BHARATIYA NAGARIK SURAKSHA SANHITA 2023

1. RIGHTS OF AN ARRESTED PERSON

1)Right to know the grounds of Arrest

 Section 47, 48, 55, 77 of BNSS
 Article 22(1)of the Constitution of India also states that no police officer should arrest any person without
informing the ground of arrest.

2) Right to be produced before the Magistrate without unnecessary delay

 Section 55, 78, of BNSS
 Article 22(2) of the Constitution states that the police officer making an arrest should be produced before the
Magistrate within 24 hours of arrest. If the police officer fails to produce before Magistrate within 24 hours,
he will be liable for wrongful detention.

3) Rights to be released on Bail

SEC 47(2) of BNSS states that when a police officer arrests any person without a warrant for an offence other than non-
cognizable offence; he shall inform him that he has a right to release on bail and to make an arrangement for the sureties
on his behalf.

4) Rights to a fair trial- Any provision related to the right to a fair trial is not given in BNSS, but such rights can be
derived from the Constitution and the various judgements.
 Article 14 of the Constitution of states that ”all persons are equal before the law”. It means that all the
parties to the dispute should be given equal treatment. The principle of natural justice should be considered
in respect of both the parties. Right to a speedy trial is recognized in the case Huissainara khatoon vs Home
Secretary, State of Bihar [4], the court held- “the trial is to be disposed of as expeditiously as possible”.

5) Right to consult a lawyer

 SEC 35 of BNSS states the right of the prisoners to consult his lawyer during interrogation.
 Article 22(1) of the constitution states that the arrested person has a right to appoint a lawyer and be
defended by the pleader of his choice.
 SEC 340 of BNSS states that when a person is alleged to have committed an offence before the criminal
court or against whom proceedings have been initiated, has a right to be defended by a legal practitioner of
his choice.

6) Right to free Legal Aid

 SEC 341 of BNSS states that when a trial is conducted before the Court of Session, and the accused is not
represented by the legal practitioner, or when it appears that the accused has no sufficient means to appoint a
pleader then, the court may appoint a pleader for his defence at the expense of the State.
 Article 39A obligates a state to provide free legal aid for the purpose of securing justice. This right has also
been explicitly given in the case of Khatri (II) VS State of Bihar [5]. The court held that “to provide free
legal aid to the indigent accused person”. It is also given at the time when the accused is produced before the
Magistrate for the first time along with time commences. The right of the accused person cannot be denied
even when the accused fails to apply for it. If the state fails to provide legal aid to the indigent accused
person, then it will vitiate the whole trial as void. In the case of Sukh Das vs Union Territory of Arunachal
Pradesh [6], the court held:- “The right of indigent accused cannot be denied even when the accused fails to
apply for it”. If the state fails to provide legal aid to the indigent accused person it will vitiate the whole trial
as void.

7) Right to keep silence

Right to keep silence is not recognized in any law but it can derive its authority from CrPC and the Indian Evidence Act.
This right is mainly related to the statement and confession made in the court. Whenever a confession or a statement is
made in the court, it is the duty of the Magistrate to find, that such a statement or the confession was made voluntarily or
not. No arrested person can be compelled to speak anything in the court.
Article 20 (2) states that no person can be compelled to be a witness against himself. This is the principle of self-
incrimination. This principle was reiterated by the case of Nandini Satpathy vs P.L Dani [7]. It stated, “No one can force
any person to give any statement or to answer questions and the accused person has a right to keep silence during the
process of interrogation”.

8) Right to be Examined by the medical practitioner

SEC 53 of BNSS states that when the arrested person alleges that examination of his body will lead to a fact which will
disapprove the fact of commission of an offence by him, or which will lead to commission of an offence by any other
person against his body, the court may order for medical examination of such accused person at the request of him
(accused) unless the court is satisfied that such a request is made for the purpose of defeating the justice.

Other Rights
 SEC 56 of BNSS states that it shall be the duty of the person, under whose custody the arrested person is to
take reasonable care of the health and safety of the accused.
 The arrested person is to be protected from cruel and inhuman treatment.
 SEC 399 of BNSS gives rights to the compensation to the arrested person who was groundlessly arrested.
 SEC 35 of BNSS states that the police officer may give the notice to a person suspected of committing a
cognizable offence to appear before him at such date and place.
 SEC 43 of BNSS prescribes the mode of the arrest. i.e submission to custody, touching the body physically,
or to a body. The police officer should not cause death to the person while making an arrest unless the
arrestee is charged with an offence punishable with death or life imprisonment.
 SEC 46 of BNSS states that the police officer should not make more restrained than in necessary for the
escape. Restrain or detention without an arrest is illegal.

In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement because it focuses “on the rights
of the arrested person and it also obligates the police officer to do certain activities”. The court also states that if the police
officer fails to perform his duty then he will be liable for contempt of court as well as for the departmental actions. Such
matter can be instituted in any High Court having the jurisdiction over the matter.

In spite of various efforts in protecting the accused from the torture and inhuman treatment, there are still instances of
custodial deaths and the police atrocities. So, the Supreme court issued 9 guidelines for the protection of accused person
and the amendment of various sections of BNSS:-
1. SEC 35– The police officer who is making an investigation must bear visible, clear and accurate badge in
which the name of the police officer along with his designation is clearly mentioned.
2. The police officer making an arrest must prepare a cash memo containing a date and time of arrest which
should be attested by at least one members who can be his family member or any respectable person of a
locality. The cash memo should be countersigned by the arrested person.
3. SEC 35:- The arrested person is entitled to have a right to have one friend, or relative or any other person
who is having interest in him informed about his arrest.
4. The arrestee must be informed about his right to have someone informed about his right immediately when
he is put under the custody or is being detained.
5. Entry is to be made in the diary which shall disclose the information relating to the arrested person and it
shall also include the name of the next friend to whom information regarding the arrest is made. It also
includes the name and the particulars of the police officers under whose custody the arrestee is. An
examination is to be conducted at the request of the arrestee and the major and minor injuries if any found on
the body must be recorded. The inspection memo must be signed by the police officials and the arrested
person.
6. The arrestee has the right to meet his lawyer during and throughout the interrogation.
7. Copies of all documentation are to be sent to Magistrate for his record. It also includes a memo of the arrest
8. SEC 35:- The court ordered for the establishment of state and district headquarters, the police control room
where the police officer making an arrest shall inform within 12 hours of arrest and it needs to be displayed
on the conspicuous board.
Yoginder Singh vs State of Punjab [9]. The Court held that for the enforcement of Article 21 and 22(1) it is necessary
that:-
1. The arrestee has the right to have informed about his arrest to any of its friends, relative or any other person
in his interest.
2. The police officer should aware of the arrestee about his right immediately when he is brought under the
custody.
3. The entry must be made in a diary regarding the name of the person who has been informed about the arrest.
Prem Shukla vs Delhi Administration [10], the court held that “the prisoners have a right not be handcuffed Fetterly or
routinely unless the exceptional circumstances arise”.

2. EVIDENTIARY VALUE OF FIR

First Information Report (FIR) is the knowledge or information of any occurrence especially related to crime or the
subjects which are either restricted or prohibited by law. The term FIR is not defined but SEC 173 & 174 of BNSS talks
about the cognizance of any information related to cognizable offenses and non-cognizable offenses respectively. The
purpose of FIR is to bring the law into the action of cognizance of any offence, and with the cognizance, it is the duty of
the state to offer redressal to the victim and protect the society from such offences.
In, State of Haryana v/s Bhajan Lal it was held that in a condition where there is an information and that information must
disclose a cognizable offence. And if any such information before an officer satisfies the requirements of Section 154(1),
the said police officer has no other option except to enter the substance thereof in the prescribed form.

Evidentiary Value of FIR

The evidentiary value of FIR is very important than any other statements during the process of cognizance of any offense
or at the time of initiating the investigation about information recorded as per Section 173 or 174 of BNSS. But at the
same time the established principle of law that FIR cannot be assumed as a substantive piece of evidence and can only be
considered as an important piece of evidence. The reason for which the FIR is regarded as an important piece of evidence
is- because of its nature that it is the first information of the cognizance of any offence, and it can be of very important
nature as it will help in the initiation of investigation about the offences.

In, Pandurang Chandrakant Mhatre v. State of Maharashtra, it was seen that ‘it is fairly well settled that FIR is not a
substantive piece of evidence and it can be used only to impeach the creditworthiness of the testimony recorded by the
maker and it cannot be used for the purpose of contradicting or discrediting the testimony of other witnesses’.

Does FIR has Substantive Values or Its Just an Important Piece of Evidence?
The main reasons why FIR does not have any substantive evidentiary value:
1. Because the statements in the FIR are not made on oath.
2. Because the statements in the FIR are not made during the trial or at the time of proceedings.
3. Because the statements recorded in FIR has no cross-examination in the Court.
4. Because the statements recorded by the police officers are not admissible in court.
The reasons why FIR are treated as an important piece of evidence:
1. For corroborating the statements made by the person who recorded the FIR.
2. For cross-examination of the statements made by the person in the FIR.
3. For refreshing informer’s memory.
4. For impeaching the creditworthiness of the informer.
5. For the purpose of ascertaining the general facts like the identity of accused, witnesses, time of offenses etc.

Certain exceptions, when an FIR can be used as a substantive piece of evidence

For the purpose of corroboration and contradiction the information of the informant- Section 145 of Indian
Evidence Act, talk about ‘A witness may be cross-examined as to previous statements made by him for the purpose of
contradicting him’. The scope of Section 145 is to deal with the methods of contradicting the information of the informer.
Under Section 153(2) of the Evidence Act, a witness may be asked any question for the purpose of impeaching his
impartiality and permits oral statement to be used for contradiction. But the present Section which is Section 145 of the
Indian Evidence Act, only deals with the method of contradicting previous statements of witness in writing by cross-
examination. The rule will apply where a witness is not a party to the suit and would not apply when a party to the suit is
examining himself as a witness.

Section 145 of Indian Evidence Act has 2 basic principles which are- According to the first part- a witness may be cross-
examined as to the previous statement made by him in writing or is reduced into writing without showing the writing to
him or proving the same. And the second part is intended to contradict him through cross-examination where the previous
statement is in writing. The main objective of this provision is either to test the memory of witness or to contradict him by
previous statements in writing.

In, Ram Chandra V. State of Haryana, the Supreme Court observed that the contents and information of the FIR can only
be used for the purpose of contradiction & corroboration the facts stated by the informer or of any other witness.

Section 157 of the Evidence Act which talks about- “Procedure for investigation preliminary inquiry”. The FIR is a kind
of evidence whose contradictory and creditworthiness values is only subjected to the person who lodged a FIR or the
informer of the offence and the principles laid down under Section 145, 154(2) and 157 of Indian Evidence Act can’t be
used for the purpose of contradicting and checking the creditworthiness of any other witness other than the person who is
the informer of the offence. And these principles are usually benefiting the accused in way of contradicting and checking
the creditworthiness of the informer.
And it has been held by the Apex Court of India that with regard to FIR there can only be two possibilities which are-
corroborating and contradicting the informer; and hence it is observed that FIR cannot be considered as a substantive
piece of evidence in any manner.

In, Hasib v/s State of Bihar it was held by the Supreme Court that considering the principles of Section 157 and 145 of the
Indian Evidence Act, it is quite obvious that the FIR can only be used for the purpose of corroborating or contradicting the
informant the one who lodging the FIR.

In, The State of Orissa v. Makund Harijan and another, the Orissa High Court held that FIR can only be used to
corroborate or contradict the maker of FIR. But omissions of certain important facts, affecting the probabilities of the case,
are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.

If the informant of any certain offence is accused himself, then it cannot be possibly to use the facts or information of the
FIR for the purpose of corroboration or contraction because accused cannot be a prosecution witness, and he would very
rarely offer himself to be a defense witness under Section 315 of the Code of Criminal Procedure. It is noted that if the
F.I.R. is of a confessional nature, then again it cannot be proved against the accused as such actions are prohibited by
Section 25 of the Evidence Act.

Where confession made to a police officer cannot be used or proved against a person who is accused of a certain offence.
But at the same time if the accused admits his act then the F.I.R. is admissible as evidence under Section 21 of the
Evidence Act. And if the F.I.R. contains not only the confession of the accused but also relates to several other matters
which are relevant to the trial or the procedure, then the provisions make the latter admissible.

Though the contents of F.I.R. can be used only to contradict or corroborate the informant, still there may be cases where
the contents become relevant and the F.I.R. can be used as a part of the informant’s conduct under Section 8 and 11 of the
Evidence Act.

1. Statements or information by the informant as dying declaration in FIR.

The word “Dying Declaration” means any statement is written or verbal of relevant facts made by a person, who is dead
or it is the statement of a person who had died explaining the circumstances of his death.
The concept of dying declaration was evolved from a legal maxim, ‘nemo mariturus presumuntur mentri’ i.e. a man will
not meet his maker with a lie in his mouth. Although it may sound impractical but our law has adopted this concept and
functions accordingly. Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death
and it is assumed that such statements are relevant even whether the person who made them was not at the time when they
were made.

In Uka Ram v. State of Rajasthan, the Apex Court defined dying declaration in a way that, “when a statement is made by
a person in the threat of his death or as to any circumstances which cause threat or results into his death, and when the
cause of his death comes in question the statements made by him are admissible as evidence, such statement in law are
compendiously called dying declaration.”

The Supreme Court in deciding P.V. Radhakrishna v. State of Karnataka, Appeal held that ‘the principle on which a
dying declaration is admitted in evidence is indicated in the Latin maxim, ‘nemo morturus procsumitur mentri’, which
means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently
relating to the cause of his death is admissible in evidence under this clause.

In K.R. Reddy v. Public Prosecutor, the evidentiary value of dying declaration was observed as:-
“The dying declaration is admissible under Section 32 & because the statement not made on oath so that its truth could be
tested by cross-examination, the court has to observe the closest inspection of the statement before acting upon it. And it
is also assumed that the words of a dying man are of very serious nature because a person on the verge of death is not
likely to tell lies or to connect a case to a malice prosecution of an innocent person. Once the court is satisfied that the
dying declaration is true & voluntary and are not influenced, then the statements can be sufficient to prove the conviction
even without further corroboration.”

The evidentiary value of FIR in the circumstances of dying declaration comes from the concept that- A dying declaration
can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or
injured and wants to make a statement, the doctor can also record the same and make a note of that statement. Although, it
is advisable that the dying declaration should be made to the magistrate itself or in the presence of magistrate but if there
is a condition where no such possibility is seen then the dying declaration can also be recorded by the police officers,
although the court discourages such declaration to the police officer but if the condition and circumstances are of such a
nature that no other possibilities are seen, then the dying declarations written by the police officers are also considered by
the courts.
In, Kapoor Singh V. Emperor the court observed that the FIR lodged by the deceased person can be admissible as a piece
of evidence in the court if the FIR is relating and explaining the circumstances of his death. Also in the case of Sukhar V.
State of UP, it was observed that if the dying declaration in the FIR is not sufficient to ascertain the facts and reasons for
the cause of his death, even though the FIR has enough information related to the accused and details of the incident.
Then the information cannot be considered as dying declaration.

In the case of Maniram V. State of Madhya Pradesh , the dying declaration was recorded by the doctor but the doctor did
not attest the consciousness report of the deceased and also there was no thumb signature on the dying declaration, in that
case, the FIR has lost its credibility and it was difficult to rely on the dying declaration.

3. BAIL

Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all persons. It guarantees
the fundamental right to live with human dignity and personal liberty, which in turn gives us the right to ask for bail when
arrested by any law enforcement authority.

The provision of anticipatory bail under Section 482 was introduced. It is based on the recommendation of the Law
Commission of India, which in its 41st report, recommended the incorporation of a provision of anticipatory bail. The
report stated that “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to
implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in
jail. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not
likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to
submit to custody, remain in prison for some days and then apply for bail.”

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle of “presumption of innocence” i.e. every
person accused of any crime is considered innocent until proven guilty. This is a fundamental principle mentioned in the
Universal Declaration of Human Rights under Article 11.

Meaning of bail- ‘Bail’ connotes the process of procuring the release of an accused charged with certain offences by
ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.

Definition of bail, as per the Black’s Law Dictionary is that bail is – “the security required by a court for the release of a
prisoner who must appear at a future time.” The objective of arrest is to deliver justice by presenting the accused before
the Court. However, if the same objective can be achieved without making any arrest then there is no need to violate his
liberty. That’s why bail can be granted to the accused person for conditional release.

Legal position of bail- definitions

Categories of bail

Bailable offences - According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in
the First Schedule of the Code, or which is classified as bailable under any other law. An accused can claim bail as a
matter of right if he is accused of committing a bailable offence. The police officer or any other authority has no right to
reject the bail if the accused is ready to furnish bail. Under sec 478 , a person accused of a bailable offence at any time
while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.

Non-bailable offences- A non-bailable offence is defined as any offence which is not a bailable offence. A person
accused of a non-bailable offence cannot claim bail as a right. A person accused of non-bailable offences can be granted
bail provided the accused does not qualify the following conditions:
 There are reasonable grounds to believe that he has committed an offence punishable with death penalty or
life imprisonment.
 That the accused has committed a cognizable offence and he had been previously convicted of an offence
punishable with death, imprisonment for life or imprisonment of seven years or more or if the accused been
convicted on two or more instances of a cognizable and non-bailable offence.

There are exceptional cases in which law gives special consideration in favour of cases where the accused is a minor, a
woman, a sick person etc. [Section 480(1)].

Different types of bail

Regular bail - Via this, the court orders the release of a person who is under arrest, from police custody after paying the
amount as bail money. An accused can apply for regular bail under Section 480 and 483
Interim bail - This is a direct order by the court to provide temporary and short term bail to the accused until his regular
or anticipatory bail application is pending before the court. The Supreme Court noticed the misuse of interim bail by the
accused in Rukmani Mahato vs. the State of Jharkhand.
Anticipatory bail - This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a crime.
When the person has an apprehension of being arrested, the person can apply for anticipatory bail. Sometimes, an
application for anticipatory bail may go against the person, as it might alert an investigation agency regarding the
involvement of that person in a crime.

Important factors to be considered while granting anticipatory bail in India

Based on Section 482(1), the Supreme Court has enumerated a detailed and exhaustive list of considerations while
deciding anticipatory bail. They are as follows:-
 Gravity of crime and role of accused must be understood before the arrest.
 Previous record of accused, any imprisonment on conviction in respect of non bailable offence, should be
checked.
 Possibility that applicant will flee from justice.
 Chances of repetition of similar or other offences.
 Intention behind accusation is whether to injure or humiliate the applicant by arresting him or her.
 Consider the exact role of the accused.
 Reasonable apprehension of tampering with evidence, witnesses and threatening the complainant.

Standard conditions while granting anticipatory bail

 Accused should present himself / herself for interrogation by the investigation office as and when asked to
appear.
 Accused should not directly or indirectly try to induce, threaten, or promise to any person related to the case
who knows the facts of the case, so that he can be dissuaded from disclosing the fact to the court or
investigation officer.
 Accused should not leave the country with prior permission of the court.
 Any other condition which the honourable court deems fit.

Cancellation of bail
Under Section 480(5), the court which has granted bail can cancel it, if found necessary under certain conditions.
Per Section 483(2), the Sessions Court, High Court, or Supreme Court can, suo moto, cancel the bail granted to the
accused and transfer the accused to custody. Per Section 383(2), an appellate court can also cancel the bail of the accused
and order the accused to be arrested and sent to custody.

Latest case laws

1. Re: Digendra Sarkar – Under Section 480, the application for anticipatory bail applied even before the First
Information Report is registered. So, First Information Report cannot be a condition precedent to applying for anticipatory
bail.
2. Suresh Vasudeva vs. State – Section 482(1) applies only to non-bailable offences.
3. Sushila Agarwal vs. State – Supreme Court held that anticipatory bail should not be for a fixed period, but it is open to
the court to limit the tenure of anticipatory bail if any special condition necessitates the same.
4. Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :
 There are no provisions in the CrPC regarding time boundness of granting pre – arrest anticipatory bail.
 The concerned court has the discretion to impose conditions for grant of anticipatory bail including a limited
period of protection etc., subject to considering any special circumstances required.

Anticipatory bail as a fundamental right

Under the Constitution of India, every person has a fundamental right to life and personal liberty. Article 21 is enshrined
in our Constitution. The objective of this article is not to deprive any person of his life or personal liberty except as per the
procedure established by law. As a person can not prepare their case for trial from behind the bars, so the provision of bail
in law is provided, to give a fair chance to fight their case with all possible measures. Apart from that since an accused is
considered innocent until proven guilty, incarceration in any form brings disrepute to the person and restricts him from
going about his daily affairs. Hence to avoid such hardships, a person is provided with the remedy to apply for
anticipatory bail.

Clause 4 was added to Section 438, through the Criminal Amendment Bill, 2018. The legislature inserted four clauses
under Section 438. According to the amendment, anticipatory bail cannot be granted to a person accused of the offence of
committing rape on a woman aged under 16years, under 12 years, gang rape on a woman aged under 16 years of age and
gang rape of a woman under 12 years of age, punishable under Section 376(3), 376 AB, 376 DA and 376 DB respectively
under the Indian Penal Code (Punishment of rape) 1860.

Rape is a heinous crime and there should be strict provisions under law to punish the convict. However, there is a
difference between an accused and being proclaimed a convict. There are high chances of an accused being acquitted after
a trial and hence denying the right of bail entirely goes against the spirit of justice. Rape is a serious crime but nowadays
people go to any level to defame a person to take revenge on them, therefore the instances of filing false cases of rape are
also increasing. Hence, this amendment unjustly restricts the right to get anticipatory bail.

4.Autrefois aquit and Autrefois convict

Meaning of Autrefois Acquit and Autrefois Convict

Autrefois Acquit and Autrefois Convict are french terms meaning “previously acquitted” and “previously
convicted” respectively. These terms owe their birth to the common law systems where they have been accepted as
doctrines that govern criminal trials Autrefois Acquit refers to that a person cannot be put on a trial for an offence, he has
been previously acquitted for, similarly, Autrefois Convict refers to that a person cannot be put on trial for the same
offence, he has been previously convicted for. The combination of both the doctrines gave birth to the Rule against double
jeopardy. This Rule refers to that a person cannot be tried for the same offence again if previously he has been either
convicted or acquitted.

Autrefois Acquit and Autrefois Convict concerning Indian Constitution

The Indian Constitution only imbibes the doctrine of Autrefois convict and not of Autrefois Acquit in the form of the rule
against double jeopardy. Article 20 of the Indian Constitution protects in respect of conviction of offences. Article
20(2) contains the rule against double jeopardy which enumerates that no person shall be convicted for the same offence
more than once. Article 20(2) has been adopted from the fifth amendment of the US Constitution but doesn’t incorporate
the principle of autrefois acquit as incorporated by the US Constitution that can be inferred from the content of the
amendment which states that no person shall be put in jeopardy of life and limb twice, On the other hand, Article 20(2)
offers protection only when the accused has been prosecuted and has also been punished.

In Venkataraman v. Union of India, an inquiry was held before an inquiry commissioner in respect of the appellant under
the Public Service Enquiry Act, 1960 and was dismissed in respect of the findings, Later the appellant was charged under
the Indian Penal Code & Prevention of Corruption Act. The Court in its wisdom held that the proceedings under inquiry
commissioner were only an inquiry and hence the prosecution under the Indian Penal Code and Prevention of Corruption
Act would not be barred by the plea of double jeopardy.

In Leo Roy v. Superintendent District Jail it was held by the court that if the offences are different, the plea of double
jeopardy would be barred as in this case prosecution and conviction took place under the sea customs Act and later the
appellant was prosecuted under Indian Penal Code. The second prosecution would not be barred by the plea of double
jeopardy.

Autrefois Acquit and Autrefois Convict in relation to BNSS

Article 20(2) imbibes the principle of autrefois convict, On the other hand, the BNSS inculcates the principle of autrefois
convict as well as autrefois acquit. It has a wider reach under criminal jurisprudence whereas Article 20 inculcates the
general outline of the rule against double jeopardy. Section 337 is analyzed as follows:

→ 337(1)– According to this clause a person should not be tried for the same offence twice.
Essentials requirements for this clause to kick in are-
1. There should be an acquittal or conviction.
2. The trial should have taken place under a court of competent jurisdiction.
3. The 2 offences alleged should be either similar or identical.
4. If more than one offence is made out of given facts, a conviction in the offence will act as a 5)bar against
trial for other offences arising out of the same set of facts.

→337(2) – According to this clause when a person is convicted or acquitted of an offence and a distinct charge could be
made against such person but was not made during the trial, He /she cannot be prosecuted for the same. This provision
protects against the abuse of the criminal justice system by not allowing the prosecution to build continuous charges
against people. For example, 2 persons decided to commit robbery, In the process of committing murder they commit
murder as well and the criminal administration can misuse the system by separately trying the two persons for separate
offences which can result in indefinite incarceration of the persons.
→337(3)-This clause lays down a situation in which a person can be retried for an offence that arises from the same facts
but the nature of the offence is different. For Example, A beats up a B and is caught and charged for Grevious hurt,
During trial B dies in hospital due to injuries, A can be retried for the offence of Murder. This clause applies only in cases
of conviction.

→337(4)– This clause is in the continuity of the previous clause as this clause envisages a situation in which due to the
discovery of new facts, the person cannot be tried in the same court due to lack of jurisdiction. The person can be retried
in another court of competent jurisdiction.

→337(5)– This clause extends the protection against double jeopardy to the cases of discharge. Discharge takes place
when the court hears the prosecution and believes that there are no grounds available to prosecute the accused due to a
lack of evidence as it will save the precious time of the court. The power of discharge can be exercised in the summons,
warrants, and sessions case. However, 300(5) is restricted to discharge in a summons case. In case a person has been
discharged in a summons case after trial, The accused cannot be prosecuted for the same offence.

Res judicata and protection against double jeopardy

Res judicata or the rule of issue estoppel precludes evidence to be led in proving a fact in issue with regards to which
evidence has already been led and specific findings recorded at an earlier criminal trial before a court of competent
jurisdiction. The rule only relates to the admissibility of evidence. If by adducing evidence it is proved that the same
point was determined in favour of a prisoner in a previous criminal trial which is in issue in the second trial of the same
accused, There is an issue estoppel. Article 20(2) bars double punishment, on the other hand, the Rule of issue estoppel
bars reception of evidence on an issue on which the finding was in favour of the accused in the previous trial. Article 20(2)
has no relation to the question at issue, while the rule of issue estoppel relates to the issue of evidence on the question in
issue at the two trials.

In Pritam Singh v. State of Punjab, A statement made by an accused led to a recovery of a Firearm which was allegedly a
crime weapon used by the accused. He was prosecuted for the possession of the firearm, acquitted later. In the trial of
murder against the same accused, evidence concerning the possession of was firearm was pleaded before the court. The
court held that the evidence was precluded by the rule of issue estoppel.

Landmark judgments Concerning Article 20(2) and section 337 BNSS

1. Maqbool Hussain v. the State of Bombay – In this case, the appellant, a citizen of India brought some gold without a
declaration. The Sea Customs authority took action and the gold was confiscated. Then the appellant was prosecuted
under the Foreign exchange Regulation Act, 1947 consequently plea of double jeopardy was raised by the appellant,
which was rejected by the court by stating that Sea customs authority was not a Court or Judicial Tribunal and the
proceedings before it did not constitute prosecution as mandated by the rule against double jeopardy. The Prosecution
under Foreign Exchange Regulation Act, 1947, was the first prosecution and not barred by Article 20(2).

2. Kalawati v. the State H.P – In this case, the appellant was accused of committing murder and was prosecuted, later
acquitted by the district judge. The State appealed against the decision. The defendants took the plea of double jeopardy.
The Court held that the appeal against acquittal cannot be considered to be the second prosecution, but the continuation of
original prosecution, Therefore the rule against double jeopardy will not play a role in this situation.

3. Thomas Dana v. the State of Punjab – In this case, it was held by the Apex Court that to claim the protection of the
rule against double jeopardy enumerated under Article 20(2), it is necessary to show that there was a previous prosecution
and that the prosecution led to punishment and the accused is being punished for the same offence again.

4. Baij Nath v. the State of Bhopal – In this case, the accused was a government servant prosecuted under the Indian
Penal Code and punished, In an appeal in the High Court the prosecution was set aside for lack of sanction. Subsequently,
the accused was again prosecuted with a valid sanction. The court held that the earlier prosecution was null and void and
the subsequent prosecution cannot be challenged on the grounds of double jeopardy.

5. Kolla Veera Raghav Rao v.Gorantla Venkateswara Rao.- In this case, the difference between Article 20(2) and
Section 300 CrPC was discussed and was held that Section 300 CrPC is wider in the sense that no one can be tried and
convicted for the same offence or a different offence on the same facts. Article 20(2) leaves a doubt in the minds as to
whether a person can be prosecuted for the same offence on different facts, the section makes it amply clear that as long
as facts are the same, the person cannot be prosecuted at all.

6. Institute of Chartered accountants v. Vimal Surana – In this case, a gentleman was found to be impersonating a
chartered accountant and entering into agreements with people. He was prosecuted under Section 24 and 26 of the
chartered accountant’s act. He was also liable to be prosecuted to be under Sections 419 and 420 of the Indian Penal Code.
The Court held that a person can be convicted for the same actions under different acts as apply to the offences. The Court
recognized the inequality if someone who had committed an offence similar to the sections under IPC but could also fall
under the law in another act with lesser punishment.

5.ISSUE OF SUMMONS FOR EXAMINATION OF WITNESS

SECTION- 306. Power to issue commission for examination of witness in prison : 306. The provisions of this Chapter
shall be without prejudice to the power of the Court to issue, under section 319, a commission for the examination, as a
witness, of any person confined or detained in a prison; and the provisions of Part B of Chapter XXV shall apply in
relation to the examination on commission of any such person in the prison as they apply in relation to the examination on
commission of any other person. A. —Mode of taking and recording evidence

This section empowers a Magistrate to issue a commission for the examination of a witness who is unable to appear in
court due to being confined in prison. The commission authorizes a specific person (usually another Magistrate or a police
officer) to examine the witness in prison and record their statement.
The Magistrate has the discretion to decide whether or not to issue a commission based on the circumstances of the case.
They may consider factors such as the nature of the witness’s testimony, the distance between the prison and the court,
and the potential for undue influence on the witness.

Illustration:
Suppose a witness in a criminal trial is incarcerated in a prison located far away from the court. Due to logistical and
security concerns, it is impractical to bring the witness to the court for examination. In this situation, the Magistrate can
issue a commission under Section 271 to another Magistrate or a police officer to examine the witness at the prison.

Procedure for examination

Procedure for the examination of the witnesses is laid down under the Indian Evidence Act. Section 166 of the Indian
Evidence Act describes or lays down the procedure for the examination of witnesses. And the procedure for examination
of witnesses is explained with the help of different relevant sections of the Indian Evidence Act.
 Section 135 of the Indian Evidence Act states that “The order in which witnesses are produced and examined
as per the law and in the absence of the law, producing and examining of witnesses also be done at the
discretion of the court.”
 Section 136 says that “when either party proposes to give evidence of any fact, the judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge
shall admit the evidence if he thinks that the facts if proved, would be relevant, and not otherwise.
 Section 137 talks about 3 things i.e. examination-in-chief, cross-examination, and re-examination of
witnesses.
 Section 138 talks about the order of examination of the witness. This Section says the witness will go
through first with examination-in-chief, cross-examination and then re-examination.
 Section 139 says that any person against whom summoned issue to produce any document related to the case
can’t be considered as a witness and cannot be examined until that person is considered as a witness.
 Section 140 says that “witness to the character” may be cross-examined and re-examined but it is not
compulsory that it should be done.
And many other sections from 141 to 166 which partially describe or mention points related to the examination of
witnesses but the above-mentioned section are the most relevant ones that are first fulfilled and done during the
examination of witnesses.