Overview: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is designed to replace the Criminal Procedure Code, 1973 (CrPC), which governs the procedural aspects of arrest, prosecution, and bail. Here are some prominent highlights of the BNSS:

1. Mandatory Forensic Investigation: The BNSS mandates forensic investigation for offenses carrying a punishment of seven years or more of imprisonment. Forensic experts will be dispatched to crime scenes to gather crucial forensic evidence and meticulously document the process.

2. Electronic Mode for Trials and Proceedings: The BNSS facilitates the conduct of all trials, inquiries, and proceedings in electronic mode. This includes the admissibility of electronic communication devices, likely to contain digital evidence, for use in investigations, inquiries, or trials.

3. Trial in Absentia for Proclaimed Offenders: In cases where a proclaimed offender has absconded to evade trial, and there is no immediate prospect of apprehending them, the BNSS permits the trial to proceed and the judgment to be pronounced even in the individual's absence.

4. Collection of Biometric Data: The BNSS allows for the collection of not only specimen signatures or handwriting but also finger impressions and voice samples for use in investigations or legal proceedings. Importantly, these samples may be obtained from individuals who have not been formally arrested.

Key Concerns and Analysis

Several critical issues and observations arise from the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):

1. Extended Police Custody: The BNSS permits up to 15 days of police custody, which may be authorized in segments during the initial 40 or 60 days of the 60 or 90 days judicial custody period. This provision raises concerns as it could potentially result in the denial of bail for the entire duration if the police have not fully utilized the 15 days of custody.

2. Property Attachment without Adequate Safeguards: The powers to attach property derived from the proceeds of crime lack the safeguards provided in the Prevention of Money Laundering Act. This omission may pose risks related to due process and property rights.

3. Limitation on Bail for Multiple Charges: While the Code of Criminal Procedure (CrPC) allows bail for an accused detained for half the maximum imprisonment term for the offense, the BNSS denies this facility to individuals facing multiple charges. Given that numerous cases involve multiple sections, this restriction may limit the availability of bail.

4. Use of Handcuffs Contrary to Supreme Court Directions: The BNSS permits the use of handcuffs in various cases, including economic offenses, which contradicts directions issued by the Supreme Court. This may raise concerns about the humane treatment of detainees.

5. Evidence Presentation by Retired or Transferred Officers: The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This departs from the conventional rules of evidence, where the author of the document should be subject to cross-examination.

6. Lack of Incorporation of High-Level Committee Recommendations: The BNSS does not incorporate recommendations from high-level committees, such as those related to reforms in sentencing guidelines and codifying the rights of the accused, which were proposed for changes in the CrPC. This omission may limit the potential for comprehensive reform within the criminal justice system.

These concerns and observations highlight the need for further examination and deliberation to ensure that the BNSS aligns with principles of justice, fairness, and effective administration within the Indian legal framework.

Key Features

The Code of Criminal Procedure (CrPC) governs the procedural aspects of the criminal justice system in India. Here are the key features of the CrPC:

1. Separation of Offenses: The CrPC categorizes offenses into two main groups: cognizable and non-cognizable. Cognizable offenses allow the police to arrest and investigate without requiring a warrant, while non-cognizable offenses necessitate a warrant or a complaint from the victim or a third party.

2. Nature of Offenses: The CrPC covers a wide range of criminal offenses, spanning from minor traffic violations to serious crimes like murder. It distinguishes between bailable and non-bailable offenses, specifying when an accused has the right to seek bail from police custody.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) retains most of the provisions of the CrPC but introduces significant changes, including:

1. Detention of Undertrials: The BNSS modifies the CrPC's provision regarding the release of accused individuals on personal bond after spending half of the maximum imprisonment period in detention. This modification excludes offenses punishable by life imprisonment and individuals facing proceedings in multiple offenses from this provision.
2. Medical Examination: While the CrPC allows the medical examination of accused persons, especially in cases like rape, the BNSS extends this authority to any police officer, broadening the scope for such examinations.
3. Forensic Investigation: The BNSS mandates forensic investigation for offenses carrying a minimum of seven years of imprisonment. Forensic experts will visit crime scenes, collect relevant evidence, and document the process using mobile phones or electronic devices. In cases where a state lacks forensic facilities, it is required to utilize facilities in another state.
4. Signatures and Finger Impressions: The BNSS expands the powers of a Magistrate to order the provision of specimen signatures, handwriting, finger impressions, and voice samples. It allows the collection of these samples even from individuals who have not been formally arrested.
5. Timelines for Procedures: The BNSS introduces specific timelines for various procedures within the criminal justice system. For instance, it mandates that medical practitioners examining rape victims submit their reports to the investigating officer within seven days. Other specified timelines include delivering judgments within 30 days of completing arguments (extendable to 60 days), informing victims of the progress of investigations within 90 days, and framing charges in a sessions court within 60 days from the first hearing on such charges.
6. Hierarchy of Courts: The CrPC establishes a hierarchical structure of courts for handling criminal matters in India, including Magistrate's Courts, Sessions Courts, High Courts, and the Supreme Court. The CrPC also empowers state governments to declare certain populous areas as metropolitan areas with Metropolitan Magistrates. However, the BNSS omits this provision regarding metropolitan areas.

Potential Expansion of Police Powers in the Bill

The Code of Criminal Procedure (CrPC) delineates the powers of the police in maintaining public order, preventing crimes, and conducting criminal investigations. These powers encompass aspects such as arrests, detentions, searches, seizures, and the use of force. It is imperative to establish checks and restrictions on these powers to prevent their misuse, which could result in excessive force, unlawful detentions, custodial abuse, and abuse of authority. The Supreme Court has issued various guidelines to prevent arbitrary and improper exercise of police powers.

The proposed Bill introduces amendments pertaining to detention, police custody, and the use of handcuffs, which raise certain concerns.

Altered Procedure for Police Custody

Under the Constitution and CrPC, police custody beyond 24 hours is prohibited. A Magistrate is authorized to extend it for up to 15 days in cases where the investigation cannot be completed within the initial 24 hours. Moreover, the Magistrate may further extend judicial custody beyond 15 days if sufficient grounds exist. However, the total duration of detention should not exceed 60 or 90 days, depending on the nature of the offense.

The Bill introduces a modification by allowing police custody of up to 15 days to be authorized in whole or in parts during the initial 40 or 60 days of the 60 or 90 days custody period. This alteration could potentially lead to bail being denied during this period if the police argue that they need to reassert custody.

This differs from laws such as the Unlawful Activities (Prevention) Act, 1976, which limits police custody to the initial 30 days. The Supreme Court has emphasized that, as a general rule, police custody should be sought within the first 15 days of remand, with the extension of 40 or 60 days to be used as an exception. The BNSS, however, does not require the investigating officer to provide reasons when seeking police custody for someone in judicial custody. The Standing Committee in 2023 recommended that the interpretation of this clause be clarified.

Amendment to Powers of Detention

Article 22 of the Constitution mandates that a person in police custody must be presented before a judicial Magistrate within 24 hours, a provision also present in the CrPC. The BNSS retains this provision but introduces the concept that the police may detain or remove any person who resists, refuses, or disregards directions given by an officer to prevent cognizable offenses. Subsequently, the detained individual may either be produced in front of a Magistrate or, in the case of minor offenses, released once the occasion has passed. However, the term "occasion is past" is not defined, prompting the Standing Committee in 2023 to recommend the establishment of a clear timeframe for detention in such circumstances.

Potential Infringement on Personal Liberty through Handcuff Usage

The BNSS permits the use of handcuffs during arrests but restricts their use to specific scenarios, such as habitual offenders who have escaped custody or individuals accused of offenses like rape, acid attacks, organized crime, economic offenses, and actions endangering India's sovereignty, unity, and integrity. However, this provision contradicts Supreme Court judgments and National Human Rights Commission guidelines. The Supreme Court has deemed the use of handcuffs as inhumane, unreasonable, arbitrary, and contrary to Article 21.

In cases where handcuffs must be used, the escorting authority is required to provide documented reasons for their usage. Furthermore, the Court has ruled that no prisoners undergoing trial can be handcuffed without obtaining judicial consent, thereby leaving the discretion for handcuff usage to the trial court.

The Standing Committee in 2023 recommended the exclusion of economic offenses from the list of offenses where handcuffs may be employed. A dissenting note in the Committee's report suggests that handcuffs should only be used when there is a risk of violence or the suspect is likely to escape custody.

Related Blogs:

Question Paper Pattern of latest Judiciary Exams

Judgement Writing for Judiciary Exams

Judiciary exams Previous Year question papers