New Criminal Laws –Hurried Legislation.

N. Ravindranath Kamath, Senior Advocate, Bengaluru.

1. The independence of India was declared by the erstwhile British Government on 15.08.1947. Thereafter the new Constitution of India came into force on 26.01.1950. Thus India became a Republic. The Indian democracy is one of the largest democracies in the world. The very first Article 1 of the Part I of the Constitution of India envisages: –
   [1] India, that is Bharat shall be a union of states;
   [2] The state and territories thereof shall be as specified in the First Schedule;
   [inserted by the 7th amendment, 1956]
   [3] The territory of India shall comprise:
   [a] The territory of the state
   [b] The union territories specified in the first schedule [inserted by way of amendment in 1956]
   [c] Such other territories as may be acquired.

1. Thus when the parliament enacts a new law, it must take the whole of Bharat [India] into consideration. A healthy discussion among the legal fraternity and the public in general, ought to have been made by the lawmakers, as many of the enactments of the British Government Continued to be followed in the independent India since 15.08.1947 and necessary amendments as required over time to time have been carried out for which many objections have not come at the relevant point of time.
2. After the independence of India, the Code of Criminal Procedure, 1878 was in force for nearly 25 years. The same was repealed and the new code of criminal procedure in 1973 was introduced, after nearly 50 years now Bharatiya Nagarika Suraksha Sanhita, 2023 has replaced the 1973 Cr.P.C. Similarly, the Indian penal code, 1860 is replaced by Bharatiya Nyaya Sanhita, 2023 which will have only 358 sections as opposed to 511 sections in IPC, 1860. The Indian Evidence Act is replaced by Bhartiya Sakshya Adhiniyam, 2023. Much importance is given in the Bharatiya Sakshaya Adhiniyam, 2023 for electronic delivery of oral testimony. This allows witnesses, accused individuals, and victims to provide testimony electronically, enhancing accessibility and efficiency in the legal proceedings. There are provisions in the Sakshya Adhiniyam for the inclusion of information stored in semiconductor memory of communication devices such as smartphones and laptops, broadening the range of admissible evidence to include e-mails, server lockslocational proof, and voice mails. The said Act also broadens the definition of secondary evidence to include oral and written admissions, as well as the testimony of an expert who has studied the document. The whole reading of Bharatiya Sakshya Adhiniyam, 2023 does not find a place for a Narco analysis/brain mapping test which is barred after Selvi’s case [2010 (7) SCC 263] by the apex court which is very much necessary in the present state of affairs. Though many things are said about such test, a careful analysis, research and discussion was required on brain mapping test, particularly in the context of terrorism, rape, murder, fraud related cases.
   4.On the whole, a careful reading of the above 3 enactments looks, like it is an ‘OLD WINE IN NEW BOTTLE’ many feel it is a case of imposing Hindi on general public. The following are the sum of the provisions which are enacted in the new Act, are the replica of the old Act. It is nothing but repetition. The following are some of the repetitions which I can mention.
3. Section311 OF Cr.P.C envisages:
   Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
   The corresponding new Section in BNSS for old Section 311 of Cr.P.C is 348 of the BNSS section which envisages:
   Power to summon material witness, or examine person present:
   “Any Courtmay, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
4. Section 309 of Cr.P.C envisages:
   Power to postpone or adjourn proceedings: [(1) “In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
   Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376AB, section 376B, section 376C or section 376D, section 376DA, section 376DB of the Indian Penal Code, the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet.]

(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:

[Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]

[Provided also that –

1. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
2. the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
3. where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.]
   The corresponding new Section in BNSS for old Section 309 of Cr.P.C is 346 of the BNSS section which envisages:
4. Power to postpone or adjourn proceedings: [(1) “In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
   Provided that when the inquiry or trial relates to an offence under section 64, section 65, section 66, section 67, section 68, section 70 or section 71, of the Bharatiya Nyaya Sanhita, 2023, the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet.]

(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:

[Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]

[Provided also that –

1. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
2. the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
3. where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.]
4. Section 145 OF CrPC envisages:
   Procedure where dispute concerning land or water is likely to cause breach of peace. —
   (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
   (2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
   (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
   (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:
   Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
   (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
   (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
   (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
   (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
   (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
   (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
   (10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 107.

The corresponding new Section in BNSS for old Section 145 of Cr.P.C is 164 of the BNSS section which envisages:

164. Procedure where dispute concerning land or water is likely to cause breach of peace .—
     (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
     (2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
     (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
     (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:
     Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
     (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
     (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
     (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
     (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
     (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
     (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
     (10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 126.
165. Section 147 OF CrPC envisages:
     Dispute concerning right of use of land or water.—(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.
     Explanation. —The expression “land or water” has the meaning given to it in sub-section (2) of section 145.
     (2) The Magistrate shall then persue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.
     (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:
     Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
     (4) When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1),
     and when in any proceedings commenced under sub-section (1) the magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145.
     The corresponding new Section in BNSS for old Section 147 of Cr.P.C is 166 of the BNSS section which envisages:
     166. Dispute concerning right of use of land or water. (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.
          Explanation. —For the purposes of this sub-section, the expression “land or water” has the meaning given to it in sub-section (2) of section 164.
          (2) The Magistrate shall peruse the statements so put in, under sub-section (1), hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 164 shall, so far as may be, apply in the case of such inquiry.
          (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:
          Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular season or on particular occasion, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
          (4) When in any proceedings commenced under sub-section (1) of section 164 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1), and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 164, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 164.
166. Having practiced on the trial side for many years. I have found that under the erstwhile criminal procedure code. The power given to executive magistrates in many of the sections ought to have been removed and given to Judicial magistrates in 1991 I had written an article titled “Need for Amendment of Section 145 of CR.P.C”, which was published in Criminal Law Journal 1991- page 160. I opined about the need to give power under sec.145 Crpc to judicial magistrate as it was available under the 1869 Act. The executive magistrate cannot handle property disputes effectively like a Judicial Magistrate, given several executive work vested in him including meeting the ministers, MLAs and MP’s and Advocate and litigants and the general public who appear in the cases are put to several inconveniences and are not comfortable with the proceedings, as the proceedings are not conducted judicially. The said article is herewith reproduced for the benefit of the readers of this article.
     Published in 1991, Crl.L.J. 160
     “NEED FOR AMENDMENT OF SECTION 145 OF Cr.P.C”
     • By: – N Ravindranath Kamath, Advocate, Virajpet, Kodagu
       “The object and intent of Section 145 of Cr. P.C. is to prevent the breach of peace arising out of disputes relating to immovable properties by maintaining one or the other of the parties in the possession which the Court finds they had immediately before the dispute. The action which may ultimately be taken is preventive. The jurisdiction of the Court under the section is limited to the extent necessary for preventing any apprehension of breach of the peace. The proceeding under this section is of a summary nature intended to maintain peace till the title of the respective claimants is adjudged by a competent civil Court. The proceedings under the section are quasi-judicial within the meaning of Section 2(1) of Cr. P.C. The jurisdiction under this section is vested with the Executive Magistrate. The magistrate acting under this section need not go into the question of title but has to meet the urgency of the situation by preventing a breach of the peace. The two essentials for taking action are that there should be a dispute likely to cause a breach of the peace and that the disputes should concern immovable property. Though the questions relating to possession over the land are within the exclusive jurisdiction of civil Courts. The magistrate gets that jurisdiction when there is apprehension of a breach of the peace. The power under this section was vested with the Judicial Magistrate under the Code of Criminal Procedure, 1898, which has been replaced by the Code of Criminal Procedure, 1974. Under the old Code, Judicial Magistrate used to exercise powers under this section but now owing to the changes brought about in the new Code the power under this section is vested with the Executive Magistrates.
       It is generally felt that relief under this section is hardly available for the aggrieved parties owing to the preoccupation of the Executive Magistrates with other executive works. The Executive Magistrate besides attending other Executive work may also be fully occupied during the time of elections, census and other works that he is required to do so also to attend the meetings of ministers or Government secretaries. The Executive Magistrate hardly finds time to hear the parties and dispose of the cases pending before him.
       The non-availability of the Executive Magistrates during the crucial period of disputes forces the aggrieved party to seek remedy in the civil Courts. Prior to the changes brought about in the Cr. P.C. 1974 the Judicial Magistrate who is to act under this section used to discharge his duty judicially. The question of the non-availability of the presiding officer was rare prior to the changes brought into the new Code. The preliminary order was available under this section at the very crucial period of dispute which today has become a wild cry. The intention of the legislature is thereby perhaps frustrated by bringing changes to the Cr. P.C. 1974.
       Thus it is felt that jurisdictional changes are required to this section. The power under this section should vest with the Judicial Magistrate which will certainly be pragmatic and of a great relief to the parties who seek remedy under this section. Changes as suggested will certainly usher in an atmosphere of change where it is generally felt.”
167. The new provision that is section 164 of BNSS is nothing but a replica and repetition of Section 145 of CRPC of 1973. This goes to show that the lawmakers have not done much research while enacting the 3 enactments. Much deliberation was required. The idea of enacting 3 new laws replacing the 3 laws ought to have been made public for discussion in public forums, particularly among the Advocate fraternity.
168. The lawmakers perhaps were in a hurry to enact the law rather than seeing the convenience of the general public. Giving Hindi sentiments ought to have been reconsidered with the non-Hindi title also. Most of the changes ought to have been introduced by way of an amendment rather than enacting a new law. The Union Law Ministers should call for a discussion methodically in each district of Baharat among the legal fraternity and also stakeholders and bring changes to the present new 3 laws, wherein most of the issues are not covered.
169. Most of the changes are unnecessary even the title could have been changed by way of the amendments and the amended book could have been made available to the public and Advocates instead making all of us to buy new books.
170. In 2002 many changes were brought to the Civil Procedure Code, 1908 one of the changes was limiting the scope of Sec.115 of CPC mainly to reduce the litigation arising out of sec 115 of CPC in the High Court, but in the place of sec 115 of CPC Article 227 of the Constitution of India is being used in all High Courts by litigants and Advocates. Now the victims are Advocates and the general public because it is becoming expensive for them but the ratio of litigation has not reduced. Similarly, the time limit prescribed for filing the written statements was limited to 90 days but there are no provisions stating a time limit to the framing of the ISSUES in a civil litigation. Therefore, in many cases, issues are framed after a considerable point of time and the written statement is accepted at a nominal cost even after 2 years. There is no one to monitor the actual purpose of the amendments or the reason why any law is enacted. Similar will be the fate of BNSS, BNS and BSA 2023 if the errors and mistakes, are not rectified and the general public and stakeholders are not taken into confidence.
171. Therefore, I conclude that the Union Law Minister shall constitute a committee or a commission to hold discussions, and meetings to bring the changes. There is no proper clarity in the new enactments and the new enactments cannot be said to be a good piece of legislation, a thorough discussion and rectification are need of the hour; All the Bar Council of state and Bar council of India has to take the role of communicating to the Central Government. This law may continue for another 100 years and it will remain a defective piece of legislation if the above suggestions are not taken into consideration. As of now the new 3 enactments has helped Book publishers and Book printers.

---