The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), set out some fundamental refinements to the regime criminal law. One of the most impactful changes will be how it promised to undergo a seismic shift to make it more centered on the citizen-civilian experience from the police level up, including through advancements such as the service of free copies of the First Information Report (FIR) to the victim. While the Statement of Objects and Reasons of the BNSS claims that this Statute is “ultimately centred on citizens' rights”, if we expand our analysis of the provision on free FIR access, we start to see that it may not be able to capitalize on the intent of the BNSS, especially when it comes to victims.
The Legal Framework: Pre-BNSS and Post:-BNSS
- Under the previous legal landscape, Section 154(2) of the Code of Criminal Procedure, 1973 (the Code), required that a copy of the FIR be given free of cost to the informant. The intention behind this was to ensure that there was an open and clear process in criminal investigations and allow the informant to witness the way investigations progressed.
- Section 173(2) has been transformed by the BNSS to stipulate that the victim or informant obtain a copy of the FIR "forthwith" and at no cost to them. Although subtle, this is a notable shift in the rights afforded to victims within the criminal justice system.
The Role of the Informant
The Informant's role
- The "informant" has been defined traditionally as any person providing information to the police about the commission of a cognizable offence. It should be noted that an "informant" does not have to be a victim or a witness to the offense. The law permits an informant to lodge a report based on information even if they do not have personal knowledge of the commission of the offence as long as the police could conduct an investigation once the information revealed a crime that could be prosecuted. As the Supreme Court has stated in cases such as Nankhu Singh v. State of Bihar and Hallu v. State of M.P., it is not necessary for the informant to be an eyewitness.
- Therefore, the term "informant" has a wide definition that permits any person to file an FIR based on second-hand information or omit to even having personal knowledge of the crime. In such instances, the victim might never see or speak to the police or be part of the first stages of the case; depending on timelines, the victim means to at least later on receive their rights to be informed, as the investigation progresses.
Change in the BNSS
- Section 173(2) of BNSS has added the condition that the police give the victim or informant a copy of the FIR. While this does extend to the victim, the use of the phrase "either the informant or the victim" creates a situation whereby the victim may not automatically receive a copy of the FIR if someone else has made the report. This could create a foreseeable gap in the victim's right of access to key information about the case from the outset.
- In the previous law, the police are required to provide the FIR to only one of the two parties. The use of "informant or victim" and the omission of a blanket provision for both parties are also problematic, especially when the informant is not the victim or has no regard for whether the victim's best interests are considered. A more victim-centric approach could have been afforded if the BNSS had included a provision for both the informant and victim to provide the FIR, as recommended by the Parliamentary Standing Committee on Home Affairs.
Need for Clarity in Victim's Rights
- Section 173(2) of the BNSS must be changed in order for the victim and informant to always obtain copies of the FIR and be able to participate in every phase of the investigation in order to establish a system that is appropriately victim-centric. Currently, the "informant or the victim" is the individual who is permitted to be given the FIR, according to Section 173(2) of the BNSS. If the informant has received the FIR, the victim is denied the option of receiving the FIR which will then leave the victim poorly placed to intervene at the investigation stage and/or during subsequent processes.
- The Parliamentary Standing Committee noted that the current wording is ambiguous and recommended replacing the existing provision with; "or both, as the case may be." Not allowing a victim access to necessary important information will also impact their ability to seek justice.
The Meaning of 'Forthwith'
- Section 173(2) of the BNSS provides that the copy of the FIR must be given "forthwith", which means promptly or immediately, but not in a way that would hinder the investigation. The Supreme Court meaning of "forthwith" is to be interpreted as "as soon as possible" throughout including the surrounding circumstances (R v. Central Colorado CC, [2009] OJ No. 642). This interpretation illustrates the urgency afforded by the criminal justice system to ensure that victims and informants are able to communicate with law enforcement and obtain information about the progress of investigations.
- Unfortunately, the practical application of this provision remains ambiguous. In many contexts a delay in the provision of the FIR may significantly impair the victim's ability to understand the substance of the charges they are coaxing contesting evidence or cooperating with law enforcement during the course of the inquiry. The urgency prescribed by this provision is critical to provide the victim agency, but without enforcement, this provision's effectiveness may be undermined.
Mandatory Requirement for Victims
- Even though Section 173(2) of the BNSS uses the word "shall", suggesting a mandatory obligation, the Supreme Court in State v. N.S Gnaneswaran, appears to suggest that the obligation to provide a copy of the FIR is merely directory rather than obligatory. This example illustrates how the evolving nature of victimology could further entrench impediments placed upon victims enforcing their rights under the BNSS.
- Given the evolving understanding of victimology and participatory rights in the criminal justice process, the question arises whether it should be mandatory for the police to provide the FIR to the victim in all cases. The victim, as a key participant in the case, should not be left in the dark regarding the proceedings, and for them to effectively participate in the legal process, they need to be provided with a copy of FIR.
Conclusion
With the increasing awareness about victim's rights, there is scope for improvement in the stipulation of §173(2) of the BNSS to avoid the victim being left out of the criminal justice system. Providing the victim a free copy of the FIR is critical to transparency and empowering victim participation in the investigation, but to actually implement a statute that is citizen-centric, involves both the informant and victim receiving a copy of the FIR in a timely manner and clearly without ambiguity. The Parliamentary Standing Committee recommended amendments would appropriately protect the rights and entitlements of victims and improve the collective justice delivery system.
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