THE BHARATIYA NAGARIK

SURAKSHA SANHITA I
LW452

Unit – 1
Introduction

By:
Mr. Faiz Osmani
Assistant Professor of Law
Integral University, Lucknow
 THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

[Act No. 46 of 2023]

Enactment date: 25th December, 2023
Enforcement Date: 1 July, 2024

Why Do We Need a Criminal Procedure Law?

Criminal law, such as the BNS, lays down what constitutes an offence and prescribes the
punishment for such offences. For example, it defines acts like theft, murder, cheating and
provides penalties for them.

However, merely defining crimes and fixing punishments is not enough. The real challenge
lies in ensuring that these provisions are effectively implemented. This is where criminal
procedure law becomes indispensable.

 Purpose of Criminal Procedure:

The law of criminal procedure provides the mechanism to enforce the substantive
criminal law. It determines the steps and processes through which offenders are
detected, prosecuted, and punished.

 Without it, the law is powerless:

o A law that prescribes punishment but provides no machinery for enforcement is
a toothless tiger.
o A threat of punishment without a proper mechanism is an empty threat, which
fails to deter criminals.
o Example: If “thieves” and “murderers” are never detected, arrested, or
punished, then the detailed definition of theft or murder and the severity of
punishment prescribed for them would serve no real purpose.

Core Idea:

The law of criminal procedure acts as the enforcement arm of criminal law. It is the bridge
between the theory of punishment and its practical application. Without this bridge, the
entire system of criminal justice would collapse.
Functions of Criminal Procedure Law
The law of criminal procedure serves as the backbone of the criminal justice system. Its
primary function is to create a comprehensive framework for the detection, prosecution, and
punishment of offenders while safeguarding individual rights. Its major functions include:

(A) Creates the Enforcement Mechanism

 Detection of Crime: Provides rules for registering FIRs, complaints, and initiating
criminal proceedings.
 Arrest of Suspects: Specifies when and how an accused can be lawfully arrested.
 Collection of Evidence: Regulates search, seizure, recording of statements, and
admissibility of evidence.
 Investigation & Inquiry: Provides a structured process for police investigation and
magisterial inquiry.
 Trial Process: Ensures fair trial for determining guilt or innocence of the accused.
 Imposition of Punishment: Guides the sentencing process and execution of
punishment.

(B) Protection of Rights

While empowering authorities to enforce criminal law, the Code also protects fundamental
rights and liberties of individuals. It aims to:

 Prevent misuse of power by the police or judiciary.

 Safeguard human rights of innocent persons during investigation and trial.
 Ensure that no person is deprived of life or liberty except according to procedure
established by law (Article 21, Constitution of India).

(C) Striking a Just Balance

The criminal procedure law seeks to balance two competing interests:

1. Effective Enforcement: Giving sufficient discretionary powers to police, prosecutors,

and courts to detect and punish crime.
2. Prevention of Abuse: Imposing checks and safeguards to prevent arbitrary actions or
harassment of innocent persons.

The Supreme Court has aptly observed:

“It is the procedure that spells much of the difference between the rule of law and the
rule of whim and caprice.” (Agbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC
140)

This observation underlines that adherence to fair procedure distinguishes a democratic rule
of law from arbitrary governance.
Why Replace CrPC, 1973 with BNSS, 2023?
The Code of Criminal Procedure, 1973 (CrPC) has been the principal law governing the
procedural aspects of criminal justice in India for decades. While it provided a comprehensive
framework, over time serious challenges emerged, necessitating a complete overhaul rather
than piecemeal amendments.

Problems with the Old System (CrPC, 1973)

(A) Delays in Investigation and Trial

 One of the most persistent issues under the CrPC was inordinate delay in completing
investigations and conducting trials.
 Justice delayed is justice denied - long pendency not only erodes public confidence in
the justice system but also causes undue suffering to victims and accused alike.

(B) Inadequate Use of Technology

 The CrPC was framed in an era where digital and electronic means were virtually
absent.
 It lacked provisions for:
o Electronic filing of complaints,
o Online service of summons/notices,
o Video conferencing for examination of accused/witnesses, etc.
 In a digital age, this technological gap hampered efficiency and accessibility.

(C) Poor Application of Forensic Science

 Modern criminal investigations rely heavily on scientific methods and forensic

evidence for accuracy and credibility.
 Under CrPC, the use of forensics was minimal and non-mandatory, leading to weak
investigations and wrongful acquittals or convictions.

(D) Disproportionate Impact on the Poor

 Delays and inefficiencies hit the poor the hardest:

o They often remain in prolonged undertrial detention.
o They lack resources to navigate the slow and complex system.
 Thus, procedural delays become a denial of constitutional rights under Article 21
(Right to Life and Personal Liberty).
IMPORTANCE OF CRIMINAL PROCEDURE
The law of criminal procedure is highly significant because it provides the practical
framework for enforcing criminal laws. Its importance can be understood under the following
key points:

I. It is More Frequently Used and Affects a Greater Number of People

 Criminal procedure touches the lives of ordinary citizens more than many other laws.
 Every stage – from FIR, arrest, investigation, trial, to appeal – directly involves
individuals and their fundamental rights.

II. Greater Involvement of Human Values

 The subject matter of criminal procedure deeply involves human rights and dignity.
 Example:
o How an arrest is made
o Whether the accused gets a fair trial
o Protection against illegal detention or torture
 These are not just technical rules; they impact life and liberty, making the law highly
sensitive and value-driven.

III. Complementary Role to Substantive Criminal Law

 Criminal procedure is the operational arm of substantive law (like IPC).

 If the procedure fails → substantive law becomes ineffective.
o Example: If investigation and trial are delayed or defective, even strong penal
laws cannot ensure justice.
 Supreme Court Observation:

Excessive expense, delay, and uncertainty in applying criminal procedure render even
the best penal laws useless and oppressive.
Extent and Applicability of BNSS
Where does this law apply?

The Bharatiya Nagarik Suraksha Sanhita, 2023, applies to the whole of India. This means
whether you’re in Delhi or Kerala, Gujarat or Tamil Nadu, the same criminal procedure rules
will apply everywhere. The idea is to keep the system uniform and fair across the country.

But… there are two big exceptions

BNSS does not automatically apply everywhere. There are some special regions:

1. Nagaland, and
2. Certain Tribal Areas

Why these exceptions? Because these places have special constitutional status and strong
customary laws of their own. The law respects their traditions and doesn’t force everything
on them.

What are these Tribal Areas?

These are not just any villages. They are the areas that were part of the Tribal Areas of Assam
before 21 January 1972, as mentioned in the Sixth Schedule of our Constitution. But
remember, the municipality of Shillong is not included here.

Can BNSS still be applied there?

Yes. The State Government of Nagaland or the concerned State for those tribal areas can
choose to apply BNSS there. They can do it fully or partially by issuing a notification.
And, they can modify the law a little to suit local customs. So, it’s like - “Here’s the law, but
you can adjust it to fit your culture.” This is called a balance between uniformity and
flexibility.

What about some core rules?

Even in these special areas, three chapters of BNSS will always apply – Chapters IX, XI,
and XII. These deal with important procedural aspects, so they stay applicable no matter what.
Section 2 – Definitions
Section 2 of the BNSS contains a comprehensive list of definitions such as “audio-video
electronic means,” “bail,”, “bailable offence”, “bond”, “bail bond”, “cognizable offence,”
“complaint,” “investigation,” “warrant case,” “victim,” and many others. These definitions
are crucial for understanding the scope and application of various provisions of the Sanhita.

It is strongly recommended to read these definitions directly from the Bare Act.

Section-7: Territorial Divisions under BNSS

For smooth administration of criminal justice, the law divides the State into suitable territorial
units:

 Every State is either one sessions division or is made up of several sessions divisions.
 Each sessions division is either a district or consists of multiple districts.
 The State Government, after consulting the High Court, can:
o Change the boundaries or number of sessions divisions and districts.
o Further divide any district into sub-divisions, or change their boundaries or
number.
 The session divisions, districts, and sub-divisions that existed when BNSS came into
force are treated as if they were formed under this law.

Section 6 – Classes of Criminal Courts

Section 6 of the Bharatiya Nagarik Suraksha Sanhita, 2023, states that apart from the High
Courts and any other courts constituted under other laws, every State shall have the following
classes of Criminal Courts:

1. Courts of Session
2. Judicial Magistrates of the First Class
3. Judicial Magistrates of the Second Class
4. Executive Magistrates

These courts form the basic framework of the criminal justice system under the BNSS. Each
class has its own jurisdiction and powers, ensuring proper administration of criminal law across
different levels.
Section - 8: Court of Session
Every sessions division in a State must have a Court of Session. This is the highest criminal
court at that level, handling serious offences like murder, rape, and other grave crimes.

Who establishes and who controls it?

 The State Government sets up the Court of Session in every sessions division.
 But the High Court has full control over who will preside as the Judge.

Who are the Judges?

 The main head is the Sessions Judge, appointed by the High Court.
 The High Court can also appoint Additional Sessions Judges to share the workload,
because one judge can’t handle everything in big divisions.

Can a Sessions Judge work in two places?

Yes. If needed, the High Court can make a Sessions Judge of one division also work as an
Additional Sessions Judge in another division.

What if the Sessions Judge post is vacant?

The High Court will make sure urgent matters don’t stop. So, in such cases:

 An Additional Sessions Judge will take charge.

 If none is available, the Chief Judicial Magistrate (CJM) steps in temporarily to
handle urgent applications.

Where does the Court sit?

 Normally, the Court of Session will sit at a place fixed by the High Court.
 But, for the convenience of parties and witnesses, it can sit at another place in the same
division, if both the accused and prosecution agree.

Who decides the distribution of work?

The Sessions Judge decides how to divide cases among Additional Sessions Judges. He can
also plan who will handle urgent matters if he is absent.

What does “appointment” mean here?

It does not mean the initial appointment by the Government. It only refers to the High Court
assigning judges to the Sessions Court.
Sections 9–13 BNSS
Imagine a district in a State. The State needs to ensure that criminal cases are tried properly.
So, what does it do?

First, under Section 9, the State Government sets up Courts of Judicial Magistrates in every
district. These courts come in two levels:

 First Class Magistrates – handle more serious cases at the magistrate level.
 Second Class Magistrates – deal with less serious cases.

Now, the State doesn’t decide this alone. It consults the High Court to decide how many
courts are needed and where they should be located.

Sometimes, a special situation arises. Maybe a sensitive case or a large scam. For such
situations, the State can set up a Special Judicial Magistrate Court. These courts are given
exclusive jurisdiction, meaning no other magistrate in that area can try those particular cases.

But who will sit in these courts? Section 9 says that the High Court appoints the presiding
officers. And if needed, the High Court can also give magistrate powers to civil judges.

Now comes Section 10. In every district, there is one key officer – the Chief Judicial
Magistrate (CJM). Think of the CJM as the head of all magistrates in the district.
The High Court appoints the CJM and can also appoint:

 Additional CJMs – they can perform all or some of the CJM’s functions.
 Sub-Divisional Judicial Magistrates (SDJM) – in subdivisions, they supervise the
magistrates working under them.

What about Special Judicial Magistrates? That’s in Section 11. Sometimes, the Central or
State Government requests the High Court to appoint special magistrates for a particular
area or particular cases. These can be people who have served in government and have legal
experience.
But their appointment is temporary – for a maximum of one year at a time.

Then comes the question of jurisdiction – where can each magistrate exercise their powers?
Section 12 says: The CJM decides the local limits for each magistrate. Normally, a
magistrate’s power extends throughout the district, unless the High Court limits it.
Special Courts, however, can sit anywhere in their local area.
If a magistrate’s area covers more than one district, then references to the CJM or Sessions
Judge will mean the one who has control over that area.
Finally, Section 13 talks about subordination. The structure is simple:

 The Sessions Judge is at the top.

 Under him is the Chief Judicial Magistrate.
 Below the CJM are all the Judicial Magistrates (First Class and Second Class).
The CJM has the power to distribute work among the magistrates.

In short:

 State + High Court = establish and manage magistrate courts.

 CJM = head of all magistrates in the district.
 Special situations = Special Magistrates.
 Jurisdiction = decided by CJM, controlled by High Court.
 Hierarchy = Sessions Judge → CJM → other Magistrates.
Sections 14–17 BNSS: Executive Magistrates
Just like we have Judicial Magistrates for court-related work, the law also needs officers for
executive and administrative functions related to criminal law. These are called Executive
Magistrates.

Section 14 – Appointment of Executive Magistrates

In every district, the State Government can appoint as many Executive Magistrates as it
thinks necessary.

Out of these, one is appointed as the District Magistrate (DM) – the head of executive
administration in the district.

 The State Government can also appoint Additional District Magistrates (ADM),
giving them some or all powers of the DM.
 If the DM’s office becomes vacant, whoever takes over the district administration
temporarily will exercise DM’s powers until the State Government makes an
official appointment.
 The State can also put an Executive Magistrate in charge of a sub-division. This officer
is called the Sub-Divisional Magistrate (SDM).
 Lastly, the State Government can also give Executive Magistrate powers to a
Commissioner of Police, if necessary.

Section 15 – Special Executive Magistrates

Sometimes, a special situation comes up – for example, a VIP visit, a large public gathering,
or law and order issues. In such cases, the State Government can appoint Special Executive
Magistrates for a specific area or specific purpose.

Even senior police officers (SP rank or above) can be appointed as Special Executive
Magistrates. They get powers similar to those of an Executive Magistrate, but only for the
time and purpose specified.

Section 16 – Local Jurisdiction

The District Magistrate, under the State Government’s control, decides the local limits for
each Executive Magistrate – i.e., where they can exercise their powers.

Normally, unless restricted, an Executive Magistrate’s powers extend throughout the district.
Section 17 – Subordination

There’s a clear hierarchy:

 District Magistrate (DM) is at the top.

 All Executive Magistrates work under the DM.
 If an Executive Magistrate works in a sub-division, they are also under the SDM, but
ultimately still under the DM.
 The DM also has the authority to allocate work and distribute responsibilities among
Executive Magistrates.

In Short:

 DM is the head of all Executive Magistrates in the district.

 ADMs assist the DM, SDMs handle sub-divisions.
 Special Executive Magistrates can be appointed temporarily for special situations.
 Jurisdiction: Defined by DM, extends across the district unless limited.
 Hierarchy: DM → SDM → other Executive Magistrates.
Public Prosecutors under BNSS

Why do we need Public Prosecutors?

When a crime is committed, it is not just a wrong against an individual; it is an offence against
the State. That is why, especially in serious offences, the State takes responsibility for
prosecuting the accused. This task is carried out through Public Prosecutors and their team,
who represent the State in courts.

Who appoints them?

 For High Courts, the Central or State Government, after consulting the High Court,
appoints a Public Prosecutor and may also appoint Additional Public Prosecutors.
(BNSS s/18(1))
 For district-level work, the State Government appoints a Public Prosecutor for every
district and may appoint Additional Public Prosecutors. One person can even serve
more than one district.
 However, if a case is handled by the Central Government (for example, a CBI case),
then the Central Government may also appoint its own Public Prosecutor for that case
or for a specific local area.

Panel system for districts

 The District Magistrate, in consultation with the Sessions Judge, prepares a panel of
names considered fit for appointment.
 The State Government cannot appoint anyone outside this panel unless there is a regular
Cadre of Prosecuting Officers in the State.
 If such a cadre exists, appointments must be made from it - except when no suitable
person is available, in which case the State can fall back on the panel. (BNSS s/18(4)-
(6))

Who is a Prosecuting Officer?

BNSS clarifies that it includes all prosecutors - Public, Additional, Special, or Assistant -
regardless of the title. (Explanation to s/18(6))

Qualifications

 Public Prosecutor or Additional PP: Minimum 7 years as an advocate.

 Special Public Prosecutor: Minimum 10 years as an advocate; appointed for a
specific case or class of cases. Courts may allow the victim to hire an advocate to assist.

Assistant Public Prosecutors (APPs)

 Every district must have one or more APPs to conduct prosecutions in Magistrates’
Courts. (BNSS s/19(1))
 The Central Government can also appoint APPs for particular cases or classes of cases.
(BNSS s/19(2))
  If no APP is available, the District Magistrate can appoint another person for that case,
but not a police officer who investigated the case or is below the rank of Inspector.
(BNSS s/19(3))

Underlying Principles and Ethics

 Not a partisan role: The prosecutor’s duty is not to secure conviction at all costs, but
to present all relevant evidence (favourable or adverse) and let the court decide. (State
of Bihar v. P.P. Sharma; settled principle reaffirmed repeatedly.)
 Public office, not political favour: In Shrilekha Vidyarthi v. State of U.P., the Supreme
Court held that the appointment of Public Prosecutors should not follow a political
spoils system; it is a significant public function.
 Independence of prosecution: Courts have disapproved the practice of appointing
senior police officers to head prosecution, as it threatens independence.
 Police officers as prosecutors: The Supreme Court also criticized the old practice of
using police prosecutors; BNSS now reinforces separation by prohibiting investigators
from being APPs.
 Withdrawal of prosecution: This power exists but must be exercised responsibly,
based on legal grounds and public interest—not for extraneous reasons.

Directorate of Prosecution
BNSS introduces a hierarchical system:

 Director of Prosecution (minimum 15 years as advocate or former Sessions Judge)

heads the Directorate under the State Home Department.
 Deputy Directors and Assistant Directors at district level.
 Functions divided by seriousness of offences:
o Director: Monitors cases punishable with 10+ years, life, or death.
o Deputy Director: For cases punishable with 7–10 years.
o Assistant Director: For cases punishable with less than 7 years.
 All prosecutors (High Court or District) are subordinate to this structure.
 Advocate General is excluded from this control when acting as Public Prosecutor.
(BNSS s/20)

The DOP’s principal functions include:

 Coordinating and monitoring the prosecution of criminal cases.

 Presenting evidence in court.
 Providing legal advice and assistance to investigating agencies and prosecutors.
 Ensuring compliance with legal and procedural requirements in the investigation
and prosecution of crimes.
 Identifying and addressing gaps in the investigation and prosecution of crimes.
 Developing and implementing effective prosecution strategies.
Relationship with Public Prosecutors
 High Court-level PPs report to the Director.
 District-level PPs / APPs report to the Deputy/Assistant Director.
 Advocate General remains outside DoP control when acting as Public Prosecutor.

Why this design matters

BNSS moves prosecution from ad-hoc appointments toward an institutional, specialised and
hierarchical model. That matters because it:

 Promotes specialisation and case-management (serious cases get senior oversight).

 Creates accountability and coordination between investigators and prosecutors.
 Reduces the scope for arbitrary, politically-driven appointments — if implemented
faithfully.

But the shift also requires careful safeguards: administrative placement under the Home
Department improves coordination but risks perceived dependency on executive priorities
unless professional autonomy is vigorously protected in practice.
Jurisdiction & Sentencing Powers (Sections 21–29 BNSS, 2023)
Imagine a big question: “Which court will try which offence, and how much punishment
can each court give?” Sections 21 to 29 answer this for us.

1. Which courts can try offences? (Section 21)

 Normally, offences under the Bharatiya Nyaya Sanhita (BNS) can be tried by:
o The High Court,
o A Court of Session, or
o Any other court mentioned in the First Schedule.

 But there is a special care clause:

If the offence is under Sections 64–71 BNS (these deal with sexual offences), the trial
should, as far as possible, be before a woman judge.

 For offences under any other law:

o If that law names a specific court, that court will try it.
o If it doesn’t, then either the High Court or any other court mentioned in the
First Schedule can try it.

2. How much punishment can each court give?

Let’s look at the hierarchy:

 High Court – has unlimited powers. It can pass any sentence permitted by law.
 Sessions Judge / Additional Sessions Judge – can also pass any sentence,
but if they give the death penalty, it needs confirmation by the High Court.
 Chief Judicial Magistrate (CJM) – has slightly limited powers:
o Can give any sentence except:
 Death
 Life imprisonment
 Or jail term beyond 7 years.
 Magistrate of First Class:
o Imprisonment: Up to 3 years
o Fine: Up to ₹50,000
o Or both, or even community service.
 Magistrate of Second Class:
o Imprisonment: Up to 1 year
o Fine: Up to ₹10,000
o Or both, or community service.
What is community service?
The law defines it: work for the benefit of the community, ordered by the court, and without
payment.

3. If fine is not paid? (Section 24)

A Magistrate can give imprisonment in default of fine, but:

 It cannot exceed his normal powers, and

 If the person is already going to jail, this extra term cannot be more than one-fourth
of the maximum he could have given for that offence.

4. If a person is convicted for multiple offences in one trial? (Section 25)

 The court can punish for each offence and decide whether the sentences run together
(concurrent) or one after another (consecutive).
 But there are limits:
o Total jail time cannot exceed 20 years, and
o It cannot be more than double the max punishment for a single offence that
the court can give.
 For appeals, all consecutive sentences are treated as one single sentence.

5. Who gives powers to Judges and Magistrates? (Section 26)

 The High Court or State Government can confer powers:

o By name, by office, or even by class of officials.
 The power starts from the date it is communicated.

6. What if a Magistrate gets promoted or transferred? (Section 27)

 If an officer holding certain powers under BNSS moves to an equal or higher post in
the same State, he keeps those powers unless told otherwise.

7. Can these powers be taken back? (Section 28)

 Yes.
o The High Court or State Government can withdraw any powers they have
given.
o CJM or DM can also withdraw powers given by them.
8. What if the Judge or Magistrate is replaced? (Section 29)

 The successor-in-office gets those powers automatically.

 If there is confusion about who the successor is:
o For Judges → Sessions Judge decides.
o For Magistrates → CJM or DM decides.