BNSS
MODULE 1
Due Process and Crime Control Model- Packer
- Theoretical Models- assess the leanings of the procedural law
CRIME CONTROL VALUES
- repression of criminal conduct is by far the most important function
- The failure of law enforcement to bring criminal conduct under tight control is viewed as a breakdown of public order and, thus, victimisation of
law-abiding citizens.
- criminal process is a positive guarantor of social freedom.
- primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate
dispositions of persons convicted of crime.
- high rate of apprehension and conviction
- magnitudes being dealt with are very large, and the resources are limited.
- premium on speed and finality. Speed depends on informality and on uniformity; finality depends on minimizing the occasions for challenge.
- The process must not be cluttered with ceremonious rituals- Facts can be established more quickly through interrogation in a police station than
through the formal process of examination and cross-examination in a court. It follows that extrajudicial processes shouldbe preferred to judicial
processes, informal to formal operations.
- an early determination of probable innocence or guilt is done. The probably innocent are screened out. The probably guilty are passed quickly
through the remaining stages of the process. presumption of guilt.
DUE PROCESS VALUES
- Like an obstacle course. Each of its successive stages is designed to present formidable impediments to carrying the
accused any further along in the process.
- Rejection of informal factfinding processes as definitive of factual guilt and to the insistence on formal and adjudicative
factfinding processes in which the factual case against the accused is publicly heard by an impartial tribunal and is
evaluated only after the accused has had a full opportunity to discredit the case against him.
- The demand for finality is thus very low in the Due Process Model.
- The Due Process Model insists on the prevention and elimination of mistakes to the extent possible…If efficiency
suggests shortcuts around reliability, those demands must be rejected. The aim of the process is at least as much to protect
the factually innocent as it is to convict the factually guilty.
- The combination of stigma and loss of liberty that is embodied in the end result of the criminal process is viewed as being
the heaviest deprivation that government can inflict on the individual. According to this ideology, maximal efficiency
means maximal tyranny.
- Role of procedural criminal law?
- Where does CrPC lie?
- Investigation (by police- before chargesheet), inquiry (by mag- before charges), and trial (by
mag after charges).
Classification of Offences and The Logic
Cognizable and Non-Cognizable
- 2 (g) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a
police officer may, in accordance with the First Schedule or under any other law for the time being in force,
arrest without warrant;
- 2 (o) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in
which, a police officer has no authority to arrest without warrant;
- Non-IPC cases 3 year punishment deciding factor
Bailable and Non-Bailable
- 2(c) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made
bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;
- 2 (b) "bail" means release of a person accused of or suspected of commission of an offence from the
custody of law upon certain conditions imposed by an officer or Court on execution by such person of a
bond or a bail bond;
- 2 (d) "bail bond" means an undertaking for release with surety;
- 2 (e) "bond" means a personal bond or an undertaking for release without surety;
- In bailable, bail is almost like a right, given as a matter of course. Non-Bailable means discretion of court.
RATIONALE???
Summons and Warrants Cases
- 2(x) "summons-case" means a case relating to an offence, and not being a warrant-case;
- 2 (z) "warrant-case" means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years.
Other Changes in definitions:
- 2(a) AV electronic means
- 2(i) electronic communication
- Explanation to investigation 2(l)
- Metropolitan area removed (concept of metropolitan magistrate removed from the code)
- Terms like pleader and prescribed removed.
Territorial Division (S.
7)
States
Competencies
and Hierarchy
of Criminal Sessions Division
Trial Courts
Districts
Sub-divisions
HIERARCHY OF COURTS
Earlier: Assistant Sessions
Judges as well as MM and
Supreme Court
CMM as well
JM- s. 9
Juris- s. 12 High Court
Subordination- s. 13
Spl. Courts- s. 9
Sessions Court (s. 8) (SJ and
Spl. Mag.- s. 11
add. SJ)
CJM and add. CJM (JMIC) (s. 10)
JMIIC JMIC
Sub-Div JM (JMIC) (s. 10)
SENTENCES PASSED BY THE CRIMINAL COURTS (s. 22-25)
- Supreme Court and High Court Any sentence
- Sessions Judge/ Add. SJ Any sentence/ death confirmed by HC
- CJM Up to 7 yrs + fine
- JMIC Up to 3 yrs + 50K fine or community
service
- JMIIC Up to 1 yr + 10K fine or community
service
- EXECUTIVE MAGISTRATES?? Hierarchy? DM/SDM/EM-Spl. EM (s. 14-18)
Other Functionaries and Their Roles
- Police
- Power to arrest, search , etc.
- INVESTIGATION AND PREVENTION
- 2 (l) "investigation" includes all the proceedings under this Sanhita for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf. DIFFERENT THAN Judicial Proceeding 2(m) (includes trial and inquiry
but not investigation)
- 2(r) (r) "officer in charge of a police station" includes, when the officer in charge of the police station
is absent from the station-house or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to such officer and is above the rank
of constable or, when the State Government so directs, any other police officer so present;
- S 30 Police officers superior in rank to an officer in charge of a police station may exercise the
same powers, throughout the local area to which they are appointed, as may be exercised by such
officer within the limits of his station.
- Public Prosecutors (s. 18-20)
- Duty to find truth and help court, not attain conviction
- Defence Counsels and Legal Aid
- Legal aid to accused at State expense in certain cases (s 341) Earlier only in COS
- S. 340 right to be defended (art 22(1))
Transitionary issues: BNSS or CrPC?
- S. 531- Repeal and Savings
- Abdul Khader v. State of Kerala (Crl.A No. 1186/2024; decided by Kerala HC) (prevailing
position re: applicability of BNSS after 1 July 2024)
NOTE:
- While referring to Kelkar then take care of the section numbers and even hierarchy.
- Chapter1-3 of Kelkar
