Bharatiya Nagarik Suraksha Sanhita, 2023

 (key provisions and changes vis-a-vis CrPC)

a) Specific timelines for investigation and trial

BNSS prescribes specific timelines for different aspects of investigation and trial in order to ensure speedy justice.

b) Audio-Video recording of search

BNSS mandates audio-video recording of search and seizure to bring in greater transparency during investigation.

c) Attachment of Property during investigation

The property of criminals, which is deemed to be proceeds of crime, can be attached by the Court. Such proceeds of crime shall be distributed among the victims. This would not only create greater deterence for crime but would also provide some pecuniary relief to the victims of crime.

d) In-absentia trial of Proclaimed offender

BNSS provides for in-absentia trial of proclaimed offenders.

 Changes with respect to FIR [Sec. 173 BNSS]

Registration of FIR irrespective of jurisdiction [Sec. 173 (1) BNSS]

- Any person can report a crime to any police station, regardless of where the crime took place.

-The police station must register an FIR (First Information Report) and start investigating the case.

- This means that if a crime happens in one area, but the person who witnessed it or was affected by it is in a different area, they can still report it to the police station closest to them.

FIR through electronic means or E-FIR [Sec.173 (1) (ii) BNSS]

- A person can also report a crime online or through an electronic platform.

- The police will register an E-FIR and start investigating the case.

- However, the person who reported the crime must sign the E-FIR within three days.

CHANGES WITH RESPECT TO RECORDING OF STATEMENTS [SEC. 176, 179-183 BNSS]

Recording of rape victim statement at her residence [Sec.176 BNSS]

In relation to the offence of rape, the recording of the statement of victim shall be conducted:

· At the residence of victim or

· At the place of her choice

It must be recorded by a woman police officer in the presence of her parent or guardian or near relative or social worker of the locality. Such statement may also be recorded by audio-video electronic means including mobile phone.

Note: Previously, the Code of Criminal Procedure (CrPC) did not allow for the recording of a rape victim's statement through mobile phone. This new provision provides a more flexible and comfortable way for victims to share their statement, while also ensuring that the recording is done in a safe and supportive environment.

Woman Police officer to record the statement of victim of sexual assault [Sec. 180 BNSS]

The statement of a woman, against whom sexual assault is alleged to have been committed or attempted, shall be recorded by a woman police officer or any woman officer. Such statements may also be recorded by audio-video electronic means.

Recording of statement of victim of sexual assault by female Judicial Magistrate [Sec. 183 BNSS]

- Only a female Judicial Magistrate can record the victim's statement.

- If a female Magistrate is not available, a male Magistrate can record the statement, but a woman must be present.

Women, persons above 60 or with acute illness not bound to attend Police station [Sec. 179 BNSS]

The following individuals are not required to attend the police station for recording their statement:

- Women

- Men above 60 years old

- People with mental or physical disabilities

- People with acute illnesses

- Boys under 15 years old

However, if any of these individuals voluntarily wish to attend the police station, they may be permitted to do so. (Sec. 179 BNSS).

Recording of statement by Judicial Magistrate of witness in offences punishable with imprisonment for 10 years or more [Sec. 183 (6) BNSS]

In cases where the punishment is:

- Imprisonment of 10 years or more

- Life imprisonment

- Death penalty

The Judicial Magistrate will record the statement of the witness brought by the police officer.

Special Provisions for Disabled Witnesses

If the witness has a mental or physical disability, their statement shall be recorded:

- With the help of an interpreter or special educator

- Through audio-video electronic means (preferably using a mobile phone).

This ensures that witnesses with disabilities can provide their statements in a safe and accessible way. (Note: This provision is new and was not present in the CrPC).

Arrest [Sec. 35 BNSS]

No arrest of aged or infirm person without permission of DySP in offences punishable with less than 3 years imprisonment [Sec. 35(7)BNSS]

Generally, the following are the main purposes for arresting someone:

- To explore the cause of any offence;

- To prosecute and investigate the accused;

- To prevent an accused from committing a crime;

- To ensure that the accused attends the trial at the right time;

- To prevent the accused from tampering with the evidence, etc. 

- Notice of Appearance: In case where arrest is not required , Notice will be given Section 35(3) of the BNSS, instead of 41A CrPC.

For offences with a punishment of less than 3 years imprisonment, the police must obtain prior permission from the Deputy Superintendent of Police (Dy.SP means Supervisory Officer) before arresting a person who is:

- Infirm (physically weak or ill)

- Above 60 years of age

This ensures that vulnerable individuals are protected from unnecessary arrest and detention.

Appointment of Designated Police Officer in every Police station for maintaining the record of arrested persons and displaying it in digital mode [Sec. 37 BNSS]

An officer, not below the rank of ASI, shall be appointed as Designated Police Officer in every Police station, who shall maintain and display, in digital mode, the information regarding name, address, nature of the offence of the arrested person at Police Station and District Headquarter.

Information of arrest to Designated Police Officer [Sec. 48 BNSS]

Police officer effecting arrest is required to inform about arrest of person to

- Relatives or friends and

- Also to designated Police officer

Arrest by Private person [Sec. 40 BNSS]

In case of arrest by private person, the arrested person must be handed over to the police within 6 hours of arrest.

Use of handcuffs allowed in certain cases [Sec.43 (3) BNSS]

The use of handcuffs on an accused person is allowed in the following cases:

- Habitual or repeat offenders

- Escaped prisoners

- Organized crime

- Terrorist acts

- Drug-related crimes

- Illegal possession of arms and ammunition

- Murder

- Rape

- Acid attacks

- Counterfeiting of coins and currency notes

- Human trafficking

- Sexual offences against children

- Offences against the State

In these specific cases, the use of handcuffs is permitted to ensure the safety and security of everyone involved.

 Medical Examination [Sec. 51 to 53, 184 BNSS]

Application for the medical examination by any police officer [Sec 51 and 52 BNSS]

Any police officer can move an application for the medical examination of accused.

Note: - Under CrPC only SI could move such an application.

Medical report of Victim in Rape cases to be given in 7 days [Sec. 184 BNSS]

This section ensured timeline for Medico-Legal Report (MLR). The Medical Officer has 7 days to:

- Complete the Medico-Legal Report (MLR)
- Forward the MLR to the investigating officer

The investigating officer will then:

- Receive the MLR
- Attach it to the Police Report
- Forward both to the Magistrate

This ensures a timely and efficient process for submitting the MLR in legal proceedings.

Medical examination report of accused to be given without delay [Sec. 52 BNSS]:

Medico-Legal Report (MLR) of accused must be completed by the medical officer as soon as possible and forward the MLR to the investigating officer without delay.

This ensures that the MLR is sent to the investigating officer in a timely manner, without any unnecessary delays.

 Remand [Sec. 187 (2) BNSS]

Section 187

(1) Extension of Custody Beyond 24 Hours:

- When a person is arrested and detained, and the investigation can't be completed within 24 hours as fixed by section 58 of this Sahinta, and there are good reasons to believe the accusation is true, the police officer in charge (or an officer above the rank of sub-inspector) must:

- Send a copy of the case diary entries to the nearest Magistrate (Also DD entries and Arrest Memo, Medical Examination under section 53 BNSS)

- Send the accused to the Magistrate(Production of accused must be physically)

This is required if there are valid grounds to believe the accusation is well-founded. Police Remand can be sought even after the initial 15 days.

(2) The Magistrate to whom an accused person is sent under this section can, regardless of whether they have the authority to try the case, do the following:

- Consider if the person has not been released on bail or if their bail has been cancelled.

- Authorize the detention of the accused in Police custody for up to fifteen days at a time, as the Magistrate sees fit,

(3) Remand of accused can be sought under BNSS even after 15 days. Sectionn 167(2) of earlier act CrPc has been changed here-

• within first 40 days of arrest in cases where the offence is punishable with less than10 years imprisonment.
• within first 60 days of arrest in cases where the offence is punishable for more than 10 years imprisonment.

Note: Under CrPC the Police Remand of accused could be sought only during the initial 15 days after arrest.

- If the Magistrate does not have the authority to try the case or commit it for trial and finds further detention unnecessary, they can order the accused to be sent to a Magistrate who does have such authority.

(4) Magistrate's Requirements for Detention

A Magistrate can only authorize police custody detention if:

- The accused is physically present in court for the first time and every time afterwards, until they are no longer in police custody.

- However, the Magistrate can extend judicial custody detention even if the accused appears via audio-video conferencing, not just in person.

This ensures the accused's physical presence in court for initial police custody and allows for virtual appearances for subsequent judicial custody extensions.

(5) Limits on Magistrate's Powers

- A second-class Magistrate cannot authorize police custody detention unless specially empowered by the High Court.

Explanations:

- Even after the specified time limit, the accused will remain in custody until they furnish bail.

- To prove the accused was produced in court, their signature on the detention order or the Magistrate's certification of audio-video production suffices.

Special Provisions

- If the accused person is a female under the age of 18, the detention shall be authorized in a:

§  Remand home

§  Recognized social institution

Instead of police custody or judicial custody, minors (female under 18) will be detained in a specialized facility designed for their care and rehabilitation.

- Detention can only be in a police station (police custody), prison (judicial custody), or a place declared a prison by the Central or State Government.

(6) Police Officer's Powers in Absence of Magistrate

In situations where a Magistrate is not readily available, a police officer (who is not below the rank of sub-inspector) has the authority to take the following steps:

1.    Forward the accused and case diary entries: The police officer can send the accused person, along with the relevant case diary entries, to the nearest Executive Magistrate. This ensures that the accused is brought before a judicial authority, even if a Magistrate is not immediately available.

2.    Authorize detention for up to 7 days: The Executive Magistrate, upon receiving the accused and case diary entries, can authorize detention for a term not exceeding 7 days in the aggregate. This means that the accused can be held in custody for a maximum of 7 days, pending further investigation or the availability of a Magistrate.

3.    Release on bail: After the authorized detention period of 7 days, the accused person shall be released on bail, unless a competent Magistrate has ordered further detention. This ensures that the accused is not unnecessarily held in custody beyond the specified time frame.

4.    Transmit case records: Before the expiry of the 7-day period, the Executive Magistrate must transmit the records of the case, along with a copy of the diary entries, to the nearest Judicial Magistrate. This ensures a smooth transition of the case to a competent Magistrate, who can then proceed with the investigation and any subsequent legal proceedings.

However, this provision requires a Magistrate to document their reasoning when authorizing detention in police custody [Section 187 (7)]. This means that the Magistrate must:

- Put their reasons in writing

- Specify why they believe police custody is necessary

- Provide justification for the detention

This provision empowers police officers to take temporary custody of the accused and seek Magistrate approval later, ensuring the investigation continues without unnecessary delay, while also safeguarding the rights of the accused.

 Changes with respect to Search [Sec. 103, 105, 185, 186 BNSS]

Procedure during Search

Recording of search and seizure through audio-video electronic means [Sec. 105 and Proviso to Sec. 185 (2) BNSS]

The Officer in charge of the Police Station or the Investigating Officer (IO) must record the entire search process using audio-video electronic means, preferably using a mobile phone.

Search to be conducted in the presence of two independent witnesses [Sec.103 (4) BNSS]

Before conducting the search, the police officer must ensure the presence of at least two independent and respectable inhabitants of the locality where the search is to take place.

Refusal to become witness for search amounts to an offence [Sec.103(8) BNSS]

Any person who, without reasonable cause, refuses or neglects to attend and witness a search when ordered in writing by a police officer shall be considered to have committed an offence.

Offence Reference: Such refusal is deemed an offence under Section 222 of the Bharatiya Nyaya Sanhita, 2023.

Action after search

Audio-video recording of search to be sent to DM, SDM or JMIC [Sec. 105 BNSS]

The police officer must forward the audio-video recording of the search without delay to the District Magistrate (DM), Sub-Divisional Magistrate (SDM), or Judicial Magistrate of the First Class (JMIC).

IO to send record regarding search to Magistrate within 48 hours [Sec.185 (5) BNSS]

The Investigating Officer (IO) must send the following records to the competent Magistrate within 48 hours:

- Reasons for Conducting Search: The documented grounds for the belief that a search was necessary.

- Reason for Not Conducting Search in Person: If the IO did not conduct the search personally, they must provide the reasons for this decision and for deputing a subordinate police officer.

- Details of Search Proceedings: A comprehensive record of the search process.