Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Overview, Background, Need, Features & More

Overview: The Bharatiya Nyaya Sanhita (BNSS) 2023 introduces comprehensive modernizations to criminal justice procedures, including compulsory forensic investigations and stricter timelines for judicial processes.

It also enhances police powers while implementing necessary safeguards, and thoroughly revises rules concerning bail and detention. Additionally, the BNSS distinguishes offenses by categorizing them into cognizable and non-cognizable types.

If you are someone from legal fraternity, then it is important for you to understand Bharatiya Nagarik Suraksha Sanhita 2023 and to help you with this we have curated short but detailed notes on the same.

In this blog we will cover:

• Background of Bharatiya Nagarik Suraksha Sanhita 2023
• Salient Features
• Key Issues and Analysis
• Notable Changes

The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) replaces the outdated Code of Criminal Procedure, 1973 (CrPC) with a modernized framework designed to address contemporary legal challenges. Key provisions of the BNSS include:

• Forensic and Technological Integration: Mandates forensic investigations for serious crimes, ensuring forensic experts collect and document evidence at crime scenes.
• Expedited Judicial Process: Establishes specific timelines to expedite trials, reduce case backlogs, and ensure timely justice.
• Rebalanced Police Powers: Enhances transparency in detention and custody procedures, incorporating necessary safeguards to prevent misuse of police powers.
• Revised Bail Provisions: Updates bail and detention rules to better protect the rights of undertrial prisoners, aligning with human rights guidelines and ensuring fairer treatment of the accused.

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Salient Features of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces a comprehensive legal framework to modernize and streamline the criminal justice system in India.

Salient Features
New Framework	The BNSS introduces a comprehensive legal framework to modernize and streamline the criminal justice system in India.
BNSS Sections vs CrPC Sections
Sections Introduced	The BNSS includes a total of 531 sections, an increase from the 484 sections in the CrPC.
Amendments and Additions
Amended Sections	A total of 107 sections have been amended, reflecting significant changes to address contemporary legal requirements.
New Sections	9 new sections have been incorporated to meet the evolving needs of the legal system.
Deleted Sections	9 sections have been deleted to streamline and simplify the legal framework.

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Highlights of the Bill

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) aims to replace the Criminal Procedure Code, 1973 (CrPC). The CrPC governs the procedures for arrest, prosecution, and bail. Key features of BNSS include:

• Forensic Investigation: Mandates forensic investigation for offenses punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect forensic evidence and document the process.
• Electronic Trials: Allows all trials, inquiries, and proceedings to be conducted electronically. Electronic communication devices likely to contain digital evidence can be produced for investigation, inquiry, or trial.
• Trials in Absence: If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arrest, the trial can proceed, and judgment can be pronounced in their absence.
• Specimen Collection: Allows the collection of specimen signatures, handwriting, finger impressions, and voice samples for investigations or proceedings, even from individuals who have not been arrested.

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Key Issues and Analysis

• Police Custody Duration: 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 have not exhausted the 15 days of custody.
• Property Attachment Safeguards: The powers to attach property from proceeds of crime under BNSS do not have the safeguards provided in the Prevention of Money Laundering Act.
• Bail Provisions: The BNSS restricts bail for accused individuals facing multiple charges, unlike the CrPC, which provides bail if the accused has been detained for half the maximum imprisonment for the offense. This restriction could limit bail opportunities for many cases involving multiple charges.
• Use of Handcuffs: The BNSS permits the use of handcuffs in a range of cases, including economic offenses, which contradicts Supreme Court directions on the humane treatment of accused individuals.
• Evidence by Successor Officers: The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors, which could violate normal rules of evidence requiring the author of the document to be cross-examined.
• Committee Recommendations: Recommendations from high-level committees on reforms such as sentencing guidelines and codifying the rights of the accused have not been incorporated into the BNSS.

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Context

The Code of Criminal Procedure, 1973 (CrPC) is a procedural law that governs the investigation, arrest, prosecution, and bail for offenses under the Indian Penal Code, 1860 (IPC). Over the years, the Supreme Court has interpreted the CrPC to address issues like mandatory FIR registration, exceptions for arrests in cases with less than seven years of punishment, and ensuring bail for bailable offenses as an absolute right.

Despite these reforms, the criminal justice system still faces challenges like case backlogs, trial delays, and concerns about the treatment of underprivileged groups. The BNSS was introduced on August 11, 2023, to replace the CrPC, addressing issues related to bail, property seizure, and the powers of police and Magistrates. The Bill has been examined by the Standing Committee on Home Affairs.

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Key Features

The BNSS retains most provisions of the CrPC but proposes key changes:

• Detention of Undertrials: Adds that the provision for releasing an accused on personal bond after serving half of the maximum imprisonment does not apply to offenses punishable by life imprisonment or for those facing multiple charges.
• Medical Examination: Allows any police officer to request a medical examination of the accused, expanding the scope from the previous requirement of at least a sub-inspector level officer's request.
• Forensic Investigation: Mandates forensic investigation for offenses punishable with at least seven years of imprisonment, with forensic experts collecting and recording evidence.
• Specimen Collection: Expands the Magistrate's power to order the collection of finger impressions and voice samples in addition to specimen signatures or handwriting.

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Recommendations of Various Committees

The Bill has been examined in light of recommendations from various committees and the Law Commission. These recommendations address issues such as reforms in sentencing guidelines and codifying the rights of the accused.

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Notable Changes

The most notable changes to the Code of Criminal Procedure (CrPC), as seen in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), are as follows:

Expansion of Police Powers

a. Expansion of the Duration of Police Custody:

The BNSS extends the limits of police custody under general criminal law. A Judicial Magistrate may grant police custody for a term not exceeding fifteen days in total, which can be divided into parts, at any time during the initial forty days or sixty days 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, life imprisonment, or a term of not less than ten years). This aligns general criminal law with certain “special laws” that have stringent custodial conditions.

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b. Discretionary Registration of FIR:

The BNSS allows the officer in charge of a police station to conduct a preliminary enquiry to ascertain whether a prima facie case exists for proceeding with the matter within fourteen days upon receiving information relating to a cognizable offence punishable with imprisonment between three and seven years. This requires prior permission from a senior officer.

This provision seems to contradict the Supreme Court's mandate in Lalita Kumari vs. Government of Uttar Pradesh, which requires the police to register an FIR for cognizable offences regardless of the credibility of the information.

c. Handcuffing:

Contrary to the Supreme Court directions in Sunil Batra v. Delhi Administration and Prem Shankar Shukla v. Delhi Administration, the BNSS reintroduces the use of handcuffs. Section 43 of the BNSS grants discretionary powers to police officers to handcuff individuals accused of serious offences, such as rape, acid attacks, murder, sexual offences against children, drug-related crimes, and others.

This includes habitual or repeat offenders, those who have escaped custody, and individuals involved in organized crime, terrorist acts, or offences against the State.

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2. Emphasis on Technology in Investigation and Trial

a. Audio-Video Recording:

The BNSS mandates the audio-video recording of search and seizure procedures, witness statements, confessions, and appearances.

b. Forensic Science in Crime Investigation:

The BNSS mandates forensic investigation for offences punishable with at least seven years of imprisonment. Forensic experts will collect and record forensic evidence at crime scenes, with the process being videographed. This provision will come into force within five years of the BNSS enactment as notified by the State Government.

c. Biometrics:

The BNSS allows a Magistrate to order any person, even if not accused, to provide specimen signatures, finger impressions, handwriting, or voice samples in connection with an investigation or proceeding.

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d. Zero FIRs:

The BNSS provides for ‘zero FIRs,’ allowing information about a cognizable offence to be given orally or electronically to the officer in charge of any police station, irrespective of the offence location.

3. Changes in Bail Provisions

a. Detention of Undertrials:

The BNSS states that an undertrial accused of a crime carrying a life sentence is not eligible for release based on their incarceration term. It also bars release on bail for individuals with pending proceedings in more than one offence, potentially burdening accused persons facing multiple charges.

b. Anticipatory Bail:

The BNSS removes guiding factors for courts considering anticipatory bail applications, such as the nature of the accusation, criminal antecedents, and the likelihood of the accused fleeing justice. This widens judicial discretion. Additionally, it removes the requirement for the applicant’s presence during the final hearing and order passing.

4. Timelines for Investigation and Trials

a. Investigation:

• For offences punishable by three to seven years, a preliminary enquiry must be conducted within fourteen days with prior permission from the Deputy Superintendent of Police.
• Victims or informants must be informed of investigation progress within ninety days, and investigations should be completed within this timeframe, extendable with court permission.

b. Committal:

• Magistrates must commit cases triable exclusively by the Court of Session within ninety days of taking cognizance, extendable to 180 days for recorded reasons.

c. Supply of Police Report and Documents:

• Magistrates must supply the accused and the victim with a copy of the police report and documents within fourteen days of the accused’s production or appearance.

d. Discharge of Accused:

• Accused persons may apply for discharge within sixty days of receiving document copies.

e. Framing of Charges:

• Charges must be framed within thirty days from the first hearing date.

f. Judgement:

• Judges must deliver judgements within thirty days of completing arguments, extendable to forty-five days for recorded reasons.

g. Adjournments:

• Proceedings will continue daily until all witnesses in attendance are examined, with no more than two adjournments allowed.

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5. Cases Instituted on a Complaint

a. Presence of Complainant:

The BNSS allows a grace period of up to thirty days for the complainant to appear before the court if absent on any hearing day, altering the CrPC provision for discharge in compoundable or non-cognizable offences due to complainant absence.

b. Opportunity for Accused to be Heard:

Magistrates must now provide accused persons an opportunity to be heard at a pre-cognizance stage before issuing a process, a right not previously provided under the CrPC.

6. ‘Proclaimed Offender’ Provisions

a. Expanded Definition:

The BNSS expands the definition of a ‘Proclaimed Offender’ to include anyone accused of an offence punishable by more than ten years of imprisonment, ensuring they cannot repeatedly evade legal processes.

b. Trial in Absentia:

The BNSS allows for the trial and judgment in absentia for proclaimed offenders who evade arrest, recording reasons in writing for proceeding as if the offender were present.

7. Reporting Obligation Clarification

The BNSS specifies that no reporting to authorities is required for corruption and economic offences unless part of ‘organized crime.’ A ‘reasonable excuse’ for non-reporting must be proven by the person aware of the offence.

8. Role of Director of Prosecution

The BNSS clarifies the Director of Prosecution’s role in monitoring cases punishable by ten years or more, expediting proceedings, and independently deciding on appeals.

9. Witness Protection Scheme

The BNSS empowers state governments to notify witness protection programs, a provision absent in the CrPC.

10. Property Attachment, Forfeiture, and Restoration

The BNSS introduces provisions for the attachment, forfeiture, and restoration of property derived from criminal activity or “proceeds of crime,” similar to definitions under the Prevention of Money Laundering Act, 2002.

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BNSS Sections	Subject	CrPC Sections	Summary of Comparison
1	Short title, extent, and commencement	1	Contains the Act name, Bharatiya Nagarik Suraksha Sanhita, 2023, and provisions regarding the commencement date.
2	Definitions	2	Several new subsections, such as 2(1)(a), 2(1)(b), 2(1)(d), and 2(1)(e), are added, while others, namely 2(f), 2(k), 2(q), and 2(t) of CrPC, are excluded.
2(1)(a)	"audio-video electronic means"	-	Newly added.
2(1)(b)	"bail"	-	Newly added.
2(1)(c)	"bailable offence"	2(a)	No change.
2(1)(d)	"bail bond"	-	Newly added.
2(1)(e)	"bond"	-	Newly added.
2(1)(f)	"charge"	2(b)	No change.
2(1)(g)	"cognizable offence"	2(c)	No change.
2(1)(h)	"complaint"	2(d)	No change except "Code" is replaced with "Sanhita".
2(1)(i)	"electronic communication"	-	Newly added.
2(1)(j)	"High Court"	2(e)	No change.
2(1)(k)	"inquiry"	2(g)	No change.
2(1)(l)	"investigation"	2(h)	The term "Code" has been substituted with "Sanhita". Explanation that in case of inconsistency provisions of Special Act shall prevail.
2(1)(m)	"judicial proceeding"	2(i)	No change.
2(1)(n)	"local jurisdiction"	2(j)	No change.
2(1)(o)	"non-cognizable offence"	2(l)	No change.
2(1)(p)	"notification"	2(m)	No change.
2(1)(q)	"offence"	2(n)	No change.
2(1)(r)	"officer in charge of a police station"	2(o)	No change.
2(1)(s)	"place"	2(p)	No change.
2(1)(t)	"police report"	2(r)	No change.
2(1)(u)	"police station"	2(s)	No change.
2(1)(v)	"Public Prosecutor"	2(u)	No change.
2(1)(w)	"sub-division"	2(v)	No change.
2(1)(x)	"summons-case"	2(w)	No change.
2(1)(y)	"victim"	2(wa)	The words "for which accused person has been charged and the expression victim” are replaced by "of the accused person" etc.
2(1)(z)	"warrant-case"	2(x)	No change.
2(2)	Words and expressions used	2(y)	Words and expressions used in Sanhita but not defined here but defined in Bharatiya Nyaya Sanhita, 2023, and in the Information Technology Act, 2000, shall have the meanings respectively assigned to them in that Act and Sanhita.
3	Construction of references	3	CrPC sub-sections 3(1) and 3(2) are excluded; clauses (a) and (b) of sub-section 3(3) are merged and rearranged, having the same meaning except “or of the third class,” and clauses (c) and (d) of sub-section 3(3) CrPC are also excluded in BNSS.
4	Trial of offences under Bharatiya Nyaya Sanhita and other laws	4	No change.
5	Saving	5	No change.
6	Classes of Criminal Courts	6	Words "in any Metropolitan area, Metropolitan Magistrates" are excluded.
7	Territorial divisions	7	Proviso related to Metropolitan area, excluded.
8	Court of Session	9	"Assistant Sessions Judges" excluded. New subsections (7) and (8) are added. Under the BNSS, the positions of Judicial Magistrate of the third class, Metropolitan Magistrate, and Assistant Session Judges have been abolished, etc. Consequential amendments have been effected in various sections, viz. 8, 11, 12, 14, 17, 22, 29, 113, 196, 214, 320, 321, 415, 422, and 436 of the BNSS.
9	Courts of Judicial Magistrates	11	The words "not being a Metropolitan area" are excluded.
10	Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.	12	Ditto.
11	Special Judicial Magistrates	13	Ditto.
12	Local jurisdiction of Judicial Magistrates	14	The words "Metropolitan area" and Chief Metropolitan Magistrate are excluded.
13	Subordination of Judicial Magistrates	15	No change.
14	Executive Magistrates	20	The words "in any Metropolitan area, Metropolitan Magistrates" are excluded.
15	Special Executive Magistrates	21	With the new addition, State Government may appoint police officers of the rank Superintendent of Police or equivalent, as Special Executive Magistrates.
16	Local Jurisdiction of Executive Magistrates	22	No change.
17	Subordination of Executive Magistrates	23	The words "other than the additional District Magistrate" are excluded.
18	Public Prosecutors	24	New proviso is added to subsection (1).
19	Assistant Public Prosecutors	25	The timeline of fourteen days for notice to the state government for the appointment of Assistant Public Prosecutor is mentioned. Proviso is reframed but the meaning is same.
20	Directorate of Prosecution	25A	The new addition subsection (1) (b) regarding the establishment of District Directorate of Prosecution. Subsections (8), (9), (10) and (11) are also newly added etc.
21	Courts by which offences are triable	26	No change.
22	Sentences which High Courts and Sessions Judges may pass	28	Sub Section 28(3) of CrPC is excluded.
23	Sentences which Magistrates may pass	29	Change in amount of fine: ten thousand is replaced by fifty thousand, and five thousand is replaced by ten thousand. The explanation of Section 23 defines "community service." Sub-section 29(4) CrPC is excluded.
24	Sentence of imprisonment in default of fine	30	No change.
25	Sentence in cases of conviction of several offences at one trial	31	Subsection (1) is reframed but the essence is same. In subsection (2) (a) fourteen years is replaced by twenty years.
26	Mode of conferring powers	32	No change.
27	Powers of officers appointed	33	Ditto.
28	Withdrawal of powers	34	Ditto.
29	Powers of Judges and Magistrates exercisable by their successors-in-office	35	The words "Additional or Assistant session Judge" are excluded.
30	Powers of superior officers of police	36	No change.
31	Public when to assist Magistrates and police	37	The words "railway, canal, telegraph or" are excluded thereby scope of the provision is broadened.
32	Aid to person, other than police officer, executing warrant	38	No change.
33	Public to give information of certain offences	39	Ditto.
34	Duty of officers employed in connection with the affairs of a village to make certain reports	40	In subsection (2) (ii), instead of writing BNS sections corresponding to IPC sections, the offence punishable for imprisonment of ten years or more, etc., is mentioned.
35	When police may arrest without warrant	41 & 41A	A new subsection 7 is added: “No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.”
36	Procedure of arrest and duties of officer making arrest	41B	The words "any other person" is added are clause (c).
37	Designated Police Officer	41C	Sub-sections (2) and (3) of the CrPC are merged in (1) (b), and provision is given for designating a police officer not below the rank of Assistant Sub-Inspector for the said purpose.
38	Right of arrested person to meet an advocate of his choice during interrogation	41D	No change.
39	Arrest on refusal to give name and residence	42	The words "his executing a bond with or without sureties" are replaced by "bond or bail bond."
40	Arrest by private person and procedure on such arrest	43	In subsection (1), without unnecessary delay is further specified by "but within six hours from such arrest." In subsection (2), “re-arrest” is replaced by "take him in custody".
41	Arrest by Magistrate	44	No change.
42	Protection of members of the Armed Forces from arrest	45	No change.
43	Arrest how made	46	A new subsection (3) is added regarding the handcuff of a habitual or repeat offender or accused who has committed certain offences mentioned in the sub-section, etc.
44	Search of place entered by person sought to be arrested	47	No change.

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Conclusion:

In summary, the proposed changes, including prescribed timelines for inquiry, investigation, and trial, as well as the formal adoption of audio-visual and electronic methods for various processes, represent a much-needed improvement for the functioning of the criminal justice system. However, the real-world effectiveness of these provisions will hinge on their implementation and strict adherence in both letter and spirit.