis between BNSS and the PMLA provisions on attachment.

Procedural Safeguards: A Comparative Analysis

According to Section 5(1) of the PMLA property can be attached where the Director or any other officer not below the rank of Deputy Director authorised by the Director believes it to be proceeds of crime. The reason to believe has to be based on material in their possession. In contrast, according to Section 107(1) of the BNSS a police officer investigating with the approval of the Superintendent of Police or Commissioner of Police, may make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for attachment of proceeds of crime. Further according to Section 107(2) if the Court or Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, it may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.

Procedurally, Section 5 (1) PMLA provides more safeguards as compared to BNSS 107(1) & (2). According Section 5(1) of PMLA, the reasons for attachment have to be in writing and only an officer not below the rank of deputy director can attach. BNSS provision lacks explicit mention of written explanation and allows the magistrate to attach if they have reasons to believe. There are two concerns in BNSS. First, absence of explicit mention of written explanation. The Supreme Court in Kranti Associates Private Limited v. Masood Ahmed Khan has reiterated that “reason is the soul of justice”. It was also noted that reasoning should not be done merely for the sake of procedure but it must be done to serve the wider principles of justice. Second, the procedure to seek approval is unclear. It merely states that approval must be sought from the Superintendent of Police or Commissioner of Police but does not prescribe the manner, standard, or material basis for such approval. The vagueness of this requirement may result in approvals being treated as a mere formality.

Concerns with Adjudication of Attached Property

With regards to adjudication of attachment, PMLA under Section 8 empowers an adjudicating authority to decide these issues. BNSS empowers the court and the magistrate to decide such matters. Under PMLA there is a period of provisional attachment of 180 days. If the adjudication is not completed under 180 days the provisional attachment order becomes void. However in BNSS, there is only a period of 14 days to reply to the show cause notice if issued by the court or the magistrate, post the 14 days period an ex parte attachment or seizure of such property can follow, and it shall remain in force till a distribution order under 107(6) is passed.

Both the statutes deprive an individual’s right to enjoy property. In PMLA it is temporarily for a period of 180 days without any justification. The BNSS does not specify any time limits or mandatory review mechanisms. It is unclear and arbitrary in BNSS. PMLA’s framework includes specific provisions for modification or revocation of attachment orders. Section 5(5) allows affected persons to apply for order modification. BNSS lacks at least similar provisions, leaving remedies to general appellate mechanisms under the code.

In this light, the BNSS attachment provisions seem relatively ambiguous and underdeveloped in terms of procedural safeguards when contrasted with the PMLA framework. This procedural ambiguity regarding adjudication under BNSS also hampers judicial decisions that have established practical guidelines for the custody and disposal of property seized during criminal proceedings under CrPC regime.

Constitutional Standards and the Draconian Risk

The constitutional validity of Section 107 must be seen against the guarantees of Article 14 and 21 along with constitutional right to property. As established in EP Royappa v. State of Tamil Nadu, arbitrariness is antithetical to equality, and any arbitrary state action necessarily violates Article 14. This principle was subsequently strengthened in Maneka Gandhi and its just fair and reasonable standard. Section 107 BNSS, when tested against this standard, raises three at least concerns. First, absence of a mandatory requirement to record reasons at the investigative stage creates a risk of arbitrariness. Second, lack of clear thresholds guiding approvals, resulting in an open-ended and weakly-structured check. Third, lack of review mechanisms allowing for prolonged and disproportionate deprivation of property. Hence, these deficiencies also dilute the quality of judicial scrutiny itself.

The decision in Vijay Madanlal Choudhary v. Union of India further strengthens the case against Section 107. The Supreme Court’s reasoning to uphold the constitutionality of the PMLA attachment provisions, despite its severity rested on the structured safeguards within the PMLA framework. Section 107 BNSS, by contrast, replicates the coercive effects of attachment without incorporating equivalent safeguards even that of PMLA. As a general procedural provision, it cannot rely on the same exceptional rationale that underpinned the Court’s reasoning in Vijay Madanlal.

Conclusion

A more balanced attachment framework under Section 107 of the BNSS may be developed that requires states to ensure attachment of proceeds of crimes are complemented by adequate procedural safeguards. International scholarship suggests that these concerns are not unique to India. Modern attachment regimes struggle to harmonise between asset recovery and guarantees under rule of law. In AGOSI v. UK, the European Court of Human Rights held that in the confiscatory process, authorities must maintain a “fair balance” between public interest in combating crimes and protection of individual property rights. 

Legal developments in India indicate a need for attachment frameworks to retain sufficient procedural safeguards along with their effectiveness in attaching “proceeds of crime”. By explicitly mentioning recorded reasons, ensuring adequate judicial review, and providing meaningful opportunities to challenge attachment, the new BNSS attachment regime can avoid structural weaknesses that render a general criminal procedural law draconian.

Guest Post: Renumbering as Repeal? The Allahabad High Court on the interplay of BNSS with the SC/ST Act

(This is a guest post by Ammar Shahid)

Two orders from the Allahabad High Court raise a peculiar question: does the bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act“) continue to operate now that the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) has replaced the Code of Criminal Procedure, 1973 (“CrPC“)?

In Dinesh Kumar Srivastava v. State of UP (December, 2025), the applicant faced an FIR under Sections 376, 506, 406, 323, and 504 IPC along with Section 3(2)(v) of the SC/ST Act, arising from allegations of a relationship formed on the matrimonial website jeevansathi.com allegedly on a false promise of marriage. He sought anticipatory bail under Section 482 of the BNSS. The informant’s counsel opposed this on the ground that Section 18 of the SC/ST Act barred it. The Court disagreed, holding that firstly, Section 18 specifically refers to “Section 438 of the Code” and anticipatory bail applications are now filed under Section 482 BNSS, the bar had no application. Secondly, the Court held that prima facie the material on record did not establish an offence under Section 376 IPC, given that the relationship appeared consensual. The petition was allowed, and bail granted.

Next, Sushil Kumar v. State of UP (May, 2026) arose from rejection of an anticipatory bail application solely on the ground of Section 18. The alleged facts involved a commercial dispute over unpaid sale consideration for food grains, accompanied by an alleged assault and caste-based insult. The High Court set aside the trial Court’s order on two grounds. The first was the trial Court’s failure to consider the principle laid down in Prathvi Raj Chauhan v. Union of India, where the Supreme Court held that courts retain the power to grant pre-arrest bail in SC/ST Act cases where prima facie the ingredients of the Act are not made out. The second was the BNSS transition argument drawn from Dinesh Kumar Srivastava. The High Court held that these two factors had not been considered by the trial court, and sent the matter case for fresh consideration.

Section 8 of the General Clauses Act

Section 8 of the General Clauses Act, 1897 provides that where a Central Act is repealed and re-enacted with or without modification, references in any other Central Act to the repealed enactment shall, unless a different intention appears, be construed as references to the corresponding provisions of the re-enacted legislation.

Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.

Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.

The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.

What the 2018 Amendment Tells Us

The legislative history of Section 18 adds important context. In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court permitted anticipatory bail in SC/ST Act cases subject to certain conditions. Parliament responded within months by enacting the SC/ST Amendment Act, 2018, inserting Section 18-A which, among other things, reinforced the bar on anticipatory bail. Parliament actively closed a space that the Supreme Court had opened (which it has, since, reopened - more on that below).

The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.

The Prathvi Raj Chauhan Exception

Both decisions also place reliance on the principle formulated by Prathvi Raj Chauhan, where the Supreme Court held that in cases where no prima facie material exists to make out an SC/ST Act offence, Courts may grant pre-arrest bail through inherent jurisdiction under Section 482 CrPC. This reading of Prathvi Raj Chauhan, however, is broader than what the judgment actually supports.

The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.

Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.

This issue is also visible in Dinesh Kumar Srivastava. The Court's own prima facie analysis found no offence under Section 376 IPC on the basis that the relationship appeared consensual and no force was alleged. But the Prathvi Raj Chauhan threshold is directed at the absence of SC/ST Act ingredients from the face of the FIR, not at the tenability of a connected IPC charge. Where an FIR contains specific allegations of caste-based insult or harassment, as it does in both the decisions under discussion, it is not obvious that the threshold for invoking the inherent jurisdiction exception has been crossed. Hitesh Verma v. State of Uttarakhand, which Sushil Kumar itself cites, reaffirms that the bar under Section 18 is absolute where SC/ST Act offences are prima facie made out. Citing Hitesh Verma while simultaneously remitting for fresh consideration of anticipatory bail, without a definitive holding on whether SC/ST Act ingredients are absent from the FIR, creates a real tension that the judgment leaves unresolved.

Conclusion

The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.

The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.

[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]

Coming to grips with the BNSS on matters of Custodial Remand

One of the more significant changes to Indian criminal procedure brought about by the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] is the regime governing remands to police custody during an ongoing investigation. 

As those familiar with the legal regime may know, Section 167(2) of the erstwhile Criminal Procedure Code, 1973 [Cr.P.C.] had been read by courts as casting two rules: (1) permitting a maximum 15 days of police custody remand during investigation (found clearly within the statute) and (2) allowing this remand to be granted only in the first fifteen days after an arrest. The BNSS has retained rule (1), and modified rule (2). Section 187 of the BNSS now permits the 15 days of police custody to be sought at any point of time within the first forty or sixty days of arrest, depending on the severity of an offence.

I'm not interested in the debates about whether this relaxation of the first fifteen days rule is good policy or bad. Instead, I wanted to flag an issue of some practical relevance arising from the changes to this regime, which has received surprisingly little attention. This is the impact on legal strategy for opposing remand and seeking bail, and pre-trial custody more generally.

Police custody remand is widely understood and accepted as being the critical investigative step in cases. It allows police practically unregulated and unhindered access to an accused for questioning in a coercive setting — since lawyers aren't permitted to participate in the questioning process. The outcome of police custody is often a confession of some sort, which leads to further clues. Usually, requests for such custody would be granted for short periods — so if police ask for a week, they normally get 3 days in which they get done whatever is needed, and come back to ask for more custody if needed.

Because of the importance wielded by police custody remand, lawyers in the grand-old Cr.P.C. days would not file for bail in serious crimes till it was clear that police custody remand was over. In most cases, this meant waiting out the first fifteen days period, and then moving for bail, because even if police had not sought police custody for that entire period, they could no longer seek such custody due to the first fifteen day rule. Courts also understood this logic and it would be an active consideration for deciding bails — if no further police custody remand was possible, it was understood that further pre-trial custody had no real investigative purpose. 

Now, though, police custody can theoretically be sought for and granted at any time till forty or sixty days of an arrest. For an rational investigator, it would make sense to not exhaust the total police custody period in the first fifteen days. This places both judges and lawyers in a bind, because now you cannot reasonably argue that there is no investigative purpose for further custody till forty or sixty days after an arrest.

How will this play out in the medium to long term? Custody periods may lengthen; some guidance may come from appellate courts on how magistrates should treat requests for police custody made belatedly, It may well not lead to any change at all, as police may rarely, if ever, ask for that period of remand that they may have been left with.        

BNSS and Pre-Cognizance Right of Hearing for an Accused — A Case of Perplexing 'Reform'

Going by publicity announcements surrounding the BNSS both inside and outside Parliament, one of the main reasons for ditching the 1973 procedural code was because it fostered delays in cases. With the incoming BNSS, the government boldly announced that cases will not take longer than two years to conclude. 

Not many criminal lawyers took that seriously upon reading the BNSS and seeing that it had retained the older model almost entirely. And, when it comes to cases instituted upon private complaints, lawyers had realised that the changes made to the old scheme by Section 223 of the BNSS would decidedly have the opposite effect. 

This post looks at what has been the effect of Section 223 on the ground in the year or so that has gone by since introduction of the BNSS in July 2024. My aim is to show two things here. First, explain the change made by BNSS to the older regime, and how the new scheme goes against the statute's professed reformist logic. Second, show how courts have dealt with the clause and how this engagement (so far) has only complicated the law further and made trials even slower.   

What did the BNSS Change in Private Complaint Cases

Even with introduction of the BNSS, Indian criminal procedure continues to follow a funnelling model for proceeding with a case. There are multiple stages of judicial scrutiny over the same matter, which increase in intensity with each successive stage that a case passes. The stages are: (1) Cognizance --> (2) Summoning --> (3) Charge and --> (4) Trial. In theory, this ensures that only the 'good' cases go ahead for trials, and winnows out the 'bad' cases without wasting more time on them.  

There was never a doubt about hearing the accused at the stages of charge and at trial. There was also no doubt about not hearing either complainant or the accused at the stage of cognizance. Doubts existed with respect to hearing an accused at the stage of summoning in private complaint cases, where the complainant had a clear right of audience. A decade of uncertainty around this issue was clarified by the Supreme Court decisively holding in 2002 that an accused had no right of audience at this stage and could prefer appellate remedies if so desired [see here for a longer discussion]. 

This scheme made some sense. Cognizance entailed no hearing as such and only required judicial scrutiny of the file to determine if something was totally amiss. Summoning came later, where a court would hear the complainant to determine if there were reasonable grounds to summon the proposed accused. Then you had a full-blown hearing at charge with both parties engaging with the court, and finally trial where the accused could even introduce evidence (not permitted earlier).

Now, the BNSS has upended this scheme, with Section 223(1) stating as follows:

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

Compare Section 223 with Section 200 of the old code, and you will see that the "provided that" part was not there earlier. 

Why do this? No answers can be found in the reports of the parliamentary committee or in parliament. No reports of the super secretive Criminal Law Reforms Committee have yet been published (maybe when the BNSS is repealed, perhaps) to know if that Committee had sponsored this amendment. If we were to go and assume reasons, then the only probable one is that this enables winnowing out the frivolous cases. This argument may seem ok if the cognizance stage is viewed in isolation, but makes no sense when we look at the system as a whole which provides ample opportunity to wean the bad cases out later. 

The need to ask for a reason behind this change comes only because this is so obviously contradictory to the entire point of making the process move faster. Earlier, cognizance was a non-affair. Now, it will take many more dates of hearing, as an accused will first have to be called to court and then heard as well. The resulting delay is precisely why the Supreme Court has now gone ahead and willy-nilly excluded an entire set of criminal cases relating to dishonour of cheques from this regime [discussed here]. 

A perplexing reform if there ever was one.   

Judicial Engagement with Section 223 and the Eternal Mystery of Cognizance

It is not uncommon to find mountains of paper being spent by thinkers about rather banal, or if not banal then seemingly inconsequential issues framed as life's eternal mysteries. Most people, other than those thinkers, would probably find the exercise a bit of a waste of time. The same could be said about how the idea of taking "cognizance" of an offence continues to occupy so much space in Indian criminal procedure. A lot of the blame for this lies with the Supreme Court which has complicated the issue giving chances for wealthy litigants to contest this non-event in the life of a case all the way up to the apex court, and win! [see here]

The already existing plethora of precedent on the issue can be divided across three issues: (i) when does the right of hearing accrue, (ii) what is the extent of the right, and (iii) in what kind of cases does it apply.

Lets look at each of these areas in turn. The first issue arises because Parliament did not bother to change the active voice ("while taking cognizance of an offence ...") in the phrasing of old Section 200 while inserting this new right of hearing through an addendum. This meant that the old metaphysical quandary of when did the court actually take cognizance remained unresolved in the statute, while giving a right of hearing to an accused before taking cognizance. 

This issue had already led to litigation in the past, creating two streams of case law that were never quite fully resolved. One view was that cognizance can be taken the first time a judge took up the case file, before examining the complainant and other witnesses, upon being satisfied that ingredients of the offence exist. Another view was that cognizance was taken at some stage during examination of the complainant or at its end, but not upon mere receipt of the case file. As you can see, both views entail different consequences for the pre-cognizance right of hearing — in the former, it takes place before the complainant is examined and the court only has the case file to go by, and in the latter it takes place after the witnesses have also been examined giving more material on record.

The two views also have a bearing on the second area identified above: what is the extent of the right of hearing for an accused. Is the accused simply to be asked questions without being given any document? Can the accused be meaningfully heard by a court without having examined the complainant? If the accused is to be heard with supplying documents, then can the accused ask for time to study the same and then make detailed submissions; even go so far as to seek (or supply) copies of additional documents that may be missing in the complaint? Does a court need to pass a detailed order dealing with all the submissions of an accused also at this stage?

All of these issues could have been dealt with if Parliament thought through the new right that it was conferring. Maybe debates in Parliament would have helped. But that ship has sailed, for now at least. This has led to courts answering the above questions, in a surprisingly consistent tone for the most part without dealing with the unresolved issues that their interpretive choices are creating:

• When does the right accrue? Almost all High Courts [Kar HC, Delhi HC, All HC, Ker HC, Gau HC] have so far held that before inviting the accused to be heard, the court should have examined the complainant and other any other witnesses. In doing so, they have clearly gone with the view that cognizance is not taken merely upon receipt of a private complaint case, but have changed the inherent fluidity of that view by fixing the stage of cognizance as necessarily after the examination of witnesses.
• To what extent does the right accrue? Again, High Courts have stressed on the innovation made by the BNSS and reasoned that Parliament could not have conferred a token right of hearing, and that the clause must be interpreted to confer a 'meaningful' right of hearing. This entails sharing papers with the accused and dealing with their objections before taking cognizance [most clearly mentioned by the All HC here]. At the same time, there is no discussion of why a court must pass a lengthy order at this nascent stage when such detailed orders need not be passed when summoning an accused and framing charges.
• As yet, issues of whether an accused can ask for copies of materials seemingly missing in the complaint or show documents seemingly suppressed by the complainant do not appear to have reached High Courts, but they are certainly being litigated at the trial courts. It may be noted that one of these issues was flagged before the Supreme Court (here) but it was not dealt with at the time.

The third area of what cases does this new pre-cognizance right extend to was interesting given the drafting of the clause, but has been made more interesting by developments in the Supreme Court. The BNSS retained the old 1973 code's approach of treating complaints lodged by public servants disclosing commission of crimes differently from complaints by ordinary citizens. While there is a need to examine the ordinary citizen complainant, this requirement is dispensed with if the public servant is filing a complaint as part of their official duty. You would think, then, that the need for any pre-cognizance hearing would also be eschewed for such scenarios, seeing as they are more similar to cases lodged by police than to cases lodged by private complainants.

The Supreme Court when presented this question in context of complaints by the Directorate of Enforcement filed under the Prevention of Money Laundering Act 2002 held otherwise and, surprisingly, without any real contest by the government. This has meant that the entire gamut of cases which are filed on a complaint by public servants — there really are several such statutes — now have an additional step in the trial process, elongated them further. Within this area, the Supreme Court is yet to address the additional issues that had been flagged at the outset by the government such as what happens when a supplementary complaint arraigning more people is filed, and what kind of material can be considered at this stage. The supplementary complaint issue has reached High Courts though, where orders have extended this pre-cognizance right of hearing to such scenarios as well.

Whether the Supreme Court will remain wedded to this approach of extending the general law as found in the BNSS to special laws where cases are instituted on private complaints is not a certainty anymore, though. As mentioned above, the Court recently excluded offences of cheque dishonour from this regime on the logic that these were under a special law which will not attract general law, without really any reasoning. Considering that the exclusion of cheque dishonour cases was more based in pragmatism than legal reasoning, it will not be surprising to see some refinement in the Court's approach if serious speed-bumps are perceived in other areas.

An interesting follow-on issue which the extension of pre-cognizance hearings for cases lodged on complaints by public servants is a constitutional one. If this right of hearing accrues to a case investigated by some law enforcement agencies, then why not all? In other words, why should the same right not be extended to police cases? Surely one cannot say that frivolous or even downright vexatious cases are not filed as a result of investigations by police. So if the idea was to ensure conferring a meaningful opportunity to an accused person to prevent them from being dragged into vexatious litigation, and now the Supreme Court has clarified that it extends to even cases investigated by law enforcement agencies, then do we not have an Article 14 problem on our hands?

Section 223 BNSS has thus ensured that cognizance does not pale into irrelevance as we carry on in the 21st Century but that it gives rise to much more litigation, reopening old questions and creating new ones. Nobody but the lawyers are rejoicing at the prospect.        

Celestium Financial and the Inconsistent Fabric of Our Criminal Law

In April, a Division Bench of the Supreme Court handed down the judgment in Celestium Financial [2025 INSC 804]. It did not generate much publicity at the time given its rather dry subject-matter — the right to appeal of complainants in cheque bounce cases — but in the months since April, the judgment has caused much upheaval across criminal courts. 

Prior to Celestium Financial, a complainant aggrieved by an acquittal in a cheque bounce case under the Negotiable Instruments Act 1881 could only challenge it under Section 378 of the 1973 Code [Section 419 of the BNSS]. This provision [378 / 419] detailed the process for a 'complainant' in a case instituted upon a complaint to challenge an acquittal before a High Court. You sought leave to appeal before the High Court. If the High Court declined leave, the matter ends; if it grants leave, then the appeal get registered and the acquitted-accused is summoned as party respondent. This procedure for complainants was different, and arguably more onerous, than the procedure for accused parties, who could file an appeal against convictions as a matter of right before the sessions court (a level below the High Court in the judicial hierarchy).

Celestium Financial upended this scheme by refusing to look at Section 378 Cr.P.C. / 419 BNSS in isolation, but as part of the chapter on appeals in the relevant statutes. This approach required the Court to harmonise the text of Section 378 / 419 which stipulate a specific process for appeal by aggrieved complainants, with the text of Section 372 Cr.P.C. / 413 BNSS which by a proviso inserted in 2009 conferred a right of appeal upon all victims against any order of acquittal and stated that such appeals go to the court which ordinarily heard appeals against conviction. As a complainant in a cheque bounce case was also a 'victim', the Court felt there was a contradiction in terms because Section 378 worsened this vested right of victims by creating stipulations and conditions on its exercise. The Court has harmonised the conflict by declaring that the right of complainants in cheque bounce cases to appeal against acquittals also flows through Section 372 / 413, and so they can file appeals before a sessions court and need not pursue matters in the High Court.

The ambiguity in the Court's expressions of how complainants / victims may avail their right to appeal — hinting that they still have an option to choose the court — as well as the result of Celestium Financial now opening an additional forum for litigation has created some confusion which will take time to resolve. That is not what I want to discuss here and will hopefully be able to discuss when the eventual resolution does take place through our courts. Instead, this post touches upon two separate aspects of the decision, which are united in how they speak to a larger issue of inconsistency within the fabric of our criminal law.                

The Nature of Cheque Bounce Offence

In 1988, Parliament amended the Negotiable Instruments Act, 1881 to make dishonour of cheques an offence punishable with jail time. The goal was to deter persons from dishonouring cheques by making it a crime and prosecuting it by a speedy process. While the jury may still be out on whether the amendment reduced dishonour of cheques, there is absolutely no doubt that trying to achieve this goal through criminal prosecution has not worked out. Cases do not end speedily, are not prosecuted properly, and have created an insurmountable burden of arrears in courts. 

The fact that the offence was added only to enhance civil contractual rights, and the chequered history of such prosecutions, meant that there slowly emerged a view across the board which acknowledges that the offence of dishonouring a cheque is not really a crime. Sure, it is made punishable by statute, but that is about it. The offence does not come with trappings of what makes conduct truly criminal. In recent time, the most forceful exposition of this view came in P. Mohanraj v. Shah Brothers Ispat [AIR 2021 SC 1308]. A Three Justices' Bench of the Supreme Court labelled the prosecution as a 'quasi-criminal' proceeding, and the offence a "civil sheep" in a "criminal wolf's" clothing. Why did it matter? In P. Mohanraj, this view that a cheque bounce offence was not really a crime led the Court to conclude that such cases ought to be included within the ambit of beneficial provisions placing moratorium on civil litigation against a corporate debtor. In other words, there were consequences flowing from a proper criminal case which the Court felt was not appropriate to extend it to the cheque bounce prosecution. Adopting this prism would mean raise questions on other consequences as well, such as what would happen to the right to avail a passport, the right to stand for election, to vote, and so on.

P. Mohanraj was on shaky footing in this regard, though. While it made sense to the Court (and to many observers) to not view the cheque bounce case as a crime proper, unfortunately the law itself does not contain the kind of middle ground which the court had envisioned. Wherever the legislature did want to create a remedy not properly criminal but more than a pure civil dispute between parties, it had done so by stipulating levy of penalty through a government agency. An example of this procedure was the Customs Act 1962 or the Foreign Exchange Management Act 1999. However, once a statute declared that something was an offence, punishable with the kind of punishments specified in the Indian Penal Code (now Bharatiya Nyaya Sanhita), prosecutable in a court, it was a crime proper and that was that. There was no 'quasi-criminal' category of the kind the Court sought to create. 

This issue of how do we view a cheque bounce case is part of the judicial inquiry in Celestium Financial too. The right of appeal to a victim conferred under Section 372 Cr.P.C. / 413 BNSS is linked to there being an 'offence' which caused any 'loss or injury' to the person. A worldview which sees cheque bounce cases as 'civil sheep in criminal wolf's clothing' cannot accommodate aggrieved parties as 'victims' of crimes. Yet, this is precisely what the Division Bench has held in Celestium Financial. How did it square its view with what the larger bench had held in P. Mohanraj? By simply not looking at P. Mohanraj at all. Rather, all the Court did was to look at the text of the provisions, and hold that the ingredients were made out to view these complainants as victims.

The Right of Victims to Appeal and the BNSS Problem    

In Mallikarjun Kodagali [AIR 2018 SC 5206], a Three Justices' Bench of the Supreme Court had grappled with the scope and ambit of the proviso to Section 372 Cr.P.C. that was inserted in 2009 which recognised the right of a victim to appeal against an acquittal. This was hailed as a salutary move, advancing the rights of victims who otherwise were at the mercy of the state, and the Supreme Court gave due emphasis to this purpose in interpreting the proviso broadly. What was the issue there? Not a substantive one of whether there should be such a right of appeal conferred upon victims. Rather, the problems came almost entirely from the manner in which the legislature had gone about crafting this right. 

If you see the relevant provisions in the Cr.P.C. / BNSS grouped under the Chapter of 'Appeals', it starts with Section 372 / 413 which declared that there is no right of appeal except as provided in the statute. In other words, this provision states that (1) there is a right of appeal, (2) it is fashioned in generic times and not specifically to verdicts of conviction or acquittal, and (3) the scope and ambit of this right of appeal would be defined in the law. This generic, declaratory clause, is followed by provisions which elaborated how the right of appeal could be exercised in different contexts. One context was identified in Section 378: appealing against an acquittal. Only in cases instituted upon a complaint did the law confer a right upon the private aggrieved party to challenge the acquittal directly; in all other cases, the right of appeal remained vested with the state without any parallel rights to a victim. Unfortunately, for reasons best known to the legislature itself, there was absolutely no change made to the text of Section 378 when it decided to grant victims a broader right to appeal. Instead, a proviso to Section 372 was inserted as I have mentioned above. 

From 2009 till the judgment in Mallikarjun Kodagali in 2018, the result of this peculiar drafting strategy was that courts insisted upon all victims to adhere to the process of Section 378 and first get leave for filing appeals. Mallikarjun Kodagali declared that this was the wrong way to read the clauses. But, again, it did not clarify what happened to victims who were complainants as well; clarity which has now come with Celestium Financial to some extent. 

To simply jump from Mallikarjun Kodagali in 2018 to Celestium Financial in 2025 ignores the fact that in the middle of all this, Parliament took up the matter of repealing the 1973 Cr.P.C. and replacing it with a new code. In any genuine effort to improve the system of laws, issues like the pending confusion on how to treat victims and victim-complainants for the purpose of appeals would be considered; or so I would imagine. However, precisely zero changes were made to the scheme on victims' rights of appeal, even as the government trumpeted the new statute as having enhanced the rights of victims. My point is not to attack the BNSS or the other codes, but about the legislature's role in resolving inconsistencies that come in the fabric of law. Since 2009 till 2023, it is amply clear that there is confusion in how the text of the law is being read. Different benches have come at different answers, and the view which controls the field is not without its limitations and came with a dissenting opinion. In such circumstances, the legislature alone can meaningfully iron out the creases to restore some consistency and predictability to the scene. Yet we find the legislature quite content to let things run as they are, bringing us two more years till yet another court verdict moves the needle and opens the door for further conflict.  

Repairing the Fabric?

The two decisions in Celestium Financial and P. Mohanraj are quite different in terms of the subject area and scope. But at the same time, there is some conflict here, because the same offence cannot be properly penal as well as a civil sheep simply depending upon its context. It has to be either one of the two. The call in Celestium Financial to not cite or engage with the earlier view in P. Mohanraj reflects a problematic aspect of the inconsistent fabric of our criminal law. There is simply too much volume, too many past judgments, which creates enormous scope for treading a path that has already been travelled before in some context or another without realising it and rupturing the consistency of law's fabric. It is perhaps ironic that a mere three months after Celestium Financial, a different Division Bench of the Court has also dealt with the issue of construing the rights of victim-complainants to appeal, but this has not cited Celestium Financial anywhere! 

On the face of it, the Indian criminal process is governed by its comprehensive codes. For that statement to actually have any meaning, though, it needs an active legislature which is alive to the kinds of conflicts of opinion that we have seen in context of victims' rights to appeal and takes steps to resolve them one way or another. It does not need an inert one which wakes up once in fifty years only to apply cosmetic flourishes to the legal framework. An inert legislature means that a system supposedly working on statutory law will slowly return to classical common law, where what matters is how successive judicial opinions read the text of a law and craft solutions to problems presented to courts. This is not a new problem nor an insurmountable one. It is a classic issue that has come up across legal systems with the merging of old common law practices and representative legislatures passing statutes to govern peoples' affairs. Where are we on that spectrum needs and honest and urgent reckoning, to begin a consideration of how can we begin repairing what is a fast-fraying legal fabric.

Guest Post: Trial in Absentia under BNSS — A Procedural Quagmire?

(This is a guest post by Acharaj Kaur Tuteja)

The Bhartiya Nagrik Suraksha Sanhita, 2023 has made several conspicuous departures from the Criminal Procedural Code, 1973 in an attempt to streamline criminal procedures in the country. Among these is Section 356 which permits the trial of proclaimed offenders in their absence and points towards the evolving relationship between state convenience and procedural fairness. At first glance, the provision seeks to solve a practical problem: the stagnation that follows in courtrooms when accused persons abscond. But beneath the pragmatic veneer lies a set of unanswered questions about what is willing to be traded in the name of efficiency.

Trials in absentia are not a novel idea. Jurisdictions across the world have flirted with the idea out of political necessity or emergency. Indian law, however, has resisted this temptation by tethering the right to a fair trial to the physical and participatory presence of the accused. Section 356 marks a departure from that tradition. What does it mean to conduct a criminal trial without the accused? Can the adversarial process survive the absence of one of its central participants? And how, if at all, does this square with the constitutional promise of due process under Article 21?

This post explores Section 356’s structure and underlying presumptions. It demarcates the dangers it presents to a system already overburdened by inequitable procedural protections. The BNSS’s solution leans towards the kind of innovation that is prioritising closure before justice. A hasty conclusion may reconstruct Kafka’s courtroom in modern Indian criminal law, despite the validity of the state’s interest in avoiding delay.

Dissecting Section 356: Text and Structure

To break it down, Section 356(1) empowers the Court to proceed with trial if the accused, after being declared a proclaimed offender under Section 84, continues to evade appearance. This proclamation arises only after issuance and non-compliance with a warrant, followed by a public notice. The trial may not only begin, but conclude, and a judgement may be rendered in the absence of the accused. The Court merely has to record the reasons in writing and ensure representation via a pleader. A notice has to be published additionally in a national or local newspaper – a formality that may neither inform or alert the accused in rural or otherwise marginalised contexts.

Section 356 fails to make a legal distinction between two conflated categories: the absconding accused and the absentee accused. The former is a legal status granted by Section 84 BNSS after meeting specific requirements, mostly post-proclamation wilful evasion. The latter’s absence may be for a variety of reasons, including illness, non-service of summons, coercion, or logistical inaccessibility. There is a chance that the legislation will dismantle these classifications, establishing a loophole whereby absence is assumed to be inherently related to guilt. Unfortunately, the language of Section 356 does not operationalise the subtlety that not all absentees are absconding.

Section 356 sidelines the requirement for deeper judicial inquiry into whether such evasion is wilful, or whether the absence results from coercive tactics or abuse of power by investigating agencies. This opens the door to strategic absences orchestrated by the police or other law enforcement authorities. The absence of terms such as ‘maliciously’ or ‘deliberately’ in the statutory text does not relieve the Court from conducting such inquiries; rather, this omission renders the provision even more susceptible to abuse, where the bare fact of non-appearance becomes sufficient to greenlight trial.

The Illusion of Remedy: Examining of Witnesses and Making an Appeal

The proviso under clause (4) of Section 356 states that if the proclaimed offender is arrested and produced before the Court during trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. Firstly, the clause imposes a double burden: the accused must prove both a) lack of notice and b) the absence of a wilful evasion. This reverses the usual presumption of innocence and places the accused in a position where they are trying to recover a sliver of participation in proceedings that have already condemned them.

Secondly, the court is under no obligation to allow cross-examination, nor is there a requirement to re-open earlier stages of the trial. The word ‘may’ vests a discretionary power with the court. This lack of guarantee under the clause goes against the principle of providing the accused with a reasonable opportunity of being heard. The Supreme Court, in the case of State of Kerala v. KT Shaduli Grocery Dealer, allowed the assessee to cross-examine the witnesses on whose evidence the Sales Tax Officer had relied to make the arrest. The Court recognised that under the rule of audi alterem partem, “to prove” means to establish the correctness, or completeness of a fact by any mode permissible under law. The usual mode recognised by law for proving a fact is by production of evidence and evidence includes oral evidence of witnesses. The opportunity to prove the correctness would, therefore, necessarily carry with it the right to cross-examine the witnesses.

The accused, once labelled a proclaimed offender and tried in absentia, may find themselves returned to a process that has long since passed them by, with key evidentiary stages foreclosed. The danger of an unfair trial is further compounded by clause (6) that states that even if the accused is produced before court or arrested at the conclusion of the trial, the proceedings need not be stalled. The judgement can be pronounced in their absence. Moreover, the right to appeal is curtailed under Section 356(7) wherein the appeal is barred unless the offender presents himself before the appellate court within 3 years of the passing of the judgement.

What happens then, is a skeletal notion of a trial, moving from absence to conviction without substantive procedural rights. In Kartar Singh v. State of Punjab, the Supreme Court was unequivocal in its caution: dilution of safeguards in the name of expediency, carries the risk of systemic abuse and wrongful conviction. The purity of the procedure to discover truth shall always remain fair, sensitive to the needs of the society and fairly and justly protect the accused. And these clauses of Section 356 exist not to protect the accused, but to immunise the provision from critique.

Undermining Adversarial Ethos

Under Section 356(1) the Court is empowered to proceed with the trial of a proclaimed offender “in the like manner and with the like effect as if he was present”, thereby eliminating any procedural distinction between a full adversarial trial and a unilateral one. The assertion that the accused’s wilful absence amounts to a waiver of rights, becomes a linchpin to justify lack of procedural parity.

The right to be tried in person, to confront witnesses, and to mount a defence are all implicit in Article 21’s expansive right to a fair trial. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat, while affirming the centrality of a fair trial, clarified that it includes not just the right of the prosecution but, more importantly, of the accused to have their case heard fully and fairly. This renders the trial permitted under Section 356 structurally disfigured. Informing the accused’s friend or relative and ensuring that legal aid is appointed does not cure the deeper malaise of negating the accused’s participatory rights.

This transformation of the trial from adversarial to inquisitorial is not accompanied by the institutional safeguards of the latter. In inquisitorial systems, the judge assumes an investigative role, bound by duties of neutrality and evidence-gathering in favour of both sides. Indian courts, in contrast, are not structured for such a role. The result is a hybrid system that borrows the most coercive aspects of the inquisitorial form while discarding the checks and balances that justify its operation.

Conclusion

There is no denying that trials in absentia address a very real institutional challenge. In an overburdened criminal justice system, where accused persons routinely manipulate safeguards to stall proceedings, Section 356 may act as a corrective. It reaffirms that justice will not be held hostage to deliberate non-appearances.

However, the problem does not justify abandonment of the process. The risk lies in the unstructured application of trials in absentia. The provision, in its current form, rests on a troubling presumption: that a proclaimed offender’s absence is necessarily wilful, and that procedural compliance with notice formalities is enough to substitute meaningful participation. A declaration under Section 84 BNSS is formally premised on wilful concealment or absconding but the statute’s structure outsources that finding to procedural triggers (two warrants, public notice, etc.), not to a substantive inquiry into motive or capacity. In other words, the statute assumes wilfulness from procedural non-compliance. But procedural non-compliance can occur in a number of ways that have nothing to do with intent. The ask isn’t to duplicate the finding of wilfulness - it’s to interrogate how shallow the first one really is. If procedural default alone gets elevated into a legal fiction of intentional evasion, then a second judicial inquiry – before triggering the far more serious consequence of trial in absentia – becomes less redundant and more necessary.

To avoid this turning into a tool of convenience, certain safeguards must be built into the provision. Firstly, the judicial determination of whether the accused has actually absconded should be more than just a declaration. It should follow an inquiry to examine whether the accused had a reasonable opportunity to appear, and whether the evasion is deliberate or due to an extraneous hardship. Secondly, recording depositions via audio-video [as mentioned in Section 356(5)] should be the norm, not a technological afterthought. The attempts to contact the accused in any manner must be furnished duly. Thirdly, the accused should have the opportunity to retrospectively participate in the trial and cross-examine the witnesses if the conviction has been based on their evidence. And lastly, use of Section 356 must be accompanied by periodic judicial review to ensure that the waiver of rights was voluntary in nature.

Trial in absentia, then, is not inherently illegitimate, but it is inherently dangerous. It demands a justice system that can distinguish between tactical evasion and structural absence, between the wilfully hidden and the invisibly marginalised. Without such discernment, Section 356 risks becoming a procedural sleight of hand, manufacturing the illusion of fair process while steadily hollowing it out. The State’s interest in proceeding with trials must not eclipse the constitutional guarantee of a fair one. To that end, the legitimacy of this provision will rest not on how often it is used, but on how scrupulously it is constrained.

Guest Post: How Long is Too Long? - On the Maximum Period that an Undertrial Prisoner can be Detained

(This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as 'undertrials' since 2018 and 2020, respectively. This piece is being published simultaneously with the Indian Constitutional Law and Philosophy Blog)

Dedicated to the fellow undertrial prisoners languishing in the prisons of India with the hope that the system would sooner than later wake up to their plight; and that one day prisons, if not still obsolete, would at least have become places where those proven guilty are held, and not places that incarcerate those who are presumed to be innocent.

The primary author would like to thank his co-defendants, Arun Fereira and Vernon Gonsalves, for the enriching discussions – stolen at times in the corridors of the court, at times on the drives to and from the court, and at times in the ‘After’ hours; Vernon, for his characteristically incisive remark ‘You need to think more!’ after going through – what I now realise was – a much cruder earlier version of this piece even before BNSS had kicked in; and Arun, whose name may have been among the authors had their Lordships not set him free, for owning the idea that the Code should have more provisions for statutory bail. Needless to say, neither of them is to shoulder the shortcomings of this piece.

Introduction

“How long is too long a period of incarceration as an undertrial for a court to conclude the right of speedy trial is defeated?”

This was a question raised by the Delhi High Court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, in the context of grant of bail for an undertrial prisoner. We raise a similar question regarding the maximum period of detention permissible by law for an undertrial prisoner. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Section that deals with the question of the maximum period that an undertrial can be detained, largely reproduces the language of its predecessor, Section 436-A of the Code of Criminal Procedure, 1973 (CrPC), the clause that no person should be imprisoned for a period exceeding the maximum period of punishment specified for his offence.

This essay argues that the existing law, which allows a person to be detained for a period equal to the maximum period of imprisonment specified as punishment for his offence only serves to legitimise the award of “surrogate punishment” equivalent to the maximum punishment to that person, without conducting trial and determination of the question of guilt or innocence of that person according to procedure established by law. Such a law has no place in the statute book if presumption of innocence is one of the cornerstones of criminal jurisprudence.

Further, if “bail, not jail” were followed in letter and spirit, the question of prolonged pre-trial detention would not arise. In practice, however, the combination of the question of ‘prima facie guilt’ – another principle that goes against the presumption of innocence – and the tripod test of the possibility of the accused tampering with the evidence, influencing witness and / or evading trial, together conspire against the grant of bail. In such circumstances, it is only those who can afford to hire expensive lawyers and knock the doors of the Constitutional Courts who can manage to secure bail. For the rest jail becomes the rule.

In such a scenario an act of balancing is called for. We argue for a judicial reading of the BNSS that will provide us with the framework of finding such a balance.

We set out by drawing a comparison between Section 479 of BNSS and its predecessor Section 436-A of CrPC. It can be seen that far from being an improvement on Section 436-A of CrPC with respect to reducing the period that an undertrial prisoner can be detained, Section 479 of BNSS is more restrictive in its application. Be that as it may, what makes Section 479 of BNSS problematic are certain anomalies we discuss below. We shall first take a look at Section 436-A of CrPC and then go on to Section 479 of BNSS before putting forth our suggestions regarding the maximum period of detention for an undertrial prisoner.

Section 436-A of CrPC

Section 436-A of CrPC was inserted in 2006, as it was found that there were undertrial prisoners detained in jails for periods beyond the maximum period of imprisonment provided for the alleged offence. It may be noted that in spite of this, undertrial prisoners are still languishing in prisons for periods longer than the maximum punishment specified for their offence, as in the case of Dipak Joshi in West Bengal, who came out of prison after 42 years following the intervention of the Calcutta High Court.

Apart from the stipulation that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence, Section 436-A of CrPC also has a provision that a person who has undergone detention for a period extending up to one half of the maximum period of imprisonment specified as punishment for his offence may be released if the punishment of death is not one of the punishments specified for the offence in question. In the prison parlance, this provision is referred to as ‘half ground’, and we shall use this term to refer to this clause. Unlike the maximum period of detention, the provision of half ground was not a statutory obligation and was subject to the Court’s discretion after hearing the Public Prosecutor.

In this article we shall be limiting our discussion to offences under the Indian Penal Code, 1860 (IPC) while discussing CrPC and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) while discussing BNSS. There are twelve offences in IPC for which death is specified as one of the punishments, and these offences were outside the purview of operation of 436-A for the purpose of half ground.

Section 479 of BNSS

Section 479 of BNSS corresponds to Section 436-A of CrPC. Unlike in the case of most sections, where BNSS just copies the CrPC provisions, in the case of Section 479 there are a few changes and considerable additions. There are three sub-sections to Section 479 of BNSS. While sub-section (1) reproduces the contents of Section 436-A of CrPC with some slight modifications and additions, sub-sections (2) and (3) are entirely new. We shall look at each of the sub-sections one by one.

Sub-section (1) of Section 479 of BNSS

In sub-section (1) of Section 479 of BNSS, offences punishable with death and imprisonment for life are mentioned to be excluded from the “half ground.” On our count, there are as many as 75 offences under BNS that have death or imprisonment for life as one of the punishments. While Section 436-A of CrPC excludes only 12 offences of the IPC from the ambit of half ground, BNSS excludes 75 offences from its ambit. If only offences punishable with death were excluded, by our count 16 offences of BNS would have been excluded from half ground.

As per Section 6 of BNS (which is almost a replica of Section 57 IPC), imprisonment for life is to be reckoned as equivalent to imprisonment for a period of twenty years for the purpose of calculating fractions of terms of punishment. So, for the purpose of “half ground,” a person who has been detained for an offence for which imprisonment for life is (and death is not) one of the punishments specified under the relevant law, that person would ordinarily have been eligible to be released on “half ground” after ten years in custody. However, that door is closed for such people under BNSS.

If BNSS takes a tougher view of offences punishable with imprisonment for life, as it considers them to be offences of a serious nature and wants to show no leniency towards persons accused of such crimes, there is hardly any room for argument. However, a look at Section 474 of BNSS (which corresponds to Section 433 of CrPC), which deals with the power of the government to commute sentences, would make us doubt this. As per clause (a) of Section 474 of BNSS, imprisonment for life can be commuted to imprisonment for a term of not less than seven years. That is to say, if you are convicted for imprisonment for life, you may stand a chance of being freed after spending seven years in prison provided you are in the good books of the government of the day; however, for the reasons set out above, if you are detained as an undertrial prisoner you are not eligible to be released even after spending ten years in prison.

So, rather than treating serious offences with iron gloves, BNSS seems to leave it to the whims of the executive rather than to the wisdom of the judiciary. What this implies for hapless prisoners who cannot afford to engage lawyers to file bail applications on their behalf is that pleading guilty and begging for the mercy of the executive in the form of commutation to a term of seven years of imprisonment would be a more attractive option than languishing endlessly in prison as an undertrial prisoner.

Apart from the “half ground,” BNSS introduces what we shall call ‘one-third ground’ for first time offenders. A first-time offender can be released if he has undergone detention for a period extending up to one-third period of the maximum punishment specified for his offence under the relevant law. The parenthetical clause explains that a first-time offender is a person “who has never been convicted for any offence in the past.” Let us not overlook the inappropriacy in using the term ‘offender’ for a person yet to be proven guilty. The possibility of getting bail after having spent one-third of the maximum period of punishment raised the hopes of so many prisoners who have been behind the bars for years. Their hopes were further raised with the possibility of the retrospective application of Section 479 of BNSS following the ruling of the Supreme Court in W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons. It is not surprising that they missed the fine print that said offences that have imprisonment for life as one of the punishments are excluded from the ambit of Section 479 of BNSS. (Ed Note: A similar conclusion was made on the Proof of Guilt Blog here).

Sub-section (2): More than one offence and multiple cases

Sub-section (2) of Section 479 of BNSS is a non-obstante clause that says a person who has more than one offence or multiple cases pending against him is not eligible to be considered to be released, neither on the basis of one-third ground, nor on the basis of half ground. Section 436-A of CrPC had no such restriction.

“Offence” is defined in Section 2(q) of BNSS (a replica of Section 2(n) of CrPC). It says “any act or omission made punishable by any law for the time being in force…” As per sub-section (1) of Section 243 of BNSS (equivalent to Section 220 of CrPC), a series of acts connected so as to form the same transaction can lead to more offences than one being committed. Sub-section (3) of Section 243 of BNSS states that if an offence falls within two or more separate definitions by which offences are defined under any law, the person may be charged with each such offence.

Illustration (1) pertaining to sub-section (3) of Section 243 of BNSS says if a person wrongfully strikes another person with a cane, he may be separately charged with and convicted of offences under sub-section (2) of Section 115 (i.e. voluntarily causing hurt) and Section 131 (i.e. punishment for assault or criminal force other than on grave provocation) of BNS. This would mean that on a literal reading of Section 479 of BNSS, a person who strikes another with a cane would be ineligible to be considered to be released on the basis of one-third or half ground even if the person is a ‘first time offender’.

A combined reading of sub-sections (1) and (2) of Section 479 BNSS gives us a peculiar situation. The condition in sub-section (1) that a person should be a first-time offender is applicable only for the one-third ground and not for the half ground. Or, in other words, if you have a previous conviction, you cannot be considered to be released on the basis of one-third ground, but you can be released on the basis of half ground. Well and good. Now consider this: as per sub-section (2) of Section 479 BNSS, a person who has multiple cases pending against him (or even more than one offence against him in a single case) cannot be considered either for one-third ground or for half ground. That is to say, BNSS takes a more considerate view of a person who has a previous conviction than of a person who is yet to be proven guilty but has more than one case pending against him in that the former is eligible to be released on half ground, but not the latter. Does this not eviscerate the presumption of innocence?

Sub-Section 3: A silver lining

Sub-section (3) of Section 479 of BNSS is indeed a welcome addition as it casts a duty on the Jail Superintendent to make an application to the Court to release a person who has completed one half or one-third of the period mentioned in sub-section (1), as the case may be. Under the previous scheme, it was left to the accused to move court. Often the persons were hardly aware of such a provision or would not have the legal support to make such an application.

Applying the Law

Having gone through Section 479 of BNSS, which deals with the maximum period that an undertrial prisoner can be detained, we shall turn to two related issues: (1) How to reduce the number of undertrial prisoners in the prisons? and (2) How to ensure that an undertrial prisoner does not get incarcerated for too long a period? Albeit related, these two questions are distinct, and different steps need to be taken to tackle them effectively.

The ABC of reducing the number of undertrial prisoners

If the number of undertrial persons in the prisons is to be reduced, the three necessary steps are:

A: Avoid arrest unless necessary;

B: Bail to be granted unless circumstances warrant otherwise;

C: Conduct speedy trial.

In spite of the repeated pronouncements of the Supreme Court about the need for the police to be judicious in the use of the power to arrest, BNSS makes only a feeble attempt to strengthen the safeguards offered by CrPC. Sections 41, 41A, 41B, 41C and 41D of CrPC, which deal with arrest, are reproduced and renumbered as Sections 35 to 38 of BNSS. The only additional protection BNSS offers – and what perhaps justifies renaming of the Act as “Nagarik Suraksha” – is the addition of sub-section (7) of Section 35, which stipulates that prior permission of an officer not below the rank of Deputy Superintendent of Police is needed to arrest a person who is infirm or above sixty years of age, for an offence punishable with less than three years of imprisonment.

There are at least more than one hundred offences in BNS (just as was the case with IPC) that have a punishment of imprisonment for a maximum period of less than three years. However, barring roughly half a dozen of the rest are all bailable and non-cognizable offences. Therefore, the introduction of sub-section (7) of Section 35 of BNSS may hardly make a practical difference. Moreover, experience shows that in order to circumvent provisions like those of Section 35(7), police may easily add a Section that provides for punishment of three years or more and may also get away with it.

Going into the issue of grant of bail is beyond the scope of this piece. Some of the recent judgements of the Supreme Court that have upheld the right to life of the undertrial prisoner and granted bail upholding Article 21 as an effective means against the prolonged incarceration and award of surrogate punishment seem to offer a beacon of hope. However, as noted by Abhinav Sekhri in his blog post [‘A curious Constitutionalism’ dated July 19, 2024], it is still as though prolonged incarceration of an undertrial prisoner and the issue of grant of bail are issues only the highest Court has to concern itself with. For those who cannot afford to reach that level, there still isn’t much scope for hope.

The culture of seeking adjournments and postponements are usually cited as the main causes of delay in judicial proceedings. Section 309 of CrPC that dealt with powers of the Court to postpone or adjourn proceedings presents a curious case. The Section said that proceedings in every trial or enquiry should be conducted on a “day-to-day” basis and postponement of the commencement of trial or adjournment beyond the following day is to be resorted to only if necessary, and the reasons for the same have to be recorded. However, postponement of the commencement of the trial for months and years and adjournments of proceedings have become the norm rather than exception. There is also a stipulation that trial in offences related to rape should be completed within a period of two months from the date of filing of the chargesheet, which would be a miracle in our trial courts.

Apart from the time limit of 60 / 90 days for the completion of investigation, CrPC had no time limit specified for the framing of charges, commencement and completion of trial, or the delivery of the judgment. BNSS, on the other hand, sets a time limit of “sixty days from the date of first hearing on charge” for framing of charges in Sections 251 and 263 (corresponds to Sections 228 and 242 of CrPC, respectively) and a period of forty five days for pronouncement of judgment after conclusion of the trial in Section 392 (which corresponds to Section 353 of CrPC). The efficacy of these steps, however, will have to be tested in practice as no remedies are prescribed in the eventuality of these limits not being observed. There is hardly any reason to assume that the time limits introduced in BNSS will not remain a dead letter, like the clause about “day-to-day” trial and the sixty day limit for the completion of trial in offences related to rape, which were part of Section 309 of CrPC; or that Section 346 of BNSS will ensure framing of charges and commencement of trial without undue delay. It has to be underlined that no time limit has been specified as to when “hearing on charge” should commence after the filing of the chargesheet.

In reality, as observed by the Bombay High Court while granting bail to the accused in a POCSO case in which charges were not framed even after five years, once the chargesheet has been filed the case is often kept on the back burner and the investigation agency and the court forgets all about the accused after remanding him to judicial custody. The remand gets mechanically extended from time to time in most cases, without the accused person being produced before the court either physically or through video conferencing. This process goes on for months or even years. In order to curb this, effective checks should be built into the system similar to the statutory bail granted to the accused in case investigation has not been completed within the stipulated time. We turn to this issue in the next section.

How Long is too Long

As we argued right at the outset, a law that states no undertrial prisoner shall be detained for a period exceeding the maximum period of imprisonment specified as punishment for his offence is an anathema to the principle of presumption of innocence, as it only legitimises the detention of the undertrial prisoner to a period equal to that of the maximum period of imprisonment specified as punishment for that offence. It thereby provides for inflicting surrogate punishment on those who are considered to be innocent until proven guilty by procedure established by law. The question, then, is how long a period of incarceration is too long for an undertrial prisoner?

In an ideal world, no person should be punished until proven guilty. And without mincing words let us admit that the label ‘judicial custody’ does not make detaining an undertrial person within the confines of a prisonhouse qualitatively very different from punishment. Nevertheless, setting idealism aside, we may still arrive at a reasonable period for which an undertrial prisoner can be detained by confining ourselves to the four corners of BNSS. In order to arrive at such a figure, we need to turn our attention to another Section of BNSS – Section 474 (which corresponds to Section 433 of CrPC) that deals with the power of the government to commute sentences.

Unlike most other Sections, Section 474 of BNSS is a considerable improvement upon its counterpart, namely Section 433 of CrPC. Sentences can be commuted as given below as per Section 433 of CrPC:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not exceeding fourteen years;
• rigorous imprisonment to simple imprisonment; and
• simple imprisonment to fine.

Section 474 of BNSS offers the following possibilities for the commutation of sentence:

• death sentence to imprisonment for life;
• imprisonment for life to imprisonment for a term not less than seven years;
• imprisonment for seven years or more to imprisonment for a term not less than three years;
• imprisonment for a term less than seven years to fine; and
• rigorous imprisonment to simple imprisonment.

As is evident from a glance at the above, BNSS takes a much more liberal view with respect to conviction, in cases where the power to show leniency and commute sentences is vested in the hands of the executive. If we consider the arithmetic behind the calculation involved in arriving at the number of years to which terms of sentences of imprisonment are commuted, we can see that it hovers around one third of the sentence. For instance, imprisonment for life is reckoned as equivalent to imprisonment for twenty years for the purpose of calculating fractions of terms of punishments (as per Section 6 of BNS / Section 57 of IPC). So, one third of imprisonment for life is six years and eight months. Similarly, one third of seven years is two years and four months. If after conviction, the term of sentence can be commuted to its one third at the sweet will of the executive, we propose that the same formula can be adopted in fixing the maximum period for which an undertrial prisoner can be detained.

We propose that seven years be fixed as the upper limit beyond which a person in custody as an undertrial for an offence punishable with imprisonment for life or death cannot be detained. Similarly, for offences punishable with imprisonment for seven years or more, the maximum period that a person can be detained should be three years (in line with clause (c) of Section 474 of BNSS). Since there is no term of imprisonment specified in the case of commutation of conviction for a term of less than seven years in Section 474 of BNSS, we could follow the principle of one third of the maximum punishment in such cases. For instance, the maximum period that a person can be detained for an offence punishable with three years of imprisonment can be fixed as one year.

As the Supreme Court has reiterated in some of the recent judgements, the right to life of the accused cannot be obliterated, no matter how serious the alleged offence. An accused has the right to speedy trials and if the State and the Court cannot provide it to him, they have no right to detain him for a prolonged period and award surrogate punishment, but have to release him after a reasonable time. The bogey of the possibility of tampering with the evidence, influencing witnesses, and flight risk cannot be grounds that trump presumption of innocence and right to life. And fixing the maximum period that an undertrial can be detained as a period equivalent to one third of the punishment for the offence is only a small step to show that fundamental rights are taken seriously and are not to be trampled upon indiscriminately.

Similarly, there is no reason why presumption of innocence should be whittled away due to the subsequent conduct of a person who has been found guilty on a previous occasion. A law that treats a person harshly on the basis of previous conviction when he is yet to be proven guilty on a subsequent occasion is just a legal garb for the prejudice that operates against a who has been found guilty once. It may make sense to treat a person harshly on a subsequent conviction – as in the award of enhanced punishment, but not when the person is yet to be proven guilty. Therefore, the upper limit on the maximum period for which an undertrial can be detained should apply uniformly to all undertrial prisoners regardless of whether they have been convicted earlier or not.

If the clause about the maximum period an undertrial prisoner can be detained has to be implemented effectively, it has to be raised to the level of a statutory obligation on the lines of Section 187 of BNSS (which is pari materia Section 167 of CrPC), which leaves no discretionary power to the Magistrate. If the right to be freed when the investigation is not completed within the stipulated time is a fundamental right and not merely a statutory right as held in Vikramjit Singh v. State of Punjab (2020) 10 SCC 616, the right to be freed if the trial is not concluded within a reasonable time can be no less in stature. The option of continuing detention after hearing the Public Prosecutor would virtually close the doors of bail as Magistrates more often than not get persuaded by rhetoric of Prosecutors, who at times act as though they were Police Prosecutors rather than Public Prosecutors.

In the current scenario, as there is no statutory limit specified for the conclusion of trial, it is left to the Constitutional Courts to intervene and adjudicate on the question whether the right to life of the accused person has been violated due to prolonged incarceration without trial. And this would happen only in the case of those who can afford to reach up to the Constitutional Courts. As it is left unspecified, the interpretation of what ‘reasonable time period’ is varies according to the vagaries of the varied Benches. It also depends often on how soon or late the file of the accused person reaches before a sympathetic Bench. If in some cases it is a matter of a year or two, in some cases it is nine or ten years or even more. Specifying the outer time limit for the conclusion of trial in the statute would not only make it uniformly applicable, but it would also make it enforceable at the level of the trial court and thereby within the means of those who cannot afford to know the doors of the Constitutional Courts.

Conclusion

The proposal to have parity between the term of imprisonment to which sentences of imprisonment can be commuted and the maximum period for which an undertrial prisoner can be detained – both in proportion to the sentence for the offence in question – cannot be repugnant to the spirit of justice the new laws are supposed to usher in. Mandatory release of an undertrial prisoner after the stipulated time period is only part of the commitment to conclude the trial within that time frame, and thereby ensuring justice to both the accused person and the victim of the crime. Keeping an undertrial person in prison endlessly and awarding surrogate punishment is justice to neither parties. And the new criminal laws are all about ushering in an era of justice, aren’t they?