INDIA Trends and Developments Contributed by: Kamal Shankar, Atul N Menon, Arjun Narang and Shivam Jain, AZB & Partners
Introduction of New Laws On 1 July 2024, India saw a complete overhaul of its criminal justice system with the enactment of three new criminal laws: • the Bhartiya Nyaya Sanhita, 2023 (BNS), which is the new penal code; • the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which is the new criminal procedure code; and • the Bharatiya Sakshya Bill, 2023 (BSA), which is the new statute on evidence. This also impacts on the prosecution of corrup - tion cases. Procedural changes under the BNSS The BNSS was made applicable to the trial of any offence committed under the Prevention of Corruption Act, 1988 (PCA). Some important changes under the BNSS that would apply to any process or prosecution related to offences under the PCA are as follows: Registration of first information report (FIR) that marks the start of an investigation Under the previous regime (the Criminal Proce - dure Code – CrPC), the jurisdiction of a police officer was restricted to the territorial jurisdiction of a particular police station. However, under the BNSS, the concept of “Zero FIR” has been introduced. This means that a victim or any indi - vidual can approach any police station in any territorial jurisdiction, and the police are bound to register an FIR. This obligation holds true even if the offence in question did not occur within the territorial jurisdiction of that police station. Upon registration, the police officer is bound to transfer said Zero FIR to the relevant police sta - tion having territorial jurisdiction to investigate the offence.
Use of technology The BNSS has introduced the concept of “e-FIR”, which can be registered by way of an electronic communication/complaint to a police officer (as prescribed). However, the provision mandates that said e-FIR will only be taken on record after it is physically signed by the com - plainant or person giving information, within three days from said electronic communication. Some of the additional provisions whereunder technology has been introduced are mentioned below. • The BNSS mandates audio-video record - ing of any search and seizure, including the preparation of a seizure memo. • Service of summons to either a witness or accused issued by the court or the police can be made via electronic means. • Any statements recorded in the course of the investigation may also be recorded via audio- video means. Similarly, upon completion of an investigation, the investigating agency may supply documents in electronic form. • Proceedings or trials, including the record - ing of statements of witnesses, may also be conducted via electronic communications or the use of audio-video means. Victim-centric approach The police are required to update the victim on the progress of the investigation every 90 days, resolving a long-debated void left under the CrPC by ensuring that the victim/complainant has a right to be heard before withdrawal of any prosecution. Upon completion of the investigation and filing of a final report, the police are obligated to sup - ply a copy of said report and other documents to the victim if represented before the court.
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