BHARTIYA NAGRIK SURAKSHA SANHITA,2023 (Jurisprudential and Constitutional Essence of BNSS, Inherent Powers of the High Court):

INTRODUCTION: -

The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, is a legislative initiative aimed at modernizing the procedural aspects of criminal law in India, replacing the outdated Code of Criminal Procedure (CrPC), 1973. This new legislation focuses on enhancing victim rights, streamlining investigations, and ensuring fair trials with due process. It incorporates technological advancements in the investigation process and emphasizes transparency and accountability in judicial proceedings. The BNSS also introduces measures for witness protection, alternative dispute resolution mechanisms, and the rehabilitation and reformation of offenders. Special provisions are included to protect and ensure speedy justice for vulnerable sections of society, such as women, children, and marginalized communities. Overall, the BNSS, 2023, seeks to create a more efficient, fair, and victim-centric criminal justice system in India, addressing contemporary challenges and aligning with international standards.

ENACTMENT & ENFORCEMENT DATE: -

The Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, was –

Enacted on – August 14, 2023, and its provisions came into Force on – July 1, 2024.

WHY COMES TO NEW CRIMINAL PROCEDURE?

The development of a new criminal procedure, such as the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, is driven by several critical factors. First and foremost, it aims to modernize and enhance the efficiency of the existing legal framework, which may have become outdated and cumbersome over time. By incorporating technological advancements and streamlining investigative processes, the new procedure seeks to expedite trials and improve overall case management within the criminal justice system.

Moreover, the introduction of a new procedure often reflects a commitment to strengthening the rights and protections of individuals involved in criminal cases. This includes ensuring robust safeguards for victims, witnesses, and the accused, thereby promoting a fair and transparent judicial process.

JURISPRUDENTIAL & CONNSTITUTIONAL ESSENCE OF BNSS: -

Every law does the act of balancing of rights, either between individuals (accused), victim & the society.

With respect to Bhartiya Nagrik Suraksha Sanhita, 2023. (hereinafter referred on BNSS for brevity). With reference to Bhartiya Nagrik Suraksha Sanhita, it has to be understood that a crime is consider to be a wrong against the whole society as it shakes the societal estability and security.

It is in the societal interest, that a culprit should be found out prosecuted, convicted and punished, but on the other hand the constitution essentially guarantees the fundamental rights to the individual and therefore any action of the state. In the process of prosecution against the accused. Hence, to secure the basic minimum freedom of the individual.

There has to be a fair balance between the societal interest & the individual interest by providing some basic right to individual.

This is called constitutional and jurisprudential essence of BNSS.

INHERENT POWERS OF THE HIGH COURT -(under section – 528, BNSS): -

Section – 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 states that, nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

PURPOSE OF INHERENT POWERS: -

Firstly, we know about the meaning of “Inherent Power”- Which power given by birth or by virtue of its existence.

The purpose of section – 528 of BNSS is to declare the existence of inherent powers and also to declare that the inherent power is restricted only to the High Court of BNSS.

High Court will use its inherent powers only when there is no provision regarding a provision regarding a particular thing or when there is no law on particular point.

The word ‘Nothing’ has been used and ‘Notwithstanding’. Nothing means a saving clause i.e. it saves the inherent powers of the High Court from the express provision of Sanhita, it implies that merely because express provision, the High Court will not loose its inherent powers rather it will co – exist in a complementary manner with the express provision.

To make such order as may be ‘Necessary’ to give effect to any order under this code, or to prevent abuse of the powers of any court or otherwise to secure the ends of justice.

The word Necessary implies that the High Court shall exercise its inherent powers inn exceptional circumstances.

Does Judicial Magistrate also have Inherent Powers?

The Magistrate or even the Court of Session do not have inherent power as section – 528 of BNSS. Expressly restrict inherent powers only to High Court.

Sakiri Vasu v/s State of U.P., (2007, SC): -

In this case, the basic issue before the court was when Magistrate can order investigation, can he also order proper investigation.

The honorable court held that, a magistrate does not have inherent powers and application of section – 528, BNSS. can be filed only before the High Court.

Still the magistrate has implied o incidental powers when he has been given the power to pass o order than incidental upon that he also has the power to make his order effective. Thus, if he can pass the order of investigation than he also have the incidental power to order a proper investigation.

A.R. Anthony v/s R.S. Nayak, (1992, SC): -

Investigation is the sole prerogative of the police officer and the court cannot supervise investigation at all.

In this case honorable Justice Markandey Katju seems to have use the word monitor not supervise, in the sense of keeping eye whether a proper investigation has done or not?

Dharmesh bhai, Vasudev bhai v/s State of Gujrat, (2009, SC): -

The honorable Supreme Court held that, recalling of investigation is not an incidental investigation order rather it is just an opposite order and will not fall under the incidental powers of the magistrate. Such order can only be pass by the High Court under section – 528 of BNSS.

CONCLUSION: -

The Bhartiya Nagrik Suraksha Sanhita, 2023 is made a vital role in judiciary system. The purpose of new criminal law is to modernize and enhance the efficiency of the existing legal framework, which may have become outdated and cumbersome over time. By incorporating technological advancements and streamlining investigative processes, the new procedure seeks to expedite trials and improve overall case management within the criminal justice system.

This notes is written by Akansha Koshta.