This article is written by Gaurav Jain of University of Rajasthan Law College.
India’s Criminal Justice system for more than the last 50 years has largely relied upon the Code of Criminal Procedure Act (1973). The Code is a colonial law that places more weight and value on administrative control than on providing any protection to victims or People. Many courts are overloaded and overworked, with many cases taking a long time to complete, creating a growing backlog. Police stations across the country have reportedly turned away people who were complaining about criminal situations because of Jurisdictional Restrictions. All of that changed on July 1, 2024, with the introduction of Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), which replaced the Code of Criminal Procedure.
The two most significant improvements created by the BNSS are the introduction of Electronic FIRs and mandatory deadlines for both the commencement and completion of trials. This article will explore each of these issues in detail including the design legal nature of E-FIRs, the impact of E-FIRs on citizens and police, the Judicial rulings regarding E-FIRs, and E-FIRs solved Ground-Level Implementation challenges.
What is an E-FIR?
Section 173(1)(ii) of the BNSS allows a First Information Report (FIR) to be filed by electronic means and at any police station, regardless of whether that police station has the proper authority to file the FIR. Many victims of crime have spent hours, days, and sometimes weeks trying to get their complaints submitted to a jurisdictional police department, resulting in lost wages, out-of-pocket expenses, decreased sense of dignity, and/or increased sense of fear. This is particularly true for victims of sexual assault, human trafficking, and victims of a crime that occurs in multiple jurisdictions.
Under this E-FIR procedure, the complainant can file a report on-line or through an electronic medium. The complainant must go to the police station to sign the FIR within three days of filing it electronically. The police station that receives the complaint via electronic means is then required to register the FIR, and if it does not have jurisdiction to investigate the complaint, it must forward it to the proper police station. This is a statutory codification of the judicial principle of a Zero FIR.
Speedy Trails
Mandatory timelines have been established throughout the criminal justice process under the new law. For the last 40 years, there have been few examples of courts enforcing the constitutional right to a speedy trial, as established by the Supreme Court, which defined the right to a speedy trial as a fundamental right under Article 21. The new law incorporates a statutory deadline into its constitutional provision of the right to a speedy trial, clearly establishing these deadlines to provide a legal basis for enforcement of the right by the Courts.
Sections 258 and 356 of the BNSS Law also provide a basis for summary trials and for trial and judgment of defendants in absentia (for those defendants who have received a proclamation), thus greatly reducing the ability of absconding defendants to delay their criminal proceedings.
Case Laws
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
This case is the foundation of speedy trial law in the Constitution. The Supreme Court found that there were thousands of under-trial prisoners in jails in Bihar whose period as an under-trial prisoner (by virtue of not having their hearings) exceeded the maximum sentence they could receive if convicted.
In this case, Justice P.N. Bhagwati stated that the right to speedy trial is part of the right to life and personal liberty protected by Article 21 of the Constitution. He then stated that an individual should receive a reasonable, fair, and just process before being deprived of their liberty and that if the procedure does not provide for a timely hearing, then the procedure is not reasonable, fair, or just.
Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1
A Constitution Bench consisting of five judges resolved the most important question in FIR. The Court ruled that if the information received by the police is of a cognizable crime as defined by Section 154 of the Code of Criminal Procedure (CrPC), then the police must register an FIR; the word “shall” does not provide any discretion. The Court indicated that there are limited exceptions to the requirement to register an FIR because of the need for a preliminary enquiry to determine if an FIR should be filed, which must be concluded within seven days.
Implementation
For Citizens:
-The ability to lodge an E-FIR from any location eliminates jurisdictional barriers.
-FIRs that are made public within 24 hours of being registered make it harder for the police to impact on or suppress complaints.
-Victims will have enforceable rights to approach the courts for remedies if statutory timelines are breached.
-Immediate action can be taken against time-critical offences, such as kidnapping or sexual offences, using the Zero FIR system.
For Police:
-DSP approval will be required before a preliminary inquiry can be conducted under Section 173(3), providing additional accountability for police.
-Formalised digital upload of the FIR provides for greater transparency and will provide an auditable record of the police process.
-Timeliness requirements in investigations, which also include a 60-day period for sexual offence investigations, will increase the operational pressures placed on police agencies and require modernised forensic and investigation capabilities.
-Section 105 will provide for the recording of all search and seizure procedures in audio and video format, which will reduce allegations of evidence planting.
Conclusion
This document addresses the potential for increased access to justice through the adoption and implementation of various legislative measures in India. The Bharatiya Nagarik Suraksha Sanhita, 2023 constitutes a very serious legislative attempt at transforming constitutional promises into practical realities. The recent inclusion of provisions for an e-FIR (electronic First Information Report) and a provision for Zero FIR (initiating an FIR without jurisdictional constraints) significantly reduces the barriers historically associated with the jurisdiction-denied aspect of police investigation. In addition, the imposition of statutory timetables for speedy trials clearly indicates that a clock has been introduced into a judicial process that has traditionally regarded delay as a given.
Frequently Asked Questions
How does a digital FIR (E-FIR) differ from a conventional FIR?
A digital FIR (first information report) is an electronically lodged report (via email, online portal etc.) without requiring the complainant to visit the police station in person; the complainant must sign the electronic FIR within 3 days of lodging the electronic FIR, but a conventional FIR is lodged through the police station in person. The electronic FIR has overcome the geographical and physical barriers that were previously limiting access to justice.
Does the BNSS legally recognize a zero FIR?
Yes, a zero FIR (first information report) is now recognized under section 173 (1) of the BNSS law; the zero FIR may be submitted at any police station regardless if the crime took place outside of the submitting station; the receiving police station is responsible for forwarding the zero FIR to the appropriate law enforcement agency in the correct jurisdiction. Zero FIRs were previously a judicial creation with no legal basis in statute law.
Under the BNSS, what are the required timelines for all types of trials?
For incidents involving rape and/or sexual assault, the entire investigation is limited to 60 days; once charges have been filed, the trial must be completed within 60 days; no later than 45 days after the completion of trial arguments, a judgment must be issued. The timelines for investigation, completion of a trial and time for making decisions are obligations as defined by law.
Are police allowed to put off registering FIRs under BNSS?
A. Police can delay registering FIRs for cognizable offences that are punishable for between 3 and 7 years, as per Section 173(3) (with approval from a DSP) for up to 14 days following any preliminary inquiry. For cognizable offences that have a penalty of less than 3 years or more than 7 years, the police still must register an FIR as required by the Supreme Court in Lalita Kumari (2014). The Lalita Kumari ruling will still apply to both categories.
Will the BNSS affect the rights of those accused?
A. Yes. Some critics say that several of the BNSS provisions restrict the rights of accused persons. Accused persons may have their custody granted by a Court, piece meal, during their first 40 – 60 days of judicial remand (cumulatively not exceeding 15 days); and if there are multiple charges for an accused, the default bail entitlement for their being detained for the greater of half of their maximum terms of imprisonment and 60 days will be lost.
