Internals question and answer- BNSS
1. Zero FIR
Answer: Introduction: The concept of zero FIR is new. It refers to a FIR that is
registered irrespective of the area where the offence is committed. The police in
such a case can no longer claim that they have no jurisdiction. Such a FIR is then
later transferred to the police station that has the actual jurisdiction so that
investigation can begin.
It was introduced on the recommendation of the Justice Verma Comittee
formed at the backdrop of the brutal Nirbhaya gang rape in Delhi in 2012. This
puts a legal obligation on the police to begin investigation and take quick action
without the excuse of absence of jurisdiction.
Zero FIR: Section 173(1), BNSS, 2023 provides that every information relating to
the commission of a cognizable offence, irrespective of the area where the
offence is committed may be given orally or by electronic communication and if
given to an officer in charge of a police station.
A Zero FIR is an FIR registered at any police station, regardless of whether the
particular police station has jurisdiction or not. Once the Zero FIR is registered,
the concerned police station has to transfer the said FIR to the police station
which has jurisdiction to investigate the case.
Case: Union of India V. Ashok Kumar Sharma (2021)
The BNSS, 2023 now provides statutory backing to the concept of Zero FIR and
makes it mandatory for the police station to register FIR where information
regarding commission of a cognizable offence is received, irrespective of
whether it has jurisdiction or not.
This provision is crucial as it is one of the ways by which the government seeks
to tackle the issue of delays including delay in apprehending the accused and
delay in recovery of evidence especially in cases where forensic evidence is
involved or where there is a possibility of destruction or tampering with
documents.
Case: Lalitha Kumari V. Government of Uttar Pradesh
The police are required to register an FIR as soon as they receive information
about a cognizable offense. Failure to do so is considered a violation of legal and
constitutional obligations and shall invite contempt.
Case: Satvinder Kaur vs. State (1999)
The Delhi High Court held that a woman has the right to lodge her complaint
from any place other than where the incident occurred.
Case: The Nirbhaya Case (2012)
The Nirbhaya gang rape case was the catalyst for the introduction of Zero FIR in
India. The delays in registering the FIR and the subsequent investigation
highlighted the need for a legal mechanism that allows victims to report crimes
immediately, irrespective of jurisdiction. The case led to the establishment of
the Justice Verma Committee and the subsequent adoption of Zero FIR as a key
reform in the Indian criminal justice system.
Conclusion: Zero FIR represents a crucial reform in the Indian criminal justice
system, aimed at ensuring that victims of serious crimes can report offences
promptly and without jurisdictional hindrances. The legal framework supporting
Zero FIR, including key judicial precedents, underscores the importance of this
provision in safeguarding the rights of victims and ensuring timely access to
justice.
2. Serving of summons
Answer: Introduction: A summons is a legal document issued by a court
ordering a person to appear before it. Under Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS), summons are typically issued to the accused or witnesses
to ensure their presence in court proceedings.
Section 63 to 71 of BNSS laid down the provision regarding summons.
In Criminal Procedure Code, 1973 (CrPC) the provision regarding summons
was laid down under Sections 61 to 71.
Serving of summons: Section 63. Every summons issued by a Court under this
Sanhita shall be,—
(i) in writing, in duplicate, signed by the presiding officer of such Court or by
such other officer as the High Court may, from time to time, by rule direct, and
shall bear the seal of the Court; or
(ii) in an encrypted or any other form of electronic communication and shall
bear the image of the seal of the Court.
Section 64. (1) Every summons shall be served by a police officer, or subject to
such rules as the State Government may make in this behalf, by an officer of the
Court issuing it or other public servant: Provided that the police station or the
registrar in the Court shall maintain a register to enter the address, email
address, phone number and such other details as State Government may, by
rules, provide.
(2) The summons shall, if practicable, be served personally on the person
summoned, by delivering or tendering to him one of the duplicates of the
summons: Provided that summons bearing the image of Court's seal may also
be served by electronic communication in such form and in such manner, as the
State Government may, by rules, provide.
(3) Every person on whom a summons is so served personally shall, if so
required by the serving officer, sign a receipt therefore on the back of the other
duplicate.
Section 65. (1) Service of a summons on a company or corporation may be
effected by serving it on the Director, Manager, Secretary or other officer of the
company or corporation, or by letter sent by registered post addressed to the
Director, Manager, Secretary or other officer of the company or corporation in
India, in which case the service shall be deemed to have been effected when the
letter would arrive in ordinary course of post.
Explanation.—In this section, "company" means a body corporate and
"corporation" means an incorporated company or other body corporate or a
society registered under the Societies Registration Act, 1860.
(2) Service of a summons on a firm or other association of individuals may be
effected by serving it on any partner of such firm or association, or by letter sent
by registered post addressed to such partner, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course
of post.
Section 66. Where the person summoned cannot, by the exercise of due
diligence, be found, the summons may be served by leaving one of the
duplicates for him with some adult member of his family residing with him, and
the person with whom the summons is so left shall, if so required by the serving
officer, sign a receipt therefore on the back of the other duplicate.
Explanation.—A servant is not a member of the family within the meaning of
this section.
Section 67. If service cannot by the exercise of due diligence be effected as
provided in section 64, section 65 or section 66, the serving officer shall affix
one of the duplicates of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides; and thereupon
the Court, after making such inquiries as it thinks fit, may either declare that the
summons has been duly served or order fresh service in such manner as it
considers proper.
Section 68. (1) Where the person summoned is in the active service of the
Government, the Court issuing the summons shall ordinarily send it in duplicate
to the head of the office in which such person is employed; and such head shall
thereupon cause the summons to be served in the manner provided by section
64, and shall return it to the Court under his signature with the endorsement
required by that section.
(2) Such signature shall be evidence of due service. 69. When a Court desires
that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate
within whose local jurisdiction the person summoned resides, or is, to be there
served.
Section 70. (1) When a summons issued by a Court is served outside its local
jurisdiction, and in any case where the officer who has served a summons is not
present at the hearing of the case, an affidavit, purporting to be made before a
Magistrate, that such summons has been served, and a duplicate of the
summons purporting to be endorsed (in the manner provided by section 64 or
section 66) by the person to whom it was delivered or tendered or with whom it
was left, shall be admissible in evidence, and the statements made therein shall
be deemed to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of
the summons and returned to the Court.
(3) All summons served through electronic communication under sections 64 to
71 shall be considered as duly served and a copy of such electronic summons
shall be attested and kept as a proof of service of summons.
Section 71. (1) Notwithstanding anything contained in the preceding sections of
this Chapter, a Court issuing a summons to a witness may, in addition to and
simultaneously with the issue of such summons, direct a copy of the summons
to be served by electronic communication or by registered post addressed to
the witness at the place where he ordinarily resides or carries on business or
personally works for gain:
(2) When an acknowledgement purporting to be signed by the witness or an
endorsement purporting to be made by a postal employee that the witness
refused to take delivery of the summons has been received or on the proof of
delivery of summons under sub-section (3) of section 70 by electronic
communication to the satisfaction of the Court, the Court issuing summons may
deem that the summons had been duly served.
Conclusion: The provisions for the service of summons under the BNSS are
designed to ensure that individuals are duly informed of the legal proceedings
involving them and have an opportunity to participate. By adhering to the
outlined procedures, the judicial system aims to maintain the integrity and
fairness of the criminal justice process. The effective service of summons is not
only a legal formality but a cornerstone of ensuring that justice is served.
3. Rights of arrested person
Answer: Introduction: every right is a moral as well as legal entitlement to have
or do something. The legal system is in India is established in the platform of
“innocent till proven guilty”
1.Right to know the grounds of arrest
Section 47(1) Every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a
person accused of a non-bailable offence, he shall inform the person arrested
that he is entitled to be released on bail and that he may arrange for sureties on
his behalf.
Section 48(1) Every police officer or other person making any arrest under this
Sanhita shall forthwith give the information regarding such arrest and place
where the arrested person is being held to any of his relatives, friends or such
other persons as may be disclosed or mentioned by the arrested person for the
purpose of giving such information and also to the designated police officer in
the district.
(2) The police officer shall inform the arrested person of his rights under sub-
section (1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such
person shall be made in a book to be kept in the police station in such form as
the State Government may, by rules, provide.
(4) It shall be the duty of the Magistrate before whom such arrested person is
produced, to satisfy himself that the requirements of sub-section (2) and sub-
section (3) have been complied with in respect of such arrested person.
2.Right to be produced before the magistrate without unnecessary delay
Section 78: The police officer or other person executing a warrant of arrest shall
(subject to the provisions of section 73 as to security) without unnecessary
delay bring the person arrested before the Court before which he is required by
law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate's Court.
3.Right to consult a lawyer
Section 38: When any person is arrested and interrogated by the police, he shall
be entitled to meet an advocate of his choice during interrogation, though not
throughout interrogation.
Section 340: Any person accused of an offence before a Criminal Court, or
against whom proceedings are instituted under this Sanhita, may of right be
defended by an advocate of his choice.
4. Right to be examined by a doctor
Section 53(1) When any person is arrested, he shall be examined by a medical
officer in the service of the Central Government or a State Government, and in
case the medical officer is not available, by a registered medical practitioner
soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the
body shall be made only by or under the supervision of a female medical officer,
and in case the female medical officer is not available, by a female registered
medical practitioner:
Provided further that if the registered medical practitioner is of the opinion that
one more examination of such person is necessary, she may do so.
(2) The medical officer or a registered medical practitioner so examining the
arrested person shall prepare the record of such examination, mentioning
therein any injuries or marks of violence upon the person arrested, and the
approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of
such examination shall be furnished by the medical officer or registered medical
practitioner, as the case may be, to the arrested person or the person
nominated by such arrested person.
5. Additional rights available to an arrested person
Section 43(1) In making an arrest the police officer or other person making the
same shall actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action: Provided that
where a woman is to be arrested, unless the circumstances indicate to the
contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police
officer is a female, the police officer shall not touch the person of the woman
for making her arrest, and give the information regarding such arrest and place
where she is being held to any of her relatives, friends or such other persons as
may be disclosed or mentioned by her for the purpose of giving such
information.
Section 46: The person arrested shall not be subjected to more restraint than is
necessary to prevent his escape.
Case: DK Basu vs State of West Bengal
The decision on arrest outlines specific procedures for police to follow to ensure
the protection of individual rights during arrest and detention. These include
providing a memo of arrest, informing family members, conducting medical
examinations, and allowing legal representation to prevent police abuse and
ensure transparency.
4.what is arrest? Discuss the circumstances arrest made without warrant.
Introduction: Arrest involves restriction of liberty of a person arrested and
therefore, infringes the basic human rights of liberty. Nevertheless the
Constitution of India as well as International human rights law recognize the
power of the State to arrest any person as a part of its primary role of
maintaining law and order. The Constitution requires a just, fair and reasonable
procedure established by law under which alone such deprivation of liberty is
permissible.
What is arrest? The word arrest not been defined under any statutory provision
but in general sense, Arrest is the act of taking someone into custody or
detaining them by legal authority. The purpose of an arrest is to compel the
person to obey the law, or to prevent them from committing a crime or
answering a criminal charge.
Case: State of Haryana V. Dinesh Kumar
Arrest implies oppression of the accused by the police officer or the submission
of the accused by the custody by the word or action including when he is in
judicial custody on the surrender before the court and submits to its direction.
Circumstances arrest made without warrant:
Section 35(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence; or
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years whether with
or without fine, if the following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in
writing:
Provided that a police officer shall, in all cases where the arrest of a person is
not required under the provisions of this sub-section, record the reasons in
writing for not making the arrest; or
(c) against whom credible information has been received that he has committed
a cognizable offence punishable with imprisonment for a term which may
extend to more than seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the basis of that
information that such person has committed the said offence; or
(d) who has been proclaimed as an offender either under this Sanhita or by
order of the State Government; or
(e) in whose possession anything is found which may reasonably be suspected
to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such thing; or
(f) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(g) who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union; or
(h) who has been concerned in, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable
suspicion exists, of his having been concerned in, any act committed at any
place out of India which, if committed in India, would have been punishable as
an offence, and for When police may arrest without warrant.
which he is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(i) who, being a released convict, commits a breach of any rule made under sub-
section (5) of section 394; or
(j) for whose arrest any requisition, whether written or oral, has been received
from another police officer, provided that the requisition specifies the person to
be arrested and the offence or other cause for which the arrest is to be made
and it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 39, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order of a Magistrate.
(3) The police officer shall, in all cases where the arrest of a person is not
required under sub-section (1) issue a notice directing the person against whom
a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be specified in the
notice.
(4) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(5) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the opinion that he ought to
be arrested.
(6) Where such person, at any time, fails to comply with the terms of the notice
or is unwilling to identify himself, the police officer may, subject to such orders
as may have been passed by a competent Court in this behalf, arrest him for the
offence mentioned in the notice.
(7) No arrest shall be made without prior permission of an officer not below the
rank of Deputy Superintendent of Police in case of an offence which is
punishable for imprisonment of less than three years and such person is infirm
or is above sixty years of age.
