Decoding India’s New Code of Criminal Procedure -BNSS 2023

Introduction

The historical framework of India’s criminal justice system traces its roots to the Code of Criminal Procedure, 1898. In the post-independence era, recognizing the need for reform, the Law Commission of India recommended a significant overhaul, leading to the replacement of the 1898 Code with the Code of Criminal Procedure, 1973 (CrPC). The primary goal was to enhance the efficiency of criminal procedures and the overall justice system in the country.

Evolutionary Transition: From 1898 to 1973

In the aftermath of independence, the Law Commission of India played a pivotal role in advocating for a comprehensive transformation in criminal procedures. This resulted in the formulation and adoption of the Code of Criminal Procedure, 1973 (CrPC), signifying a progressive step towards refining the legal landscape.

Milestone Legislation of 2023

On August 11, 2023, the Government of India introduced a trio of legislative measures in the Lok Sabha, marking a watershed moment in the country’s legal history. These include the Bharatiya Nyaya Sanhita, 2023 (New Penal Code), the Bharatiya Sakshya Bill, 2023 (New Evidence Act), and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – the New Code of Criminal Procedure. The overarching objective of these statutes is to annul outdated, pre-independence, 19th-century colonial-era criminal laws, commemorating 75 years of Independence.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), positioned as the New Code of Criminal Procedure, represents a pivotal departure from the historical legal framework. Envisaged as a comprehensive response to the evolving needs of society, BNSS aims to establish a modern and robust criminal justice system aligned with the principles of a free and sovereign nation.

The introduction of BNSS is grounded in the government’s commitment to shedding archaic legal vestiges and embracing a contemporary, citizen-centric approach to criminal justice. With the repeal of antiquated laws and the ushering in of BNSS, India takes a significant stride towards aligning its legal infrastructure with the ethos of a dynamic, independent nation

The BNSS aimed to address the challenges in the Indian justice system, including delays, complex procedures, high case pendency, low conviction rates, limited technology usage, investigative delays, and insufficient application of forensics.

Subsequently, on August 18, 2023, the Chairman of the Rajya Sabha, in consultation with the Lok Sabha Speaker, referred the BNSS to the Departmental Parliamentary Standing Committee on Home Affairs for examination and a report within three months.

The Standing Committee submitted its 247th report to the Rajya Sabha on November 10, 2023. Noteworthy is the Committee’s observation that the BNSS adheres to Article 348 of the Constitution, which mandates Bills and Acts to be in English.

Following the Standing Committee’s recommendations, the government withdrew the bills, introducing amended versions in the Lok Sabha on December 12, 2023. The Lok Sabha passed the bill on December 20, 2023, and the Rajya Sabha followed suit on December 21, 2023. The bills now await presidential assent.

This article offers a comprehensive overview of key modifications brought to the criminal procedure under BNSS, shedding light on the transformative aspects of the legislative changes.

Salient Characteristics of BNSS 2023

First Information Reports (FIRs)

New protocols have been established regarding the registration of First Information Reports (FIRs).

Zero FIR

A pivotal amendment in the FIR registration process is the incorporation of the “Zero FIR” concept. A Zero FIR can be filed at any police station, irrespective of its jurisdiction. Once registered, the respective police station must transfer the case to the appropriate jurisdiction for further investigation.

Origin and Evolution

The idea of Zero FIR was first recommended by the Justice J.S. Verma Committee on Anti-Rape laws in response to the Nirbhaya incident. Although the Government of India issued an advisory on May 10, 2023, encouraging Zero FIR registration, the CrPC did not formally include provisions for it.

Despite the advisory, law enforcement agencies often declined to register Zero FIRs, causing investigative delays and loss of evidence. BNSS2 now rectifies this by providing legal backing to the concept of Zero FIR. It mandates police stations to register FIRs for cognizable offences, regardless of jurisdiction.

Addressing Delay Challenges

The statutory recognition of Zero FIR is a crucial step in combating delays, particularly in apprehending suspects and recovering evidence. This becomes especially significant in cases involving forensic evidence or where the potential for document destruction or tampering exists. The provision aligns with the government’s broader strategy to expedite the criminal justice process.

FIR Registration via Electronic Communications

Electronic FIR Registration: A Progressive Shift in BNSS2

In a noteworthy advancement, BNSS2 introduces the provision for FIR registration through electronic communication, subject to specified conditions. The legislation mandates that such information, once provided, should be officially recorded within three days, following the sign-off by the informant.

Implementation Challenges and Recommendations

To effectively implement this provision, it becomes imperative to modernize police stations by integrating essential IT infrastructure and fostering digitization. Additionally, making email addresses and relevant details of all police stations publicly accessible is crucial. Designating government email addresses for investigating officers and police stations can enhance the authenticity of communications.

While the legislation allows a three-day window for the informant to sign the electronic communication, operational details remain unclear. Providing safeguards, such as insisting on the informant’s submission of details and identity card, can address potential ambiguities. Furthermore, establishing a designated contact person responsible for handling electronically received complaints within the government can streamline the process.

Preliminary Inquiry in BNSS2: Examining Statutory Provisions and Concerns

Statutory Incorporation of Preliminary Inquiry

Clause 173 (3) of BNSS2 imparts legal standing to the concept of a preliminary inquiry, a feature previously outlined in select police regulations and manuals. This inquiry is confined to cognizable offences punishable with imprisonment ranging from three to less than seven years. The BNSS2 mandates a time-bound execution, requiring completion within 14 days from the receipt of information.

Discrepancies with Supreme Court Directive

Contrary to the Supreme Court’s ruling in Lalita Kumari v. Government of India, which mandated immediate FIR registration upon receipt of information about a cognizable offence, BNSS2 introduces the provision for a preliminary inquiry. This inquiry aims to establish whether a prima facie case warrants FIR registration. However, the Supreme Court’s directive emphasized that a preliminary inquiry should only determine if a cognizable offence is disclosed, not whether a prima facie case is established.

Potential for Discretionary Refusal and Misuse

The requirement for a preliminary inquiry to establish a prima facie case raises concerns. It grants investigating agencies the authority to assess the viability of a case even before formal investigation, potentially allowing them to refuse FIR registration based on their discretion. This provision could be susceptible to misuse, enabling harassment of victims or informants and paving the way for the creation of ante-dated FIRs.

Extended Authority for Property Attachment and Forfeiture in BNSS2

A notable feature of BNSS2 is the provision granting magistrates the power to attach property identified as ‘proceeds of crime’. These powers closely mirror those bestowed upon the Directorate of Enforcement and Adjudicating Authority under the Prevention of Money-Laundering Act, 2002 (“PMLA”), albeit without the accompanying safeguards.

Crucially, the exercise of these powers under BNSS2 is not confined to a schedule of offenses but may encompass all offenses under the Indian Penal Code (IPC). The inclusion of the terms “result of criminal activity” provides substantial flexibility to these powers. Additionally, akin to the provisions in the PMLA, this authority extends beyond tracing the property to include the attachment of any equivalent assets.

Beyond the pre-existing authority granted to the Magistrate under the Criminal Procedure Code (CrPC) to attach properties, the Magistrate now has the power to attach properties based on an application from an investigating officer. This application must provide reasons to believe that the property in question is derived or obtained through criminal activity or the commission of an offense. The Magistrate is empowered to take such action under specific circumstances.

The Magistrate, after hearing all relevant parties, can order the attachment of property determined to be ‘proceeds of crime.’ Additionally, in cases where the Magistrate believes that issuing notice to the property owner before attachment would undermine the purpose of the attachment or seizure, an ex parte interim order for attachment may be passed.

Upon establishing that the property in question constitutes proceeds of a crime, the Magistrate will instruct the District Magistrate to equitably distribute the property among those who suffered from the crime

This provision offers fewer safeguards compared to the Prevention of Money Laundering Act (PMLA). Under the PMLA, the Directorate of Enforcement’s interim attachment requires confirmation by an Adjudicating Authority appointed under the Act. The confirmation process involves the Directorate of Enforcement filing a comprehensive complaint, detailing the reasons for the attachment.

After considering the complaint and hearing both the Directorate of Enforcement and the owner of the attached property, the Adjudicating Authority must provide ‘reasons to believe’ for confirming the attachment. Subsequently, the attachment undergoes scrutiny by the Special Court, which, following a thorough trial involving evidence recording, determines whether money laundering offenses under the PMLA have been established, and if the property is indeed linked to money laundering.

BNSS2 lacks the safeguards present in the Prevention of Money Laundering Act (PMLA). Unlike the PMLA, BNSS2 grants the magistrate unrestricted authority not only to attach but also to dispose of the property before determining the guilt of the accused. It is noteworthy that the Supreme Court, in the case of Vijay Madanlal Choudhary v. Union of India (2022 SCC Online SC 929), upheld the attachment provision under the PMLA, emphasizing the importance of adhering to specified safeguards. Without these safeguards, the provision in BNSS2 may face challenges in withstanding judicial scrutiny

The act of interim attachment is a significant and drastic measure. In BNSS2, the Magistrate is authorized to issue an order of interim attachment without necessitating the provision of an opportunity for the accused to be heard. Interestingly, such an attachment order can be issued by a court that lacks jurisdiction to conduct the trial, meaning a court that has jurisdiction only to take cognizance of the matter or commit it for trial.

The constitutionality of this provision may necessitate reconsideration, as it grants the magistrate the authority to attach the property of the accused regardless of whether the individual has been proven guilty of the alleged crime. This attachment and distribution are permissible even during the investigation phase, resembling a form of pre-trial punishment, as it deprives the person of their property without adhering to the established legal procedures. Additionally, there could be an overlap with the Directorate of Enforcement’s power to attach properties under the Prevention of Money Laundering Act (PMLA).

Another modification regarding property attachment is that, upon a written request from a police officer (not below the rank of Superintendent of Police or Commissioner of Police), the Court can initiate the process of seeking assistance from a Court or authority in a contracting state for the attachment or forfeiture of assets belonging to a proclaimed offender. This provision appears to aim at securing the presence of fugitives or seizing the properties of individuals evading summons, investigation, or trial and possessing assets outside the country.

However, a potential overlap exists between this provision and the Fugitive Economic Offenders Act, 2018, which also allows for requesting contracting states to execute orders for the confiscation of properties owned by fugitive offenders. While there is a presumption in favor of a special law, it is essential to acknowledge that when the legislature enacts a law, it is presumed to be aware of the existing legal framework.

Revisions in Arrest Provisions

Under the amended law, Sections 41 and 41A of the Criminal Procedure Code have been consolidated into a single provision, Clause 35. While substantial enhancements to the rights of the arrestee are lacking, a notable change is the expanded scope for the arrestee to communicate with any person, not limited to friends and relatives, which may include legal representation. Furthermore, in the case of a woman’s arrest, BNSS2 mandates the police to notify her relatives about her location and provide details about the arrest.

The legislation explicitly permits the handcuffing of specific offender categories, including repeat and habitual offenders. Nonetheless, the Standing Committee noted that the term ‘economic offences’ is too broad, encompassing a wide range of offenses. Consequently, the blanket application of handcuffing to all cases within this category may not be appropriate. In response to this recommendation, BNSS2 has been revised to exclude the term ‘economic offences.’

Amendment Regarding Arrest Procedures: Insights from Satender Kumar Antil CBI Case

Prior to 2022, the customary procedure in the courts involved apprehending the accused when filing the charge-sheet by the police and upon taking cognizance. This practice was influenced by specific judicial precedents interpreting Section 170 of the Criminal Procedure Code (CrPC). These rulings construed Section 170 to require that, upon the conclusion of the investigation, if there is adequate evidence or reasonable grounds, the officer “must send the accused into custody to a Magistrate authorized to take cognizance of the offense and to conduct the trial, subsequently committing the accused for trial.”

Fortunately, the Supreme Court clarified the correct interpretation of Section 170 of the CrPC in the cases of Siddharth v. State of U.P. 2022 and Satender Kumar Antil v. CBI 2022. In these judgments, the Supreme Court held that the use of the term “custody” in Section 170 does not necessarily mean police or judicial custody but simply requires the presentation of the accused before the Magistrate at the time of filing the charge-sheet. The Court emphasized that it is not mandatory to arrest the accused at the time of filing the charge-sheet, particularly if the accused had not been arrested during the investigation.

This clarification has now been incorporated into BNSS2 through Clause 190 proviso. It explicitly states that it is not necessary for an accused to be taken into custody. Instead, if the person is not arrested, the police officer shall take security from such person for his appearance before the Judicial Magistrate. The clause further specifies that the Judicial Magistrate to whom such a report is forwarded shall not refuse to accept it on the ground that the accused is not taken into custody.

Revisions in Police Custody Duration under BNSS2

In response to varying opinions from coordinate benches, the Supreme Court, in the recent case of V. Senthil Balaji v. State, referred the question of whether the 15-day custody period favored by the police should be confined to the initial 15 days of remand or extend over the entire investigation period of 60 or 90 days, to a larger bench.

BNSS2 now brings clarity to this issue by stipulating that police custody can be sought for a maximum period of 15 days. However, the provision allows for flexibility, permitting the police to seek custody either in a continuous 15-day block or in a staggered manner. Importantly, it empowers the police to request custody in tranches for an extended period, at any time during the initial forty or sixty days, as the case may be.

A notable concern with this provision is the potential for the investigating agency to circumvent bail granted to an accused by seeking custody in tranches. Additionally, the extended period for seeking police custody lacks clear criteria or guidelines, raising concerns about the exercise of such authority.

Integration of Electronic Modes in Investigation, Inquiry, and Trial under BNSS2

One of the prominent and recurring features of BNSS2 is the incorporation of electronic communication and audio-video electronic methods for various procedures within the Bill. This aligns with the overarching goal of BNSS2 to enhance the use of technology in legal processes. Consequently, new definitions have been introduced, explicitly defining terms like “audio-video electronic” and “electronic communication.”

Electronic communication is not limited to the transmission of information for FIR registration but extends to various other purposes. BNSS2 formalizes the acceptance of serving summons through electronic means, including popular messaging applications like WhatsApp, which has been acknowledged by various courts.

Under BNSS2, summons to witnesses and accused, along with notices featuring the court’s seal image, can be served through electronic communication. The State Government is empowered to establish rules specifying the form of electronic communication and the manner of serving such summons through electronic means, and such service is deemed valid.

Furthermore, the legislation permits the recording of statements by investigating officers through audio-video means. Similarly, post the filing of a charge-sheet or complaint, the investigating authority can provide documents, such as the police report, in electronic form. This reflects a significant shift toward embracing technology in legal proceedings.

Advancements in Legal Proceedings through Electronic Means under Clause 530 of BNSS2

In alignment with the bill’s ethos, Clause 530 of BNSS2 introduces provisions for the utilization of electronic mode in various legal procedures. The electronic mode encompasses the use of electronic communications or audio-video electronic means. The specific aspects covered by this provision include:

Issuance, Service, and Execution of Summons and Warrants

Legal processes involving the issuance, service, and execution of summons and warrants can now be conducted through electronic communication or audio-video electronic means.

Examination of Complainants and Witnesses

The bill allows for the electronic examination of complainants and witnesses, providing flexibility and efficiency in legal proceedings.

Recording of Evidence in Inquiries and Trials

Clause 530 permits the recording of evidence in both inquiries and trials through the use of electronic communication or audio-video electronic methods.

Appellate Proceedings and Other Legal Proceedings

This provision extends to cover all appellate proceedings and any other relevant legal procedures, thereby facilitating a comprehensive integration of electronic means in various stages of the legal process.

Legal Provisions for Compelling Production of Digital Evidence-Containing Devices

Courts and police officers hold the authority to compel individuals to produce electronic communication and devices likely containing digital evidence. This provision is instrumental in ensuring the authenticity of digital evidence, especially in cases where individuals may be unwilling to disclose its existence. Retrieval of deleted evidence is also feasible through technological means, bolstering the effectiveness of this provision.

Benefits of Production

The requirement to produce original devices serves as a safeguard, guaranteeing the legitimacy of digital evidence. This provision acknowledges the omnipresence of technology in daily life, facilitating the lawful seizure of electronic devices for investigative purposes. Even if digital evidence has been erased, advancements in technology enable its recovery.

While acknowledging the positive aspects, it is crucial to recognize potential dangers associated with this provision. Manipulation and misuse of communications and devices by authorities are risks to consider. There is a possibility of investigating authorities engaging in fishing expeditions, requesting a device for one purpose but utilizing it to seize unrelated material. Unrestricted access to electronic devices by investigating authorities is a concern that warrants attention.

The existing provision raises concerns about potential violations of the right to privacy and privilege. A current case before the Supreme Court is exploring the parameters for seizing digital devices by investigative agencies, aiming to establish guidelines for when such actions are permissible and outlining necessary safeguards to protect both personal and legally privileged information. Notably, the Supreme Court has intervened by issuing a stay order on summons from the Directorate of Enforcement, which sought access to all personal digital devices in a specific case.

The combination of this specific provision and Clause 208 of Bharatiya Nyaya Sanhita, 2023 (corresponding to Section 175 of the IPC), which penalizes the non-production of a document by someone legally obligated to do so, carries the risk of being misused, resulting in baseless and extensive investigations. This misuse has the potential to substantially affect the right to privacy and the safeguarding of privileges.

This provision contradicts Section 227 of the Companies Act, which safeguards the confidentiality of privileged documents when disclosed to the Ministry of Corporate Affairs and Registrar of Companies. Additionally, it runs counter to Sections 126 to 129 of the Evidence Act, 1872, which have been mirrored in Clauses 132 to 134 of the Bharatiya Sakshya (Second) Bill, 2023 (the new evidence act), both of which also protect privileged communications.

Advancements in Search and Seizure Procedure

A significant advancement in the realm of search and seizure involves the audio-video recording of such proceedings, including the compilation of a comprehensive list of all confiscated items, preferably through the use of a cell phone. Even searches conducted without a warrant are mandated to be recorded through audio-video means. The recorded material must be promptly submitted to the Magistrate.

While this development is crucial for preventing unlawful search and seizure, evidence tampering, and the planting of incriminating materials, it comes with potential drawbacks. For instance, a video recording of the signing of a seizure memo may be admitted as evidence of the seizure, despite the argument that it infringes upon the right against self-incrimination.

Regarding Framing of Charges and Discharge

The legal aspects surrounding discharge in summon cases were recently clarified in the case of Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116, resolving previous uncertainties. The Supreme Court ruled that there is no provision for discharge in a summons case. However, the BNSS2 now introduces the provision for discharge in a summon case.

Adherence to Timelines in Judicial Processes

One of the primary goals of revamping criminal laws was to establish a time-bound justice delivery system. In line with this objective, the BNSS2 strives to address delays in the investigation and trial processes by specifying certain timelines. For instance:

• Committal proceedings must conclude within 90 days from the date of taking cognizance, extendable by up to 180 days.
• Accused and victims must receive a copy of the police report and other documents within 14 days from the production or appearance of the accused.
• The accused may file a discharge application within 60 days from the date of committal (trial before a Court of Session).
• Charges are to be framed within 60 days from the first date of the charge hearing (trial before a Court of Sessions).
• A judgment of acquittal or conviction (trial before a Court of Session) should be delivered within 30 days from the completion of arguments, extendable by 45 days with specific reasons.
• Trials or inquiries are to be conducted on a day-to-day basis, with a maximum of two adjournments.

This marks a significant and necessary change, particularly at a time when the country is grappling with a substantial backlog and pendency of trials.

Victim/Informant Rights

The BNSS2 aims to establish the rights of victims, largely influenced by decisions rendered by Indian courts. A crucial and essential entitlement for victims is the mandate for police officers to apprise them of the investigation’s progress within a 90-day timeframe.

Similarly, following the submission of the charge-sheet, the police are now obligated to furnish the police report and other documents to the victim, especially if the victim is represented by legal counsel. A pivotal change is that the withdrawal of prosecution is permissible only after affording the victim an opportunity to be heard. Another crucial addition is that the bill mandates the State Government to establish a witness protection scheme.

This complements Clause 395 in the BNSS2 (equivalent to Section 357 of the CrPC), granting a court the authority to award compensation when imposing a sentence involving the payment of a fine. Additionally, the BNSS2 introduces victim compensation schemes, a departure from traditional administrative schemes (such as the Nirbhaya Scheme), typically discretionary under State Governments.

However, the BNSS2 does not delineate the rights of victims at the sentencing stage, such as the right to submit a victim impact statement, the right to be informed of victim rights at various stages of prosecution and trial, and the right to be heard before granting a pardon.

Ensuring an effective and, more importantly, adequate witness protection scheme is crucial. It is relevant for states to consider incorporating a time-bound process within the witness protection scheme to facilitate the application for protection.

Implications of BNSS2: Considerations for Ongoing Legal Proceedings

A crucial consideration for the courts upon the enactment of BNSS2 will be its applicability to ongoing proceedings, trials, inquiries, and investigations. The repeal and savings clause of the BNSS2 stipulate that if there is any appeal, application, trial, inquiry, or investigation pending before the date on which BNSS2 comes into force, then such proceedings shall be disposed of, continued, held, or conducted, as the case may be, following the provisions of the CrPC as in force immediately before such commencement, As though the BNSS2 had not been enacted.

Conclusion Decoding India’s New Code of Criminal Procedure -BNSS 2023

While the BNSS2 has implemented several changes that seem to align with its intended objectives, such as the introduction of timelines for time-bound investigation, inquiry, and trial, certain aspects of the BNSS2 may be perceived as regressive, falling short of entirely eliminating the draconian colonial-era laws.

On one hand, the BNSS2 acknowledges the victim as a stakeholder in investigations; however, on the other hand, it introduces a requirement for a preliminary inquiry before the mandatory registration of an FIR for a cognizable offense, potentially hindering the pursuit of justice.

Hopes for a comprehensive reevaluation of criminal laws, including the adoption of sentencing guidelines akin to those in the UK and the US, have not materialized, with sentencing remaining discretionary.

The fundamental rights of an accused individual have not received adequate consideration. For instance, permitting remand throughout the entire investigation period contradicts the right to bail, and the audio-video recording of a seizure memo may be deemed a violation of the right against self-incrimination. The attachment of property without trial could also be argued to violate the presumption of innocence. The eagerness to improve conviction rates should not come at the expense of the fundamental rights of all parties involved.

We can genuinely move beyond our colonial legacy by shifting away from a punitive mindset towards an emphasis on justice. Simply modernizing trials falls short; what is essential is a more integrated approach that harmonizes the rights of all stakeholders, safeguards the fundamental rights of both victims and accused individuals, and concurrently ensures expeditious investigation and trial – thereby authentically fulfilling the objectives of the Bill.

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