How Bharatiya Nagarik Suraksha Sanhita, 2023 aims to change criminal procedure laws

On August 11, the Central government introduced the Bharatiya Nagarik Suraksha Sanhita, 2023 in the Lok Sabha to replace the Code of Criminal Procedure (CrPC)..The proposed law changes 160 provisions of the CrPC, repeals 9 sections and introduces 9 new sections..The Bharatiya Nagarik Suraksha Sanhita (BNSS) has ushered in new concepts like timelines for mercy petitions, a scheme for witness protection and permitting electronic modes for recording statements and collecting evidence..In this piece, we take a look at the new features of the Bill as well as its shortcomings..The new features introduced through BNSS are:Introducing audio-video electronic communication devices [Section 2 (a) and (f)]; Handcuffing of offenders permitted in certain grievous offences [Section 43(3)]; Using electronic modes of communication for identification of accused [Section 54], serving summons [Section 63], recording statements of accused [Section 316], witnesses [Section 265(1)], recording search and seizure [Section 176(3)] and conducting trials [Section 532]; No case to be registered against a member of the Armed Forces for any act done in obedience to orders in the discharge of official duties, without making a preliminary enquiry into the matter. [Section 151(2)]; On the information received for an offence which is punishable between 3-7 years, the police officer is to conduct a preliminary enquiry with the prior permission of an officer not below DSP rank within 14 days and conduct an investigation only if a prima facie case exists [Section 173(3)]; On information of offences punishable for more than 7 years, a specified police officer will have to ensure a forensics expert visits the crime scene to collect forensic evidence and also videograph the entire process on any electronic device [Section 176(3)]; A magistrate can take cognizance of a complaint against a public servant arising from the discharge of his duties after receiving a report on facts from his superiors about the incident and after the assertions made by the servant about the situation that led to the incident so alleged [Section 210(3)]; Detention in police custody only allowed in a station and detention in judicial custody only in a prison or a place declared as such by the government. It could imply that no house arrests are permitted. [Section 187]; Police are to inform the victim or complainant about the progress of the investigation within 90 days [Section 193(3)(ii)]; The new Bill also allows conduct of investigation during the trial, with permission of the court, and to be completed within 90 days which may be extended by the court; Timelines for filing discharge application - Accused can file an application within 90 days but with an extension of no later than 180 days [Section 250]; Judgment of acquittal or conviction to be given within 30 days which may be extended up to 60 days with reasons [Section 258]; If a public servant or expert is to be examined for a document prepared by them for evidence, but if they are transferred or incapable of deposing, then the court shall secure the presence of the successor officer [Section 336]; No more than two adjournments can be granted during the hearing even if there are unavoidable circumstances [Section 346]; When a person declared as a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the right of such person to be present and tried in person shall be deemed to be waived. The court shall proceed with the trial as if he was present [Section 356]; Empowers state governments to notify witness protection schemes [Section 398]; A capital punishment convict or his legal heir may file a mercy petition before the President or the Governor within 30 days of being informed by the jail superintendent of the dismissal of the appeal by the Supreme Court or confirmation of the death sentence by the High Court and expiry of limitation to appeal. The President may dispose of mercy petitions of all convicts together in the interest of justice. [Section 473]; Bail is defined as the "release of a person accused of an offence from the custody of law upon certain conditions imposed by an officer or court including execution by such person of a bond or a bail bond." [Section 479]; Under the new bill, the court may grant anticipatory bail if it deems fit. The specific factors to be considered are removed in [section 484]..The positives.The new Bill provides definite timelines for a lot of procedures that otherwise are not present in the CrPC. There is also a deadline for medical officers to submit their reports after their investigation.The BNSS defines and clarifies certain procedures. For instance, the provision for producing an arrested person before a magistrate within 24 hours. It clearly defines that an accused can be produced before "any" magistrate "irrespective of jurisdiction"..The negatives.The proposed code, however, does not simplify the procedures prescribed under the present law.The BNSS emphasizes the use of electronic modes for recording statements of the accused and witnesses and simultaneously calls for their signatures on the statement which is recorded. This may not serve the purpose of permitting electronic recording. The provision requiring a DSP-level officer to conduct a preliminary enquiry before proceeding with the actual investigation may lead to delay in finding crucial pieces of evidence. The provision allowing investigating agencies to investigate during the course of the trial, could lead to more delays.The provision allowing police officers to use handcuffs against persons accused of offences of a certain “gravity” may trample on basic fundamental rights. While bail has been defined in the proposed code, there is still no clarity on the factors which a court should consider while granting bail in non-bailable offences. The factors which were mentioned for the grant of anticipatory bail under the CrPC have been removed. The new provision for anticipatory bail (Section 484) mentions that “bail may be granted if the court deems fit,” which is a vague phrase that could lead to arbitrariness. Further, while the issue of remand is clarified, transit bail is still not defined in the BNSS..[Read chart comparing existing act and proposed bill]