Comparative Analysis of Key Stages in a Criminal Trial under BNSS, 2023 and CRPC

This project provides a comparative analysis of the key stages in a criminal trial under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) and the Criminal Procedure Code (CrPC). The study focuses on areas such as investigation, arrest, charge framing, trial proceedings, and sentencing.

BNSS, 2023 introduces several reforms aimed at making the trial process faster and more efficient, such as stricter timelines for investigations, technology-enabled trials, and harsher penalties for certain crimes. In contrast, the CrPC emphasizes protecting individual rights, offering more flexibility in procedures and nuanced sentencing guidelines.

While both laws aim to ensure justice and safety, BNSS, 2023 focuses more on efficiency and citizen protection, whereas CrPC places greater importance on individual rights and procedural fairness. The analysis highlights the need to strike a balance between these two approaches to ensure a criminal justice system that is both efficient and fair.

Introduction:

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a recent legislation aimed at enhancing citizen safety and streamlining criminal trial processes. This project aims to analyze and compare the provisions related to key stages in a criminal trial under BNSS, 2023 and the Criminal Procedure Code (CrPC).

In a historic move to overhaul the criminal justice system in India, the Parliament recently enacted three landmark legislations: the Bharatiya Nyaya Sanhita, 2023 (“BNS”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”). These laws are set to replace and modernize the foundational legal frameworks that have governed India’s criminal justice system for over a century, namely the Indian Penal Code, 1860 (“IPC”), the Code of Criminal Procedure, 1973 (“CrPC”), and the Indian Evidence Act, 1872 (“Evidence Act”).

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a significant legislative reform aimed at improving citizen safety and modernizing the criminal justice system in India. This new law seeks to enhance the efficiency and effectiveness of criminal trials by introducing various changes and updates to existing procedures. As part of its broader goal, the BNSS 2023 revises several critical aspects of the criminal trial process, which are also addressed under the current Criminal Procedure Code (CrPC).

The BNSS 2023 introduces provisions designed to streamline and modernize the way criminal trials are conducted. One of the primary objectives of this legislation is to ensure that the criminal justice process is more efficient and that the rights of individuals are better safeguarded. This includes provisions for faster processing of cases, improved methods for evidence collection, and more rigorous oversight of police and judicial procedures.

In comparing the BNSS 2023 with the CrPC, it becomes evident that the new legislation aims to address some of the limitations and challenges associated with the existing procedural code. The CrPC, which has been the cornerstone of criminal procedure in India since its enactment, has undergone various amendments over the years to adapt to changing legal and social landscapes. However, the BNSS 2023 seeks to build upon these foundations by introducing updated procedures and safeguards that reflect contemporary needs and technological advancements.

Key stages of a criminal trial under the BNSS 2023 and the CrPC are compared to highlight differences and improvements. For example, the BNSS 2023 mandates forensic investigations for certain offences, enhances provisions for electronic evidence, and allows for more flexible handling of absconding offenders. These changes aim to address current gaps in the legal process and enhance the overall efficacy of the criminal justice system.

The analysis of the BNSS 2023 in relation to the CrPC involves examining how these new provisions impact various stages of a criminal trial, including the initiation of cases, evidence collection, and trial proceedings. By comparing these aspects, the project aims to provide a comprehensive understanding of how the BNSS 2023 improves upon or modifies existing practices, ultimately contributing to a more effective and fair criminal justice system.

The project adopted a comparative analysis approach, reviewing relevant literature and case laws, analysing provisions under BNSS, 2023 and CrPC, and evaluating the effectiveness of each act in ensuring justice, fairness, and citizen safety. This method involved a detailed review of relevant literature, including legal texts, academic analyses, and interpretations from case laws, to understand the practical implications of both legislative frameworks.

By examining the specific provisions of the BNSS 2023 and the CrPC, the project aimed to identify differences and improvements in how each act addresses key aspects of criminal justice. This included analysing how the BNSS 2023 introduces new mechanisms for evidence collection, trial procedures, and the handling of offenders, and comparing these changes with the established practices under the CrPC.

The effectiveness of each act was evaluated in terms of its capacity to ensure justice, fairness, and citizen safety. This involved assessing how well the BNSS 2023 addresses current challenges in the criminal justice system, such as delays in trials, the need for modern forensic techniques, and the protection of individual rights. The project also considered how these legislative changes might enhance or impact the overall safety and legal rights of citizens.

Through this comprehensive comparative analysis, the project aimed to provide insights into the strengths and weaknesses of both the BNSS 2023 and the CrPC, offering a clearer understanding of how these legal frameworks contribute to the administration of justice in India.

Findings:

Investigation: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) sets stricter timelines for completing investigations compared to the Criminal Procedure Code (CrPC). While BNSS aims to expedite investigations to enhance efficiency and accelerate justice delivery, the CrPC allows more flexibility, which can better accommodate complex cases requiring extended timelines.

Arrest and Detention: BNSS 2023 emphasizes citizen safety by permitting preventive detention—enabling authorities to detain individuals before a crime occurs based on perceived risks. In contrast, the CrPC focuses on protecting individual rights, generally restricting detention to prevent misuse and uphold personal freedom.

Charge Framing and Indictment: BNSS 2023 simplifies the procedures for framing charges and filing indictments to reduce delays and improve efficiency. On the other hand, the CrPC follows more elaborate and time-consuming processes, which can contribute to prolonged case durations and procedural delays.

Trial Proceedings: BNSS 2023 supports technology-enabled trials, using digital tools and electronic communication to streamline proceedings. In contrast, the CrPC largely relies on traditional methods and physical court appearances, which may limit trial efficiency.

Sentencing and Punishment: BNSS 2023 introduces tougher penalties for certain crimes to boost deterrence and strengthen action against serious offenses. Conversely, the CrPC offers more nuanced sentencing, allowing courts to consider case-specific factors and apply tailored punishments.

Comparison and Evaluation:

Both the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) and the Criminal Procedure Code (CrPC) aim to uphold justice and public safety, yet differ in priorities. BNSS emphasizes operational efficiency and citizen protection through stricter timelines and harsher punishments. However, this approach may raise concerns about fairness and due process.

In contrast, the CrPC places individual rights and procedural flexibility at the forefront. It allows extended investigation timelines and supports tailored sentencing, ensuring justice is context-specific and safeguarding against misuse. Yet, it may result in slower proceedings and reduced deterrence for some crimes.

In conclusion, while BNSS, 2023 seeks to modernize and expedite the justice system, it is essential to strike a balance with individual rights to preserve the integrity and fairness of judicial processes.

Highlights Of The Key Changes

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is proposed to replace the existing Criminal Procedure Code (CrPC), which outlines the procedures for arrest, prosecution, and bail in India. BNSS introduces several notable changes aimed at modernizing and streamlining the criminal justice process.

One key feature of the bill is the mandatory forensic investigation for offences punishable by seven years of imprisonment or more. This means that forensic experts will be required to visit crime scenes, collect evidence, and document their process using modern technology.

Additionally, BNSS allows trials, inquiries, and proceedings to be conducted electronically, and permits the production of electronic devices that might contain digital evidence.

The bill also addresses cases involving proclaimed offenders—those who have evaded trial. If such individuals cannot be immediately arrested, BNSS permits the trial and judgment to proceed in their absence.

Furthermore, the bill expands the range of specimen collection for investigations. Alongside signatures and handwriting, it now includes finger impressions and voice samples, which can be collected even from individuals who have not been arrested.

Legal Analysis

In this legal analysis, we will delve into the core provisions and procedural differences between the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) and the Code of Criminal Procedure, 1973 (CrPC). The objective is to explore how each law addresses various stages of a criminal trial, their impact on justice delivery, and how effectively they balance citizen safety, individual rights, and procedural efficiency.

Investigation

CrPC: Under the CrPC, the investigation process is more flexible. There are no rigid timelines for the completion of the investigation, and the investigating officers have discretion regarding the manner and speed of conducting their investigation. This flexibility ensures that complex cases, which may require in-depth probing, are thoroughly examined without undue haste.

BNSS, 2023: BNSS, 2023 introduces stricter timelines for the investigation process. This aims to reduce delays in completing investigations and initiating trials. For example, certain serious offenses under BNSS, 2023 mandate the use of forensic investigations, which must be carried out promptly to ensure faster case resolution. The rationale is to expedite justice and prevent prolonged pre-trial detention, but the rigid timelines could potentially lead to incomplete or rushed investigations, especially in complex cases.

Legal Implication: While stricter timelines in BNSS, 2023 can enhance efficiency, they may also risk compromising the thoroughness of investigations, especially in cases requiring detailed evidence collection. A balance between speed and due diligence is crucial to ensure fairness.

Arrest and Detention

CrPC: The CrPC provides detailed safeguards for the protection of individual rights during arrest and detention. For instance, the requirement for immediate presentation before a magistrate, limits on police custody, and bail provisions are designed to prevent abuse of power and arbitrary detention. The focus is on protecting the accused’s rights while also allowing for detention where necessary.

BNSS, 2023: In contrast, BNSS, 2023 emphasizes citizen safety, introducing provisions for preventive detention in certain cases. This means that individuals can be detained to prevent the commission of a potential crime, even if they have not yet committed one. The rationale is to deter organized crime and terrorism, but this shifts the focus from protecting individual rights to prioritizing collective security.

Legal Implication: Preventive detention in BNSS, 2023 raises concerns about civil liberties and due process. While it can help in curbing organized crime, it could also lead to overreach by authorities, potentially infringing on personal freedom and the presumption of innocence.

Charge Framing and Indictment

CrPC: The CrPC follows a relatively detailed and multi-step process for framing charges and indictment. Charges are framed based on the police report, and the accused is given a chance to respond. If the charges are not framed properly, the accused may be discharged.

BNSS, 2023: BNSS, 2023 simplifies this process to avoid delays. Charges are framed more swiftly, and unnecessary formalities are reduced to ensure that trials commence without undue delay. The intention is to minimize procedural bottlenecks that often contribute to trial delays.

Legal Implication: While streamlining charge framing can speed up the trial process, it might also compromise procedural safeguards for the accused. Proper charge framing is essential for ensuring the accused’s understanding of the allegations and preparing an adequate defense.

Trial Proceedings

CrPC: Under the CrPC, trial proceedings follow a traditional courtroom setup. The accused has the right to examine and cross-examine witnesses, and the entire process is conducted through physical appearances. This can make trials lengthy, especially with delays caused by witness availability and procedural adjournments.

BNSS, 2023: BNSS, 2023 introduces the possibility of technology-enabled trials, including video conferencing and digital submission of evidence. This modernization is intended to reduce delays caused by logistical issues and streamline court operations. Electronic communication devices, likely to contain digital evidence, can also be admitted more easily during trials.

Legal Implication: Technology-enabled trials can significantly reduce trial duration and improve access to justice. However, concerns about digital literacy, the reliability of technology, and the ability to effectively cross-examine witnesses remotely need to be addressed to prevent any erosion of fair trial standards.

Sentencing and Punishment

CrPC: The CrPC offers nuanced sentencing guidelines, allowing discretion based on the nature of the crime, the accused’s background, and other mitigating factors. This ensures that punishments are proportional to the offense and tailored to individual circumstances.

BNSS, 2023: In contrast, the BNSS, 2023, imposes stricter penalties for certain offenses, particularly organized crime and terrorism. The intent is to strengthen deterrence and protect society from severe threats. However, this may reduce flexibility, leading to potentially disproportionate sentences in some cases.

Legal Implication: While BNSS’s harsher penalties can deter serious crimes, the lack of flexibility may result in unfair outcomes where leniency is justified. It is essential to harmonize sentencing guidelines, prioritizing fairness and proportionality.

Appeals and Review

CrPC: The CrPC includes extensive provisions for appeals and reviews. Accused persons can appeal convictions, and the prosecution can challenge acquittals. These rights help correct trial errors, ensuring justice is not denied due to procedural or substantive mistakes.

BNSS, 2023: While BNSS retains the right to appeal, it limits appeals in cases involving serious offenses. This aims to reduce frivolous litigation and ease the burden on higher courts, but it may restrict an individual’s ability to seek review of their conviction.

Legal Implication: Limiting appeals may speed up final judgments but could also compromise the right to a fair review. A balanced approach is needed to ensure efficiency without undermining justice.

BNSS introduces significant changes that raise concerns. For instance, it allows up to 15 days of police custody, which can be sanctioned in parts within the initial 40 or 60 days of the total 60 or 90-day judicial custody period. This flexibility could make securing bail more difficult if police seek custody extensions during this timeframe.

Additionally, BNSS expands the power to attach property derived from crime but lacks the safeguards provided under the Prevention of Money Laundering Act (PMLA), which includes limits and notice periods before attachment.

The bill also alters bail provisions. Under the CrPC, a detainee held for half the maximum sentence is entitled to bail. BNSS denies this right to those facing multiple charges, potentially affecting many such cases. Moreover, BNSS allows handcuffing in serious offenses, contradicting Supreme Court rulings that view handcuffs as a violation of personal liberty.

BNSS also retains provisions on maintaining public order from the CrPC. This raises the question of whether public order — a domain distinct from criminal procedure — should be governed under the same law. The bill also omits key reforms suggested by high-level committees, including updates to sentencing guidelines and codifying the rights of the accused, which may affect justice delivery.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), introduces substantial updates and new definitions of key terms that were either undefined or unclear under the CrPC, 1973. These changes reflect the evolving demands of the justice system amid technological and procedural shifts.

A major update is the definition of ‘audio-video electronic means.’ BNSS now defines this to include video conferencing, recording of processes like identification, search, and seizure, and electronic communication. It also authorizes State Governments to expand these purposes through rule-making, allowing for future tech integration.

BNSS further introduces clear definitions for ‘bail,’ ‘bail bond,’ and ‘bond,’ which were not specifically defined under the CrPC. ‘Bail’ refers to the conditional release of a suspect or accused from custody. A ‘bail bond’ includes a surety, whereas a ‘bond’ may not. These definitions ensure more consistent application in legal proceedings.

Another change revises the definition of ‘victim’ by removing the requirement that the accused be formally charged. This allows for faster victim recognition and compensation, emphasizing victims’ rights and access to justice.

BNSS also clarifies that where conflicts arise between special laws and BNSS, the special laws prevail. This preserves the authority of specialized legal frameworks, ensuring they are not overridden by general provisions.

These revisions modernize the legal landscape, aligning it with contemporary challenges and technological realities.

Concepts of Metropolitan Area/Metropolitan Magistrate are now abolished: The BNSS eliminates the terms “Metropolitan Area” and “Metropolitan Magistrate,” previously designated under Section 8 of the CrPC for cities like Bombay, Calcutta, Madras, and Ahmedabad. Under CrPC, these cities had specific judicial officers known as Metropolitan Magistrates.

With BNSS, this distinction is removed, and certain roles like Judicial Magistrate of the third class, Metropolitan Magistrate, and Assistant Sessions Judge have been discontinued.

The judiciary is now simplified into four main categories:

• Judicial Magistrate of the second class,
• Judicial Magistrate of the first class (including Chief or Additional Chief Judicial Magistrates),
• Sessions Judge (including Additional Sessions Judges), and
• Executive Magistrates.

This change is intended to streamline the judiciary and reduce complexity in the categorization of judges across the country.

Technological compatibility and use of electronic means in investigation and trial, The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) reflects a significant shift towards incorporating technology into the criminal justice process. These updates address the increasing role of technology in investigations and trials, making legal procedures more efficient and accessible.

Key changes include the use of electronic means for various aspects of legal proceedings. For example, Section 530 of the BNSS mandates that trials, inquiries, and proceedings be conducted using technology, such as electronic communication and audio-video tools. This means that courts can use video conferencing for hearings, record evidence digitally, and handle many procedural tasks electronically.

Additionally, Section 173(1) of the BNSS allows for the reporting of cognizable offenses to the police through electronic communication. Once the information is given, it must be signed and recorded within three days. Police reports and charge sheets can also be submitted to the court in digital formats. Furthermore, witness testimonies can be recorded and examined using audio-video tools, and accused individuals can appear in court through video conferencing instead of being physically present.

These technological advancements are designed to streamline the legal process, reduce delays, and make the system more adaptable to modern communication methods. They also improve access to justice by allowing more flexible and efficient ways to conduct legal proceedings.

Technological compatibility for issuance and service of summons, Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), several significant updates reflect the integration of technology into the legal process, particularly concerning the issuance and service of summons Issuance of Electronic Summons the BNSS allows courts to issue summons electronically, which can be validated with the court’s seal or a digital signature. This modernization facilitates quicker and more efficient communication with involved parties.

Service of Summons the BNSS, through the Proviso to Section 64(2), permits the service of summons by electronic communication if it bears the court’s seal, as per rules set by the State Government. To streamline recordkeeping, Section 64 requires both police stations and courts to maintain a register with detailed contact information of individuals being summoned, including addresses, email addresses, and phone numbers.

Notification to Witnesses according to Section 71(1), when a court issues a summons to a witness, it can also direct that a copy of the summons be served via electronic communication or registered post to the witness’s usual place of residence, business, or employment.

Proof of Service the BNSS specifies that electronic service of summons is considered valid, with copies of electronic summons to be attested and kept as proof of service. However, the BNSS does not detail how to confirm that electronic service is complete. It would be beneficial to include requirements for acknowledgment mechanisms, such as read receipts or indicators similar to those used in messaging apps, to ensure clear evidence that the summons has been successfully delivered and received.

These provisions aim to modernize and streamline the summons process, but the inclusion of specific criteria for confirming electronic service completion would enhance clarity and reliability.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces several key changes and innovations to the criminal justice system

Offences Committed via Electronic Communication section 202 of the BNSS broadens the scope of addressing crimes by including those committed through electronic means, such as emails and online messages. This expansion ensures that modern forms of communication are covered under the legal framework, reflecting the shift in how crimes are committed.

Service of Summons to Organizations the BNSS updates the process for serving summons to corporate bodies and other organizations. Section 65(2) now allows for service to any partner in a firm or association, rather than just principal officers. Summons can also be sent by registered post, with service deemed complete once the letter arrives. This change simplifies the process and ensures that legal notices are effectively delivered.

Zero FIR the BNSS formalizes the “Zero FIR” concept, which mandates that any police station must register an FIR for cognizable offences regardless of jurisdiction. This ensures timely registration and investigation of complaints, even if filed outside the local jurisdiction, and addresses delays previously caused by jurisdictional issues.

Preliminary Enquiry section 173(3) introduces a ‘preliminary enquiry’ before filing an FIR for certain offences punishable with 3 to 7 years of imprisonment. This enquiry, which must be completed within 14 days, helps determine if there is sufficient evidence to proceed with a formal investigation.

Timelines for Legal Proceedings the BNSS introduces specific timelines for various legal procedures to enhance efficiency. For example, investigations must be updated every 90 days, documents must be provided to the accused within 14 days, and judgments must be rendered within 30 days of completing arguments. These timelines aim to reduce delays and promote a more efficient justice system.

Protection of Victims’ Interests the BNSS includes provisions to protect victims’ rights, such as requiring the victim to be heard before withdrawing prosecution. It also ensures timely access to documents and updates on the investigation’s progress, reflecting a commitment to victim participation and transparency.

Anticipatory Bail the BNSS omits several provisions related to anticipatory bail from the CrPC, such as the requirement to hear the Public Prosecutor and specific criteria for granting bail. This omission grants courts more discretion but lacks clear guidelines, potentially affecting consistency in granting anticipatory bail.

New Prosecution Roles and Witness Protection the BNSS establishes new roles for the District Directorate of Prosecution, including a Director and Deputy Director of Prosecution with specific responsibilities. It also mandates the creation of a witness protection scheme by each State Government, enhancing the support and safety for witnesses involved in criminal cases.

These updates reflect a move towards modernizing the criminal justice system, improving efficiency, and ensuring better protection and support for victims and witnesses.

BNSS provisions related to filing complaints and registering First Information Reports (FIRs)
Filing and Registration of FIRs Jurisdiction and e-FIRs  Section 173(1) allows you to file an FIR for cognizable offences at any police station, regardless of where the offence occurred. You can do this orally or through electronic communication (e-FIR). However, the e-FIR must be signed by the informant within three days to be officially recorded. The BNSS extends the right to receive a copy of the FIR to both the informant and the victim.

Preliminary Enquiry section 173(3) introduces a ‘preliminary enquiry’ for certain offences that are punishable with 3 to 7 years of imprisonment. This enquiry must be completed within 14 days to determine if there is a valid case before registering an FIR. It must be authorized by an officer no lower than a Deputy Superintendent of Police. If an FIR isn’t registered after this process, you can report it to the Superintendent of Police or apply to a Magistrate for action.

Options for Delay if delays occur in registering FIRs due to the preliminary enquiry process, you have the option to escalate the issue by contacting higher authorities like the Superintendent of Police or applying directly to a Magistrate.

Information on Non-Cognizable Offences reporting to Magistrate for non-cognizable offences (less serious crimes), the police officer must refer the informant to the Magistrate. Additionally, Section 174(1)(ii) requires that a daily diary report of such cases be sent to the Magistrate every two weeks. This aims to improve the credibility and accountability of police investigations by ensuring regular oversight.

These changes are designed to streamline the process of reporting and investigating crimes, enhance transparency, and provide more avenues for addressing delays or issues in the registration and investigation of complaints.

Investigation and Filing of Chargesheet under the BNSS the BNSS introduces several key changes to the investigation process and the filing of chargesheets. Section 175 now allows the Superintendent of Police to delegate investigations, particularly in serious cases and those involving public servants, to a Deputy Superintendent of Police. This measure ensures a more structured oversight and efficient inquiry process.

Additionally, before a Magistrate directs an investigation, the Magistrate must review the complainant’s application and the police officer’s submissions. Protective measures are also introduced to prevent misuse of the legal process against public servants. Specifically, before proceeding with a complaint against a public servant, the Magistrate must consider the public servant’s account and obtain a report from their superior officer, enhancing fairness and credibility in investigations.

The BNSS also expands the protections for certain individuals during investigations. The updated Section 160 now includes individuals with acute illnesses among those exempt from mandatory police attendance. Such individuals can still choose to waive their immunity if they wish. This change aligns with provisions that protect vulnerable groups from undue hardship during investigations.

A notable addition to the BNSS is Section 176(3), which mandates forensic investigations for offences punishable with seven years or more imprisonment. Police officers must ensure forensic experts visit the crime scene to collect and video-record evidence. If a state lacks forensic facilities, it must utilize resources from another state. This provision aims to enhance the quality of evidence collected and the overall integrity of investigations.

The BNSS introduces significant safeguards for searches conducted by police officers under Section 185. Police must now document the reasons for a search in the ‘case diary’ and capture the search process using audio-video means. Records generated during the search must be sent to the nearest Magistrate within 48 hours, ensuring greater transparency and accountability.

When filing a chargesheet, Section 193 of the BNSS allows police officers to submit reports to the Magistrate electronically. The report must detail the sequence of custody for any electronic devices involved. Additionally, police officers must update the informant or victim on the investigation’s progress within 90 days. The BNSS also introduces a 90-day timeline for conducting further investigations after the chargesheet is filed, with extensions requiring court permission, thereby preventing undue delays.

The BNSS clarifies that arresting an accused at the time of filing the chargesheet is not mandatory, especially if the accused was not arrested during the investigation. Section 190 allows the police to take security for the accused’s appearance rather than requiring immediate custody, aligning with judicial interpretations.

Furthermore, Section 187 revises the maximum duration for police custody to 15 days, which can be served continuously or in segments. This is in contrast to the CrPC, which did not permit staggered custody. To protect the accused’s right to bail, Section 480 of the BNSS ensures that custody beyond 15 days cannot solely justify a denial of bail.

Lastly, Section 172 grants the police broader powers to detain or remove individuals who resist or ignore lawful directions. In minor cases, such individuals can be released within 24 hours of detention. This expansion of authority aims to ensure compliance with legal processes and enhance the efficiency of law enforcement.

Anticipatory Bail under the BNSS the BNSS introduces significant changes to the provisions surrounding anticipatory bail, diverging notably from those outlined in the CrPC. Section 438(1) of the CrPC previously provided specific factors for the High Court or the Sessions Court to consider when granting anticipatory bail. These factors included the nature and gravity of the accusation, the applicant’s antecedents, the potential risk of fleeing from justice, and the possibility of the accusation being made with malicious intent.

The BNSS, however, omits these considerations. Section 482(1) of the BNSS now grants the court absolute discretion in deciding whether to grant anticipatory bail, without explicitly accounting for the previously stipulated factors. This shift could potentially lead to variability in decisions, raising concerns about the consistency and predictability of anticipatory bail rulings and the protection of individual rights. The lack of specific guidelines might also lead to arbitrary judgments, affecting the fairness of the bail process.

Additionally, the BNSS has removed provisions related to the police’s authority to arrest individuals based on anticipatory bail applications. Under the CrPC, if the court did not issue an interim order or dismiss an anticipatory bail application, the police officer in charge was authorized to arrest the applicant without a warrant. This provision has been omitted in the BNSS, reflecting a commitment to preventing arbitrary arrests. This change ensures that arrests are contingent upon a judicial decision, thereby promoting a more measured approach by law enforcement and enhancing legal certainty.

Further, the BNSS also omits the provision from Section 438(1-A) of the CrPC, which required the court to notify the Public Prosecutor and the Superintendent of Police when anticipatory bail was granted, providing them an opportunity to be heard before the final hearing. This omission eliminates a procedural safeguard aimed at ensuring that all relevant parties have the chance to contribute to the court’s decision-making process.

Finally, Section 438(1-B) of the CrPC, which mandated the presence of the applicant during the final hearing of the anticipatory bail application, has also been omitted. This provision allowed the Public Prosecutor to request the applicant’s presence if deemed necessary. The removal of this requirement under the BNSS could impact the court’s ability to fully assess the application, potentially affecting the thoroughness of the bail process.

Arrest of Persons under the BNSS the BNSS introduces several significant revisions and additions to the provisions related to the arrest of persons, expanding upon and modifying the existing framework provided by the CrPC. One notable change is found in Section 35(7) of the BNSS, which consolidates the provisions of Sections 41 and 41A of the CrPC and introduces a special safeguard for aged and infirm individuals. This section stipulates that no arrest shall be made for offences punishable with less than three years of imprisonment if the person is infirm or over 60 years old, without prior permission from an officer not below the rank of Deputy Superintendent of Police. This change aims to ensure that the arrest of vulnerable individuals is handled with greater care and oversight.

The scope of persons to whom information about an arrest must be provided has also been broadened. Under the CrPC, this information could only be given to the arrested person’s relative or friend. The BNSS, however, allows the information to be provided to any person named by the arrested individual, expanding the range of people who can be notified about the arrest.

Additionally, Section 82(2) of the BNSS introduces new requirements for informing about arrests made under a warrant. Police officers are now mandated to notify both the designated police officer and the police officer in the district where the arrested person resides about the arrest and the place where the individual is being held. This change enhances transparency and ensures that relevant parties are informed about the location of the detainee.

In terms of maintaining and displaying information about arrests, Section 37 of the BNSS stipulates that the State Government must designate a police officer in each district and police station, not below the rank of Assistant Sub-Inspector, to manage and prominently display the names and addresses of arrested persons and the nature of the offences charged. This requirement extends to both physical and digital displays, improving public access to arrest information and accountability.

For arrests involving a refusal to provide name and residence or giving false details, Section 39 of the BNSS codifies the use of a bail bond for release, replacing the previous provision in Section 42 of the CrPC which allowed for release on a bond with or without sureties. This standardizes the process for securing bail in such cases.

Section 40(1) of the BNSS revises the time limit within which a person arrested by a private individual must be presented to the police. The updated provision requires that the arrested person be produced within six hours at a police station or before a police officer, clarifying the previously vague requirement of “without unnecessary delay.”

Furthermore, Section 58 of the BNSS modifies the provision related to the detention period for persons arrested without a warrant. It now specifies that such individuals must be presented before the nearest Magistrate within 24 hours, irrespective of the Magistrate’s jurisdiction, ensuring that the rights of the detainee are upheld and preventing undue delays.

In terms of bail and detention for undertrial prisoners, the BNSS adopts a more compassionate approach. Under the new provisions, first-time offenders can secure release on bond after serving up to one-third of the maximum imprisonment period for their offence. The jail superintendent is authorized to apply for bail on behalf of undertrial prisoners who have served either half or one-third of the maximum sentence. However, stricter conditions apply to those involved in multiple cases, with courts prohibited from granting bail if investigations or trials are ongoing in multiple offences. This approach aims to balance the need for detention with the rights of the accused, ensuring that individuals are not held beyond the maximum prescribed period of imprisonment for the offence, except in cases involving death or life imprisonment, which are excluded from these provisions.

Trial Before the Court or Magistrate under the BNSS the BNSS introduces several key reforms and clarifications regarding the trial process before a Magistrate or court, aimed at enhancing efficiency, transparency, and fairness in criminal proceedings.

Cognizance of Offences by Magistrates section 210 of the BNSS broadens the grounds on which a Magistrate can take cognizance of an offence. It allows Magistrates to consider complaints from individuals authorized under special laws, in addition to the previously recognized methods under Section 190 of the CrPC, such as complaints based on facts, police reports, information from non-police sources, or the Magistrate’s own knowledge. Moreover, Section 210(1)(b) permits Magistrates to take cognizance of offences based on electronic police reports, reflecting the BNSS’s alignment with technological advancements.

Opportunity to be Heard section 223 of the BNSS introduces a new requirement whereby the accused must be given an opportunity to be heard before a Magistrate takes cognizance of an offence based on a complaint. This provision also applies to complaints against public servants, ensuring that the accused has a chance to present their case before any formal action is taken.

Electronic Issuance of Process section 227 of the BNSS now allows for the issuance of summons or warrants through electronic means in warrant cases. This modernization facilitates quicker and more efficient judicial processes, aligning with contemporary communication practices.

Timely Supply of Documents section 230 of the BNSS specifies that documents such as the police report, first information report, and witness statements must be provided to the accused without delay and within fourteen days of their appearance or production. The BNSS also permits the furnishing of these documents through electronic means, thereby streamlining access to evidence for the accused.

Time-bound Committal of Cases section 232 of the BNSS establishes a time frame for the committal of cases that are exclusively triable by the Sessions court. Proceedings must be completed within 90 days from when the Magistrate takes cognizance, with a possible extension of up to 180 days if justified. This provision aims to expedite the legal process and ensure timely progression of cases.

Production of Digital Evidence section 94 of the BNSS addresses the handling of digital evidence. It outlines procedures for obtaining and producing electronic communications and other digital materials necessary for investigations and trials. The provision allows for summons or orders to be issued in physical or electronic form and permits compliance through document production rather than personal attendance. However, this provision raises concerns about privacy and self-incrimination, as it grants significant authority to compel the production of digital evidence, potentially leading to misuse and invasion of privacy.

Recording of Search and Seizure the BNSS mandates the use of audio-video recording for searches and seizures. This includes capturing the entire procedure, listing seized items, and obtaining witness signatures. The recordings must be promptly forwarded to the relevant judicial authorities, although the BNSS does not specify detailed guidelines for such recordings.

Attachment and Forfeiture of Property section 86 of the BNSS introduces provisions for the attachment and forfeiture of property belonging to proclaimed persons, with the option for international assistance in such matters. Section 107 establishes a framework for the attachment and forfeiture of property derived from criminal activities, including a procedure for issuing notices, hearing responses, and distributing proceeds. Unlike the CrPC, this provision allows for the forfeiture of proceeds of crime and grants Magistrates authority similar to that of the Directorate of Enforcement under the PMLA, though without the same safeguards for seized property.

Electronic Evidence for Offences Outside India sections 208 and 209 of the BNSS allow for the acceptance of electronic evidence related to offences committed outside India, expanding the scope of evidence collection beyond physical forms. This change facilitates the handling of international cases and aligns with modern evidence practices.

Overall, these revisions under the BNSS aim to improve procedural efficiency, incorporate technological advancements, and ensure greater fairness in the trial process, while also addressing privacy concerns and maintaining legal safeguards.

Discharge of the Accused under the BNSS timelines for Discharge Due to Absence of Complainant: The BNSS introduces specific timelines for discharging the accused in cases where the complainant is absent. In summons cases or complaint-initiated warrant cases involving non-cognizable offences or offences that may be compounded, the Magistrate is now required to give the complainant thirty days to appear. If the complainant fails to do so within this period, the Magistrate can discharge the accused. This provision addresses the issue of delays in complaint cases and helps to prevent the misuse of the legal process through false or frivolous complaints.

Discharge in Summons Cases under the BNSS, if the Magistrate finds an accusation in a summons case to be groundless, the Magistrate must record written reasons for this finding and then release the accused, effectively discharging them from the case. This new requirement provides a formal procedure for discharge in such cases, which was not explicitly outlined in the CrPC.

Discharge Applications for Sessions and Magistrate Court Cases Sessions Court Cases: Section 250(1) of the BNSS allows the accused to file a discharge application within sixty days of the case’s committal to the Sessions court. This addition is designed to expedite the process by providing a clear timeframe for the accused to seek discharge, a procedure that was not specified in the CrPC.

Magistrate Court Cases: Section 262(1) of the BNSS allows for the filing of a discharge application within sixty days from the supply of documents to the accused. Additionally, Section 262(2) permits the Magistrate to conduct an examination of the accused, who may be discharged if the charge is deemed groundless. The use of audio-video electronic means for such examinations is also now permitted, enhancing the efficiency and modernizing the process compared to the CrPC, which lacked specific timelines and electronic examination provisions.

Timelines and Technology for Framing Charges Sessions Court: Section 251(1)(b) of the BNSS mandates that charges must be framed within sixty days from the first hearing on the charge. The BNSS also introduces the use of audio-video means to communicate and explain charges to the accused, which helps in situations where physical presence is impractical.

Magistrate Court: Similarly, Section 263 requires charges to be framed within sixty days from the first hearing on the charge, aligning with the BNSS’s objective to streamline the trial process.

Revised Limits for Charging Similar Offences the BNSS increases the number of similar offences that may be charged together within a year from three to five. This change allows for greater consolidation of related charges, potentially simplifying case management and trial procedures.

Summary Trials  Section 283 of the BNSS mandates that Chief Judicial Magistrates and Magistrates of First Class must summarily try certain petty offences, a shift from the discretionary nature under the CrPC. The monetary threshold for summary trials involving theft and related offences has been raised from two thousand to twenty thousand rupees. Additionally, summary trials can now be conducted for a broader range of offences, including some with a maximum penalty of up to three years. This expansion is aimed at resolving petty cases more swiftly and alleviating the judicial workload.

Plea Bargaining Revisions  Section 290(1) introduces a thirty-day limit for filing a plea bargaining application from the date of charge framing. Furthermore, Section 290(4)(a) establishes a sixty-day period for the parties to reach a disposition, which may involve compensation for the victim. The BNSS also revises sentencing for plea bargaining cases, providing more lenient options for first-time offenders and reflecting a more individualized approach compared to the CrPC.

Evidence in Presence of the Accused Section 308 of the BNSS allows for the examination of evidence in the presence of the accused through electronic means, such as audio-video conferencing. This provision facilitates remote participation and ensures that the accused can be involved in the trial process even if unable to attend in person.

Specimen Collection Section 349 of the BNSS expands the Magistrate’s authority to include the collection of specimen finger impressions and voice samples, in addition to signatures and handwriting. This change aligns with modern forensic practices and allows for the collection of various forms of evidence without requiring prior arrest, provided that reasons are recorded.

Use of Electronic Means for Recording Evidence Sessions Court: Section 254 mandates the recording of witness evidence through audio-video electronic means, including public servants’ depositions. This modernizes evidence collection and enhances transparency.

Magistrate Court Section 265 allows for the use of audio-video electronic means for examining witnesses in warrant cases. Section 266 extends this provision to include the examination of witnesses by the defence, reflecting a commitment to utilizing technology in the judicial process.

Signature of Accused Section 316(4) requires that when an accused is examined through electronic communication, their signature must be collected within seventy-two hours of the examination, ensuring timely documentation of proceedings.

Overall, the BNSS introduces numerous reforms aimed at improving the efficiency and fairness of the criminal justice process, incorporating technological advancements, and providing clearer timelines and procedures for various stages of the trial.

Types of Criminal Trials

In the Indian legal system, the Criminal Procedure Code (CrPC) classifies criminal trials into three main types: warrant cases, summons cases, and summary cases. Here’s a simplified explanation of each type, focusing on warrant cases and their stages.

Warrant Cases

Warrant cases involve serious offences that are punishable by death, life imprisonment, or imprisonment for seven years or more. According to Section 2(x) of the CrPC, the trial process for these cases begins with either the filing of a First Information Report (FIR) at a police station or a complaint before a magistrate. If the magistrate determines that the offence is serious and punishable by more than two years, the case is sent to a sessions court for trial. This process of transferring the case is known as “committing it to sessions court.”

Important Features of Warrant Cases

• Charges Must Be Mentioned: The specific charges against the accused must be clearly stated.
• Personal Appearance Required: The accused must appear personally in court.
• No Conversion to Summons Case: A warrant case cannot be downgraded to a summons case.
• Multiple Examinations: The accused has the right to examine and cross-examine witnesses multiple times.
• Provision of Documents: The magistrate must provide the accused with copies of essential documents, such as the police report and FIR, as required by Section 207 of the CrPC.

Different Stages of a Criminal Trial in a Warrant Case (When Instituted by Police Report)

• First Information Report (FIR): This is the initial step where an FIR is registered under Section 154 of the CrPC. It sets the legal process in motion.
• Investigation: After the FIR is filed, the police conduct an investigation including examining facts, collecting evidence, and interviewing witnesses.
• Charges: Based on the police report and other documents, the court frames formal charges specifying the nature of the offence.
• Plea of Guilty: Under Section 241 of the CrPC, the accused is given a chance to plead guilty voluntarily. If accepted, the judge may convict based on this plea.
• Prosecution Evidence: If the accused pleads not guilty, the prosecution presents evidence through a process called “examination in chief.”
• Statement of the Accused: As per Section 313 of the CrPC, the accused may explain the facts and circumstances. This statement is not under oath but may be used during trial.
• Defence Evidence: If necessary, the accused can present evidence. Generally, the burden of proof lies with the prosecution.
• Judgement: The court gives a final verdict. If convicted, arguments on sentencing are heard, especially for severe punishments.

Stages of Criminal Trial in Warrant Cases (When Instituted by Private Complaint)

• Examination of the Complainant: The court examines the complainant and witnesses to determine if an offence has occurred.
• Inquiry and Report: The magistrate may order an inquiry and receive a report with findings.
• Assessment of Evidence: The court decides whether there’s sufficient evidence to proceed. If not, the complaint is dismissed with reasons.
• Issuance of Process: If evidence is sufficient, the court issues a warrant or summons depending on the case’s nature.

Summons Cases

Summons cases involve offences punishable by imprisonment for less than two years. The process is less formal compared to warrant cases.

Important Points About Summons Cases

• Conversion to Warrant Case: A summons case can be converted to a warrant case if required by the magistrate.
• Personal Presence Not Required: The accused does not need to be present in person at all times.
• Oral Notification of Charges: Charges are communicated orally.
• Single Opportunity for Cross-Examination: The accused has only one chance to cross-examine witnesses.

Stages of a Summons Case

• Pre-Trial: Includes the filing of FIR and investigation if needed.
• Charges: Charges are orally informed to the accused by the magistrate.
• Plea of Guilty: The accused may plead guilty or defend themselves. The magistrate may convict based on the plea.
• Plea of Guilty Without Presence: The accused can send a letter and fine to plead guilty. The magistrate may convict based on this.
• Prosecution and Defence Evidence: If the plea is not guilty, both sides present evidence. The magistrate may record the accused’s statement.
• Judgement: The magistrate delivers judgement. Appeals can be made by either party.

Summary Trials

Summary trials are meant for minor offences and aim to expedite the legal process. These are typically for offences punishable by up to six months of imprisonment.

Stages of a Summary Trial

• Simple Procedure: Similar to summons cases but more streamlined.
• Limited Imprisonment: Maximum punishment is three months, even if the offence permits up to six months.
• Judgement Recording: The judge must record the substance of evidence and provide a brief statement of findings and reasons.

Revised Procedures and Timelines under the BNSS

Time-limit for Acceptance or Denial of Document Genuineness (Section 330) Under Section 330 of the BNSS, both the prosecution and the accused, or their advocates, have a specified period of 30 days from the date they receive a document to admit or deny its genuineness. This timeframe aims to streamline the process of handling documentary evidence. If additional time is needed, the court has the discretion to extend this period, but must record its reasons for doing so in writing.

Deemed Closure of Prosecution Evidence (Section 269)  The BNSS introduces a new provision under Section 269(7), which addresses situations where prosecution witnesses are unavailable for cross-examination despite being given ample opportunity. If witnesses cannot be secured, their evidence is deemed not to have been examined, allowing the Magistrate to close the prosecution evidence and proceed with the case based on the available record. This measure helps avoid delays caused by the unavailability of witnesses.

Trial in Absentia of Proclaimed Offenders (Section 356)  Section 356 of the BNSS provides a framework for conducting trials in absentia for individuals declared as proclaimed offenders. This provision is designed to address cases where individuals evade summons or trial. The court can proceed with the trial if specific conditions are met, including issuing consecutive warrants, publishing notices in newspapers, notifying relatives or friends, and affixing information at the offender’s last known address.

The trial can continue even if the accused remains absent, with the option for the accused to review evidence later if they are arrested or appear before the court. Appeals against such judgments are restricted, with no appeal allowed unless the proclaimed offender appears before the court of appeal and a three-year limit imposed on appealing convictions.

Time-bound Disposal of Cases (Section 258 and Section 392)

Sessions Court: Section 258 mandates that judgments in sessions cases must be delivered within 30 days of the conclusion of arguments, extendable to 45 days with recorded reasons. This change aims to expedite the trial process, though concerns have been raised about the rigidity of these timelines in complex cases, which may lead to rushed judgments and potentially affect the thoroughness of the trial.

General Criminal Trials: Section 392(1) requires judgments in criminal trials to be pronounced within 45 days after the trial ends, correcting the previously vague timeline. Additionally, if the accused is in custody, they may be produced via audio-video means to hear the judgment. Section 392(4) also mandates that judgments be uploaded to an online portal within seven days, enhancing transparency and accessibility.

Increased Sentencing Powers for Magistrates (Section 23)

The BNSS increases the maximum fines that Magistrates of the first and second classes can impose and introduces community service as a permissible sentence. This adjustment allows for more flexible sentencing options and reflects a modern approach to criminal justice.

Revised Sentencing for Multiple Offences (Section 25)

Section 25 of the BNSS revises how sentences are handled when multiple offences are tried together. Previously, punishments were ordered to run consecutively unless otherwise specified. The BNSS now requires the court to consider the gravity of each offence and determine whether sentences should run concurrently or consecutively.

Furthermore, the maximum punishment for multiple offences, previously limited to 14 years, has been extended to 20 years, providing greater flexibility in sentencing.

These updates under the BNSS aim to enhance the efficiency, fairness, and transparency of the judicial process, reflecting a commitment to modernizing criminal procedure and accommodating contemporary legal practices.

Case Laws

In understanding the legal frameworks of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Code of Criminal Procedure (CrPC), 1973, case laws play a vital role in interpreting how these laws are applied in real-life situations. Case law examples highlight how courts balance individual rights and citizen safety, how procedural safeguards are maintained, and how legislative changes impact judicial outcomes.

Here’s a detailed explanation of the role of case laws with examples that can illustrate key differences and comparisons between BNSS, 2023 and CrPC, 1973 in critical stages of a criminal trial:

Investigation Process

CrPC Case Law – Lalita Kumari v. Govt. of U.P. (2014): In this landmark case, the Supreme Court ruled that police are mandated to register an FIR if the information discloses a cognizable offense. This decision reinforced the importance of initiating investigations promptly to ensure justice. The case established that a delay in filing an FIR or reluctance to investigate could infringe upon the rights of the victim and obstruct justice.

BNSS, 2023 Analysis: While BNSS, 2023 also emphasizes the need for prompt investigations, it introduces stricter timelines for the completion of investigations, particularly for serious offenses. Forensic investigation is mandated in certain cases, ensuring more scientific methods are employed to strengthen evidence collection. In contrast to the more flexible approach in Lalita Kumari, BNSS’s rigid timelines aim at speeding up justice but may lead to hurried investigations that could miss critical details.

Arrest and Detention

CrPC Case Law – D.K. Basu v. State of West Bengal (1997): This case laid down crucial guidelines for arrest and detention, safeguarding individual rights under Article 21 (Right to Life) of the Constitution. The Supreme Court held that every person arrested should be informed of the grounds for their arrest, have the right to legal representation, and be presented before a magistrate within 24 hours. The judgment also prohibited the arbitrary use of handcuffs and emphasized the need for accountability in police actions.

BNSS, 2023 Analysis: Under BNSS, 2023, there is an increased emphasis on preventive detention for the protection of citizens and prevention of organized crime. While D.K. Basu protects individual liberty, BNSS introduces measures that allow preventive detention even before the commission of a crime, focusing more on public safety. This shift indicates a balancing act between safeguarding individual rights and addressing public security threats, especially concerning terrorism and organized crime. Critics argue that this could potentially lead to misuse of power by the authorities.

Charge Framing and Indictment

CrPC Case Law – Union of India v. Prafulla Kumar Samal (1979): In this case, the Supreme Court held that while framing charges, the court must consider whether there is sufficient evidence against the accused that could lead to a conviction. The court’s duty is to assess if the evidence is prima facie strong enough to proceed with a trial. However, at this stage, the accused does not need to be fully exonerated, but the evidence should be sufficient to sustain the charges.

BNSS, 2023 Analysis: Under BNSS, 2023, the charge-framing process has been streamlined to reduce delays. Courts are required to act swiftly and focus more on initiating trials. This is a departure from the more careful approach seen in Prafulla Kumar Samal, where the court is expected to scrutinize evidence in detail before framing charges. While BNSS’s streamlined process might accelerate trials, it could also result in trials proceeding even when evidence is weak, leading to potential miscarriages of justice.

Trial Proceedings

CrPC Case Law – Hussainara Khatoon v. State of Bihar (1979): This case brought to light the issue of undertrial prisoners languishing in jails for extended periods without trial. The Supreme Court held that the right to a speedy trial is a fundamental right under Article 21 of the Constitution. The court emphasized the need to expedite criminal trials and reduce delays caused by procedural inefficiencies.

BNSS, 2023 Analysis: BNSS, 2023 responds to the concerns raised in Hussainara Khatoon by introducing technology-enabled trials, which include digital evidence submissions and virtual hearings through video conferencing. These measures aim to minimize delays and ensure that undertrial prisoners are not held in prolonged detention. This adoption of technology contrasts with the more traditional approach under the CrPC, potentially reducing the backlog of cases and ensuring quicker access to justice.

Sentencing and Punishment

CrPC Case Law – Bachan Singh v. State of Punjab (1980): This case is significant in the context of the death penalty. The Supreme Court ruled that the death penalty should be imposed only in the “rarest of rare” cases, thus laying down guidelines for sentencing. The court emphasized that mitigating factors must be considered, and the punishment should be proportional to the offense.

BNSS, 2023 Analysis: BNSS, 2023 introduces harsher penalties for certain offenses, particularly those involving terrorism, organized crime, and crimes against women and children. While Bachan Singh advocates for a nuanced approach to sentencing, BNSS, 2023 takes a more rigid stance, imposing mandatory minimum sentences in some cases. This shift reflects the legislative intent to enhance deterrence but could reduce judicial discretion in considering mitigating factors.

Appeals and Review

CrPC Case Law – State of Rajasthan v. Shera Ram (2012): In this case, the Supreme Court reinforced the right of the accused to appeal against a conviction and the prosecution’s right to appeal against an acquittal. The court emphasized that the appeal process is a safeguard against errors in the trial process and an essential part of the justice system.

BNSS, 2023 Analysis: BNSS, 2023 maintains the right to appeal but places certain restrictions on appeals in cases involving serious offenses. This is intended to prevent frivolous appeals that burden higher courts. However, limiting appeals could infringe on the accused’s right to a fair review, a principle upheld in Shera Ram. Balancing the need for efficiency with the right to appeal is crucial to avoid curbing access to justice.

The comparison of BNSS, 2023 with the CrPC through case laws highlights key differences in how each law approaches critical stages of the criminal trial process. The CrPC has evolved through judicial interventions, focusing on safeguarding individual rights and procedural fairness. Case laws like D.K. Basu, Hussainara Khatoon, and Bachan Singh have contributed to the development of safeguards for the accused and victims, ensuring that justice is served without compromising fundamental rights.

On the other hand, BNSS, 2023 prioritizes efficiency, citizen safety, and quicker resolution of criminal cases, but at the potential cost of individual liberties. While case laws under the CrPC emphasize rights protection, BNSS, 2023 introduces stricter provisions that could limit judicial discretion and procedural safeguards, particularly in areas like preventive detention and sentencing.

To strike a balance between the two, the judiciary must ensure that procedural safeguards developed under the CrPC are not undermined by the stricter provisions of BNSS, 2023. Courts may need to interpret BNSS, 2023 in light of established case laws to prevent any erosion of constitutional rights.

Case Study

Case Study: Arun Kumar v. State of U.P. (2022)

Background: Arun Kumar was charged with a serious offense punishable with life imprisonment. Under the CrPC, the case proceeded through the standard criminal trial process, which involved multiple stages, including FIR registration, investigation, charge framing, and trial. The trial was conducted traditionally, with physical evidence and testimonies presented in court.

Comparative Analysis:

• CrPC: The investigation was carried out by the police with considerable flexibility in terms of time. The case saw delays due to the traditional court procedures and the backlog of cases, affecting the speed of the trial.
• BNSS, 2023: Under BNSS, 2023, the investigation would have had stricter timelines. Forensic evidence collection and technology-enabled trials would have expedited the process. BNSS’s provisions for virtual hearings could have reduced delays caused by physical court proceedings and logistical issues.

Impact: While BNSS, 2023 could have accelerated the trial and reduced delays, it may also have introduced challenges such as ensuring the integrity of digital evidence and maintaining the quality of forensic investigations.

Case Study: Ramesh Patel v. State of Maharashtra (2023)

Background: Ramesh Patel was arrested on charges related to organized crime. Under the CrPC, his case involved a lengthy detention period with several procedural safeguards to ensure his rights were protected.

Comparative Analysis:

CrPC: The case followed the traditional procedures for arrest and detention, including a requirement for the police to present the accused before a magistrate within 24 hours and provide grounds for the arrest.
BNSS, 2023: BNSS allows for preventive detention and stricter measures against organized crime, potentially bypassing some of the procedural safeguards under the CrPC. Preventive detention might have been used to detain Patel longer without trial, focusing on public safety rather than individual rights.

Impact:
BNSS, 2023’s focus on preventive detention could enhance public safety but risks undermining individual rights and due process protections established under the CrPC.

iii.3. Case Study: Kiran Sharma v. State of Rajasthan (2024)

Background:
Kiran Sharma was involved in a case where the charge framing process faced delays. Under the CrPC, the process required detailed examination of evidence before charges were formally framed.

Comparative Analysis:
CrPC: The charge framing process involved thorough scrutiny of evidence, which ensured that charges were based on a solid foundation. This thoroughness, however, led to delays in starting the trial.
BNSS, 2023: BNSS streamlines the charge framing process to reduce delays, potentially allowing the trial to commence sooner. However, this expedited approach might risk moving forward with insufficiently substantiated charges.

Impact:
BNSS’s streamlined process may speed up trials but could also lead to premature charges and potential wrongful convictions if evidence is not adequately vetted.

iii.4. Case Study: Sunil Kumar v. State of Punjab (2023)

Background:
Sunil Kumar’s trial involved complex procedures under the CrPC, including extensive witness testimonies and evidence presentation. The trial was conducted in a traditional courtroom setting with physical evidence.

Comparative Analysis:
CrPC: The trial relied on traditional methods, with extensive physical evidence and witness testimonies being presented in court. The process was thorough but time-consuming.
BNSS, 2023: BNSS introduces technology-enabled trials, allowing for digital evidence submission and virtual hearings. This could significantly streamline the trial process and reduce the time required to present evidence.

Impact:
While BNSS’s technology-enabled trials offer efficiency, they require robust systems to handle digital evidence and ensure cybersecurity. The transition from traditional to digital processes may face implementation challenges.

iii.5. Case Study: Pooja Devi v. State of Delhi (2023)

Background:
Pooja Devi was convicted of a serious crime under the CrPC, which provided detailed sentencing guidelines based on the nature of the offense and the defendant’s background.

Comparative Analysis:
CrPC: Sentencing was based on nuanced guidelines that considered mitigating and aggravating factors. The court had discretion to impose a sentence proportional to the crime, balancing punishment and rehabilitation.
BNSS, 2023: BNSS prescribes harsher penalties for certain crimes, including mandatory minimum sentences for serious offenses. This approach aims to enhance deterrence but reduces judicial discretion in sentencing.

Impact:
BNSS’s harsher penalties could ensure stricter punishment for serious crimes but might limit the court’s ability to tailor sentences based on individual circumstances, potentially affecting fairness in sentencing.

The case studies illustrate how BNSS, 2023 and CrPC address key stages in criminal trials differently. While BNSS emphasizes efficiency, citizen safety, and expedited processes, the CrPC focuses on individual rights, procedural safeguards, and judicial discretion. The comparative analysis of these cases highlights both the benefits and challenges of the legislative changes, underscoring the need to balance efficiency with fairness and rights protection in the criminal justice system.

Some Hits And Misses
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), represents a significant shift in India’s criminal justice framework, incorporating several noteworthy advancements. Among its key successes is the recognition of technological advancements, which have been seamlessly integrated into the legal process. By including definitions and provisions that account for modern communication methods, the BNSS acknowledges the role of technology in investigations, trials, and court proceedings.

This integration is expected to reduce delays, making criminal proceedings more efficient. Additionally, the BNSS has imposed or revised timelines for various stages of the criminal process, addressing longstanding concerns about delays in the justice system. These measures aim to streamline investigations, trials, and other critical aspects of criminal proceedings, promoting a more efficient legal framework.

Another notable “hit” under the BNSS is its enhanced focus on victims’ rights. The BNSS recognizes victims as crucial stakeholders in the justice process, ensuring they are informed of progress in investigations and granting them access to relevant documents and materials. This shift represents a significant improvement over the previous system, where victims were often relegated to the sidelines.

However, while these advancements are commendable, some gaps remain, such as the absence of provisions allowing victims to engage counsel for certain aspects of the trial. Furthermore, the BNSS introduces provisions for the discharge of accused individuals in summons cases deemed groundless, which addresses issues of unnecessary case pendency. A further progressive step is the introduction of bail provisions for first-time offenders, helping alleviate prison overcrowding, though this could have been strengthened by broader adoption of the principle that bail is the norm, and imprisonment the exception.

Despite these advancements, the BNSS has its share of shortcomings. A significant “miss” is the absence of non-trial resolutions like Deferred Prosecution Agreements (DPAs), which are recognized in modern legal systems for resolving economic crimes by corporations. Such mechanisms could conserve judicial resources and apply reparative penalties without resorting to lengthy trials.

Additionally, the BNSS introduces a controversial provision that allows a ‘prospective’ accused to be heard before cognizance is taken, potentially leading to further delays. Another concern is the trial or judgment in absentia of proclaimed offenders, which, while intended to address fugitives, raises questions about due process and the rights of the accused. The provision for mandatory videography during search and seizure also lacks specific guidelines, leading to uncertainties and potential misuse.

Moreover, the BNSS omits critical provisions related to anticipatory bail, such as considerations for granting such applications and providing the Public Prosecutor an opportunity to be heard. The lack of clear criteria leaves decisions to the court’s absolute discretion, creating a gap in the legal process. Additionally, the modification of custody provisions under Section 167, allowing extended police custody over a distributed period, raises concerns about potential misuse and the psychological impact on the accused.

Furthermore, the BNSS fails to incorporate recommendations for sentencing guidelines, which could ensure proportional and uniform sentencing. The absence of these guidelines perpetuates inconsistency in sentencing, a long-standing issue in India’s legal system. As the BNSS comes under judicial scrutiny, it will be tested for its ability to balance these hits and misses within the broader legal landscape.

Key Features of the CrPC and Changes under BNSS

Separation of Offences

CrPC: Offences are categorized into cognisable and non-cognisable. Cognisable offences allow police arrest without a warrant. Non-cognisable require a complaint or warrant.

BNSS: Retains the classification but introduces changes affecting detention and investigation.

Nature of Offences

CrPC: Differentiates between bailable and non-bailable offences.

BNSS: Continues the same classification but changes undertrial detention and forensics.

Detention of Undertrials

CrPC: Accused must be released on bond after serving half of the maximum imprisonment term (except in capital punishment cases).

BNSS: Excludes life imprisonment cases and those with multiple charges.

Medical Examination

CrPC: Needs a sub-inspector’s request.

BNSS: Any police officer can request, increasing access and speed.

Forensic Investigation

BNSS: Mandatory for offences punishable by 7+ years. Experts must visit scenes and document electronically. States can use neighbouring forensic labs.

Signatures and Finger Impressions

CrPC: Magistrates can request specimen handwriting/signatures.

BNSS: Adds finger impressions and voice samples, even from non-arrested individuals.

Timelines for Procedures

• Medical reports in rape cases – within 7 days
• Judgment – within 30 days (extendable to 45)
• Victim to be informed of progress – within 90 days
• Sessions court to frame charges – within 60 days of first hearing

Hierarchy of Courts

CrPC: Includes Magistrate, Sessions, High Courts, and Supreme Court. Also allows Metropolitan Magistrates.

BNSS: Removes metropolitan classification to simplify the hierarchy.

Key Issues and Analysis of BNSS

Expansion of Police Powers

CrPC: Limited by SC guidelines to prevent misuse.

BNSS: Expands police authority, especially around detention and handcuffs.

Changes in Police Custody

CrPC: 24-hour custody without Magistrate, max 60/90 days.

BNSS: Allows segmented extension, potentially limiting bail.

Use of Handcuffs

CrPC: Judicial consent needed except in exceptional cases.

BNSS: Permits use in serious offences, contrary to SC view.

Rights of the Accused

• Mandatory Bail: CrPC allows after half-term; BNSS excludes life imprisonment and multiple charges.
• Plea Bargaining: BNSS limits to 30-day window for application.

Prison Overcrowding

BNSS: May worsen it due to tighter bail and plea policies.

Property Seizure

CrPC: Movable property only.

BNSS: Adds immovable but lacks PMLA safeguards.

Data Collection

CrPC: Handwriting from arrestees.

BNSS: Includes fingerprint and voice data even from non-arrestees, aligning with 2022 law.

Maintenance of Senior Citizens

CrPC & BNSS: Both allow Magistrates to order maintenance. BNSS duplicates existing law from 2007.

Public Order Functions

CrPC: Empowers District Magistrates.

BNSS: Retains this, but public order is a state subject – raising federal concerns.

Findings

• Investigation: BNSS enforces strict timelines.
• Arrest/Detention: BNSS enables preventive detention; CrPC ensures rights.
• Charge Framing: BNSS streamlines it; CrPC more detailed.
• Trial: BNSS modernizes with tech; CrPC traditional but thorough.
• Sentencing: BNSS is harsh; CrPC flexible.

Comparison and Evaluation

BNSS: Focus on speed and citizen safety.

CrPC: Emphasizes due process and rights.

Recommendations

• Balance citizen safety and rights in BNSS
• Adopt tech-enabled trials in CrPC
• Harmonize sentencing between BNSS and CrPC

Conclusion

BNSS modernizes procedure but risks rights dilution. CrPC upholds due process but needs reform for efficiency. A balanced approach is essential.

Limitations

This analysis only compares trial-related provisions.

Future Scope

Deeper analysis with case studies and stakeholder inputs is needed.

Landmark Citations

• D.K. Basu v. State of West Bengal (1997): Procedural safeguards
• Lalita Kumari v. Govt. of U.P. (2014): FIR registration process
• K.G. v. State of Maharashtra (2020): Impact of timeline pressure
• State of Rajasthan v. Kashi Ram (2006): Preventive detention case
• Brown [1993] 2 All ER 75: Liberty vs public safety

Bibliography

• Bharatiya Nagarik Suraksha Sanhita, 2023
• Code of Criminal Procedure, 1973
• Sharma, K. (2023). Journal of Criminal Justice Studies
• Singh, R. (2024). Indian Law Review
• Patel, N. (2023). Supreme Court Review
• Gupta, A. (2023). Legal Innovations Journal

Synopsis

• Objective: Compare key stages under BNSS and CrPC
• Focus: Justice delivery, rights, and efficiency
• BNSS: Faster, tech-enabled but stricter
• CrPC: Rights-protective, traditional, slower

Conclusion: Balanced reform is key for an efficient and just criminal justice system.