Index

1. Introduction
2. Evolution And Replacement Of The CrPC
3. Proposed Changes From CrPC To BNSS2
4. Analysing Expansion Of Police Powers
5. Limitations On Mandatory Bail For Accused In Multiple Charges
6. Limited Scope For Plea Bargaining
7. Safeguards On Property Attachment
8. Expansion Of Data Collection For Criminal Identification
9. Maintenance Of Senior Citizens And Retention Of Public Order
10. Recommendations And Incorporation In The BNSS2 Bill
11. Conclusion 

Introduction 

The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) aims to replace the Criminal Procedure Code, 1973 (CrPC). BNSS2 mandates forensic investigations for offences punishable with seven years of imprisonment or more. All trials, inquiries, and proceedings may be conducted electronically. Electronic communication devices that are likely to contain digital evidence can be produced for investigation, inquiry, or trial. Subsequently, if a proclaimed offender has absconded to avoid trial and there is no immediate prospect of arresting him, the trial can proceed, and judgement can be pronounced in his absence. Specimen signatures, handwriting, finger impressions, and voice samples may be collected for investigation or proceedings. Moreover, samples may be taken from a person who has not been arrested. More to this Bill will be discussed further into the article. 

Evolution And Replacement Of The CrPC

The Code of Criminal Procedure, 1973 (CrPC), is a procedural law created to administer the Indian Penal Code, 1860 (IPC). It outlines the steps for investigation, arrest, prosecution, and bail for crimes. The CrPC was originally passed in 1861 to unify India’s diverse legal systems. It has since undergone multiple revisions. In 1973, the old act was replaced by the current CrPC, introducing changes like anticipatory bail. In 2005, it was amended to include plea bargaining and rights for arrested persons.

Over time, the Supreme Court has interpreted and refined the CrPC. Key rulings include: 

1.  Requiring an FIR for complaints about cognizable offences.
2. Making arrests uncommon for offences with less than seven years of imprisonment.
3. Guaranteeing bail for bailable offences without discretion. 

The Court has also set guidelines for custodial interrogations and stressed the need for speedy trials. Despite these efforts, the criminal justice system still struggles with case backlogs, trial delays, and issues affecting underprivileged groups.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), was introduced in the Lok Sabha on August 11, 2023, to replace the CrPC. After review by the Standing Committee on Home Affairs and incorporating some of its recommendations, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2), was introduced on December 12, 2023. Consequently, the original BNSS was withdrawn.

 

Proposed Changes From CrPC To BNSS2

The CrPC outlines the procedures for criminal justice in India. Key features include:

1. Cognisable Offences:Police can arrest and start an investigation without a warrant.
2. Non-Cognisable Offences: Require a warrant and sometimes a complaint from the victim or a third party.
3. The CrPC covers various crimes, from traffic violations to murder.
4.  It differentiates between bailable and non-bailable offences, specifying when an accused has the right to bail from police custody.
5. Detention of Undertrials: Under the CrPC, an accused who has served half the maximum imprisonment period in detention must be released on personal bond, except for offences punishable by death.
6. The BNSS2 adds that this rule will also not apply to  offences punishable by life imprisonment and persons with pending proceedings in more than one offence.
7. Medical Examination: The CrPC allows medical examinations of the accused in certain cases, such as rape, by a registered medical practitioner upon request from at least a sub-inspector.
8.  The BNSS2 allows any police officer to request such an examination.
9. Forensic Investigation: The BNSS2 requires forensic investigations for crimes punishable by at least seven years of imprisonment.
10.  Forensic experts must visit crime scenes, collect evidence, and record the process on mobile phones or other electronic devices.
11.  States without forensic facilities must use facilities in other states.
12. Signatures and Finger Impressions: The CrPC allows a Magistrate to order a person to provide specimen signatures or handwriting.
13.  The BNSS2 expands this to include finger impressions and voice samples, even from individuals who are not arrested.
14. Timelines for Procedures: The BNSS2 sets specific timelines for various procedures like medical practitioners examining rape victims must submit reports within seven days, Judgements should be given within 30 days of completing arguments, extendable to 45 days and victims must be informed of investigation progress within 90 days. Moreover, charges must be framed by a sessions court within 60 days from the first hearing.
15. Hierarchy of Courts: The CrPC establishes a court hierarchy for criminal cases: Magistrate’s Courts will handle most criminal trials, Sessions Courts will handle appeals from Magistrates Courts, presided over by a Sessions Judge. High Courts will have the authority to hear and decide criminal cases and appeals and the Supreme Court: Hears appeals from High Courts and has original jurisdiction in certain cases.
16.  The CrPC allows states to designate metropolitan areas with populations over one million, which have Metropolitan Magistrates.
17. The BNSS2 removes the classification of metropolitan areas and Metropolitan Magistrates.

Analysing Expansion Of Police Powers

The CrPC governs police powers for maintaining public order, preventing crimes, and conducting investigations. These powers include arrest, detention, search, seizure, and use of force, with restrictions to protect individuals from misuse, such as excessive force, illegal detentions, custodial torture, and abuse of authority. The Supreme Court has issued guidelines to prevent arbitrary use of these powers. The BNSS2 changes rules on detention, police custody, and handcuffs, which may raise concerns.

The Constitution and CrPC limit police custody to 24 hours, extendable to 15 days by a Magistrate if necessary. Judicial custody can be extended beyond 15 days if there are valid reasons, but total detention cannot exceed 60 or 90 days, depending on the offence. The BNSS2 alters this by allowing the 15 days of police custody to be authorised in whole or parts during the first 40 or 60 days of the 60 or 90 days period. This could result in bail being denied if the police argue they need more custody time within this period.

This differs from laws like the Unlawful Activities (Prevention) Act, 1976, where police custody is limited to the first 30 days. The Supreme Court has generally ruled that police custody should be taken within the first 15 days of remand, using the extended period only as an exception. The BNSS2 does not require the investigating officer to give reasons when seeking police custody for someone already in judicial custody. The Standing Committee (2023) recommended clarifying this clause’s interpretation.

The use of handcuffs can infringe on personal liberty. The BNSS2 law allows handcuffs during an arrest only for: (i) habitual or repeat offenders who have escaped custody, or (ii) those accused of serious crimes like rape, acid attacks, organized crime, drug crimes, or offenses against the State. This law conflicts with Supreme Court rulings and National Human Rights Commission guidelines.

The Supreme Court has stated that handcuffing is inhumane, unreasonable, arbitrary, and violates Article 21. In extreme cases where handcuffs must be used, the authorities must document the reasons. Additionally, prisoners on trial cannot be handcuffed without judicial consent. The decision to use handcuffs is left to the trial court. In 2023, the Standing Committee recommended excluding economic offences from the list of crimes where handcuffs can be used, and the BNSS2 has followed this recommendation.

Limitations On Mandatory Bail For Accused In Multiple Charges

Under the CrPC, if an undertrial prisoner has served half of the maximum imprisonment for their offence, they must be released on a personal bond, except for offences punishable by death. The BNSS2 retains this rule and adds that first-time offenders can get bail after serving one-third of their maximum sentence. However, it excludes those charged with offences punishable by life imprisonment or with multiple pending cases or investigations.

Since chargesheets often list multiple offences, this could make many undertrial prisoners ineligible for mandatory bail. For instance, the Supreme Court ruled that illegal mining is both an offence under the Mines and Minerals Act and qualifies as theft under the IPC. Similarly, rash driving is punishable under both the Motor Vehicles Act and the IPC. Those accused in such cases would not qualify for mandatory bail.

Bail allows the accused to be released from custody while awaiting trial, under certain conditions. Pre-trial detention ensures the accused is available for trial and does not tamper with evidence. If these conditions are met, detention is unnecessary. The Supreme Court has stated that bail should be the norm and incarceration the exception, and that undertrial prisoners should be released as soon as possible. Those who cannot afford bail bonds should not be jailed solely for that reason.

Limited Scope For Plea Bargaining

Plea bargaining is when the accused agrees to plead guilty in exchange for a lesser offence or a reduced sentence. Introduced in the CrPC in 2005, it is not allowed for offences punishable by death, life imprisonment, or imprisonment for over seven years. The CrPC only permits bargaining for a lighter sentence, not for a lesser offence, meaning the accused is seen as having confessed to the original offence. The BNSS2 keeps this rule, limiting plea bargaining in India to sentence reduction.

Additionally, the BNSS2 requires the accused to apply for plea bargaining within 30 days of being charged. This time limit may reduce the effectiveness of plea bargaining by limiting the opportunity to seek a reduced sentence.

Restricting bail and limiting plea bargaining could worsen prison overcrowding. As of December 2021, India’s prisons held over 5.5 lakh prisoners, with an occupancy rate of 130%. Under-trial prisoners made up 77% of the total prison population, with about 30% detained for a year or more and 8% for three years or more.

 

Safeguards On Property Attachment

Property obtained through criminal activity is known as proceeds of crime. The CrPC allows police to seize stolen or suspicious movable property. The BNSS2 extends this power to immovable properties as well. This differs from the Prevention of Money Laundering Act, 2002 (PMLA), which also deals with property from money laundering.

The PMLA includes safeguards not found in the BNSS2 but provisional attachment for up to 180 days, a 30-day notice period to challenge the attachment, and the right to enjoy immovable property during attachment. In contrast, the BNSS2 does not specify a time limit for attachment and only provides a 14-day notice period.

 

Expansion Of Data Collection For Criminal Identification

In 2005, the CrPC was amended to let a Magistrate gather handwriting or signature samples from arrested individuals. The BNSS2 extends this to collecting finger impressions and voice samples, even from those not under investigation. The Criminal Procedure (Identification) Act, 2022 goes further, allowing collection of fingerprints, handwriting, and biological samples from convicts, arrestees, or non-accused individuals, with data storage for up to 75 years. With this new law, the necessity of retaining and expanding data collection in the BNSS2 is uncertain. The constitutional validity of the 2022 Act is being reviewed by the Delhi High Court.

 

Maintenance Of Senior Citizens And Retention Of Public Order

Under the CrPC, a Magistrate can order a person with enough means to provide a monthly allowance for their unable-to-maintain father or mother. Failure to comply can lead to a warrant for payment or imprisonment. The BNSS2 keeps this provision, which mirrors the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. This Act mandates state governments to form Maintenance Tribunals for deciding on senior citizens’ maintenance. The Act supersedes other laws in this matter.

The CrPC outlines procedures for investigating and trying offences, along with maintaining public order and tranquillity. It allows District Magistrates to issue orders for public order preservation. The BNSS2 retains these provisions separately. While public order is a state subject, the CrPC’s matters fall under the Concurrent List. The question arises whether these functions should be under one law or separated.

 

Recommendations And Incorporation In The BNSS2 Bill

 

Broader Reforms in the Criminal Justice System: A statutory committee should be formed to prescribe sentencing guidelines, chaired by a former Supreme Court judge or Chief Justice of a High Court. However, this recommendation is not incorporated in the BNSS2 Bill.

Rights of the Accused:The rights of the accused, as recognized by the Supreme Court, should be included in the CrPC. Unfortunately, this recommendation is not included in the BNSS2 Bill.

Procedure for Extended Police Custody: In cases where investigation cannot be completed within 24 hours, the maximum period of police custody should be 30 days for offences punishable with a sentence exceeding seven years. The BNSS2, however, sets the maximum police custody period at 15 days, which may extend to 60 days for certain offences.

Compensation for Wrongfully Accused: There should be provisions for compensating individuals who are wrongfully accused. However, this recommendation is not incorporated in the BNSS2 Bill.

Arrest Procedures: After arrest, an individual must be examined by a medical officer every 48 hours, with injuries recorded. The BNSS2 partially incorporates this by requiring a medical examination after arrest but does not specify a 48-hour interval.

Statements and Confessions to Police: Statements made to the police should be read over, signed by the statement maker, and a copy provided to them. The BNSS2 retains the original provision without any changes.

Bail Procedures: Individuals arrested must be informed of the grounds of arrest in a language they understand, but this recommendation is not specifically addressed in the BNSS2 Bill.

When bail is denied, the court should provide a brief explanation for the refusal, which is also not included in the BNSS2 Bill.

Upon postponement or adjournment of the trial, the court should release the accused on bail or remand them to further custody, recording the reasons for the decision. However, this recommendation is not incorporated in the BNSS2 Bill.

Conclusion

In conclusion, the proposed changes from the CrPC to BNSS2 aim to modernize and streamline criminal procedures while expanding police powers and addressing contemporary issues. However, the BNSS2 Bill also introduces significant limitations on mandatory bail for those with multiple charges and offers a narrow scope for plea bargaining. Additionally, it includes safeguards on property attachment and expands data collection for criminal identification. The bill also emphasizes the maintenance of senior citizens and the retention of public order. Overall, the BNSS2 Bill incorporates various recommendations to enhance the criminal justice system, balancing stricter measures with necessary protections.