Law and You >Procedural Laws > BNSS > An overview of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

The Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872 formed the bedrock of India’s criminal justice system. These statutes comprehensively defined offenses, prescribed punishments, outlined legal procedures, and regulated evidence admissibility. However, the passage of time rendered them partly obsolete, necessitating the enactment of three new criminal law acts to address emerging challenges like cybercrime and gender neutrality. The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, has replaced the existing Code of Criminal Procedure (CrPC), 1973 with a modernized framework aimed at addressing contemporary legal challenges. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to

• ensure speedy justice;
• bring transparency and accountability in investigation;
• make criminal justice system more victim centric;
• Integrate technology; and
• Protect the Rights of Citizens focusing on Justice over Punishment.

Historical Background:

The Code of Criminal Procedure, 1973 (CrPC) was a crucial procedural law established to facilitate the administration of the Indian Penal Code, 1860 (IPC). It outlined the processes for investigation, arrest, prosecution, and bail for various offenses. It was initially enacted in 1861 to unify India’s multiple legal systems. It has undergone several amendments over the years. The significant overhaul in 1973 introduced provisions like anticipatory bail. Subsequent amendments in 2005 included plea bargaining and enhanced rights for arrested individuals. Over time, the Supreme Court has significantly reinterpreted the CrPC. The Apex Court also laid down guidelines for custodial interrogations and speedy trials. Despite these reforms, the criminal justice system still grapples with case backlogs, trial delays, and issues impacting underprivileged groups.

Need for the BNSS

The CrPC, was nearly five decades old and outdated. It was inadequate for addressing contemporary criminal activities such as cybercrime and organized crime. Following points explain need for the new Code.

• The CrPC was designed for colonial India’s legal environment. It was outdated in addressing contemporary challenges such as cybercrime and organized crime. The BNSS introduces provisions which are as per technological developments.
• There is very large case backlog in Indian Courts. The BNSS aims to reduce case backlogs and trial delays by setting clear timelines for procedures.
• The BNSS mandates forensic investigations for serious crimes. It leverages modern technology to strengthen evidence collection and criminal investigations.
• The BNSS expands police authority to improve law enforcement efficacy. It also introduces necessary safeguards to prevent misuse and protect individual rights, addressing past issues of arbitrary detentions.
• The BNSS aims to better protect under trial prisoners and protect their human rights.
• The BNSS clarifies the categorization of offenses and responsibilities within the judicial process.
• The BNSS aims to reduce procedural ambiguities and overlaps with existing laws, ensuring more coherent and efficient legal proceedings.

Chronology of Passing the BNSS:

The Bill of BNSS was introduced in Lok Sabha on 12^th December 2023 and Lok Sabha passed on 20^th December 2023. The Rajya Sabha passed the Bill on 25^th December 2023. It received ascent from the President Droupadi Murmu on 25^th December 2023. The Code is enacted from 1^st July 2024.

Act Details

Act Name/ Short Title	The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Long Title	An Act to consolidate and amend the law relating to Criminal Procedure.
Act No.	46
Act Year	2023
Enactment Date	25 December 2023
Ministry	Ministry of Law and Justice
Department	Legislative
Enforcement Date	1 July 2024
Repealed Act	The Code of Criminal Procedure, 1973 (2 of 1974)

BNSS introduces 531 sections, surpassing CrPC’s 484 sections. 107 sections amended, reflecting substantial changes. 9 new sections incorporated to address evolving legal needs. 9 sections were deleted for streamlining the legal framework.

Salient Features of BNSS:

Abolition of Metropolitan Courts:  

The CrPC empowers the state governments to notify any city or town with a population of more than one million as a metropolitan area.  Such areas have Metropolitan Magistrates.  The BNSS omits this provision.

Changes with Respect to Registration of First Information Reports (‘FIRs’):

• Section 173(1)(ii) of BNSS lays down that FIRs can now be registered via electronic communication (E-FIR). It will be taken on record on being signed within three days, by the person giving such information. There was no such provision under CrPC.
• Section 173(3) of BNSS stipulates the provision for preliminary inquiry preceding an investigation, specifically for cognizable offenses carrying a punishment of three years or more but less than seven years’ imprisonment with the prior permission of the an officer not below the rank of Deputy Superintendent of Police after considering the offense’s nature and seriousness. This inquiry must adhere to a strict timeline, requiring completion within 14 days from the information’s reception. After completion of the enquiry, the police shall proceed with investigation when there exists a prima facie evidence. There was no such provision under CrPC.
• Section 173(1) of BNSS explicitly validates the mandatory registration of a “Zero FIR,” signifying the police’s obligation to register information about the commission of a cognizable offence, regardless of whether the specific offence was committed in the concerned police station’s jurisdiction or not. Once the Zero FIR is filed, the police station has to transfer the FIR to the station with the appropriate jurisdiction to conduct the investigation.
• Section 173(1)(ii) of BNSS lays down that Officer in charge of Police Station shall forward the daily diary reports of information regarding non-cognizable cases once in 14 days to the Magistrate. There was no specific timeline for this under CrPC.

Additional Powers for Attachment and Forfeiture of Property:

The property of criminals, which is deemed to be proceeds of crime, can be attached by the Court. Such proceeds of crime shall be distributed among the victims. This would not only create greater deterrence for crime but would also provide some pecuniary relief to the victims of crime.

• Section 107 of BNSS gives Magistrate powers to attach property identified as ‘proceeds of crime’. The Magistrate may upon an application of an investigating officer giving reasons to believe that the property is derived from a criminal activity, pass the following orders:

Direct attachment of the property found to be ‘proceeds of crime’ after hearing all parties concerned;

Pass an ex parte interim order attaching property if the Magistrate is of the opinion that issuing notice to the owner of the property for attachment will defeat the object of the attachment or seizure; and

Upon determination that the property in question falls under proceed of crime, the Magistrate will direct the District Magistrate to rateably distribute the property amongst those who were affected by the crime.

• Section 86 of BNSS provides that the Court, upon a written request from an officer not below the rank of Superintendent of Police or Commissioner of Police, can initiate the process of requesting assistance from a Court or authority in a contracting State for attachment or forfeiture of a proclaimed offender. The intention behind this provision seems to be either to secure the presence of fugitives or confiscate properties of fugitives who are evading summons/investigation/trial and have properties outside the country.

Changes with Respect to Recording of Statements: [Sec. 176, 179-183 BNSS]

• Section 176 of BNSS provides that in relation to the offence of rape, the recording of the statement of victim shall be conducted at the residence of victim or at the place of her choice by a woman police officer in the presence of her parent or guardian or near relative or social worker of the locality. Such statement may also be recorded by audio-video electronic means including mobile phone. CrPC did not have any provision for recording the statement of victim of sexual assault through mobile phone.
• Section 180 of BNSS provides that the statement of a woman, against whom sexual assault is alleged to have been committed or attempted, shall be recorded by a woman police officer or any woman officer. Such statements may also be recorded by audio-video electronic means.
• Section 183(6)(a) of BNSS mandates that the statement of the victim of the rape shall be recorded only by a woman Judicial Magistrate and in her absence, by a male Judicial Magistrate in the presence of a woman.
• According to Section 79 of BNSS
  • no male person under 15 years or above 60 years of age
  • no woman
  • no mentally or physically disabled person
  • no person with acute illness
  • shall be called to police station for recording of their statement. However, if the said person is willing to attend the police station he or she may be permitted to do so.
• According to Section 183(6) of BNSS in cases relating to the offences punishable with imprisonment for 10 years or life or death, the Judicial Magistrate shall record the statement of the witness brought before him by the police officer. CrPC did not have any provision like this.
• If the person making the statement is temporarily or permanently, mentally or physically disabled, the statement made by the person with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means, preferably by mobile phone.

Provisions Related to Arrest:

• According to Section 35 of BNSS, in case of offences punishable with less than 3 years of imprisonment no arrest of a person, who is infirm or above 60 years of age shall be made without the prior permission of DySP.
• According to Section 37 of BNSS, an officer, not below the rank of ASI, shall be appointed as Designated Police Officer in every Police station, who shall maintain and display, in digital mode, the information regarding name, address, nature of the offence of the arrested person at Police Station and District Headquarter.
• According to Section 48 of BNSS, police officer effecting arrest is required to inform about arrest of person to a) Relatives or friends and b) Also to designated Police officer
• According to Section 40 of BNSS, in case of arrest by private person, the arrested person must be handed over to the police within 6 hours of arrest.
• According to Section 43(3) of BNSS, the use of handcuffs on the accused is permitted in the following cases:
  • in case of habitual or repeat offender or
  • in case of a person who has escaped from custody or
  • in case of organised crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children or offences against State.

Medical Examination:

• According to Sections 51 and 52 of BNSS, any police officer can move an application for the medical examination of accused. Under CrPC only SI could move such an application.
• According to Section 184 of BNSS, the Medical Officer shall, within a period of 7 days, forward the Medico-Legal Report (MLR) to the investigating officer, who shall forward to it to the Magistrate with Police Report.
• According to Section 52 of BNSS, the Medical Officer shall without any delay forward the Medico-Legal Report (MLR) to the investigating officer.

Remand:

Police Remand can be sought even after the initial 15 days Remand of accused can be sought under BNSS

• within first 40 days of arrest in cases where the offence is punishable with less than 10 years imprisonment.
• within first 60 days of arrest in cases where the offence is punishable for more than 10 years imprisonment.

Under CrPC the Police Remand of accused could be sought only during the initial 15 days after arrest.

Changes with Respect to Search:

BNSS has introduced major changes regarding the search proceedings as compared to CrPC. It has mandated audio-video recording of the entire process of search. The following procedure has to be followed while conducting search:

Action before proceeding for search in person & deputing subordinate Police Officer for search:

• According to Section 185(1) of BNSS, the Officer in-charge of Police Station or IO is required to record the grounds of his belief for conducting search and also record the reason for not conducting search in person in the case-diary.
• According to Section 185(1) of BNSS, the Officer in-charge of Police Station or IO shall, if practicable, conduct the search in person.
• According to Section 185(3) of BNSS, if the Officer in-charge of Police Station or IO is unable to conduct search in person, he may after recording the reasons, depute any subordinate Police officer for conducting the search.

Procedure during Search:

• According to Proviso attached to Section 185(2) of BNSS, recording of search and seizure through audio-video electronic means.
• According to Section 103(4) of BNSS, the Officer In-charge of Police Station or IO shall record the whole process of search by any audio-video electronic means preferably by mobile phone.
• According to Section 103 (4) of BNSS, before making search, Police officer is required to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated.
• According to Section 103 (8) of BNSS,  any person who, without reasonable cause refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 222 of Bharatiya Nyaya Sanhita, 2023.

Action after Search:

• According to Section 105 of BNSS, the police officer shall without delay forward audio-video recording to the DM, SDM or JMIC.
• According to Section 185(5) of BNSS, the IO shall send the copies of the following record within 48 hours to the competent Magistrate:
• a) Reasons for conducting search
• b) Reason for not conducting search in person and deputing subordinate police officer in case someone else is deputed by IO to conduct search
• c) The details of search proceedings

Attachment, Forfeiture or Restoration of Property:

Section 107 of BNSS lays down the following procedure for attachment of property of criminals, derived from criminal activity and its distribution:

• According to Section 107(1) of BNSS, the investigating officer may, with the approval of Superintendent of police or Commissioner of police, make an application before the competent Magistrate for the attachment of property made from criminal activity or from the commission of any offence.
• According to Section 107(2) of BNSS, Magistrate may issue notice to the person, to whom the property belongs, to show cause within the period of 14 days as to why an order of attachment shall not be made.
• According to Section 107(4) of BNSS, the Magistrate may, after hearing all parties concerned, direct attachment of the property found to be the proceeds of crime.
• According to Section 107(5) of BNSS, if the Magistrate is of the opinion that issuing notice to the owner of the property for attachment will defeat the object of the attachment or seizure, he may pass an ex-parte interim order for attaching property.
• According to Section 107(6) of BNSS, upon determination that the property in question falls under proceed of crime, the Magistrate will direct the District Magistrate to rateably distribute the property amongst those who were affected by the crime.
• According to Section 107(7) of BNSS, the District Magistrate shall within a period of 60 days distribute the proceeds of crime either by himself or authorise any other officer subordinate to him to effect such distribution.

Inquest Report:

• According to Section 194(1) of BNSS, the inquest report shall be signed by Officer in-charge/IO and other persons shall be forwarded to the DM or SDM by police within 24 hours. CrPC did not have any specific timeline for this.
• According to Section 195 of BNSS, for the purpose of inquest proceedings, no male person under the age of 15 years or above the age of 60 years or a woman or mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place where such person resides. If such person is willing to attend the police station he may be permitted to do so.

Police Report:

• According to Section 193 of BNSS, the investigation in relation to an offence under sections 64, 65, 66, 67, 68, 70, 71 of the Bharatiya Nayaya Sanhita, 2023 or under sections 4, 6, 8 of the Protection of Children from Sexual Offences Act, 2012 shall be completed within 2 months from the date on which the information was recorded by the officer in-charge of the police station.
• According to Section 193(8) of BNSS, the investigating officer shall submit copies of the police report along with other documents duly indexed to the Magistrate. The Magistrate shall supply these documents to the accused and victim as required under section 230 BNSS. The Police Report and other documents supplied by electronic communication shall be considered as duly served.

Victim-Centric Provisions:

• According to Section 193(3)(ii) of BNSS, the police officer shall, within a period of 90 days, inform the progress of the investigation by any means including through electronic communication to the informant or the victim.
• According to Section 193(9) of BNSS, further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of 90 days which may be extended with the permission of the Court.
• According to Section 360 of BNSS, no court shall allow withdrawal from prosecution without giving an opportunity of hearing to the victim.

Procedure in case of Complaint Case against Public Servant and Others:

• According to Section 175(4) of BNSS, the Magistrate may take cognizance of a complaint against a public servant, regarding his official duties after:
• Receiving a report from senior officers of such officer about the fact and circumstances of the incident and
• consideration of assertions made by such Public Servant.
• According to Section 175(3) of BNSS, Magistrate may consider the submission made by the Police Officer before ordering investigation in complaint cases.

Speedy Trial:

• According to Section 356 of BNSS, the BNSS has introduced provision for conducting trial in-absentia of Proclaimed Offender. This allows the trial and pronouncement of judgment in the absence of the accused, which was not provided under CrPC. Section 356 of the BNSS mandates the court to proceed with the trial in-absentia when a person declared as a Proclaimed Offender has absconded to evade trial, and there is no immediate prospect of arresting him. It also specifies a mandatory waiting period of ninety (90) days from the date of framing of the charge before commencing the trial. CrPC allowed evidence to be recorded in the absence of the accused u/s 299, but did not provide for trial to be completed or for judgment to be pronounced against Proclaimed offender.
• According to Section 263 of BNSS, the Magistrate shall frame the charge against the accused within period of 60 days from the date of first hearing on charge.
• According to Section 392 of BNSS, after the termination of trial the judgment shall be pronounced at subsequent time but not later than 45 days.
• According to Section 258 of BNSS, after hearing the arguments of prosecution and defence, Session Court shall give the Verdict within a period of 30 days extendable up to 45 days.
• According to Section 265 of BNSS, during trial, the statements of prosecution witnesses may be recorded by audio-video electronic means.
• According to Section 218 of BNSS, the Central or the State Government is required to decide request for sanction for prosecuting the public servant within 120 days. If the said Government fails to do so, the sanction will be deemed to have been accorded by the Government.

Timelines for Procedures:

The BNSS sets specific timeframes for various legal procedures, aiming to streamline the justice system. The BNSS addresses delays in investigation and trial by introducing specific timelines in the criminal justice procedure. The same have been elaborated hereinunder:

Section 230 of the BNSS mandates providing copies of police reports and documents to the accused and victim within 14 days from the date of the accused’s production or appearance.

Section 232 provides that Committal Proceedings shall be completed within a period of 90 days from the date of taking cognizance, and such period may be extended by the Magistrate for a period not exceeding 180 days for the reasons to be recorded in writing .

Section 250 allows the accused to file for Discharge within 60 days from the date of committal.

Section 263 provides that charge against the accused must be framed within a period of 60 days from the date of first hearing on charge.

Section 346 provides for Inquiries or trials to proceed from day-to-day until all attending witnesses have been examined. The said section also limits the number of adjournment necessary that may be sought to a maximum of 2 per party.

Section 258 requiring a verdict of acquittal or conviction to be passed within 30 days after completing arguments, which may be extended to 45 days with specific reasons.

Detention of under Trial Persons:

According to the provisions of CRPC, if an accused has served half of the maximum imprisonment period in detention, they’re eligible for release on a personal bond, except for offenses punishable by death. However, section 479 of the CRPC further narrows the scope of applicability of this provisions by excluding (i) offences punishable by life imprisonment, and (ii) persons whose investigation, inquiry or trial is pending in more than one offence or in multiple cases.

Flexible Police Custody:

Section 187 of the BNSS introduces a provision allowing up to 15 days of police custody, which can be utilized intermittently within the initial 40 or 60 days of the total 60 or 90 days of judicial custody respectively. Traditionally, the Constitution and CrPC restrict detention in police custody beyond 24 hours, however, Magistrates hold the authority to extend this to 15 days if the investigation requires more time. Further extensions in judicial custody can occur if deemed necessary, yet the cumulative detention cannot exceed 60 or 90 days, depending on the offense. The BNSS modifies this procedure by allowing the 15-day police custody to be authorized wholly or partially at any point within the initial 40 or 60 days of the overall 60 or 90 days period respectively.

Signatures and Finger Impressions:

The CrPC authorizes Magistrates to demand specimen signatures or handwriting from individuals. Section 349 of the BNSS broadens this scope and further embowers the magistrate to demand collection of finger impressions and voice samples too. This provision extends to individuals who have not been arrested under any investigation.

Provision:

Section 190 of BNSS, provides that when a charge-sheet is filed, an accused is not required to be taken into custody. The provision states that if the person is not arrested during investigation, the police officer will take security from such person for his appearance before the Magistrate. It further provides that the Magistrate to whom such report is forwarded will not refuse to accept the same on the ground that the accused is not taken in custody.

Other Key Changes Regarding Investigation:

• Section 176 (3) of BNSS mandates the collection of forensic evidence at the crime scene by a forensic expert for offences punishable by imprisonment of 7 years or more. The provision is to be implemented within 5 years during which such capacity is to be developed by the State Government. The State Government shall also notify regarding utilization of forensic facility of any other State until State develops such facility.
• According to Section 258 of BNSS, whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested.
• According to Section 15 of BNSS, in Police Commissionerate area, minimum Superintendent of Police rank officer may be appointed as a Special Executive Magistrate. Under CrPC, Dy.S.P/A.C.P rank officer could be appointed as a Special Executive Magistrate
• According to Section 64(2) of BNSS, summons may also be served through electronic communication
• According to Section 94 BNSS, any Court or office In-charge of Police station can demand production of electronic communication including communication device, which is likely to contain digital evidence. CrPC did not have any provision for summoning the electronic record.
• According to Section 75(1) of BNSS, the Superintendent of Police may after considering the nature and gravity of the offence require the Deputy Superintendent of Police to investigate the offence.
• Section 530 of the BNSS provides that all trials, inquires and proceedings including appellate proceedings may be held in electronic mode.
• Section 531 of the BNSS provides that if there is any appeal, application, trial, inquiry, or investigation pending before the date on which BNSS comes into force, then it will be disposed of, continued, held or made, in accordance with the provisions of the Code of Criminal Procedure, 1973.

Criticism and Concerns:

Though the act has made major improvements, certain legal provisions have drawn criticism.

• The BNSS, by permitting up to 15 days of police custody within the initial 40 or 60 days of judicial custody, raises concerns over potential violations of Article 21, a fundamental right ensuring personal liberty. This adjustment, deviating from the constitutional and CrPC guidelines restricting police custody to 24 hours, poses the risk of prolonged detention without bail if the entire 15-day period is not utilized by the police.
• The BNSS diverges from Supreme Court guidelines set in the Prem Shankar Shukla v. Delhi Administration case by allowing the use of handcuffs during arrest in specific scenarios. This departure from established guidelines raises concerns regarding potential violations of established court precedents on the use of restraints during arrests.
• The CRPC allows release on a personal bond if an accused has served half of the maximum imprisonment period, except for offenses punishable by death. However, Section 479 of the BNSS imposes additional restrictions, excluding individuals charged with offenses punishable by life imprisonment or involved in investigations, inquiries, or trials across multiple offenses or cases. This limitation, especially in cases involving multiple charges, could significantly restrict the eligibility for bail.
• BNSS expands data collection powers initially granted by CrPC and later by the Criminal Procedure (Identification) Act, 2022. The need for retaining these provisions in BNSS is unclear given the broader scope of the 2022 Act.
• Both BNSS and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provide for senior citizen maintenance, creating a redundancy. The latter specifically overrides other laws, questioning BNSS’s provision.
• BNSS retains CrPC’s provisions for maintaining public order, a state subject under the Seventh Schedule of the Constitution. The relevance of including both trial procedures and public order maintenance under one law is debatable.

Comparison between CrPC and BNSS

CrPC	BNSS
The CrPC provides the procedural framework for the administration of criminal justice in India. It outlines the procedures for the investigation, prosecution, and trial of criminal offenses, and is designed to ensure that justice is administered fairly and efficiently.	The BNSS aims to modernize criminal procedures, integrate technology, and address contemporary legal and procedural challenges to make the criminal justice system more efficient and transparent.
The CrPC has been criticized for procedural delays and inefficiencies. The system often faces issues such as case backlogs, slow trials, and lengthy appeals.	The BNSS introduces streamlined procedures to expedite criminal justice. It includes stricter timelines for investigations, trials, and appeals, and emphasizes reducing delays in the legal process.
The CrPC does not specifically address digital evidence or electronic court procedures.	The BNSS incorporates provisions for technological integration, such as digital evidence, electronic filing of documents, and video conferencing for court proceedings, to improve efficiency and accessibility
The CrPC provides basic protections for both victims and the accused but does not specifically address the evolving needs of victims or the full range of rights for the accused.	The BNSS places a greater emphasis on the rights of victims, including better support and compensation mechanisms, while also ensuring that the rights of the accused are protected.
The CrPC does not specifically provide for alternative dispute resolution mechanisms, such as plea bargaining, which are sometimes used to resolve minor offenses.	The BNSS encourages alternative dispute resolution mechanisms, including plea bargaining and mediation, to handle minor offenses and reduce the burden on the courts.
The CrPC applies broadly to all criminal cases without specialized provisions for emerging or complex crime types.	The BNSS includes special provisions for dealing with specific types of crimes, such as organized crime, cybercrime, and crimes against women and children, with tailored procedures and expertise.
The CrPC includes provisions for judicial review and oversight but may lack specific measures for enhancing transparency and accountability.	The BNSS aims to increase transparency and accountability within the criminal justice system through oversight mechanisms for law enforcement, public access to legal proceedings, and more rigorous documentation and reporting requirements.

Conclusion:

The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, marks a transformative step in India’s criminal justice reform by replacing the colonial-era Code of Criminal Procedure (CrPC). It aims to make justice more citizen-centric, transparent, and technologically advanced. Key features such as time-bound investigation, digital case management, victim-centric reforms, and enhanced police accountability reflect a forward-looking legal framework. While the BNSS promises improved efficiency and responsiveness in the criminal justice system, its successful implementation will require robust training, infrastructure, and continuous oversight to truly fulfill its objectives of fairness, speed, and accessibility in delivering justice.

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