Fruitful transition

On August 11, 2023, in the Parliament, three significant bills were introduced with the aim of replacing the existing Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA). These transformative bills are named as The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha Sanhita, 2023; and The Bharatiya Sakshya Bill, 2023, respectively. This article provides a comprehensive analysis of the statutory amendments made to the Code of Procedure, 1973 (CrPC), which will be renamed as the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The newly enacted BNSS has introduced several favourable alterations. These modifications can be categorised as follows:

Use of science & technology for investigation

Notably, Section 176 of BNSS (or Section 157 of CrPC) introduces a pivotal change. A new sub section (3) mandates forensic teams to visit crime scenes, collect samples, and record the process when a crime punishable by more than 7 years is reported.

Amendments to Section 311A of the CrPC (now Section 349 in BNSS) allow for the collection of fingerprints and voice samples in addition to specimen signatures and handwriting samples. Furthermore, the revised Section 329(4)(g) of BNSS empowers state governments, not just the central government, to designate scientific experts under Section 293(4)(g) of the CrPC.

Trial by electronic means

Section 532 authorises the electronic handling of trials, inquiries, proceedings, evidence recording, parties' examinations, summons and warrants issuance, service and execution, and various other legal processes.

Key changes implementing this digital shift include:

• Summons via digital means: The proviso to Section 64(2) of BNSS (corresponding to Section 62 of CrPC) now allows for digital service of summons.

• Online issuance of summons/warrants: The process of issuing summons and warrants, as detailed in Section 227 of BNSS (corresponding to Section 204 of CrPC), can now be conducted electronically.

• Electronic notices: Executive magistrates can serve notices online under Section 153 of BNSS (corresponding to Section 134 of CrPC).

• Digital document sharing: Supplying police reports and other investigation-related documents, previously governed by Sections 173(7) and 207 of CrPC, can now be accomplished digitally as per Sections 193(8) and 230 of BNSS.

• Reading of charges: Charges can be read to the accused during session trials, as stipulated in Section 251(2) of BNSS (corresponding to Section 228(2) of CrPC).

• Digital recording of prosecution evidence: Sections 254 and 265 of BNSS (corresponding to Sections 231 and 242 of CrPC) permit the electronic recording of prosecution evidence.

• Electronic police statements and FIRs: Statements made by police during investigations can now be electronically recorded by phone.

• Inclusion of electronic communication: Section 182 of CrPC, addressing "Offences committed by letters, etc.," has been modified in Section 202 of BNSS to encompass 'electronic communication.'

• Electronic records for perishable property: During trial, electronic records must now be maintained for the custody and disposal of perishable property, as per the revised Section 499 of BNSS (corresponding to Section 451 of CrPC).

Rights of victims

Proviso in Section 232 of BNSS (corresponding to Section 209 of CrPC) ensures that applications from victims during committal proceedings are forwarded to the Sessions Court. Additionally, documents like police reports must also be provided to victims or their advocates. Also, when considering an application for prosecution withdrawal, the court must hear the victim, as outlined in the proviso to Section 360 of BNSS (corresponding to Section 321 of CrPC).

Rights of the accused

A new proviso to Section 223 of BNSS (or Section 200 of CrPC) mandates hearing the accused before taking cognisance in complaints before magistrates.

Under Section 43(1) of BNSS (corresponding to Section 46 of CrPC), safeguards for women arrestees have been expanded.

Section 82 of BNSS (corresponding to Section 80 of CrPC) introduces a new subsection (2) requiring that when a person is arrested pursuant to a warrant outside the jurisdiction where the warrant was issued, information about the arrest must be shared with authorities in the person's usual place of residence.

Witness protection

Another significant change is the introduction of Section 398, which directs all state governments to establish witness protection schemes.

Furthermore, two new provisos in Section 183(6)(a) of BNSS (corresponding to Section 164(5A) (a) of CrPC) enhance safeguards for recording statements by judicial magistrates. The first proviso requires a female judge to record a woman's statement, and the second mandates that magistrates record statements for individuals accused of serious offenses with sentences exceeding 10 years.

Bail provisions

Section 479 has been introduced to define 'Bail,' 'Bond,' and 'Bail Bond’, terms that were not defined in CrPC.

The BNSS expands the scope of anticipatory bail by removing certain provisions seen as obstacles to its effective grant. Specifically, the proviso to Section 438(1), along with Sections 438(1A) and 438(1B) of the CrPC, have been eliminated from the revised Section 484 of the BNSS. These provisions imposed onerous conditions, such as requiring the "Public Prosecutor to have a reasonable opportunity of being heard" during the application process or mandating the physical presence of an accused seeking anticipatory bail.

The new law provides benefit to the first-time offenders awaiting trial to be eligible for mandatory bail after serving 1/3rd of the punishment, compared to the previous requirement of 1/2 of the punishment. To ensure the implementation of this right, sub-section (3) has been added to Section 481, making it the responsibility of the jail superintendent to apply for the release of prisoners who are eligible.

Proclaimed offender

Previously, Section 82(4) of the CrPC limited Proclaimed Offender status to just nineteen specified IPC offences. The BNSS removes this restriction, allowing Proclaimed Offender status for all offenses carrying over 10 years of imprisonment or other special offenses.

Amendments in terminology:

The BNSS introduces a commendable shift by replacing outdated and insensitive terms. Notably, terms like 'lunatic person' and 'person of unsound mind' are now replaced with more empathetic phrases such as 'having intellectual disability' or 'person with mental illness.' Chapter XXV of the CrPC, which is titled 'Provisions as to Accused Persons Of Unsound Mind,' is now redefined as Chapter XXVII in the BNSS, as 'Provisions as to Accused Persons With Mental Illness.' Further modifications can be seen in Section 219(1)(a) of the BNSS as well as in Section 357 of the BNSS. Furthermore, the term 'lunatic asylum' is also aptly revised to 'mental health establishment.'

Conclusion

The introduction of the Bharatiya Nagarik Suraksha Sanhita marks a significant step towards a more efficient, just, and progressive legal system. Although there are some lacunas, these issues shall be addressed by the Standing Committee. There are certain aspects of the new laws which have been brought forward for amendment regarding which there is no rational reasoning. In this regard it is germane to highlight that there is no explicable reason as to why the punishment for mob lynching (though a well thought out addition) is not in line with murder or intentional culpable homicide. The other intriguing aspect of the Bharatiya Nyaya Sanhita (BNS) is the re-introduction of sedition in a new form. It is also pertinent to shed light on certain unchanged aspects which transpire on a bare reading of the BNSS such as the fifteen-day police custody has not been reduced even though the Hon’ble Apex court has time and again stressed on the vibrancy and vigour of Article 21 of the Constitution. However, taking the overall consideration of the laws introduced, the amendment is for the betterment of the citizens and is a method to get rid of our colonial past.

Views expressed are personal