The Bharatiya Nagarik Suraksha Sanhita, 2023

18 February 2024

Introduction

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 was first tabled in the Lok Sabha on August 11, 2023 to replace the Criminal Procedure Code (CrPC), 1973 but it was withdrawn after being analysed by the Standing Committee on Home Affairs. The bill, now named, the Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS2), 2023 was again introduced in the Lok Sabha on December 12, 2023 after including some of the recommendations made by the standing committee. The bill was passed in the Lok Sabha on December 20 and in the Rajya Sabha on December 21, 2023. Finally, on December 25, it got the presidential assent and became an act.

Defining Criminal Procedure Code

The CrPC was a procedural law that had been passed in 1861 to solve the issue of the multiplicity of legal systems in the country. The main objective of CrPC was to administer the Indian Penal Code (IPC), 1860, and it consisted of the provisions for arrest, prosecution, and bail. The government repealed this act in 1973, which was replaced by the current CrPC, which introduced several changes, such as anticipatory bail. As it was also not up to the mark, this act has been introduced to replace the CrPC, 1973.

Statement of Objects and Reasons

Given below are the objects and reasons of this act.

The CrPC, 1973 administers the procedure for the arrest, inquiry, investigation, and trial of offences as per the IPC. It states the provision for a mechanism to carry out trials in a criminal case. It contains the procedure for

the registration of a complaint;
holding a trial;
passing a judgment; and
filing an appeal against any judgment.

A speedy and efficient justice system forms the backbone of good governance. However, complicated legal formalities, large number of pending cases, limited use of technology in legal processes, improper forensics use, low rate of conviction, and difficult procedures often stand in the way of the speedy delivery of justice. To tackle these issues, it is the need of the hour to develop a citizen-centric criminal procedure.
As India has experienced democracy for seven decades, our criminal laws, such as the CrPC, must be examined comprehensively. They, then, must be adopted as per the contemporary needs and aspirations of the people.
Following the mantra, ‘Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas’, the government is working towards providing immediate justice to all citizens in compliance with the democratic aspirations of the Constitution.
Taking into account the above-mentioned points, it is recommended that CrPC should be repealed and replaced with this act, a newly formed law. This new law states the provisions for using technology and forensics while investigating crime and furnishing information, service of summons, etc., through electronic means of communication. In case of time-bound investigation, trial and declaration of judgments, certain time limits have been specified. Among many other provisions, the magisterial system has been reorganised.

Electronic mode may be used during trials, inquiries and proceedings. It will be allowed to use electronic communication devices during trial, investigation and inquiry, provided that these devices have digital evidence.

Main Provisions of the Act

A large number of provisions of the CrPC have been retained in this act. However, some key provisions proposed in the act are as follows:

Detention of undertrials Under the CrPC, if a partial maximum period of imprisonment of an accused is spent in prison, he has to be released on personal bond. But this is not applicable to offences liable to be punished by death. According to this act, this provision will also not be applicable to: (i) offences liable to be punished by life imprisonment and (ii) persons against whom legal actions are pending in two or more offences.
Medical examination Under the CrPC, medical examination of the accused can be done in some specified cases, which include rape cases. Only a registered medical practitioner (RMP) can do such an examination as requested by at least a sub-inspector-level police officer. As per this act, such an examination can be requested by any police officer.
Forensic investigation According to this act, forensic investigation is mandatory for offences that are penalised with seven or more years of imprisonment. It will be the responsibility of forensic experts to gather forensic evidence and make a record of the process at the crime scenes using a mobile phone or any other electronic device. If a forensic facility is not available in a particular state, such a facility of another state can be used.
Signatures and finger impressions As per the CrPC, a magistrate is authorised to instruct any person to submit his/her samples of signatures or handwriting. According to this act, finger impressions and voice samples are also included in this provision. Even persons, who have not been taken into custody, are required to submit such samples, if ordered by a magistrate.
Duration for procedures Under this act, the duration for different procedures has been specified. For example, medical practitioners monitoring rape victims are supposed to submit their reports to the investigating officer within a period of seven days. Other durations specified are as follows:

The judgment should be given within a period of 30 days once the arguments have been completed; this can be extended up to 45 days.
Any developments made in the investigation should be notified to the victim within a period of 90 days.
A sessions court must frame the charges within a period of 60 days after the completion of the first hearing of such charges.

Hierarchy of courts As per the CrPC, there is a hierarchy of courts to settle criminal matters in India. These courts are:

Magistrate’s courts These are subordinate courts where the trial of the majority of criminal cases is held.
Sessions courts A sessions judge presides over these courts and is responsible for hearing appeals from magistrate’s courts.
High courts These are responsible for hearing jurisdiction and settling criminal cases and appeals.
Supreme Court This court has the responsibility of hearing appeals from high courts and applying its control on some matters.

Under the CrPC, the state governments are authorised to categorise a city or town as a metropolitan area if its population is above one million. There are metropolitan magistrates in these regions. However, as per this act, this categorisation of metropolitan areas and metropolitan magistrates has been removed.

Key Recommendations of Various Committees

Some of the major recommendations of the various committees and the Law Commission on criminal reforms are as follows:

A statutory committee should be formed under the leadership of the chief justice of a high court or a former Supreme Court judge to specify sentencing guidelines. This has not been included in this act.
The CrPC should contain the rights of the accused as specified by the SC. This is also not included in this act.
If the authorised persons are not able to complete an investigation in one day, its procedure should be included. With respect to offences that are penalised with over seven years of imprisonment, the police custody should be a maximum of 30 days. This too is not incorporated in this act. As per BNSS2, police custody has a maximum period of 15 days. It may be extended up to 60 days if the offence is subject to a minimum of 10 years of imprisonment and 40 days in case of any other offence.
The persons who are not guilty but are still accused should be compensated. This is not included in this act.
After arrest, a medical officer must monitor the arrested person. Any injury and the estimated time when that injury must have occurred must be noted. While in imprisonment, such monitoring should be done regularly every 48 hours. This clause is partially incorporated in this act; however, the 48-hour monitoring is not included.
Concerning statements to police, the statement maker must first read the statement and then sign it. The police must also give a copy of the statement to the statement maker. These statements can be used in the future to contradict and validate the statement maker. This has not been included. Instead, this act retains the original provision.
The police must inform the arrestee of the reasons for arrest in written form in a language understood by the arrestee. This also has not been included. Instead, this act retains the original provision.
If the trial is delayed, the accused will either be released on bail or remanded by the court. The reasons for the same will be notified. This has not been included. Instead, this act retains the original provision.
If the court denies bail to the accused, it must furnish the reasons for the same. This has not been included.

Key Issues and Analysis

Expansion of the powers of the police The powers of the police are regulated by the CrPC so that law and order can be maintained and criminal investigations can be undertaken. Detention, search, seizure, arrests, and use of force are some such powers. There are certain restrictions on these powers to prevent their misuse, which can be illegal detentions, custodial torture, and excessive use of force. As per this act, the provisions regarding police custody, detention, and using handcuffs have been amended. This may cause certain issues.
Police custody procedure amended As per this act, police custody of 15 days is allowed. This can be approved during the first 40 or 60 days out of a period of 60 or 90 days, either in whole or in parts. Consequently, the bail can be denied for this whole period if the police demand to hold the person in custody. It was recommended by the standing committee to clarify the interpretation of this clause.
Using handcuffs may intrude upon the liberty of the accused As per this act, handcuffs may be used while arresting a usual offender who has fled from custody; or a person who is accused of committing rape, organised crime, an offence against the State, etc. This provision is against the judgment of the Supreme Court, which has stated that using handcuffs is unreasonable and shows inhuman treatment. If it is necessary to use handcuffs, the reasons for doing so must be noted by the escorting authority. It is up to the trial court to decide if handcuffs should be used.
Limited bail opportunities in case of multiple charges Under the CrPC, an accused can get bail if he is in detention for half the maximum period of his imprisonment. However, this facility is denied to the individuals facing several charges. Such individuals may have limited bail opportunities.
Property attachment from crime proceeds There is a lack of safeguards in the power to confiscate property from ‘crime proceeds’. These safeguards refer to the ones mentioned in the Prevention of Money Laundering Act 2002. Consequently, a lack of oversight or potential misuse could occur.

Crime proceeds refer to the property obtained, directly or indirectly, as a result of criminal activities.

Maintenance of public order and trial procedure This act has retained the CrPC provisions regarding the maintenance of public order. The maintenance of public order and trial procedure are two separate functions. Now, the question arises whether the same law should regulate them or two different laws should be framed to deal with them.
Duplication of existing laws With time, the government has implemented special laws to monitor different aspects of criminal procedure. However, certain procedures have been retained in this act. This leads to the duplication of certain laws.
Data collection for criminal identification A broader law has been passed for collecting data of the criminal and accused, but the reason for expanding the data collection provisions is not defined clearly in this act. The Delhi High Court is reconsidering the 2022 Act and its constitutional validity.