Introduction
Justice Krishna Iyer said, “procedure is the handmaid of justice”, meaning that the procedural rules are meant to serve justice and not to hinder it.
The Indian criminal procedure operative to-date was derived from the British Raj1, that included the Code of Criminal Procedure, 1898 on which the Code of Criminal Procedure, 1973 (“CrPC”) was largely based. The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) replaces the existing CrPC, and will be enforced on 01-07-2024. The BNSS also aims to establish a justice system that has a greater vitesse and efficiency that can tackles the ongoing challenges of complex procedures, case pendency, low conviction rates, lack of technology adoption, and delayed justice delivery. Above all, the greatest objective of the BNSS is the suraksha (protection) of citizens from the unfair exploitation of the procedure possible through the existing loopholes in the current criminal procedure regime.
The BNSS mostly preserves the provisions of the existing CrPC, however, it aims to simplify the criminal procedure, reduce trial duration, enhance investigatory powers of the police, implement timelines for procedure, etc.
2Key Changes brought by the Bharatiya Nagarik Suraksha Sanhita, 2024
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Section 15 |
Authorises the State Government to appoint any police officer (not below the rank of Superintendent of Police or equivalent) as a Special Executive Magistrate, in addition to an Executive Magistrate. |
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Section 23 |
Increases the power of fine imposition of a Magistrate of first class from Rs. 10,000 to Rs. 50,000, and of a Magistrate of second class from Rs. 5,000 to Rs. 10,000. These two classes have also been empowered with imposing community service as a form of sentence. |
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Section 35(7) |
The aged and infirm persons have been protected from arrest, providing 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. |
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Section 63 |
Introduces technology compatibility for issuance and service of summons by Court through electronic form authenticated by the image of the seal of the Court or digital signature. |
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Section 66 |
Provides when a summoned person cannot be found, then the summons can be served on them by leaving a duplicate copy with “some adult member” of their family residing with the summoned person. This provision replaces the earlier verbatim of “some adult male member” contained in the CrPC. |
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Section 84 |
Provides 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. |
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Section 145 |
Provides that the proceedings for maintenance can be initiated against a person at the place where either their dependent father or mother resides. |
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Section 173 |
Introduces the provision of filing of Zero FIR, when information that discloses the commission of an offence outside the limits of a police station is received by the police, 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. |
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Section 179(1) |
Protects the rights of the aged and infirm as witnesses 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. |
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Section 184 |
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. |
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Section 398 |
Mandates the preparation and notification of a witness protection scheme by every State Government. The necessity for a comprehensive witness protection scheme had been underscored by the Malimath Committee and various Law Commission Reports, including the 14th, 154th, 172nd, 178th, and 198th Reports. |
Notable changes
The BNSS has 531 Sections in total.3 Some of the commendable additions, deletions are-
Additions
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Section 2, introduces and defines the “electronic communication” and “audio-video electronic means” for various procedures on the usage of electronic mode for all trials and proceedings.
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Section 105 of the BNSS makes the videography of search and seizure, and the signing of it by the witness mandatory.
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Section 107 provides for conducting trials and pronouncing judgments ex parte against absconding offenders evading trial.
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Section 173 provides for registering First Information Report (FIR) electronically, signed by the person giving it within three days.
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Section 176 mandates forensic investigation for offences punishable with imprisonment of 7 years or more.
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Section 185 mandates the audio-video recording of a search without a warrant.
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Section 258 mandates that a judgment of acquittal or conviction must be passed within 30 days from the completion of arguments, that is extendable only by 45 days for specific reasons.
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Section 346 provides that a trial or inquiry shall be on a daily basis.
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Section 530 of BNSS also provides for all trials, inquiries and proceedings held in electronic modes.
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Chapters VI, VII, and VIII provide for the attachment of the accused’s property in cases of financial offences.
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Provisions contained in Chapters XVII, XIX, XX, set timelines for different investigatory stages to address delay in procedure.
Deletions
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Provisions contained under the CrPC, dealing with ‘Metropolitan areas’ and ‘Metropolitan Magistrates’ have been omitted from the BNSS.
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The post of Judicial Magistrate of third-class and Assistant Sessions Judge was omitted to bring uniformity.
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Section 144-A of the CrPC which conferred power on the District Magistrate and the State Government to prohibit the carrying of arms in procession or mass drill or mass training has been deleted.
Conclusion
The BNSS is not an arrow shot in the dark, but an empirically derived legislation with a clear goal in mind, to protect the nagarik (citizen) in criminal proceedings and not hinder the rights of the victim or of the accused person.. The initiatives taken under the BNSS also ensure its effectiveness, be it the introduction of sentence guidelines to prevent discretionary sentencing or balancing the rights of all stakeholders involved in a proceeding.
The Sanhita also accords the much-needed technological advancement in the justice delivery system of the country and bringing justice to the citizens rather than the citizens having to seek justice in a prolonged, frustrating and exhausting manner.
1. Press Information Bureau, Press Release from the Ministry of Home Affairs, Dated-20-10-2023. Available at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1988913
2. http://www.scconline.com/DocumentLink/4ZL1J8Y1
3. Criminal Manual, First Edition 2024, Eastern Book Company.
