Unpacking Police Powers

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant transformation in India’s criminal justice landscape, replacing the colonial-era provisions of the Code of Criminal Procedure, 1973. Among its many reforms, the BNSS introduces crucial changes to the procedures governing the provisions of information to the police and their investigatory powers.

How can information regarding a cognizable offence be given to an officer in charge of a police station?

Information about a cognizable offence can be given either orally or through electronic communication to an officer in charge of a police station.

• If given orally, it must be reduced to writing by the officer or under his direction and then read over to the informant, who must sign it.
• If given by electronic communication, it must be taken on record and signed by the informant within three days. The substance of the information is then entered in a book, as prescribed by the State Government.

What special provision exists for recording information when the informant is a woman against whom certain offences have been committed?

If the information relates to an offence committed or attempted against a woman under specific sections of the Bharatiya Nyaya Sanhita, 2023, the information must be recorded by a woman police officer or a woman officer.

How is the information recorded when the informant is mentally or physically disabled?

If the informant is temporarily or permanently mentally or physically disabled:

• The information must be recorded at the informant’s residence or a convenient place of their choice.
• The recording must be done in the presence of an interpreter or a special educator, if needed.
• The process of recording must be videographed.
• The statement must also be recorded by a Magistrate as soon as possible.

Is the informant entitled to receive a copy of the recorded information?

Yes, a copy of the recorded information must be provided to the informant or victim free of cost.

What is the process if the information relates to a cognizable offence punishable with imprisonment for three to seven years?

The officer in charge of the police station may, with prior permission from an officer not below the rank of Deputy Superintendent of Police, either:

• Conduct a preliminary enquiry within fourteen days to ascertain if a prima facie case exists, or
• Proceed with the investigation if there is a prima facie case.

What can a person do if the officer in charge refuses to record information about a cognizable offence?

If an officer refuses to record the information, the person may send the substance of the information in writing and by post to the Superintendent of Police, who must investigate the case or direct an investigation by a subordinate officer if satisfied that a cognizable offence has been disclosed. Failing this, the person may apply to the Magistrate.

What is the process when information is given about a non-cognizable offence?

When information is given regarding a non-cognizable offence:

• The officer must record the substance in a book as prescribed by the State Government.
• The informant is referred to the Magistrate.
• A daily diary report of such cases is forwarded fortnightly to the Magistrate.

Can a police officer investigate a non-cognizable offence without the Magistrate’s order?

No, a police officer cannot investigate a non-cognizable case without an order from a Magistrate who has the power to try such a case or commit it for trial.

What happens if a case involves both cognizable and non-cognizable offences?

If a case involves two or more offences, with at least one being cognizable, the entire case is treated as a cognizable case, allowing the police to investigate without a Magistrate’s order.

Can a police officer investigate a cognizable case without a Magistrate’s order?

Yes, any officer in charge of a police station can investigate a cognizable case without a Magistrate’s order if a Court having jurisdiction over the area has the power to inquire or try the offence. However, the Superintendent of Police may require the Deputy Superintendent of Police to investigate, depending on the nature and gravity of the offence.

Can a police investigation be questioned on the grounds of improper authorization?

No, any proceeding of a police officer in investigating a cognizable case cannot be questioned on the ground that the officer was not empowered to investigate the case.

Can a Magistrate order an investigation?

Yes, any Magistrate empowered under the BNSS may order an investigation after considering an application supported by an affidavit and after necessary inquiry and submissions by the police officer.

What should an officer in charge do if they suspect the commission of an offence?

If the officer suspects the commission of an offence:

• They must send a report to a Magistrate empowered to take cognizance of the offence and proceed in person to investigate or deputize a subordinate officer to investigate and take necessary measures to arrest the offender.

Is there any special procedure for the recording of statements in cases of rape?

Yes, in cases of rape, the victim’s statement must be recorded at her residence or a place of her choice, preferably by a woman police officer and in the presence of her parents, guardian, relatives, or a social worker. The statement may also be recorded through audio-video electronic means.

How are investigation reports submitted to the Magistrate?

Every report sent to a Magistrate must be submitted through a superior police officer, if directed by the State Government. The superior officer may record instructions on the report and transmit it without delay to the Magistrate.

What can a Magistrate do after receiving an investigation report?

Upon receiving a report, the Magistrate may:

• Direct an investigation.
• Hold a preliminary inquiry into the case or delegate the inquiry to a subordinate Magistrate.

Can a police officer require witnesses to attend during an investigation?

Yes, a police officer may require witnesses within the limits of his own or adjoining station to attend before him if they appear to be acquainted with the facts of the case. However, certain categories of people, like those under fifteen years or above sixty years, women, or persons with disabilities, cannot be required to attend at any place other than their residence unless they choose to do so.

Can expenses be provided to witnesses?

Yes, the State Government may make rules regarding the payment of reasonable expenses for witnesses attending at a place other than their residence.

Can a police officer examine witnesses orally?

Yes, any police officer conducting an investigation may orally examine any person supposed to be acquainted with the case’s facts and circumstances. The person must answer all questions truthfully, except those that may expose them to criminal charges or penalties.

How are statements of witnesses recorded by the police?

Statements may be recorded in writing, and the officer must make a separate and true record of each person’s statement. The recording can also be done by audio-video electronic means. If the statement involves a woman against whom certain offences have been committed, it must be recorded by a woman police officer.

Can statements made to police officers be used during an inquiry or trial?

Statements made to police officers during an investigation, if reduced to writing, cannot be signed by the person making them. Such statements or records cannot be used during an inquiry or trial except to contradict a witness, as allowed under the Bharatiya Sakshya Adhiniyam, 2023.

Who can record a confession or statement during an investigation?

A Magistrate of the district where the offence has been registered may record any confession or statement made to him during an investigation, or at any time before the commencement of the trial. The confession must be recorded voluntarily after informing the person that they are not bound to make a confession, and it may be used as evidence against them.

Can a confession be recorded by a police officer with Magistrate powers?

No, a confession cannot be recorded by a police officer who has been conferred Magistrate powers.

How should confessions be recorded?

Confessions should be recorded as per the BNSS for recording an accused person’s examination. The Magistrate must make a memorandum stating that the person was informed of their rights and that the confession was made voluntarily. The statement must be signed by the person making it.

What is the procedure for recording statements of victims in certain serious offences?

For offences under specific sections of the Bharatiya Nyaya Sanhita, 2023, the Magistrate must record the victim’s statement as soon as possible. The statement should preferably be recorded by a woman Magistrate or in her absence by a male Magistrate in the presence of a woman.

What is the procedure for recording a statement if the person is mentally or physically disabled?

The Magistrate must take the assistance of an interpreter or a special educator and videograph the statement’s recording. The statement must also be considered for its admissibility as per the Bharatiya Sakshya Adhiniyam, 2023.

Therefore, the BNSS seeks to create a balanced approach in the exercise of police powers, emphasizing accountability and transparency. By redefining the procedures for providing information and enhancing investigatory powers, the new legislation aims to address the shortcomings of the previous system while safeguarding the rights of citizens. As the practical application of these provisions unfolds, it will be crucial to monitor their effectiveness in achieving the intended reforms and ensuring justice for all stakeholders.

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 is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.