To modernize India’s criminal justice
system three new comprehensive legal codes were introduced in 2023. These new
laws seek to replace the colonial-era framework prevailing for centuries and
also mark a significant shift. The Bhartiya Nyaya Sanhita (BNS) replaces the
Indian Penal Code (IPC), and The Bhartiya Nagarik Suraksha Sanhitha (BNSS)
succeeds the Code of Criminal Procedure (CrPC). The Indian Evidence Act, 1872
(IEA), has been replaced by the Bhartiya Sakshya Adhiniyam (BSA). As per the
recent press release by the union government, these new laws are all set to be
enforced from the 1st of July 2024.
The Code Of Criminal Procedure 1973,
is a procedural law that governs the procedure for Investigation, arrest, and
bail for offences. Section 4 of the code provides that all offences under
Indian Penal Code 1860 and all offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with by the provisions
contained in the code.
To resolve the problem of the multiplicity of legal systems in India The CrPC was first enacted in 1861, and since then it has been revised multiple times. Finally, in 1973, a consolidated code repealing the erstwhile acts was introduced and concepts like anticipatory bail came into existence. Then in 2005, a significant amendment was made to the code and several changes such as a provision for plea bargaining and the rights of arrested persons were added.
To bridge the statutory gap, the Apex
court has interpreted the CrPC in varied ways which includes mandating the registration
of an FIR if the complaint relates to a cognizable offence, making arrests an exception when the
punishment is less than seven years of imprisonment, ensuring bail for the bailable
offence is an absolute and indefeasible right and no discretion is exercised in
such matters. The court also commented on the procedural aspects of the code
and gave guidelines for custodial interrogation emphasizing the importance of
speedy trials. However, the Indian criminal justice system is still filled with
several challenges such as the pendency of cases, delays in justice delivery,
and concerns about the treatment of underprivileged groups.
The Bhartiya Nagarik Suraksha
Sanhita, 2023 (BNSS) is introduced to replace the Code of Criminal Procedure,
1973 (CrPC). The object of the new enactment is to consolidate the law relating
to criminal procedure. Let us discuss the similarities and distinctions between
Bhartiya Nagarik Suraksha Sanhita 2023 and The Code Of Criminal Procedure
1973.
Structural changes
Code
Of Criminal Procedure, 1973
Bhartiya
Nagrik Suraksha Sanhita 2023
37
chapters
39
chapters
484
sections
531
sections
2
schedules, 56 forms
2
schedules, 58 forms
Key Changes
Point Of
Difference
Bhartiya Nagarik
Suraksha Sanhita, 2023
Code Of Criminal
Procedure, 1973
Definitions
Addition of
definitions such as:
Audio-video electronic
Means, Bail, Bail- Bond
Bond, Electronic
communication
There were no such
definitions in the Code Of Criminal Procedure 1973
Medical
examination
The BNSS
provides that any police officer can request such an examination.
The CrPC allows
medical examination of the accused in certain cases, including rape
cases. Such examination is done by a
registered medical practitioner on the request of at least a sub-inspector
level police officer
Timelines for
procedures
The BNSS
prescribes timelines for various procedures such as:
giving judgment within 30 days of completion
of arguments (extendable up to 45 days),informing the victim of progress of the
investigation within 90 daysframing of charges by a sessions court within 60
days from the first hearing on such chargemedical practitioners who examine rape victims to
submit their reports to the investigating officer within 7 days
There are no
such timelines for procedures under the Code of Criminal Procedure, 1973
Hierarchy of
Courts
The BNSS removes
the classification of metropolitan areas and Metropolitan Magistrates
The CrPC
establishes a hierarchy of courts for adjudicating criminal matters in India.
These courts
include
i. High Court
ii. Judicial magistrates of the first
class and in any metropolitan area, Metropolitan Magistrate
iii. Judicial Magistrate of the second
class, and
iv. Executive
Magistrate
Signatures and
finger impressions
The BNSS expands
this to include finger impressions and voice samples. It allows these samples to be collected
from a person who has not been arrested.
The CrPC
empowers a Magistrate to order any person to provide specimen signatures or
handwriting
Detention of
undertrials
This provision
will also not apply to: offenses punishable by life imprisonment, and persons
against whom proceedings are pending in more than one offence
If an accused
has spent half of the maximum period of imprisonment in detention, he must be
released on personal bond. This does
not apply to offences punishable by death.
Proclaimed
Offender
anyone accused
of an offence with more than 10 years of imprisonment or other special
offences could be declared a proclaimed offender Under section 84 (4)
Section 82(4) of
CrPC as added to the code by the 2005 Amendment, someone can be declared as a
‘Proclaimed offender’ for only nineteen specified offences under IPC namely,
“302, 304, 364,
367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or
460”.
Expansion of power of police regarding arrest and detention
The CrPC provides for the powers of
police officers to undertake criminal investigations and to maintain public
order. However, these powers are subject to restrictions to prevent misuse of power
because in some cases it may lead to the use of force, custodial torture, and
abuse of authority. The BNSS expands the power of police as it amends the
powers related to arrest, and detention, police custody by incorporating
provisions such as allowing the use of handcuffs under certain circumstances
under sub-section (3) of section 43.
Various provisions of CrPC prohibit
the detention of an accused person in police custody beyond 24 hours and by the
order of the magistrate it is extendable up to 15 days, in case the
investigation is not completed within 24 hours. However, the overall detention can
extend to 60 or 90 days but police custody can only be given for the first 15
days, and the rest period the person is to be kept under judicial custody. The
BNSS modifies this provision and adds that police custody can be authorized in
whole or in parts at any time during the initial 40 or 60 days out of 60 or 90
days.
Section 172 of BNSS provides that all
persons shall be bound to conform to the lawful directions of a police officer
given for the fulfillment of his duty to prevent crime and he may detain or
remove any person resisting, refusing, ignoring, or disregarding conform to any
direction given by him, there was no such provision under CrPC.
BNSS also adds a new Section 107
which gives vast powers of seizure and attachment of property. This section
gives police the power to have the property of any accused seized and forfeited
if it is suspected of being involved in criminal activity.
Conclusion
The BNSS retains most of the provisions of the CrPC, only some modest changes have been made to the existing code. Some positive changes have been made to achieve the goal of the dispensation of a fair and speedy trial process. Recently, CJI D.Y. Chandrachud while he was addressing a conference on ‘India’s progressive path in the administration of the criminal justice system’, in Delhi, Commented on the introduction of new criminal laws. CJI said, “I think that the enactment of three new criminal laws by the Parliament is a watershed moment for our society, a clear indicator that India is changing.” He highlighted the introduction of essential reforms aimed at safeguarding the rights of victims and enhancing the efficiency of investigations and prosecutions. However, all the positive changes that have been made depend upon the implementation of the Sanhita.
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To modernize India’s criminal justice system three new comprehensive legal codes were introduced in 2023. These new laws seek to replace the colonial-era framework prevailing for centuries and also mark a significant shift. The Bhartiya Nyaya Sanhita (BNS) replaces the Indian Penal Code (IPC), and The Bhartiya Nagarik Suraksha Sanhitha (BNSS) succeeds the Code of Criminal Procedure (CrPC). The Indian Evidence Act, 1872 (IEA), has been replaced by the Bhartiya Sakshya Adhiniyam (BSA). As per the recent press release by the union government, these new laws are all set to be enforced from the 1st of July 2024.
The Code Of Criminal Procedure 1973, is a procedural law that governs the procedure for Investigation, arrest, and bail for offences. Section 4 of the code provides that all offences under Indian Penal Code 1860 and all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with by the provisions contained in the code.
To resolve the problem of the multiplicity of legal systems in India The CrPC was first enacted in 1861, and since then it has been revised multiple times. Finally, in 1973, a consolidated code repealing the erstwhile acts was introduced and concepts like anticipatory bail came into existence. Then in 2005, a significant amendment was made to the code and several changes such as a provision for plea bargaining and the rights of arrested persons were added.
Also Read Comparing Indian Evidence Act and Bharatiya Sakshya Adhiniyam
Also Read Comparing Indian Penal Code and Bharatiya Nyaya Sanhita
To bridge the statutory gap, the Apex court has interpreted the CrPC in varied ways which includes mandating the registration of an FIR if the complaint relates to a cognizable offence, making arrests an exception when the punishment is less than seven years of imprisonment, ensuring bail for the bailable offence is an absolute and indefeasible right and no discretion is exercised in such matters. The court also commented on the procedural aspects of the code and gave guidelines for custodial interrogation emphasizing the importance of speedy trials. However, the Indian criminal justice system is still filled with several challenges such as the pendency of cases, delays in justice delivery, and concerns about the treatment of underprivileged groups.
The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is introduced to replace the Code of Criminal Procedure, 1973 (CrPC). The object of the new enactment is to consolidate the law relating to criminal procedure. Let us discuss the similarities and distinctions between Bhartiya Nagarik Suraksha Sanhita 2023 and The Code Of Criminal Procedure 1973.
Structural changes
Key Changes
Expansion of power of police regarding arrest and detention
The CrPC provides for the powers of police officers to undertake criminal investigations and to maintain public order. However, these powers are subject to restrictions to prevent misuse of power because in some cases it may lead to the use of force, custodial torture, and abuse of authority. The BNSS expands the power of police as it amends the powers related to arrest, and detention, police custody by incorporating provisions such as allowing the use of handcuffs under certain circumstances under sub-section (3) of section 43.
Various provisions of CrPC prohibit the detention of an accused person in police custody beyond 24 hours and by the order of the magistrate it is extendable up to 15 days, in case the investigation is not completed within 24 hours. However, the overall detention can extend to 60 or 90 days but police custody can only be given for the first 15 days, and the rest period the person is to be kept under judicial custody. The BNSS modifies this provision and adds that police custody can be authorized in whole or in parts at any time during the initial 40 or 60 days out of 60 or 90 days.
Section 172 of BNSS provides that all persons shall be bound to conform to the lawful directions of a police officer given for the fulfillment of his duty to prevent crime and he may detain or remove any person resisting, refusing, ignoring, or disregarding conform to any direction given by him, there was no such provision under CrPC.
BNSS also adds a new Section 107 which gives vast powers of seizure and attachment of property. This section gives police the power to have the property of any accused seized and forfeited if it is suspected of being involved in criminal activity.
Conclusion
The BNSS retains most of the provisions of the CrPC, only some modest changes have been made to the existing code. Some positive changes have been made to achieve the goal of the dispensation of a fair and speedy trial process. Recently, CJI D.Y. Chandrachud while he was addressing a conference on ‘India’s progressive path in the administration of the criminal justice system’, in Delhi, Commented on the introduction of new criminal laws. CJI said, “I think that the enactment of three new criminal laws by the Parliament is a watershed moment for our society, a clear indicator that India is changing.” He highlighted the introduction of essential reforms aimed at safeguarding the rights of victims and enhancing the efficiency of investigations and prosecutions. However, all the positive changes that have been made depend upon the implementation of the Sanhita.
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