This article has been written by Lakshita Mahajan, currently in Semester 3, 2nd Year in BA.LLB (Hons.) at Institute of Law, Nirma University.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Nirmala Bhavesh Parmar … Petitioner
Versus
State of Maharashtra and Ors. …Respondents
CORAM :
- REVATI MOHITE DERE &
- PRITHVIRAJ K. CHAVAN, JJ.
DATE : 29th AUGUST 2024
CRIMINAL WRIT PETITION (STAMP) NO.16212 OF 2024
Introduction:
With the introduction of the new criminal laws, it is intended to break away from the old, colonial-era laws, and take into consideration the contemporary issues faced by the people of independent India. Bharatiya Nyaya Sanhita, Bhartiya Nagarik Suraksha Sanhita, and Bhartiya Sakshya Adhiniyam are attempts in that aspects. Bhartiya Nagarik Suraksha Sanhita, which replaced the then Criminal Procedure Code explains the procedure that need to be followed in respect to criminal laws. One of the most important tenets of BNSS is explaining the role of police in the investigation process, specifying what powers they have, what are the remedies available with the complainant when police exceeds their power, etc. It becomes really important to have such check on the powers of the police and that whether they are performing their duty during the investigation process properly or not. The case at hand discusses this important aspect with a view of inculcating the idea that maintaining transparency in the process is the duty of the police, and the right to be exercised by the complainant. It discusses the issue of non-compliance of police with the newly-made Section 193(3)(ii) and 193(3)(iii) of BNSS and how it severely impacts the element of transparency which is crucial in ensuring procedural fairness in criminal law.
Keyword: Bharatiya Nagarik Suraksha Sanhita, Transparency, Police investigation, Section 193(ii) and (iii), First Information Report
Facts of the Case:
Nirmala Bhavesh Parmar v State of Maharashtra 2024 In Nirmala Bhavesh Parmar v State of Maharashtra, Bombay High Court considered the question before it as to whether the police are duty-bound to file updates during investigations under BNSS. Petitioner Nirmala Bhavesh Parmar had filed a writ petition demanding the police authorities update the complainants periodically as legally provided in Section 193(3) (ii) and (iii) of BNSS as it superseded the erstwhile criminal procedure code (CrPC). This new section directs police to inform the complainant of the status of the probe within a given time, which is 90 days since filing a FIR.
Parmar said that the Mumbai Police did not discharge such obligations that marred their transparency and accountability in her case. The Maharashtra government had already issued a circular on August 2024 instructing police officers strictly adhere to these provisions.
Issues of the Case:
Failure to update investigation compliance with the requirement: the petitioner averred that Mumbai Police had not complied with the duty to update the complainants about the investigations, as stipulated under the new Bharatiya Nagarik Suraksha Sanhita, BNSS, more particularly Section 193(3)(ii) and (iii), where it is stated that it is the duty of the police to give the information on the progress of investigation within 90 days since an FIR has been lodged
Transparency and Accountability in Police Investigations: In this case, the greater issue was that of uncommunicative or vague reporting by the police department on their part while seeking much more transparency and accountability to be ensured that the complainants are informed at every point about the investigation process. The petitioner further said it undermined the rights of citizens as well as their trust in law enforcement
Implementation of BNSS Provisions: Another issue involved the adoption and application of the BNSS, in place of the CrPC. In the case under consideration, the need has been brought to the surface for the government of Maharashtra that in the state, all police officers must uniformly apply new procedure requirements.
Arguments by both the sides:
Petitioner:
This it is argued by the petitioner in the case of Nirmala Bhavesh Parmar v. State of Maharashtra (2024). Police have not performed statutory obligation under Section 193(3)(ii) and (iii) of BNSS when the latter provides on part of the police regarding giving notice of update before 90 days from making the FIR date. This, Parmar argues, upset the balance of the conduct of the investigation since she was deprived of knowing about what the Mumbai Police were doing or its final decision, which is what rendered her rights to transparency and accountability violated in this case”.
Parmar further added that BNSS, being a substitute for the CrPC, was enacted to give impetus to the rights of the citizenry for better protection in the line of transparency in the police’s dealings. The failure by the police to give updates would be against the BNSS spirit. The legal team for Parmar said provisions contained in the BNSS were intended to harmonize practice on communication in police investigation so that the complainant is adequately informed about what’s happening. This would safeguard not only individual rights but public confidence in law enforcement, they argued. It was this principle against which the petitioner sought the high court to issue a judicial order to strictly enforce BNSS mandates with a view of creating a police accountability mechanism and preventing further delay to other complainants.
Respondent:
Contending against the arguments of the petitioner, the State of Maharashtra, appearing through the Additional Public Prosecutor, submitted that there had not been any willful failure on the part of the police to perform their duties in consonance with the BNSS. Respondents argued their case and pleaded that prior order of mandamus issued upon compelling performance of Section 193(3)(ii) and (iii) BNSS was evident and showed in Circular dated August 23, 2024 when police officer were ordered by this court to religiously conduct follow up by submitting progress updates every period required within the probable duration 90 days after lodging. This circular was presented for the reason that the State has an intention and obligation to follow transparency and accountability in its implementation, as ordered in the BNSS.
The State added that this directive has been issued in such a manner that, therefore, there is no more occasion for judicial intervention because this implemented instruction would be enough to right the issues raised by the petitioner. In his manifestation before the court, the prosecutor assured the court that he would ensure that the police will promptly provide the petitioner with a complete copy of the charge sheet to right outstanding issues. These measures, therefore, redressed the grievances of the petitioner and any foundation left for the writ petition to continue any further had been wiped out. The State urged the court to consider the circular as a step forward in ensuring compliance and therefore maintaining the procedural integrity that was intended by BNSS.
Court’s reasoning and Judgment:
On due consideration of the arguments moved, the Bombay High Court observed that the BNSS had, in fact repealed the CrPC where section 193(3)(ii) and (iii) made it mandatory for the police to report this to the complainant. The court commended the proactive steps taken by the Maharashtra government in publishing the August 23 circular advising police officers to “observe the new provisions.”.
The bench felt that the State had made some progress in terms of implementing the directives of the BNSS and held that, thus, the plea of the petitioner was fulfilled. It dismissed the petition but directed the police to supply a copy of the charge sheet to the petitioner within a week, leaving no doubt that her rights would not be abased during the pendency of the investigation.
It pointed to the transparency of investigations and appreciated the action of the government for its promptness in enforcing provisions of BNSS. The court also saw that BNSS was framed with a view to strengthen the rights of citizens to make them more accountable and reduce frustration while investigating cases for complainants.
The court disposed of the petition formally thereby reinforcing the expectation that police investigations under the new law would have the timely update of the complainants as a key feature.
Conclusion:
The case Nirmala Bhavesh Parmar vs State of Maharashtra (2024) is on the analysis wherein the case places before itself the judiciary as protecting the procedural accountability of citizens in the changing legal landscape. The decision of the Bombay High Court disposing of the petition after a state circular issuing direction that it and others would comply with BNSS is a very balanced one. Both rights of the petitioner and rights of transparency as well as the prompt response of the State that the said police officers inform the complainants regularly about the progress of the investigation were acknowledged by the court.
This verdict restates the importance of proactive steps by the government towards the implementation of statutory amendments and protection for citizen rights. It is also a reminder that procedural safeguards need to be implemented strictly in order to get support from the citizens in cases of law enforcement and reception of justice. This case, in particular, shows how the upgrading of the statute in the form of the BNSS can guarantee accountability and increase transparency based on the strict adherence of authorities to such improvements.
Click Here To Read/Download Order
References:
https://www.livelaw.in/pdf_upload/nirmala-bhavesh-parmar-vs-state-of-maharashtra-561543.pdf
https://www.lawweb.in/2024/09/bombay-hc-as-per-s193-bnss-police-must.html
