Read Now! Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

Written by Manasvi Rastogi, 2^nd year law student at Symbiosis Law School, Pune.

The introduction of the three recently passed criminal laws took place initially in the Lok Sabha on the 11^th of August, 2023. Out of the three, one of the bills passed was the Bharatiya Nagarik Suraksha Sanhita, 2023, which was introduced with the aim of replacing and repealing the long-existing Code of Criminal Procedure, 1973 (hereinafter CrPC), a colonial-era legislation. Amendments were made to the bill, and the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (hereinafter BNSS) was passed by the Parliament on the 21^st of December, 2023 and received the assent of the President on the 25^th of December, 2023. The date of enforceability for the new legislation has not yet been declared by the Central Government. However, it shall come into force during the year 2024 after the required infrastructure and human resources have been set up and trained, respectively.

While quite a few provisions of the CrPC have been retained in the BNSS, there have been some substantial changes and additions to the new legislation. While CrPC had a total of 484 sections arranged in 38 chapters, the BNSS has a total of 531 sections arranged in 39 chapters. It is to be noted that some changes that various Committees and Law Commissions recommended for criminal reforms have not been inculcated in the new statute. Nevertheless, BNSS aims to provide for a faster and more efficient justice system wherein the issues of delay in delivery of justice due to complexity in procedures, pendency of cases, inefficient usage of technology, delays in investigation and inadequate use of forensics can be addressed. Some of the major changes in the law are as explained:

Definitions

S.2 of BNSS deals with the definitions of various terms that have been used in the Sanhita. There has been an addition of 5 new definitions in the BNSS as compared to CrPC and these include the following-

S.2(1)(a) – “audio-video electronic means” which is related to any communication device that has been used for the purpose of video conferencing, recording of processes of identification, search and seizure or evidence, transmission of electronic communication and for such other purposes and by such other means as the State Government may, by rules provide.

S.2(1)(b) – “bail” which means the release of a person n accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond.

S.2(1)(d) – “bail bond” which is an undertaking for the release with surety.

S.2(1)(e) – “bond” means a personal bond or an undertaking for release without surety.

S.2(1)(i) – “electronic communication” means the communication of any written, verbal, pictorial information or video content transmitted or transferred (whether from one person to another or from one device to another or from a person to a device or from a device to a person) by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form as may be specified by notification, by the Central Government.

Other than this, there has been a change in the definition of “investigation,” as given in S.2(1)(l), where a new Explanation has been inserted into what was given in S.2(h) of CrPC in order to clarify that where any of the provisions of a special Act as regards investigation are inconsistent with the provisions of this Sanhita, the provisions of the special Act shall prevail.

Constitution of Criminal Courts and Offices

The constitution of criminal courts and offices has been covered from S.6 to 20 of BNSS.

Firstly, the concept of “Metropolitan Area” and “Metropolitan Magistrate” have been abolished, which were earlier present in S.6 of CrPC.

Under S.15 of BNSS, which corresponds to S.21 of CrPC, the State Government has been given the power to appoint any police officer, not below the rank of Superintendent of Police or equivalent, to be known as Special Executive Magistrate.

Further, a new proviso has been added to S.18(1) of BNSS, corresponding to S.24 of CrPC, which provides that the appointment of the Public Prosecutor or Additional Public Prosecutors in the National Capital Territory of New Delhi, shall be done by the Central Government only after consultation with the High Court of Delhi.

A new requirement that has been stipulated under S.19 of BNSS, which corresponds to S.25 of CrPC, is that the District Magistrate may exercise his power to appoint an Assistant Public Prosecutor after giving a notice of 14 days to the State Government in the event that the Assistant Public Prosecutor is not available.

Under S.20(2)(a) of BNSS the eligibility criteria for the appointment of a Director of Prosecution or a Deputy Director of Prosecution has been changed and only if he has been in practice as an advocate for at least 15 years or is or has been a Sessions Judge and the requirement of concurrence of the Chief Justice of the High Court has been omitted. Additionally, a new post of Assistant Directors of Prosecution has been created under S.20, which can be occupied only by a person who has been in practice as an advocate for not less than 7 years or has become a Magistrate of the first class. Persons in this appointment shall be subordinate to the Deputy Director of Prosecution. Clear roles have been provided under S.20 of BNSS, unlike S.25A of CrPC.

Powers of Courts

Sections 21 to 29 of BNSS deal with the powers of courts. The power of the Assistant Sessions Judge under S.28(3) of CrPC to pass sentences has been omitted under S. 22 of BNSS. Further, concerning the sentences which the magistrates may pass under S.23 BNSS, the monetary limits on fines has been enhanced under the new law as compared to the fine that was given under S. 29 of CrPC. The court can impose a fine or community service, or both. Community service under BNSS means the work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.

Under S.25 of BNSS the court is required to consider the gravity of offences and clearly order punishments which shall run consecutively or concurrently hence omitting the 'by default rule' which was earlier given S. 31 of CrPC. Also the maximum punishment given in cases of conviction of several offences at one trial has been increased from 14 to 20 years.

Arrest of Persons

Sections 35 to 62 of BNSS discuss the arrest of persons.

A new provision has been added under S.35(7) of BNSS, which talks about an infirm or old age (above 60 years) person and states that no arrest shall be made without the prior permission of an officer who is not below the rank of Deputy Superintendent of Police. This falls under S.35 of BNSS, which corresponds to sections 41 and 41A of CrPC, which dealt with the power of the police to arrest without a warrant.

S.40 of BNSS has made changes to S.43 of CrPC with regards to arrest by private person and the procedure that needs to be followed. A deadline of 6 hours from the arrest has been given to the private person who has arrested a private person and has to be handed over to the police. However, nothing has been said about the situation wear in the private person is unable to hand over the person to the police. The words "shall re-arrest him" have been substituted with "shall take him to custody" two clarify that the police taking custody of privately arrested person is not re-arresting.

The manner for making arrest had not been provided under S.46 of CrPC but has been clearly explained under S.43(3) of BNSS, and S.48 of BNSS requires that the designated police officer in the district be given the information of arrest and place where the arrestee is held. Furthermore, S.50 of BNSS clearly states that the police officer or other person making the arrest is empowered to seize offensive weapons from the arrestee immediately after the arrest however, no such clarity was given under S.52 of CrPC.

The repealment and replacement of the Indian Medical Council Act,1956 with the National Medical Commission Act,2009 has resulted in a revised definition of "registered medical practitioner" and this has been given under S.51 of BNSS as compared to S.53 of CrPC.

Modifications have been made in the provisions to allow registered medical practitioners to act on the request of any police officer irrespective of rank instead of police officer not below the rank of sub-inspector as was mentioned in S.53 and 53A of CrPC.

S.54 of BNSS, which corresponds to S.54A of CrPC, has modified the provision to require recording of identification process of the arrested person, if the identifying person is mentally or physically disabled, by any audio-video electronic means instead of videographing.

Appearance and the Process to Compel Appearance

This subject matter is dealt with in sections 63 to 89 of BNSS.

S.63 of BNSS, which corresponds to S.61 of CrPC, has allowed the court to issues summons in an encrypted or in any other form of electronic communication with the image of the seal of the court or digital signature.

The service of summons on corporate bodies, firms and societies falls under S.65(2) of BNSS, where serving of summons to any of the partners of such firm or association or letter sent by registered post addressed to such partner shall be deemed to have been effected when the letter would arrive in the ordinary course of post.

A new provision regarding the identification and attachment of property has been introduced under S.86 of BNSS, where the court may initiate the process of requesting assistance for identification, attachment and forfeiture of property belonging to a proclaimed person.

Processes to Compel the Production of Things

Sections 94 to 110 of BNSS are related to the search and seizure, attachment, etc. with regards to the processes to compel the production of things. S.94 of BNSS, which corresponds to S.91 of CrPC, omits the references to "telegram" and "telegraph authority" and includes references to the production of electronic Communications, including communication devices which is likely to contain digital evidence.

S.105 of BNSS is a new addition which is related to the recording of search and seizure through audio-video electronic means.

S.107 of BNSS has been newly added, and it is related to the forfeiture or restoration of property, which has been attached.

Reciprocal Arrangements for Assistance in Certain Matters and Procedure for Attachment and Forfeiture of Property

The reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property has been discussed from sections 111 to 124 of BNSS.

S.112 of BNSS is a new provision that has been added, and it is related to the letter of request to the competent authority for investigation in a country or place outside India. Furthermore, S.113 of BNSS deals with the letter of request from a country or place outside India to a court or an authority for investigation in India.

Security for Keeping the Peace and for Good Behaviour

Sections 125 of 143 of BNSS are concerned with the security for keeping the peace and for good behaviour. One of the major changes that have been made in this segment is in sections 129 and 130 of BNSS which correspond to section 110 and 111 of CrPC. Under S.129 of BNSS, the amendment made to S.110 of CrPC is that the references to the old statutes have been omitted and repealed to be replaced with the latest statutes that are being used. In S.130 of BNSS, instead of the words “the number, character and class of securities (if any) required”, the words “the number of securities after considering the fitness for payment of securities” have been used, which need to be considered by the Magistrate.

Public Nuisance

S. 157 of BNSS is concerned with the procedure where the person against whom the order is made under section 152 of BNSS appears to show cause. This corresponds to S.138 of CrPC and the changes made to it are that this procedure has been made time-bound, within a period of 90 days, which may be extended to 120 days only after reasons have been recorded in writing.

Preventive Action of Police

A new provision under S.172 of BNSS has been added where all persons are bound to conform to the lawful directions of a police officer that have been given in fulfilment of his duty.

Information to the Police and their Powers to Investigate

Electronic communication has been included in S.173 of BNSS, which corresponds to S.154 of CrPC. A new provision regarding preliminary enquiry has been added to the law under S.173(3) of BNSS. Further, a new provision, S.175(4) of BNSS, has been inserted which provides that the Magistrate who is empowered under S.210 of BNSS, may upon receiving a complaint against a public servant arising in course of the discharge of his official duty, take cognizance of it subject to the conditions mentioned therein.

A second proviso has been added to S.176(1) of BNSS which permits the recording of rape victim’s statement through any audio-video electronic means, preferably cellphone. Further, S.176(3) is a new addition, which is related to the forensic facility.

For the report of the police officer on completion of investigation under S.193 of BNSS, which corresponds to S.173 of CrPC, the requirement of time-bound completion of investigation within 2 months that applies to offences of rape and gang rape have been extended to offences under the Protection Of Children from Sexual Offences Act, 2012 (hereinafter POCSO) as well. Electronic communication and records have also been included in this section. Moreover, it has been mentioned that the investigation during trial shall be completed within a period of 90 days, which may be extended with the permission of the court.

Complaints to Magistrates

A new sub-section (2) has been added to S.223 of BNSS, which corresponds to S.200 of CrPC. Under the cognizance of the complaint, this sub-section provides that a Magistrate shall not take cognizance of a complaint against a public servant for any offence that has been alleged to have been committed in the course of the discharge of his official functions or duties. Conditions for the same have been mentioned therein.

Trial of Warrant Cases by Magistrate in Cases Instituted Other than on Police Report

A new sub-section (7) to S.269 has been inserted which is related to the closure of prosecution evidence where the attendance of prosecution witnesses cannot be secured despite giving opportunity to the prosecution and after taking all reasonable measures under this Sanhita.  S.269 of BNSS corresponds to S.246 of CrPC.

Summary Trials

The summary trial has been discussed in BNSS from S. 283 to 288. Under CrPC, it was discretionary for the Magistrate to try petty and less serious offences in a summary manner; however, it has now been made mandatory. A new sub-section that has been added as S.283(2) of BNSS provides that the Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding three years: Provided that no appeal shall lie against the decision of a Magistrate to try a case in a summary way under this sub-section.

Inquiries and Trial, as well as the Evidence in the Commission for the Examination of Witness

The sections 319 to 336 of BNSS deal with this subject matter. Under S.330 of BNSS, where no formal proof of certain documents is required, a time limit of 30 days for the acceptance or denial of the genuineness of the document has been set. S.336 is a new provision that has been added to the law, and it is related to the evidence of public servants, experts, and public officers in certain cases.

General Provisions as to Inquiries and Trials

The general provisions as to the inquiries and trials range from section 337 to 366. Under S.309 of CrPC, there was no limit on power of court to grant adjournments if circumstances are beyond the control however, S.346(2) of BNSS provides for limits on adjournment to a maximum of 2.

S.356 of BNSS is a new provision which deals with the inquiry, trial or judgement in absentia of proclaimed offender.

Judgement

Sections 392 to 404 of BNSS deal with judgement.

S.392 of BNSS, which corresponds to S.353 of CrPC, sets a time limit for pronouncing judgment by the Court to not later than 45 days. A new proviso to S.392(4) has been added about the time limit for loading a copy of the Court's judgement on its portal. Furthermore, the accused, when in custody, can be brought to hear the judgement pronounced either in person or through audio-video electronic means.

S.397 of BNSS, which corresponds to S.357C of CrPC, provides for the treatment of victims, where it is the duty of hospitals, to provide immediate first aid or medical treatment, completely free of cost, to victims of offences under POCSO.

A new provision regarding Witness Protection Scheme has been introduced in the law under S.398 of BNSS.

Execution/Suspension/Remission of Sentences

The subject matter related to the execution, suspension or remission of sentences is dealt with from sections 453 to 477 of BNSS.

S.472 of BNSS is a new provision, which is related to mercy petition death sentence cases. S.474 of BNSS, which corresponds to S.433 of CrPC, is related to the power to commute sentence.

Trial and Proceedings to be Held in Electronic Mode

A new section regarding trial and proceedings to be held in electronic mode has been added to the law in S.530 of BNSS. Electronic mode means by use of electronic communication or use of audio-video electronic means.

In conclusion, the new law has brought about significant changes, which will result in increased efficiency in the criminal justice system and smoother and more transparent execution of criminal procedures. Various provisions with respect to time-limit of the procedure have been introduced or amended.  However, concerns surrounding the delegation of excessive power to the police have garnered substantial criticism. The true essence of the law would come into play only when the procedures mentioned herein are followed diligently without any misconduct and corruption.