BNSS

BNSS and the pre-cognizance imperative: Procedural safeguard u/s 223 applies even to PMLA Complaints

Summary: The proviso to Section 223(1) of the BNSS, 2023, stipulates that a Magistrate shall not take cognizance of an offence without first affording the accused an opportunity to be heard. By its judgement in Kushal Kumar Agarwal v. Directorate of Enforcement[1] (“Kushal Kumar”),the Hon’ble Supreme Court has clarified that this safeguard under the BNSS shall also apply to complaints filed under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (“PMLA”), after July 1, 2024, viz. the date BNSS came into force. The ratio from Kushal Kumar has since been followed inter alia by the High Courts of Delhi and Kerala. These judgements reinforce a significant procedural safeguard for accused persons even under the stringent PMLA, while highlighting a marked departure from the regime under the Code of Criminal Procedure, 1973 (“CrPC”). An associated issue is whether cognizance on a supplementary complaint under the PMLA, filed after July 1, 2024, will also be bound by the safeguard of Section 223(1) of the BNSS, if cognizance on the main complaint was taken prior to July 1, 2024.Continue Reading BNSS and the pre-cognizance imperative: Procedural safeguard u/s 223 applies even to PMLA Complaints

Alternate remedy no bar to High Courts exercising inherent jurisdiction under Section 482 CrPC: Supreme Court

Summary: Commonly (mis)understood to be only a power of quashing, Section 482 CrPC (now Section 528 BNSS) is much broader in ambit. The Section recognises the inherent jurisdiction High Courts in India have in dealing with criminal matters, including the power to prevent abuse of process of “any court” or pass orders to “secure the ends of justice”.Continue Reading Alternate remedy no bar to High Courts exercising inherent jurisdiction under Section 482 CrPC: Supreme Court

Nascent stage of investigation no bar for quashing: Supreme Court clarifies High Court’s power under Section 528 BNSS

Summary: The power to quash a criminal matter under Section 528 BNSS, 2023 (erstwhile Section 482, CrPC, 1973), is well settled. It is a power to be exercised sparingly, within well accepted parameters, including no offence being disclosed, malice, abuse of criminal process, etc. If such relevant factors otherwise stand fulfilled, there is no bar to quashing an FIR, even if the investigation is at a preliminary/ nascent stage.Continue Reading Nascent stage of investigation no bar for quashing: Supreme Court clarifies High Court’s power under Section 528 BNSS

Beyond the Signature: Who Gets a Seat at the Arbitration Table?

Summary: This blog clarifies the prior steps that must be taken before approaching a magistrate with an application under Section 156(3) CrPC- with reference to a recent judgement of the Supreme Court in Anurag Bhatnagar. We explain how the judgement in Anurag Bhatnagar ought not to be taken as a blanket exemption from the pursuing the prior steps.Continue Reading Steps under Section 154 CrPC no longer mandatory? Judgment in Anurag Bhatnagar-unique outlier or shift in jurisprudence?

Breaking the Hierarchy – Power of the Trial Courts to Cancel Bail Granted by Higher Courts

Summary: In this article, we discuss the concept of cancellation of bail in the backdrop of a recent judgment of the Supreme Court that trial courts are empowered to cancel bail granted by higher courts if bail conditions are violated.Continue Reading Breaking the Hierarchy – Power of the Trial Courts to Cancel Bail Granted by Higher Courts

Criminal Liability of Non-Executive Directors: A New Ray of Hope

Summary: This blog compares Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), with Section 200 of the erstwhile Criminal Procedure Code, 1973 (“CrPC”). The analysis highlights how the new provision introduces an additional safeguard against prosecution for non-executive directors.Continue Reading Criminal Liability of Non-Executive Directors: A New Ray of Hope

Summary: This article aims to examine the contours of Section 223 of the BNSS, with a special focus on courts’ interpretation of the proviso to Section 223(1) of the BNSS and its practical implications.

Introduction

On December 25, 2023, India enacted a transformative triumvirate of laws – the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023. These new criminal laws became effective on July 1, 2024, repealing and replacing the long-standing pillars of criminal law – Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 (“CrPC”), and the Indian Evidence Act, 1872, respectively.Continue Reading Demystifying Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023