Criminal Procedure Code 1973

in Comparison with
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

Chapter I:
Nature of Procedural Law

• Procedural law should ensure:

o Consistency

o Principles of Natural Justice (PNJ)

o Accommodation of Vulnerable Classes

• Article 21: Both substantive and procedural in nature.

• Criminal Procedure Process:

o Complaint → Filing of FIR → Investigation (evidence collection, witness

statements) → Arrest → Filing of Chargesheet → Inquiry → Trial → Post-Trial
Procedures.

• Article 20(2) : Right against Double Jeopardy: Protection against being tried twice for
the same offence or for different offences based on the same facts.
o Doctrine of Autrefois Acquit and the Doctrine of Autrefois Convict- French
terms which translate to 'formerly acquitted' and 'formerly convicted'
respectively
o Section 337 BNSS/ Section 300 of CRPC
o Bombay High Court in Sachin v State of Maharashtra (2021, SCC OnLine Com
1576, decided on 4-08-2021( Sale of Gutkha banned substance- was charged
under Both FSSA & IPC

• Principles of Criminal Procedure:

o General Procedural Norms

o Fair Trial

o Presumption of Innocence

Comparison with New Legislation: Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

• New Legislation BNSS, 2023 replaces CrPC, 1973.

pg. 1
 o 11/08/2023 introduced BNSS in the Lok Sabha

o Lok Sabha passed the bill on 20/12/2023and Rajay Sabha passed the bill
on21/12/2023.

o Received the assent of the President on25/12/2023

o Union Govt. has notified that the new criminal laws will come into effect from
01/07/2024

• Major Changes:

o FIR Registration: Provision for online and electronic FIRs.

o Investigation Process: Stringent timelines for submission of reports.

o Bail Conditions: New regulations for granting and denying bail.

o Use of Technology: Increased reliance on digital evidence.

o Citizen Rights: Stricter enforcement of human rights principles.

Classification of Offences

• Cognizable Offence: Arrest without a warrant is permitted.

• Bailable Offence: Right to bail; court must grant bail.

• Non-Bailable Offence: Bail is at the discretion of the court.

• Compoundable Offence: Matter can be settled between parties.

Comparison with BNSS, 2023

• Cognizable Offences: Strict procedural safeguards in custodial interrogation.

• Bail Provisions: More clarity on discretionary power of the court.

• Victim-Centric Approach: Prioritization of victim rights and restitution.

Role of Criminal Procedure Code and New Legislation

• CrPC, 1973:

o Provides procedural mechanisms for IPC.

o Establishes enforcement structures.

o Largely regulatory but contains some substantive provisions.

• BNSS, 2023:

o Emphasizes efficiency and modernization.

o Focus on digitization (e-filing, virtual hearings, AI-based policing).

o Stricter compliance mechanisms for police investigations.

Special Procedural Law v. General Procedural Law

pg. 2
 • Section 5 CrPC vs. BNSS, 2023:

o BNSS strengthens the hierarchy of procedural norms, emphasizing digital

records and mandatory reporting.

Administration of the Criminal Justice System

• Police, Judiciary, and Prisons remain the same.

• Defence Representation:

o BNSS mandates free legal aid services for economically weaker sections.

Police Responsibilities under CrPC and BNSS

• CrPC:

o Filing FIR and Chargesheet

o Investigation and Evidence Collection

o Preventive Detention

• BNSS, 2023:

o Mandates video recording of statements

o Time-bound investigations

o Increased accountability of law enforcement

Rowdy Sheeters and Surveillance

• CrPC: No formal criminal registry (except sexual offenders database).

• BNSS, 2023:

o Digital tracking of habitual offenders.

o Stringent data protection laws (influenced by Puttaswamy judgment).

Quasi-Judicial Bodies

• Executive Magistrate, Superintendent of Police, Revenue Officers, Commissioner of

Police.

• BNSS, 2023:

o Introduces specialized criminal justice bodies for technological crimes.

Illegal Arrests and Remedies

• Both CrPC and BNSS uphold Habeas Corpus remedies.

• BNSS mandates stricter police accountability measures.

Major Amendments and Reforms

• CrPC Amendments:

pg. 3
 o 2005 (Plea Bargaining), 2009, 2010, 2013 (Sexual Offences), 2019.

• BNSS, 2023 Reforms:

o Incorporates latest legal standards for victim rights.

o Strengthens cybercrime and forensic investigation provisions.

Aims of BNSS, 2023 (Compared to CrPC, 1973)

• CrPC:

o Safeguarding the interests of the accused from the violation of human rights
o Discretionary power of investigation
o Third dimension: rights of victims
o Ignored: concerns of witnesses
• BNSS:

o Balances accused’s rights and victims’ interests.

o Ensures faster and fairer trials.

o Emphasizes witness protection and rehabilitation.

Jurisdiction under CrPC vs. BNSS

• CrPC (Chapter 35, Sections 460-462):

o Defines procedural irregularities.

▪ Vitiate proceedings (S. 461)

▪ Do not vitiate proceedings (S. 460, 462)
o Chapter 35
▪ S. 460 - jurisdiction
▪ S. 461 - rank-based jurisdiction
▪ S. 462 - territorial jurisdiction
o Must raise jurisdictional issue at the earliest else it amounts to a waiver

• BNSS, 2023:

o Expanded definitions for judicial discretion.

o More stringent territorial jurisdiction norms.

Case Study: Vikas Dubey Encounter – Legal Perspective under CrPC and BNSS

pg. 4
 o No remand order (legal approval of detention from Magistrate) had been issued
for Vikas Dubey. Article 21 requires life and liberty must only be taken away
only in accordance with procedure established by law.
o In this case, it doesn't seem to be self-defense either. S. 46 CrPC - self-defense
if the accused resists arrest.
o PUCL v. State of Maharashtra - in case of encounter killings there must be an
enquiry, must automatically file a report and a judicial magistrate should look
into it

• BNSS, 2023:

o Automated case review mechanisms for police encounters.

o Mandatory magisterial inquiries.

o Enhanced forensic evidence requirements.

II. Rights in the Criminal Justice System: Comparison of CrPC & BNSS

I. Rights in the Criminal Justice System

● A. 21 Right to Life

○ Can only be taken away by authority of law

○ Kharak Singh v. State of UP - Domiciliary visits to a suspect at night were

violative of the common law right to privacy

○ Right to liberty includes no unnecessary arrest or restraint

○ Right to Privacy:

■ Right to be left alone

■ Right to be forgotten

■ Right against surveillance

■ Right against illegal search and seizure

● Right to Fair Trial

○ Hussainara Khatoon v. Home Secretary: Speedy trial

○ Fairness in hearing, opportunity of being heard, right to defence counsel

(defence counsel being present during examination of witnesses)

○ Right to other legal services

pg. 5
 ○ BNSS, 2023-

■ Sets fixed timelines for case disposal.

■ Virtual court proceedings introduced.

■ Enhanced protection for vulnerable witnesses.

● A. 20 and 22 safeguards

● Aspects of Punishment

○ Proportionality

○ Nature and quantum of punishment

○ Procedure, mode of execution

Under BNSS the Punishment-

■ Prohibits solitary confinement in certain cases.

■ Mandates forensic rehabilitation for some crimes.

● Victims’ Rights

○ Right to rehabilitation

○ Compensation: Courts have said that accused should pay, deduct it from the
fine the accused has to pay to compensate the victim. However, the fine
amount is very meagre. Further, where the accused can’t pay the fine he is given
a longer sentence in which case no compensation for the victim. Courts then
said the amount should be taken from prison earnings however that is also
meagre and would affect the convicts. After the 2009 Amendment, states have
victim compensation schemes. Currently, they are mostly compensated from
the Legal Services Authority Office

○ Fair and speedy trial- Hussainara Khatoon v. Home Secretary

○ Confidentiality of identity

BNSS:

▪ Enhanced compensation from government funds.

▪ Specialized victim rehabilitation mechanisms.

▪ Focus on cybercrime victims and financial fraud recovery.

pg. 6