Potential Misuse No Ground to Strike Down Law; S.193(9) BNSS Has Safeguards Against Arbitrary 'Further Investigation': Delhi High Court - 2025-08-27

Delhi High Court Upholds Validity of 'Further Investigation' Clause in New Criminal Law, Dismisses PIL

New Delhi: The Delhi High Court has dismissed a Public Interest Litigation (PIL) challenging the constitutional validity of the "further investigation" provision under the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court, led by Chief Justice Devendra Kumar Upadhyaya, ruled that the provision is not arbitrary and contains sufficient safeguards to prevent its misuse against an accused's right to liberty.

The judgment clarifies that the mere apprehension of a law's potential misuse by investigating agencies is not a valid ground to declare it unconstitutional.

The Case at Hand

The PIL, filed by Yash Mishra, contended that Section 193(9) of the BNSS, which permits further investigation even after a police report (chargesheet) has been filed, violates Article 21 of the Constitution (Right to Personal Liberty).

The petitioner argued that this provision acts as a "camouflage" to defeat the statutory right of an accused to 'default bail' under Section 187(3) of the BNSS. The core concern was that investigating agencies could file an incomplete chargesheet within the stipulated 60 or 90 days to prevent default bail, and then indefinitely prolong the detention of the accused under the pretext of "further investigation," for which the main clause of Section 193(9) does not specify a time limit.

Arguments Presented

Petitioner's Arguments: - Violation of Article 21: The power for further investigation is unlimited and arbitrary, curtailing personal liberty without due process. - Circumvention of Default Bail: The provision allows agencies to bypass the mandatory time limits for filing a chargesheet, thereby denying the accused their statutory right to default bail. - Lack of Time Limit: The absence of a specific timeline for completing "further investigation" could lead to prolonged and indefinite detention.

Respondent's (Union of India) Arguments: - Petition is Misconceived: The respondent argued that the provision is not unfettered and contains adequate safeguards within a proviso. - Safeguards in Place: It was highlighted that the proviso to Section 193(9) mandates that any further investigation during trial requires the court's permission and must be completed within 90 days, which can only be extended with judicial approval. - Potential Misuse Not a Ground for Invalidity: Relying on Supreme Court precedents, the government argued that a law cannot be struck down simply because of a fear of potential misuse. It is the legislature's role, not the court's, to amend or repeal a law if it is being abused.

Court's Reasoning and Key Observations

The High Court decisively rejected the petitioner's claims, providing a detailed analysis of the statutory framework.

On Safeguards: The bench found that the power for further investigation is not unfettered. It observed:

"The proviso appended to sub-section 9 of Section 193 of the BNSS 2023, provides for further investigation that may be conducted during trial with the permission of the Court... and that such further investigation is to be completed within 90 days... Thus, it is difficult to hold that Section 193 (9) of BNSS 2023 contains a provision which is unfettered and, therefore, it is arbitrary."

On the 'Camouflage' Argument: The court dismissed the argument that Section 193(9) was designed to defeat default bail rights, stating that the two provisions operate in different domains.

"we may only observe that the provision contained in Section 193 (9) and those of Section 187 (3), operate in different fields and further that Section 193 (9) does not in any manner acts as a camouflage to such right."

On Judicial Precedent: Citing landmark Supreme Court judgments like Padma Sundara Rao (Dead) & Ors. v. State of Tamil Nadu & Ors. and Mafatlal Industries Ltd. v. Union of India , the High Court reiterated a core constitutional principle:

"Even otherwise, any possible potential misuse of a statutory provision is not a ground available to challenge the same and to term it unconstitutional... it is for the legislature to amend, modify or repeal in case a provision of law is found to be misused and is subjected to abuse of the process of law."

Final Verdict and Implications

The High Court found no plausible reason to interfere and dismissed the writ petition. The ruling affirms the legislative competence in framing the provisions of the new criminal law and places the onus of preventing misuse on the trial courts, which must grant permission for any further investigation post-cognizance. This judgment serves as a significant interpretation of the new BNSS, balancing the powers of investigating agencies with the rights of the accused.