An Exhaustive Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

11^th 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.

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 1/6^th 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.

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.

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.

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.

Sunishth Goyal teaches Criminal Law and Procedure as an Assistant Professor of Law at NALSAR University of Law, Hyderabad.

This piece is part of the larger work being done under the aegis of 'Centre for Criminal Justice' at NALSAR University.

The author is grateful for the invaluable comments and guidance given by the Hon'ble Vice Chancellor of NALSAR Professor Srikrishna Deva Rao.

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