Rajya Sabha on 21 December 2023 passed 3 new bills in parliament which will replace the old Indian Penal code, 1860, Indian Evidence Act,1872 and the Code of criminal procedure, 1973 with Bharatiya Nyaya Sanhita, 2023 (New Penal Code), the Bharatiya Sakshya Adhiniyam, 2023 (New Evidence Act), and the Bharatiya Nagarik Suraksha Sanhita, 2023 (New Criminal Procedural Code).
The fundamental set of laws governing the administration of substantive criminal law is the Code of Criminal Procedure (CrPC). The criminal law in our legal system is principally included in the Code of Criminal Process, 1973, which went into effect on April 1, 1974. The Code of Criminal Procedure regulates the procedure for arrest, investigation, inquiry and trial and offences under the Indian Penal Code and under any other law governing criminal offences. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal Procedure Code, 1973 (CrPC).
The BNSS 2023 has repealed the CrPC, 1973. However, all pending proceedings shall continue and be decided and disposed of in accordance with the provisions of CrPC, 1973. It is noteworthy to state here that the prevailing CrPC, 1973 which was in its 50th year, has now been replaced by BNSS and all new proceedings will be governed by the new Sanhita.
Following are the various changes that have been brought about by the Bhartiya Nagarik Suraksha Sanhita, 2023:
The adoption of the "Zero FIR" idea is one significant modification. A Zero FIR is an FIR registered at any police station, regardless of whether the particular police station has jurisdiction or not. The police station in question must forward the Zero FIR to the police station with the jurisdiction to look into the matter after it is filed. The necessary registration of a "Zero FIR" is clearly validated by the words "irrespective of the area where the offence is committed" found in Section 173.
A preliminary inquiry may be conducted in accordance with BNSS Section 173(3). According to the section, upon receiving information about the commission of any cognizable offence, which carries a sentence of three years or more but less than seven years, preliminary inquiries prior to investigations may be conducted with the consent of an officer ranking no lower than deputy superintendent of police. Within 14 days of receiving such information, an investigation will be conducted to determine whether or not there is a prima facie case. In cases where there is a prima facie case, the police will investigate further when the inquiry is over.
According to Section 176 of the BNSS, forensic investigation must be carried out for offenses carrying a seven-year or longer sentence. The officer in charge of a police station is responsible for arranging for a forensic specialist to report to the crime scene in order to gather forensic evidence related to the offence and for recording the process on a cell phone or other electronic device. A state must look for and use forensic services from another state if it does not have any of its own.
Timelines for procedures
The objective of the BNSS is to streamline the legal system by establishing timeframes for different legal processes. By establishing specific time frames for the criminal justice process, the BNSS aims to address delays in the investigation and trial process. For example:
(i) According to Section 230 of the BNSS, copies of police reports and other documents must be given to the victim and accused within 14 days of the accused's appearance date.
(ii) According to Section 232, Committal Proceedings must be finished within 90 days of the date of taking cognizance. The Magistrate may extend this time limit for a maximum of 180 days, the reasons for which shall be recorded in writing.
(iii) Section 250 allows the accused to file for Discharge within 60 days from the date of committal.
(iv) Section 258 demands that an acquittal or conviction be rendered within 30 days of the conclusion of arguments, which might be extended to 45 days for certain reasons.
(v) Section 263 provides that charge against the accused must be framed within a period of 60 days from the date of first hearing on charge.
(vi) According to Section 346, investigations or trials must continue day by day until every witness in attendance has been questioned. Additionally, the aforementioned clause limits the total number of adjournments that may be sought to two per party.
Use of electronic means in investigation, inquiry, trials, proceedings, etc.
In accordance with the BNSS's goal of promoting a greater use of technology in judicial proceedings, the BNSS has added new definitions for terminology like "electronic communication" and "audio-video electronic".
Section 173(1) of the BNSS allows the information relating to the commission of a cognizable offence to be given to an officer in charge of a police station by electronic communication which was not the case earlier while CrPC was in force.
Section 176 of the BNSS states that the statements can also be recorded by the investigating office by way of audio-video means.
Section 230 provides that supply of documents to the accused and the victim (if represented by an advocate) in electronic form shall also be considered as permissible.
Section 530 provides that all trials, inquiries and proceedings may also be held in electronic mode i.e., by use of electronic communications or use of audio video electronic means. These would include -
(i) issuance, service and execution of summons and warrant;
(ii) examination of complainant and witnesses;
(iii) recording of evidence in inquiries and trials; and
(iv) all appellate proceedings or any other proceeding.
According to Section 187(2) of the BNSS, the magistrate to whom an accused person is sent under this section may, regardless of whether he has the authority to try the case, authorize, from time to time, the accused's detention in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in total, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3) of section 187 and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Judicial Magistrate having such jurisdiction.
The BNSS, however, expresses concern about possible violations of Article 21, a fundamental right guaranteeing personal liberty, by allowing up to 15 days of police custody within the first 40 or 60 days of court custody.
New Sections of Bhartiya Nagarik Suraksha Sanhita, 2023
Following is the table of all the new sections have been added to the Criminal Procedure Code by the Bhartiya Nagarik Suraksha Sanhita:
When police may arrest without warrant
Identification and attachment of property of proclaimed person
Recording of search and seizure through audio-video electronic means
Attachment, forfeiture or restoration of property
Persons bound to conform to lawful directions of police
Evidence of public servants, experts, police officers in certain cases
Inquiry, trial or judgment in absentia of proclaimed offender
Witness protection scheme
Mercy Petition in death sentence cases
Trial and proceedings to be held in electronic mode
Sections repealed in BNSS
Following is the table of all the sections that have been repealed entirely from the Criminal Procedure Code:
Subordination of Assistant Sessions Judges
Courts of Metropolitan Magistrates
Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate
Special Metropolitan Magistrates
Subordination of Metropolitan Magistrates
Jurisdiction in the case of juveniles
Power to prohibit carrying arms in procession or mass drill or mass training with arms
Inspection of weights and measures
Metropolitan Magistrate's judgment
Statement by metropolitan Magistrate of grounds of his decision to be considered by High Court
To sum up, the Bharatiya Nagarik Suraksha Sanhita, 2023 intends to expedite and modernize India's criminal justice system by bringing about important reforms that guarantee the protection of individuals' rights. Even so, a number of the BNSS's features can be seen as regressive such as allowing remand through the entire period of investigation negates the right to bail of an accused, audio-video recording of seizure memo can be said to be violative of right against self-incrimination, attachment of property without trial could be argued to be violative of presumption of innocence.
The objective of the CrPC, 1973 was to provide machinery for prosecution, trial, and punishment of offenders under substantive criminal law. i.e., the Indian Penal Code and other laws passed by the State from time to time and also to define the rights, duties, and liabilities of the accused person. However, the objective of the new act is to bring amendments to the CrPC and removing some outdated provisions and making the legal framework more faster, accessible and equipped with modern technology to not only make the legal system free and fair but also digitally inline.