Transitioning

from the Code of

Criminal
Procedure, 1973
to Bharatriya
Nagarik
Suraksha
Sanhita, 2023
Introduction

On 11.08.2023, the Government of India introduced the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in the Lok Sabha along
with two other new criminal law bills, namely: Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Sakshya Bill, 2023 (New
Evidence Act) with the objective of repealing the existing draconian and colonial-era criminal laws.

The BNSS was introduced with an aim to make the criminal justice system more efficient and efficacious. BNSS is expected to address
the issues of delay in the delivery of justice, low conviction rates, larger pendency and backlog of cases with the introduction of
technology in the legal system and attaching more accountability on the police personnels.

The new criminal laws received the President’s assent on 25.12.2023 and are set to replace the old criminal codes on 01.07.2024.
Although, the new criminal laws are to come into force however the criminal justice system will require time to equip with the
monumental overhaul of repealing the existing criminal laws and enacting the new criminal laws. We highlight the major changes in
provisions as well as the shift in approach in the BNSS as compared to the Cr.P.C.
Salient Features of BNSS, in contrast to the provisions of the Code of Criminal Code, 1973 (Cr.P.C.), are as follows:

S. No. Particulars Description

The definition clause of BNSS provides for definitions of bail1, bail bond2 and bond3, which
1 Definition Clause were not provided under the Cr.P.C. BNSS has included within the definition clause terms such
as ‘audio-video electronic means’4 and ‘electronic communication’5 signifying a tilt towards
Inclusion of new reliance on modern technological tools at different stages of the criminal justice system.
definitions

2 Definition Clause An explanation has been added to the definition of “investigation” 6 to account for variation in
language contained in other special statutes and obviate conflict. The explanation clarifies that
Addition of explanation in case any provision of a special act is inconsistent with the provisions of BNSS, the provision
to the definition of of special act shall prevail, thereby giving primacy to the procedure prescribed in special
“investigation” criminal statutes. Therefore, the meaning of the term ‘investigation’ generally defined under
the BNSS would take colour from special enactments such as the Prevention of Money
Laundering Act, 2002, the Prevention of Corruption Act, 1988, the Unlawful Activities
Prevention Act, 1967 etc., in case of any inconsistency.

3 Definition Clause The BNSS has broadened the definition of the term “victim” 7 by including a person who has
suffered any loss or injury due to the act or omission of the accused person and is not solely
determined by the requirement of the accused person being formally charged. This

1 Section 2(1)(b) of BNSS.

2 Section 2(1)(d) of BNSS.
3 Section 2(1)(e) of BNSS.
4 Section 2(1)(a) of BNSS.
5 Section 2(1)(i) of BNSS.
6 Section 2(1)(l) of BNSS.
7 Section 2(1)(y) of BNSS.
 Broadening the scope of modification is aimed at widening the scope of the definition allowing redressal for a larger
the term “victim” number of people and making the victim compensation process more inclusive and equitable.

4 Classes of Criminal Section 6 of BNSS has removed the classification of “metropolitan areas” and “metropolitan
Courts magistrates.” The objective seems to be to simplify and bring uniformity to the judicial
hierarchical structure.

5 Directorate of Section 20 of BNSS establishes a comprehensive Directorate of Prosecution and defines the
Prosecution eligibility, functions and powers of various authorities under it. For the first time, under
Section 20(1)(b), provision for District Directorate of Prosecution has been made. It is
Constitution prescribed that the Directorate of Prosecution shall be headed by the Director of Prosecution
under the administrative control of the Home Department in the State. The Director of
Prosecution will be responsible for giving opinions on filing appeals and monitoring cases
punishable with 10 years or more/life imprisonment/death.

6 Directorate of The Deputy Director of Prosecution has been made responsible to examine the police report
Prosecution and monitor cases punishable with 7 years or more, but less than 10 years and for ensuring
their expeditious disposal.
Responsibilities
However, the ambiguity in the said provision is that the role of the Directorate of Prosecution
has not been clearly defined and the provision is unclear about the extent of its powers to
make/suggest changes in the Police Report on the conclusion of the investigation, since
investigation and collection of evidence is the sole remit of the investigating agency.

7 Introduction of Section 23 has introduced “community service” as a form of punishment for petty offences.
Community Service The provision also provides for an explanation of “community service”. The term however has
as Punishment been broadly defined to mean any work which the court may order a convict to perform as a
 punishment that benefits the community, lending a lot of discretion in meting out such
punishments. It is to be seen, if separate sentencing guidelines will be evolved to provide a
broad framework for Judges.
Offences for which community service as a punishment can be awarded are:
Public servant unlawfully engaging in trade8; Non-appearance in response to a proclamation
under Section 84 of BNSS9; Attempt to commit suicide to compel or restraint exercise of lawful
power10; Theft, where value of property is less than Rs. 500011; Appearing in public place, etc.
in a state of intoxication and causing annoyance to any person 12; Defamation against the
President or Vice President or the Governor of a State or Administrator of a UT or a Minister
in respect of his conduct in the discharge of his public functions when instituted upon a
complaint made by the Public Prosecutor and Defamation in any other case.13

8 Provision for Zero Section 173 of the BNSS allows citizens to lodge FIR at any police station upon commission of
FIR a cognizable offence, irrespective of the jurisdiction. The concept of ‘Zero FIR’ is however not
new. The practice of registering ‘Zero FIR’ was adopted pursuant to Advisories dated
10.05.2013 and 05.02.2014 issued by the Ministry of Home Affairs, Government of India
pursuant to the seminal decision rendered by the Constitution Bench of the Supreme Court in
Lalita Kumari vs. Government of U.P., (2013) 14 SCR 713 which mandated
registration of FIR, irrespective of jurisdiction, if the information disclosed commission of
cognizable offence(s).

8 Section 202 of BNS.

9 Section 209 of BNS.
10 Section 226 of BNS.
11 Section 303(2) of BNS.
12 Section 355 of BNS.
13 Section 356(2) of BNS.
 The existing practice has been codified under the new section which mandates that the FIR be
transferred to the station which would have jurisdiction over the place where the crime was
committed, within 15 days.
The provision also introduces electronic registration of FIR, which is required to be signed by
the person making it, within 3 days of it being taken on record. The inclusion of electronic
communication of information relating to commission of cognizable offence makes the
criminal process more accessible, the requirement of obtaining signatures of the informant
within 3 days of such communication seems to be an extension of the dictum of the Hon’ble
Supreme Court in the cases of Dhananjoy Chatterjee v. State of West Bengal, (1994)
2 SCC 220 and Surjit Sarkar vs State of West Bengal, (2013) 1 SCC (CRI) 877
wherein it was held that “cryptic message given over the telephone cannot be treated as an
FIR”.

9 Forensic and Medical One of the significant developments under Section 176(3) of the BNSS, particularly in
Examination investigation of offences which are punishable for 7 years or more, is the requirement for the
officer in charge of a police station to cause a forensic expert to visit the crime scene to collect
forensic evidence and also cause videography of the process on mobile phone or any other
electronic device.
Further, this provision also confers powers on a State Government to notify utilization of the
forensics facilities of another state until forensics facility is available in that state. While the
provision signifies greater reliance on modern scientific investigative tools, no guidance has
been provided as to the manner in which such discretion is to be exercised by the officer in
charge.

10 Categorisation of BNSS introduces classification of offenders into “First Time Offenders” and “Repeated
offenders into “first-
 time offenders” and Offenders”. Section 293 adopts a lenient and rehabilitative approach towards first time
“repeated offenders” offenders, in plea bargaining cases.
In instances involving first-time offenders, where minimum punishment is prescribed, the
Court may impose a sentence equal to one-fourth of the minimum punishment, marking a
departure from the existing norm of one-half of the punishment. Further, in cases where the
punishment is extendable and no minimum punishment is prescribed, a first-time offender
may receive a sentence equivalent to one-sixth of the prescribed punishment, decreasing the
quantum of punishment from the previously one-fourth standard. This provision underscores
a commitment to a more progressive and individualized approach to sentencing, especially for
the first-time offenders.

11 Witness Protection Section 398 mandates the preparation and notification of witness protection scheme by every
State Government.
This would be the first time when “witness protection” has been inbuilt within the statutory
framework. The mechanism followed currently is the Witness Protection Scheme, 2018
prepared by the Government of India and approved as “law” by the Hon’ble Supreme Court of
India under Articles 141/142 of the Constitution of India in Mahender Chawla & Ors. Vs.
Union of India & Ors., (2019) 14 SCC 615 till the enactment of suitable Parliamentary
and State legislation on the subject.
The BNSS does not provide any particular form or template which would govern the scheme
under Section 398 and leaves it to the discretion of the respective State Governments. It will,
however have to be seen if the States come up with their own schemes or simply adopt the
2018 scheme.

12 Mercy Petitions Section 472 of BNSS prescribes a timeframe, requiring such petitions to be filed within 30 days
before the Governor and 60 days before the President in death sentence cases. This timeframe
 however is not applicable to the time that may be taken by the Governor or the President to
decide the mercy petition.
Section 472(7) also provides that no appeal shall lie in any Court against the order of the
President or the Governor. This however may not apply to powers of judicial review of the
Supreme Court and High Courts under Article 32 & 226 of the Constitution, respectively, as
stipulated in Epuru Sudhakar & Another vs Andhra Pradesh and Others, 2006 (8)
SCC 161, wherein the Apex Court has specifically held the exercise or non-exercise of power
of pardon by the President or the Governor is subject to judicial review, although limited to
certain cases.

13 Provision of Bail for Under Section 479 of BNSS, provisions for bail to undertrial prisoners has been relaxed and
undertrial prisoners liberalized. A sympathetic view has been taken towards first-time offenders, who would now
be eligible to be released on bond by the Court if they have undergone detention for the period
extending up to one-third of the maximum period of imprisonment specified for that offence.
The provision has also entrusted the jail superintendent to make an application for bail to the
court where an under trial completes one-half or one-third of the maximum period. The release
of an undertrial prisoner who is involved in more than one offence or in multiple cases is made
stringent under the provision. Further, the sentence of life imprisonment or death has been
excluded from the purview of this provision.

14 Repeal and Savings Section 531(2) states that if there is any appeal, application, trial, inquiry or investigation
pending before the date on which BNSS comes into force, then, such appeal, application, trial,
inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in
accordance with the provisions of the Cr.P.C., as in force immediately before such
commencement as if the BNSS had not come into force.

• Display of Information
 Section 37 of BNSS mandates the designated police officer in every police station to
15 Tech-driven prominently display through digital mode the name and address of an arrested accused and
Approach the nature of the offence.

• Summons
Apart from the above, the
BNSS has taken a Section 63 codifies use of electronic modes for issuance and service of summons. The court
conscious leap towards a can now issue summons in electronic form authenticated by the image of the seal of the court
more technology driven or digital signature. Further, Section 70 allows for service of summons through electronic
approach by including means.
electronic
communication and video For the purpose of making the process effective, transparent, and accountable, a provision has
conferencing facilities at been made in Section 64 for maintaining the register in the police station and in the Court to
various stages including keep the address, email address, phone number etc. of the person to be summoned.
at the time of inquiry, • Recording of the search and seizure process
investigation, and trial.
Section 105 of BNSS provides for a mandatory requirement to record the search and seizure
The following provisions procedure through audio-video electronic means.
are suggestive of the fact • Show Cause through VC
that BNSS aims to be
greatly dependent on the Section 154 of BNSS allows such appearance or hearing through video conferencing.
use of technology:
• Registration of FIR
Section 173 allows for providing information about an offence through electronic
communication as well.

• Procedure of Investigation
Section 176 of BNSS provides for an option to record statement through any audio-video
electronic means, preferably cell phone. It also prescribes for forensic experts to record the
process of collecting evidence.

• Report on completion of investigation

Section 193 mandates the police officer to inform the progress of investigation by any means
including electronic communication to the informant or the victim within 90 days.

• Cheating through electronic means

From the perspective of economic offences, particularly in relation to the offence of cheating,
Section 202(1) of the BNSS corresponding to Section 182 of the Cr.P.C. now includes cheating
by electronic communications, and a court within whose local jurisdiction such electronic
communications or letters or messages were sent or were received has been empowered to try
such offence.

• Police Report
In case of cognizance of offences by Magistrates on police report, Section 210 widens the scope
of submission of police report in electronic mode as well.

• Issuance of Process through electronic mode

Section 227 deals with issuance of process, the summons and warrants may also be issued
through electronic means.

• Evidence
Sections 254 and 265 permit the deposition of evidence through audio-video electronic means.

• Judgment
 Section 392 prescribes that an accused in custody can be brought up for hearing the judgment
pronounced either in person or through audio- video electronic means.

• Recording of evidence in disposal of property

Section 497 of BNSS provides that evidence in such cases can be recorded, if necessary.

• Zero FIR and free copy of FIR

16 Victim-Centric
Section 173 permits registration of FIR irrespective of the area where the offence has been
committed.
The BNSS seems to have
adopted a more victim Sections 173 and 230 press on the requirement of providing a free copy of the FIR to the victim.
centric approach and
provides for several • Statement of victim through electronic mode
provisions benefitting the To provide more protection to the victim, and enforcing transparency in investigation, Section
victims. 176(1) provides that in relation to an offence of rape, the statement of the victim shall be
recorded through audio-video means.

• Rape Victims
Affording further protection to the victims of rape, it has been mandated in Section 183(6)(a)
of BNSS that their statement shall be recorded only by a lady Judicial Magistrate and in her
absence, by a male Judicial Magistrate in the presence of a woman.

• Report on completion of investigation

Section 193(3)(ii) mandates the police officer to inform the progress of investigation by any
means including electronic communication to the informant or the victim within 90 days.

• Summary trials
 Section 283 makes summary trials to be mandatory for petty and less serious cases.

• Withdrawal from Prosecution

Section 360 of BNSS makes it mandatory for the court to give an opportunity to the victim to
be heard in the case before allowing such withdrawal.

• Victim Compensation Scheme

Section 396 mandates that every State Government in co-ordination with the Central
Government shall prepare a scheme for providing funds for the purposes of compensation to
the victim or his dependents who have suffered loss or injury as a result of the crime and who
require rehabilitation.

17 Timeline Driven • Designate Police Officer to maintain and give information

Section 37(b) introduces that there shall be one designated police officer in every district and
In order to combat the
at every police station, not below the rank of ASI who shall be responsible for maintaining and
delays in the delivery of
giving information to the public about details of persons arrested, etc. For clear visibility, the
justice, stricter timelines
names, addresses, and charges against arrested persons can now be prominently displayed
have been introduced in
through digital means.
the BNSS along with
increased accountability • Arrest
on the police personnels.
In case of arrest under a warrant, Section 82 in BNSS casts a duty on the police officer making
the arrest to forthwith give information regarding such arrest and the place where the arrested
person is being held to the designated police officer and to such police officer of another district
where the arrested person normally resides.

• Preliminary Inquiry
Section 173(3) introduced the concept of ‘preliminary enquiry’ in cases punishable with 3 years
or more but less than 7 years. The timeline to complete such preliminary enquiry is fixed as 14
days. Such preliminary enquiry may be conducted only with the prior permission of the officer
not below the rank of Deputy Superintendent of Police.

• Information as to non-cognizable cases and investigation of such cases

As per Section 174(1)(ii) of BNSS, the police officer is required to forward the daily report of
all such cases fortnightly to the Magistrate.

• Serious cases investigation

In serious cases considering the nature and gravity of the offence, Section 175(1) of BNSS
allows the SP to depute DSP rank officer to conduct investigation.

• Checks on powers of police officer

Section 185 introduces several checks on the powers of the police while conducting search.
Firstly, the police officer is required to record the grounds of his belief for conducting search
at a place in the ‘case diary’ under Section 185(1). Further, any search conducted by a police
officer shall be recorded through audio-video electronic means as per section 185(2). Further,
Section 185(5) makes the police officer accountable to send, within 48 hours, the copies of any
record made in this regard to the nearest Magistrate empowered to take cognizance of the
offence.

• Report of Police Officer on completion of investigation

Section 193 mandates that the police officer to inform the progress of investigation by any
means including electronic communication to the informant or the victim within 90 days.

• Police to timely supply copies of police report along with other documents
 Under Section 193(8) of BNSS, the police officer is required to submit the specified number of
copies of the police report along with other documents to the Magistrate for supply to the
accused under Section 230.

• Supply to accused of copy of police report and other documents

Section 230 makes it mandatory to supply documents to the accused without any delay and in
no case beyond 14 days from the date of production or appearance of the accused.

• Speedy and accountable proceedings

18 Efficiency oriented
Section 184(6) provides that the registered medical practitioner shall forward the report of
examination of a victim of rape to the investigating officer within 7 days, who shall further
BNSS has been
forward it to the Magistrate. This provision establishes a specific timeframe for the supply of
introduced with an object
medical reports and streamlines the overall process of supply of documents.
to be instrumental in
bringing a change in the • Examination of accused in custody
justice delivery system by
providing for speedy trials Section 187 gives the opportunity to examine the accused in custody for a maximum of 15 days
and effective criminal spread over the first 40 or 60 days of the period of total detention of 60 or 90 days.
justice system. • Report on suicide
Section 194(2) of BNSS provides a time period of 24 hours for forwarding the report on suicide
to the District Magistrate or Sub-divisional Magistrate.

• Sanction for prosecution of public servants

Section 218 of BNSS provides that the sanctioning authority shall take decision within 120
days from the date of receipt of the request, failing which, the sanction shall be deemed to have
been accorded by such authority.

• Delays in commitment cases

Section 232 stipulates that the proceedings must be completed within 90 days from the date
the Magistrate takes cognizance. This period may be extended to 180 days, with reasons
recorded in writing.

• Discharge
Accused may prefer an application for discharge within a period of 60 days from the date of
committal (trial before a Court of Session) as per Section 250 of BNSS.

• Judgment of acquittal or conviction

A judgment of acquittal or conviction (trial before a Court of Session) has to be passed within
30 days from completion of arguments which can be extended by 45 days only by giving
specific reasons as prescribed under Section 258 of BNSS.

• Framing of Charges
Under Section 263 of BNSS, charges are to be farmed within the period of 60 days from the
first date of hearing on charge (trial before a Court of Sessions).

• Time limit to challenge genuineness of documents

In Section 330, timeline of thirty days has been introduced to challenge the genuineness of any
document which may be relaxed at the discretion of the Court. Further, the experts are
exempted from being called before the court unless the report of such expert is disputed by
any parties to the trial.
 • Limited Adjournments
Section 346(2) of BNSS, fourth proviso limits the number of adjournments that can be sought
to not more than two adjournments.

• Inquiry, trial or judgement in absentia of proclaimed offender

Section 356 provides for recording of the trial, deposition and examination of witness as far as
practicable through audio-video electronic means, preferably mobile phone.

• Quick disposal of property cases

Section 497 introduces the quick disposal of case properties even during the investigation, on
preparation of a statement of the property by the court within 14 days after such property has
been photographed/video graphed. Such statement, photographs and videography shall be
used as evidence in any inquiry, trial or other proceeding. The court shall then, within 30 days
after the statement has been prepared, order the disposal, destruction, confiscation or delivery
of such property.

Apart from the above-mentioned changes, other additional features of BNSS are as follows:

S. No. Particulars Description

1 Powers for • BNSS seeks to confer Magistrate with the powers to attach property identified as
attachment and “proceeds of crime”.14
forfeiture of property

14 Section 111(c) of BNSS.

 • The definition of the term “proceeds of crime” uses the words “result of criminal
activity” which gives a wider connotation to the term.
• The magistrate may direct attachment of property found to be ‘proceeds of crime’ after
hearing all parties concerned.15
• The magistrate may also pass an ex parte interim order attaching the 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. 16
• Once the magistrate determines that the property in question is “proceeds of crime”, it
will direct the District Magistrate to rateably distribute the property amongst those who
were affected by the crime.
• Another change with respect to attachment of property is that the Court upon a written
request from a police 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.17

2 Compounding of • Section 359 of the BNSS (corresponding to Section 320 of the Cr.P.C.) provides a table
Offences of offences which are compoundable and the person by whom the offence may be
compounded. The table of compoundable offences is largely similar to the one provided
under Section 320 Cr.P.C. except for offences which have been excluded from the
Bhartiya Nyaya Sanhita such as Section 497 of IPC (Adultery).

15 Section 107(2) of BNSS.

16 Section 107(5) of BNSS.
17 Section 86 of BNSS.
Despite taking into consideration almost every aspect of the unaddressed issues in the old criminal code, there
remain some loopholes and unattended problems prevalent in the BNSS.

S. No. Following are the gaps in the BNSS which require attention

1 Forensic experts have been mandated to visit the crime scene to collect forensic evidence for offences punishable for 7
years or more in Section 176(3). However, BNSS is silent with respect to the authority who would determine whether the
offence would fall under the category of an offence punishable for 7 years or more. Therefore, guidelines by the
State/Centre should be in place for the same to be implemented.

2 Section 187 of BNSS is the counterpart provision of Section 167 of Cr.P.C. However, despite being a counterpart provision,
Section 187 deviates from its predecessor section in significant ways. Section 187(3) completely omits the phrase
“otherwise than in custody of the police”. This omission, thus, marks a seismic shift in the legal landscape surrounding
police custody in India. As per the said provision, an accused can be kept in police custody for 60/90 days, contingent
wholly on the concerned magistrate’s satisfaction. This raises grave concerns about the erosion of individual liberties and
the potential for abuse of power.

3 On one hand BNSS recognizes victims as stakeholder in investigation process, however on the other hand, it prevents the
mandatory registration of FIR for cognizable offence with the requirement of preliminary inquiry to determine prima
facie case.

4 The BNSS does not provide for rights of victim at the stage of sentencing like right to submit a victim impact statement,
right to be informed of rights of victims at various stages of prosecution and trial, and right to be heard prior to granting
pardon.
5 The sentencing guidelines remain discretionary. BNSS could have adopted the sentencing guidelines followed in the UK
and US (which constrain the courts from sentencing outside the specific range as laid down in the guidelines and control
the discretionary powers of the court).

6 The fundamental rights of accused persons have not received adequate attention. For instance, permitting remand
throughout the entire investigation period undermines the accused’s right to bail.

7 The exercise of power of interim attachment is a drastic measure. The BNSS empowers the magistrate to pass an order of
interim attachment without the requirement for the magistrate to give an opportunity to the accused to be heard.
Surprisingly, an attachment order can also be passed by a court which does not even have the jurisdiction to try the
matter, i.e., a court which has jurisdiction to take cognizance of the matter or commit the matter for trial.

8 Section 395(2) prescribes that if fine is imposed in a case which is subject to appeal, no such payment is to be made before
the appeal has elapsed or before decision of appeal. This provision creates obstacles in obtaining immediate relief.

9 Section 530 of the BNSS currently permits conducting all legal proceedings, such as trials, inquiries, and various related
activities, through electronic means, encompassing the use of electronic communication or audio-video electronic
methods. The Parliamentary Panel Report on the former Bharatiya Nagarik Suraksha Sanhita Bill, 2023, had expressed
apprehensions about data security and the potential for unauthorized breaches resulting from increased technological
utilization. Consequently, the report recommended that the adoption of electronic communication and trial methods
should only occur after ensuring secure usage and authentication of electronically available data. However, at present,
the BNSS does not appear to incorporate any additional safeguards to address these concerns.
10 Regarding the establishment of timeframes for inquiry, investigation, and trial, as well as the formal adoption of audio-
visual and electronic methods for various processes, the changes aim to establish a more efficient and technologically
advanced framework for the administration of criminal justice. This shift intends to move away from the paradigm
established by the British-era criminal laws. However, the practical effectiveness of these changes will largely rely on not
only on the proper implementation and adherence to such provisions but also on ensuring that all magistrates, law
enforcement personnel, and related agencies receive the essential training to effectively implement the modifications
introduced by the BNSS in both its written text and underlying principles.