The Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) was enacted on December 25, 2023, with the stated objective of repealing pre-independence, 19^th century colonial-era criminal laws.

The BNSS aims to provide for a faster and more efficient justice system to address the issues of delay in delivery of justice due to complex procedures, large pendency of cases in courts, low conviction rates, low level of use of technology in legal system, delays in investigation and inadequate use of forensics.

A broad overview of some of the key changes that have been brought to the criminal procedure is as under:

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

FIRs can now be registered via electronic communication. It will be taken on record on being signed within three days, by the person giving such information.

BNSS introduces preliminary inquiry prior to registration of FIR. Preliminary inquiry is limited to cognizable offences punishable with imprisonment of three years or more but less than seven years. The same is to be carried out in a time-bound manner – within 14 days from receipt of information.

Lastly, it is mandatory for police to register a FIR where information regarding commission of a cognizable offence is received, irrespective of whether it has jurisdiction or not (‘Zero FIR’). Once the Zero FIR is registered, the concerned police station can transfer such FIR to the police station which has jurisdiction to investigate the case.

ii.   Additional Powers for Attachment and Forfeiture of Property

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:

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

b. 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

c. 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.

iii.  Adherence with Timelines

The BNSS endeavours to address delays in investigation and trial by providing timelines for completing certain proceedings under the BNSS such as:

In addition, trial or inquiry will be on a day-to-day basis and not more than two adjournments will be granted.^[5]

iv.   Changes with Respect to Provisions Pertaining to Arrest 

No significant improvements have been made with respect to the rights of arrestee except that now an arrestee can inform any person of the fact of his arrest, other than just a friend and relative, which could also include his lawyer.^[6] As regards the arrest of a woman, the BNSS places an obligation upon the police to inform the relatives of a woman where she is being held and information about her arrest.^[7] 

The BNSS specifically allows handcuffing of certain categories of offenders like repeat, habitual offenders etc.^[8] 

v.    Use of Electronic Mode at Stages of Investigation, Inquiry and Trial

One of the most significant features of BNSS is the introduction of electronic communication and audio-video electronic means for various procedures under the BNSS. In line with this objective, the BNSS has introduced new definitions which define terms such as “audio-video electronic”^[9] and “electronic communication”.^[10] 

Summons to witnesses and accused can also be served by electronic communication. The form of electronic communication and manner of serving such summon in electronic communication is to be provided for by the State Government by way of rules.^[11]

Statements can also be recorded by the investigating office by way of audio-video means.^[12] Similarly, it is also permissible for the investigating authority to supply documents, such as the police report etc. in electronic form.^[13]

Search and seizure can be recorded by audio-video means including recording of preparation of seizure list. A search without warrant is also to be recorded by audio-video means.^[14] The recording is required to be forwarded to the Magistrate without delay.^[15]

Section 530 of the BNSS provides that all trials, inquires and proceedings including appellate proceedings may be held in electronic mode.

vi.   Production of Devices Containing Digital Evidence

A Court or an officer in charge of a police station can compel production of communication devices which are likely to contain digital evidence. This provision may give the investigating authority unrestricted use of electronic device in complete breach of right to privacy as well as privilege.^[16]

vii.  Amendment in Terms of Satender Kumar AntilCBI^[17]

Section 190 of BNSS, in light of the judgment in Satender Kumar Antil (supra), 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.

viii. Police Custody

Section 187 of BNSS provides that police custody of 15 days (unless extended) may be taken either all at once or in a staggered manner. It empowers the police to seek custody when it is sought in tranches for an extended period which may be at any time during the initial forty days or sixty days (as the case may be).

ix.   Rights of Victim

The BNSS provides the following rights to victims, which have till date only been provided by judgments of Courts:

a. Obligation on police to inform the victim of the progress of the investigation within a period of 90 days^[18];

b. Obligation on police to supply police report and other documents to the victim (if represented by an advocate)^[19];

c. Withdrawal of prosecution will only be allowed after hearing the victim^[20];

d. A witness protection scheme to be laid down by the State Government^[21]; and

e. Victim compensation schemes^[22] which have largely been administrative schemes (such as the Nirbhaya Scheme) are to be given at the discretion of State Governments.

x.    Applicability of BNSS

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.

A detailed overview and analysis of the BNSS is available here.

[1] S. 232 of the BNSS.

[2] S. 230 of the BNSS.

[3] S. 263 of the BNSS.

[4] S. 258 of the BNSS.

[5] S. 346 of the BNSS.

[6] S. 36 of the BNSS.

[7] S. 43(1) of the BNSS.

[8] S. 43(3) of the BNSS.

[9] S.2(1)(a) of the BNSS.

[10] S.2(1)(i) of the BNSS.

[11] Ss. 64, 68, 94 and 227 of the BNSS.

[12] S. 176 of the BNSS.

[13] Ss. 230 and 231 of the BNSS.

[14] S. 185 of the BNSS. (corresponding to Section 165 Code of Criminal Procedure, 1973).

[15] S. 105 of the BNSS.

[16] S. 94 of the BNSS.

[17] (2022) 10 SCC 51

[18] S. 193 of the BNSS.

[19] S. 230 of the BNSS.

[20] S. 360 of the BNSS.

[21] S. 398 of the BNSS.

[22] S. 396 of the BNSS.