S.111 BNS | State cannot arrest first and seek evidence of ‘organized crime’ later: Punjab and Haryana High Court

The Punjab and Haryana High Court has held that the State cannot arrest a person for ‘organized crime’ under Section 111 of the Bhartiya Nyaya Sanhita (BNS) without having prima facie admissible evidence against him .

The new BNS Act, which replaced the Indian Penal Code, has added organized crime as an offense under Section 111, and if the crime results in the death of a person, the maximum punishment prescribed is death penalty.

Organized crime is defined as: Any ongoing illegal activity, including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic crime, cybercrime, trafficking in people, drugs, weapons or illicit goods or services, trafficking in human beings for the purposes of prostitution. or ransom, by any person or group of persons acting in concert, individually or jointly, either as a member of an organized crime syndicate, or on behalf of such a syndicate, by use of violence, threat violence, threat of violence, intimidation, coercion, or by any other illegal means to obtain a direct or indirect material advantage, including a financial advantage, constitutes organized crime.

Justice Anoop Chitkara said, “Without legally admissible charges, allegations, or evidence, the State cannot arrest a suspect to gather evidence against him or use such a suspect as guard bait by means of hook, line, or sinker to bring the matter within the ambit of Article 111 of the BNS. . Prima facie evidence must be admissible, and if that evidence is found inadmissible, the entire foundation will collapse.“.

In the present case, accused Suraj Singh filed a plea seeking anticipatory bail under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). According to the reply filed by the police, it was stated in a statement of another accused that Singh had allegedly purchased a firearm illegally to commit the organized crime and had also committed various organized crimes.

An FIR was lodged under sections 111, 310 (4), 310 (5) of the NBS and sections 25 and 27 of the Arms Act, 1959 against Singh.

Going through the response, the Court noted that “During his custodial investigation (co-accused), investigation reveals that the accused Karan Singh revealed to the police officer that he had purchased the pistol and cartridges from his school friend Pardeep Singh alias Kaka, who then purchased them from the applicant. After this, the petitioner Suraj borrowed the said pistol several times. Based on this disclosure statement, the investigating officer had summoned the petitioner, Suraj, as an accused.“

After considering the arguments, the judge referred to Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which states that no confession made to a police officer shall be proved against a person accused of an offence.

The provision of the article states that when a fact is declared as discovered as a result of information received from a person accused of any offense, in the custody of a police officer, a large part of that information , whether or not they constitute confessions, as distinctly concerning the fact discovered, can be proven.

The judge considered that reading the response does not reveal any fact allowing the confessions made by the co-defendants to fall within the scope of the reservation in article 23 of the BSA.

“Thus, the disclosure statement made by the accused, Karan Singh, cannot be proven in evidence and therefore has no probative value,“, he added.

The Court further noted that the other evidence is the confidential information received by the police from its sources who had informed that the accused, initially named in the FIR, who formed a gang and had already indulged in criminal activities , were preparing a conspiracy to commit crimes. .

In analyzing the State’s alleged role of petitioner, the Court found that the initial evidence was based on prior information from an informant, which constitutes a privileged communication under Section 131 BSA and therefore cannot be proven. “Section 131 is a privilege granted to agents mentioned in Section 131 BSA and, therefore, they cannot be required to name their source. So this proof cannot be proven either.“

“The other evidence is a confession of the co-accused in custody before the investigators, which is struck by section 23 (1) and 23 (2) of the BSA, 2023. Under section 23 of the BSA, 2023, nor can a confession made to a policeman be proved against any person accused of an offence, nor can a confession made by an accused to a policeman be proved unless made before a magistrate, and if made , this would imply that such an admission would not be admissible in evidence.“, he added.

Prima facie evidence should be admissible for an organized crime arrest

Going through Section 111 of the BNS, the Court stated that: “To bring an offense into the four corners of organized crime, the offense must fall within a category described in Section 111 of the BNS, 2023. The primafacie evidence must be legally admissible to constitute any continuing illegal activity capable of constituting a crime organized as defined. in S. 111 BNS.“

Without legally admissible prima facie evidence, the State cannot subject a suspect to custodial interrogation to seek such evidence against the suspect or others. Evidence must first be gathered to establish a prima facie case within the meaning of Section 111 of the NBS, and this evidence alone would justify custodial interrogation to conduct further investigation, the Court added.

In light of the above, the Court stated that at this stage, custodial interrogation or pre-trial incarceration would not be justifiable.

Therefore, the plea was allowed.

MBS Jaswal, counsel for the petitioner.

Mr. Sukhdev Singh, AAG, Punjab.

Title: Suraj Singh @ Noni v. Punjab State

Citation: Citation: 2024 LiveLaw (PH) 279

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