Pre-Trial Hearing For The Accused

The newly enacted BNSS made a provision for a compulsory pre-trial hearing of the accused. The Magistrate shall conduct it before taking cognizance. It will serve as a double protection for the accused, as the accused can now present his case before the initiation of trial proceedings. In the previous act, there was no specific provision for a pre-trial hearing.

In the old law, the accused will be summoned after the first appearance of the complainant. The victim gets the chance to present his case first. After this, the complainant would have applied for the summons to be served on the accused. After the service of summon, the accused will appear and that would be considered as the first appearance of the accused before the magistrate. But now, the provision has been changed. Now, the accused will also get the chance to present his case before the magistrate before the initiation of proceedings.

Purpose of Pre-Trial Hearing

The purpose of Pre- trial hearing is to provide an opportunity for the accused to present his case before the magistrate. This helps the accused in potentially influencing the magistrate’s decision to take cognizance of the offense. This provision helps in maintaining a more balanced approach as the accused gets to present his side of the case to the magistrate before initiation of the proceeding which helps in providing enhanced protection to the accused. This in turn will also help the magistrate in deciding whether to take cognizance of the offence as now, he has heard both the accused and the complainant.

The Implications of Pre-Trial Hearing

Although the provision of Pre- Trial hearing is good from the perspective of the accused it has several implications as well:

• This provision would result in delays. Already, our criminal justice system is not speedy. There are several stages of a criminal trial, which makes the procedure lengthy. By adding one, more procedures will delay it even more. Now, the magistrate will have to hear the accused as well before taking cognizance. This will be harmful for the victim, as the victim will get even more delayed justice.
• The other implication is that the accused can take undue advantage of this provision. The accused can delay the proceeding by making false and frivolous submissions, which will result in delayed justice. If this provision is not managed properly, it can lead to misuse by the accused.

As we all know, every legal development has its implications. For eg: in dowry death cases and sexual harassment cases, more weight is given to the testimony of women. These laws are women-centric which has resulted in many false FIRs. This law has been misused. But we have to consider the wider picture. Even if there is the possibility of misuse, we have to see whether these laws are benefiting the larger section of society. If yes, we have to implement these laws. Moreover, in these situations, we only have to take precautionary measures to prevent false and frivolous complaints.

In many other countries, pre-trial hearing is prevalent. In the U.S., there is a provision for a pre-trial hearing of the accused. This concept is not new.

Measures to be taken

Despite the potential abuse of this provision, we can take several measures to prevent the potential abuse:

• BNSS should be implemented in such a manner that the rights of the accused and the fair trial criminal justice system can be managed. There should be clear guidelines on the scope of these hearings so that these abuses can be prevented efficiently.
• Moreover, law enforcement agencies and the judiciary should be properly trained to handle these procedures. These should be continuous monitoring and evaluation procedures to identify potential issues.

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