Opportunity for Hearing the Accused under BNSS

 

Opportunity for Hearing the Accused under BNSS

 Complications arise in the context of complaint cases, through the addition of a proviso to Cl.223 on ‘Examination of complainant’. The extant provision, s.200 CrPC, provides that the magistrate must examine the complainant and any witnesses while taking cognizance of a non-cognizable offence on the basis of a private complaint. A new caveat has been added to this provision, which prohibits taking of cognizance in complaint cases without affording the accused an ‘opportunity of being heard’. The right to be heard, while unquestionably benefi cial for an accused at any stage of criminal adjudication, has until now not been provided at the stage of cognizance. This is for multiple reasons, all relating to the nature of cognizance as a judicial function. At the outset, it may be noted that cognizance does not involve any formal action. It is the mere application of judicial mind to the suspected commission of an offence.95 When a Magistrate reads the complaint or chargesheet, and applies their mind to determine whether the averments in the complaint or chargesheet disclose the commission of an offence for the purposes of proceeding further, they are said to take cognizance.96 Courts have highlighted that at this stage, the Magistrate need not examine the evidence with a view to determine if it would support conviction of the accused, nor assess the reliability or validity of the evidence.97 As such, the Magistrate is also not bound to give a reasoned order, nor is a superior court ordinarily allowed to substitute its opinion for the Magistrate’s. Immediately after cognizance is taken of an offence, the accused is directed to be produced, their plea of guilt or innocence is recorded, and charges are framed. The framing of charges is the fi rst stage where the accused is permitted to be heard and make submissions relating to the commission of the crime.98 A caveat is that in rare circumstances, where there is irrefutable evidence (sterling quality) to suggest that the prosecution version is 98 S.228 CrPC; This is not to assert that prior to the hearing on charge, no other hearings happen. In instances where, even on a private complaint, the accused has been arrested, there would be hearings prior to the hearing on charge on limited aspects of custody, bail, etc. 97 Subramanian Swami v. Manmohan Singh (2012) 3 SCC 64. 96 Bhushan Kumar v. State (2012) 5 SCC 424. 95 Sourindra Mohan Chuckerbutty v. Emperor 1910 SCC OnLine Cal 41; R.R. Chari v. State of Uttar Pradesh 1951 SCC 250. ‘‘totally absurd or preposterous’, it may be brought to the notice of court at the stage of taking cognizance as well.99 In essence, cognizance is a stage where the law offi cially recognises the commission of an offence. After this, the Magistrate issues process against an accused person and affords them a right of hearing, i.e. at the framing of charges. Naturally, then, the CrPC does not envisage a right of hearing to the accused, or anyone, at the stage of taking cognizance. This creates a host of issues, not the least of them being that the purpose of taking cognizance in complaint cases would be frustrated. Complaint cases are lodged either in cases where the offence is non-cognizable, or where, despite the offence being cognizable, the police refuses to register an FIR or the complainant is unable to register an FIR.100 The object of allowing this is to ‘ensure the freedom and safety of the subject in that it gives him the right to come to the court if he considers a wrong has been done to him or the Republic and be a check on police vagaries.’101 This provision is often utilised by vulnerable complainants where the perpetrator holds relatively more power. This includes instances of violence against members of the SC/ST community by persons from dominant caste; sexual violence against women by men in positions of power including those from dominant caste, class or religious community; and domestic violence against women. In these situations, the victims fi nd it diffi cult, if not dangerous, to register an FIR and choose to fi le a private complaint instead. In the context of these power dynamics, the refusal of the police to take these allegations seriously or to register FIRs in these situations, further contributes to the victims’ diffi culties. By allowing the accused an unrestricted right of hearing at this stage, under Cl.223 before even taking notice of the commission of an offence, gives scope for witness manipulation and suppression. The importance of complaint cases in ensuring ‘freedom and safety’ of victims is jeopardised. This might also exacerbate the concerns of an already overburdened system. As per the provision in the BNSS, to even take note of a crime, the Magistrate will be required to hear every accused in a complaint case. The contours of this hearing are also not specifi ed. Courts have been clear that accused persons have no right 101 SC Sarkar et al, The Code of Criminal Procedure, (Volume I, 12th edn, LexisNexis 2018); Chinnaswami Reddiar v. K. Kuppuswamy 1954 SCC OnLine Mad 378. 100 Seeni Ammal, In re, 1960 SCC OnLine Mad 115. 99 Rukmini Narvekar v. Vijay Sataredkar (2008) 14 SCC 1. to produce any material, as cognizance is taken based on chargesheet /complaint,102 apart from the aforesaid evidence of sterling quality. Judicial clarity would be needed to determine if the hearing would be limited to this point. To allow a hearing beyond that, or on the evidence, would also frustrate the purpose of taking cognizance, and be a duplication of the stage that follows immediately after, i.e. hearing on charge. Crucially, this right has been created only in the context of complaint cases. This creates an anomalous situation, where an additional right has been created for complaint cases, whereas no such right exists where the offence has been investigated by the police. A potential explanation would be that an accused in a cognizable offence would be aware when cognizance is taken, as accused persons must (at the very least) be produced when chargesheet is fi led. On the other hand, no provision mandates that the accused in a complaint case must be made aware of the lodging of a complaint or at the stage of taking cognizance. However, as discussed above, for the provision to be workable, the contours of the hearing must be clarifi ed. Similar concerns also arise in the context of Cl.210(3), which restrains the Magistrate from taking cognizance of allegations raised against a public servant arising in the course of discharge of offi cial duties, until (a) receipt of a report from an offi cer superior to the public servant; and (b) consideration of ‘assertions made by the public servant’ regarding the incident. This may have been introduced with a view to prevent vexatious or frivolous complaints against public servants discharging their duties. However, it simultaneously raises concerns about power dynamics highlighted above, and potentially contributes to the culture of impunity generally surrounding actions of public servants. Cl.210(3) has been duplicated in Cl.175(4). Cl.175 falls within Chapter XIII of the BNSS, which deals only with investigative powers of the police, a stage of the criminal legal process that precedes the stage of cognizance. Issues of cognizance and Magistrate’s role after investigation begin with Chapter XV. Thus, the addition of the new sub-clause (4), which is identical to Cl.210(3), does not fi t in the scheme contemplated within the BNSS (or the CrPC). This is likely a clerical error. 102 State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568