FURTHER INVESTIGATION DURING TRIAL STAGE UNDER BNSS [DELAY IN JUSTICE OR A STEP TOWARDS BETTER REFORM?]

Author :- Astha Gupta 

The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the colonial fever and provide we feeling. Criminal Procedure Code (CrPC) on July 1, 2024, represents a transformative shift in India’s criminal justice system. Designed to modernize procedural law, it introduced technological reforms such as mandatory presence of forensic expert for collection of evidence, statutory base to zero FIR registrations and time bound procedure. While these changes aim to enhance transparency and efficiency, certain provisions— mandatory registration of zero FIR, conditions related to police custody and notably Section 193(9), which permits further investigation during trial—raise critical questions about balancing investigative rigor with the rights of victims and the accused. This article examines whether this provision fosters judicial reform or inadvertently perpetuates systemic delays, undermining the constitutional promise of a speedy trial.

I. Contextualizing BNSS: Bridging Colonial Legacies and Modern Needs

The BNSS emerged as part of India’s broader effort to decolonize its legal framework. Historically, the CrPC’s procedural ambiguities often led to prolonged litigation, compromised justice, and inconsistent judicial interpretations. For instance, Section 173(8) of the CrPC allowed further investigation post-charge sheet submission but failed to specify timelines or trial-stage applicability, leaving courts to fill legislative gaps through case law.

The BNSS addresses these ambiguities by codifying this under 193(9)and strict timelines provided in proviso: investigations during trial must conclude within 90 days (extendable by courts). This mirrors global trends, such as the UK’s Criminal Procedure Rules, which mandate judicial oversight for prolonged inquiries. However, unlike jurisdictions like Germany or Japan—where investigations are restricted to pre-trial stages—India’s BNSS grants unprecedented flexibility to law enforcement, risking misuse in an already overburdened system.

1. II. Section 193(9) of BNSS: Legislative Intent vs. Judicial Precedents

Section 193(9) states:

“Further investigation during trial may be permitted with the court’s approval, provided it concludes within 90 days, extendable based on judicial discretion.”

This contrasts sharply with Section 173(8) CrPC, which lacked explicit temporal or procedural boundaries. Judicial precedents, such as the landmark Vinu Bhai Hari Bhai Malviya v. State of Gujarat (2019), affirmed magistrates’ authority to order further investigations until trial commencement. The Supreme Court emphasized that such powers must serve the “ends of justice,” particularly in complex cases like financial fraud or terrorism, where new evidence may emerge post-charge sheet.

However, BNSS diverges by permitting investigations after trial begins—a departure from judicial principles that restricted such powers to pre-trial stages. For example, in Vinubhai Malviya, the Court clarified that magistrates could order re-investigation only until charges are framed, ensuring minimal disruption to trial continuity. By extending this window, BNSS risks conflating investigative and adjudicative phases, creating procedural chaos.

2. III. Constitutional Implications: Article 21 and the Right to Speedy Trial

The right to a speedy trial, enshrined in Article 21 of the Constitution, has been repeatedly reaffirmed by the Supreme Court. In Hussainara Khatoon v. Home Secretary, State of Bihar (1979), the Court held that indefinite delays violate the essence of “life and personal liberty,” mandating timely resolutions to prevent custodial abuse. Subsequent rulings, such as Abdul Rehman Antulay v. R.S. Nayak (1992), established a “reasonableness” test for trial durations, considering case complexity and systemic constraints.

Section 193(9) threatens this balance. Consider a scenario where a murder trial is adjourned for 90 days to accommodate fresh forensic analysis. The accused, already in custody for two years, faces prolonged detention, while the victim’s family endures renewed trauma during witness recalls. Such delays contradict the Supreme Court’s directive in P. Ramachandra Rao v. State of Karnataka (2002), which warned against “mechanical adjournments” eroding public trust. 

3. IV. Practical Challenges: Overburdened Courts and Resource Gaps

India’s judiciary, plagued by chronic understaffing and infrastructural deficits, struggles to manage 34434861 total pending criminal cases and 24878813 are those cases which were pending more than 1 year (National Judicial Data Grid, 2024). States like Uttar Pradesh and Bihar account for nearly 40% of these backlogged cases, with trials often delayed by 3–5 years. Introducing further investigations mid-trial exacerbates this crisis:

1. Witness Harassment: Under Section 348 of BNSS, witnesses examined earlier may be recalled for cross-examination based on new evidence. For instance, in sexual assault cases, survivors face re-traumatization during repeated testimonies.
2. Evidence Reliability: Supplementary charge sheets often rely on circumstantial or forensic evidence, which the Delhi High Court noted in State v. Ravi Kumar (2021) have a 32% acquittal rate due to contamination or procedural lapses.
3. Resource Strain: A 2023 Law Commission report highlighted that India has only 21 judges per million people, far below the recommended 50. Allocating limited judicial time to repetitive investigations diverts attention from unresolved cases.

4. V. Comparative Perspectives: Lessons from Global Jurisdictions

Countries like the United States and France restrict further investigations to pre-trial stages to preserve judicial efficiency. For example:

• U.S. Federal Rules of Criminal Procedure (Rule 15): Permits post-indictment investigations only if new facts emerge before trial commencement, subject to strict judicial scrutiny.
• France’s Code of Procédure Pénale (Article 81): Limits further inquiries to the instruction phase (pre-trial), ensuring trials proceed uninterrupted.

In contrast, BNSS’s open-ended framework risks mirroring Pakistan’s flawed system, where prolonged investigations contribute to a 55% pendency rate in criminal cases (World Justice Project, 2023).

5. VI. Safeguards and Reforms: A Path Forward

To align Section 193(9) with constitutional imperatives, the following measures are critical:

1. Judicial Accountability: Courts must apply a “necessity test” for permitting further investigations, as suggested in Sidhartha Vashisht v. State (NCT of Delhi) (2010).
2. Victim and Accused Protections: Mandate legal aid for indigent accused and counseling for traumatized witnesses during recalls.
3. Infrastructure Investment: Expand forensic labs and hire additional judges to meet the Law Commission’s 50-judges-per-million benchmark.
4. Technology Integration: Leverage AI tools for rapid evidence analysis, reducing reliance on prolonged human investigations.

VII. Conclusion: Reform or Regression?

The BNSS marks a watershed moment in India’s legal history, prioritizing citizen-centric reforms over colonial legacies. However, Section 193(9)’s unchecked investigative powers risk perpetuating the very delays the Code seeks to eliminate. Judicial prudence, legislative safeguards, and systemic investments are vital to ensure the BNSS fulfills its transformative potential. As the Supreme Court cautioned in Kartar Singh v. State of Punjab (1994), “Procedure is the handmaiden of justice, not its mistress.” The true test of BNSS lies in harmonizing procedural innovation with the time

References

1. Bharatiya Nagarik Suraksha Sanhita, 2023, s. 193(9).
2. Code of Criminal Procedure, 1973, s. 173(8).
3. Vinu Bhai Hari Bhai Malviya v. State of Gujarat, (2019) SCC OnLine SC 1346.
4. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369.
5. Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
6. P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
7. State v. Ravi Kumar, 2021 SCC OnLine Del 3760.
8. Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1.
9. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
10. National Judicial Data Grid, ‘Pending Court Cases Statistics (2024)’ available at https://njdg.ecourts.gov.in (last accessed 12 April 2025).
11. Law Commission of India, 279th Report on Judicial Reforms, (2023).
12. World Justice Project, Rule of Law Index 2023, (2023).
13. UK Criminal Procedure Rules, available at https://www.gov.uk/guidance/rules-and-practice-directions-2023 (last accessed 12 April 2025).
14. Federal Rules of Criminal Procedure (U.S.), Rule 15, available at https://www.law.cornell.edu/rules/frcrmp/rule_15 (last accessed 12 April 2025).
15. France, Code de Procédure Pénale, Article 81.