Statutory drafting has its inherent limitations; no draftsman can claim the foresight to encompass every conceivable situation within a legislative framework.

Even the most meticulously drafted statutes are, at best, indicative rather than exhaustive. A perusal of the provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 or the erstwhile Code of Criminal Procedure, 1973 reveals that the procedures pertaining to arrest, production, and trial are set out in considerable detail. Yet, in practice, compliance is often reduced to a perfunctory checklist, intended only to ensure that the prosecution's case is not defeated on a technicality or vitiated by any irregularity that may render the arrest or subsequent remand illegal. The divergence between law on paper and its practical application,, exposes the chinks within the hallowed edifice of our justice delivery system.

This article is neither a tirade against the system nor a critique of judicial officers; rather, it seeks to highlight certain procedural fault lines in the process of production of an accused before a magistrate having jurisdiction.

Upon arrest, the law mandates that the accused be produced before the magistrate having local jurisdiction within 24 hours. Section 9 of the BNSS provides for courts of judicial magistrates and Section 9 (1) reads: "In every district there shall be established as many Courts of Judicial Magistrates…" Therefore, in a district there can be multiple magistrates but the police can produce the accused only before the magistrate having local jurisdiction. The local jurisdiction of the magistrates is decided as per the order of the chief judicial magistrate or, if by a special order, of a particular court that has been designated as a special court for offences emanating from special statues.

The operational reality, however, is more nuanced. In Delhi, magistrates are assigned jurisdiction corresponding to particular police stations, and such allocations are typically available on the website of the district court establishment. However, what is less known is that the production before the magistrate having local jurisdiction applies only in the case when the said production happens during regular court hours (10 am to 4 pm mostly) on working days of the trial court. For instance, if an accused is to be produced during a festive break or post 4 pm, the said production will not take place before the magistrate having local jurisdiction but before the 'duty magistrate'. Interestingly, the concept of duty magistrate is not provided in the BNSS.

One visit to any district court is enough to experience the grim reality of the criminal justice system in India. I have seen clueless family members of accused in court premises wondering when and where the production will take place. By virtue of Section 36 (c) of the BNSS, it is mandatory for the police to inform the relative/family members of the person arrested, but this condition does not extend to providing other details of the case which might make it easier for the family members. In practice, one may find numerous grievances of the citizens wherein they have to resort to informal channels for getting access to information such as the FIR number, certified copies of previous remand orders and so on. It is because of this model that the 'investigating officer' of the case begins to enjoy a position of authority. This enforces the belief that making payments is the only way by which citizens can be privy to court information, whereas as per Section 230 of the BNSS, access to documents is a basic right of the accused.

Additionally, I have noticed that there is no cause list for production cases. For instance, if an accused is coming to court for production from a previously extended police or judicial custody, the only way one can get information regarding the time of production is either if you are updated by the investigating officer or by the court staff; else the family or its advocate can wait for the accused to be produced. I have often seen family members waiting since 10 am at court premises for production to take place. Since, the magistrate courts are already overburdened, there is no fixed time for productions and they take place throughout the day amidst other judicial work. Sometimes, there are special orders by the chief judicial magistrate stating a change in the jurisdictional roster of the magistrates. On some occasions, to ease the burden on one magistrate, an additional court is assigned for extension of remands from judicial custody for a particular period. A situation like this creates a lot of confusion on the ground; sometimes, the court staff, advocates or even the police are confused about locating the right magistrate for production. This leaves the family members of the accused with no information and in a vulnerable state. I have also heard anecdotes where the family members of an accused have kept waiting at the court of a particular magistrate, but the production of the accused has happened in some different court. However, this maze looks navigable once a police report under Section 193 of the BNSS - a chargesheet - is filed or the case is numbered and is assigned/committed to a particular court for trial. The aforementioned discussion ties to the fact that legislative drafting has its limits and written safeguards are no guarantee of an accessible, navigable system.