Ritumani Deka v. The Union of India and 6 Ors

PageoNo.#o1/4 GAHC010251722024 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oPIL/74/2024o RITUMANIoDEKAo S/OoSRIoHARMOHANoDEKA,oR/OoVILL-oSADILAPUR,oNEARoSARAIGHATo JATIYAoBIDYALAYA,oP.O.-GAUHATIoUNIVERSITY,oP.S.-JALUKBARI,oDIST-o KAMRUPo(M),oASSAM,oPIN-781014 VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARY,oMINISTRYoOFoLAWoANDoJUSTICEoTOo THEoGOVT.oOFoINDIA,o4THoFLOOR,oA-WING,oSHASTRIoBHAWAN,oNEWo DELHI-110001 2:THEoMINISTRYoOFoPARLIAMENTARYoAFFAIRS oREPRESENTEDoBYoITSoSECRETARY oGOVT.oOFoINDIA oROOMoNO.o92 oPARLIAMENToHOUSE oNEWoDELHI-110001 3:THEoMINISTRYoOFoHOMEoAFFAIRS oGOVT.oOFoINDIA oREPRESENTEDoBYoITSoSECRETARY oGOVT.oOFoINDIA oNORTHoBLOCK oCABINEToSECRETARIAT oRAISINAoHILL oNEWoDELHI-110001 4:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCHIEFoSECRETARY oGOVT.oOFoASSAM Page No.# 2/4 JANATA BHAWAN DISPUR GUWAHATI-06 5:THE LAW AND JUSTICE DEPARTMENT REPRESENTED BY THE LEGAL REMEBRANCER AND SECRETARY GOVT. OF ASSAM JANATA BHAWAN DISPUR GUWAHATI-06 6:THE HOME AND POLITICAL DEPARTMENT REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY GOVT. OF ASSAM JANATA BHAWAN DISPUR GUWAHATI-06 7:THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM ULUBARI GUWAHATI-78100 For petitioner(s)/appellant(s) : Mr. Ritumani Deka, petitioner-in-person

For respondent(s) : Mr. R.K.D. Choudhury, CGC

Mr. R.K. Borah, Addl. Sr. GA, Assam

– BEFORE – HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

09.12.2024 (Vijay Bishnoi, CJ)

This PIL petition is filed by the petitioner challenging the validity of sub-section (2) of Section 106 of the Bharatiya Nyaya Sanhita (BNS), 2023. It is contended in the writ petition that sub-section (2) of Section 106 of the BNS is in violation of Article 20(3) of the Constitution of India, which provides that no person accused of any offence shall be compelled to be a witness against himself. Page No.# 3/4 It is submitted that the Government of India, in exercise of the powers conferred by sub-section (2) of section 1 of the BNS, has issued a notification dated 23rd February, 2024 and has appointed the 1st day of July, 2024 as the date on which the provisions of the BNS shall come into force. It is noticed that the said notification specifically says that the provisions of the BNS, except the provision of sub-section (2) of section 106 shall come into force from 1st July, 2024. From the above notification it is clear that the provision of sub-section (2) of section 106 of the BNS has not come into force till date. In such circumstances, the challenge of the petitioner to the provision of sub-section (2) of section 106 of the BNS is premature and, therefore, the question of granting the relief, as prayed for in the writ petition, by declaring the provision of sub-section (2) of section 106 of the BNS as unconstitutional, the same being violative of Article 20(3) of the Constitution of India, does not arise. It is stated by the learned counsel for the petitioner that though the provision of sub-section (2) of section 106 of the BNS, 2023 has not come into force till date, but the Assam Police is registering cases under the said provision. As an instance of such cases, the petitioner has produced a copy of an FIR registered on 02.09.2024 by the Mukalmua Police Station in the district of Nalbari, Assam, wherein it is stated that the FIR has been registered under sub-section (2) of section 106 of the BNS. Having heard the learned counsel for the parties, we are of the view that if the police is registering cases under sub-section (2) of section 106 of the BNS, though it has not come into force till date, the individual person against whom any such FIR is filed, is free to avail appropriate remedy available to him by approaching the competent court of law. However, the Director General of Police, Assam, should take note of this fact and issue necessary direction to the police stations under his jurisdiction not to register any case under the provision of sub-section (2) of section 106 of the BNS, 2023, which has not come into force till date. Page No.# 4/4 The petitioner is at liberty to place a copy of this order before the Director General of Police, Assam. This PIL petition is disposed of with the above observations and directions.

JUDGE CHIEF JUSTICE Comparing Assistant