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Transforming Justice: Key Reforms Under The Bharatiya Nagarik Suraksha Sanhita, 2023

Code of Criminal Procedure (CrPC) 1873 (originally enacted in 1898), now replaced with Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, with two others, Indian Penal Code (IPC) 1860 replaced with Bharatiya Nyaya Sanhita (BNS) 2023, and the Indian Evidence Act, of 1872 replaced with Bharatiya Sakshya Act (BSA). These three have come into effect from 1st July 2024.

Code of Criminal Procedure is a procedural law for the India Penal Code, which gives the procedure for the investigation, arrest, prosecution, and bail for the offense. CrPC came to address numerous problems of the legal system in India. Since it came into effect, multiple changes have been made, but few are significant changes, like the introduction of anticipatory bail in 1973, and various modifications have been made by interpretation of the Supreme Court.

Bharatiya Nagarik Suraksha Sanhita now has a total of 531 sections, up from 484 in the Code of Criminal Procedure. A total of 177 provisions have been changed in the Sanhita, introducing nine new sections and 39 new sub-sections and adding 44 new provisions and clarifications.

Why We Need Bharatiya Nagarik Suraksha Sanhita (BNSS)

As we know, the British made the old criminal law not to protect our rights but to strengthen and protect British rule, and they aimed to punish, not give justice. The new three laws were made to protect our rights provided by the constitution of India to all Indian citizens. As the government said, these laws were not to punish anyone but to give justice, and in this process, punishment will be given for preventing crimes.

The Bharatiya Nagarik Suraksha Sanhita expands the scope of modernizing India's criminal justice system through digital technology, reducing reliance on physical documents, and expanding the definition of documents to include electronic records. BNSS provides Zero FIR and e-FIR provisions, allowing citizens to file FIR at any police station and electronically, making it more accessible to the public. In BNSS, there is more transparency with mandatory videography during searches, seizures, and recording trials.

Police have to provide regular updates to complainants on their case status. Particularly in sexual violence cases, it is mandatory to record the victim's statement. These measures increase promoting fairness and accountability. Digitizing processes from FIR to final judgment and enabling trials via video conferencing reduces the administrative burdens, speeds up the processes, and makes them more accessible.

Key Reforms Introduced by the BNSS:

Forensic Investigation Mandatory:
In BNSS, section 176, clause 3 states that forensic investigations are mandatory for offenses that are punishable by at least seven years of imprisonment or more. The officer must ensure that the evidence collection process is recorded on a mobile phone or any other electronic device. If the state does not have the forensic team and necessary facilities, then the state will allow the use of facilities from another state.

Electronic Mode of Trials:
In BNSS, section 105 states that when the police conduct a search or seize property under Chapter VII or Section 185, police must use audio-visual electronic means, preferably mobile phones, to record the entire process. This includes the search, seizure, preparation of the seized items list, and signing of the list by witnesses. The police officer has to send the recording without any delay to the district magistrate, sub-divisional magistrate, or judicial magistrate of the first class.

Voice and Finger Impressions:
In BNSS, section 349 states that if a magistrate of the first class believes a sample of the accused is necessary for the investigation and legal proceeding, they can order any person, which includes the accused, to provide their signature, fingerprint, handwriting, or voice sample. The person must appear at the specified time and place to provide the requested sample. However, this order only applies if the person has been arrested at some point during the investigation or proceeding. The sample may be collected even from a person who has not been arrested, but the magistrate must write down the reason for this decision.

Detention and Custody:
In BNSS, section 187 (1) states that if a person is arrested and kept in custody, and the investigation is not complete within 24 hours as required by section 58, and there are valid reasons to believe the accusation or information is well-founded, the officer in charge of the police station or the investigation officer (he must be at least the rank of sub-inspector) must immediately send a copy of the relevant diary entries about the case to the nearest magistrate and also must send the accused person to the magistrate at the same time.

In BNSS, section 187 (2) states that the magistrate has the authority to continue the detention of the accused, considering whether the person has not been released on bail or if their bail has been canceled. The detention can be authorized for up to fifteen days in total, either at once or in parts, during the initial forty or sixty days of the detention period, within the sixty or ninety-day limit specified in sub-section (3) of section 187. If the magistrate realizes that he does not have the jurisdiction to try the case or that further detention is unnecessary, they can order the accused to be sent to a magistrate who has the proper jurisdiction.

In BNSS, section 187 (3) states that if the investigation needs more than fifteen days of detention of the accused, the magistrate has the authority to continue the detention of the accused if there are valid reasons for it. However, this detention cannot exceed ninety days for offenses punishable by death, life imprisonment, or imprisonment of ten years or more, and sixty days for all other offenses. After this period ends, the accused has to be released on bail if he is willing and able to provide it. Anyone can be released on bail under Chapter XXXV for all related purposes.

Bail Provisions:
In BNSS, sections 479 (1) and (2) state that during the investigation, inquiry, or trial of an offense (except those punishable by death and life imprisonment), if a person has been held in detention for a period that is one-half of the maximum sentence under that law, they are to be released by the court on bail. For the first-time offender (who has never been convicted before) and who has been detained for one-third of the maximum imprisonment period for the offense, the court has to release them on bond. In the end, if a person is involved in an investigation, inquiry, or trial for more than one offense or multiple cases, the court will not release them on bail.

Use of Handcuffs:
In BNSS, section 43 (3) states the definition of when a police officer can use handcuffs while presenting in court and in which crime, considering the nature and gravity of the offense if the individual is a habitual or repeat offender who previously escaped from custody or committed a serious crime such as organized crime, terrorist acts, drug-related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offenses against children, or offenses against the state. In this situation, handcuffing is allowed to ensure safety and prevent escape.

Timeline for Investigation, Trial Procedure, and Judgment:

Bharatiya Nagarik Suraksha Sanhita, 2023 has introduced several timelines to speed up the justice process in criminal laws. Here are the key reforms:
  • Enquiry Before FIR:
    • Section 173(3) of BNSS: For 3 to 7 years of punishable offenses, 14 days of preliminary enquiry has been allowed if there's a prima facie case. If such a case exists, the officer has to proceed with investigations.
  • Examination of Rape Victims:
    • Section 184 of BNSS: A rape victim is to be examined within 24 hours by a registered medical practitioner after the incident report and send the report to the investigation officer within 7 days.
  • Document Provided to Victim and Accused:
    • Section 230 of BNSS: The relevant document must be provided to both the victim and the accused within 14 days from the date of production or appearance of the accused.
  • Framing of Charges:
    • Section 251 and 263 of BNSS: From the first hearing, charges must be framed within 60 days.
  • Filing Discharge Application:
    • Section 250 and 262 of BNSS: From the date of commitment or from the supply of copies of documents, the discharge application has to be filed within 60 days.
  • Delivering of Judgment:
    • Section 258 of BNSS: After completion of the argument, the judge has to deliver judgment within 30 days, which can be extendable to 45 days if needed.
  • Discharging the Accused if the Complainant is Absent:
    • Section 272 of BNSS: In non-cognizable or compoundable offenses if the complainant remains absent for 30 days, the magistrate is allowed to discharge the accused.
  • Progress of Investigation Inform to Victim:
    • Section 193 (3) (ii): The police officer has to inform the victim of the progress of the investigation within 90 days. By any means of communication, including electronic communication.

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