With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, Section 498A of the Indian Penal Code (IPC), which criminalised cruelty against married women, has been retained with minor modifications. Now listed as Section 85 of the BNS, the provision continues to address domestic violence and harassment, particularly in cases involving dowry-related cruelty. Despite its crucial role in protecting women, concerns over its alleged misuse have persisted, prompting calls for legal safeguards to prevent false cases while ensuring justice for genuine victims. This necessitates a balanced approach that upholds the law’s intent while incorporating necessary reforms to prevent its exploitation.

The primary criticism levelled against Section 498A is that it has been exploited by some women to file false complaints, leading to wrongful arrests and harassment of innocent individuals. This concern has been echoed in various Supreme Court and high court rulings, which have called for caution in its application. Yet, a crucial question remains largely overlooked: Is the problem rooted in the law itself, or is it the failure of institutions responsible for its implementation? This piece argues that the so-called misuse of Section 498A is not a reflection of the law’s inherent flaws but rather a consequence of systemic failures by law enforcement, the legal fraternity, and district court judges. Their lack of diligence, patriarchal biases, and procedural lapses often result in either wrongful prosecutions or the dismissal of genuine cases, creating an illusion of widespread abuse of the provision.

Understanding section 498A and its intent

Section 498A was specifically designed to protect women from cruelty, which includes acts that endanger their physical or mental well-being, harassment for dowry, and behaviour that could drive them to suicide. The provision is broad in its scope, recognising that cruelty manifests not only in physical violence but also in emotional and psychological abuse. Despite its protective intent, the law has been portrayed as a tool for harassment, with critics arguing that false cases are filed to settle personal scores. However, such claims often fail to acknowledge the larger reality—domestic violence and dowry-related abuse remain rampant in India, as consistently reflected in National Crime Records Bureau (NCRB) data.

The Supreme Court has addressed concerns regarding the misuse of Section 498A in several key judgments. In Shobha Rani v. Madhukar Reddi (1988), the Court held that the demand for dowry itself constitutes cruelty, reaffirming the necessity of stringent legal measures against such practices. In Samar Ghosh v. Jaya Ghosh (2007), the Court elaborated on the concept of mental cruelty, recognising that humiliation, emotional neglect, and lack of support could all amount to cruelty in matrimonial cases. The judgment in Savita Bhatnagar v. V.K. Bhatnagar (2014) further underscored that cruelty is not limited to physical violence but also includes psychological harm. More recently, in K. Srinivas Rao v. D.A. Deepa (2013), the Supreme Court acknowledged that filing false criminal complaints could itself amount to mental cruelty, which has often been cited in discussions about alleged misuse of the law. However, these cases highlight the need for better procedural safeguards, not the redundancy of Section 498A itself.

The necessity of Section 498A is further underscored by real-life cases of cruelty. In Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was unable to meet dowry demands, leading to her being administered sedatives and ultimately attempting suicide by cutting her veins. In Surajmal Banthia & Anr. v. State of West Bengal, a woman was subjected to prolonged ill-treatment, denied food, and harassed to the point of death. Such cases illustrate the horrifying realities that necessitate strong legal protection under Section 498A. The provision does not solely address dowry-related violence but also encompasses any wilful conduct that endangers a woman’s health or safety. Yet, in cases such as Ashok Batra & Ors v. State, where a deceased woman’s letters detailing harassment were disregarded, the judiciary’s failure to treat such evidence seriously highlights the systemic shortcomings in the law’s implementation.

Use of section 498A

Section 498A has been instrumental in providing legal recourse to women who face cruelty and abuse within their matrimonial homes. In numerous cases, it has been a crucial tool in holding perpetrators accountable. For instance, in Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was subjected to extreme cruelty when she was administered sedatives and later attempted suicide after being unable to meet dowry demands. Similarly, in Surajmal Banthia & Anr. v. State of West Bengal, the victim was ill-treated, denied food, and mentally tortured for days before succumbing to abuse. Cases like these highlight the persistent and grave nature of domestic cruelty, underscoring why Section 498A remains necessary.

The provision not only addresses dowry-related harassment but also extends to broader forms of cruelty, including emotional and mental abuse. In Ashok Batra & Ors v. State, the courts failed to give due weight to letters left behind by the deceased woman detailing her harassment, ultimately granting the accused the benefit of the doubt. Such instances demonstrate how, despite the presence of evidence, judicial reluctance sometimes leads to injustice for victims. Section 498A serves as a legal safeguard against such oversights, ensuring that complaints of cruelty are taken seriously and investigated thoroughly.

The real problem: systemic failures, not the law

The discourse on the misuse of Section 498A often fails to scrutinise the role of those responsible for its enforcement. Law enforcement officers frequently act arbitrarily—either making indiscriminate arrests without investigation or, conversely, dismissing genuine complaints due to entrenched biases or corruption. Legal professionals, too, contribute to the problem, with some exploiting procedural loopholes to either misuse the provision for personal gain or to shield accused individuals from accountability. District court judges, who preside over most of these cases, often lack the necessary gender sensitisation, leading to inconsistent verdicts where both wrongful convictions and unjust acquittals occur.

There are key elements to Section 498A that dictate its implementation. For an offence to be recognised under this section, the woman must be married, must have been subjected to cruelty or harassment, and such acts must have been perpetrated by her husband or his relatives. Additionally, situations that warrant immediate legal intervention include medical evidence of abuse, the refusal to return a woman’s assets under Section 406 IPC (criminal breach of trust), and threats or coercion that endanger her life. However, rather than conducting thorough investigations, police officers often either act hastily or dismiss complaints altogether, further complicating the issue.

Judicial interventions have sought to regulate the use of Section 498A by setting guidelines to prevent arbitrary arrests and ensure due process. However, such rulings should not be misinterpreted as evidence that the law itself is flawed; rather, they highlight the need for better enforcement mechanisms to ensure that both victims and the wrongfully accused receive justice.

Recent judgment lamenting “misuse of Section 498A”

Yashodeep Bisanrao Vadode v. State of Maharashtra (2024)

In October 2024, the Supreme Court overturned the conviction of a man under Sections 498A and 34 of the IPC, ruling that there was no substantive evidence against him. The appellant, the brother-in-law of the deceased, had been accused of harassing and torturing her over dowry demands, alongside her husband and sister-in-law. However, he challenged the High Court’s decision upholding his conviction, arguing that the alleged dowry demand took place in January 2010, whereas his marriage to the deceased’s sister-in-law occurred later in October 2010.

The Supreme Court found “no scintilla of evidence” linking him to the alleged cruelty and criticised the indiscriminate implication of family members in Section 498A cases. The bench emphasised that courts must be vigilant in identifying instances of over-implication to prevent innocent individuals from enduring unwarranted legal consequences. The judgment highlighted concerns over exaggerated accusations in 498A cases, cautioning against their misuse.

Payal Sharma v. State of Punjab (2024)

In November 2024, the Supreme Court cautioned lower courts against the unnecessary implication of distant relatives of a husband in Section 498A cases. The case arose after the complainant, the wife’s father, lodged an FIR shortly after the husband-initiated divorce proceedings. The complaint not only named the husband and his parents but also included the husband’s cousin and his cousin’s wife, alleging dowry harassment and cruelty. When the implicated relatives sought to have the case quashed, the High Court rejected their plea, citing the filing of the chargesheet.

On appeal, the Supreme Court criticised the High Court’s approach, stating that it was obligated to assess whether the inclusion of distant relatives was an instance of over-implication or exaggeration. The Court noted that the accused relatives resided in a different city from the complainant’s daughter, raising questions about the credibility of the allegations. Additionally, the Court clarified that while Section 498A does not explicitly define “relative,” the term should be understood in a common-sense manner, typically referring to immediate family members such as parents, children, siblings, and their spouses. It stressed that if allegations extend to individuals not directly related by blood, marriage, or adoption, courts must carefully scrutinise whether the claims are exaggerated. The judgment reinforced the need for judicial vigilance to prevent unwarranted prosecutions under Section 498A.

Achin Gupta v. State of Haryana (2024)

In the said case, the Supreme Court raised concerns over the potential misuse of Section 498A IPC and its equivalent provisions in the Bharatiya Nyaya Sanhita, 2023 (BNS), namely Sections 85 and 86. The Court urged Parliament to reconsider these provisions in light of the “pragmatic realities” surrounding allegations of cruelty in matrimonial disputes. The case involved a husband who had approached the Supreme Court after the High Court refused to quash an FIR filed against him under Sections 323, 406, 498A, and 506 IPC. The FIR had been lodged by his wife following his decision to initiate divorce proceedings on grounds of cruelty.

The Supreme Court held that if an FIR, when read in its entirety, suggests that criminal proceedings were initiated with an ulterior motive to harass the accused, the High Court must exercise its inherent powers under Section 482 CrPC to quash the case. The judgment cautioned law enforcement against the mechanical application of Section 498A in every case of marital discord, stating that police authorities should ensure that the provision is not used as a tool to exert undue pressure on husbands. The Court also emphasised that trivial disputes or day-to-day quarrels between spouses should not automatically be classified as cruelty under the law.

Expressing serious apprehensions over the misuse of Section 498A, the bench of Justices J.B. Pardiwala and Manoj Misra called upon the Legislature to reassess the provisions under the BNS before they took effect. The Court noted that while Sections 85 and 86 of the BNS largely replicate Section 498A IPC, the explanation defining “cruelty” has been structured as a separate provision under Section 86. The ruling reinforced the need for judicial scrutiny in matrimonial disputes and warned against indiscriminate prosecutions under the guise of protecting women’s rights.

Dara Lakshmi Narayana & others v. state of Telangana & another (2024)

On December 10, 2024, the Supreme Court once again cautioned against the indiscriminate use of Section 498A IPC, stressing that it should not be misused as a tool for personal vendetta. While quashing a domestic cruelty case against a husband and his in-laws, the bench comprising Justices B.V. Nagarathna and N. Kotiswar Singh criticised the growing tendency to implicate all members of a husband’s family in cases arising from matrimonial disputes. The Court noted that such misuse of the law distorts its original intent, which was to protect women from cruelty inflicted by their husbands and in-laws.

The case arose from a complaint filed by the wife after her husband sought the dissolution of their marriage. The Telangana High Court had refused to quash the domestic cruelty case, prompting the appellants—comprising the husband and his family—to approach the Supreme Court. Examining the complaint, the Court found that the allegations were vague and generalised, with no clear prima facie case against the accused. The Court observed that while genuine cases of cruelty must be taken seriously, frivolous and retaliatory complaints undermine the law’s credibility and burden the judicial system.

Justice Nagarathna, authoring the judgment, highlighted that while the provision was enacted to curb cruelty and ensure swift state intervention, its misuse has become increasingly common in matrimonial conflicts. The Court reiterated that Section 498A should not be weaponised to coerce or intimidate husbands and their families into submission. It also warned lower courts against mechanically prosecuting accused persons without scrutinising the legitimacy of complaints. In this case, the Court found that the wife had lodged the complaint as a counterblast to the husband’s divorce petition, thereby misusing the provision.

While quashing the proceedings, the Court clarified that its observations should not discourage women from filing genuine complaints under Section 498A when they have actually suffered cruelty. However, it stressed that cases lacking specific allegations should not be entertained, as they undermine the law’s purpose and erode trust in the legal system.

Digambar and another v. the State of Maharashtra and another (2024)

On December 20, 2024, the Supreme Court quashed a domestic cruelty case under Section 498A IPC against a husband’s parents, ruling that the case was filed with an ulterior motive to pressure their son into consenting to a divorce. The bench, comprising Justices B.R. Gavai and K.V. Viswanathan, set aside the Bombay High Court’s Aurangabad Bench decision, which had refused to quash the criminal proceedings.

The complainant alleged that her in-laws forced her to consume adulterated food, causing her miscarriage. She also accused them of mental and physical cruelty for not bearing a male child, leading to charges under Sections 312/313 IPC in addition to Section 498A. However, the Supreme Court noted that the complaint regarding the miscarriage and cruelty was made to the police two years after the alleged incident, with no supporting evidence that the appellants were aware of the complainant’s pregnancy or administered any harmful substances. The Court ruled that a mere allegation of cruelty does not constitute an offence unless it is shown to have been committed with the intent to cause grave injury, drive the victim to suicide, or inflict severe harm.

Justice Gavai, authoring the judgment, observed that the allegations were vague and lacked specific details of cruelty or misconduct. The only injury-related allegation mentioned that the complainant’s husband used to beat her, but no direct accusation was made against the appellants. Additionally, the Court pointed out the complainant’s failure to include these serious allegations in the ongoing divorce proceedings, raising doubts about her intentions. Given the two-year delay in filing the FIR, the Court inferred that the complaint was a retaliatory measure to exert pressure during the divorce case.

By quashing the proceedings, the Supreme Court reaffirmed that matrimonial disputes should not be weaponised through criminal complaints. It stressed that while genuine cases of domestic violence and cruelty must be taken seriously, courts should remain vigilant against attempts to misuse legal provisions for personal advantage.

Geddam Jhansi & Anr. v. the State of Telangana & Ors (2025)

On February 7, 2025, the Supreme Court quashed criminal charges of cruelty, dowry demand, and domestic violence against certain family members of the accused husband, emphasising the dangers of invoking criminal law in domestic disputes without specific allegations or credible evidence. The bench, comprising Justices B.V. Nagarathna and Nongmeikapam Kotiswar Singh, observed that family relationships are deeply rooted in social and cultural values and should not be disrupted by indiscriminate criminal proceedings. The Court stressed that while it is essential to protect victims of domestic violence, allegations must be scrutinised to prevent misuse of the law.

The case involved a complaint under Section 498A IPC, Section 506 IPC, and Sections 3 and 4 of the Dowry Prohibition Act, 1961, filed against the husband’s mother, his mother’s younger sister, and her brother-in-law. The appellants had sought to quash the proceedings, but the High Court refused, stating that a prima facie case had been made out against them. Challenging this decision, they approached the Supreme Court, which carefully examined the charge sheet and witness statements. The Court found that the allegations of harassment were based on information provided by the complainant to her parents rather than direct witness accounts. Additionally, claims of physical abuse by the husband and relatives were not mentioned in the complainant’s statement but had been added later by her parents, raising doubts about their credibility.

The Court further noted inconsistencies in the testimony of panchayat elders, who claimed to have attended meetings in Chennai despite residing in Telangana. It underscored that while specific allegations against the husband and mother-in-law existed, the accusations against the present appellants were vague. The Court warned against the tendency to implicate extended family members without clear evidence of their active participation in domestic violence. It clarified that merely failing to intervene in an abusive situation does not equate to perpetrating cruelty unless direct involvement is established.

Striking a balance, the Court reaffirmed that genuine cases of cruelty and violence must be addressed with sensitivity, ensuring that true perpetrators face consequences while preventing an indiscriminate legal dragnet. It held that there was no prima facie case against the appellants, as the evidence relied solely on the complainant’s allegations without specific roles attributed to them. Consequently, the criminal proceedings against them were quashed, with the Court making it clear that its findings would not affect the prosecution of other accused persons in the case.

Section 498A IPC: Addressing misuse without dilution

Section 498A of the Indian Penal Code was enacted to protect women from cruelty, particularly in the context of dowry-related harassment. However, debates around its alleged misuse have intensified over the years. While some argue that the law is frequently misused for personal vendettas, others assert that this narrative is largely exaggerated and has led to calls for dilution that could harm genuine victims. The reality is that the law is neither inherently flawed nor unnecessary; rather, its misuse stems from systemic weaknesses in enforcement, legal procedures, and societal attitudes.

Misuse of Section 498A does not occur in isolation. It involves various actors, each playing a role in how the law is applied or misapplied. A closer look at these factors reveals the need for reform in its implementation rather than weakening its protective provisions.

1. Complainants: False or exaggerated allegations: While Section 498A is a crucial legal safeguard for women facing domestic abuse, concerns about false or exaggerated complaints cannot be ignored. In some cases, women or their families may misuse the provision to settle personal scores, gain leverage in divorce or custody disputes, or pressure the husband’s family into financial settlements. The law’s stringent nature, which allows immediate arrest without preliminary investigation, can be misused in such situations.
2. Role of legal professionals: Some legal advisors contribute to the misuse of Section 498A by encouraging clients to file fabricated or exaggerated complaints. This is often done to strengthen matrimonial disputes, secure favourable financial settlements, or harass the husband’s family. Lawyers who prioritise winning cases over ethical considerations play a key role in enabling such exploitation.
3. Law enforcement and investigating agencies: The police, as the primary enforcers of the law, play a crucial role in its potential misuse. In some cases, officers arrest accused individuals solely based on complaints, without conducting a proper investigation. This may stem from external pressures, fear of being accused of negligence, or even corruption. Investigating agencies also contribute to wrongful prosecution when they fail to verify allegations thoroughly, sometimes due to inadequate resources or bias. The lack of proper scrutiny at this stage can lead to wrongful arrests, reinforcing the perception that Section 498A is frequently misused.
4. Judicial system and its role: The judiciary has acknowledged the possibility of abuse and issued guidelines to prevent wrongful prosecutions. However, inconsistencies in the application of these safeguards remain a challenge. The cognizable and non-bailable nature of the offence means that accused individuals can be arrested and face social stigma even before their case is heard in court. This reinforces the argument for stricter procedural safeguards while ensuring that genuine victims receive justice.
5. Societal and cultural influences: Deeply entrenched patriarchal norms contribute to the complex dynamics surrounding Section 498A. On one hand, families sometimes use the law as a weapon in dowry disputes or personal conflicts. On the other, societal conditioning discourages women from reporting domestic abuse, fearing social backlash. The stigma associated with marital discord often forces women to endure years of cruelty before seeking legal recourse, making it imperative that Section 498A remains a robust legal protection.
6. Lack of procedural safeguards: The absence of sufficient procedural checks has made Section 498A vulnerable to both misuse and under-enforcement. The law allows for immediate arrest without the need for preliminary verification, which can lead to wrongful detentions. At the same time, genuine victims often struggle to navigate the legal system due to patriarchal biases in law enforcement and the judiciary. Strengthening procedural safeguards—such as mandatory preliminary inquiries before arrest—could help balance the rights of the accused with the need to protect victims.

Strengthening implementation instead of dilution

Justice Dr Neela Gokhale of the Bombay High Court, speaking at an event on February 8, 2025, asserted that Section 498A is not misused but widely misunderstood. She noted that while some women may misuse the provision, this should not justify treating all cases under it as frivolous.

“I can confidently say that Section 498A is not being misused; rather, it is being misunderstood by everyone. It is now the responsibility of both the Bar and the Bench to rise to the occasion and offer appropriate legal guidance to clients,” she remarked, as per LiveLaw.

Justice Gokhale highlighted how societal attitudes discourage women from reporting domestic violence, citing a 2003 government report that found over 30% of married women in India experience physical, sexual, or emotional abuse at the hands of their husbands or in-laws. However, due to societal pressures, many cases remain unreported. She also addressed concerns regarding over-implication in complaints, where women sometimes name distant relatives to pressure the husband’s family into financial settlements.

Acknowledging this, she cautioned that overuse of Section 498A risks discrediting real victims.

“On the bench, we may see ten cases in a day where the ingredients of Section 498A are not met due to over-implication. But what about the eleventh case, which may be a genuine one? Unfortunately, such overuse affects the credibility of real victims, and this is deeply concerning,” she observed.

Re-orienting the application of Section 498A

Rather than advocating for dilution, efforts should focus on improving the implementation of Section 498A. The following reforms could help strike a balance between preventing misuse and ensuring justice for genuine victims:

• Stronger investigative protocols: Law enforcement agencies should be required to conduct a preliminary inquiry before making arrests in Section 498A cases, as recommended by the Supreme Court in Rajesh Sharma v. State of UP (2017). This would help filter out false complaints while ensuring that genuine victims receive immediate protection.
• Legal accountability: Lawyers who misuse procedural gaps to encourage false cases should face disciplinary action. Legal professionals must prioritise ethical advocacy over strategic litigation tactics.
• Judicial sensitisation: District court judges must receive gender sensitisation training to distinguish between routine marital discord and legally recognised cruelty. This will help ensure fair adjudication without bias against either party.
• Public awareness campaigns: Educating women on their rights and legal options can reduce unnecessary litigation while encouraging victims of genuine abuse to seek justice.

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The post The Debate around Section 498A: Misuse or inappropriate application? appeared first on SabrangIndia.

How this manifests with respect to remand and police custody has already been discussed here. This time, we move a little away from personal freedoms and come to property of the accused. What does BNSS allow to be done to the property of an accused person or property that is a ‘proceeds of crime?’ And how does such facilitation by the BNSS fare against the realities of Indian Criminal Justice system. This is the point of discussion forthwith.

Property and criminal justice system

From the Mauryans to the Romans—every kingdom gave itself the power to confiscate the property of criminals. In the ancient and medieval times—we see on paper that if someone is a criminal—i.e., if someone has committed a criminal act and got some value out of it, and if it is proved as such, the property arising out of such criminal act would be forfeited with or without a fine.[1][2] For example, if someone stole cattle, they’d have to give back the cattle and may be some fine apart from the punishment.[3] This got carried onto today. In the CrPC, 1898- the predecessor of CrPC 1973—there were provisions to attach the property until a fine is paid or if there is a dispute over the possession of property that is causing disturbance to peace.[4]

However, with the introduction of the BNSS, a new regime has unfolded. A regime in which property could be attached if the police reasonably believe something (property) to be derived from a crime and could even be liquidated before the crime is proven. Many use the word ‘medieval’ to describe any archaic notions and paradigms and in this case of BNSS and property attachment, using medieval sounds like a medal.

The transition from the Code of Criminal Procedure (CrPC), 1973, to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a critical shift, particularly in relation to police and judicial powers over property attachment. While CrPC provided limited powers regarding the seizure and attachment of property, especially immovable assets, BNSS introduces an expansive approach, broadening the scope of attachment beyond absconding accused persons to encompass all criminal activities. The Prevention of Money Laundering Act, 2002 (PMLA), as a special law, had already established attachment provisions targeting financial crimes. However, BNSS now extends similar provisions across all criminal cases, raising concerns about the extent of police and judicial discretion.

Attachment of property under CrPC: limited and case-specific

What is an ‘attachment’ is a question we need to have answer for, before any further discussion can happen. Attachment of the property means that the properties in question are held in custodia legis (in the custody of the law).

Under the CrPC, property attachment was primarily governed by Sections 82, 83, and 102. These provisions delineated different contexts in which property could be seized or attached. Section 82 provided for the proclamation of an absconding accused, requiring them to appear before the court within a stipulated period. If the accused failed to comply, Section 83 allowed courts to attach both movable and immovable property of the absconding individual. This attachment served as a coercive measure to ensure the accused’s presence in court. The fundamental premise of this provision was to deal with fugitives rather than to target assets suspected to be linked to criminal activities.

Section 102, on the other hand, was a police power confined strictly to the seizure of movable property. It enabled law enforcement to seize property suspected of being stolen or involved in an offense. However, this provision did not extend to immovable property, a limitation clarified by the Supreme Court in Nevada Properties Private Limited v. State of Maharashtra (2019).[5] The court explicitly ruled that Section 102 only permitted the seizure of movable property, thereby excluding any interpretation that allowed for the attachment of immovable assets. Consequently, under the CrPC, the ability of law enforcement to interfere with immovable property was primarily restricted (in general terms) to cases of absconding accused under Section 83A.[6]

Why did the Supreme Court say that Section 102 of the CrPC only applied to movable property?

Section 102(1) states as follows: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.

A literal interpretation of the word ‘any property’ would enable a court to arrive at both movable and immovable property. The court however frowned at giving the power to the police officers to seize immovable property. It stated as follows:

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Here, the court recognised the power of police, the inherent power imbalance and therefore did not go with the reading which would have resulted in Section 102 applying to immovable property.

BNSS’s expansion: section 106 & section 107

The BNSS largely retains Sections 82 and 83 from the CrPC but significantly alters the landscape of property attachment by bifurcating Section 102 into two separate provisions—Sections 106 and 107. Section 106 of BNSS serves as a direct successor to Section 102 of the CrPC, retaining its essence by allowing police to seize movable property linked to a criminal offense. However, a major development appears in Section 107, which significantly expands the police and judicial powers regarding property attachment. We could understand Section 107 of BNSS (Police power to apply for attachment and court’s power to liquidate the property) as a combination of Section 102 of CrPC (Police power to seize) plus Section 83 of the CrPC (Attaching the property of the absconder).

Section 107 of BNSS allows the police to apply to a magistrate for the attachment of property reasonably believed to be proceeds of a crime. Unlike Section 83 of the CrPC, which was confined to absconding accused, Section 107 applies to any criminal activity, making it far more expansive. The magistrate, upon satisfaction that the property is linked to a crime, may issue a Show Cause Notice (SCN) to the owner. If the owner fails to respond within 14 days, the magistrate can order an ex-parte attachment, meaning that property can be attached without the owner’s presence or contestation. This represents a dramatic shift in power, allowing attachment of property at an early stage of criminal proceedings without a final conviction.

Immovable property too can be attached under section 107

Under Section 107, the terms “property” and “proceeds of crime” are defined in Section 111. “Proceeds of crime” refers to any property that has been gained directly or indirectly from criminal activities, including those involving money transfers. “Property,” on the other hand, is broadly defined to include all types of assets—whether physical or intangible, movable or immovable. It also covers documents proving ownership or interest in such assets, as well as any property obtained through proceeds of crime. This broad definition means that even assets not directly involved in a crime but somehow linked to it can be attached or liquidated, widening the scope of police action under BNSS.

Liquidation of assets under section 107

A controversial aspect of Section 107 is its provision for liquidation of the attached property before the trial concludes. If the court determines that the property is indeed the proceeds of crime, it may order its liquidation and distribution to victims or, in the absence of claimants, its forfeiture to the government. This raises serious concerns about property rights, particularly in cases where the accused is later acquitted but their property has already been liquidated.

This is what the relevant provision related to liquidation says:

Section 107(6): (6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

What we do not get to see in this sub-section is a requirement for the court to first satisfy itself that the crime has occurred, and the property is a proceed of such crime.  All it needs to satisfy itself is that the property is a proceed of crime. Which crime? We will not know.

Expansive powers impacting civilians

One of the most concerning aspects of Section 107 is its potential for misuse against ordinary civilians. Consider a case where a small business owner is falsely implicated in a financial fraud case. Under BNSS, their property could be attached and liquidated before they even get a chance to prove their innocence. Unlike under PMLA, which limits attachment to scheduled offenses, BNSS allows attachment for any criminal activity, meaning even minor accusations could lead to serious consequences. If the business owner is later acquitted, there is no clear mechanism for restoring their property, as the law does not provide for post-liquidation restitution.

Similarly, consider a tenant whose landlord is accused of a crime. Under Section 107, if the authorities suspect that rent payments were linked to criminal proceeds, the property could be attached. The tenant could be evicted without any means of legal recourse, illustrating how BNSS’s sweeping powers could inadvertently impact uninvolved third parties.

Shifting power to the police and the role of judicial oversight

A crucial issue with BNSS’s Section 107 is the unprecedented shift in power to the police, who serve as the initiators of the attachment process. Under this provision, law enforcement officers have the discretion to determine whether a property is linked to a crime and seek a magistrate’s order for its attachment. This centralization of authority with the police raises significant concerns, as it places immense power in their hands over civilians’ property rights.

Given India’s historical challenges with police accountability and instances of abuse of power, the ability of law enforcement to attach and cause liquidation of property before a trial is concluded is particularly alarming. Without strict judicial vigilance, there is a high risk that Section 107 could be misused for political vendettas, personal grudges, or as a coercive tool to extract compliance from individuals accused of minor offenses. Judicial officers must exercise stringent oversight to ensure that ex-parte attachments are granted only in the most compelling cases, and that property liquidation does not occur without exhaustive scrutiny of the alleged criminal link. If the judiciary fails to curb potential excesses, Section 107 could become a powerful mechanism for state overreach at the cost of due process and individual rights.

Lack of restoration despite mention in section’s marginal note

A striking irony in Section 107 is the mention of “restoration” in its marginal note, despite no actual provision for returning property once liquidated. This is what the marginal note says: Attachment, forfeiture or restoration of property.

This contradiction is concerning because, once an asset is liquidated, it ceases to exist in its original form, making restoration impossible even if the accused is acquitted. This deviates from principles of justice, where wrongful deprivation should ideally be rectified. Unlike PMLA, which offers procedural checks before permanent forfeiture, BNSS provides no such recourse, exacerbating concerns about potential injustices.

Conclusion

Bharatiya Nagarik Suraksha Sanhita (BNSS), despite being positioned as a general statute intended to replace and modernize the Code of Criminal Procedure, has introduced attachment and liquidation provisions that reach beyond the stringent framework once reserved for specialized laws like PMLA. By normalizing expansive police powers—even in cases that fall outside the realm of serious financial crimes—BNSS tips the balance starkly in favour of law enforcement, often at the expense of individual property rights and due process. The risk here is not only theoretical: without clear judicial safeguards and robust accountability mechanisms, individuals and even third parties can find themselves embroiled in sweeping asset seizures with little chance of recuperation if later proven innocent. Rather than reinforcing the principle that one is presumed innocent until proven guilty, these new provisions hasten punitive actions that can effectively punish the accused long before any judicial determination. This gap—between the power of the state and the shrinking protections afforded to its citizens—poses a grave concern for the integrity of India’s criminal justice system. If left unchecked, these types of provisions could erode core democratic principles, overshadow existing specialized legislation, and embolden overreach by authorities, thereby undermining the very notion of Suraksha the BNSS promises to uphold.

(The legal researcher is part of the organisations legal research team)

[1] Ubale, S.V. and Salgar, P.B., 2021. Evaluating the Concept of Corruption through Kautilya’s Arthashastra: A Comparative Study in View of Modern Application. Issue 3 Int’l JL Mgmt. & Human., 4, p.4025.

[2] Loewenstein, K., 1973. The Administration of Justice. In The Governance of ROME (pp. 179-191). Dordrecht: Springer Netherlands.

[3] García, A.B.Z., 2022. Confiscation of assets as an accessory penalty. Revista Diálogos Mediterrânicos, (22), pp.95-111.

[4] Section 139, CrPC, 1898. Available at: https://cvc.gov.in/files/vigilance-manual-pdf/vm21ch5/vm17ch5/Code%20of%20Criminal%20Procedure%201898%20(repealed).pdf

[5] [2019] 15 S.C.R. 223

[6] A separate Chapter VII A exists for dealing with attachments of “proceeds of crimes” which involve other countries.

Related:

Strengthening safeguards against arbitrary arrests, Supreme Court bars WhatsApp & Email notices under Section 41A CrPC/Section 35 BNSS

Police Custody: How the BNSS has tilted the balance of power in favour of the state

Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

The post BNSS empowers law enforcement and judiciary with sweeping authority over property: a mightier state, a meeker citizen appeared first on SabrangIndia.

The amicus also brought to attention the Standing Order passed by the Office of Director General of Police Haryana published on January 26, 2024, which authorises the Police to serve notice to an accused in person or via WhatsApp, email, SMS or any other electronic mode. The order of the Haryana Police is in direct contravention of the Supreme Court judgement in the case of Satender Kumar Antil vs CBI.

Section 41A of the CrPC was introduced to prevent unnecessary arrests in cases where the offence is punishable with imprisonment up to 7 years. As per this section, instead of arresting the accused immediately, the police must first issue a notice of appearance in a prescribed mode. Section 35 of the BNSS is the corresponding section for Section 41A of the CrPC.

Background

To gain a comprehensive understanding of the Supreme Court’s stance on the procedure regarding the service of notice under Section 41A CrPC, it is essential to examine the circumstances that necessitated such a judicial interpretation.

In 2014, the Supreme Court laid down a landmark judgement in the case of Arnesh Kumar vs State of Bihar, [(2014) 8 SCC 273]. The Court deliberated upon the issue of unwarranted arrests and laid down guidelines for arrests to be made under Section 41, regarding all the offences punishable with imprisonment up to a period of 7 years. The guidelines were laid down for preventing arbitrary arrests and to protect individual liberties protected under Article 21 of the Indian Constitution.

While emphasizing the importance of following the due procedure laid down in the CrPC, the Court noted that “Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.” 

The primary objective of the Court was to protect the rights of the accused persons and to prevent them from being arbitrarily arrested. The landmark case laid down the ground for rights of arrested persons.

In 2018, in the case of Amandeep Singh Johar vs State of NCT of Delhi, [2018 SCC OnLine Del 13448], the Delhi High Court laid down the procedure to be strictly followed by the Police while issuing notice under Section 41A CrPC. This judgement came as a result of a writ petition under Article 226 and 227 of the Constitution of India, filed by an aggrieved person who had been summoned multiple times by the Police without issuing a notice under Section 41A of the CrPC. The writ petition highlighted how the Delhi Police had been functioning without strictly adhering to the procedure laid down under the CrPC regarding the issuance of notice to a person.

Further, in the case of Rakesh Kumar v Vijayanata Arya, [2021 SCC OnLine Del 5629], the Delhi High Court categorically mentioned that service of notice via WhatsApp, email, or any other electronic mode of communication would not be considered as valid as the same has not been provided in the provisions laid down in the CrPC. The petitioner in the case was taken into custody after notice was served upon him via Whatsapp and Email. The Court not only laid down the guidelines to be followed with regards to service of notice, but also provided for consequences for non-abidance of the same.

The Court held the arresting officer liable for contempt of court and noted that “Admittedly, the so-called ‘intimation’ through WhatsApp was not in the aforesaid format. Therefore, the intimation cannot be treated as a notice under Section 41A of the Cr. P.C. or of it having been served, as per the procedure laid down. Certainly, the IO (R-3) is in breach of the prescribed procedure as well as the Supreme Court’s direction in Arnesh Kumar. Personal liberty is a natural right of every human being. In India, it is guaranteed by the Constitution. The liberty of an individual cannot be trifled with. It can be curtailed by the State only through the procedure prescribed by law. The police officer has acted in clear breach of the constitutional guarantee and the specific orders of the Supreme Court.”

Satendar Kumar Antil vs CBI

In the case of Satender Kumar Antil vs CBI, [(2022) 10 SCC 51], the Court noted that there was an absence of specific guidelines with respect to the mandatory compliance of Section 41-A of the Code. The Court took a note of the endeavour made by the Delhi Court in the case of Rakesh Kumar v Vijayanata Arya where not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. The Court also took a note of the Standing Order 109 of 2020 passed by the Delhi Police which provided for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers.

The court ordered all State Governments and Union Territories to facilitate Standing Orders in accordance with procedural requirements under Section 41A of the CrPC, noting the Delhi Police’s Standing Order 109 of 2020.

Further, the bench noted that “We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41-A. We express our hope that the investigating agencies would keep in mind the law laid down in Arnesh Kumar, the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance.” 

In this case the Supreme Court upheld the judgement of the Delhi High Court in the case of Rakesh Kumar v Vijayanata Arya and recognized the importance of following due procedure laid down under the CrPC while serving notice to an accused. Furthermore, the Court directed state governments and union territories to issue standing orders regarding the procedural requirements under Section 41A of the CrPC referring to the Standing Order 109 of 2020 of the Delhi Police.

Recent developments

While hearing the recent plea in the case of Satendar Kumar Antil vs CBI, the amicus mentioned that “the police machinery must not circumvent the mandate of Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 by serving notices through WhatsApp or other electronic modes, instead of following the normal mode of service.” 

He further mentioned that while the new criminal code, BNSS, permitted the use of electronic means for conducting trials or enquiries, the service of e–notice under Section 35 was not permitted.

In accordance with Section 41-A of the CrPC, 1973/Section 35 of the BNSS, 2023, the Court ordered all States and UTs to issue a Standing Order to their respective police machinery directing them to exclusively serve notices via the procedure specified by the CrPC, 1973/BNSS, 2023.

The bench of Justice MM Sundresh and Justice Rajesh Bindal noted that “It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.” 

The Court further stated that the Delhi High Court’s guidelines in the cases of Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT Delhi), both of which were upheld by the Supreme Court in Satender Kumar Antil v. CBI, must be strictly followed by all States/UTs when issuing Standing Orders to their respective Police machinery pertaining to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023.

Conclusion 

Protecting individual freedoms is crucial, as demonstrated by the Supreme Court’s reaffirmation of procedural compliance in serving notices under Sections 41A of the CrPC and 35 of the BNSS, 2023. Due process and constitutional safeguards against arbitrary arrests have been strengthened by the Court’s clear rejection of electronic notice service. This decision is consistent with important rulings that highlight the presumption of innocence and the need for judicial scrutiny, such as Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI. The rights of the accused are safeguarded and the rule of law is upheld in India’s criminal justice system by ensuring that the prescribed procedures are strictly followed.

Related:

Erratic arrests by police and the Arnesh Kumar Judgement

Arrests: a prudent exception in cases with lesser sentence

Delhi HC sends police officer to prison for a day for violating Arnesh Kumar guidelines

The post Strengthening safeguards against arbitrary arrests, Supreme Court bars WhatsApp & Email notices under Section 41A CrPC/Section 35 BNSS appeared first on SabrangIndia.

Understanding remand: CrPC section 167

Section 167 of CrPC empowers a Magistrate to remand an accused person to different forms of custody during the investigation process. It is invoked when the investigation cannot be completed within 24 hours of arrest. The provision aims to strike a balance between two competing interests:

• Protecting Individual Liberty: The provision ensures that an individual’s liberty is not unduly curtailed, and that detention is subject to judicial oversight.
• Facilitating Effective Investigation: This empowers the investigating agencies to gather evidence and interrogate the accused, ensuring a thorough investigation.

Sub-section (2) of Section 167 is particularly significant as it lays down the procedure for remand and sets a maximum limit of 15 days for police custody. The proviso to Section 167(2) further elaborates on this limit, allowing for judicial custody beyond 15 days and setting overall time limits for investigation (60 or 90 days, depending on the severity of the offense) after which the accused would or could be released on bail.

Evolution of judicial interpretation

The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by significant judicial pronouncements:

• CBI vs. Kulkarni (1992): In this landmark case, the Supreme Court interpreted the proviso to Section 167(2) to mean that police custody was strictly limited to the first 15 days following the arrest.[1] This interpretation was aimed at safeguarding the accused from prolonged police detention, considered detrimental to individual liberty. This view was subsequently followed in Budh Singh v. State of Punjab (2000) — a three-judge bench order, solidifying the understanding that the 15 days of police custody had to be availed within the first 15 days of remand.[2]
• CBI vs Vikas Mishra (2023): The Supreme Court, acknowledging the practical challenges faced by investigating agencies, particularly in complex financial crimes, revisited the interpretation of Section 167(2) in this case. While the case dealt with the calculation of the 15-day period, the Court expressed the view that the earlier interpretation disallowing police custody beyond 15 days required reconsideration.[3]
• V. Senthil Balaji v. The State (2023): This case became pivotal in redefining the understanding of police custody under Section 167(2). The Supreme Court, while upholding the arrest and custody of the accused, interpreted the provision to allow for an aggregate of shorter custody periods spread across the entire investigation period (60 or 90 days). The Court reasoned that this interpretation was consistent with the provision’s language and its objective of balancing individual liberty with the need for effective investigation.[4] Justice Sundresh, authoring the judgment, emphasised:

“The period of 15 days being the maximum period would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody.”

The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous period and can be sought in shorter durations throughout the investigation, as long as the total does not exceed 15 days.

BNSS Section 187: The New Landscape

The Senthil Balaji judgement was delivered on August 7, 2023, and soon after, Union Home Minister Amit Shah introduced the three criminal law bills— Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), Bharatiya Sakhshya Adhiniyam (BSA) as new Penal, Criminal Procedure and Evidence Laws respectively.

The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards police custody. Section 187 of BNSS, the corresponding provision to Section 167 of CrPC, retains the 15-day limit on police custody. However, it introduces a crucial change in its wording, allowing investigating agencies to seek this period “in the whole or in part over 60 or 40 days”. This phrasing does not explicitly restrict police custody to the initial 15 days, unlike the proviso (as was interpreted in Kulkarni) in Section 167(2) of CrPC. This change in the BNSS aligns with the two-judge bench’s reasoning in the Senthil Balaji Case.

This change has sparked a debate and serious concerns about potential misuse and its impact on individual liberties. The lack of clear guidelines in BNSS regarding the circumstances under which police custody can be sought beyond the initial 15 days has amplified these concerns. The bills were subsequently referred to the Department-related Parliamentary Standing Committee on Home Affairs for its examination and report.

Ignoring the suggestions of the Standing Committee

The Parliamentary Standing Committee on Home Affairs, while reviewing the BNSS Bill, recommended incorporating specific safeguards to address this ambiguity. In the report it had adopted on November 6, 2023, it recommended that a suitable amendment may be brought to provide greater clarity in the interpretation of Section 187.  This recommendation was based on the suggestions from stakeholders arguing that as a general rule, custody should be taken in first 15 days of remand and the further window should only be utilised as an exception, when the accused is trying to avoid police custody or due to extraneous circumstances which are not within the control of the investigating officer.

Essentially, the committee sought to strike a balance between the rights-based approach and the approach of giving investigating agencies the necessary time. However, these suggestions did not materialise in the bills that were re-introduced and later passed in the Lok Sabha in December 2023. The BNSS came into force in July 2024.

How does it matter if 15 days of police custody is in part or whole?

Under the old CrPC regime, police could only request custody during the first 15 days of an investigation. After that, the accused was either placed in judicial custody or granted bail.

Under the new BNSS regime, the police can request custody in parts. For instance, they may request a 4-day custody period, after which the accused could be granted bail. However, since the police still have 11 days of custody left, they can later request another 4-day custody, potentially a week after the accused is granted bail. This means the 15-day custody limit could be stretched across the first 40 or 60 days, depending on the severity of the offense.

This matters for three key reasons:

1. The accused may face harassment through repeated police custody requests, disrupting their ability to function in daily life while on bail.
2. Not merely harassment –police custody is often an axiom for custodial torture– and prolonged availability of remand to an already powerful (and often brutalised police force) is likely to make accused victims to this in greater intensity in future.
3. Judicial officers may hesitate to grant bail until the police have exhausted their full 15-day custody allowance. Why? Granting bail early could require a cumbersome process of cancelling bail and approving further custody requests from the police.
4. When the CrPC was enacted in 1973, technological resources were far less advanced than they are today. Even then, the custody limit was capped at 15 days during the initial investigation period, as interpreted in the Kulkarni Case. With modern advancements like CCTV, facial recognition, and advanced forensics, allowing police to use the same 15-day period in parts grants them disproportionately higher power.

Implications

Potential for misuse:

The lack of explicit safeguards in BNSS regarding police custody beyond 15 days raises concerns about potential misuse and prolonged detention without adequate justification. For instance, the police could request custody on the 15th day of investigation while the accused is in judicial custody for a few days. Under the old regime, the police were required to seek custody within the first 15 days, after which the accused could apply for bail. However, now the accused is more likely to remain in prolonged detention until the police exhaust their 15 days of custody, effectively delaying the opportunity for bail.

Additionally, the right to claim custody in parts grants the police more power than before. For example, consider a situation where person X is arrested on Day 1 and sent to police custody by the court for 5 days on Day 2. On Day 7, X is released on bail. Until Day 16, X cooperates with the police by attending investigation sessions daily while on bail. However, on Day 17, X, frustrated with the line of questioning, decides to stop going to the questioning sessions. Since the police still have 10 days of custody remaining, they could use it as leverage to harass X. This skewed power dynamic makes it challenging for the accused to exercise their liberty, even when cooperating with the investigation.

In D.K. Basu vs. State of West Bengal (1996), the Supreme Court emphasised that in custodial crimes, the real concern is not only the infliction of physical pain but also the mental agony endured within the four walls of a police station or lock-up.[5] The new provision in the BNSS, by enabling the police to claim custody repeatedly within the 40/60-day period—depending on the severity of the offence—contradicts the judicial philosophy outlined in D.K. Basu.

Judicial Oversight:

The role of the judiciary becomes even more critical in ensuring that this power is exercised judiciously and that the rights of the accused are protected. Magistrates must rigorously scrutinise the grounds for seeking police custody at each stage, ensuring it is genuinely necessary for the investigation and not used as a tool for harassment or coercion. However, whether judicial officers will exercise such prudence or remain reluctant due to the challenges mentioned above remains to be seen.

Higher judiciary’s role – past and future

Both CBI v. Vikas Mishra and Senthil Balaji v. State demonstrate a judicial inclination towards prioritising the needs of investigation over a strict interpretation of the 15-day custody limit enshrined in Section 167(2) CrPC. However, these judgments fall short of providing a nuanced approach that balances both perspectives. The intent behind the Kulkarni case’s limitation of police custody to the first 15 days was to ensure there was no room for police excess. Since then, police powers have grown stronger, yet rather than achieving a balance between police authority and individual liberty, the Supreme Court judgments in Vishal Misra and Senthil Balaji have adopted a unidimensional approach.

The judgments could have explored the possibility of resetting the 15-day clock in situations beyond the investigating officer’s control rather than calling for a re-examination of the general rule established in the Kulkarni case.

For instance, if an accused falls seriously ill during custody, necessitating hospitalization and thereby preventing effective interrogation, the court could have considered pausing the 15-day countdown and resuming it upon the accused’s recovery. This approach would balance the need for a thorough investigation with the accused’s right to health and a fair opportunity to respond to allegations.

Similarly, in situations like CBI v. Vikas Mishra, where the accused obtained interim bail, other legal challenges or procedural delays could hinder the investigating agency’s access to the accused within the initial 15-day period. The judgments could have acknowledged such scenarios and allowed for a recalibration of the 15-day limit to ensure the investigation is not unfairly prejudiced.

To address this lack of balance, the higher judiciary could develop jurisprudence that empowers and enables lower courts to scrutinize police custody petitions seeking custody in parts, while carefully considering the rights of the accused. Although this will take time, it will provide the necessary balance that the BNSS currently lacks in Section 187.

Conclusion

While the current BNSS makes the questions posed by the court in Senthil Balaji and Vishal Misra almost infructuous, it is a constant expectation from the Supreme Court to exercise caution in calling established judgments and rules into question, which, unfortunately, was not met in these orders.

In a recent case, Prem Prakash vs. Union of India (2024), a two-judge bench of the Supreme Court stated as follows[6]:

“The principle that ‘bail is the rule, and jail is the exception’ is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a rule, and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure.”

While this judgment relates to a different factual matrix, its emphasis on deprivation being an exception underscores the need to balance the rights of investigating agencies and the liberty of the individual under Article 21.

On the other hand, the Criminal Procedure Code should not serve as a machinery for the state’s exercise of unbridled power. The government, too, could issue Standard Operating Procedures (SOPs) or even undertake an amendment to the BNSS to provide the necessary clarification and balance the power of the police. The amendments could range from specifying offences for which police custody in parts could be sought to defining situations in which police custody could be justified.

(The author is part of the organisations legal research team)

[1] (1992) 3 SCC 141 CBI vs. Kulkarni (1992)

[2] (2000) 9 SCC 266 Budh Singh v. State of Punjab (2000)

[3] 2023 SCC OnLine SC 377

[4] 2023 INSC 677

[5] (1997) 1 SCC 416, D.K. Basu vs. State of West Bengal (1996)

[6] 2024 INSC 637, Prem Prakash vs. Union of India (2024)

Related:

Under trial Prisoners: MHA directs States/UTs to implement section 479 of BNSS

Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

The post Police Custody: How the BNSS has tilted the balance of power in favour of the state appeared first on SabrangIndia.

The MHA order follows the Supreme Court of India’s ruling on August 23, 2024, regarding “Inhuman Conditions in 1382 Prisons.” The Apex court noted that the provisions of Section 479 of the BNSS would apply to all under trials in pending cases, regardless of whether their cases were registered before July 1, 2024, the date the new law took effect. The Supreme Court also directed that, “Compliance of the aforesaid provisions shall be made by the concerned District & Session Judges in all States/UTs who are in-Charge of the Under Trial Review Committees so that there is no laxity in implementation of the aforesaid beneficial provision.”

‘SC asks States to improve prison conditions’ can be read here

The Ministry of Home Affairs states in its order that overcrowding in prisons, especially the issue of large number of under trial prisoners, has been a matter of concern for the Government of India. For addressing the issue of long detention of under trial prisoners and the hardship faced by them, the Ministry of Home Affairs has been taking various progressive steps from time to time, including grant of financial aid to the States and Union Territories (UTs) for providing relief to such prisoners in seeking release from prisons

Further, ‘In context of the above, it is stated that Section 479 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has come into force with effect from 1st July 2024, provides that ‘Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail’ MHA stated in its order.

Notably, a new rule has been added to Section 479 (1) of the BNSS. It states that if a person is a first-time offender—meaning he/she has never been convicted of a crime before—he/she will be released on bond by the Court after serving up to one-third of the maximum period of punishment for their offense.

Legal mandate for superintendents of prisons

MHA directed all States and Union Territories (UTs) to recognise the specific legal responsibilities assigned to the Superintendents of Prisons. This includes disseminating pertinent information to relevant personnel and ensuring the effective implementation of the new provisions of the BNSS. Monitoring these initiatives is crucial for safeguarding the rights and conditions of undertrial prisoners.

MHA stated that section 479 (3) of the BNSS casts a specific responsibility upon the Superintendent of Prisons, where the accused person is detained, to make an application to the concerned court for release of such prisoners on bail. The text of Section 479 (3) is cited below for the information and attention of all prison authorities:

The Superintendent of Jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.’

MHA direction to States and UTs;

E-Prisons portal for quick identification

To assist State and UT prison authorities in identifying eligible prisoners swiftly, the Ministry of Home Affairs has enhanced the national E-Prisons portal. This platform provides essential data, such as the types of offenses, maximum sentences, and timelines for completing a significant portion of the imprisonment term. The E-Prisons portal facilitates timely access to inmate information, aiding authorities in moving applications for bail more efficiently.

Support for poor prisoners

MHA stated that it has previously introduced the ‘Support to Poor Prisoners’ scheme to assist poor prisoners unable to pay fines or secure bail due to financial hardships. This initiative particularly targets socially disadvantaged individuals and low-income groups. Financial aid is provided through respective States and UTs, helping prisoners cover outstanding fines or bail bonds. Despite the Union Home Secretary’s communication of the scheme’s guidelines, many States and UTs have yet to fully leverage this opportunity.

However, MHA also noted that Union Home Secretary, vide his letter dated 19th June, 2023, had forwarded the ‘Guidelines and Standard Operating Procedure’ of the Scheme to the Chief Secretaries and DG/IG Prisons of all States and UTs. However, it is noted that many States/UTs are yet to take full advantage of this scheme despite MHA’s repeated persuasion in this regard.

Impact of active involvement

Active participation and oversight from States and UTs are anticipated to significantly improve the situation of long detentions faced by under trial prisoners, while also addressing prison overcrowding. States and UTs are requested to take full advantage of the national e-Prisons portal and the Support to Poor Prisoners Scheme for providing relief to prisoners.

The Ministry of Home Affairs’ directive on October 16, 2024, emphasises the urgent need to address the plight of under trial prisoners in India. Following the Supreme Court’s ruling on August 23, 2024, the implementation of Section 479 of the BNSS aims to alleviate long detentions and overcrowding. By utilizing tools like the E-Prisons portal and the Support to Poor Prisoners Scheme, States and UTs can significantly enhance the welfare of under trials and ensure fair treatment within the justice system.

Related:

‘End discriminatory regimes of colonial era,’ SC declares provisions of State Prison Manuals unconstitutional

The post Under trial Prisoners: MHA directs States/UTs to implement section 479 of BNSS appeared first on SabrangIndia.