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 hereinunder:
    • 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.
    • 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 .
    • Section 250 allows the accused to file for Discharge within 60 days from the date of committal.
    • 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.
    • 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.
    • 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 provisions 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.

  • 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.
  • 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.
  • 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.

CONCLUSION
 In conclusion, the Bharatiya Nagarik Suraksha Sanhita, 2023 endeavours to modernize India's criminal justice and expediting the criminal justice system by introducing significant reforms which in turn ensure the protection of citizens' rights. However, amidst these strides, critical concerns have emerged. Issues regarding extended excessive power vested in the police have drawn significant criticism. In view of the same, to ensure the successful implementation of this act, a fair balance between efficiency and protecting fundamental rights will have to be maintained.

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