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Introduction to the Bharatiya Nagarik Suaksha Sanhita, 2023

Qutestion Bank

Q.1. What is the purpose of introducting BNSS, 2023? What are the key principles of it?

SYNOPSIS

Contents

1. Introduction- 1
2. Structure and Scope- 2
3. Investigation: 2
4. Inquiry: 2
5. Trial: 2

III. Important Objectives and Features of BNSS- 3

1. Modernisation and Technology Integration: 3
2. Timelines for Procedures: 3
3. Enhanced Victim Rights: 3
4. Expanded Definition of Evidence: 3
5. Trial in Absentia: 3
6. Procedural Changes: 4
7. Taking Samples for Investigation: 4
8. Hierarchy of Courts: 4
9. Comparison with the Code of Criminal Procedure (CrPC)- 4
10. Conclusion- 7

 

I. Introduction-

The Bharatiya Nagarik Suraksha Sanhita, 2023 (in short called as BNSS) is a landmark legislation that seeks to thoroughly revise and modernize the criminal procedure framework in India. Enacted to replace the long-standing Code of Criminal Procedure, 1973 (CrPC), the BNSS aims to address the evolving needs of a contemporary society, with a focus on expediting justice delivery, enhancing victim rights, and integrating technological advancements into the legal process[1]. BNSS is the main legislation on procedure for the administration of substantive criminal law in India. It is an Act introduced to consolidate and amend the law relating to Criminal Procedure.

II. Structure and Scope-

The BNSS is organized into 39  (XXXIX) chapters and comprises a total of 531 sections, demonstrating a comprehensive approach to the codification of criminal procedures. It clearly explains the rules and procedure to be followed at the three important stages of a criminal case, i.e. investigation, inquiry and trial.

1. Investigation:

The investigation stage in a criminal case by the police involves several systematic steps aimed at uncovering the truth of an alleged offence. It begins with the registration of a First Information Report (FIR) under Section 173 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, following which the police proceed to examine the crime scene, collect physical and forensic evidence, record statements of witnesses (Section 180 BNSS), and interrogate suspects. If sufficient grounds exist, arrests may be made under due procedure. Throughout the investigation, the police are required to maintain a case diary and ensure procedural fairness. Once the investigation is complete, a final report (chargesheet or closure report) is submitted to the Magistrate, who then decides whether to take cognizance of the offence and proceed to trial.

2. Inquiry:

The stage of Inquiry in a criminal case is the initial phase where a magistrate or other authorized authority examines the case to determine whether there is sufficient ground to proceed with a trial. It typically follows the investigation conducted by the police and involves assessing the evidence presented in the charge sheet or complaint, examining witnesses if necessary, and ensuring that the accused has been properly informed of the allegations. The purpose of the inquiry is not to determine guilt but to decide whether a prima facie case exists against the accused. Based on the outcome, the magistrate may dismiss the case, take cognizance of the offense, and commit/transfer the matter for trial before the appropriate court.

3. Trial:

The trial stage before a criminal court is the formal judicial process where the guilt or innocence of the accused is determined based on the evidence and arguments presented by both the prosecution and the defense. It begins after the court has taken cognizance of the offense and framed charges against the accused. The trial typically involves the examination and cross-examination of witnesses, presentation of documentary and material evidence, and recording of statements under relevant provisions of law. Both sides are given the opportunity to present their case, after which the court hears final arguments. If the court finds the accused guilty beyond a reasonable doubt, it delivers a conviction and proceeds to pass sentense; otherwise, the accused is acquitted. The trial ensures that justice is served through a fair, impartial, and transparent legal process.

[These three stages are discussed in detail in the 2nd topic of Definitions]

III. Important Objectives and Features of BNSS-

The BNSS is enacted with several core objectives and introduces important features designed to improve the efficiency, fairness, and responsiveness of the criminal justice system:

a. Modernisation and Technology Integration:

Acknowledging the transformative impact of technology, the BNSS mandates the use of forensic investigations in cases involving offenses punishable with imprisonment of seven years or more. It also promotes the adoption of electronic modes for conducting trials, inquiries, and other proceedings, facilitating the use of digital evidence and improving accessibility.

b. Timelines for Procedures:

In a significant departure from the CrPC, the BNSS introduces specific timelines for various stages of the investigation and trial process. This aims to reduce delays, expedite case disposal, and ensure timely justice delivery.

c. Enhanced Victim Rights:

The BNSS places a greater emphasis on protecting and promoting the rights of victims. This includes provisions for informing victims about the progress of investigations, ensuring their participation in certain stages of the legal process, and providing for their welfare and support.

d. Expanded Definition of Evidence:

The BNSS broadens the scope of admissible evidence to include electronic communication devices and other forms of digital evidence. This reflects the increasing prevalence of technology in crime and the need for legal frameworks to adapt.

e. Trial in Absentia:

Under certain circumstances, the BNSS allows for trials to be conducted and judgments to be pronounced even in the absence of proclaimed offenders who have absconded to evade the legal process. This provision seeks to address the challenges posed by fugitive criminals and prevent them from obstructing justice.

f. Procedural Changes:

The BNSS brings about several changes to existing procedures, including those related to bail, the seizure of property, and the powers of the police and magistrates. These changes aim to streamline processes, remove ambiguities, and enhance the effectiveness of law enforcement and judicial authorities.

g. Taking Samples for Investigation:

To facilitate more effective investigations, the BNSS empowers investigation authorities to collect finger impressions, voice samples, and other forms of physical evidence, even from individuals who have not been formally arrested.

h. Hierarchy of Courts:

The BNSS streamlines the hierarchy of criminal courts by omitting the provision that allowed state governments to designate cities or towns with a population exceeding one million as metropolitan areas.

IV. Comparison with the Code of Criminal Procedure (CrPC)-

While the BNSS retains many of the fundamental principles of criminal procedure enshrined in the CrPC, it introduces several important departures and modifications:

1. The BNSS is enacted to replace the CrPC.
2. The BNSS has 39 chapters and 531 sections, compared to the CrPC.
3. The BNSS places a greater emphasis on the use of technology in the criminal justice system.
4. The BNSS introduces specific timelines for various stages of the legal process.
5. The BNSS expands the scope of victim rights.
6. The BNSS broadens the definition of admissible evidence.
7. The BNSS includes provisions for trial in absentia under certain circumstances. [for More details see footnote[2]]

V. Conclusion-

In conclusion, the Bharatiya Nagarik Suraksha Sanhita, 2023 represents a comprehensive effort to modernize and reform India’s criminal procedure laws. By integrating technology, expediting processes, and enhancing victim rights, the BNSS seeks to create a more efficient, effective, and equitable criminal justice system.

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References-

1. “Bharatiya Nagarik Suraksha Sanhita- an overview” https://socialwelfare.vikaspedia.in/viewcontent/social-welfare/new-criminal-laws/bharatiya-nagarik-suraksha-sanhita-an-overview?lgn=en
2. “Bharatiya Nagarik Suraksha Sanhita 2023: History, Features & More| UPSC Notes”https://testbook.com/ias-preparation/bharatiya-nagarik-suraksha-sanhita-2023

3. Bharatiya Nagarik Suraksha Sanhita. https://en.wikipedia.org/wiki/Bharatiya_Nagarik_Suraksha_Sanhita

 

 

[1] The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), (meaning ‘Indian Citizen Safety Code, 2023)’, is the main legislation governing the procedure for administering substantive criminal law in India. It was enacted to replace the nearly five-decade-old Code of Criminal Procedure, 1973 (CrPC). The BNSS was passed by the Lok Sabha on 20 December 2023 and the Rajya Sabha on 21 December 2023, receiving the assent of the President of India on 25 December 2023. It officially commenced and came into force on 1 July 2024, marking a significant overhaul of India’s criminal justice procedural framework.

 

[2] Important Changes and Features (BNSS vs. CrPC):

1. Modernisation and Technological Integration:

(i) CrPC: Less emphasis on modern technology; allowed Magistrates to obtain signatures or handwriting samples.

(ii) BNSS: Introduces significant technological integration. Mandates forensic investigation for serious crimes (punishable by seven years or more imprisonment). Requires forensic experts to collect and record evidence using mobile or electronic devices. Allows use of electronic mode for trials, inquiries, proceedings, including examination of accused and witnesses. Promotes electronic filing, recording, and storage of case documents. Mandates mandatory audio-visual recording of police searches and seizures. Expands the power to collect samples to include finger impressions and voice samples, in addition to signatures and handwriting, allowing collection from non-arrested individuals with a magistrate’s order stating the reasons. Introduces provisions for Zero FIR (lodging FIR at any police station) and e-FIR. Allows electronic summons.

1. Timelines for Procedures:
2. CrPC: Did not have strict timelines for many procedures, contributing to backlogs and delays. Required medical examination of the accused on request of at least a sub-inspector.
3. BNSS: Aims to expedite the judicial process by setting specific timelines for various procedures. Medical reports for rape victims must be submitted within seven days. Judgments must be delivered within 30 days post-arguments, extendable to 45 or 60 days. Victims must be informed of investigation progress within 90 days. Charges must be framed by a sessions court within 60 days of the first hearing. Preliminary inquiry is mandated for cognisable offences punishable between 3 and 7 years, to be completed within 14 days.
4. Police Powers and Procedures:
5. CrPC:

Governs police powers for maintaining public order, preventing crimes, and investigating crimes, subject to safeguards and Supreme Court guidelines. Police custody limited to 24 hours, extendable up to 15 days, then judicial custody up to 60 or 90 days overall. Police power to seize property generally limited to movable property suspected to be stolen or related to an offence. Supreme Court rulings restricted the use of handcuffs.

1. BNSS:

Expands grounds for arrest and allows arrest without a warrant in a wider range of cases. Gives police more powers to investigate crimes. Broadens police seizure powers to include immovable property. Concerns are raised about the absence of safeguards present in specialised laws like the PMLA for property attachment. Permits the use of handcuffs in a wider range of cases, including organised crime, economic offences, terrorist acts, etc., especially for habitual/repeat offenders or those who have escaped custody. This is noted as contradicting Supreme Court directives. Modifies police custody rules, allowing the 15-day police custody period to be authorised in whole or in parts during the initial 40 or 60 days of the total judicial custody period (60 or 90 days). This differs from laws like UAPA and previous SC rulings and raises concerns about denial of bail during this period. Allows police to detain individuals resisting arrest or ignoring officer directions to prevent cognisable offences, although a clear timeframe is noted as lacking. Any police officer can request medical examination, including in rape cases, compared to the CrPC’s requirement of at least a sub-inspector level officer.

1. Rights of the Accused and Bail:
2. CrPC: Upholds fundamental rights of the accused. Provision for mandatory bail for undertrials serving half the maximum sentence, excluding offences punishable by death. Plea bargaining introduced in 2005 for minor offences, limited to sentence bargaining. Detainees serving half the maximum term must be released on personal bond, excluding those facing the death penalty. Allowed magistrates to order signatures or handwriting samples.
3. BNSS: Aims to strengthen the rights of the accused, aligning treatment with Supreme Court human rights guidelines. Retains mandatory bail for undertrials serving half the maximum sentence, but limits this by adding exceptions for offences punishable by life imprisonment and cases pending in more than one offence. First-time offenders may get bail after serving one-third of the maximum sentence. Limits the scope for plea bargaining by requiring the application to be filed within 30 days from the date of charge framing. Overlaps with existing laws regarding data collection. Introduces the option of Personal Bond Bail for persons acquitted. Introduces duty on Jail Superintendent to present bail application of eligible undertrials. Defines terms like bail, bond, and bail bond for the first time. Concerns are raised that BNSS makes securing bail more difficult.
4. Victim Rights and Protection:
5. CrPC: Less explicit focus on victim rights.
6. BNSS: Places special emphasis on providing support for victims of crime. Introduces a Witness Protection Scheme. Mandates informing the victim of the investigation’s progress within 90 days. Provides for victim compensation and community service as a punishment. Mandates recording of victim statements, particularly in sexual violence cases. Victims entitled to a free copy of the FIR. Victim must be given an opportunity to be heard before the government withdraws a case punishable by seven years or more.
7. Procedural Streamlining and Structural Changes:
8. CrPC: Establishes hierarchy of courts including Metropolitan Magistrates for areas with over one million population. Summary trials were discretionary. Included provisions for maintenance of senior citizens and public order functions. Allowed successors of unavailable officers to depose on documents.
9. BNSS: Streamlines the trial process and sets timelines for court disposal. Makes summary trials mandatory for petty and less serious cases, expanding scope based on monetary limits. Abolishes classification of metropolitan areas and designation of Metropolitan Magistrates. Establishes a Directorate of Prosecution at state and district levels to monitor cases and ensure timely disposal. Introduces guidelines for conducting trials in the absence of the accused (proclaimed offenders), requiring a 90-day waiting period after charge framing. Retains provisions for maintenance of senior citizens and public order, leading to overlaps with existing laws. Allows successors of unavailable officers (IOs, medical officers, public servants) to depose on documents. Section 173 deals with the procedure for completion of investigation and submission of the final police report. The High Court trial procedure aligns with the Court of Session. Includes special provisions for the Armed Forces. Removes post of Assistant judges. Allows police officers above SP rank to be appointed as Special Executive Magistrates. Increases minimum fine amounts.
10. Overlaps and Criticisms:
11. CrPC: Faced challenges with case backlogs, trial delays, and issues impacting underprivileged groups.
12. BNSS: While aiming for efficiency and modernisation, BNSS has faced criticisms. Concerns include the potential for expansion of police powers, particularly regarding detention procedures, police custody, use of handcuffs, and property seizure powers. Critics also point to limitations on the rights of the accused, such as restricted mandatory bail for those with multiple charges, limited scope for plea bargaining, and potential negative impacts on prison congestion. Issues regarding successors deposing for unavailable officers are also noted. Overlaps with existing laws like the Criminal Procedure (Identification) Act, 2022, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, as well as the inclusion of public order functions (a state subject), have been highlighted as potential issues. Some recommendations from high-level committees on criminal justice reforms were not incorporated, such as sentencing guidelines and codified rights of the accused. Drafting issues have also been identified.

In summary, the BNSS is presented as a comprehensive legislative overhaul that replaces the CrPC, seeking to modernise, streamline, and make India’s criminal justice system more efficient and citizen-centric, primarily through the integration of technology and setting strict timelines. While it retains many fundamental procedural elements from the CrPC, it introduces significant changes to address contemporary challenges and enhance victim rights. However, concerns persist regarding the potential impact of expanded police powers and limitations on certain rights of the accused, aspects that proponents argue are balanced by new safeguards. The effective implementation and interpretation of these new provisions will be critical in determining whether the BNSS successfully achieves its stated goals.