THE BHARATIYA NAGRIK SURAKSHA SANHITA 2023

INTRODUCTION

The newly introduced criminal laws in India, namely the Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, replacing the contemporary criminal laws, namely the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and the Indian Evidence Act, 1872, respectively, have become a topic of debate and discussion.

The government cited the reasons why old, archaic, and obsolete laws were required to be replaced with modern and contemporary laws, saying that these (new criminal laws) are more Indian in nature and suit the needs of Indian society. Additionally, there has been much advancement in science and technology in the past few decades, and the use of such technology must also be reflected in our criminal justice system.

Accordingly, this article aims to present before the readers the changes that have been brought up by the Bhratatiya Nyaya Suraksha Sanhita, 2023, and also to present an analysis of the same. The consequential changes, like the change in the section numbers, the change in the reference to IPC as BNS, and other related changes, have not been discussed in the article. Instead, the article aims to discuss the significant changes that have been brought about by way of addition, deletion, and substitution.

CRPC v. BNSS

New Crpc 2023 incorporates following changes into it.

1. DELETED PROVISONS WHICH NO LONGER REQUIRED

There were some provisions in the Crpc that were no longer required and, accordingly, were deleted from the BNSS Act 2023, or the new criminal law. Those provisions may be summarized into the following points:.

1. Deletion of provision of metropolitan magistrate: Section 8 of the Crpc provided for the metropolitan magistrate for metropolitan areas such as Delhi, Mumbai, and Agra, which has now been deleted, and now, so as to bring uniformity, they would also be named as the Judicial Magistrate.
2. Persons of unsound mind are now to be called persons with intellectual disabilities or persons with mental illness. This change has been incorporated in Section 198 of the Crpc as well as Chapter 25, which now reads as provisions with respect to the accused mental illness.
3. Section 153 of the CrPC, which gave the police unbridled powers to search any place without a warrant for the seizure of weight and measures, has been deleted.
4. Section 64 of the CrPC, which talked about the service of the summons and stated that in the absence of the accused, it could only be served to the male member of the family, also stands deleted in the BNSS. Now it may be served to females as well.
5. Additionally, the provisions related to thug and assistant Sessions Judge also stand deleted from the BNSS.
6. Provisions required to be added to the Account of Science and Technology

The following changes have been recognized to honor the development of science and technology in the country.

1. All the criminal processes, from trials, inquiries, proceedings, examinations of parties, and other processes, are also required to be done electronically.
2. Statements, also under Section 157 of the CRP, may be recorded on the phone. Also, whenever the police receive information about the commission of an offense that is punishable for more than 7 years, it has been made mandatory for the forensic team to visit the scene, collect samples, and do videography.
3. The FIR mentioned under Section 154 CrPC can also be registered online or electronically.
4. Searches conducted under Section 165 Crpc to be ectronically and to report them within 48 hours. Earlier, there was no such provision.
5. VICTIM PROTECTION PROVISIONS

There have always been arguments that victims have not been sufficiently protected in the criminal justice system. Therefore, certain provisions have been added up so as to make the provision more victim-friendly.

1. During the committal proceedings, an application filed by the victim shall also be forwarded to the session court. Copies of documents and police reports filed under Section 207 Crpc shall also be given to the victim.
2. Section 249 Crpc, which mandated dismissal of a complaint in the absence of the complainant, has been amended to the extent that the magistrate can give the complainant 30 days’ time before discharging the accused.
3. Withdrawal Application under Section 321 Crpc- Now before allowing withdrawal application, it has been mandated that victim must be heard.
4. A witness protection scheme has to be prepared by the state government, as mandated under Section 398 BNSS.
5. BAIL PROVISIONS SIMPLIFIED

The Court has now simplified the provision of bail.

1. A clear definition of bail and bail bonds has been provided.
2. Section 436A of the CrPC now stands modified: a first-time offender pending trial is now eligible for mandatory bail after having undergone 1/3 of the punishment that was ½ earlier. Also, it has been the duty of the jail superintendent to apply for bail for that person.
3. Time Limit and Spaedy Procedure

The BNSS, to a major extent, cites a time limit for most of the procedures. For example

1. Nuisance under Section 133 Crpc needs to be removed in 90 days.
2. A medical examination of the rape victim needs to be completed in 7 days.
3. The police investigation has to be completed in 90 days.
4. The inquest proceeding report is to be completed within 24 hours.
5. Committal proceedings are to be completed in 90 days.
6. Copies of the documents under Section 207 CrPC are to be submitted to the accused within 14 days.
7. If no sanction is given for the prosecution of judges and public servants within 120 days, then it shall be taken as a deemed sanction.
8. A charge must be filed within 60 days of the first hearing.
9. Judgment must be pronounced within 45 days of the conclusion of the trial. It needs to be uploaded online within 7 days of its pronouncement.
10. Under Section 219 Crpc, the limit of the joint trial for the offense has been extended to 5.
11. Any order of custody of perishable property during trial within 30 days.
12. Under Section 453 of the CrPC, if an innocent purchaser is to be compensated, then the same must be done within 6 months.
13. Any offense for which the punishment is less than 3 years can be tried.
14. THE MOST DEBATABLE OR WORRYSOME PROVISIONS

The following are the negative changes incorporated under the BNSS:.

1. Power of a police officer to arrest any person for not following any direction issued by it: According to Section 172 of the BNSS, a police officer may arrest any person if that person doesn’t confirm any lawful direction issued by the police.
2. Amendment of Section 46 of the CrPC (Arrest How Made): Now police officers have been given the power to handcuff any person considering the nature and gravity of the offense.
3. Amendment of Section 311A of the Crpc: This section has now been amended under the BNSS so that the magistrate may now ask any person, whether that person has been previously arrested or not, in relation to the commission of the offense, to give specimens, samples, and handwriting samples.
4. Amendment in the provision of commutation of sentences: the provision of commutation of sentences has been made stricter in the BNSS. Now the sentence of death can’t be commuted to any other sentence except death. A sentence of life imprisonment can be commuted only to imprisonment up to 14 years.
5. Amendment to Section 154 of the Crpc-Now new section of the FIR, i.e., Section 173 BNSS, whenever there is an offense that is punishable with 3 years or more but not less than 7 years, the officer in charge of the police station, with the prior permission of the District Superintendent of Police, shall proceed to conduct an investigation whether a prima facie case is made out or not within 14 days of the receipt of information. This is a cause for concern, as it is apprehended that this section would undo the effect of the case of Lalita Kumari v. State of UP.
6. Amendment to Section 167 Crpc: Now Section 187 of the BNSS doesn’t use the words “otherwise than in custody of police.” This poses the question of whether an accused for an entire period of 60 or 90 days can be under police custody. This is one of the most controversial provisions of the BNSS.

Earlier in the case of CBI v. Anupam J. Kulkarni, the Supreme Court clarified that police custody is allowed only for an initial period of 15 days. After that, there can only be judicial custody. However, one must note the 2023 Supreme Court case on the same issue, i.e., V. Senthil Balaji v. State (2023), wherein the Supreme Court stated that the maximum period of police custody is meant to be applied for the entire period, i.e., 60 or 90 days.

CONCLUSION

Definitely on account of passing of decades after the enactment of Crpc, certain changes were desirable and much needed. The BNSS is a right step in that direction as it directs those changes. Use of science and technology in the criminal procedure make the procedure more speedy, transparent and efficacious. Apart from that provision for the protection of victims and witnesses are in very much with the need of time. However, certain amendments like police may arrest anyone on not following its direction or provision of handcuffing are definitely present a cause of worry.

No matter how advanced the criminal procedure code of any country may become or how much scientific and technological procedure it incorporates, if it infringes upon the fundamental rights of its citizens, it would not serve its purpose. Because India still follows the old adage of its criminal jurisprudence, let alone a hundred culprits be set free, but one innocent must not be punished.