The Closing Hymn
The miscellaneous provisions under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) serve as a vital concluding segment of the statute, encapsulating diverse provisions that, while not always directly connected to trial or procedural flow, are essential for the holistic operation of the criminal justice system. These provisions contain a series of legal mechanisms and safeguards that deal with special scenarios, ranging from the conduct of trials by High Courts, procedures involving armed forces personnel, powers of High Courts, electronic proceedings, to the repeal and savings clause. These provisions also codify the inherent powers of the High Courts to ensure justice is served, even in cases where procedural gaps may exist. Collectively, these provisions reflect the legislature’s intent to ensure adaptability, procedural clarity, and justice in varied circumstances not covered elsewhere in the BNSS.
When an offence is tried by the High Court (except under a specific provision), what procedure must it follow?
The High Court must observe the same procedure as a Court of Sessions would, if it were trying the case.
Can the Central Government make rules regarding trials of persons subject to military law?
Yes, the Central Government may make rules consistent with the BNSS and laws such as the Air Force Act, 1950; the Army Act, 1950; the Navy Act, 1957; and any other applicable Armed Forces laws, about whether such persons shall be tried by a civil Court or by a Court-martial.
What should a Magistrate do when a person subject to military law is charged before them?
The Magistrate must consider the applicable rules and, in proper cases, deliver the accused, along with a statement of the offence, to the commanding officer of the relevant military unit or the nearest station for trial by Court-martial.
What is included in the term “unit” in this context?
“Unit” includes a regiment, corps, ship, detachment, group, battalion or company.
What does the term “Court-martial” include?
It includes any Tribunal with powers similar to a Court-martial, constituted under the relevant law applicable to the Armed Forces of the Union.
What is the duty of a Magistrate upon receiving a written application from a commanding officer?
The Magistrate must use utmost efforts to apprehend and secure any person accused of an offence.
Can the High Court direct a prisoner to be brought before a Court-martial?
Yes, if it thinks fit, the High Court may direct that a prisoner in a jail within the State be brought before a Court-martial for trial or examination on any matter pending before the Court-martial.
Can the High Court make rules regarding petition-writers in subordinate Criminal Courts?
Yes, every High Court may, with prior State Government approval, make rules on who may act as petition-writers, issuing of licenses, regulating their business, fixing fees, penalties for rule violations, and other relevant matters.
How must rules made by the High Court under these provisions be published?
They must be published in the Official Gazette.
Can the State Government change functions from Executive Magistrate to Judicial Magistrate?
Yes, if permitted by a State Legislative Assembly resolution and after consulting the High Court, the State Government may direct such changes via notification.
Can a Judge or Magistrate try a case in which they are personally interested?
No, unless they have permission from the appellate Court, they cannot try or commit such a case or hear an appeal from their own judgment or order.
When is a Judge or Magistrate not considered personally interested in a case?
When they are involved in a public capacity or have only viewed the scene of offence or other relevant places as part of their inquiry.
Can an advocate practicing in a Magistrate’s Court sit as a Magistrate in that Court?
No, an advocate practicing in a Magistrate’s Court cannot sit as a Magistrate in that Court or in any Court within its jurisdiction.
Can a public servant involved in a sale under the BNSS bid for or purchase the property?
No, a public servant with duties related to the sale of property under the BNSS cannot purchase or bid for it.
Do High Courts have inherent powers under the BNSS?
Yes, nothing in the BNSS limits or affects the High Court’s inherent powers to give effect to any order under the BNSS, prevent abuse of process, or secure justice.
Is administrative action subject to inherent powers?
No, administrative action is not subject to inherent powers, as held in Engg. Export Promotion Council v. Usha Anand (2013).
Can the High Court quash a Magistrate’s order if allegations do not constitute an offence?
Yes, as per Sharda Pd. Sinha v. State of Bihar (1977).
Should the High Court use its inherent powers to quash FIRs with serious triable allegations?
No, as held in XYZ v. State of Gujarat (2019), such exercise is not proper.
Can the High Court’s inherent powers override statutory provisions?
No, as clarified in National Plywood Industries Ltd. v. JSVM Plywood Industries Ltd. (2021).
Can the High Court evaluate evidence in detail at the stage of using inherent powers?
No, minute consideration of evidence is not permissible at this stage, as held in CBI v. Arvind Khanna (2019).
Do the expressions “abuse of process of law” or “to secure the ends of justice” provide unlimited jurisdiction?
No, these expressions do not confer unlimited jurisdiction, as ruled in Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019).
Can quashment be sought before charges are framed or during discharge application?
Yes, anticipatory quashment is permissible as ruled in Umesh Kumar v. State of A.P. (2013).
Can non-compoundable offences be quashed based on compromise?
It depends on whether the offence is against society or a personal wrong, as per State of M.P. v. Dhruv Gurjar (2019) and State of M.P. v. Kalyan Singh (2019).
Are suo motu proceedings by a Judge against other Judges valid?
No, such actions are illegal as held in C.S. Karnan, In re (2017).
Can the High Court use inherent powers to reopen or alter an order after it’s decided on merits?
No, as ruled in State of M.P. v. Man Singh (2019).
When can criminal liability arise from a contract with a company?
Only when there’s dishonest intent and the company and its officers are specifically impleaded, as held in Sushil Sethi v. State of Arunachal Pradesh (2020).
What is the duty of the High Court regarding subordinate courts?
The High Court must exercise continuous superintendence to ensure proper and speedy disposal of cases by Sessions and Judicial Magistrates.
Can trials and proceedings under the BNSS be held electronically?
Yes, all such proceedings may be held using electronic communication or audio-video means.
What aspects are included under electronic proceedings?
Issuance and service of summons/warrants, examination of complainants/witnesses, evidence recording, and appellate proceedings.
What happens to the Code of Criminal Procedure, 1973 under the BNSS?
It is repealed.
What happens to ongoing cases at the time the BNSS comes into force?
They shall continue under the provisions of the CrPC, 1973, as if the BNSS had not come into force.
What happens to actions taken under the CrPC before the BNSS came into force?
They are deemed to have been done under the corresponding provisions of the BNSS.
What about sanctions or consents under the old Code that were not acted upon?
They are deemed valid under the BNSS, and proceedings may begin accordingly.
Can expired limitation periods under the old Code be revived by the BNSS?
No, nothing in the BNSS shall enable such expired proceedings to be revived even if it provides for a longer period or extension.
Therefore, the miscellaneous provisions under the BNSS, 2023, provide the finishing touch to a comprehensive legal framework aimed at modernizing India’s criminal procedure. They establish critical procedures for specialized trials, uphold judicial ethics, define the relationship between civil courts and military tribunals, and empower High Courts with supervisory and corrective powers. Furthermore, with the formal repeal of the Code of Criminal Procedure, 1973, these provisions ensure a smooth legal transition, protecting pending cases and past actions. In essence, these provisions embody legal foresight, ensuring the continuity, flexibility, and effectiveness of criminal justice administration in a rapidly evolving legal landscape.
Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.
