BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS)

Highlights of the Bill

 The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal
Procedure Code, 1973 (CrPC). The CrPC provides for the procedure for arrest,
prosecution, and bail.
 BNSS mandates forensic investigation for offences punishable with seven years of
imprisonment or more. Forensic experts will visit crime scenes to collect forensic
evidence and record the process.

 All trials, inquiries, and proceedings may be held in electronic mode. Production
of electronic communication devices, likely to contain digital evidence, will be allowed
for investigation, inquiry, or trial.

 If a proclaimed offender has absconded to evade trial and there is no immediate prospect
of arresting him, the trial can be conducted and judgement pronounced in his absence.

 Along with specimen signatures or handwriting, finger impressions and voice samples
may be collected for investigation or proceedings. Samples may be taken from a person
who has not been arrested.

Key Issues and Analysis

 The BNSS allows up to 15 days of police custody, which can be authorised in parts
during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. This may
lead to denial of bail for the entire period if the police has not exhausted the 15 days
custody.

 The power to attach property from proceeds of crime does not have safeguards provided
in the Prevention of Money Laundering Act.

 The CrPC provides for bail for an accused who has been detained for half the maximum
imprisonment for the offence. The BNSS denies this facility for anyone facing multiple
charges. As many cases involve charges under multiple sections, this may limit such
bail.

 The use of handcuffs is permitted in a range of cases including economic offences,

contradicting Supreme Court directions.
 The BNSS allows evidence collected by retired or transferred investigating officers to be
presented by their successors. This violates normal rules of evidence when the author of
the document can be cross examined.

 Recommendations of high level committees on changes to the CrPC such as reforms in

sentencing guidelines and codifying rights of the accused have not been incorporated in
the BNSS.

PART A: HIGHLIGHTS OF THE BILL

Context

The Code of Criminal Procedure, 1973 (CrPC) is a procedural law established for the
administration of the Indian Penal Code, 1860 (IPC). It governs the procedure for
investigation, arrest, prosecution, and bail for offences. The CrPC was first passed in 1861 to
address the problem of multiplicity of legal systems in India.[1] Since then it has been
revised on multiple occasions. In 1973, the erstwhile act was repealed and replaced by the
existing CrPC, and changes like anticipatory bail were introduced.[2] It was amended in
2005 to add changes such as provisions for plea bargaining and rights of arrested persons.[3]

Over the years, the Supreme Court has interpreted the CrPC in varied ways and revised its
application. These include: (i) mandating the registration of an FIR if the complaint relates to
a cognisable offence, (ii) making arrests an exception when the punishment is less than seven
years of imprisonment, (iii) ensuring bail for bailable offence is an absolute and in-defeasible
right and no discretion is exercised in such matters. 4 The Court has also ruled on procedural
aspects such as establishing guidelines for custodial interrogations and emphasising the
importance of speedy trials.[4] However, the criminal justice system continues to face
challenges like case backlogs, trial delays, and concerns about treatment of underprivileged
groups.[5]

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023
to replace the Cr.PC. It amends provisions on bail, expands the scope of property seizure,
and alters powers of police and Magistrates. The Bill has been examined by the Standing
Committee on Home Affairs.
 Key Features

The Cr.PC governs the procedural aspects of criminal justice in India. The key features of
the Act include:

 Separation of offences: The CrPC classifies offences into two categories: cognisable and
non-cognisable. Cognisable offences are those in which the police can arrest and initiate an
investigation without a warrant. Non-cognisable offences require a warrant, and in some
cases, a complaint by the victim or a third party.

 Nature of offences: The CrPC deals with various types of criminal offences, ranging from
traffic violations to murder. It distinguishes between bailable and non-bailable offences,
specifying the offences for which an accused has the right to bail from police custody.

The BNSS retains most of the provisions of the CrPC. Key changes proposed include:

 Detention of undertrials: As per the CrPC, if an accused has spent half of the maximum
period of imprisonment in detention, he must be released on personal bond. This does not
apply to offences punishable by death. The Bill adds that this provision will also not apply
to: (i) offences punishable by life imprisonment, and (ii) persons against whom proceedings
are pending in more than one offence.

 Medical examination: The CrPC allows medical examination of the accused in certain
cases, including rape cases. Such examination is done by a registered medical practitioner
on the request of at least a sub-inspector level police officer. The Bill provides that any
police officer can request such an examination.

 Forensic investigation: The Bill mandates forensic investigation for offences punishable
with at least seven years of imprisonment. In such cases, forensic experts will visit crime
scenes to collect forensic evidence and record the process on mobile phone or any other
electronic device. If a state does not have forensics facility, it shall utilise such facility in
another state.

 Signatures and finger impressions: The CrPC empowers a Magistrate to order any person
to provide specimen signatures or handwriting. The Bill expands this to include finger
impressions and voice samples. It allows these samples to be collected from a person who
has not been arrested.
 Timelines for procedures: The Bill prescribes timelines for various procedures. For
instance, it requires medical practitioners who examine rape victims to submit their reports
to the investigating officer within seven days. Other specified timelines include: (i) giving
judgement within 30 days of completion of arguments (extendable up to 60 days), (ii)
informing the victim of progress of investigation within 90 days, and (iii) framing of
charges by a sessions court within 60 days from the first hearing on such charges.

 Hierarchy of Courts: The CrPC establishes a hierarchy of courts for the adjudication of
criminal matters in India. These courts include: (i) Magistrate’s Courts: subordinate courts
responsible for the trial of most criminal cases, (ii) Sessions Courts: presided over by a
Sessions Judge and hear appeals from Magistrate’s Courts, (iii) High Courts: have inherent
jurisdiction to hear and decide criminal cases and appeals, and (iv) Supreme Court: hear
appeals from High Courts and also exercise its original jurisdiction in certain matters. The
CrPC empowers the state governments to notify any city or town with a population of more
than one million as a metropolitan area. Such areas have Metropolitan Magistrates. The
Bill omits this provision.

PART B: KEY ISSUES AND ANALYSIS

The Bill may expand the powers of the police

The CrPC governs the powers of the police to maintain public order, prevent crimes, and
undertake criminal investigations. These powers include arrests, detention, search, seizure,
and use of force. These powers are subject to restrictions to safeguard individuals from
misuse of police powers leading to excessive use of force, illegal detentions, custodial torture,
and abuse of authority.[6] The Supreme Court has also issued various guidelines to prevent
such arbitrary exercise of police powers.4,[7] The Bill amends the provisions related to
detention, police custody and use of handcuffs, which may present some issues.

Procedure of police custody altered

The Constitution and CrPC prohibit detention in police custody beyond 24 hours.[8] The
Magistrate is empowered to extend it up to 15 days in case investigation cannot be completed
within 24 hours. He may further extend judicial custody beyond 15 days if he is satisfied that
adequate grounds exist to do so. However, overall detention cannot exceed 60 or 90 days
(depending on the offence). The BNSS modifies this procedure. It adds that the police
custody of 15 days can be authorised in whole or in parts at any time during the initial 40 or
60 days out of the 60 or 90 days period. This could lead to bail being denied during this
period if the police argue that they need to take the person back in police custody.

This differs from laws like the Unlawful Activities (Prevention) Act, 1976, where police
custody is limited to the first 30 days.[9] The Supreme Court has held that as a general rule,
police custody should be taken in the first 15 days of remand.[10] The extension of 40 or 60
days should be utilised as an exception. The BNSS does not require the investigating officer
to provide reasons when seeking police custody for someone in judicial custody. The
Standing Committee (2023) recommended that the interpretation of this clause be clarified.
[11]

Powers of detention amended

Article 22 of the Constitution requires a person in police custody to be produced before a

judicial Magistrate within 24 hours. 8 The CrPC also provides this. The BNSS retains this
provision. It adds that police may detain or remove any person who resists, refuses or ignores
directions given by an officer to prevent cognisable offences. Post detention, the detained
person may either: (i) be produced in front of a Magistrate, or (ii) in the case of petty cases,
be released when the occasion is past. The phrase ‘occasion is past’ is not defined. The
Standing Committee (2023) recommended establishing a clear timeframe for detention in
such circumstances.11

The power to use handcuffs may infringe on the accused’s personal liberty

The BNSS provides for the use of handcuffs during arrest. Handcuffs may only be used to
arrest: (i) a habitual or repeat offender who has escaped custody, or (ii) a person accused of
offences such as rape, acid attack, organised crime, economic offences, acts endangering
sovereignty, unity and integrity of India. The provision contravenes judgements of the
Supreme Court and guidelines of the National Human Rights Commission.[12]

The Supreme Court has held that the use of handcuffs is inhumane, unreasonable, arbitrary,
and repugnant to Article 21.[13] In extreme cases, when handcuffs have to be used, the
escorting authority must record reasons to do so. 13 Further, it has ruled that no prisoners
undergoing trial can be handcuffed without obtaining judicial consent.[14] The Court has
therefore left the discretion to decide use of handcuffs on the trial court. 12 The Standing
Committee (2023) recommended excluding economic offences from the offences where
handcuffs may be used.11 A dissent note in the Committee report states that handcuffs should
be used only if there is a risk of violence or the suspect is likely to escape custody.11
Rights of the accused

Scope of mandatory bail limited in case of multiple charges

As per the CrPC, if an undertrial has served half the maximum imprisonment for an offence,
he must be released on a personal bond. This provision does not apply to offences punishable
by death. The BNSS retains this provision and adds that first-time offenders get bail after
serving one-third of the maximum sentence. However, it adds that this provision will not
apply to: (i) offences punishable by life imprisonment, and (ii) where an investigation,
inquiry or trial in more than one offence or in multiple cases are pending. Since chargesheets
often list multiple offences, this may make many undertrial prisoners ineligible for mandatory
bail.

For example, in 2014, the Supreme Court held that illegal mining constitutes an offence
under the Mines and Minerals (Development and Regulations) Act, 1957, and also qualifies
as theft under the IPC.[15] Similarly, rash and dangerous driving is a punishable offence
under the Motor Vehicles Act, 1988 as well as the IPC.[16] Persons accused in such cases
will not be eligible to obtain mandatory bail.

Bail allows accused to be released from custody while awaiting trial, provided they meet
certain conditions.[17] Detention before conviction is done to ensure easy availability of an
accused for trial and there is no tampering with evidence. If these are ensured, detention is
not needed. The Supreme Court has held that bail is the rule and incarceration is the
exception.[18] Further, it has observed that undertrial prisoners should be released at the
earliest and those who cannot furnish bail bonds due to poverty are not incarcerated only for
that reason.[19]

Scope for plea bargaining may be limited

Plea bargaining is an agreement between the defence and prosecution where the accused
pleads guilty for a lesser offence or a reduced sentence. Plea bargaining was added to the
CrPC in 2005.3 It is not allowed for offences punishable with a death penalty, life
imprisonment, or imprisonment term exceeding seven years. The CrPC does not permit a
bargain to be struck for a lesser offence or for compounding the offence – the accused will be
considered to have confessed and been convicted of the offence. The BNSS retains this
provision. This limits plea bargaining in India to sentence bargaining, that is getting a lighter
sentence in exchange for the accused’s guilty plea.
Further, the BNSS adds a stipulation that the accused must file an application for plea
bargaining within 30 days from the date of framing of charge. This time limit can impact the
effectiveness of plea bargaining by limiting the opportunity for seeking a reduced sentence.

Congestion in the prison system

Restricting bail, and limiting the scope for plea bargaining could deter decongesting of
prisons. As of December 2021, India’s prisons housed over 5.5 lakh prisoners, with an
overall occupancy rate of 130%.20 In 2021, under-trials constituted 77% of the total prisoners
in India.[20] Approximately 30% of under-trial prisoners were in detention for a year or
more.20 About 8% of under-trial prisoners were in detention for three years or more.20

Successors deposing for transferred or retired officers

The BNSS states that if an officer who prepared a document or report for an inquiry or trial is
unavailable, the Court will ensure that their successor officer deposes on the document.
Officers covered by this provision include public servants, medical officers, and Investigating
Officers (IOs). Reasons for unavailability include: (i) death, (ii) transfer, (iii) retirement, and
(iv) likeliness to cause delay. While allowing successor officers to depose before the Court
may help expedite cases, it may contradict the normal rules of evidence.

It may be argued that statements recorded by an IO must be provided by the same officer, as
the successor may not be able to attest for the investigation undertaken by the IO. The
Standing Committee on Home Affairs (2023) noted that IOs possess crucial knowledge of the
case under investigation.11 Their cross-examination is significantly valuable, especially when
documents prepared by them are used as evidence. 11 The Committee recommended removing
IOs from this provision.11 A dissenting member stated that all officers should be available for
cross-examination, with the exception only in case of the officer’s death.11

Safeguards on attachment of property

Property that is derived or obtained, directly or indirectly, as a result of criminal activity is

referred to as proceeds of crime. The CrPC provides police the power to seize property when
it is: (i) alleged or suspected to have been stolen, or (ii) found under circumstances creating
suspicion of commission of any offence. This is applicable only to movable properties.[21]
The BNSS extends this to immovable properties as well. Provisions on the treatment of
seized property in BNSS differ from the provisions in the Prevention of Money Laundering
Act, 2002 (PMLA). The PMLA provides for confiscation of property derived from money
laundering in relation to specified offences.[22]

Certain safeguards provided under PMLA are not available under the BNSS. Under PMLA,
attachment is provisional in nature for up to 180 days. 22 A notice period of at least 30 days
needs to be given to show cause why an attachment order must not be made. 22 During the
attachment, enjoying of immovable property cannot be denied. 22 The BNSS does not provide
a time limit up to which property can be attached. It provides a show cause notice of 14 days
to be given to the accused.

Overlaps with existing laws

Over the years, special laws have been enacted to regulate various aspects of criminal
procedure. However, the BNSS retains some of the procedures.

Data collection for criminal identification

In 2005, the CrPC was amended to empower a Magistrate to obtain handwriting or signature
specimens from arrested persons.[23] The Bill expands this provision by empowering the
Magistrate to also collect finger impressions and voice samples. It also allows collection of
this data from persons who have not been arrested under any investigation. The Criminal
Procedure (Identification) Act, 2022 allows a broader range of data to be collected including
fingerprints, handwriting, and biological samples.[24] Such data may be collected from
convicts, those who have been arrested for an offence, or non-accused persons as well, and
can be stored up to 75 years. With a broader law recently being passed to allow for data
collection of criminals and accused, the need for retaining data collection provisions and
expanding on them in the BNSS is unclear. The constitutional validity of the 2022 Act is
under consideration before the Delhi High Court.[25]

Maintenance of senior citizens

Under CrPC, a Magistrate may order a person having sufficient means to make a monthly
allowance for the maintenance of their father or mother (who are unable to maintain
themselves). If the order is not followed, the Magistrate may issue a warrant for levying the
amount due and sentence the person to imprisonment of up to a month or till the payment is
made. The BNSS retains this provision which duplicates the provisions of the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007. That Act requires state governments
to constitute Maintenance Tribunals to decide on the maintenance payable to senior citizens
and parents.[26] The Tribunal may issue a warrant for levying the amount due, and sentence
the person to imprisonment of up to a month or till the payment is made. That Act
specifically overrides all other laws.

Public order functions retained in BNSS

The CrPC provides for the procedure for investigation and trial for offences. It also contains
provisions for security to maintain peace, and maintenance of public order and tranquillity. It
contains provisions that allow a District Magistrate to issue orders needed to preserve public
order. The BNSS has retained these provisions (in separate chapters). Since trial procedure
and maintenance of public order are distinct functions, the question is whether they should be
included under the same law or if they should be dealt with separately. As per the Seventh
Schedule of the Constitution, public order is a state subject.[27] However, matters under the
CrPC (prior to the commencement of the Constitution fall) under the Concurrent List.[28]

Recommendations of various Committees

Table 1 provides a list of key recommendations of various Committees and Law Commission
constituted by the central government to advise the government on criminal reforms.

Table 1: Key recommendations of various Committees and the Law Commission on

CrPC

Recommendations Whether incorporated in the Bill

Broader reforms in the criminal justice system

Constitute a statutory committee to No.

prescribe sentencing guidelines under
the Chairmanship of a former
Supreme Court judge or Chief Justice
of a High Court.[29]

Rights of the accused as recognised by No.

Recommendations Whether incorporated in the Bill

the Supreme Court be included in

CrPC.30

Procedure when investigation cannot No. The maximum period of police custody is 15
be completed in 24 hours (CrPC days. It may be spread over: (i) 60 days where the
s.167) - Maximum period of police offence is punishable with at least 10 years of
custody to be 30 days in respect imprisonment, or (ii) 40 days for any other offence.
offences punishable with sentence (BNSS Clause 187).
more than seven years.29

Provide compensation to people who No.

are wrongfully accused.[30]

Arrest[31]

An arrested person must be examined Partly. Does not provide for a medical examination
by a medical officer after arrest (CrPC
s.54). The officer must record any every 48 hours of detention.
injuries on the person and the
approximate time of such injuries. (BNSS Clause 53).
The examination must be repeated
every 48 hours during the detention.

Statements/ Confessions to Police

Statements to police (CrPC s.162) - No. Original provision retained in BNSS Clause
Statements to be read over and signed 181.
by the statement maker and a copy
given to him. Such statements can
be used for contradicting and
Recommendations Whether incorporated in the Bill

corroborating the statement maker.30

Bail[32]

Define bail as the temporary release of Clause 479 of BNSS provides for a different
a person suspected or accused of a definition for bail.
crime, with a guarantee that they will
appear in court at a later date.

Person arrested to be informed of No. Original provision retained in BNSS (Clause 47).
grounds of arrest (CrPC s.50) - cannot
be meaningful unless the arrestee is
informed in writing in a language he
understands.

Upon postponement or adjournment of No. Original provision retained in BNSS

the trial, the Court will release the
accused on bail or remand him to (Clause 346)
further custody and record the reasons
CrPC s.309 (2).

When bail is denied, the court must No.

provide a brief explanation for the
refusal.

Notes: This Table highlights some important recommendations made by various committees and Law
Commission on CrPC. It is not an exhaustive list.

Sources: See endnotes; PRS.

Drafting Issues

Table 2 provides an illustration of drafting issues in the Bill.

Table 2: Drafting Issues in the BNSS

Drafting issues

Clause Issue

127 Refers to “seditious matters” in BNS (clauses 150, 195, 297), despite the word
sedition not appearing in BNS.

187 (5) There is a typographical error where the word ‘Policy’ has been used in place of
‘Police’ in the newly added proviso.

217 States that Court may not take cognizance of offence under Chapter VI of BNS
without prior sanction of government. Chapter VI of BNS contains offences
against the human body such as assault, kidnapping and murder. The
corresponding section in CrPC referred to Chapter VI of IPC (offences against the
state) which is Chapter VII of BNS.

482 Bail conditions refer to Chapters of BNSS. These should refer to the same
Chapters of BNS.

125 Bond to maintain peace refers to Chapter VIII of BNS (which contains offences
related to the military). This should refer to Chapter IX of BNS (offences against
public tranquillity).

377 Clause is missing. Clause 376 is followed by Clause 378

372 BNS replaces references of unsound mind with mental illness. Clause 372 in
BNSS refers to accused of sound mind.

234, 243 The Supreme Court struck down ‘adultery’ as an offence in the IPC. The BNS
does not have adultery as an offence. However, illustrations in BNSS treat
adultery as an offence.

532 Refers to ‘Code’ instead of ‘Sanhita’ in BNSS.

Sources: The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the
Bharatiya Sakshya Bill, 2023; PRS.
 PRIMACY TO SURAKSHA:
UNDERSTANDING THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023.

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.

Key Changes brought by the Bharatiya Nagarik Suraksha Sanhita, 2024

1. 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.

2. 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.
3. 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.

4. 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.

5. 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.

6. 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.
 7. 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.

8. 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.

9. 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.

10. 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.

11. 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. Some of the commendable additions, deletions are-

ADDITIONS
1. 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.

2. Section 105 of the BNSS makes the videography of search and seizure, and the
signing of it by the witness mandatory.

3. Section 107 provides for conducting trials and pronouncing judgments ex parte
against absconding offenders evading trial.

4. Section 173 provides for registering First Information Report (FIR) electronically,
signed by the person giving it within three days.

5. Section 176 mandates forensic investigation for offences punishable with

imprisonment of 7 years or more.

6. Section 185 mandates the audio-video recording of a search without a warrant.

 7. 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.

8. Section 346 provides that a trial or inquiry shall be on a daily basis.

9. Section 530 of BNSS also provides for all trials, inquiries and proceedings held in
electronic modes. Chapters VI, VII, and VIII provide for the attachment of the
accused’s property in cases of financial offences. Provisions contained in Chapters
XVII, XIX, XX, set timelines for different investigatory stages to address delay in
procedure.

DELETIONS
Provisions contained under the CrPC, dealing with ‘Metropolitan areas’ and ‘Metropolitan
Magistrates’ have been omitted from the BNSS. The post of Judicial Magistrate of third-class
and Assistant Sessions Judge was omitted to bring uniformity. 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.

https://www.scconline.com/blog/post/2024/05/05/bnss-that-is-to-replace-crpc-explained-
with-key-highlights/
 MAJOR CHANGES UNDER BHARTIYA NAGARIK SURAKSHA SANHITA, 2023
Source: The Economic Times

Introduction
Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is one of the three criminal law bills
introduced by the Union Government to replace the Criminal Procedure Code, 1973
(CrPC). BNSS was passed in Lok Sabha on 20th December 2023 and in Rajya Sabha on
21st December 2023. On 25th December 2023, the President gave her assent to the three new
criminal code bills.

What are the Major Changes Introduced in the Bhartiya Nagarik Suraksha Sanhita, 2023?
The BNSS retains most of the provisions of the CrPC. Some of the major changes include:
 Detention of undertrials:
o As per the provisions of CrPC, if an accused has spent half of the maximum period of
imprisonment in detention, he must be released on personal bond. This does not apply to
offences punishable by death.
o The BNSS further adds that this provision will also not apply to offences punishable by
life imprisonment, and persons against whom proceedings are pending in more than one
offence.

 Medical examination:
o The BNSS provides that any police officer can request for the medical examination of the
accused in certain cases, including rape cases.
o Whereas CrPC allowed such examination by a registered medical practitioner on
the request of at least a sub-inspector level police officer.

 Forensic investigation:
o The BNSS mandates forensic investigation for offences punishable with at least seven
years of imprisonment. In such cases, forensic experts will visit crime scenes to collect
forensic evidence and record the process on mobile phone or any other electronic device.
If a state does not have a forensics facility, it shall utilize such facility in another state.

 Signatures and finger impressions:

o The CrPC empowers a Magistrate to order any person to provide specimen signatures or
handwriting.
o The BNSS expands this to include finger impressions and voice samples. It allows these
samples to be collected from a person who has not been arrested.

 Timelines for procedures:

o The BNSS prescribes timelines for various procedures. For instance, it requires medical
practitioners who examine rape victims to submit their reports to the investigating officer
within seven days.
o Other specified timelines include giving judgement within 30 days of completion of
arguments (extendable up to 45 days), informing the victim of progress of investigation
within 90 days, and framing of charges by a sessions court within 60 days from the first
hearing on such charges.
 Hierarchy of Courts:
o The CrPC empowers the state governments to notify any city or town with a population of
more than one million as a metropolitan area. Such areas have Metropolitan Magistrates.
o The BNSS removes the classification of metropolitan areas and Metropolitan
Magistrates.

 Use of Handcuffs:
o The BNSS permits the use of handcuffs in various cases, including organized crime, which
contradicts directives laid down by the Supreme Court.

 Police Custody:
o The BNSS allows up to 15 days of police custody, which can be authorized in parts
during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. This may
lead to denial of bail for the entire period if the police has not exhausted the 15 days
custody.

 Bail:
o The CrPC provides for bail for an accused who has been detained for half the maximum
imprisonment for the offence.
o The BNSS denies this facility for anyone facing multiple charges. As many cases
involve charges under multiple sections, this may limit such bail.

 Terminology:
o It replaces out-dated terminology with more people friendly language, reflecting a
humane approach.
 An Exhaustive Comparative Analysis of Code of Criminal
Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023
In this article, the author dissects the statutory changes done to The Code
of Criminal Procedure, 1973 which will be rechristened as The Bharatiya
Nagarik Suraksha Sanhita, 2023.

Bharatiya Nagarik Suraksha Sanhita, 2023

Sunishth Goyal

Introduction
11th August, 2023 marked a historic day as several speculations regarding the introduction of
new criminal major laws were finally laid to rest. On this date, the Hon’ble Home Minister of
India, Shri Amit Shah introduced the three bills to replace the existing IPC, CrPC and IEA.
These bills are called The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha
Sanhita, 2023; and The Bharatiya Sakshya Bill, 2023 respectively. All the three laws have
been referred to relevant Parliamentary Standing Committee. Although, the bills are yet to be
enacted and subsequently notified, they have become a major point of debate and discussion
already. While some are applauding this move to decolonise the existing criminal
infrastructure, many others have questioned the move as being abrupt and without proper
public consultation. The majority of the current discourse is focusing upon the IPC or the
upcoming Bhartiya Nyaya Sanhita.

In this article, the author would dissect the statutory changes done to The Code of Criminal
Procedure, 1973 which will be rechristened as The Bharatiya Nagarik Suraksha Sanhita,
2023. Hereinafter referred as CrPC and BNSS respectively in this piece.

The scope of the article would be restricted to only substantial changes made in criminal
procedure law by doing an exhaustive comparative analysis of provisions from CrPC and
BNSS. Any incidental changes will not be exhaustively listed such as renumbering of
sections, incorporation of amendments to 1973 code in the main text, substitution of
reference to IPC as reference to Bhartiya Nyaya Sanhita and enhancement of fines. The piece
consists of five parts i.e., Introduction, Positive Changes, Inadvertent Errors, Negative
Changes, and Concluding Remarks.

Any errors or omissions are inadvertent and the sole responsibility of the author.

Positive Changes
Contrary to popular discourse, several positive changes have been made under the newly
enacted BNSS. The author would classify them under five broad categories even though there
might be overlaps where one provision can be slotted into multiple categories.

A. Removal of Archaic and Insensitive Terms

Unlike several justifiable critiques against the banality of changing names, sometimes the
exercise can be a marvelous step against stigmatisation. One of the most praiseworthy steps
in the BNSS is the replacement of archaic and insensitive terminology such as ‘lunatic
person’ or ‘person of unsound mind’. All such references have been replaced with more
sensitive terms such as ‘having intellectual disability’ or ‘person with mental illness’. This
can be seen in Section 219(1)(a) of the BNSS corresponding to Section 198 of CrPC. Similar
change has been incorporated in Section 357 of BNSS corresponding to Section 318 of CrPC.
Most noticeably, Chapter XXV or 25 of CrPC [Provisions as to Accused Persons Of Unsound
Mind] has now been introduced as Chapter XXVII or 27 of BNSS [Provisions as to Accused
Persons With Mental Illness] where all the concerned sections have been amended suitably
with references to Mental Healthcare Act 2017. The term ‘lunatic asylum’ has been suitably
changed to ‘mental health establishment’.

Some other archaic references have been removed such as the non-existent category of
‘Assistant Sessions Judges’ particularly by deletion of Section 10. Similarly, all references to
the word ‘pleader’ have been rightly substituted for the word ‘advocate’. Another such term
which has not been retained is ‘thug’ and references to crimes by ‘thugs’ have been removed
such as Section 201 of BNSS which directly corresponds to Section 181 of CrPC.

But one such deviation which will require actual changes on the ground is removal of all
references to Metropolitan Area/magistrates. As per Section 8 of CrPC, erstwhile presidency
towns of Bombay, Calcutta and Madras and the city of Ahmedabad were referred as
‘metropolitan areas’. Any other big cities could also be classified similarly by the concerned
governments. One of the key impacts of the same is that judicial magistrate in these areas are
known as ‘Metropolitan Magistrates’. As per the new BNSS, such a superfluous distinction
has finally been removed. This would mean that a judicial magistrate serving in any part of
the country will be known as such and not called a ‘metropolitan magistrate’ depending on
the city. BNSS also does away with an obsolete provision i.e., Section 153 of CrPC where
police were granted power to enter and search any place without a warrant to inspect or
search for accuracy of weights and measuring instruments.

Another regressive provision has been amended whereby under Section 64 of CrPC,
summons could only be served to an adult ‘male’ member of the family. Similarly, in Section
432 of CrPC, suspension/remission petitions by only ‘males’ over the age of 18 were subject
to higher scrutiny. Now as per Sections 66 and 474 of BNSS respectively, the word ‘male’
has been rightfully dropped.

B. Clarity in some procedures

The new code also significantly clarifies and amends the stance to be used viz-a-viz
Proclaimed offenders. Earlier as per Section 82(4) of CrPC as added to the code by 2005
Amendment, someone can be declared as a ‘Proclaimed offender’ for only nineteen specified
offences under IPC namely, “302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399,
400, 402, 436, 449, 459 or 460”. This led to situations wherein someone repeatedly evading
legal processes of summons/warrant for any other offence under general penal code of IPC or
any other special law could not be declared as a Proclaimed offender. Now, by removing this
seemingly arbitrary list of sections, anyone accused of an offence with more than 10 years of
imprisonment or other special offences could be declared a proclaimed offender. Similarly, a
new section 356 has been added to the BNSS which provides a detailed procedure for
conducting a trial/inquiry in the absence of a person declared as ‘Proclaimed offender’. While
one may doubt the need for such harsh measures as declaration of a person as a proclaimed
offender, but for the time being the code has at least clarified the procedural application of
the same.

By adding a clear explanation to Section 516 of BNSS corresponding to Section 468 of CrPC,
disputes regarding computation of period of limitation have finally been settled. Another
section which has been clarified is Section 462(1) of BNSS corresponding to Section 421(1)
of CrPC. This section provides for coercive actions against people fined for offences. Now
they can only be taken against people who haven’t paid such amount by addition of the words
“but no such payment has been made”.

In the new chapter governing ‘Bail’ i.e., Chapter XXXV, a new section 479 has been added
right in the beginning to clarify the scope of certain words in the law. This section for the
very first time lucidly explains the concepts of ‘Bail’, ‘Bond’ and ‘Bail Bond’. However,
according to the author even the terms such as ‘Surety’ should also have been explained
here.

While the practice of capital punishment or death sentence by itself is inhumane and out of
place in several democracies, Indian criminal justice system still recognises the same. In this
regard, the procedural code has finally prescribed a detailed procedure for ‘Mercy Petitions in
Death Sentence cases’ by the addition of Section 473.

C. Progressive Safeguards and/or changes

BNSS is also keeping with the times ahead by incorporating changes with respect to use of
forensic science in investigation of crimes. By amending Section 311A of CrPC or Section
349 of BNSS, now even finger prints and voice samples may also be taken as compared to
just specimen signatures or handwriting samples in the earlier iteration of the code. Earlier
only the central government could notify scientific experts for the purposes of Section 293(4)
(g) of CrPC, but now state governments may also do the same as per the revised Section
329(4)(g) of BNSS.

In this line, perhaps the most important change of the entire law has been incorporated in
Section 176 of BNSS or Section 157 of CrPC. By adding a new subsection (3), when the
police receive information about commission of a crime punishable for more than 7 years, it
is mandatory for a forensic team to visit the scene and collect samples as well as cause
videography of the process.

While the term ‘victim’ was defined for the first time in CrPC in 2009, many safeguards were
still lacking to ameliorate their situation. BNSS takes this initiative a step forward in the right
direction by incorporating some changes with regards to the same. For instance, a proviso has
been added to Section 232 of BNSS corresponding to Section 209 of CrPC wherein during
the committal proceedings an application filed by the victim shall also be forwarded to the
Sessions Court. Similarly, copies of documents such as police report supposed to be supplied
under Section 207 of CrPC or Section 230 of BNSS shall also be supplied to the victim or
their advocates.

Earlier in complaint cases the accused would be discharged when a complainant was absent.
Now the revised Section 272 of BNSS corresponding to Section 249 of CrPC, gives an
opportunity for complainant to be adequately represented as the magistrate can give 30 days’
time to the complainant to be present before discharging the accused. Similarly, while
considering an application for withdrawal from prosecution, victim must be heard by the
court. This has been done adding a proviso to Section 360 of BNSS corresponding to Section
321 of CrPC.

Apart from victims, even accused have been given an opportunity of being heard in
complaint cases. By adding a new proviso to Section 223 of BNSS or Section 200 of CrPC,
now accused must be heard before cognizance can be taken in complaints before magistrates.
A new clause (ii) has been added to Section 193(3) of BNSS corresponding to Section 173(2)
of CrPC wherein police is mandated to inform informant/victim about investigation’s
progress within 90 days which can be done electronically as well.

Another significant change done to the procedural law is the addition of Section 398 whereby
all state governments are directed to notify a witness protection scheme. However, as per the
author, the new code could have incorporated some guidelines as an interim measure within
BNSS itself rather than leaving it entirely to individual states’ discretion. Guidance could
have been taken from Ministry of Home Affairs Draft Guidelines and Hon’ble Supreme
Court of India’s verdicts such as Mahender Chawla vs. Union of India, (2019) 14 SCC 615.

By the addition of two new provisos to Section 183(6)(a) of BNSS corresponding to Section
164(5A)(a) of CrPC, additional safeguards have been provided for recording of statements by
a judicial magistrate. Firstly, if a woman is giving such a statement, it should be record by a
female judge. Secondly, when a person is accused of serious offences, i.e., with imprisonment
of more than 10 years, such a person’s statement must be recorded by the magistrate.

The proviso giving safeguards for women arrestees under subsection (1) of Section 43 of
BNSS corresponding to Section 46 of CrPC has been expanded. Now, information regarding
such woman’s arrest needs to be given to her relatives or friends.

Another such safeguard for anyone who is arrested pursuant to a warrant outside the
jurisdiction where warrant was issued, is the addition of subsection (2) to Section 82 of BNSS
corresponding to Section 80 of CrPC. By this change, information about such arrested person
needs to be given to authorities in the district where the person usually resides.

A good change has been brought by adding a proviso to Section 190(1) of BNSS
corresponding to Section 170(1) of CrPC. Now, if after completion of investigation but
before submission of police report, the police are not mandated to arrest an accused simply to
secure his appearance before a judicial magistrate. This change seems to be in line with the
landmark verdict of the Hon’ble Supreme Court of India in Satender Kumar Antil vs CBI,
(2022) 10 SCC 51.

A new provision i.e., Section 483 has been added to BNSS in the Chapter governing grant of
Bail. This was earlier seen as Section 437A as added by Arunachal Pradesh State
Amendment. As per this, before the trial or appeal concludes, the accused shall be required to
execute a bond to appear before next court. This could have a positive impact as the persons
so concerned need not be immediately arrested to secure their presence before court.

BNSS has also altered the scope of grant of anticipatory bail. Some provisions which may
have been seen as hinderances to the effective grant of anticipatory bail have been removed.
Particularly, proviso to Section 438(1), Sections 438(1A) and 438(1B) of CrPC have now
been removed and do not find a mention in the revised Section 484 of BNSS. These
provisions had onerous conditions such as giving “the Public Prosecutor a reasonable
opportunity of being heard” while hearing the application or securing the physical presence
of an accused seeking anticipatory bail. While, in certain cases it may be necessary to send
such information to the prosecutor or to secure the physical presence, but it should not have
been mandatory as was the case in CrPC. A middle path could have been the substitution of
the word ‘shall’ for ‘may’ in both these removed provisions.

Changes have also been incorporated under Section 481 of BNSS corresponding to Section
436A of CrPC. By adding a proviso to subsection (1) now a first-time offender pending trial
 can be eligible for mandatory bail after undergoing 1/3 rd of the punishment as compared to
1/2 of punishment as provided earlier. To make this right effective, subsection (3) has been
added to Section 481 wherein it will be duty of jail superintendent to apply for release of
eligible prisoners.

An important safeguard has been provided for by the addition of Section 105 to the BNSS
wherein police conducting search under section 185 (erstwhile section 165 of CrPC) are
mandated to record the proceedings of such search electronically and forward the same to the
concerned magistrate. This would ensure that no excesses are carried out while search
operations are conducted by the police. Similarly copies of any records made during such
search under Section 185 of BNSS now need to be sent to the concerned magistrate within 48
hours as per Section 185(5). Earlier, no such time limit was provided.

A humane change has also been brought by adding a proviso to Section 195(1) of BNSS
corresponding to Section 175(1) of CrPC regarding power of police to summon people. As
per this proviso, now people belonging to vulnerable categories will not be mandated to
“attend at any place other than the place where they reside”.

The new law also seeks to increase the ambit for provision of legal aid. Section 304(1) of
CrPC earlier provided for legal aid “in a trial before the Court of Session”. However, the
revised section 341(1) of BNSS has replaced this with “in a trial or appeal before a Court”
which significantly increases the ambit of the same. In the author’s opinion, the drafters
missed an opportunity to bring in comprehensive reforms to legal aid system in India. They
could have incorporated some of the suggestions mentioned in reports by NALSA, Law
Commission of India, and other reports, most notably the contribution by two of the most
preeminent retired judges of Indian Supreme Court such as Hon’ble Mr. Justice P.N.
Bhagwati and Hon’ble Mr. Justice V.R. Krishna Iyer.

The code is also making some other humane changes to show leniency to first-time offenders
in less serious offences and simultaneously address the issue of rising population of under-
trial prisoners. For instance, in Section 293 of BNSS corresponding to Section 265E of CrPC
relating to disposal of case in plea bargaining procedure, punishments have been significantly
reduced for first-time offenders. Now they can be punished to 1/4 th and 1/6th of minimum
punishment as compared to 1/2 and 1/4 th punishment respectively under Sections 293(c) and
293(d) of BNSS.

D. Electronic/Digital alternatives for existing processes

In line of our commitment towards a Digital India, a landmark new Section 532 has been
added to the BNSS. As per the same, all trials, inquires and proceedings, recording of
evidence therein, examinations of parties, issuance, service and execution of summons and
warrants, and several other processes can now be done electronically.

Some of the specific section-wise changes implementing this are:

 In the proviso provided to Section 64(2) of BNSS as corresponding to Section 62 of CrPC,

summons can now be served digitally as well. As per Sections 70(3) and 71(2) of BNSS,
electronically served summons and its digital communication would also be considered valid.

 Issuing summons/warrants under ‘Issue of process’ as given in Section 227 of BNSS

corresponding to Section 204 of CrPC.
 Notices by executive magistrates under Section 134 of CrPC and now Section 153 of BNSS
can be served online.

 Supply of police report and other investigation related documents under Sections 173(7) and
207 of CrPC can be done digitally as per Sections 193(8) and 230 of BNSS

 Order of confirmation of Death Sentence under Section 412 of BNSS or Section 371 of
CrPC.

 Reading of Charges to the accused under Sessions Trial as per Section 251(2) of BNSS
corresponding to Section 228(2) of CrPC.

As per the changes made to Sections 254 and 265 of BNSS as corresponding to Sections 231
and 242 of the CrPC, now prosecution evidence can also be recorded via digital means.
However, curiously enough, the same explicit courtesy has not been extended to the
corresponding section for defence evidence. While one may make the claim that the general
explanation under Section 532 encompasses all such processes including ‘defence evidence’
already, then why were explicit changes needed only for ‘Prosecution Evidence’?

Furthering the noteworthy cause of ease of investigation, statements by police during

investigation under Section 157 of CrPC, may be recorded electronically by phone as well.
This has been done adding a proviso to the same effect to the corresponding Section 176(1)
of BNSS. Even FIR’s can be legally registered by electronic communication as per addition
of clause (ii) to Section 173(1) which corresponds to Section 154 CrPC.

Another change which can be observed is that Section 182 of CrPC which discussed the
procedure regarding “Offences committed by letters etc.”, has now been suitably modified to
include ‘electronic communication’ as well as per Section 202 of BNSS. While considering
the custody and disposal of perishable property during trial, electronic records now need to be
maintained of the same as per the revised Section 499 of BNSS or Section 451 of CrPC.

E. Expediting processes and/or making processes time-bound

In order to expedite trials, a very timely provision has been added by way of Section 336 of
BNSS. Whenever a report/document prepared by a public servant, scientific expert, or
investigating officer is supposed to be used as evidence in a court, the maker of such
document needs to testify before such court. However, due to unavoidable circumstances
such as death, retirement, inordinate delay etc. in getting such person, the court can secure the
attendance of the successor officer of such person. Another step taken to expedite trials is that
now as per revised Section 274 of BNSS or Section 251 of CrPC regarding summons cases, a
magistrate after recording reasons can now discharge the accused in case of groundless
accusations.

In multiple instances, the role of other laws and agencies has been explicitly recognised by
BNSS. For instance, earlier as per Section 268(2) of CrPC only state government could have
passed a notification regarding prisoners, but now as per the revised corresponding Section
303(2) of BNSS even “Central government in cases instituted by its central agency” can do
the same.

The procedural law is finally giving recognition to the fact that special judges equivalent to
(Additional) Sessions Judges can be appointed under several legislations such as NDPS Act
1985, POCSO Act 2012 etc. In this line, Section 249 of BNSS corresponding to Section 226
of CrPC which relates to ‘opening case for prosecution’ in a sessions trial, mentions “any
other law for the time being in force”. Similarly, the exact same phrase has also been added
to Section 306(2) of CrPC or the revised Section 343(2) of BNSS to signify that special
judges could have been appointed under other laws as well. In Sections 418 and 419 of BNSS
corresponding to Sections 377 and 378 of CrPC, references to agency under ‘Delhi Special
police Establishment Act, 1946’ have been removed and replaced by ‘any agency under any
Central Act’.

Many proceedings under this code, both judicial and executive, have now been mandated to
become time-bound by providing maximum time limits in which they must be done. Some of
the specific section-wise changes implementing this are:

 In proceedings for ‘Conditional order for removal of nuisance’ under Section 152 of
BNSS or 133 of CrPC, such proceedings are now mandated to be completed within 90
days as per a new proviso to Section 157 of BNSS as corresponding to Section 138 of
CrPC.

 By amending erstwhile section 155 or the new section 174 of BNSS, police is required
to send information regarding non-cognizable offences to the concerned on a
fortnightly basis.

 Medical examination of a victim of rape under new section 184(6) corresponding to the
old section 164A(6) has been time bound by substituting the words ‘within seven days’
instead of ‘without delay’.

 Police investigation during trials under section 173(8) of CrPC or Section 193(9) needs
to be completed within 90 days.

 Inquest proceedings under Section 194 of BNSS or Section 174 of CrPC, police is
required to send a report within 24 hours to the concerned District/Executive
magistrate.

 ‘Committal proceedings’ by Magistrate to Sessions court under Section 232 of BNSS

corresponding to Section 209 of CrPC have been mandated to be completed within 90
days from date of taking cognizance. This can be extended to a maximum of 180 days
by providing reasons in writing.

 As per Section 230 of BNSS corresponding to Section 207 of CrPC, copy of police
report and other documents now need to be supplied to the accused within 14 days of
date of production/appearance. Earlier there was no time limit for the same as the then
section 207 simply mentioned ‘without delay’.

A proviso added to Section 218(1) of BNSS which corresponds to Section 197(1) of CrPC
i.e., ‘Prosecution of Judges and Public Servants’ is quite noteworthy as it seeks to reduce the
time for such prosecutions. As per this proviso, if the concerned government fails to give a
decision on the requisite sanction within 120 days, it shall be treated as ‘deemed sanction’
given by the government.

In both Sessions and Magistrate trials, certain processes have been made time-bound by the
new code of BNSS. If the accused wishes to be discharged in a Sessions trial as per Section
250 of BNSS corresponding to Section 227 of CrPC, he must prefer an application for the
same within 60 days of committal. However, in the author’s opinion this should have been
clarified by explicitly providing that discharge will not take place if the charges have already
been framed.

Even the charges under Sessions Trial and Magistrate Trial in warrant cases now need to be
framed within 60 days of first hearing on charge as per the addition to Section 251(1)(b) and
263(1) of BNSS as corresponding to Section 228(1)(b) and 240(1) of CrPC. As per Section
258 of BNSS corresponding to Section 235 of CrPC, after completion of arguments, a
judgment of acquittal or conviction by Session Court has to be given within 30 days which
can be extended to 60 days only by giving special reasons.

A pertinent addition to shorten some trial proceedings is the addition of subsection (7) in
Section 269 of BNSS corresponding to Section 246 of CrPC wherein prosecution evidence
can be closed if the witnesses do not turn up despite taking all reasonable measures.

An interesting change has been incorporated to expedite trials under Section 242(1) of BNSS
as corresponding to Section 219(1) of CrPC. Earlier, for offences of the same kind within a
span of a year given certain circumstances, a person could be charged and tried for a
maximum of ‘three’ offences at once. This limit has now been raised to ‘five’.

As per a proviso added to Section 316(4) of BNSS corresponding to Section 281(5) of CrPC,
when a magistrate examines an accused through electronic means, his signatures shall be
taken within 72 hours. If any party be it defence or prosecution, needs to admit or deny the
genuineness of a document, they must do so within 30 days of supply of the said document as
per the revised Section 330(1) of BNSS corresponding to 294(1) of CrPC.

A noteworthy change done to the procedure to shorten the trial duration is the addition of
sub-clause (b) to the proviso under Section 346(2) of BNSS corresponding to Section 309(2)
of CrPC.

The said clause is being reproduced from BNSS 2023: “where the circumstances are beyond
the control of a party, not more than two adjournments may be granted by the Court after
hearing the objections of the other party and for the reasons to be recorded in writing”. It has
often been felt that undue adjournments taken in a trial often leads to significant delays. Now,
some accountability has been sought to be fixed by disallowing unwarranted adjournments.

Parties’ woes usually don’t cease after the conclusion of a trial as they might have to wait for
indefinite periods for a copy of the judgment. As per Section 392(1) of BNSS or Section
353(1) of CrPC, judgment in every trial has to be pronounced within 45 days of termination
of trial. The said judgment needs to be uploaded online within 7 days of pronouncement by
the addition of a proviso to Section 392(4) of BNSS or Section 353(4) of CrPC.

For efficacious disposal and custody of perishable property pending trial, the magistrate court
shall pronounce an order for disposal/custody/delivery within thirty days as per newly added
subsection 5 to Section 499 of BNSS corresponding to Section 451 of CrPC. As per the
addition to Section 501 of BNSS or Section 453 of CrPC, an innocent purchaser of stolen
property needs to be paid ‘within six months’ of the date of passing of any compensation
order to the same effect. Earlier, such a time frame was not provided.

Inadvertent Errors
There have also been a few inadvertent errors in the drafting of BNSS. For instance, one such
inadvertent error could be seen in Section 482(2) of BNSS corresponding to Section 437(3)
of CrPC. In the earlier provision, certain extra bail conditions can be imposed for those
accused in three core chapters of IPC i.e., Chapter VI – Offences against State, Chapter XVI
– Offences against Human Body and Chapter XVII – Offences against Property. In the new
provision, while the word Indian Penal Code has been deleted, they should have been
replaced with Bharatiya Nyaya Sanhita, 2023 instead the words Bharatiya Nagarik Suraksha
Sanhita, 2023 are written which would not make sense as the BNSS is a procedural code
which doesn’t define offences like the substantive criminal laws. Another mistake is that the
Chapter titles have not been changed, which means that Chapter VI of Bharatiya Nyaya
Sanhita is now Offences against Body, Chapter XVI is now offences against religion
(something the earlier text did not account for) and Chapter XVII is Offences against
property. While offences against body and property have been accounted for, offences against
state which is now incorporated under Chapter VII of the new penal law and newly added
chapter V i.e., ‘Offences against women and children’ which has been carved out of erstwhile
‘Offences against body’ have not been addressed.

In the explanation to Section 65 of BNSS or Section 63, a ‘corporation’ has still been defined
with reference to the definition in Societies Registration Act, 1860. According to the author,
newer definitions from legislations like Companies Act, 2013 could also have been expressly
mentioned.

A major point of contention which has already been noticed by several critics is the change to
Section 262 of BNSS corresponding to Section 239 of CrPC, whereby now an “accused may
prefer an application for discharge in 60 days of framing of charges”. While on first glance it
might seem another laudable change to make processes time-bound, however, this results in a
complete misapplication of settled law as discharge can occur before ‘charges have been
framed’. Possibly, this could have been ‘filing of Charge sheet or police report’. But as
already mentioned above in case of Section 250 of BNSS, a better clarification needs to be
given for timeline of discharge taking before ‘framing of charges.’.

Another such inadvertent error has been observed in Section 290 of BNSS or Section 265B of
CrPC where application for plea bargaining has to be given within 30 days of ‘framing of
charges.’. It has been believed that ideally application of plea bargaining has to be at a stage
prior to framing charges. This has also been recently held by the Hon’ble Delhi High Court in
2019 via Gaurav Aggarwal vs. State.

A less innocuous error is found in Section 175(3) of BNSS corresponding to Section 156(3)
of CrPC. While it provides good clarification, the subsection 175(3) now also refers to
“clause (b) of subsection (4) of Section 173”. However, while in terms of content there is no
ambiguity per se, on a cursory glance it might cause some confusion as Section 173(4) of
BNSS is not explicitly divided into various sub-clauses. Similarly, while expanding the
procedural safeguards against arrest for women, Section 43(5) and the proviso under 43(1) in
BNSS corresponding to Section 46(4) and proviso under 46(1) of CrPC could have been
merged for convenience of application and interpretation. In the author’s opinion, these were
mentioned separately in CrPC as they were added to the code subsequently in different time
periods namely 2005 and 2009 respectively. However, that could have been remedied by
BNSS in 2023.
As abovementioned, while all the references to the word ‘code’ in CrPC have been replaced
with the word ‘Sanhita’ in BNSS, noticeably in a very important new addition to BNSS i.e.,
Section 532, the word ‘code’ has still been used.

There is a typographical error where the word ‘Policy’ has been used in place of ‘Police’ in
the newly added proviso to Section 187(5) of BNSS as corresponding to Section 167(2) of
CrPC. Due to the same, the current draft reads it as ‘Policy custody’ and not ‘Police custody’.

It has been claimed by the drafters that the draconian Section 124A of the Indian Penal Code
i.e., ‘Sedition’ has finally been dropped from the Indian law. But many critics have rightly
pointed out that Section 150 of the new Bhartiya Nyaya Sanhita, is analogous to if not worse
even though it may not deploy the formal term – ‘Sedition’. Coming to the procedural aspect,
erstwhile CrPC and the new BNSS have equivalent sections namely 108 and 127
respectively. Both these sections are still titled ‘Security for good behaviour from persons
disseminating seditious matters.’. Not only this, the reference to Section 124A of IPC in
Section 108(1)(i)(a) of CrPC has now been replaced with Section 150 of Bhartiya Nyaya
Sanhita in the corresponding Section 127(1)(i)(a) of BNSS. It is up to the reader to decide
whether this constitutes an inadvertent error or a Freudian slip.

In a goal to quickly try cases, a few changes have been brought to magistrate’s power to try
cases summarily. By deletion of Section 260(1)(i) of CrPC and introduction of Section 283(2)
in BNSS, any offence under three years of imprisonment can be tried as a summary trial.
While this is a laudable change, ideally in the definitions clause, definition of a ‘warrant-
case’ as per Section 2(y) of BNSS should have also been suitably amended to includes
offences only with imprisonment more than 3 years instead of the original 2 years. Now, this
may lead to a situation where a magistrate may be confused as to which procedure to follow
i.e., Warrant Trial or Summary Trial, for offences with punishment more than 2 years but less
than 3 years.

Negative Changes
While most of the changes to BNSS might be categorised as benevolent and/or timely, some
changes to the criminal procedure have also raised significant concerns.

As abovementioned, while there has been a push on the greater use of forensic science in
criminal trials, some provisions could be termed alarming. For instance, as per a proviso
added to Section 349 of BNSS corresponding to Section 311A, now a magistrate may ask any
person without a history of arrest to give specimens/samples such as fingerprint, voice sample
or handwriting samples. Earlier, this could not have been done unless the person was not
arrested in connection with an investigation. While one might make the claim that this would
reduce unnecessary arrests merely for taking samples, but this exercise of sample taking
should ideally be exercised with great caution and only when it is of utmost importance to a
trial.

Another concerning provision is the addition of a new subsection (3) to Section 43 – ‘Arrest
how made’ of BNSS. This new provision now formally brings back the usage of handcuffs.
On one hand, it may be argued that usage of handcuffs becomes vital in serious cases and not
having the same may seriously impede investigation. However, by diluting the scope of this
section as can be seen in BNSS, this provision might run contrary to the landmark 1979
Supreme Court verdict of Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 which
heavily critiqued the indiscriminate use of handcuffs.
 BNSS also adds a new Section 107 which gives vast powers of seizure and attachment of
property. This section gives police the power to have the property of any accused seized and
forfeited if it is suspected to be involved in criminal activity. The application and judicial
interpretation of this section would require a close scrutiny going ahead.

As discussed above, to expedite investigations the role of Central government has been
explicitly recognised at several instances in the new law. However, while discussing the State
government’s power to remit or commute a sentence, earlier as per Section 435 of CrPC the
states were only required to ‘consult’ the Central government. Now, as per Section 478 of
BNSS the word ‘consultation’ has been substituted by ‘concurrence’. This may lead to
situations wherein various state governments might allege that their exclusive power has been
made subservient to the will of the Centre.

In Section 149(1) of BNSS corresponding to Section 130(1) of CrPC, the level of executive
satisfaction to ‘use armed forces to disperse assembly’ has been lowered. Earlier, “Executive
Magistrate of the highest rank who is present” could only request the deployment of armed
forces. Now, “District Magistrate or any other Executive Magistrate authorised by him, who
is present” can also do the same. A new section is added in Chapter XII of BNSS
corresponding to Chapter XI of CrPC relating to ‘Preventive Action of Police’. As per this
new Section 172, police have been granted wide powers to enforce their will. Anyone
deemed to be “resisting, refusing, ignoring or

disregarding to conform to any direction” can be detained or removed by the police. Such a
detained person may be taken before a judicial magistrate. Ideally, the section should also
clarify that such detainee must be brought before a magistrate within 24 hours if the arrest
duration is longer than a day and other procedural safeguards must be followed.

By amending Section 433 of CrPC, the new law also significantly curbs down the power of
government to commute sentences under the revised Section 475 of BNSS. For instance,
earlier a death sentence could be commuted for any punishment. Now, it can only be
commuted to life imprisonment. Similarly, life sentence or sentence of rigorous
imprisonment could earlier be commuted and substituted by imprisonment or fine. Now, both
life sentence or sentence of rigorous imprisonment cannot be commuted to just fine.

A curious change which has been observed in the law as compared to the older code is that it
has become significantly harder to successfully prosecute public servants. Notwithstanding
the proviso added to Section 218(1) of BNSS by which ‘deemed sanction’ for prosecution is
granted in case of state inaction, several other provisions have in fact made the process
harder.

Some of the following changes further substantiate this argument. For instance:

 The two new provisos added to Section 151(2) of BNSS corresponding to Section 132(2) of
CrPC.

 Addition of a new subsection (4) to Section 175 of BNSS corresponding to Section 156 of
CrPC.

 Addition of a new subsection (3) to Section 210 of BNSS corresponding to Section 190 of
CrPC.
 Addition of a proviso at the end of Section 223 of BNSS corresponding to Section 200 of
CrPC.

Although, some great additions have been made to Section 481 of BNSS, but some changes
have been quite problematic. For instance, by adding the words ‘life imprisonment’ to the
section in 481(1), the number of offences which have been made ineligible for release under
this section have been significantly expanded. Similarly, the addition of subsection 481(2) is
also worrisome as in the author’s opinion it devalues the essence of the entire section.
According to this, the section would be inapplicable when “an investigation, inquiry or trial
in more than one offence or in multiple cases are pending against a person”. However, in
practical parlance, for a vast majority of undertrials, there are always parallel proceedings
going on against the accused making the relief illusory for them.

The new law has also curiously brought in a new provision which if applied incorrectly could
leave a lot of room for misuse. BNSS sees the addition of a new subsection (3) to Section 173
as corresponding to Section 154 of CrPC – ‘Information in cognizable cases.’. As per this
new provision, for offences entailing 3 to 7 years of imprisonment the police may “proceed
with investigation when there exists a prima facie case”. In cases where the police seek to
confirm the existence of a prima facie case, they may conduct a preliminary enquiry before
proceeding. This sort of ambiguity was exactly what was sought to be settled once and for all
by Constitutional Bench landmark verdict of Lalita Kumari vs. Govt. of Uttar Pradesh , AIR
2014 SC 187.

According to the author, if the information patently does not have any merit whatsoever only
then should no proceeding be done by the police. In all other cases, an FIR must be
registered. The court had further laid down situations such as, “Matrimonial disputes,
Commercial offences, Medical negligence cases, Corruption cases” and other cases with
inordinate delay over three months, where a preliminary inquiry may be allowed. Although
the list was not exhaustive, but by diluting it to this extent as seen in BNSS would nullify the
entire verdict. By reintroduction of this middle path of preliminary inquiry, we might see
ourselves transported back to pre- ‘Lalita Kumari’ era.

Another change is the deletion of the last line “the fact that he will not investigate the case or
cause it to be investigated” from Section 157(2) of CrPC as corresponding to Section 176(2)
of BNSS – ‘Procedure for Investigation.’. Earlier, the fact where police chose not to
investigate a case was supposed to be notified to the informant in the said case. This was
supposed to ensure that an informant, who is a key stakeholder in a criminal trial and
investigation is kept in loop. This fact was also recognised by the Hon’ble Supreme Court in
the case of Bhagwant Singh vs. Commissioner of Police AIR 1985 SC 1285, where building
upon the existence of such provisions, the Apex Court emphasised the importance of
informant/victim and led to the creation of the judicial remedy of ‘Protest Petition’. But, by
deletion of this phrase, BNSS has impacted the rights of an informant at the stage of
investigation.

As mentioned earlier, some positive changes have been made to the provision regulating
‘Anticipatory Bail’. However, in the original section 438(1) of CrPC as corresponding to
Section 484(1) of BNSS, several factors were provided which a judge may have taken into
account while considering such application. The new provision removes all such factors
which were provided earlier. While it may be argued that the judge is granted higher
discretion in grant/rejection of such bail, but without any such guiding factors such
anticipatory bail orders are at the risk of being even more vague or opaque.
2005 Amendment to CrPC saw the addition of a relevant provision i.e., Section 144A –
‘Power to prohibit carrying arms in procession or mass drill or mass training with arms.’
Although this section was not notified yet and thus not effective, the author believes it was a
necessary addition to the law. As witnessed in the recent past, many public processions have
turned riotous and caused widespread destruction. If an explicit order banning weapons
would have been made, a lot of lives and property could have been saved.

Perhaps, the most alarming change in the entire procedural law has been done to the remand
procedure as prescribed under Section 167 of CrPC corresponding to the revised Section 187
of BNSS.

BNSS in Section 187(2) also uses the following new phrase which is reproduce below:

“…the detention of the accused in such custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or
sixty days out of detention period of sixty days or ninety days, as the case may be, as provided
in sub-section (3)…”.

Curiously enough, the new provision in Section 187(3) of BNSS as corresponding to Section
167 (2)(a) of CrPC does not use the phrase “otherwise than in custody of the police”, can this
be understood to mean that for the entire period of investigation of 60/90 days one might be
sent to police custody?

Even if one supposes that the deletion of the above-mentioned words in Section 187(3) i.e.,
“otherwise than in custody of the police” is inadvertent, the new law by Section 187(2) still
seeks to enhance the scope of police custody beyond the initial 15 days to the initial 40/60
days respectively.

In the original Section 167(2)(a), a magistrate can authorise custody up to 60/90 days of
which only the first 15 days can be in police custody as signified by the usage of the words
“otherwise than in custody of the police, beyond the period of fifteen days”. As per the
existing interpretation of CrPC, after the first 15 days have elapsed, no one can be sent to
police custody even if the arrested person was not sent to police custody for a total of 15
days. This view was also held by the Hon’ble Supreme Court of India in the landmark case
of CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141.

However, the new draft of BNSS seems to be more in line with a new Supreme Court verdict
in V. Senthil Balaji vs. State in 2023. In this case, one of the findings of the Court is “The
maximum period of 15 days of police custody is meant to be applied to the entire period of
investigation – 60 or 90 days, as a whole.”. The court in ‘Senthil Balaji’ had also urged for a
reconsideration of the ‘Anupam J. Kulkarni’ verdict by a larger bench.

According to the author, Kulkarni verdict and all the subsequent interpretations have been
correctly decided. It is routinely seen that many people particularly hailing from a
marginalised background are often subject to extreme forms of cruelty in police custody.
Many of the statutory safeguards such as a medical check-up are also not fully complied with.
In such a situation, without taking adequate steps to ensure the full compliance of the existing
safeguards, it may not be suitable to increase the ambit of police custody.

The law also introduces a new proviso to Section 187(5) of BNSS as corresponding to
Section 167(2) of CrPC. The same is reproduced below:
“Provided further that no person shall be detained otherwise than in police station under
policy (sic) custody or in prison under Judicial custody or place declared as prison by the
Central Government or the State Government”

This according to the author has seemingly come as a response to the ‘Gautam Navlakha v.s
NIA’ cases. One of the arguments raised by defendants therein was that Section 167(2) can
be interpreted to include “house arrest” as well. With the introduction of this proviso, the
same cannot be done anymore.

Concluding Remarks
Compared to the IPC, the procedural law has undergone relatively fewer changes both in
terms of its content as well as reordering of the existing sections. However, it does not mean
that changes have not been done.

As discussed above, the new law does not have many inadvertent errors, most notably the
provision allowing discharge application after framing of charges. These can be easily fixed
by way of few amendments to the text. By and large, most of the changes are well meaning
and much needed. The author would broadly group them under five
classifications: a. Removal of archaic and Insensitive terms b. providing clarity in some
procedures c. Providing progressive safeguards and/or changes d. Provision of
electronic/digital alternatives for existing processes e. Expediting processes and/or making
processes time-bound.

However, few of the changes are certainly alarming. For instance, broadening the scope of
investigative powers under search and seizure, ability to get samples from a larger set of
people, curbing the power of commutation, reintroduction of preliminary inquiry before FIR,
bringing handcuffs back and last but not the least – the changes in remand procedure; are
some of the very problematic aspects which must be viewed with caution. Ideally, better
funding and infrastructure along with increased safeguards should be further incorporated in
the criminal justice administration to better complement any procedural law.

One must note that the IPC and Evidence Act were enacted in 1860 and 1872 respectively
compared to a much more recent CrPC of 1973. Thus, the criminal procedure technically is
not a part of colonial legacy to begin with. Rather, many of the changes incorporated in CrPC
were the result of post-emergency where Indian Supreme Court attempted to constitutionalise
the criminal procedure for the benefit of society.

It seems that as part of the decolonisation process (from a law made in 1973), name of the act
itself has been changed as well as all the references to the word ‘code’ have been substituted
for the word ‘Sanhita’. Conversely, one might argue that by still retaining some problematic
aspects such as vast discretion granted to the authorities in arrest and investigation still makes
it seem colonial.
 OVERVIEW OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) was enacted on December 25,
2023, with the stated objective of repealing pre-independence, 19 th century colonial-era
criminal laws.

The BNSS aims to provide for a faster and more efficient justice system to address the issues
of delay in delivery of justice due to complex procedures, large pendency of cases in courts,
low conviction rates, low level of use of technology in legal system, delays in investigation
and inadequate use of forensics.

A broad overview of some of the key changes that have been brought to the criminal
procedure is as under:

i. Changes with Respect to Registration of First Information Reports (‘FIRs’)

1. FIRs can now be registered via electronic communication. It will be taken on record
on being signed within three days, by the person giving such information.

2. BNSS introduces preliminary inquiry prior to registration of FIR. Preliminary

inquiry is limited to cognizable offences punishable with imprisonment of three years
or more but less than seven years. The same is to be carried out in a time-bound
manner – within 14 days from receipt of information.

3. Lastly, it is mandatory for police to register a FIR where information regarding

commission of a cognizable offence is received, irrespective of whether it has
jurisdiction or not (‘Zero FIR’). Once the Zero FIR is registered, the concerned
Police Station can transfer such FIR to the Police Station which has jurisdiction to
investigate the case.

ii. Additional Powers for Attachment and Forfeiture of Property

1. Section 107 of BNSS gives Magistrate powers to attach property identified as
‘proceeds of crime’. The Magistrate may upon an application of an investigating
officer giving reasons to believe that the property is derived from a criminal activity,
pass the following orders:
a. Direct attachment of the property found to be ‘proceeds of crime’ after hearing
all parties concerned;
 b. Pass an ex parte interim order attaching property if the Magistrate is of the
opinion that issuing notice to the owner of the property for attachment will
defeat the object of the attachment or seizure; and
c. Upon determination that the property in question falls under proceed of crime,
the Magistrate will direct the District Magistrate to rateably distribute the
property amongst those who were affected by the crime.

2. Section 86 of BNSS provides that the Court, upon a written request from an officer
not below the rank of Superintendent of Police or Commissioner of Police, can initiate
the process of requesting assistance from a Court or authority in a contracting State
for attachment or forfeiture of a proclaimed offender. The intention behind this
provision seems to be either to secure the presence of fugitives or confiscate
properties of fugitives who are evading summons/investigation/trial and have
properties outside the country.
iii. Adherence with Timelines
The BNSS endeavours to address delays in investigation and trial by providing timelines for
completing certain proceedings under the BNSS such as:
Proceedings Time-period
Committal Within 90 days from the date of taking
cognizance – which may be extended by a
period not exceeding 180 days.[1]
Supply of police report & documents Within 14 days from the date of production or
appearance of accused.[2]
Framing of charges (trial before a Within 60 days from the first date of hearing
Court of Session) on charge.[3]
Judgment (trial before a Court of Within 30 days from completion of arguments
Session) which can be extended by 45 days only by
giving specific reasons.[4]
In addition, trial or inquiry will be on a day-to-day basis and not more than two adjournments
will be granted.[5]

iv. Changes with Respect to Provisions Pertaining to Arrest

1. 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. [6] 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.[7]
2. The BNSS specifically allows handcuffing of certain categories of offenders like
repeat, habitual offenders etc.[8]

v. Use of Electronic Mode at Stages of Investigation, Inquiry and Trial

1. 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”[9] and “electronic communication”.[10]
2. 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.[11]
 3. Statements can also be recorded by the investigating office by way of audio-video
means.[12] Similarly, it is also permissible for the investigating authority to supply
documents, such as the police report etc. in electronic form.[13]
4. 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.[14] The recording is required to be forwarded to the
Magistrate without delay.[15]
5. Section 530 of the BNSS provides that all trials, inquires and proceedings
including appellate proceedings may be held in electronic mode.

vi. 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.[16]

vii. Amendment in Terms of Satender Kumar AntilCBI[17]

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.

viii. Police Custody

1. 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).

ix. Rights of Victim

The BNSS provides the following rights to victims, which have till date only been provided
by judgments of Courts:
a) Obligation on police to inform the victim of the progress of the investigation within a
period of 90 days[18];
b) Obligation on police to supply police report and other documents to the victim (if
represented by an advocate)[19];
c) Withdrawal of prosecution will only be allowed after hearing the victim[20];
d) A witness protection scheme to be laid down by the State Government[21]; and
e) Victim compensation schemes[22] which have largely been administrative schemes
(such as the Nirbhaya Scheme) are to be given at the discretion of State Governments.

x. 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.

A detailed overview and analysis of the BNSS is available here.

[1] S. 232 of the BNSS.
[2] S. 230 of the BNSS.
[3] S. 263 of the BNSS.
[4] S. 258 of the BNSS.
[5] S. 346 of the BNSS.
[6] S. 36 of the BNSS.
[7] S. 43(1) of the BNSS.
[8] S. 43(3) of the BNSS.
[9] S.2(1)(a) of the BNSS.
[10] S.2(1)(i) of the BNSS.
[11] Ss. 64, 68, 94 and 227 of the BNSS.
[12] S. 176 of the BNSS.
[13] Ss. 230 and 231 of the BNSS.
[14] S. 185 of the BNSS. (corresponding to Section 165 Code of Criminal Procedure, 1973).
[15] S. 105 of the BNSS.
[16] S. 94 of the BNSS.
[17] (2022) 10 SCC 51
[18] S. 193 of the BNSS.
[19] S. 230 of the BNSS.
[20] S. 360 of the BNSS.
[21] S. 398 of the BNSS.
[22] S. 396 of the BNSS.

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS)

The Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian
Evidence Act of 1872 formed the bedrock of India's criminal justice system.

Swati Agrawal

BACKGROUND
The Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian
Evidence Act of 1872 formed the bedrock of India's criminal justice system. These statutes
comprehensively defined offenses, prescribed punishments, outlined legal procedures, and
regulated evidence admissibility. However, the passage of time rendered them partly
obsolete, necessitating the enactment of three new criminal law acts to address emerging
challenges like cybercrime and gender neutrality.
The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the
Bharatiya Sakshya Adhiniyam, 2023 which seek to repeal and replace the Indian Penal Code,
1806, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively
were passed by the Lok Sabha on 20th December, Rajya Sabha on 21st December and the
same attained the President's assent on 25th of December. These act aim to -
1. Replace the Colonial-era laws,
2. Transform India's Criminal Justice System,
3. Protect the Rights of Citizens focusing on Justice over Punishment.

Let's dive deep into the key provisions and changes bought by the Bharatiya Nagarik
Suraksha Sanhita, 2023

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS)

I.e., The successor to the Code of Criminal Procedure, 1973, seeks to expedite the justice
system justice delivery by effectively tackling problems like backlog of cases in courts, low
conviction rates, limited technology integration in our legal system, investigation delays, and
suboptimal utilisation of forensic methods. The changes bought by the act have been
elaborated as under:

ZERO FIR: The inclusion of the phrase "irrespective of the area where the offence is
committed" in Section 173 explicitly validates the mandatory registration of a "Zero FIR,"
signifying the police's obligation to register information about the commission of a
cognizable offence, regardless of whether the specific offence was committed in the
concerned police station's jurisdiction or not. Once the Zero FIR is filed, the police station
has to transfer the FIR to the station with the appropriate jurisdiction to conduct the
investigation.

PRELIMINARY INQUIRY: Section 173(3) stipulates the provision for preliminary inquiry
preceding an investigation, specifically for cognizable offenses carrying a punishment of
three years or more but less than seven years' imprisonment with the prior permission of the
an officer not below the rank of Deputy Superintendent of Police after considering the
offense's nature and seriousness. This inquiry must adhere to a strict timeline, requiring
completion within 14 days from the information's reception. After completion of the enquiry,
the police shall proceed with investigation when there exists a prima facie

TIMELINES FOR PROCEDURES: The BNSS sets specific timeframes for various legal
procedures, aiming to streamline the justice system. The BNSS addresses delays in
investigation and trial by introducing specific timelines in the criminal justice procedure. The
same have been elaborated herein under:
1. Section 230 of the BNSS mandates providing copies of police
reports and documents to the accused and victim within 14 days from the date of
the accused's production or appearance.

2. Section 232 provides that Committal Proceedings shall be completed within a

period of 90 days from the date of taking cognizance, and such period may be
 extended by the Magistrate for a period not exceeding 180 days for the reasons to be
recorded in writing.

3. Section 250 allows the accused to file for Discharge within 60 days from the date
of committal.

4. Section 263 provides that charge against the accused must be framed within a
period of 60 days from the date of first hearing on charge.

5. Section 346 provides for Inquiries or trials to proceed from day-to-day until all
attending witnesses have been examined. The said section also limits the number
of adjournment necessary that may be sought to a maximum of 2 per party.

6. Section 258 requiring a verdict of acquittal or conviction to be passed within 30

days after completing arguments, which may be extended to 45 days with specific
reasons.
FORENSIC INVESTIGATION: As per Section 176 of the BNSS, offenses carrying a
minimum punishment of seven years imprisonment necessitate forensic investigation. In
these instances, forensic experts are required to visit crime scenes for evidence collection,
documenting the process using electronic devices like mobile phones. If a state lacks forensic
facilities, it must seek and utilize such services from another state. These experts are
responsible for both evidence collection at crime scenes and documenting their procedures.

DIGITISATION: Section 173 of the BNSS allows for FIR registration through
electronic communication which must be acknowledged within three days. Moreover, all
legal proceedings, including trials and inquiries, can now be conducted electronically. Courts
are now empowered to conduct various proceedings electronically, encompassing summons,
warrant issuance, inquiries, witness examinations, trials in different courts, appellate
procedures, and more, utilizing electronic communication or audio-video means.
Additionally, Section 355 introduces an explanation to include the accused's attendance via
audio or video electronic means under subsection (2).

DETENTION OF UNDERTRIAL PERSONS: According to the provisions of CRPC, if an

accused has served half of the maximum imprisonment period in detention, they're eligible
for release on a personal bond, except for offenses punishable by death. However, section
479 of the CRPC further narrows the scope of applicability of this provision by excluding (i)
offences punishable by life imprisonment, and (ii) persons whose investigation, inquiry or
trial is pending in more than one offence or in multiple cases.

FLEXIBLE POLICE CUSTODY: Section 187 of the BNSS introduces a provision

allowing up to 15 days of police custody, which can be utilized intermittently within the
initial 40 or 60 days of the total 60 or 90 days of judicial custody respectively.
Traditionally, the Constitution and CrPC restrict detention in police custody beyond 24 hours,
however, Magistrates hold the authority to extend this to 15 days if the investigation requires
more time. Further extensions in judicial custody can occur if deemed necessary, yet the
cumulative detention cannot exceed 60 or 90 days, depending on the offense. The BNSS
modifies this procedure by allowing the 15-day police custody to be authorized wholly or
partially at any point within the initial 40 or 60 days of the overall 60 or 90 days period
respectively.
MEDICAL EXAMINATION: While the CrPC mandates the medical examination of the
accused in specific cases, including rape, carried out by a registered medical practitioner
upon the request of a Sub-Inspector level police officer, the BNSS expands this authority to
any police officer irrespective of their level to request such an examination.

SIGNATURES AND FINGER IMPRESSIONS: The CrPC authorizes Magistrates to

demand specimen signatures or handwriting from individuals. Section 349 of the BNSS
broadens this scope and further embowers the magistrate to demand collection of finger
impressions and voice samples too. This provision extends to individuals who have not been
arrested under any investigation.

SCOPE OF PLEA BARGAINING:- The BNSS retains the provision for plea bargaining
under section 289 to 300. This limits plea bargaining in India to sentence bargaining, that is
getting a lighter sentence in exchange for the accused's guilty plea. The BNSS also limits the
time for filing for plea bargaining to be filed by the accused within 30 days from the date of
framing of charge.
SEIZURE OF IMMOVABLE PROPERTY: The BNSS broadens the scope of the CrPC's
police powers in property seizure. While the CrPC initially allowed the seizure of movable
properties suspected to be stolen or found under suspicious circumstances, the BNSS extends
this authority to include immovable properties as well.

CRITISIM AND CONCERNS

Though the act has made notable strides for improvement, certain legal provisions have
drawn criticism.

1. Police Custody: The BNSS, by permitting up to 15 days of police custody within the
initial 40 or 60 days of judicial custody, raises concerns over potential violations of
Article 21, a fundamental right ensuring personal liberty. This adjustment, deviating
from the constitutional and CrPC guidelines restricting police custody to 24 hours,
poses the risk of prolonged detention without bail if the entire 15-day period is not
utilized by the police.

2. Use of Handcuffs: The BNSS diverges from Supreme Court guidelines set in the
Prem Shankar Shukla v. Delhi Administration case by allowing the use of handcuffs
during arrest in specific scenarios. This provision permits handcuff usage for habitual
offenders who have previously escaped custody or individuals involved in serious
crimes like rape, acid attacks, organized crime, drug-related offenses, or offenses
against the State. This departure from established guidelines raises concerns regarding
potential violations of established court precedents on the use of restraints during
arrests.

3. Restriction on grant of bail: The CRPC allows release on a personal bond if an

accused has served half of the maximum imprisonment period, except for offenses
punishable by death. However, Section 479 of the CRPC imposes additional
restrictions, excluding individuals charged with offenses punishable by life
imprisonment or involved in investigations, inquiries, or trials across multiple
offenses or cases. This limitation, especially in cases involving multiple charges,
could significantly restrict the eligibility for bail.
 PRIMER ON THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") replaces the existing Code of
Criminal Procedure, 1973 ("CrPC"). While some provisions in the BNSS, like focus on the
use of technology during investigations and trials and provision for definite timeframes for
various legal procedures, are a step in the right direction which would lead to greater
transparency and efficiency in the criminal process, some other altered provisions which
expand police powers do provide a cause for concern.
The most notable changes to the CrPC, as seen in the BNSS are as follows:
1. Expansion of Police Powers:
a. Expansion of the possible duration of police custody: The BNSS expands the limits
of police custody under general criminal law, and provides that the Judicial Magistrate
may give police custody for a term not exceeding fifteen days in the whole, or in parts, at
any time during the initial forty days or sixty days out of the maximum detention period
of sixty days (for offences punishable with imprisonment for less than ten years) or
ninety days (for offences punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years). This gives our general criminal law
the same flavour as some of the “special laws” with stringent custodial conditions.
b. Discretionary registration of FIR: The BNSS provides that on receipt of information
relating to a cognizable offence punishable with imprisonment between three years and
seven years, the officer in charge of the police station may with the prior permission of
his senior office, proceed to conduct a preliminary enquiry to ascertain whether there
exists a prima facie case for proceeding in the matter within a period of 14 days. This
seems to contradict the direction of the Hon’ble Supreme Court in Lalita Kumari vs.
Government of Uttar Pradesh which mandated the police to record information of a
cognizable offence as FIR and investigate the offence regardless of what the police felt
about the credibility of the information.
c. Handcuffing: The BNSS, contradicting the Hon’ble Supreme Court directions
in Sunil Batra v. Delhi Administration and Prem Shankar Shukla v. Delhi
 Administration, formally brings back the usage of handcuffs. Section 43 of the BNSS,
dealing with the manner in which an arrest is to be made, provides the police with
discretionary powers to handcuff accused persons for serious offences, including but not
limited to, rape, acid attack, murder, sexual offences against children, drug related
crimes and others. The section provides that a police officer may, keeping in view the
nature and gravity of the offence, use handcuffs while making the arrest of a person or
while producing such person before the court, who is a habitual or repeat offender, or
who escaped from custody, or who has committed offence of organised crime, terrorist
act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid
attack, counterfeiting of coins and currency-notes, human trafficking, sexual offences
against children, or offence against the State.
2. Emphasis on use of technology during investigation and trial:
a. The BNSS mandates the recording of search and seizure procedures through audio-
video electronic means. Witness statements, confessions, and appearances can also be
recorded by audio-video electronic means.
b. Forensic science in investigation of crime: BNSS mandates forensic investigation
for offences punishable with seven years of imprisonment or more. The forensic expert
will visit the crime scenes to collect forensic evidence and also cause videography of the
process on mobile phone or any other electronic device. This is again a positive push for
technology during investigations, although the success of this initiative would largely
depend on the adequacy or development of forensic infrastructure including training.
This sub section will come into force within a period of 5 years of the passing of the
BNSS, as notified by the State Government.
c. Biometrics: The BNSS expands the scope of biometrics, and provides that any person
can be ordered by the Magistrate to give specimen signatures, finger impressions,
handwriting or voice samples in connection with an investigation or proceeding, even if
he or she is not an accused person.
d. Zero FIRs: The BNSS provides for ‘zero FIRs’ and states that an information relating
to the commission of a cognizable offence, irrespective of the area where the offence is
committed, may be given orally or by electronic communication to an officer in charge
of a police station. Thus, this provision states that registration of FIR can be done by
electronic means also.
3. Changes in the provisions for bail:
a. The BNSS addresses the “maximum period for which an undertrial prisoner can be
detained” and states that an undertrial, accused of a crime carrying a life sentence is not
eligible for release based on their incarceration term. Previously only undertrials accused
of a crime carrying a death sentence were not eligible for release based on their
incarceration term. Additionally, the BNSS states that when an investigation, inquiry, or
trial in more than one offence or multiple cases are pending against a person, he shall not
be released on bail by the court. This can prove to be extremely burdensome for accused
persons undergoing investigation or trial, as in a lot of cases, an accused is charged
under multiple offences.
b. Anticipatory Bail: The BNSS deletes the guiding factors which the courts hearing
anticipatory bail applications may have taken into account, such as nature and gravity of
accusation, criminal antecedents, and the possibility of the accused to fee from justice.
This deletion widens the discretionary powers of the court hearing such applications.
 Further, the BNSS also deletes the proviso requiring the presence of the applicant
seeking anticipatory bail, at the time of final hearing of the application and passing of
final order by the Court.
4. Timelines:
The BNSS attempts to lay a foundation for “speedy justice” by providing timelines for
different processes in investigation and trials:
a. Investigation:

 For offences punishable for 3 years or more but less than 7 years, the officer in
charge may with the prior permission of the Deputy Superintendent of Police
proceed to conduct a preliminary enquiry within 14 days to ascertain if there
exists a prima facie case and proceed with the investigation where there exists
one.
 The police are now under an obligation to inform the victim or informant of the
progress of the investigation including by electronic communication within 90
days.
 Further investigation shall be completed within 90 days, which may be extended
with the permission of the Court.

b. Committal- When in a case instituted, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable exclusively by the
Court of Session, he shall commit the case within a period of 90 days from the date of
taking cognizance, and such period may be extended for a period not exceeding 180
days for reasons to be recorded in writing.
c. Supply of police report & documents- Where the proceeding has been instituted on
a police report, the Magistrate within 14 days from the date of production or appearance
of the accused, supply to the accused and the victim a copy of police report and other
documents.
d. Discharge of accused: The accused may prefer an application for discharge within 60
days from the date of supply of copies of documents.
e. Framing of charges (trial before a Court of Session)- Charges will be framed in
writing against the accused within 30 days from the date of first hearing on charge.
f. Judgment- After hearing arguments, the Judge shall give a judgment within 30
days from the date of completion of arguments, which may be extended to 45 days for
reasons to be recorded in writing.
g. Adjournments- In every inquiry or trial, the proceedings will continue daily until all
the witnesses in attendance have been examined, unless the Court adjourns. No more
than 2 adjournments will be granted.
5. Cases instituted on a complaint:
a. Presence of Complainant: Previously the CrPC provided that when proceedings have
been instituted on a complaint, and the offences alleged are either compoundable or are
non-cognizable, the accused would be discharged when a complainant remained absent
on any day fixed for the hearing of the case. Altering the same, BNSS now provides a
grace period extending to 30 days which may be provided to the complainant to remain
present before the requisite court.
 b. Opportunity of being heard to accused: The Magistrate now must provide the
accused person with an opportunity of being heard at a pre-cognizance stage prior to
issuance of process. This right was not provided to the accused at a pre-cognizance stage
under the old Code.
6. ‘Proclaimed offender’:
a. Expansion of definition of ‘Proclaimed Offender’: As per the CrPC, a person could
be declared a ‘Proclaimed Offender’ only for 19 specified offences, which led to
situations wherein persons could repeatedly evade legal processes of warrant/summons
for offences other than the specified 19. The BNSS has altered this provision and
provides that anyone accused of an offence with more than 10 years imprisonment
could be declared a ‘Proclaimed Offender’. The BNSS also provide more detailed
procedures for investigation outside India and for forfeiture of property of proclaimed
offenders staying abroad.
b. Trial in absentia for proclaimed offenders: The BNSS provides that when a person
declared as a ‘Proclaimed Offender’ and has absconded to evade trial and there is no
immediate prospect of arresting him/her, it shall be deemed to operate as a waiver of the
right of such person to be present and tried in person, and the Court shall, after recording
reasons in writing, proceed with the trial in the manner as if the absconder was present
and pronounce the judgment. The erstwhile CrPC only provided for recording of
evidence in the absence of the accused in some cases.
7. Clarity on reporting obligation: The law makes it clear that no reporting to authorities is
required in cases of corruption and other economic offences, unless they form part of
‘organized crime’ (which includes economic offenses and cyber-crime offences). Even in
cases where reporting is mandatory, there is an exception for ‘reasonable excuse’, the
burden of proving which excuse shall lie upon the person so aware.
8. Clarity of role of Director of Prosecution: The legislation throws light on the role of the
Director of Prosecution, which will be to monitor cases in which offences are punishable for
ten years or more, to expedite the proceedings and to give an opinion on filing of appeals.
This implies that the Director of Prosecution may get to decide on appeals independently,
irrespective of police or prosecution recommendations.
9. Witness Protection Scheme: Under the BNSS, state governments have the authority to
notify witness protection programs. The provision regarding Witness Protection Scheme was
not there in the CrPC.
10. Attachment, forfeiture or restoration of property which is ‘proceeds of crime’: The
BNSS introduces a provision for the attachment, forfeiture and restoration of property, which
is derived or obtained, directly or indirectly, as a result of a criminal activity or “proceeds of
crime”. The word ‘proceeds of crime’ as defined in Section 111 of the BNSS is similar to
the definition of the term under the Prevention of Money Laundering Act, 2002.