 We have been reading and hearing day and day out regarding the three foundational legislations that is Bhartiya Naya Sanita, BNS, Bhartiya Nagrika Suryksha Sanita, which will replace the CRPC and the Bharatya Saxeville. And when we were talking about Bharat and all, we thought that the best way to understand this thing would be to call Bharat himself. I am reminded that during the old times that whenever it was something akin to that, we used to watch the movie of Manoj Kumar. So I thought that when we are discussing about this Bhartiya New Acts, the only thing which could register in our mind was Bharat Shri. And in Punjabi Rese Chowk means to pick up. So we thought the best way to pick the best legislation in the overview could be through only Bharat Chowk. Being a weekend as we always say that we don't take much time on the introduction because Bharat is already known not only in Bharat, but beyond that also. Or do you, Bharat, to understand what is the overview of the all the three legislations and what is your take on that? And we will take the Q&A, but no political takes outs, but overall overview only. Over to you, Mr. Bharat. Sounds good. Thank you very much, Vikas ji, for that very generous introduction. I'll try to be worthy of it. Thank you for having me. Always an absolute, absolute delight being here with you and your audience. So we've got together today to discuss the new criminal law amendments. You know, before I start, I think a few words of preface may be important. I think normally when we are discussing something new, which has come up by way of legislative enactment, we normally talk about it, you know, once we have given it some time to at least play itself out. You know, once the dust, so to speak, has settled. And then we take a look at the law and how, you know, the courts have interpreted it, how the courts have understood it, what are the interpretational challenges. But today, you know, given the importance of what we are dealing with, you know, CRPC, IPC, the evidence act, these are the foundational laws that we have given the importance of what we are dealing with. And given how wide ranging and wide sweeping some of these changes are, we thought we should have a conversation on what some of these amendments are and what would be the impact and where do we see the challenges here. So that is the reason we are doing this conversation today. You know, and I must, at the very outset, you know, put in a caveat that this is only an ex-PSI or a prime of SI view of the law. It's not an in-depth analysis by any means. They've just come out the laws and haven't had the opportunity to do a very, very deep dive into it. But yes, I've had the occasion of going through the laws broadly and I'll share with you some of my views on these laws. Obviously, we can do a more dispassionate and a more calmer analysis, you know, in the next few months and weeks. But here are my first views, you know, on a very, very broad and fundamental level, because I, before I get into the nuances of specific provisions on a very, very broad view, what are these changes like? Let me just put that context and perspective for you out there. There are more than 1,000 sections that these three laws dealt with. And so the amendments cover a very, very wide area. Although, as I would also demonstrate in the course of this discussion, the actual meaningful and substantive changes in all of these laws are not as many. For instance, you know, in CRPC, the actual effective change that you find would not be more than, you know, 1.5 to 2% or in the IPC, the actual meaningful changes would be about 2.5% or near about and in the evidence act, they are even much lesser. Why do I peg the percentage of changes or the amount of changes at that? Because we're not factoring in restructuring, resequencing. So for example, if something which was a section 302 of the IPC now has become 101 of the IPC, that's not really a fundamental change. There's no change in the philosophy of what murder and culpable homicide is. The change is only in terms of where the section comes up in the sequence of things. Similarly, section 420 now finds its place in some other sections. Section 376 of the IPC, which dealt with sexual assault now comes up at section 64. So these are not substantial changes, so to speak. And many of or much of what we'll be dealing with would be restructuring, resequencing and reorganization. But the focus of today, of course, is going to be the more substantive changes. I'll talk about briefly what are the good changes, what is the good reform here? What is it because there are certain good things about the laws too, both on the procedural side and the substantive side. We'll also talk about the missed opportunities where the legislature has taken the law forward in the right direction. But in my respectful opinion, not taken the reform far enough or not done as much as it possibly should have or could have. We'll briefly see also the jurisprudence on criminal law and the criminal justice system and how some of those case laws which have been laid down by the higher courts in the country have been adopted within the laws. We'll also conversely look at the judgments which have not been followed in these legislative amendments, which I again put in the category of missed opportunity where the superior courts had laid down some novel proposition of criminal law or provided clarity on a particular issue. But it unfortunately does not find its place in the amendments as they stand. So we'll also briefly touch upon those. We'll also briefly see what are the amendments in the penal laws, the substantive penal law. Much of the conversation, of course, today is also going to be about the criminal procedure court. And that is because that's where the majority of the changes are. And so this was the preface that I wanted to start the conversation with. And of course, on a later day, on a later occasion, we will get into the nuances and the fine print. But let me start straight away now with some of these changes. I think the first good place to start would be, of course, let's start on a positive note on some of the good things that these reforms do. I think the point number one for me, which is a very, very progressive change is some more recognition of victim as an important stakeholder in the criminal process. You know, victim is somebody who's largely been given a step treatment in criminal laws for the last couple of decades. A victim, more often than not, as I like to put it, has remained a footnote to a criminal trial or a silent spectator to a criminal trial, who's normally just witnessed the trial with his hands and his face pressed up against the class without any active, meaningful participatory rights. Now, all that a victim could normally do, and we have very experienced councils here, all that a victim could normally do in a criminal trial was to assist in the prosecution. You could not take up the trial yourself, unless, of course, in extreme cases of Section 302 of the CRPC, where in certain cases, the victim could have his or her counsel conducting the prosecution, but that is only after the permission of the court and those permissions, as we know, were seldom granted. But on the whole, in a criminal trial, a victim could only assist the prosecution and not take up the cudgels herself or himself. Now, the Supreme Court last year on a very progressive judgment called Jagjeet Singh had made a radical departure from the law as a student said that a victim has unbridled participatory rights. And these are important words. A victim has unbridled participatory rights right from the time of the FIR to an appeal, a revision or a reference. So very, very strong words from the Honourable Supreme Court there and Jagjeet Singh's case. And of course, the Supreme Court did not lay out the exact contours of what those participatory rights would mean. But a very, very important declaration of law, which was binding on courts across the country. Of course, courts are currently debating on what those court on court participatory rights are. Does it, for instance, allow you to oppose a revision filed by the accused? Does it allow you to file a revision yourself in a state case? If you're agreed by an order, all of those issues are being debated in courts as we speak in that background. What the legislature has done is the legislature has recognized some of the victims' rights here. And some of those rights are, for instance, in the new law. Now, a victim has to be informed of the progress of the investigation. Now, that I think is an important change. Many a times, a victim would completely remain oblivious of what the movement of the case is. And now there is a duty on the investigators to keep the victim informed. So very, very important addition there. Victims' right to get documents and the material that the prosecution relies on has also been recognized. Unfortunately, under the earlier law, there was no provision in CRPC that recognized the right of the victim to obtain those documents. There was indeed a right of the accused to obtain documents that the prosecution relies on. We had 173 and 207 there. But now important amendments were a victim's right to obtain information. And, you know, you cannot have an effective participation until you have the prosecution material with you. Now, that right has been recognized. Another important recognition of a victim's rights now is the fact that if, in a given case, the prosecution in exercise of their powers under 321 of the CRPC, which talks about withdrawal of prosecution. If the prosecution takes a decision to withdraw a prosecution, then in that situation, the court will not permit the prosecution to withdraw the case and they may do it for a variety of consideration until and unless the victim is also hurt. So that, again, is very, very important. But I must add here that the legislature could have possibly gone beyond this as well. These are important affirmations, but. Other participatory rights on the part of the victim, for instance, the right of a victim to have his or her counsel argue on the question of discharge, right of a victim to have a counsel address submissions to the court after the prosecutor has advanced submissions. The right of the victim to possibly file an application to get some important evidence on record in a given case where the where the prosecution is not supporting that application for whatever reason. Those rights have not been recognized, unfortunately. A large body of jurisprudence on recognition of victims' rights. For example, there are, for example, there are decisions that say that a victim has to be heard even at the stage of 482. If the accused goes in for a caution of the FIR, that could have been given, you know, a legislative recognition as well. Those case laws are already there. But again, I must add that a movement in the right direction, a progressive, progressive provision. We also have recognition of the fact that now a trial can be conducted electronically so that recognition is there. Of course, the position on the ground would take a very long time to get changed, given the infrastructural concerns that district courts have. Of course, the situation is much better in the metros, but it would take a lot of time for the other states also to come up to speed, but an important recognition, regardless. Another important addition to the court is the requirement to offer mandatory for N6 in serious criminal cases. Now CRPC now makes it a mandate for the crime team and for the forensics teams to visit the scene of the offense and collect important evidence, which is at the risk of being obliterated. And that is now a mandatory flow. Of course, this has to be read in the context of, again, infrastructural concerns where we may not have the requisite number of forensic labs or forensic experts for this. But again, a move in the right direction. This duty has come up for the first time in the criminal procedure court. And given how important forensic evidence is and given how problematic or fallible oral evidence is sometimes, I think a very, very progressive move again. We have provisions which lay down specific time limits now. Again, very progressive, important. Some may argue that this is more symbolic than meaningful, but I would say that even if it is not immediately achievable, for instance, if we've had statutes for the last many, many decades, which provide a time limit for rendering of judgment, for instance, or completion of investigation in certain cases or completion of trial in certain cases. Even though we've had those time limits, the courts have not been able to or the investigators have not been able to complete those tasks in those time limits. Of course, those are practical difficulties. And if you are not able to comply with the time limit in a certain case, that does not vitiate the investigation or vitiate the trial. So that's absolutely correct. But having that time limit laid down in the statute obviously acts on the mind of the decision makers that yes, there is a clock ticking. So in that way, it is progressive now. We have time limits for registration of the FIR. We have time limits on further investigation. Now, it's very, very important now. The law says that a further investigation after the completion of the original investigation has to be completed within a time limit of 90 days. We've seen cases where a further investigation remains pending for years and years altogether. And after the court has already taken cognizance of the charge sheet moved to trial and moved substantially, that the supplementary charge sheet now comes up and then sometimes you have to go back in time and look at those evidences too. So I think this is a very important time limit again. We obviously hope that this would be observed in compliance more than its breach. And I think institutions would come up to try and comply and make best endeavors to comply with these directions. But important to note that now the legislative policy at least is very clear. We have the recognition of the concept of zero FIRs. Zero FIR as we are all aware is an FIR that the police station has to register when the informant comes up, regardless of the fact whether it has jurisdiction or not. So even if you don't have jurisdiction, territorial jurisdiction, if a victim or an informant comes to you and informs you of the offense, then it is mandatory on the part of the police officer to register that FIR. And then maybe of course, after a preliminary investigation or after collecting proofs which may be in the danger of being pitted away or obliterated, send the matter for investigation to the concerned police station which has territorial jurisdiction. So we've had judgments which have already held this that a police station cannot refuse to register the FIR on the ground of not having territorial jurisdiction, but be that as it may, an important legislative recognition of that jurisprudential principle. So again, a welcome development. We also have now a recognition of the concept of preliminary inquiry. Now preliminary inquiry just in a line is an inquiry that is done by the police prior to the registration of the FIR. Now an FIR is something as we all understand is a starting point of an investigation under the CRTC. An investigation gets kickstarted after the registration of the FIR. But in certain cases, it was felt that there is a need to at least broadly examine the information received and then take the decision to register or not register the FIR. Now this was known as the concept of a preliminary inquiry. It is an inquiry before the starting of an investigation. Now this is something that was recognized in the police rules, Punjab police rules, I recall had a provision on this, but it was in earnest, it was recognized by the honorable Supreme Court in Lalitha Kumari's case. Now the judgment in Lalitha Kumari laid down that in a few cases, where there is a greater possibility of the abuse of process of law, you can do a preliminary inquiry even before registering the FIR. So as to ensure that somebody is not able to abuse the process of law and get frivolous FIR registered. So to do that broad due diligence and that hygiene check before the registration of FIR, you can do a BE as we like to call it. The court also laid down certain guidelines on how much time can you spend doing that BE. In what kind of cases should you do a preliminary inquiry? So all of those guidelines were laid out. Now, of course, not getting into the merits and demerits, I mean, we can have a longer discussion on each of these topics, but that was the law of the land. Now the legislature seems to have recognized that there is indeed a preliminary inquiry that can be conducted by the police before the FIR itself. So now the law also recognizes it because you'll recall CRPC originally had no provision on a preliminary inquiry. The CRPC with sections 154 CRPC onwards only recognize the FIR at the starting point of an investigation. So this was essentially a evolution of a doctrine through judicial decision making. It's a judge made law in that sense. Now that judge made law has been recognized as a part of the CRPC itself. So on the whole of progressive development, but again, in my respectful submission, the law could have gone a step beyond. For instance, the provision relating to preliminary inquiry as it stands currently only provides for a preliminary inquiry in cases which are punishable with less than seven years. So if you have a more serious offense, for instance, if you have an offense punishable with seven years or above, it may not be possible for the police to do a preliminary inquiry. Even though the case merits that kind of an inquiry or an immediate FIR may not be in the best interests of the parties or in the interests of justice, even in those cases, you may not be able to do a preliminary inquiry. So the law as it stands has narrowed down to a certain extent, the very, very wide victim of the Lalita Kumari judgment. And I think it can be tweaked to a certain extent where a preliminary inquiry can be done even in cases which are punishable with seven years or above in certain situations. And so maybe a more accurate adoption of the judgment of Lalita Kumari in the CRPC on the issue of preliminary inquiry may be conducive. In addition to this, there is also a very important recognition of the concept of community service. Community service is another form of sentencing by a criminal court, where the court instead of sending you to jail, asks you to do certain service for the community as a whole or for you to give back to the community as a whole. For example, for you to go to a senior citizen's home and serve there, or somebody who's repeatedly offending the traffic laws can be asked to conduct trainings or be there at the roads and regulate traffic and anything that reforms the individual number one without unduly penalizing the individual by sending him or her to jail. That's broadly what community service is and it can come in various shapes and sizes. So important recognition of that concept earlier and I've had the occasion of passing a few orders myself as a young baby magistrate at the age of 23 on community service. But earlier it could only be done by having regard to or by invoking the Probation of Offenders Act. So for instance, in a certain case where we could not sentence somebody to community service or make somebody to community service at the time of sentencing, we would invoke the Probation of Offenders Act and instead of sending the person to jail, we would put certain conditions as a part of our order and if the accused would continue to comply with those conditions and becomes a reformed individual so to speak, then a penal sentence of imprisonment is not imposed. So now what was essentially done earlier by regard to the Probation of Offenders Act can now be done within the criminal procedure laws. So very, very important, of course, one may argue that the provision could have been fleshed out better. The provision of community service could have been made applicable to a wider range of different variety of offenses. Of course, that can be argued, but I would feel that it's a good move regardless and it would seriously help us look at punishment and sentencing once again. We talk about every saint having a past, every sinner having a future and how everyone deserves a second chance at life and how the overarching objective of the criminal justice system is not just to punish but to reform, to reclaim somebody as a valuable member of the society. If that be the ethos that we act on, then I think this is a step in the right direction. And additionally, it would also help us reduce the problem of the sheer overcrowding of jails. In jails across the country, we have three times the sanctioned strength or occupancy and I think it would greatly help in that direction as well. So good move. Moving on, another substantive amendment which is in the right direction is giving more teeth to cases involving hit and run. Now we have a provision which puts or pegs the punishment of causing death by a rash and negligent attack at about five years if I'm not wrong. Of course, not factoring in the medical negligence cases in an ordinary situation, or a rash and negligent act. And if you cause a death, the punishment now is five years. Now, one may argue that this is a bit too high given the fact that it's a negligent act and there is no intent really to cause death of a person. But again, without getting into that, I believe that it was felt earlier that in India, we have the highest number of fatalities and accidents in the entire world actually on the road. And it was felt that even if somebody driving in a gross and a culpably rash and negligent manner causes death of a person, it was felt that the earlier section which was 304A of the IPC was not sufficiently stunned to meet out justice. It only provided for a punishment of two years and it was also available offence, in fact. It was felt that people letting some of these acues go with a wear, wear wrap on the knuckles. And the sentence and the provision was too lenient. I think this is a welcome amendment. It adds more teeth to the law, especially given how rampant, as I said, hit and run cases in India are, you know, in fact, in a hit and run situation, the sentence is even higher. And even higher than a normal or a rash and negligent act situation. Of course, there is an important carve out in the favor of doctors, given the legitimate protection that the community possibly deserves, where the maximum sentence is two years. One miss that I see on the whole, a good move. And I think it would send a very strong message and deter people, you know, from being rash and negligent on the road, which is rampant really. It would send a strong message. But I feel that some more clarity could have been there in terms of how the wording of the section is. For instance, the section says a rash and negligent act. So it is something on the lines of whoever by a rash and negligent act causes death. Now, we've seen that the jurisprudence on the subject has defined what rash and negligent really is. And the courts have repeatedly laid down that it's not just any negligence that can be made culpable under 304A of the IPC. It is only negligence of a very, very grave and culpable or gross and culpable character that attracts the mischief of 304A. Now that jurisprudence could have been brought into the section itself and possibly by way of an explanation that defined the exact contours of what rash and negligent is. Because the job of legislation also is to introduce clarity in terms of the law, you know. The lawyers have the benefit of reading the statutory provisions. We have the benefit of reading judgments and then finding out what the real position of law is. And much of the law that we get of course is from the judgments and not the bare reading of the statute because it's the judgments and judges that breathe life into the bones of a legislation. But again, I think it's important for the legislature also to take some of these judicially recognized and laid down principles and put them into the act itself and then possibly make it easier for a lay person to absorb the law. So there I see a bit of a missed opportunity but on the whole a step in the right direction. I also see an important addition in the form of amendments to section 251 of the CRPC. Now, just to give you context, 251 of the CRPC provided for substance of the accusation to be explained to the accused in a summons trial. We understand the different kinds of trial. There's a court of sessions trial for very, very serious cases. We have a magistrates trial which can be a warrants case or a summons case. Warrants cases essentially are cases punishable with more than two years and summons cases are those cases which are punishable with two years less. So in a warrants case or a court of sessions, we have what is known as a provision for a discharge. So for instance, in these trials in the court of session trial or warrants trials before the magistrate and accused would very well say that, yes, there is a case against me. You as the court have taken cognizance but on the face of it, the offense is not made up. So the case and the facts and the evidence does not make out a prima facie case against me and therefore please discharge me at the very outset without me having to go through the rigmarole of a trial, without me having to go through the entirety of a trial. Now that is something that was possible and we defense counsels argue that all the time. But in a summons case, there was a bit of an anomaly in the law. In a summons case, which was relatively less serious or relatively less heinous as an offense, section 251 of the CRPC said that after the supply of documents to the accused in a summons case, the judge shall explain and I'm paraphrasing broadly, the court shall explain to the accused the substance of the accusation and then record the plea of the accused as to whether accused pleads guilty or pleads innocent and claims trial. Now this was how the section stood. On a bare reading of the section, there was absolutely no provision for a dropping of proceedings at that stage because the section simply did not provide for a discharge at all. The legislature at that point had not envisaged that there can be a dropping of proceedings at this stage. The legislature and possibly rightly at the relevant point of time felt that summons cases are cases which are relatively less serious and therefore a more abridged and a more speedier form of trial could be envisaged for those cases. But experience has shown that summons cases possibly remain pending for as long as the warrant's cases. So in practice, there was not much of a distinction. And therefore, section 251 as it stood, which did not provide for a discharge in a summons case, whereas the court provided for a discharge in other cases to the accused was not in line with the interests of justice and possibly right of equality, where one accused can say that, the other accused are getting an opportunity and I'm not. So keeping that in mind, I think now a specific amendment has been introduced that specifically lays down that even in a summons case, which may be a complaint case, the court can drop the proceedings without having to go through a trial if the evidence broadly doesn't measure up and his prime of AC case was not made. So that's a very, very welcome addition where at the very outset, patently meritless cases can be thrown out without them clogging the dockets of the court. So that's again, very, very important. Another important provision is that now they've amended what was earlier, section 436A of the CRPC, which now I've been told, finds mentioned in 479, subsection one provides of the new law. Now, 436A broadly said that if you've spent half of your sentence behind the bars as an under trial and the trial has not concluded, then you shall be released on bail, broadly on those lines. Now the new law provides that, and this is a beneficial provision for first-time offenders, that if you are a first-time offender and the offense that you've been elish to have committed is not punishable with the death or life, so it's not that serious an offense. And you've already spent one third of the maximum sentence behind the bars. During the course of the trial, then you also shall be released on bail. Now, I think that's a very, very important and welcome addition. We've seen most of our jail population are under trials and an absolutely shocking fact. I think nowhere in the world, we have more under trials in the jails. Most of the jails around the world, normally the majority of the population would be people whose guilt had been adjudicated and judged and who are convicts who are spending out their sentence and not under trials. So this would be an important addition. Of course, I believe and possibly when I'm talking about the missed opportunities, I'll delve on it in greater detail. I think what the missed opportunity is that there could have been more provisions on these lines, making bail easier, reaffirming the fact that bail is the rule and jail is the exception, which is what the lawyers love to say, but sometimes people associated with the criminal justice system forget to apply this in practice. I think a stronger affirmation of that principle could have been important or would have been important. So this broadly, and since I want this overview to be more balanced, I've spoken about some of the very positive developments. Let me now turn to some of the challenges that I see with the new law. And again, these challenges may be in the nature of provisions that I feel are inconsistent with the other provisions, inconsistent with settled jurisprudence, inconsistent with possibly the constitution of India or just simply missed opportunities. Now, the first one on my mind in this direction is the concept of police custody. Now, we all understand as students of criminal law that anyone arrested in the investigation of a criminal offense can be given, that has to be first of all produced before a magistrate within 24 hours. So within 24 hours, you have to be produced before the magistrate. And then it is for the magistrate to either grant police custody or judicial custody as the case may be. Police custody, if your custodial interrogation by the police is likely to help the police investigate better, find out evidences, or broadly would be in the service of a fair investigation in the case. For example, you have to be taken to recover or discover the bloodstain knife, right? So the judge has the power at that point to give you police custody or judicial custody. Now, the law in this regard has been that it's for the first 15 days after the first arrest and that production before the magistrate within 24 hours, the first 15 days can either be police custody or judicial custody. And custody cannot be more than 15 days at a time. That's also set in principle. Fortunately, that's not what the new amendments take away. 15 days at a time custody, police custody or judicial custody for the first 15 days. And the law very, very categorically held and it was also interpreted in that manner by the judgements that after the first 15 days, there shall be no police custody. So there shall be no police remand or custodial interrogation after the first 15 days. And the need was felt in this regard because of the fact that normally what you want from the accused, for instance, if you want information on where the weapon is, where the dead body is, and other information that the accused can give you, of course, if the accused chooses to do it voluntarily, then that can be done in the first 15 days. And generally police custody was not very favored by the law because we also had the colonial experience with us where we realized that they were cases of police abuse, custodial abuse. And many a times an investigator, instead of trying to find independent evidence, would much rather have the accused give a confession instead of looking for independent means of evidence. So we had that experience and we thought that no. And it was a better mind thought on this and various, various benches upheld that principle that after 15 days no police custody. Now, and of course the total period of judicial custody I must place on record could never be more than 60 or 90 days if you're not able to complete the investigation in that time. So if you're not able to complete the entirety of the investigation in 60 or 90 days, the accused gets the right of automatic bail, default bail, indefensible bail, statutory bail as we like to call it. Under 162 proviso of the CRPC as it stood. So that was a broad lay of the land. Now, what the new amendment seeks to do is, is actually two-fold. One is of course that now the police custody can be granted even after the first 15 days. Now, the justification for this appears to be two-fold. One justification that I've heard is that sometimes the first 15 days are not enough for the police to be able to discover and honor the crime and the entirety of the conspiracy, for instance, because many of these crimes are very, very complex to discover and that the profile and the nature of crimes is also changing. Therefore, we also need police custody after the first 15 days. Maybe you take police custody for seven days and then judicial custody for seven days and then you realize that we need the police custody again to understand a few things. For example, one of the other co-accused now subsequently stands arrested and you want to confront the two accused, but the 15 days are over from the arrest of the first accused and therefore you need that type. So this was one justification. The other justification was that in some cases, it was seen and felt that if an accused right after the arrest gets himself or herself in a hospital or not in a hospital and then the first 15 days are over without the police having had an opportunity to take police custody because the accused simply was in the hospital for the entirety of the period. Now that led to the police losing a very valuable right of investigation. That was indeed a gap in the law where if those first 15 days, the police is incapacitated and take police custody then they are not able to take it subsequently because the law was absolutely inflexible and said that if the first 15 days are over, nothing doing, there's no police custody that's possible now. So that was a mischief that was sought to be remedied. And this appears to be the ostensible justification for the law as it stands. In my opinion, given the practice and our experiences on the ground, I do not believe that police custody beyond the first 15 days would be conducive to justice. It would really make bail even more difficult for the accused to get because even if you're filing a bail application after the first 15 days, the moment you file a bail application, the investigator can come and say, no, I need police custody for two days. This is what I want to discover and therefore the bail should be denied. So it would make bail more difficult and I don't believe that and you need to keep in mind the fact that the architects of CRPC actually envisage and this is very interesting. Young people find it especially as you know, I'm using that the architects of CRPC envisage that an investigation of a criminal case could be completed within 24 hours. Obviously that's pretty much next to impossible now, but that was the intent at least. I believe and given that background in mind, I think the first 15 days are more than sufficient for the police to normally investigate, especially given the fact that you'll have to remember that an accused has a right to silence. That's the constitutionally protected right against self-incrimination. And if that is the right that the accused has, then you do not I think need more than 15 days to get the information that you can get out from the accused. I think the emphasis always and always should be independent sources of evidence, forensic evidence, digital evidence maybe, whose importance is becoming more and more each day. Those should be the focus instead of the focus being the accused and what he or she tells you. So therefore I think that the provision of police custody beyond 15 days is open to misuse in a lot of ways and would make bail difficult. Although I'm mindful that there is a provision in the new avatar of 437 of the CRPC that says that the fact that police custody could be taken is not a ground for denial of bail, but I'm not sure if this is how it would play out in practice. Another disconcerting observation that I have about the new provision is that the provision as it stands doesn't seem to be very neatly drafted or very artistically drafted with great respect. The reason I say this is that it's not very clear from a bare reading of the provision that police custody now remains confined only to the first 15 days or let me rephrase it. It does not clarify that the police custody can be for a total period of 15 days or for longer. Although this appears to be an inadvertent omission because I believe a statement was also made that although now police custody can be taken after the first 15 days, but the total aggregate period of police custody cannot be more than 15 days. But the language of the section doesn't appear to suggest that. It is open to interpretation. It is quite vague, in fact, in my opinion. And given how serious this issue is, we are talking about personal liberty here. Given how serious the issue is, I think it needs to be tweaked and made clearer. And it's not as complicated as that. Once the section, 167 subsection 2, Proviso, which dealt with custody and default bail and all of these issues was even to begin with was worded in a very convoluted manner. I think what the law needs to do is to lay it out very, very clearly that yes, the total period of custody should not be more than 60 or 90 days. At one occasion, at one time, it cannot be more than 15 days. For the first 15 days, it can be either police custody or judicial custody. After first 15 days, it can only be judicial custody. So you're on a step by step manner of simple, uncomplicated, pain-English sentences. It can lay this down. And I think this needs a very, very serious relook, at least this provision. I can go on and on about this provision and unpack the language of the section with you. Maybe we'll do that on the later occasion. But suffice to say that it needs a serious relook. Another provision that is a little troubling for me is the amendments to the new counterpart to section 200 of the CRPC. Now, section 200 of the CRPC you'd recall was the provision that talked about examination of the complainant. Now, there are various ways in which a criminal case can be started. You can either kickstart a criminal case by registering an FIR and the police investigation begins. You can also kickstart a criminal case by not going to the police, but straight away going to the magistrate by filing a criminal complaint, which we call the complaint case. Now, section 200 of the CRPC as it stood, said that once somebody has come to the magistrate with a complaint, the court would apply its mind, examine the complainant on oath to understand what the case is about and then maybe inquire further, call some other witnesses if the court deems it appropriate and fit and required, examine any other witnesses that the complainant has bought forth in support of his or her case and then take a decision on whether to summon the accused or not. So, that was how section 200 to 204 of the CRPC operated. Now, what appears to have been done is that in the new counterpart to section 200, now the law says that before the court is to take cognizance of a complaint, the prospective accused has to be given an opportunity to put forth his side of the story. Now, this in my respectful submission is absolutely alien to criminal law. Criminal law never envisaged an opportunity to a prospective accused to be heard even prior to cognizance is taken, even before cognizance is taken. And what is cognizance? Cognizance is not a term that is defined under the CRPC but it has a very, very clear judicially laid down meaning now. What is cognizance? Cognizance is nothing but the application of judicial mind by the judge to the facts of the case, to the evidence of the case with a view to take further steps. Now, what the law says is that even when or before the judge has applied his or her judicial mind to the matter with a view to proceed further, the prospective accused, somebody who would have become the accused had the court gone ahead with the matter and issued summons to the accused would have to be heard. Now, this in my opinion would greatly delay matters because if the accused is given an opportunity at that stage, then the accused would get an opportunity at multiple stages then. You'll get an opportunity even before the court has taken cognizance, then you get an opportunity to challenge the summoning order, then you get an opportunity to argue for a discharge, then you get an opportunity to argue for an equitable and along this very, very long and agonizing journey sometimes you would also have an opportunity to file revisions, 482 petitions along the way, seeking caution of the matter. So there are multiple opportunities and remedies available to an accused. I don't think an opportunity at this stage was important. Of course, as a defense counsel, and to defense counsels across, this would be another opportunity to put forth the outside of the story, to contest the case even at that stage itself and try and dip it in the bud. But again, I think this would come at great cost for expeditious disposal of cases and may require a relook in my respect for the mission. Also, there are other provisions. For instance, now before a magistrate has a very interesting amendment, now before a magistrate can pass an order against a public servant. So for example, you have a complaint against a public servant that public servant in discharge of his or her duty has come into the defense. Now the general law of the land has been that you can straight away go to the police and you can register an FIR. So a public servant in that sense, at the point and at the stage of FIR is not entitled to a greater immunity than an ordinary citizen. We talk about the rule of law, howsoever high you may be, you're not above the law. So that is not an immunity available or a special treatment available to a public servant at that stage. But the law balanced this out by also saying that we understand that in certain cases, public servants are at a greater risk of being falsely implicated and prosecuted. Therefore, while we are not going to stop an FIR from being registered, what we'll do is that after the FIR is registered and the matter is investigated, the court shall not take cognizance against the public servant without a sanction by the superior officers of the public servant who then examines the matter independently and gives his or her report and says, oh yes, there is prosecutable evidence. Now without that sanction, the court could not take cognizance. So that acted as a very important filter in a safeguard to protect honest public servants from being wrongfully prosecuted and proceeded against. Now, what appears to have been done is, so this was the original law as it stood, your section 156, red with 197 of the CRPC red with 204. Now, what appears to have happened is that over the years, there were certain judicial decisions which said that, for example, in a given case, and let me explain it to you by way of an illustration, that in a given case, the police officer is not registering the case against the public servant. Then what do you do? You go to the magistrate, seeking orders of registration of FIR. There were certain judicial decisions, MK IAPA being one of those, where the court said, the Supreme Court said, that the magistrate before passing an order directing registration of the FIR against a public servant has to get the sanction and the requirement of sanction kicks in at that point. So the Supreme Court had said something which in my respectful submission was contrary to the law and I've written and spoken about it separately. But the Supreme Court also laid down that safeguard. Now the position is that now the legislature seems to have adopted the decision in MK IAPAN, which in my respectful submission was not in line with the law because 156.3 is pre-cognizance and does not amount to taking of cognizance. So there should technically be no requirement of a sanction at that stage. Now that's an opinion and there are certain judgments of larger benches prior to MK IAPAN which validate and uphold that position. But then that's again a discussion for another day. The legislature seems to have taken the dictum in MK IAPAN and legislatively inserted it. Now this in my opinion is not a very progressive development. It may have the effect of protecting public servants from even an FIR being registered. Now I understand that a public servant is in the need of some protection from prosecution but 197 of the CRPC was protection enough because no court could take cognizance against a public servant even if there is an investigation, even if there is a charge sheet. The court still cannot take a cognizance against such public servant if there is no sanction. But so there can be no immunity from investigation while there can be an immunity from prosecution and these are two different things. So there can be no immunity to a public servant where a public servant can say, let me not be investigated at all. Is different from the fact that a public servant says that I may be investigated and investigation is nothing but a way of discovering the truth. But please do not prosecute me until there is some sanction, there is some safeguard. So I think that these amendments to the new avatar and it would take some time for us to remember the sections. We can't rattle them out to the way we used to. So I'll refer to it as a new avatar of 156.3. I think it requires amendment. And what is even more shocking is the fact that it appears that if you go with a complaint to the police officer, the police officer can register the FIR against a public servant without the requirement of a sanction. But if you go to the magistrate asking for an FIR against a public servant, then you require sanction. So it almost puts the investigating officer on a pedestal higher than the judicial magistrate. But a metropolitan magistrate or a judicial magistrate cannot pass the order to register FIR against a public servant without a sanction, but a police officer can. So again, there is some inconsistency there. And speaking of metropolitan magistrate, I think another important miss in the law is the fact that, and maybe you can check this out for yourself by doing a control F trick on the PDF of the new CRPC. If you try and find out metropolitan magistrates, you would not find them because the new law, as it stands currently, does not recognize metropolitan magistrates, additional chief metropolitan magistrates, chief metropolitan magistrates. And these hierarchies and these offices function in Delhi, for example, and other metropolitan areas, but they do not seem to have the recognition under the new law. Now, how it would work out in practice where the CRPC doesn't now recognize it? Because the earlier CRPC defined what a metropolitan area is. Who is a metropolitan magistrate? Who is a additional chief metropolitan magistrate? Who's a CMM? All of these things were defined and laid down in the CRPC itself, but now they do not find mention in the new CRPC, as it stands. So that, again, is something that we need to look at. Another important development is the concept of an in absentia trial. Now, again, something that needs to be seriously looked at. The law, as it stood earlier, did not provide for a trial in the absence of the accused. So if you have accused in a case who's not appearing at all, evading the process of law, all that the court could do was declare that person a proclaimed offender, keep making attempts to find that person, and only once that person is apprehended and arrested would the trial begin. There was absolutely no opportunity or an occasion to do an expatriate trial or an in absentia trial. But the new provision or the new CRPC, unfortunately, provides for an absentia trial. The justification appears to be that we've had a lot of people who are running away from the process of law, enjoying life in exotic jurisdictions and not submitting to the process of law. They should be tried and punished in their absence. Now, of course, there can be no punishment in their absence. There can be a trial in their absence. But the justification appears to be that if you try them in their absence and hold them guilty and convict them, then there is a better case to be made for their extradition from the other countries. Now, again, this is something that I'm slightly skeptical about. One, of course, on account of due process, doing a trial in the absence of the accused is brought with certain risks, certain due process and fair trial challenges. And I'm not sure if this would really help India's case in the extradition of those individuals because somebody can pick holes even in this argument by saying that an in absentia trial or an ex-party criminal trial is unknown to civilized criminal jurisprudence and may not be, may be violative of various rights. So again, I don't know if it would help India's case in those extradition matters. I think what would really help India's case in those extradition matters are is better extradition applications, better investigations. India putting a stronger foot in front of the foreign authorities under the relevant extradition treaties and trying to get better results there. So that's my broad comment on the issue of in absentia trials. Of course, the legislature has tried to put in certain safeguards. Let's see how that would play out in the future. Also, I find something which is slightly problematic is that now we have offenses relating to organized crime, offenses relating to terrorism within the IPC or the new avatar of the IPC itself. Now, this again is something that I'm somewhat skeptical about. Having the same act be offenses under various laws we've seen leads to a lot of problems of multiplicity of laws, multiplicity of prosecutions. And then again, it comes down to the discretion which may be arbitrary sometimes of the investigating officer on who should be prosecuted under what law and how and on what considerations. So I think there is a need broadly of uniform criminal laws where if you provided for an offense under the special law then let the special law apply and kick in. For instance, many, many provisions under the new IPC also relate to food adulteration for instance or they lead to election related practices or corruption related issues. Now we have special legislations on all of these. Now the vision of course is to put all of them under the under one umbrella of a common federal law as is the case under certain other countries let that be there. But these multiplicity of laws and the absence of a special provision which says or clarifies in what situations what law kicks in is a bit concerning for me. I believe and this is again my personal opinion that the focus and this is I can also see because G is back now. Let me try and give you my concluding remarks on broadly some of the issues that I've shared with you today. I think what seems to be the missed opportunity for me is that police reforms is something that should have been focused on really. I think an investigating officer who does not have the burden of law and order responsibilities who's to a great extent insulated from political pressure. Somebody who has investigative capabilities is going to improve the quality of your investigation. Police reforms is something that we've brushed under the carpet for a very long time despite various decisions of the Supreme Court and various committees which have Prakash Singh Badal's case being one where police reforms have been emphasized. I think police reforms is going to improve the quality of your investigation. Prosecutorial independence is going to improve the quality of your trials where there has to be a complete break between the person who collects evidence and the person who then decides whether this is prosecutable evidence or not. Now, currently we don't have that. Somebody who collects the evidence, the investigating officer along with the superior sometimes takes the decision or more often than not takes the decision to file a charge sheet or not. Now, there is some check and balance in the form of prosecuting providing inputs. But again, it's largely the decision of the investigators to prosecute or not. I think prosecutorial independence as is the case elsewhere is going to improve the quality of your trials. Prosecutorial or legal assistance or a separate legal assistance to your investigators during the course of investigation is going to improve the quality of your trials. I also see a missed opportunity in the form of no clarity. So Indian Evidence Act as a matter of fact has hardly been amended really except some provisions relating to digital evidence. I think what's a missed opportunity for me is that it should have been clarified as to what is the status of illegally obtained evidence in our law. Now we have judgments that say illegally obtained evidence is also admissible. We have judgments for the last 150 years. We have some more contemporary judgments that say if illegally obtained evidence has been procured in a manner that also amounts to violation of the fundamental right to privacy than that evidence has to be astute from consideration. Now we have those judgments also. I think it was a good opportunity for the evidence act to also clarify whether illegally obtained evidence is admissible or not. If yes, how, you know all of those things could have been answered. We could have really streamlined the law on the accused's right to exculpatory documents. Now for a long time, the courts have laid down that 207 of the CRPC deserves to be amended where the accused is now or should be entitled not only to the incriminating documents which the prosecution places of a lie and so on but also to exculpatory documents, right? Which is the basic bare minimum duty of disclosure. Now the 207 has not been amended, unfortunately. And today we are in a position where there are judgments which say that the accused is entitled only to a list of exculpatory documents if the IO has withheld them from the charge sheet and they could be summoned only at trial. So you're not entitled to exculpatory documents at the very outset. So you know, given that I think it was a great opportunity to lay that out clearly and precisely so that defense counsels sometimes are not made or compelled to fight with one hand behind their backs and then blindfolded but sometimes this is the case where the IO only chooses to file certain documents in the court of law and only those documents which held them further the case and the exculpatory documents are totally, totally concealed and withheld and suppressed. So I think that was important. And I think finally, and this is where I'll stop and take on questions if any. I think there should have been greater clarity on seizure of digital evidence. For example, seizure of mobile phones and laptops and whether the police is entitled to phone passwords, phone passcodes, paste scans, especially in light of Article 20 of the constitution which protects everyone from not being compelled to be witness against themselves. Now we have judgments again saying opposite things. There are some judgments which say that disclosure of password does not amount to being made a witness against yourself and there are judgments that say, no, this is an Article 20 violation. How can you get such incriminating information from the accused himself or herself? So opportunity where this could have been clarified on the whole, some welcome progressive changes, some missed opportunities and I'm happy to take any questions and I think we open it to the house now. Thank you Bharat. Before we take up to the questions because we talked a lot of misses but I would like that you should also sum up what are the plus? Yeah. Bharat, I'm saying that we have discussed a lot that what was missed but if we could sum it up to state therein but what are the good points which have been incorporated in all these tribals? You have noted? Bharat, your shoulder. Yes. So Vikasthi, I think we started off in fact on the positive note where I made those 10, 11 points on what I think is progressive. Of course, when we are talking about reform and reform was indeed needed. We had these laws for a very, very long time. So obviously while all changes not progress some reforms are welcome but again, I think today is a better time to also be focusing on the challenges so that before these laws now these laws have received the presidential assent as well but they've not been implemented or made effective. So before that is done if there are certain tweaks which can be made to make it more effective to make it serve its objective better then I think a conversation like this is helpful. Yeah. They say that every time you, once you discuss people do take points. One is written, the mission provisions have been relaxed with respect to the existing laws. Then one remark is good evening sir. As to what is the reality people are saying it's a better to crack higher tuition service than the lower judicial exams. That is low beyond the scope of the today's session. Yes. Now I see Ms. Kumari talking about victim rights, yes. Online trial mandatory forensic team, yes. We've spoken about some of these. There is a question on by Aayushi on when will these laws be implemented? I think the sentiment is that we take some time to implement them maybe implement them in a staggered manner. My personal opinion if you ask me is that we should have training sessions with all the stakeholders, including judges, investigating officers, court staff, senior police officers, prison staff or NSIC teams and all the defense counsel, very importantly, prosecutors, victims, lawyers, legal lawyers. I think we should have training sessions for them in advance before the law kicks in because otherwise if you just start with them and just throw everyone at the deep end of the pool it will become difficult to grapple with. And ultimately, at the end of the day, even if one single adjournment is necessitated on account of there being any confusion over the new law or any issue as to interpretation or locating the right provision, I think that that can be avoided by preparing ahead of the law and before they kick in. Megha says that was it really required that the entire amendment should have been done or it could have been, where it was required it could be quick done. Yes. See, I personally think that instead of restructuring and resequencing the whole thing, for example, something which is a section 376 now becomes a section 64. Now, I personally believe that it doesn't make a difference whether the section is 375 or 376 or 64 that doesn't in any way convey the priority with which you treat different offenses. So it's not that now there would be any greater emphasis or anything. I think the sequencing could have been left as it is. We lawyers and all stakeholders have spent years and decades in learning these provisions in absorbing them and internalizing them. The procedure is a lot more efficient. If somebody is arguing in a court of law you can name a section. The judicial officer also knows the section. You don't have to keep going back to the Bayer Act. The things are seamless and efficient. I think that could have been retained. As I said, and somebody has rightly commented too that the bulk of the changes is less than 5% or less than 3%, 4%. If that is the case, many of these provisions could have been added in the existing structure or between sections. For example, if you want to add a section between 437 and 438, you do a 437A. You do a 437B. That was how it was done earlier. You can increase the number of subsections in the same section without changing the terminology, the nomenclature because there is serious economic cost associated with learning and relearning. There is also a lot of change of resistance and inertia in the stakeholders. And I believe this would have the unintended consequence of delaying matters, making processes a bit more inefficient. It could have been done with a finer scalp, if I may, a scalpel, if I may, and more narrowly tailored. I completely agree with that observation. That's true. But they say that once you try, then you will continue to learn. Some people only once we had shared that you are coming to the session, they asked Mr. Bharath to explain as to how you remember all these things in the flow, like once you have to go for a deglazation. What is the way forward? One is that you have to read and read. That goes without saying. But to go seamlessly, how do you prepare for that? I think having a decent memory is an occupational hazard. One has to have that. Secondly, I'm really passionate about my subject. And I've read and I've read and I've reread. Of course, as you said, it becomes a part of you. You internalize it. It obviously comes with practice. And I think some people do it far better than I do. But thank you for that. I'm just reminded that somebody asked, what is your success mantra? He said, first is luck, second is luck, third is luck. But I feel that once you have to be good at it, it could be read, then read, and then read. I think on that, I really like Seneca's definition of it. So he says luck is the point where preparation meets opportunity. So luck is that exact point. And there is no other definition of luck in my respect submission. So thank you, Bharath, for sharing your insights. And it's always- It's just for having me. Always.