Key Highlights of the three new criminal laws introduced in 2023

The Parliament of India has replaced colonial criminal laws through the Bharatiya Nyaya Sanhita Act (BNSS), 2023; the Bharatiya Sakshya Adhiniyam (BSS), 2023; and the Bharatiya Nagarik Suraksha Sanhita (BNSSS), 2023, replacing the Penal Code, 1860, the Evidence Act, 1872, and the Code of Criminal Procedure, 1973 respectively. Here are the salient features of the new criminal laws.

Bharatiya Nyaya Sanhita, 2023

1. The new Act is called as “Bharatiya Nyaya Sanhita (BNS), 2023” and has replaced the Penal Code, 1860.
2. The Chapters and offences against women and children, murder have been given precedence. Further, the offences against women and children which were scattered throughout in the erstwhile Penal Code, 1860 have been brought together and have been consolidated under Chapter-V. In the same manner, the offences affecting the human body are also brought up in the order and placed after the Chapter on offences against women and children.
3. BNS has been streamlined and it will now consist of only 358 Sections as opposed to 511 Sections in IPC, 1860.
4. All three incomplete category offences i.e. Attempt, Abetment and Conspiracy are brought together under one Chapter- IV of the BNS, 2023. Earlier these offences were part of different Chapters.
5. For the first time, ‘Community Service’ has been introduced as one of the punishments in Section 4 of the BNS, 2023. It has been specifically provided for 6 petty offences, like non-appearance in response to a proclamation, attempt to commit suicide to compel or restraint exercise of lawful power of public servant, petty theft on return of theft money, misconduct in public by a drunken person, defamation, etc. It introduces the reformative approach in the punishment scheme which is aimed towards achieving ‘nyaya’ in the society.
6. Abetment of an offence committed in India by a person outside India has now been made an offence under Section 48 of the BNS, 2023. This will criminalise the Acts of those persons who sit outside India and conspire to commit an offence in India.
7. A new offence for having sexual intercourse on false promise of marriage, employment, promotion or by suppressing the identity etc. has been created in Section 69 of the BNS, 2023. This provision will be a deterrent for the people who employ deceitful means like false promise of marriage, concealment of identity etc. to take consent of the woman and involve in sexual intercourse. It aims to protect the rights of women.
8. Offence of ‘snatching’ has been introduced in the BNS, 2023. Till now, the offence of snatching was not present in the IPC, 1860 which led to a lot of discretion to police to either treat such cases as ‘theft’ or ‘robbery’.. Section 304 of BNS 2023 makes the act of snatching an offence in every part of the country which punishes act of forcible seizure or grabbing of movable property.
9. The age-based parameter for differential punishment for gang rape of a minor girl has been removed in the BNS, 2023 and now, Section 70(2) prescribes life imprisonment (till remainder of that person’s natural life) or death for gang rape of a woman below the age of 18 years.
10. Assault or use of criminal force towoman with intent to disrobe her and Voyeurism weremade gender neutral under Sections 76 and 77 of the BNS, 2023.
11. The act of hiring, employing, or engaging a child to commit an offence, is made a punishable offence under Section 95 of BNS 2023, which entails punishment of imprisonment of minimum seven years, extendable to ten years.
12. A provision has been inserted to address the rising vehicular cases of hit and run, which has been made a punishable offence under Section 106(2) of the BNS, 2023. Whoever causes death of any person by doing any rash or negligent act and escapes from the scene of incident without disclosing the incident to a Police officer or Magistrate shall be punished with imprisonment of either description of a term which may extend to ten years and with fine.
13. To tackle ‘organized crime’ and ‘terrorist acts, offence of organized crime and terrorist act have been added in the Sanhita with deterrent punishments. Sections 111 and 113 of the BNS 2023 punish the commission, attempt, abetment, conspiracy of organized crimes and terrorist acts respectively. Both the Sections also punish the act of being a member of any organized crime syndicate or terrorist organisation, harboring or concealing any person who committed any organized crime or terrorist act and the act of possessing any property derived or obtained from the commission of organized crime or terrorist act. Section 111 on organized crime takes care of various state laws enacted in this domain. Section 113 on terrorist act has been drafted on the lines of UAPA. It has also been provided that in case of the offence of terrorist act officer not below the rank of SP will decide whether to register a case under the provisions of BNS, 2023 or UAPA.
14. A new provision 117(3) has been introduced in the BNS, 2023 to provide stringent punishment for such acts of grievous hurt which results in persistent vegetative state or in permanent disability. If grievous hurt resulting in persistent vegetative state or in permanent disability, it will attract higher punishment of rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life (remainder of that person’s natural life) as against up to seven years imprisonment only for grievous hurt.
15. The offence relating to importation of a person from foreign country has been made gender neutral to cover both boys and girls in Section 141 of the BNS, 2023. It will protect the minor boys and girls from being used for the purposes of forced or seduced illicit intercourse.
16. The Section relating to sedition was misused and hence has been deleted. The constitutional right of freedom of speech and expression has been upheld and Section 124A of the IPC which puts a restriction on such right has been deleted in the BNS, 2023.
17. A new section on acts of secession, armed rebellion, subversive activities, separatist activities or endangering sovereignty or unity and integrity of India has been added and made punishable under Section 152 in BNS, 2023. In this section, exciting or attempt to excite any of the acts mentioned hereinabove is made punishable with imprisonment extendable to seven years or imprisonment for life.
18. The offence of ‘attempt to commit suicide’ has been deleted in the BNS, 2023.This brings the law in line with the Mental Healthcare Act, 2017. A new Section 226 has been added in the BNS, 2023 to punish those who attempt to commit suicide with the intent to compel or restrain the exercise of any lawful power by a public servant.
19. The offence of mischief in Section 324 of BNS has been expanded and causing loss or damage to any property including the property of Government or Local Authority has been made punishable offence with imprisonment extendable up to one year, or with fine, or with both (as against just 6 months or with fine, or both for offence of mischief). In case of loss or damage is of more than 20,000 rupees but less than one lakh rupees the punishment is extended up to two years, or with fine, or with both. Where loss or damage is above one lakh rupees the punishment would be imprisonment extendable up to five years, or with fine, or with both.
20. A serious category of culpable homicide related to ‘lynching’ has been introduced in the Bhartiya Nyaya Samhita, 2023. A new provision has been introduced for offences under this category of ‘mob lynching’ in Section 103(2) of the BNS, 2023. Special categories have been created within the offence for murder and grievous hurt by ‘group of five or more persons’ on the grounds of the victim’s social profile, particularly his ‘race, caste or community’, sex, place of birth, language, personal belief and any other grounds without specifically using the term ‘mob lynching’, for which a punishment of a minimum seven years of mandatory imprisonment has been provided. In case of causing ‘grievous hurt’ by group of five or more persons on the ground of race, caste or community etc. the punishment is 7 years and fine.
21. In Section 106(1) on ‘causing death by rash or negligence act’ the punishment has been increased from 2 years to 5 years imprisonment. However, for medical practitioners the punishment will be 2 years.
22. The domain of offence of theft has been expanded to include theft of vehicle, theft from vehicle, theft of government property and theft of idol or icon from any place of worship. In Section 305 of the BNS, 2023 such thefts have been made punishable with punishment up to 7 years.
23. Section 303(2) of the BNS, 2023 presents a fine example of deterrence and reformative approach of punishment. On the one hand, for a second conviction of any person for theft, the Section prescribes a higher punishment up to 5 years with a mandatory minimum of 1 year, on the other hand where the value of stolen property is less than 5,000 rupees and the first-time offender restores the stolen property, the punishment of community service has only been prescribed.
24. The definition of ‘child’ and ‘transgender’ is included in Section 2 of the BNS, 2023. The definition of ‘movable property’ is revised to include tangible as well as intangible property. ‘Electronic and digital records’ is included in the definition of document.
25. In Section 197(1)(d) of BNS, the act of making or publishing false or misleading information which has tendency to jeopardise the sovereignty, unity and integrity or security of India has been made punishable with imprisonment up to 3 years or fine or both.
26. ‘Beggary’ has been introduced as a form of exploitation for trafficking and has been punishable in section 143 of the BNS, 2023.
27. In section 116 of the BNS, 2023 the number of days provided for the sufferer in severe bodily pain for the purpose of ‘grievous hurt’ has been reduced from ’20 days’ to ’15 days’. It is done keeping in view the advancement in the medical treatment which provides quicker recovery.
28. At many places the archaic expressions like ‘lunatic’, ‘insane’ and ‘idiot’ have been done away with. Colonial remnants like ‘British calendar’, ‘Queen’, ‘British India, ‘Justice of the peace’ etc. have been deleted.
29. Uniformity has been introduced in the use of expression ‘child’ throughout the BNS, 2023 which is achieved by replacing the expression ‘minor’ and ‘child under the age of eighteen years’ with the word ‘child’.

30. Fines in the IPC were very low ranging from Rs.10 to Rs. 1,000. Similarly, the punishments for various offences also needed rationalization. Hence, terms of imprisonment for 33 offences have been suitably enhanced, fines in 83 cases have been increased and mandatory minimum punishment has also been introduced in 23 many offences.

A. Punishment Increased:

B. Fine Increased:

C. Mandatory Minimum Punishment Introduced:

Bharatiya Nagarik Suraksha Sanhita, 2023

1. The name of the Act is the “Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023” and it has replaced the Code of Criminal Procedure, 1973.
2. Section 2 of BNSS has been expanded to introduce new definitions for key terms such as ‘audio-video electronic means’ [Section 2(1)(a)], ‘bail’ [Section 2(1)(b)], ‘bail bond’[Section 2(1)(d)], ‘bond’ [Section 2(1)(e)], and ‘electronic communication’ [Section 2(1)(i)]. These changes reflect the evolving landscape of technology in investigation, trial, and court proceedings, covering aspects such as the service of summons, notices, audio-video conferencing for deposition of evidence, and recording of search and seizure. Additionally, previously undefined, terms relating to ‘bail’ have now been defined. Further, the definition of ‘victim’ [Section 2(1)(y)] has been broadened by eliminating the requirement of the accused person being formally charged. This modification expedites the process of victims receiving compensation entitled to them in certain cases.
3. An Explanation has been added to the definition of “investigation” [2(1)(l)] to clarify that in case any provisions of a special act is inconsistent with the provisions of the BNSS, 2023, the provision of special act shall prevail.
4. The post of Judicial Magistrate of the third class, Metropolitan Magistrate and Assistant Session Judges has been abolished to bring uniformity in classes of Courts and Judges across the country. There will be 4 kinds of Judges now, i.e., Judicial Magistrate of the second class, Judicial Magistrate of the first class (includes Chief Judicial Magistrate or Additional Chief Judicial Magistrate), Sessions Judge (includes Additional Session Judge) and Executive Magistrates. Consequential changes have been made to Sections 8, 11,12, 14, 17, 22, 29, 113, 196, 214, 320, 321, 415, 422 and 436 of the BNSS, 2023.
5. Under Section 15 of BNSS, the State Government is now authorized to appoint as a Special Executive Magistrate, any police officer not below the rank of Superintendent of Police or equivalent in addition to an Executive Magistrate.
6. A proviso has been added in Section 18(1) of the BNSS, 2023 to allow Central Government to appoint the Public Prosecutor or Additional Public Prosecutor for the purpose of prosecution before the Delhi High Court.
7. In case of appointment of any other person in the absence of Assistant Public Prosecutor, the District Magistrate is required to give 14 days’ notice to the State Government before making such an appointment [Section 19(3)].
8. Section 20 of BNSS establishes a comprehensive Directorate of Prosecution and defines the eligibility, functions, and powers of various authorities under it. For the first time, under Section 20(1)(b) the provision for District Directorate of Prosecution has been made. It is prescribed that the Directorate of Prosecution shall be headed by the Director of Prosecution under the administrative control of the Home Department in the State. The Director of Prosecutions [Section 20(7)] will be responsible for giving opinions on filing appeals and monitoring cases punishable with 10 years or more/life imprisonment/death. The Deputy Director of Prosecution [Section 20(8)] has been made responsible to examine police report and monitor the cases punishable for 7 years or more, but less than 10 years and for ensuring their expeditious disposal. The Assistant Director of Prosecution [Section 20(9)] has been empowered to monitor cases punishable for less than 7 years. This provision delineates the powers and functions of the Prosecution and instils accountability in the overall process of justice dispensation.
9. In Section 23, the power of limit of imposing fine by a Magistrate of the first class has been increased from Rs. 10,000 to maximum of Rs. 50,000 and for the Magistrate of second class from Rs. 5,000 to Rs.10,000. These two classes of Magistrates have also been empowered to impose community service as a form of sentence. Community service has been explained as “Court ordered work that benefits the community, and which is not entitled to any remuneration” [Explanation to Section 23]. This provision seeks to not only decrease the prison population but also adopts a more rehabilitative and reformative approach to punishment.
10. In the matter of sentences in several offences, an addition has been made in section 25 of the BNSS, 2023 that the Court considering the gravity of the offences shall order punishments to run concurrently or consecutively.
11. In Section 35(7), the aged and infirm persons have been protected from arrest. It has been provided 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. The rights of the aged and infirm have further been protected as witnesses in section 179(1) of BNSS where no person above the age of 60 years or a person with acute illness will be required to attend at any place other than where they reside.
12. Section 37(b) introduces that there shall be one designated police officer in every district and at every police station, not below the rank of ASI who shall be responsible for maintaining and giving information to the public about details of persons arrested, etc. For clear visibility, the names, addresses, and charges against arrested persons can now be prominently displayed through digital means.
13. In case of arrest by a private person, Section 40 of the BNSS, 2023 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.
14. In Section 43(3), a specific provision has been made to provide for the use of handcuff while effecting the arrest and production before court of an arrested person who has either escaped from custody earlier or is a habitual or repeat offender in heinous offences like organized crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, sexual offences against children, acid attack, counterfeiting of coins and currency notes, human trafficking, offences against the State.
15. Section 50 provides for the ‘immediate’ seizure of offensive weapon after the arrest is made.
16. In Section 51(3), it has been provided that the medical practitioner shall without any delay forward the examination report of the arrested person to the I.O.
17. The additional medical examination of the arrested person in police custody is specifically included in Section 53 of the BNSS, 2023.
18. Section 63 introduces technology compatibility for issuance and service of summons. The Court can now issue summons in electronic form authenticated by the image of the seal of the Court or digital signature. Further, Section 70 allows for service of summons through electronic means. For the purpose of making the process effective, transparent, and accountable, a provision has been made in Section 64 for maintaining the register in the police station and in the Court to keep the address, email address, phone number etc. of the person to be summoned.
19. In Section 66, gender neutrality has been introduced and women have been included as an adult member of the family for the purpose of service of summons on behalf of the person summoned. The earlier reference to ‘some adult male member’ has been replaced with ‘some adult member’.
20. In case of arrest under a warrant, Section 82 in BNSS 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.
21. Earlier a person could have been declared a “proclaimed offender” only under few sections. Even heinous offences like rape, trafficking, etc. were not covered under this category. Significant changes have been brought in Section 84(4) where it has been provided that proclaimed offender can be declared in all the offences which are punishable with imprisonment of 10 years or more, or with life imprisonment, or with death.
22. In newly introduced Section 86 of the BNSS a police officer not below the rank of Superintendent of Police may make a written request to the Court to initiate the process of assistance from a court/authority in the contracting State outside India for identification, attachment and forfeiture of the property belonging to a proclaimed person.
23. In Section 94, the BNSS introduced production of electronic communication, including communication devices which is likely to contain digital evidence.
24. To ensure the use of technology and to bring accountability in investigation during search and seizure, a new provision in section 105 has been added making the videography of the process of search and seizure including the preparation of a list of seized items and the signing of it by the witness mandatory. Such videography may be done on mobile phone.
25. In Section 107, a new provision has been added to enable the police, with the permission of the Court, to attach and forfeit any property obtained as proceeds of crime. For the first time such a provision on attachment, forfeiture, and restoration of proceeds of crime has been introduced in the BNSS, 2023. This provision will increase the liability on fugitive criminals and act as compelling factor for their participation in the proceedings instituted against them.
26. In the Chapter on Order for Maintenance of Wives, Children and Parents (Chapter X), an important addition has been made in the BNSS, 2023 in section 145 whereunder in case of the dependent father or mother, the proceedings for order of maintenance may be initiated at the place where he/she resides. This removed the difficulty which existed in the CrPC wherein in case of parents, the place for initiation of proceeding was the place of residence of their son.
27. The Deputy Commissioner of Police has been added in Section 162 relating to the District Magistrate/Sub-Divisional Magistrate/Executive Magistrate who can deal with procedure in case of public nuisance.
28. In the newly inserted Section 172, the power of police to detain or remove any person resisting, refusing, disregarding etc to conform to any direction of a police officer is introduced which warrants production of such person before the Magistrate and in petty cases release of such person within 24 hours after the occasion is past.
29. In Section 173, the provision of filing of Zero FIR has been introduced. Now, when information is received by the police that discloses the commission of an offence outside the limits of a police station, it shall be entered in the book to be kept by such officer. Further, the provision for lodging information through electronic communication (e-FIR) has been added with the enabling provision that the signature of the person giving such information be taken within 3 days before the e-FIR is taken on record.
30. The BNSS introduced the right of the victim to get, free of cost, the copy of FIR in Section 173(2).
31. The BNSS in Section 173(3) introduced the concept of ‘preliminary enquiry’ in cases punishable with 3 years or more but less than 7 years. The timeline to complete such preliminary enquiry is fixed as 14 days. Such preliminary enquiry may be conducted only with the prior permission of the officer not below the rank of Deputy Superintendent of Police.
32. In Section 173(4), specific mention of ‘making an application to the Magistrate’ is introduced in the event the FIR is not registered even after the intervention of the Superintendent of Police.
33. To increase the credibility of investigation and the accountability of police, it has been provided in Section 174 that in cases of non-cognizable offences, the police officer apart from referring the complainant to Magistrate, shall also forward the daily diary report of such cases to the Magistrate fortnightly.
34. In serious cases considering the nature and gravity of the offence, the BNSS in section 175(1) allows the SP to depute DSP rank officer to conduct the investigation.
35. Now under Section 175(3), in case of a cognizable offence, the Magistrate before directing an investigation by the police requires to examine the application of the complainant along with affidavit and submission made by the police officer. The Magistrate may make inquiries in this regard.
36. Section 175(4) of BNSS provides protection against false and frivolous cases against public servants discharging their official duties. The Magistrate shall now take cognizance of a complaint against a public servant arising in course of discharge of his official duties, after considering his assertions made by him and receiving a report containing facts and circumstances of the incident from his superior officer.
37. To provide more protection to the victim, and enforcing transparency in investigation, Section 176(1) provides that in relation to an offence of rape, the statement of the victim shall be recorded through audio video means.
38. For bringing credibility to investigation, forensic experts have been mandated to visit the crime scene to collect forensic evidence for offences punishable for 7 years or more in Section 176(3). The States shall, as early as possible but not later than 5 years, make forensic evidence collection in such cases compulsory. Also, where a forensic facility is not available for the time being, it has been provided that the State Government may notify the use of such facility in another State. This provision will strengthen evidence collection, and bring accountability to investigation, the lack of which today results in low conviction rate.
39. In Section 179 of BNSS the exemption from attending the police station is given to women, person above 60 years and a person with acute illness. Further, a proviso is added to allow the persons mentioned in the exemption category to attend at the police station if he/she is willing so to do.
40. In Section 183, now the Judicial Magistrate in whose district the offence has been registered (whether having jurisdiction in the case or not) is made competent to record the confession or statement in the course of investigation.
41. For serious and heinous offences, it has been introduced in section 183 that in cases relating to the offences punishable with imprisonment for ten years or more or imprisonment for life or with death, the Judicial Magistrate shall mandatorily record the statement of the witness brought before him by the police officer. This provision adds credibility to the criminal process.
42. Affording further protection to the victims of rape, it has been mandated in section 183(6)(a) that their statement shall be recorded only by a lady Judicial Magistrate and in her absence, by a male Judicial Magistrate in the presence of a woman.
43. To facilitate speedy and accountable criminal proceedings, Section 184(6) provides that the registered medical practitioner shall forward the report of examination of a victim of rape to the investigating officer within 7 days, who shall further forward it to the Magistrate. This provision establishes a specific timeframe for the supply of medical reports and streamlines the overall process of supply of documents.
44. Section 185 introduces several checks on the powers of the police while conducting search. Firstly, the police officer is required to record the grounds of his belief for conducting search at a place in the ‘case-diary’ under section 185(1). Further, any search conducted by a police officer shall be recorded through audio-video electronic means as per section 185(2). Further, Section 185(5) makes the police officer accountable to send, within 48 hours, the copies of any record made in this regard to the nearest Magistrate empowered to take cognizance of the offence.
45. To address the issue of accused persons avoiding police custody in the initial 15 days, Section 187 gives the opportunity to examine the accused in custody for a maximum of 15 days spread over the first 40/60 days of the period of total detention of 60/90 days. The section provides that the police officer shall have such custody of an accused only if he is not on bail or if his bail has been cancelled. This provision strengthens investigation without curtailing the rights of the accused persons more than before. To further protect the right of the accused to bail, section 480 specifically provides that the accused being required for police custody beyond the first 15 days, will not be the sole ground for refusing grant of bail to the accused.
46. Further, Section 187 provides that the detention shall only be in a police station under police custody or in prison under judicial custody or any other place declared as a prison by the Central Government or the State Government.
47. Previously, an accused who was not in custody was mandatorily arrested and produced in court for the Magistrate to take the cognizance of the charge sheet (police report). This provision has been changed to remove the condition of the accused being in custody. It has now been provided in section 190 that if the accused is not in custody, the police officer shall take security for his appearance before the Magistrate and the Magistrate shall not refuse to accept the charge sheet on the ground that the accused is not taken in custody.
48. Section 193(3)(i) has made forwarding of the police report by the officer in charge of the police station to the Magistrate including through electronic means. Under section 210, technology compatibility has been further provided to the Magistrate enabling him to take cognizance of any offence upon receiving a police report electronically. Electronic evidence has been dealt with separately in this provision, where a police report must also include details of the sequence of custody in case of electronic device [section 193(3)(i)(h)].
49. Further, in a step to make the law more victim centric, Section 193(3)(ii) mandates that the police officer must inform the progress of investigation to the informant or victim within 90 days of the investigation. Technology has been included as a valid mode of communication for conveying this to the victim/informant.
50. Earlier, supplying the police report and other documents to the accused was often delayed due to vexatious tactics being used by the accused to cause unnecessary disruptions in the proceedings. To streamline the process of supply of copies to the accused, Section 193(8) has been introduced which makes the police officer responsible to submit such number of copies of the police report along with other documents duly indexed as required to be furnished to the accused persons, to the Magistrate at the time of filing of charge sheet for supplying to the accused. Further, to make this process of supply of documents citizen friendly and technologically compatible, supply of documents through the electronic communication has been included. In Section 230 this process has been further streamlined and the Magistrate has to supply the documents so received to the accused within 14 days from the date of production/appearance of the accused. Such supply of documents has also been made technologically compatible by including its supply through electronic communication.
51. Proviso to Section 193(9) provides a timeline for conducting further investigation during trial. It has been provided that after filing of charge sheet if further investigation is required, it shall be completed within 90 days, and any extension of time period beyond 90 days shall only be with the permission of the Court. This provision serves as a safeguard against the potential abuse of police power, makes the police more accountable, and prevents unnecessary delays in criminal proceedings.
52. Section 194(2) of BNSS provides a time period of 24 hours for forwarding the report on suicide to the District Magistrate or Sub-divisional Magistrate.
53. For the ease and convenience of the witness and to prevent undue harassment by police, the proviso to Section 195 provides that no male person under the age of fifteen years or above the age of 60 years (65 years earlier) or a woman or a mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place in which such male person or woman resides. In case, where such a person is willing to attend the police station, they may be allowed to do so.
54. In case of offence committed outside India, the jurisdiction of the Court where the offence is registered is also included in Section 208. Further, in case of receipt of evidence relating to offences committed outside India, the depositions or exhibits may be produced in electronic form as well.
55. In case of cognizance of offences by Magistrates on police report, Section 210 includes submission of police report in electronic mode as well.
56. In an attempt to end the delay caused in receiving sanction for prosecution of public servants, it has been provided in Section 218 that the sanctioning authority shall take decision within 120 days from the date of receipt of the request, failing which, the sanction shall be deemed to have been accorded by such authority.
57. Currently in complaint cases, the Court takes cognizance of an offence even without the knowledge of the accused person. To strengthen the rights of citizens, it has been provided in Section 223 that the Magistrate shall grant an opportunity to the accused person to present his side to the Court before the Court proceeds to take cognizance of an offence on a complaint.
58. In compliant cases, Section 223 provides protection against false and frivolous cases against public servants discharging their official duties in complaint cases. The Magistrate shall now take cognizance of a complaint against a public servant arising in course of discharge of his official duties, after considering his assertions and receiving a report containing facts and circumstances of the incident from his superior officer.
59. In Section 227 dealing with issuance of process, the summons and warrants may also be issued through electronic means.
60. In Section 230, timeline has been prescribed with respect to the supply of copies of police report and other documents to the accused and the victim which is to be made within 14 days from the date of production or appearance of the accused. In case of voluminous documents, the copies may be furnished through electronic means. Similarly in case of Sessions triable cases instituted on a complaint, the copies statements and documents may be furnished through electronic means in Section 231.
61. To address delays in commitment cases, Section 232 stipulates that the proceedings must be completed within 90 days from the date the Magistrate takes cognizance. This period may be extended to 180 days, with reasons recorded in writing. Further, any application filed before the Magistrate by the accused or the victim shall also be forwarded to the Court of Session.
62. To minimize delays and ensure a prompt trial in sessions cases, Section 250 mandates a 60-day window from the date of committal for the accused to file a discharge application. Additionally, Section 251 reinforces this effort by setting a 60-day timeline for framing charges from the first hearing on charge. To enhance efficiency, the use of audio-video means to communicate and explain charges to the accused person, is introduced [Section 251(2)].
63. To expedite criminal proceedings using technology, Section 254 allows for the use of audio-video electronic means in Sessions cases for the deposition of evidence or statements of witnesses, police officers, public servants, or experts. A similar provision is included in Section 265 for the trial of warrant-cases, enabling the use of electronic means for examining witnesses.
64. In Sessions cases, timelines have been prescribed for delivering judgments. Section 258 provides for a period of 30 days, from the date of conclusion of arguments for giving the judgment. Such period may be extended to 45 days with reasons recorded in writing. Further, Section 392 (1) provides that judgment in every trial in any criminal court shall be pronounced no later than 45 days after the termination of trial. Section 392 also provides that the Court shall, within 7 days from the date of judgment, upload its copy on the portal.
65. In Section 262 of BNSS dealing with warrant cases, the time period for filing a discharge application by the accused has been prescribed as 60 days from the date of supply of documents. Similarly, Section 263 mandates that the charges must be framed within 60 dates from the date of first hearing on the charge.
66. In Sections 265 and 266 which deal with the evidence for prosecution and for defence, the examination of a witness is allowed to be done through audio video electronic means at the designated place to be notified by the State Government.
67. In Section 269(7), if the attendance of the prosecution witness cannot be secured despite giving opportunity and after taking all reasonable measures, it shall be deemed that such witness has not been examined for not being available so that the Magistrate may close the prosecution evidence and proceed with the case on the basis of material on record.
68. Under Section 272, in a case instituted on a complaint, if the complainant remains absent even after giving thirty days’ notice, the Magistrate is empowered to discharge the accused. It is aimed to reduce delays in complaint cases and limit the scope of false or frivolous complaints.
69. In summons cases, a proviso has been inserted in Section 274 to allow discharge of the accused person if the accusation appears as groundless.
70. To reduce the burden on judiciary and expedite trial process in petty and less serious cases, Section 283 makes summary trial mandatory for petty and less serious offences (like theft, receiving or retaining stolen property, house trespass, breach of peace, criminal intimidation, etc.). In cases where punishment is extendable up to 3 years (earlier 2 years) the Magistrate may, for the reasons to be recorded in writing and after giving the accused a reasonable opportunity of being heard, try such cases summarily.
71. In Section 290, a time period has been prescribed for filing an application for plea bargaining. An accused person, may within 30 days from the date of framing of charges, may make such application. Further, a time period of 60 days has been prescribed for completing the process of ‘mutually satisfactory disposition’.
72. Section 293 adopts a lenient and rehabilitative approach in plea bargaining cases. In instances involving first-time offenders, where minimum punishment is prescribed, the Court may impose a sentence equal to one-fourth of the minimum punishment—marking a departure from the existing norm of one-half of the punishment. Further, in cases where the punishment is extendable and no minimum punishment is prescribed, a first-time offender may receive a sentence equivalent to one-sixth of the prescribed punishment, decreasing the quantum of punishment from the previous one-fourth standard. This provision underscores a commitment to a more progressive and individualized approach to sentencing, especially for the first-time offenders.
73. In a concerted effort to enhance the seamless integration of technology, Section 308 empowers the examination of the accused through electronic means, specifically utilizing audio-video conferencing (VC) facilities accessible in any place designated by the State Government. Complementing this, section 316 stipulates that the signature of an accused who undergoes examination via video conferencing must be obtained within a timeframe of 72 hours. This provision underscores a commitment to harnessing technology for efficient legal procedures while maintaining procedural integrity through timely documentation.
74. In Section 330, timeline of thirty days has been introduced to challenge the genuineness of any document which may be relax at the discretion of the Court. Further, the experts are exempted to be called before the Court unless the report of such expert is disputed by any parties to the trial.
75. To make criminal proceedings more efficient, Section 336 provides that where any document or report prepared by a public servant, expert or officer is used as evidence, the Court shall secure the presence of the successor in office of such public servant, expert or officer. This process has also been equipped with the use of audio-video electronic means for the purpose of such deposition.
76. To curtail delays resulting from frequent adjournments, Section 346 establishes a framework wherein the Court, after considering objections from the opposing party, may grant not more than two adjournments when circumstances are genuinely beyond the control of a litigant, for reasons to be recorded in writing. This provision aims to streamline legal proceedings, fostering efficiency while maintaining fairness and accountability in the judicial process.
77. Section 349 safeguards the rights of citizens and restricts the need for arrest of persons. The Magistrates of the first class are empowered under this provision, to direct any individual to provide specimens and/or samples without necessitating their arrest. This legal mechanism strikes a balance between the protection of individual rights and the investigative process, offering a measured approach to obtaining necessary evidence without resorting to unwarranted detention. Further, the ambit of this provision is expanded by including voice samples and finger impressions within its purview.
78. Addressing the problem of fugitive criminals, a new provision of trial in absentia has been incorporated under section 356 of BNSS for persons declared as proclaimed offenders. The process involves the issuance of two warrants of arrest within an interval of 30-days, publication of notices in two local or national newspapers, notification of the commencement of trial to relatives and the affixing of notices regarding the trial’s initiation before the commencement of such trial. Further, the trial against the proclaimed offender can only commence after the passage of 90 days from the date of framing charges. The provision extends the right to legal representation of the proclaimed offender with the State appointing an advocate for the absent accused’s defence. This innovative framework diverges from the prevailing norm limited to only recording witness testimonies during trial in absentia. Instead, it encompasses the entire judicial process, extending from the presentation of evidence to the final judgment and determination of punishment. Importantly, should the absconding individual rejoin the proceedings mid-trial, they are entitled to participate and benefit from due process in their defence. This comprehensive approach reflects a equitable stance, ensuring fair treatment throughout the trial process.
79. To foster a more victim-centric approach in the criminal justice system, there has been an inclusion of victims in key decisions. Under section 360 before withdrawal of prosecution the victim must be afforded an opportunity to be heard before the Court. This provision acknowledges and incorporates the concerns of victims, enhancing the overall fairness and responsiveness of the criminal justice process.
80. In Section 392, the accused person, if in custody, may be produced through audio video electronic means to hear the judgment.
81. Section 398 mandates the preparation and notification of a witness protection scheme by every State Government. A witness protection scheme serves as a safeguarding mechanism, fostering an environment where witnesses can contribute to the legal process devoid of fear or duress. The necessity for a comprehensive witness protection scheme has been underscored by the Malimath Committee and various Law Commission Reports, including the 14th, 154th, 172nd, 178th, and 198th Reports. In Mahendra Chawla v UOI, the Witness Protection Scheme 2018 (draft) was approved by the Supreme Court.
82. A new provision for time bound disposal of mercy petitions filed before the President and Governor has been made in Section 472. This provision prescribes a timeframe, requiring such petitions to be filed within 30 days before the Governor and 60 days before the President. The Superintendent of the jail is now entrusted with the responsibility of informing the convicts about the confirmation of their death sentence or the dismissal of their appeal or review of a special leave appeal. Additionally, the jail superintendent is mandated to ensure that every convict, especially in cases involving multiple convicts, submits their mercy petition within 60 days. In situations where no other petitions are received from the remaining convicts, the jail superintendent is required to forward their names, addresses, and case records to the Central or State government for consideration alongside the mercy petition filed. Further, the Central Government is to give its recommendations to the President within 60 days, commencing from the date of receiving comments from the State Government and records from the Jail Superintendent. It has also been provided that no appeal shall lie in any Court against the order of the President made under Article 72 of the Constitution; it shall be final, and not to be enquired into by any Court. This comprehensive provision streamlines and ensures timely and equitable consideration of mercy petitions.
83. Section 474 amends the existing section of commutation of any sentence in fine etc. The sections provides that appropriate Government may, without the consent of the person sentenced, commute—
    1. a sentence of death, for imprisonment for life;
    2. a sentence of imprisonment for life, for imprisonment for a term not less than seven years;
    3. a sentence of imprisonment for seven years or more for imprisonment for a term not less than three years;
    4. a sentence of imprisonment up to three years, for fine.
    5. a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced;

    These changes foster equal and just treatment under the law, aligning sentencing practices with principles of fairness and justice.

84. In Section 479, provision for bail to undertrials prisoners has been relaxed and liberalized. A sympathetic view has been taken towards first-time offenders, who are now eligible to be released on bond by the Court if they have undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for that offence. The provision has also entrusted the jail superintendent to make an application for bail to the Court where an under trial completes one-half or one-third of the maximum period. The release of an undertrial prisoner who is involved in more than one offence or in multiple cases is made stringent under the provision. Further, the sentence of life imprisonment or death has been excluded from the purview of this provision.
85. Section 497 introduces the quick disposal of case properties even during the investigation, on preparation of a statement of the property by the Court within 14 days after such property has been photographed/ video graphed. Such statement, photographs and videography shall be used as evidence in any inquiry, trial or other proceeding. The Court shall then, within 30 days after the statement has been prepared, order the disposal, destruction, confiscation or delivery of such property.

86. Section 530 envisages that all trials, inquiries and proceedings may be made compatible with technology and held in electronic modes by use of electronic communication or through the use of audio-video electronic means.

Bharatiya Sakshya Adhiniyam

1. The new Act on law of evidence has been named as “Bharatiya Sakshya Adhiniyam (BSA), 2023” which has replaced the Indian Evidence Act, 1872.
2. The words like ‘Parliament of the United Kingdom’, ‘Provincial Act’, ‘notification by the Crown Representative’, ‘London Gazette’, ‘any Dominion, colony or possession of his Majesty, ‘Jury’, ‘Lahore’, ‘United Kingdom of Great Britain and Ireland’, ‘Commonwealth,’ ‘Her Majesty or by the Privy Council,’ ‘Her Majesty’s Government,’ ‘copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer’, ‘possession of the British Crown,’ ‘Court of Justice in England’, ‘Her Majesty’s Dominions’, ‘Barrister’ have thus been deleted as they are no longer relevant.
3. Language of the BSA has been modernized. The words like ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been replaced with the word ‘Advocate’.
4. The definition of “documents” in Section 2(1)(d) has been expanded to include an electronic or digital record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, cloud, locational evidence and voice mail messages stored on digital devices. This update acknowledges the shift from traditional paper-based documentation to electronic forms of communication and data storage in contemporary India. It helps ensure that the legal system is equipped to handle cases involving digital evidence. It will provide legal practitioners, law enforcement, and judiciary with a comprehensive framework to deal with digital evidence stored on various platforms.
5. Similarly, the definition of ‘evidence’ in Section 2(1)(e) has been expanded to include any information given electronically. This will permit the appearance of witnesses, accused, experts and victims to depose their evidence through electronic means. It also establishes ‘digital records’ as documentary evidence. This addition in BSA demonstrates a technology-neutral approach by recognizing the validity of information given electronically and considering electronic communication on par with traditional in-person statements. It recognizes the challenges involved in ensuring repeated physical presence in Courts and offers a viable alternative, minimizing the necessity for physical travel and the related expenses.
6. ‘Coercion’ has been added to Section 22 as one of the acts causing a confession to become irrelevant. In Section 39, the scope of an expert has been expanded to include persons especially skilled in ‘any other field’.
7. An Explanation has been added to Section 24 that clarifies that in a case when multiple people are tried jointly, if the accused who has absconded or who failed to comply with the proclamation issued against him under Bharatiya Nagarik Suraksha Sanhita, is absent during the trial, the trial will be conducted as a joint trial.
8. Section 52 of BSA enables the Courts to take judicial notice of laws having extra-territorial operations, international treaty, agreement or convention with countries or decisions made at international associations or other bodies; seals of Tribunals, State Legislatures and the territory of India (as opposed to ‘The territories under the dominion of the Government of India’)
9. To leverage the use of technology in collection of evidence, significant changes have been introduced in BSA that recognize contemporary technological practices where information is distributed and stored across various platforms in various forms. In Section 57, dealing with primary evidence, new Explanations have been expanded to include –

   (i) an electronic or digital record which is created or stored, either simultaneously or sequentially in multiple files, then each such file is an original.

   (ii) an electronic or digital record is produced from proper custody, it is sufficient to prove its contents unless it is disputed.

   (iii) a video recording is simultaneously stored in electronic form and transmitted or broadcast to another, each of the stored recordings is an original.

   (iv) an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is an original.

   These additions establish a framework for the legal treatment of electronic or digital records, emphasizing on their proper custody and establishing their originality in various storage scenarios. It streamlines the procedure for validating and verifying electronic content.

10. Scope of secondary evidence has been expanded in Section 58. Secondary evidence now also includes – oral admissions, written admissions, and evidence provided by a person who is skilled in examining certain documents, which being technical or voluminous cannot be conveniently examined. Now, giving matching hash # value of original record as proof of evidence shall be admissible as secondary evidence. Importance is given to the integrity of a specific file and not to the entire storage medium.
11. Section 61 brings parity in the admissibility of electronic/digital record and other documents. Now, electronic or digital records will have the same legal effect, validity and enforceability as other documents.
12. Section 62 & 63 of the Bharatiya Sakshya Adhiniyam provide a comprehensive framework for the admissibility of electronic records as evidence. This section outlines the requirements for submitting a certificate for establishing the authenticity of an electronic record. Such a certificate is to be signed by the person in charge of the computer or communication device. Furthermore, a separate certificate provided in the schedule to BSA mandates the signature of an expert, whose endorsement serves as proof for any statements contained within the certificate. Once signed, the certificate serves as evidentiary support for the matters it asserts.
13. Changes in Section 138 have been made to enable an accomplice to testify in court against the person accused of the crime. It clarifies that a conviction of the accused is not deemed illegal when it is based on the corroborated testimony of the accomplice. The original provision stated that conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice.

14. A proviso has been added to Section 165 that disallows any Court to require any communication between Ministers and President of India to be produced before it.