Overview Of The Bharatiya Nagarik Suraksha Sanhita BNSS 2023

Criminal Law

By: Admim Date: Dec 21 2024

Overview Of The Bharatiya Nagarik Suraksha Sanhita BNSS 2023

Introduction to Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagrik Suraksha Sanhita (BNSS), is a legislative framework aimed at strengthening the security, rights, and well-being of citizens in India. The BNSS is an effort to modernize and reform the legal mechanisms that protect the rights of Indian citizens in various aspects, especially in the context of law enforcement, public safety, and individual freedoms.

Purpose of the Bharatiya Nagarik Suraksha Sanhita

The primary aim of the Bhartiya Nagarik Suraksha Sanhita is to create a comprehensive legal structure that ensures the protection of citizens' rights while maintaining law and order. It emphasizes the need to safeguard individuals from exploitation, harassment, and abuse, whether by public authorities, private parties, or criminal elements.

The BNSS seeks to establish clear and transparent guidelines for law enforcement agencies, promoting a balance between state power and individual rights. It is designed to provide a legal foundation for responding effectively to contemporary challenges, including cybercrime, terrorism, organized crime, and violations of personal freedoms.

Some of the major features of the Bharatiya Nagarik Suraksha Sanhita include:

1. Strengthening Law Enforcement: It introduces provisions that empower law enforcement agencies to handle crimes more efficiently while ensuring that police procedures are just and human rights are respected.
2. Protection Against Abuse of Power: The code includes safeguards to prevent the misuse of power by government agencies, ensuring that citizens are not subjected to unlawful detention or torture. The legislative has included reforms and guidelines for the conduct of police issued by the SC in landmark cases under Chapter V (Arrest of persons)
3. Rights of the Accused: The BNSS upholds the fundamental rights of those accused of crimes, such as the right to a fair trial, right to inform family members and protection from arbitrary arrest in the same chapter.
4. Incorporation of Modern Challenges: The code takes into account emerging threats such as cybercrime, terrorism, and organized crime, providing mechanisms to tackle these in a systematic and lawful manner. The new provisons regarding bail and custody have been changed so that the police has enough time to investigate properly.
5. Focus on Victim Protection: For the first time in law, special emphasis is placed on providing support for victims of crime, with measures designed to help them navigate the legal system and secure justice. This is done through sections concerning victim compensation, witness protection and community service as a punishment.

Why is the Bharatiya Nagarik Suraksha Sanhita Important?

In a rapidly changing world, new forms of crime and threats to security are emerging regularly. The BNSS aims to address these by updating the legal processes that govern how citizens' safety and rights are maintained. Here are a few reasons why this initiative is significant:

1. Better Legal Clarity: By consolidating various laws and creating a unified code, the BNSS helps ensure that citizens understand their rights and obligations more clearly. Also a greater awareness of people is expected with the replacement of a lot of old legal words with words that a layman might understand.
2. Accountability: By establishing mechanisms for accountability in law enforcement, the code helps ensure that the government and law enforcement agencies act within their constitutional boundaries. Introduction of a proper Directorate of Prosecution will help manage the management of cases by the police as well help keep an eye on their progress at the state and national level both.
3. Enhanced Security: The code strengthens the legal framework for dealing with issues like terrorism, cyber threats, and organized crime, which are critical in today’s interconnected world.
4. Rights Protection in the Digital Age: In a time when digital rights are becoming increasingly important, the BNSS addresses the need for laws that protect citizens’ personal data and prevent misuse by cybercriminals and also includes a proper introduction of electronic materials and devices in the investigation and trial process.

Challenges

While the BNSS represents a significant step forward, there are certain challenges and criticisms that need to be addressed:

1. Implementation Challenges: Ensuring that law enforcement agencies and judicial bodies implement the provisions effectively is a major concern. The success of such a law depends heavily on training and resources available to those responsible for enforcing it. Presently, the SC is hearing cases regarding this where questions on implementation of arrest procedures have been raised.
2. Balance Between Security and Rights: Critics have raised concerns that in some instances, such a code may inadvertently lead to violations of privacy or overreach by the state.

Striking the right balance between ensuring security and protecting individual freedoms is crucial. This falls at the end on the hands of police and legislative, who will need to be sensitive to the needs and requirements of justice as envisaged in the code.

The Bharatiya Nagarik Suraksha Sanhita is an important initiative aimed at fortifying the legal and constitutional protections available to Indian citizens. It seeks to adapt India's legal infrastructure to the realities of modern crime and threats while respecting individual rights. As the nation evolves and faces new challenges, laws like the BNSS will be crucial in shaping a safer and more just society. For students, it is essential to understand the importance of such legal frameworks in maintaining a balance between individual freedoms and national security, ensuring that as citizens, they are both protected and responsible within the system.

Bharatiya Nagarik Suraksha Sanhita (BNSS): The New Code

A "Code" is a collection, compendium or revision of laws. It is a complete system of positive law, scientifically arranged and promulgated by legislative authority. Criminal procedure is the method laid down by law for the apprehension, trial, or prosecution, and fixing the punishment, of those persons who have broken or violated, or are supposed to have broken or violated, the laws prescribed for the regulation of the conduct of the people of the community, and who have thereby made themselves liable to fine or imprisonment or other punishment. The Code of Criminal Procedure, 1973 was enacted to consolidate and amend the law relating to criminal procedure.

Although the Criminal Procedure Code, is mainly an adjective or procedural law, it deals with many other things like for instance the constitution and classification of criminal courts, defines their powers, lays down the procedure for criminal proceedings, inquiries or trials, prescribes the duties of the Police in arresting offenders and investigating offences and also contains provisions for their prevention. The Criminal Procedure Code, 1882 consolidated the earlier Acts and prescribed the uniform law for all courts in India. It was superseded by Act 5 of 1898 and substantial changes were made by Acts 18 of 1923 and 26 of 1955. There were also local amendment acts of several State legislatures to bring about the separation of the judiciary from the executive. The Code of Criminal Procedure, 1973, was based on the recommendations of the Law Commission made in its Forty-first Report presented in September, 1969 and replaced the old Code of 1898.

The Code of Criminal Procedure, 1973 regulates the procedure for arrest, investigation, inquiry and trial of offences under the Indian Penal Code and under any other law governing criminal offences. The Code provides for a mechanism for conducting trials in a criminal case. It gives the procedure for registering a complaint, conducting a trial and passing an order, and filing an appeal against any order.

The need for BNSS

Fast and efficient justice system is an essential component of good governance. However, delay in delivery of justice due to complex legal procedures, large pendency of cases in the Courts, lack of use of technology in legal system, delays in investigation system, inadequate use of forensics are the biggest hurdles to address the delivery of justice, which impacts citizens, especially who live lower on the social ladder adversely. In order to address these issues in a citizen centric way, a new criminal procedure became the need of the hour.

The experience of seven decades of Indian democracy called for a comprehensive review of our criminal laws, including the Code of Criminal Procedure and adapt and adopt them in accordance with the contemporary needs and aspirations of the people.

The Government with the mantra, "Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas" is committed to ensure speedy justice to all citizens in conformity with these constitutional democratic aspirations. The Government is committed to make a comprehensive review of the framework of criminal laws to provide accessible and speedy justice to all. In view of the above, it is proposed to repeal the Code of Criminal Procedure, 1973 and enact a new law, namely, the Bharatiya Nagarik Suraksha Sanhita, 2023.

Enactment

Therefore, the Central Government deemed it fit to repeal the 1973 Code. Shri Amit Shah, the Minister of Home Affairs and Cooperation introduced the Bhartiya Nagrik Suraksha Sanhita, 2023 to replace the Code of Criminal Procedure, 1973 in Lok Sabha on 11th August 2023 and was referred to the Standing Committee. The same was withdrawn and reintroduced as Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 on 12-12-2023 and was passed by both the Houses of Parliament and assented by Hon'ble President of India on 25-12-2023. This law came into force on 1st July 2024 and it has the same territorial extent as Criminal Procedure Code 1973, which was across India, except its selective application in the state of Nagaland and some tribal areas.

Significance

It provides for the use of technology and forensic sciences in the investigation of crime and furnishing and lodging of information, service of summons, etc., through electronic communication. Specific time-lines have been prescribed for time bound investigation, trial and pronouncement of judgements. A copy of the first information report would be supplied to the victim and they will be informed about the progress of investigation, including by digital means. In cases where the punishment is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the Government. Summary trial has been made mandatory for petty and less serious cases. The accused persons may be examined through electronic means, like video conferencing. The magisterial system has also been streamlined.

As we can see from the preceding overview, a lot of changes that are not just efficient, but citizen centric too have been brought.

We shall now see some of the details of the changes brought about through the new laws.

Structure of Bharatiya Nagarik Suraksha Sanhita

This act consists of 39 Chapters and 2 schedules.

Some significant changes

1. Constitution and power of courts

The concepts of ‘Metropolitan areas’ and ‘Metropolitan Magistrates' have been abolished. Apart from that, the post of Assistant judges have been removed too. In the new act, even police officers above the rank of Superintendent of Police can be appointed as Special Executive Magistrates. The power of punishment has also been brought upto par with the modern era with an increase in the minimum amount of fines.

In the absence of any assistant public prosecutor in an area, the District Magistrate of that district has the power to appoint an APP after giving a notice of 14 days to the State government. A Directorate of Prosecution has been properly established through this act, where the Director of prosecution shall monitor all cases, police reports and ensure proper and if needed, expeditious disposal of cases.

2. Proclaimed Offender

As per Section 82(4) of Criminal Procedure Code as per 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 or460”. This led to situations where someone repeatedly evading the legal processes of summons/warrant for any other offence under general penal code of IPC or any other special law as they could not be declared as a Proclaimed offender. In BNSS, those sections have been removed and any accused of an offence with more than 10 years of imprisonment or other special offences could be declared a proclaimed offender. This has allowed the government to declare those people who commit financial irregularities and then escape the country as proclaimed offenders and take possession of their property.

3. Trial in absence

To deal with such loan defaulters and other accused who commit economic crimes and then escape the country, Section 356 has also been added as a new provision. It has been titled as ‘Inquiry, trial or judgement in absentia of proclaimed offender’. This section allows the court to proceed in a case involving a proclaimed offender without the offender being present after he has been served warrants in various ways. Also in such cases, appeal shall only lie against the judgement when the offender has presented himself before the court of appeal.

4. Zero FIR

In Section 173 of BNSS (Information in cognizable cases) previously known as Section 154 of Cr.P.C., a new concept of zero FIR has been introduced which makes it mandatory for the police to take receipt of any information of commission of any cognizable offence punishable with more than 3 years but less than 7 years. The police officer shall, after due permission from the Superintendent of the Police, conduct a preliminary inquiry within 14 days of the receipt of information, and if necessary proceed with investigation. This inclusion of a definite timeline in investigation as well as in other places of the act not just assures the victims of a proper redressal, but also makes monitoring of the functioning of the police officials by higher authorities by submission of timely reports.

This information shall later on be transferred to the police station which has jurisdiction if the information has been received about an offence which was committed outside the police station's jurisdiction. This inclusion solves a long-standing problem in the society where receipt of information of commission by the police had become a drag as people had to run around figuring out the jurisdiction of the police station where they could submit information for the police to initiate preliminary inquiry, leading to harassment of the victims and delay in cognizance of information and further investigation.

5. Definite timelines for investigation

BNSS reiterated timelines from the Cr.P.C. and also includes new ones so that the criminal procedure can end quickly and be justiciable. 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.

6. Summary Trials under BNSS

Section 283 of BNSS makes it mandatory for petty and less serious cases. Under Cr.P.C., it was discretionary. It also expands its scope by increasing the monetary limits for petty offences and property stolen. The introduction of new subsection 283(2) also gives the accused a reasonable opportunity of being heard before trial and no appeal shall lie against the decision of a magistrate to try a case summarily. This section though has been challenged in the Supreme Court, where a question has been raised as to the difference in when the accused shall be heard in complaint cases and police cases.

7. Inclusion of electronic and forensic means in investigation and trial

The BNSS has sought to adopt electronic communication at various stages including investigation, trial, and inquiry. BNSS also gives regard to information as to commission of a cognizable crime be given through electronic means.

A summons issued by a Court under Section 63 (corresponding to Section 61 of the CrPC), or a witness under Section 71, or a warrant may also be in the form of electronic communication. Section 94 of the BNSS (Section 91 of the CrPC) now permits a Court or an officer in charge of a police station to summon electronic communication which is likely to contain digital evidence. Section 231 of the BNSS provides that supply of copies of statements and documents to accused in other cases triable by Court of Session are permitted to be issued by the Magistrate in an electronic form.

Under Section 176 of the BNSS providing for procedure for investigation of cognizable offence(corresponding to Section 157 of the CrPC), the statement of the victim may also be recorded through audio-video electronic means including a cell phone, as also that of a witness under Section 265(3) of the BNSS. Similarly, Section 185 of the BNSS (dealing with search by a police officer corresponding to Section 165 of the CrPC) requires the search to be recorded through audio-visual electronic means preferably by cell phone.

A Court or an officer in charge of a police station can compel production of communication devices which are likely to contain digital evidence from the person who is in possession of such digital evidence. Section 355 of the BNSS (corresponding to Section 317 of the CrPC) now inserts a new explanation to subsection (2) providing that personal attendance of the accused includes attendance through audio video electronic means. In the same vein, Section 530 of the BNSS allows that all trials, inquiries and proceedings including issuance, service and execution of summons and warrant; examination of complainant and witnesses; recording of evidence in inquiries and trials; and all appellate proceedings or any other proceeding may be held in electronic mode, by use of electronic communication or the use of audio-video electronic means.

Section 355 of the BNSS (corresponding to Section 317 of the CrPC) now inserts a new explanation to Section 355(2) providing that personal attendance of the accused includes attendance through audio video electronic means. Section 530 of the BNSS now allows that all trials, inquiries and proceedings including issuance, service and execution of summons and warrant; examination of complainant and witnesses; recording of evidence in inquiries and trials; and all appellate proceedings or any other proceeding may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

8. Custody of an accused

The definitions of bail, bond, and bail bond have also been added to Section 2 of the BNSS. The BNSS now provides that where an investigation, inquiry, or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court.

Under Section 187(2) of the BNSS (corresponding to Section 167(2) of the CrPC), a Magistrate to whom an accused is forwarded, may authorize detention in custody of the accused for a term not exceeding 15 days in the whole, or in parts at any time during the initial 40 days out of 60 days or 60 days out of 90 days. The Magistrate may now authorize detention in police custody beyond the period of 15 days if there exist adequate grounds for doing so. However, such detention shall not exceed 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of 10 years or more, or 60 days in case of any other offence. This extension and custody with gaps ensures that the rights of prosecution are balanced with citizen's rights.

9. Witness protection scheme

By virtue of Section 398 of the BNSS, every State government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of witnesses.

Conclusion

These changes along with many others have brought this present criminal code more suited to the Indian legal scenario. Initiation of criminal procedure even through a call informing of a crime has brought the law up to the present age. Changes brought in the process of arrest make sure that the arrested person or his family do not have the fear that was associated with arrest earlier. The sections also make it clear the way the arrest can be made and has widened the power of police to effect arrest when necessary. Investigation itself is to be conducted in a timely manner and video graphed and recorded properly so that the process of prosecution becomes easier not just for the State, but for the victim to understand, and for the accused to prepare a proper defence too. A lot of sections have been amended so that the people who are accused of socio-economic crimes are prosecuted and punished justly. Punishments such as community service and protections such as witness protection schemes are steps which will lead to furthering criminal jurisprudence and implementation in India.

This code has taken into account a lot of recommendations of the Supreme Court of India, and also made its language easier so that any literate person can deduce what the law says. But this change in language has led to problems in interpretation and application and have been inadequately explained upon which a lot of hue and cry were raised by the civil society and filing of litigation in various places in the country. The apex court is presently hearing them and 2 cases with respect to constitutionality of such sections being heard by the SC. The honorable court will hear them in the first months of 2025 and shall clear up the present interpretation of laws.

Questions have been raised on the multiple interpretations of law being used as a shield to protect or bail out socio-economic criminals. Usage of handcuffs, mandatory bail, chain of evidence and other provisions have been challenged and faced criticism. The lack of addressing violence faced by marginalized sections of the society has also been questioned.

In the end, law, especially in a dynamic and diverse society such as India, shall continue to evolve, either through the legislative or the executive or through the culture prevalent, and become better at maintenance of law and implementation of a fair procedure. This requires deliberation and debate by all sections of the society, from the ones who make the law to the ones who face the effects of it. And this can lead to better ways to implement the present laws and present a clearer picture of what steps might be needed. This present criminal code has brought to keep up with the times, and it does try to balance solving the persistent problems faced by the prosecution, as well as makes it a citizen-centric law.