Sunday 23 June 2024

Important changes brought about by Bharatiya Nagarik Suraksha Sanhita, 2023{Part 1}

1)   Leniency in plea bargaining

The code is also making some other humane changes to show leniency to first-time offenders in less serious offences and simultaneously address the issue of rising population of under-trial prisoners. For instance, in Section 293 of BNSS corresponding to Section 265E of CrPC relating to disposal of case in plea bargaining procedure, punishments have been significantly reduced for first-time offenders. Now they can be punished to 1/4th and 1/6th of minimum punishment as compared to 1/2 and 1/4th punishment respectively under Sections 293(c) and 293(d) of BNSS.

2) Legal aid in trial or appeal

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. 

3) Service of summons upon any adult family member

Another provision S 66 of BNSS has been introduced under which summons can be served upon any adult family member whereas under Section 64 of CrPC, summons could only be served to an adult ‘male’ member of the family. 

4) Remission

Similarly, in Section 432 of CrPC, suspension/remission petitions by only ‘males’ over the age of 18 were subject to higher scrutiny. Now as per Sections474 of BNSS respectively, the word ‘male’ has been rightfully dropped.

5) Proclamation against accused

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.

6) Trial in absence of accused

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.

7)  Definition of bail is provided

In the new chapter governing ‘Bail’ i.e., Chapter XXXV, a new section 479 has been added right in the beginning to clarify the scope of certain words in the law. This section for the very first time lucidly explains the concepts of ‘Bail’, ‘Bond’ and ‘Bail Bond’. 

8) Procedure for mercy petition

The new Act has prescribed a detailed procedure for ‘Mercy Petitions in Death Sentence cases’ by the addition of Section 473.

9) Use of forensic science in investigation of crimes

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.

In this line, perhaps the most important change of the entire law has been incorporated in Section 176 of BNSS or Section 157 of CrPC. By adding a new subsection (3), when the police receive information about commission of a crime punishable for more than 7 years, it is mandatory for a forensic team to visit the scene and collect samples as well as cause videography of the process.

10) Safeguards to victim of crime enhanced 

While the term ‘victim’ was defined for the first time in CrPC in 2009, many safeguards were still lacking to ameliorate their situation. BNSS takes this initiative a step forward in the right direction by incorporating some changes with regards to the same. For instance, a proviso has been added to Section 232 of BNSS corresponding to Section 209 of CrPC wherein during the committal proceedings an application filed by the victim shall also be forwarded to the Sessions Court. Similarly, copies of documents such as police report supposed to be supplied under Section 207 of CrPC or Section 230 of BNSS shall also be supplied to the victim or their advocates.

11) Time granted to complainant to remain present

Earlier in complaint cases the accused would be discharged when a complainant was absent. Now the revised Section 272 of BNSS corresponding to Section 249 of CrPC, gives an opportunity for complainant to be adequately represented as the magistrate can give 30 days’ time to the complainant to be present before discharging the accused. 

12) Role of victim in withdrawal of prosecution

Similarly, while considering an application for withdrawal from prosecution, victim must be heard by the court. This has been done adding a proviso to Section 360 of BNSS corresponding to Section 321 of CrPC. 

13) Accused must be heard in complaint case before issue process

Apart from victims, even accused have been given an opportunity of being heard in complaint cases. By adding a new proviso to Section 223 of BNSS or Section 200 of CrPC, now accused must be heard before cognizance can be taken in complaints before magistrates.

14) Mandatory for police to inform victim about progress of investigation

A new clause (ii) has been added to Section 193(3) of BNSS corresponding to Section 173(2) of CrPC wherein police is mandated to inform informant/victim about investigation’s progress within 90 days which can be done electronically as well.

15) witness protection scheme

Another significant change done to the procedural law is the addition of Section 398 whereby all state governments are directed to notify a witness protection scheme.  Guidance could have been taken from Ministry of Home Affairs Draft Guidelines and Hon’ble Supreme Court of India’s verdicts such as Mahender Chawla vs. Union of India, (2019) 14 SCC 615

16) Recording of statement by Magistrate

By the addition of two new provisos to Section 183(6)(a) of BNSS corresponding to Section 164(5A)(a) of CrPC, additional safeguards have been provided for recording of statements by a judicial magistrate. Firstly, if a woman is giving such a statement, it should be record by a female judge. Secondly, when a person is accused of serious offences, i.e., with imprisonment of more than 10 years, such a person’s statement must be recorded by the magistrate.

17) Safeguard to Accused

Another such safeguard for anyone who is arrested pursuant to a warrant outside the jurisdiction where warrant was issued, is the addition of subsection (2) to Section 82 of BNSS corresponding to Section 80 of CrPC. By this change, information about such arrested person needs to be given to authorities in the district where the person usually resides.

18) No arrest of accused at the time of filing of chargesheet

A good change has been brought by adding a proviso to Section 190(1) of BNSS corresponding to Section 170(1) of CrPC. Now, if after completion of investigation but before submission of police report, the police are not mandated to arrest an accused simply to secure his appearance before a judicial magistrate. This change seems to be in line with the landmark verdict of the Hon’ble Supreme Court of India in Satender Kumar Antil vs CBI, (2022) 10 SCC 51.

19) Mandatory bail to first time offender(Undertrial)

Changes have also been incorporated under Section 479 of BNSS corresponding to Section 436A of CrPC. By adding a proviso to subsection (1) now a first-time offender pending trial can be eligible for mandatory bail after undergoing 1/3rd of the punishment as compared to 1/2 of punishment as provided earlier. To make this right effective, subsection (3) has been added to Section 481 wherein it will be duty of jail superintendent to apply for release of eligible prisoners.

20) Recording of search and seizure electronically

An important safeguard has been provided for by the addition of Section 105 to the BNSS wherein police conducting search under section 185 (erstwhile section 165 of CrPC) are mandated to record the proceedings of such search electronically and forward the same to the concerned magistrate. This would ensure that no excesses are carried out while search operations are conducted by the police. Similarly copies of any records made during such search under Section 185 of BNSS now need to be sent to the concerned magistrate within 48 hours as per Section 185(5). Earlier, no such time limit was provided.

21) Power to summons persons

A humane change has also been brought by adding a proviso to Section 195(1) of BNSS corresponding to Section 175(1) of CrPC regarding power of police to summon people. As per this proviso, now people belonging to vulnerable categories will not be mandated to “attend at any place other than the place where they reside”.

22) Removal of Archaic and Insensitive Terms

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’.

Some other archaic references have been removed such as the non-existent category of ‘Assistant Sessions Judges’ particularly by deletion of Section 10. Similarly, all references to the word ‘pleader’ have been rightly substituted for the word ‘advocate’. Another such term which has not been retained is ‘thug’ and references to crimes by ‘thugs’ have been removed such as Section 201 of BNSS which directly corresponds to Section 181 of CrPC.

22) Use of electronic mode during inquiry and trial

In line of our commitment towards a Digital India, a landmark new Section 530 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.

Some of the specific section-wise changes implementing this are: 

  • In the proviso provided to Section 64(2) of BNSS as corresponding to Section 62 of CrPC, summons can now be served digitally as well. As per Sections 70(3) and 71(2) of BNSS, electronically served summons and its digital communication would also be considered valid.

  • Issuing summons/warrants under ‘Issue of process’ as given in Section 227 of BNSS corresponding to Section 204 of CrPC.

  • Notices by executive magistrates under Section 134 of CrPC and now Section 153 of BNSS can be served online.

  • Supply of police report and other investigation related documents under Sections 173(7) and 207 of CrPC can be done digitally as per Sections 193(8) and 230 of BNSS

  • Order of confirmation of Death Sentence under Section 412 of BNSS or Section 371 of CrPC.

  • Reading of Charges to the accused under Sessions Trial as per Section 251(2) of BNSS corresponding to Section 228(2) of CrPC. 

  • As per the changes made to Sections 254 and 265 of BNSS as corresponding to Sections 231 and 242 of the CrPC, now prosecution evidence can also be recorded via digital means. However, curiously enough, the same explicit courtesy has not been extended to the corresponding section for defence evidence.

  • Furthering the noteworthy cause of ease of investigation, statements by police during investigation under Section 157 of CrPC, may be recorded electronically by mobile phone as well. This has been done adding a proviso to the same effect to the corresponding Section 176(1) of BNSS. Even FIR’s can be legally registered by electronic communication as per addition of clause (ii) to Section 173(1) which corresponds to Section 154 CrPC.

  • 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 497 of BNSS or Section 451 of CrPC.

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