An Explicate Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023
ABSTRACT
This study undertakes a comparative analysis of the Criminal Procedure Code (CrPC) in India and the Bhartiya Nagarik Suraksha (BNS), a hypothetical legal framework proposed for consideration. The CrPC is a comprehensive statute governing criminal procedure in India, while the BNS is a conceptual framework that draws inspiration from traditional Indian legal principles. The CrPC, enacted in 1973, provides the procedural framework for the investigation and trial of criminal offenses in India. It outlines the powers and responsibilities of various authorities involved in the criminal justice system, such as police officers, magistrates, and courts. The CrPC also lays down the procedures for the arrest, bail, and trial of accused persons, as well as the rules for the conduct of investigations and trials. On the other hand, the BNS is a proposed legal framework that seeks to incorporate traditional Indian legal principles into the modern criminal justice system. It emphasizes principles such as restorative justice, community involvement, and reconciliation. The BNS envisions a system where the focus is not only on punishing offenders but also on rehabilitating them and restoring harmony in the community.
In comparing the two frameworks, several major differences emerge. The CrPC is a detailed and elaborate statute that provides specific procedures and guidelines for every stage of the criminal justice process. In contrast, the BNS is more principles-based and allows for greater flexibility in its application. The BNS also places a greater emphasis on alternative dispute resolution mechanisms, such as mediation and arbitration, whereas the CrPC primarily relies on formal adjudication by courts. The both frameworks share the common goal of ensuring justice and protecting the rights of individuals. While the CrPC is firmly rooted in the principles of British common law, the BNS seeks to draw on India’s rich legal heritage to create a more holistic and culturally relevant approach to criminal justice.
KEYWORDS –
Legal procedures, Investigation, Trial, Arrest, Bail, Magistrates, Courts, Offenses, Evidence, Traditional Indian legal Principles, Restorative justice, Community involvement, Reconciliation, Alternative dispute resolution, Mediation, Rehabilitation, Harmony, Cultural relevance, Legal heritage, Criminal justice system, social cohesion, Customary law, Conflict resolution, Legal pluralism, Judicial discretion, Summons cases, Warrant cases, Session court, Summary Trail.
INTRODUCTION
The CrPC is divided into two main parts: the substantive part, which contains provisions related to the investigation and trial of criminal cases, and the procedural part, which contains the rules and regulations governing the conduct of criminal proceedings. One of the key features of the CrPC is its emphasis on the protection of the rights of the accused. The code lays down specific procedures to be followed by the police during the investigation, such as the recording of statements, the collection of evidence, and the arrest of suspects. The CrPC also provides for the rights of the accused, such as the right to legal representation, the right to bail, and the right to a fair trial. Another important aspect of the CrPC is its role in ensuring the efficiency and effectiveness of the criminal justice system. The code contains provisions that regulate the conduct of courts, such as the time limits for the completion of various stages of the trial and the procedures for the disposal of cases. These provisions are aimed at expediting the delivery of justice and reducing delays in the criminal justice system. Overall, the Criminal Procedure Code plays a crucial role in ensuring the proper administration of criminal justice in India. It provides a framework within which the police and courts can operate, ensuring that the rights of the accused are protected and that justice is delivered in a fair and timely manner. On 11th August, 2023 marked a historic day as several speculations regarding the introduction of new criminal major laws were finally laid to rest. On this date, the Hon’ble Home Minister of India, Shri Amit Shah introduced the three bills to replace the existing IPC, CrPC and IEA. These bills are called The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha Sanhita, 2023; and The Bharatiya Sakshya Bill, 2023 respectively. All the three laws have been referred to relevant Parliamentary Standing Committee. Although, the bills are yet to be enacted and subsequently notified, they have become a major point of debate and discussion already. While some are applauding this move to decolonise the existing criminal infrastructure, many others have questioned the move as being abrupt and without proper public consultation. The majority of the current discourse is focusing upon the IPC or the upcoming Bhartiya Nyaya Sanhita.
Highlights of the Bill
1. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal Procedure Code, 1973 (CrPC). The CrPC provides for the procedure for arrest, prosecution, and bail.
2. BNSS mandates forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect forensic evidence and record the process.
3. All trials, inquiries, and proceedings may be held in electronic mode. Production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial.
4. If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the trial can be conducted and judgement pronounced in his absence.
5. Along with specimen signatures or handwriting, finger impressions and voice samples may be 5. collected for investigation or proceedings. Samples may be taken from a person who has not been arrested.
Major Issues and Analysis
1. The BNSS allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60- or 90-days period of judicial custody. This may lead to denial of bail for the entire period if the police have not exhausted the 15 days custody.
2. The powers to attach property from proceeds of crime does not have safeguards provided in the Prevention of Money Laundering Act.
3. The CrPC provides for bail for an accused who has been detained for half the maximum imprisonment for the offence. The BNSS denies this facility for anyone facing multiple charges. As many cases involve charges under multiple sections, this may limit such bail.
4. The use of handcuffs is permitted in a range of cases including economic offences, contradicting Supreme Court directions.
5. The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This violates normal rules of evidence when the author of the document can be cross examined.
6. Recommendations of high-level committees on changes to the CrPC such as reforms in sentencing guidelines and codifying rights of the accused have not been incorporated in the BNSS.
The Code of Criminal Procedure, 1973 (CrPC) is a procedural law established for the administration of the Indian Penal Code, 1860 (IPC). It governs the procedure for investigation, arrest, prosecution, and bail for offences. The CrPC was first passed in 1861 to address the problem of multiplicity of legal systems in India. Since then, it has been revised on multiple occasions. In 1973, the erstwhile act was repealed and
replaced by the existing CrPC, and changes like anticipatory bail were introduced. It was amended in 2005 to add changes such as provisions for plea bargaining and rights of arrested persons. over the years, the Supreme Court has interpreted the CrPC in varied ways and revised its application. These include: (i) mandating the registration of an FIR if the complaint relates to a cognisable offence, (ii) making arrests an exception when the punishment is less than seven years of imprisonment, (iii) ensuring bail for bailable offence is an absolute and in-defeasible right and no discretion is exercised in
such matters. The Court has also ruled on procedural aspects such as establishing guidelines for custodial interrogations and emphasising the importance of speedy trials. However, the criminal justice system continues to face challenges like case backlogs, trial delays, and concerns about treatment of underprivileged groups. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023 to replace the CrPC. It amends provisions on bail, expands the scope of property seizure, and alters powers of police and Magistrates. The Bill has been examined by the Standing Committee on Home Affairs.
Positive Changes
Contrary to popular discourse, several positive changes have been made under the newly enacted BNSS. The author would classify them under five broad categories even though there might be overlaps where one provision can be slotted into multiple categories.
A. Removal of Archaic and Insensitive Terms
Unlike several justifiable critiques against the banality of changing names, sometimes the exercise can be a marvelous step against stigmatisation. One of the most praiseworthy steps in the BNSS is the replacement of archaic and insensitive terminology such as ‘lunatic person’ or ‘person of unsound mind’. All such references have been replaced with more sensitive terms such as ‘having intellectual disability’ or ‘person with mental illness’. This can be seen in Section 219(1)(a) of the BNSS corresponding to Section 198 of CrPC. Similar change has been incorporated in Section 357 of BNSS corresponding to Section 318 of CrPC. Most noticeably, Chapter XXV or 25 of CrPC [Provisions as to Accused Persons Of Unsound Mind] has now been introduced as Chapter XXVII or 27 of BNSS [Provisions as to Accused Persons With Mental Illness] where all the concerned sections have been amended suitably with references to Mental Healthcare Act 2017. The term ‘lunatic asylum’ has been suitably changed to ‘mental health establishment’.
B. Clarity in some procedures
The new code also significantly clarifies and amends the stance to be used viz-a-viz Proclaimed offenders. Earlier as per Section 82(4) of CrPC as added to the code by 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”. This led to situations wherein someone repeatedly evading legal processes of summons/warrant for any other offence under general penal code of IPC or any other special law could not be declared as a Proclaimed offender. Now, by removing this seemingly arbitrary list of sections, anyone accused of an offence with more than 10 years of imprisonment or other special offences could be declared a proclaimed offender. Similarly, a new section 356 has been added to the BNSS which provides a detailed procedure for conducting a trial/inquiry in the absence of a person declared as ‘Proclaimed offender’. While one may doubt the need for such harsh measures as declaration of a person as a proclaimed offender, but for the time being the code has at least clarified the procedural application of the same.
c. Progressive Safeguards and/or changes
BNSS is also keeping with the times ahead by incorporating changes with respect to use of forensic science in investigation of crimes. By amending Section 311A of CrPC or Section 349 of BNSS, now even finger prints and voice samples may also be taken as compared to just specimen signatures or handwriting samples in the earlier iteration of the code. Earlier only the central government could notify scientific experts for the purposes of Section 293(4)(g) of CrPC, but now state governments may also do the same as per the revised Section 329(4)(g) of BNSS. The new law also seeks to increase the ambit for provision of legal aid. Section 304(1) of CrPC earlier provided for legal aid “in a trial before the Court of Session”. However, the revised section 341(1) of BNSS has replaced this with “in a trial or appeal before a Court” which significantly increases the ambit of the same. In the author’s opinion, the drafters missed an opportunity to bring in comprehensive reforms to legal aid system in India. They could have incorporated some of the suggestions mentioned in reports by NALSA, Law Commission of India, and other reports, most notably the contribution by two of the most preeminent retired judges of Indian Supreme Court such as Hon’ble Mr. Justice P.N. Bhagwati and Hon’ble Mr. Justice V.R. Krishna Iyer.
D. Electronic/Digital alternatives for existing processes
In line of our commitment towards a Digital India, a landmark new Section 532 has been added to the BNSS. As per the same, all trials, inquires and proceedings, recording of evidence therein, examinations of parties, issuance, service and execution of summons and warrants, and several other processes can now be done electronically.
Another change which can be observed is that Section 182 of CrPC which discussed the procedure regarding “Offences committed by letters etc.”, has now been suitably modified to include ‘electronic communication’ as well as per Section 202 of BNSS. While considering the custody and disposal of perishable property during trial, electronic records now need to be maintained of the same as per the revised Section 499 of BNSS or Section 451 of CrPC.
Negative Changes
While most of the changes to BNSS might be categorised as benevolent and/or timely, some changes to the criminal procedure have also raised significant concerns. As abovementioned, while there has been a push on the greater use of forensic science in criminal trials, some provisions could be termed alarming. For instance, as per a proviso added to Section 349 of BNSS corresponding to Section 311A, now a magistrate may ask any person without a history of arrest to give specimens/samples such as fingerprint, voice sample or handwriting samples. Earlier, this could not have been done unless the person was not arrested in connection with an investigation. While one might make the claim that this would reduce unnecessary arrests merely for taking samples, but this exercise of sample taking should ideally be exercised with great caution and only when it is of utmost importance to a trial. Another concerning provision is the addition of a new subsection (3) to Section 43 – ‘Arrest how made’ of BNSS. This new provision now formally brings back the usage of handcuffs. On one hand, it may be argued that usage of
handcuffs become vital in serious cases and not having the same may seriously impede investigation. However, by diluting the scope of this section as can be seen in BNSS, this provision might run contrary to the landmark 1979 Supreme Court verdict of Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 which heavily critiqued the indiscriminate use of handcuffs. 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 to be involved in criminal activity. The application and judicial interpretation of this section would require a close scrutiny going ahead.As discussed above, to expedite investigations the role of Central government has been explicitly recognised at several instances in the new law. However, while discussing the State government’s power to remit or commute a sentence, earlier as per Section 435 of CrPC the states were only required to ‘consult’ the Central government. Now, as per Section 478 of BNSS the word ‘consultation’ has been substituted by ‘concurrence’. This may lead to situations wherein various state governments might allege that their exclusive power has been made subservient to the will of the Centre. In Section 149(1) of BNSS corresponding to Section 130(1) of CrPC, the level of executive satisfaction to ‘use armed forces to disperse assembly’ has been lowered. Earlier, “Executive Magistrate of the highest rank who is present” could only request the deployment of armed forces. Now, “District Magistrate or any other Executive Magistrate authorised by him, who is present” can also do the same. A new section is added in Chapter XII of BNSS corresponding to Chapter XI of CrPC relating to ‘Preventive Action of Police’. As per this new Section 172, police have been granted wide powers to enforce their will. Anyone deemed to be “resisting, refusing, ignoring or disregarding to conform to any direction” can be detained or removed by the police. Such a detained person may be taken before a judicial magistrate. Ideally, the section should also clarify that such detainee must be brought before a magistrate within 24 hours if the arrest duration is longer than a day and other procedural safeguards must be followed.
CONCLUSION
The CrPC provides for the procedure for investigation and trial for offences. It also contains provisions for security to maintain peace, and maintenance of public order and tranquillity. It contains provisions that allow a District Magistrate to issue orders needed to preserve public order. The BNSS has retained these provisions (in separate chapters). Since trial procedure and maintenance of public order are
distinct functions, the question is whether they should be included under the same law or if they should be dealt with separately. As per the Seventh Schedule of the Constitution, public order is a state subject. However, matters under the CrPC (prior to the commencement of the Constitution fall) under the Concurrent List.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) proposes significant changes to India’s criminal justice system. While the BNSS2 includes positive steps like mandating forensic investigations, it raises concerns in several areas:
Limited Bail and Plea Bargaining: Changes to bail provisions and restrictions on plea bargaining could limit the rights of the accused and exacerbate prison overcrowding
Data Collection and Due Process: The BNSS2 expands data collection powers, but these might overlap with existing legislation and raise privacy concerns. Additionally, property attachment procedures lack safeguards compared to the PMLA.
Redundancies and Overlooked Reforms: The BNSS2 replicates provisions from existing laws, creating redundancy. Furthermore, it fails to incorporate well-established recommendations for reform in areas like sentencing guidelines and wrongful accusation compensation. The changes in remand procedure are some of the very problematic aspects which must be viewed with caution. Ideally, better funding and infrastructure along with increased safeguards should be further incorporated in the criminal justice administration to better complement any procedural law. It seems that as part of the decolonisation process (from a law made in 1973), name of the act itself has been changed as well as all the references to the word ‘code’ have been substituted for the word ‘Sanhita’. Conversely, one might argue that by still retaining some problematic aspects such as vast discretion granted to the authorities in arrest and investigation still makes it seem colonial.
Written by Hariraghava jp
