BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
Adv. Usha Andewar
Object, Nature and Scope of Criminal Procedure Code
Following the Indian uprising of 1857, the British Crown assumed control
of India's governance, and subsequently, the British parliament enacted the
Criminal Procedure Code in 1861.
The Code of Criminal Procedure (CrPC) was established in 1882, marking
its inaugural creation. Since then, it had undergone several further revisions
throughout the years. The latest Code of Criminal Procedure followed was
enacted in 1973 and came into force on 1st April 1974, based on the
recommendations of the 41st Law Commission Report.
The process of amendment was ongoing. Over time, as society's demands
evolve, additional amendments will continue to be introduced. According
to the findings of the Justice Verma Committee, the Criminal Law
Amendment Act, 2013, is one of the most significant revisions that had
occurred.
The Code of Criminal Procedure Code, 1973 was the principal legislation
governing the process of implementing criminal law in India. The system
facilitates the process of examining illegal activities, capturing those
suspected of committing crimes, gathering evidence, establishing the
culpability or innocence of the accused, and determining appropriate
penalties for those found guilty. Furthermore, it addresses matters related
to public disturbance, the prevention of crimes, and the support of spouses
and children.
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Scope of CrPC
1. To enforce criminal law in India.
2. Machinery designed for the purpose of investigating crimes,
apprehending suspected criminals, gathering evidence, establishing
the guilt or innocence of the accused individual, and determining the
appropriate penalty for those found guilty.
3. Public nuisance refers to a situation or behavior that causes
inconvenience, annoyance, or harm to the general public.
4. Prevention of Offences.
5. Provision for the maintenance of the wife and children.
The Code of Criminal Procedure is a legal framework that governs the
procedures followed in court proceedings. It is considered to be
comprehensive. However, in the absence of a specific provision in the
Code of Criminal Procedure (CrPC), the court has the authority to create
legal principles.
The Code of Criminal Procedure (CrPC) is comprised of 484 sections,
which are further categorized into 37 chapters. Additionally, it includes 2
schedules and 56 forms. The application extends to the entirety of India,
encompassing the state of Jammu and Kashmir. This is due to the recent
amendment of the parliament's authority to enact legislation pertaining to
the aforementioned territory, which resulted in the abrogation of Article
370 in 2019.
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Bharatiya Nagarik Suraksha Sanhita, 2023 (referred to as 'BNSS')
The 'BNSS' legislation was implemented on December 25, 2023, with the
explicit aim of abolishing criminal laws from the pre-independence, 19th
century colonial period.
The primary objective of the BNSS is to enhance the speed and
effectiveness of the justice system by tackling the problems of lengthy legal
procedures, a high number of pending cases, low rates of conviction,
limited utilization of technology in the legal system, delays in
investigations, and insufficient use of forensic evidence.
Statement of Objects and Reasons
Scientific – use of technology and forensic sciences in the
investigation, summons, information
Time bound - investigation, trial and judgments
Citizen centric – supply of FIR copy and progress of investigation
Trial – summary trial mandatory for petty offences, accused
examination through VC, magisterial system
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Comprehensive summary of some of the significant modifications that
have been made to the Code of Criminal Procedure
1) Section 173 – Modifications Regarding the Registration of First
Information Reports (‘FIRs’)
Electronic communication can now be used to register FIRs. The
information will be officially documented within three days after it is
signed by the individual providing it.
BNSS undertakes a preliminary inquiry before registering a First
Information Report (FIR). The scope of preliminary investigation is
restricted to cognizable offenses that carry a prison sentence of at least
three years but less than seven years. The identical task must be
completed within a specific time frame of 14 days from the moment
the information is received.
Finally, it is obligatory for the police to file a First Information Report
(FIR) when they get knowledge about the occurrence of a serious
offense, regardless of whether they have jurisdiction or not. This is
sometimes referred to as a 'Zero FIR'. After the Zero FIR is filed, the
relevant police station has the authority to transfer the FIR to the
police station that has the jurisdiction to investigate the case.
2) Additional Authorities for Seizure and Confiscation of Assets -
Section 107 of the BNSS grants Magistrates the authority to seize
property that has been designated as the 'proceeds of crime'. The
Magistrate has the authority to issue the following orders upon
receiving an application from an investigative officer who provides
reasons to think that the property in question is obtained via criminal
activity ;
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(a) The property found to be 'proceeds of crime' will be directly
attached after considering all parties involved.
(b) If the Magistrate believes that notifying the owner of the property
about the attachment will undermine / weaken the purpose of the
attachment or seizure, an interim order can be passed to attach
the property without notifying the owner.
(c) Once it is established that the property in question is derived
from criminal activities, the Magistrate will instruct the District
Magistrate to distribute the property proportionally among those
who were affected by the crime.
According to Section 86 of the BNSS, the Court has the authority to
initiate the process of requesting assistance from a Court or authority
in a contracting State for the attachment or forfeiture of a proclaimed
offender, upon a written request from an officer of at least the rank of
Superintendent of Police or Commissioner of Police. The purpose of
this provision appears to be either to ensure the presence of fugitives
or seize the assets of fugitives who are escaping legal summons,
investigation, or trial and possess properties located outside the
country.
3) Timeliness Compliance
The BNSS aims to mitigate delays in inquiry and trial by establishing
certain timeframes for the completion of particular actions, as outlined
in the BNSS.
Proceedings time period :
(i) Committal within 90 days from the date of taking cognizance –
which may be extended by a period not exceeding 180 days.
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(ii) Supply of police report & documents - Within 14 days from the
date of production or appearance of accused.
(iii) Framing of charges (trial before a Court of Session) - Within 60
days from the first date of hearing on charge.
(iv) Judgment (trial before a Court of Session) - Within 30 days
from completion of arguments which can be extended by 45
days only by giving specific reasons.
(v) In addition, trial or inquiry will be on a day-to-day basis and not
more than two adjournments will be granted.
4) Changes with Respect to Provisions Pertaining to Arrest
No significant improvements have been made with respect to the
rights of arrestee except that now an arrestee can inform any person of
the fact of his arrest, other than just a friend and relative, which could
also include his lawyer. As regards the arrest of a woman, the BNSS
places an obligation upon the police to inform the relatives of a
woman where she is being held and information about her arrest.
The BNSS specifically allows handcuffing of certain categories of
offenders like repeat, habitual offenders etc.
5) Use of Electronic Mode at Stages of Investigation, Inquiry and
Trial
(i) One of the most significant features of BNSS is the introduction
of electronic communication and audio-video electronic means
for various procedures under the BNSS. In line with this
objective, the BNSS has introduced new definitions which define
terms such as “audio-video electronic means” {Section 2 (a)} and
“electronic communication” {Section 2 (i)}.
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(ii) Summons to witnesses and accused can also be served by
electronic communication. The form of electronic
communication and manner of serving such summon in
electronic communication is to be provided for by the State
Government by way of rules.
(iii) Statements can also be recorded by the investigating office by
way of audio-video means.
(iv) Similarly, it is also permissible for the investigating authority to
supply documents, such as the police report etc. in electronic
form.
(v) Search and seizure can be recorded by audio-video means
including recording of preparation of seizure list. A search
without warrant is also to be recorded by audio-video means.
(vi) The recording is required to be forwarded to the Magistrate
without delay.
(vii) Section 530 of the BNSS provides that all trials, inquires and
proceedings including appellate proceedings may be held in
electronic mode.
6) Production of Devices Containing Digital Evidence
A Court or an officer in charge of a police station can compel
production of communication devices which are likely to contain
digital evidence. This provision may give the investigating authority
unrestricted use of electronic device in complete breach of right to
privacy as well as privilege.
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7) Amendment in Terms of Satender Kumar Antil Vs. CBI (2022)
Section 190 of BNSS, in light of the judgment in Satender Kumar
Antil (supra), provides that when a charge-sheet is filed, an accused is
not required to be taken into custody. The provision states that if the
person is not arrested during investigation, the police officer will take
security from such person for his appearance before the Magistrate. It
further provides that the Magistrate to whom such report is forwarded
will not refuse to accept the same on the ground that the accused is not
taken in custody.
8) Section 187 – Police Custody
Section 187 of BNSS provides that police custody of 15 days (unless
extended) may be taken either all at once or in a staggered manner. It
empowers the police to seek custody when it is sought in tranches for
an extended period which may be at any time during the initial forty
days or sixty days (as the case may be).
Magistrate may authorise detention of accused beyond 15 days, if
adequate grounds exists. But shall exceed ;
(a) 90 days – investigation is for offence punishable with death, life
imprisonment, imprisonment for 10 years or more
(b) 60 days – where investigation relates to any other offence.
9) Rights of Victim
The BNSS provides the following rights to victims, which have till
date only been provided by judgments of Courts ;
(i) Obligation on police to inform the victim of the progress of the
investigation within a period of 90 days – Section 193.
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(ii) Obligation on police to supply police report and other
documents to the victim (if represented by an advocate) –
Section 230.
(iii) Withdrawal of prosecution will only be allowed after hearing
the victim – Section 360.
(iv) A witness protection scheme to be laid down by the State
Government – Section 398.
(v) Victim compensation schemes (Section 396), which have
largely been administrative schemes (such as the Nirbhaya
Scheme) are to be given at the discretion of State Governments.
10) Applicability of BNSS
Section 531 of the BNSS provides that if there is any appeal,
application, trial, inquiry, or investigation pending before the date on
which BNSS comes into force, then it will be disposed of, continued,
held or made, in accordance with the provisions of the Code of
Criminal Procedure, 1973.
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NEW PROVISIONS IN BNSS
Section 2 (1) (a) – “Audio-video electronic” – shall include use of any
communication device for the purpose of
(i) video conferencing,
(ii) recording of processes of identification,
(iii) search and seizure or evidence,
(iv) transmission of electronic communication and
(v) for such other purposes and by such other means as the State
Government many, by rules provide.
Section 2 (1) (b) – “Bail” means release of a person 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.
Section 2 (1) (d) – “bail bond” means an undertaking for release with
surety.
Section 2 (1) (e) – “bond” means a personal bond or an undertaking for
release without surety.
Section 2 (1) (i) – “electronic communication” means communication of –
(i) any written, verbal, pictorial information or
(ii) 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
(iii) a computer, or audio-video player or camera or
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(iv) any other electronic device or electronic form as may be specified by
notification, by the Central Government.
Section 2 (1) (l) - “investigation” includes all the proceedings under this
Sanhita for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a Magistrate in
this behalf.
Added Explanation.—Where any of the provisions of a special Act are
inconsistent with the provisions of this Sanhita, the provisions of the
special Act shall prevail.
Section 35 (7) - No arrest shall be made without prior permission of an
officer not below the rank of Dy Superintendent of police in case of an
offence which is punishable for imprisonment of less than 3 years and such
person is infirm or is above 60 years of age.
Section 86 – Identification and attachment of property of proclaimed
person.
Section 105 – Recording of search and seizure through audio-video
electronic means.
Section 107 – Attachment, forfeiture or restoration of property.
Section 176 (3) - Requires forensic investigations for crimes with a
minimum sentence of seven years in jail. In these situations, forensic
experts must go to crime scenes to collect evidence and record the
procedure using electronic devices. If a state doesn't have its forensic tools,
it must find and use those in another state. Thus, these experts are in charge
of both gathering forensic evidence at crime scenes and cause videography
of the process on mobile phone or any other electronic device.
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Arrest of persons
1. New provision for infirm/old age person in respect of arrest of
persons without a warrant – Section 41 and 41 A of the CrPC have
now been consolidated to Section 35 of the BNSS. In addition to the
existing provisions under the CrPC, a special provision has been
introduced in favour of aged and infirm persons. Section 35 (7) of the
BNSS provides that no arrest shall be made in case of an offence
punishable for less than three years if the person is infirm or above the
age of 60 years, without prior permission of the officer not below the
rank of Deputy Superintendent of Police.
2. Scope of persons to whom information of arrest is provided is
broadened – Under the CrPC, the information pertaining to the arrest
of a person could only be provided by the police officer to the
person’s relative or friend. Under the BNSS, such information may
now be provided to the person’s relative or friend or to any other
person named by him for the said purpose.
3. Additional requirement in respect of information on arrest – In
case of arrest under a warrant, Section 82 (2) of the BNSS now casts a
duty on the police officer making the arrest to forthwith give
information regarding such arrest and the place where the arrested
person is being held to the designated police officer and to such police
officer of another district where the arrested person normally resides.
Additionally, Section 48 of the BNSS now provides that information
of arrest and place where the arrestee is held shall be given to the
designated police officer in the district.
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4. Maintaining information of persons arrested and display of such
information – Section 41C of the CrPC provided that the State
Government shall cause the names and addresses of the persons
arrested and the name and designation of the police officers who made
the arrests, to be displayed on the notice board kept outside the control
rooms at every district. Section 37 of the BNSS clarifies the
specifications of such requirement. It provides the State Government
shall designate one police officer in every district and at every police
station, not below the rank of Assistant Sub-Inspector of Police who
shall be responsible for maintaining information of the names and
addresses of persons arrested and the nature of the offence charged
with. This is required to be prominently displayed at district
headquarters at every police station including through digital means.
5. Arrest on refusal to give name and residence or giving false details
– Under Section 42 of the CrPC, a person could have been released on
his executing a bond, with or without sureties in case of such arrests.
With the codification of ‘bail bond’, Section 39 of the BNSS provides
that a person arrested in such cases can be released on a bond or a bail
bond.
6. Revised time-limit of handing over arrestee by private persons to
the police – In case of arrest by a private person, Section 40 (1) of the
BNSS has been modified to mandate the production of such arrested
person within six hours before a police officer or to be taken to the
nearest police station. Section 43 (1) of the CrPC simply stated
production of such person “without unnecessary delay”, which
timeline has now been clarified.
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7. Persons arrested without warrant are not to be detained for more
than 24 hours (whether the Magistrate has jurisdiction or not) –
Section 57 of the CrPC provided, inter alia, that no police officer shall
detain a person in custody arrested without warrant for an
unreasonably long period, which period shall not exceed 24 hours
(exclusive of the time taken for the journey from the place of arrest to
the Magistrate), unless otherwise ordered by a Magistrate. Section 58
of the BNSS is modified to add the words “whether having
jurisdiction or not” at the end of the provision, thereby requiring the
police officer to produce the arrestee as soon as possible before the
nearest Magistrate (irrespective of jurisdiction of the Magistrate).
8. Wider powers of the police to detain/remove – Under the newly
introduced Section 172 of the BNSS, the police have the authority to
detain or remove any person resisting, refusing, ignoring or
disregarding to conform to any direction given by such officer and
further has the discretion to present such individual before the
Magistrate. Further, in petty cases, the police can release such
individual from detention within 24 hours of such incident.
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Filing of chargesheet by police – Section 193 of the BNSS)
1. Under Section 193 (3) (i) of the BNSS, the officer in charge of the
police station required to forward the report to the Magistrate upon
completion of the investigation, may now do so including through
electronic means. Sub-clause (i) of Section 193 (3) (ii) of the BNSS
provides that the report shall also contain ‘the sequence of custody in
case of electronic device’.
2. To prioritize the interests of the victim, Section 193 (3) (ii) requires
the police officer to update the informant or victim on the
investigation’s progress within a 90-day period, which time frame was
not previously provided under Section 173 (2)(ii) of the CrPC.
3. Additionally, Section 193 (8) mandates the police officer to submit the
required number of copies of the police report, along with
appropriately indexed documents, to the Magistrate at the time of
filing the charge sheet for subsequent distribution to the accused. This
may now be done through electronic communication. Previously, the
CrPC provided that the investigating police officer may furnish such
report and documents to the accused if he finds it convenient so to do.
4. Section 173 (8) of the CrPC did not previously provide a specific
timeline in relation to conducting further investigation after the charge
sheet has been filed with the Magistrate. However, the proviso to
Section 193 (9) of the BNSS, establishes a specific timeline of 90 days
for conducting further investigation. Any extension beyond this period
requires express permission from the court. This is intended to
safeguard against potential abuses of police power, promoting police
accountability and preventing unwarranted delays in criminal
proceedings.
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