Bhartiya Nagrik Suraksha Sanhita Bill, 2023 ?

• It promotes the use of technology for trials, appeals, and recording depositions, allowing video-conferencing for proceedings.
  • The bill makes video recording of statements of survivors of sexual violence compulsory, which can help preserve evidence and prevent coercion or manipulation.
• The bill mandates that police must inform about the status of a complaint in 90 days, which can enhance accountability and transparency.
• Section 41A of the CrPC will be renumbered as Section 35. This change includes an added safeguard, stipulating that no arrest can be made without prior approval from an officer at least at the rank of Deputy Superintendent of Police (DSP), especially for offences punishable by less than 3 years or for individuals above 60 years.
• The bill requires that police consult the victim before withdrawing a case punishable by seven years or more, which can ensure that justice is not compromised or denied.
• It allows absconding criminals to be tried in-absentia by the court and sentenced too, which can deter fugitives from escaping justice.
• It empowers magistrates to take cognizance of offences based on electronic records such as emails, SMSs, WhatsApp messages etc., which can facilitate evidence collection and verification.
• Mercy petitions in death sentence cases be filed within 30 days to the Governor and within 60 days to the  President.
  • No appeal shall lie against the President’s decision in any court.

Introduction of new definitions

The term “audio-video electronic” has been introduced in Section 2 of the Bill’s definitions. The term “investigation” now has a new explanation that specifies that if any provisions of a Special Act conflict with the requirements of the Bill, the Special Act takes precedence. In the event of any inconsistency, investigation or inquiry under acts such as the Prevention of Money Laundering Act, 2002 or the Narcotic Drugs and Psychotropic Substances Act, 1985 shall take precedence over the Bill.

Introduction of new definitions

The concept of a Directorate of Prosecution has been introduced in Section 20 of the Bill for each state to establish (with a prescribed hierarchy) with the stated purpose of monitoring cases by scrutinizing police reports, expediting proceedings, and providing opinions on the filing of appeals, wherever applicable.

In relation to arrest

Section 35 of the Bill now combines Sections 41 and 41A of the CrPC2. In the case of an offence punished by less than three years in prison and a person who is infirm or over the age of 60, an arrest can be made only if an officer not lower than the level of Deputy Superintendent of Police obtains prior approval for such arrest.

In the case of a private person’s arrest, a time limit of six hours has now been imposed during which the private person must turn over the person apprehended to the police. Section 43 of the Bill allows a police officer to use handcuffs when arresting an accused in specific circumstances, most of which include major and heinous offences like as organized crime, terrorist acts, and so on.

In addition, in Section 43(1) of the Bill, the police are required to notify the family of a woman where she is being held and provide information on her arrest. Section 51(3) imposes a duty on a medical practitioner to send the examination report of a patient without delay.

On Attachment and seizure of property

Section 107 of the Bill adds a new provision allowing a police officer to apply to the Court or Judicial Magistrate with the approval of the Superintendent or Commissioner of Police for attachment of certain properties derived or obtained, directly or indirectly, as a result of criminal activity or the commission of any offence, or which are proceeds of crime. Notably, the term ‘proceeds of crime’ is defined in Section 111 of the Bill (which provides certain definitions under Chapter VIII pertaining to reciprocal arrangements) and is similar to the definition of the term under the Prevention of Money Laundering Act, 2002.

Furthermore, a new provision has been inserted under Section 499 of the Bill (corresponding to Section 451 of the CrPC3) requiring the Magistrate to prepare a statement of such property containing its description, as well as photographs and videography of the property, within 14 days of its production.

Power to remove obstructions by a police officer

Section 172 of the Bill is a newly inserted clause that requires individuals to follow the lawful directives of a police officer in the performance of any of his duties under this chapter relevant to the Police’s preventive action. Furthermore, the police officer has the authority to arrest or remove any person who resists, refuses, ignores, or disregards any direction provided by such officer. While this clause appears to be benign, it appears to significantly empower the police in their exercise of authority under the Bill’s provisions.

Introduction of timelines

Preliminary enquiry and investigation

One of the more major improvements requested by the Bill is an attempt to reduce delays in inquiry and trial. Timelines have been established for several stages of the criminal process, including the completion of the investigation and filing of a final report, as well as the trial of the offender.

For example, in Section 173(3) of the Bill (which corresponds to Section 1544 of the CrPC), for offences punishable by 3 years or more but less than 7 years, the officer in charge may conduct a preliminary inquiry within 14 days with the prior permission of the Deputy Superintendent of Police to determine if a prima facie case exists and proceed with the investigation if one exists. Section 173 of the Bill further states that information on a cognizable offence can be supplied to police either orally or through electronic communication, regardless of where the offence was committed.

Another alteration is contained in Section 174(4) (equivalent to Section 154(4) of the CrPC), which states that the complainant may apply to the Magistrate for the registration of a FIR only if the Superintendent of Police does not investigate the case.

Furthermore, Section 1555 of the CrPC (as amended by Section 174(1) of the Bill) now includes a fortnightly deadline for a police officer to submit the daily diary report to the Magistrate.

Concerning the power of a police officer to investigate a cognizable offence, the Bill now states that the Superintendent of Police may investigate the offence personally or appoint the Deputy Superintendent of Police to do so. A Judicial Magistrate may also take cognizance of a complaint against a public servant, according to the Bill.

Importantly, Section 193 of the Bill (equivalent to Section 1736 of the CrPC) now requires the Police to notify the victim or informant of the progress of the inquiry, including through electronic contact, within 90 days. Furthermore, the Bill allows for additional investigation after the chargesheet has been filed to the Magistrate but now requires that any additional investigation be completed within 90 days, with the Court’s consent.

Sanction for prosecution

Section 218 of the Bill (corresponding to Section 1977 of the CrPC) now states that the Government must decide whether to grant sanction for prosecution of judges or public servants within 120 days of receiving the request for sanction, and if it does not, the sanction is deemed to have been granted.

Committal to the Sessions Court

In cases involving offences that are exclusively triable by a sessions court and must be committed by the Magistrate under Section 2098 of the CrPC, Section 232 of the Bill stipulates a time period of 90 days to commit the offences to the sessions court, which may be extended for a period not exceeding 180 days for reasons to be recorded in writing.

Framing of charge, trial and judgement

In terms of charge drafting, the Sessions judge has 60 days from the date of the first hearing (as stipulated in Section 251(1)(b) of the Bill) to construct a charge against the accused in writing.

Section 257(1) of the Bill (equivalent to Section 235(1)9 of the CrPC) states that after hearing arguments and points of law, the judge must render a decision within 30 days of the conclusion of arguments, which may be extended for specific reasons to 60 days.

Finally, Section 392 of the Bill requires the Court to upload a copy of the judgment on its webpage within 7 days of the date of judgment.

Discharge

In relation to discharge, Section 262 (corresponding to Section 23910 of the CrPC) provides a time limit to the accused to prefer an application for discharge within a period of 60 days from the date of framing of charges. On the same subject of discharge, Section 274 of the Bill (corresponding to Section 25111 of the CrPC) has a newly inserted proviso providing that if the Magistrate considers the accusation as groundless, he shall, after recording reasons in writing, release the accused and such release shall have the effect of discharge.

Summary trialThe Bill now provides that the Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way, all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding 3 years.

Use of electronic communication and video conferencing in investigation, inquiry and trial

The Bill has sought to adopt electronic communication and video conferencing facilities at various stages including at the time of inquiry, investigation, and trial. For instance, the Bill permits giving information as regards commission of a cognizable in electronic form.

Issuance of process

Further, a summons issued by a Court under Section 63 (corresponding to Section 6112 of the CrPC), or a Police officer under the newly inserted Section 64(2), or a witness under Section 71, or a warrant may also be in the form of electronic communication. Section 94 of the Bill (corresponding to Section 9113 of the CrPC) now permits a Court or an officer in charge of a police station to summon electronic communication which is likely to contain digital evidence. Section 231 of the Bill provides that supply of copies of statements and documents to accused in other cases triable by Court of Session are permitted to be issued by the Magistrate in an electronic form.

Use of audio-visual electronic means in investigations

Under Section 176 of the Bill providing for procedure for the investigation of cognizable offence (corresponding to Section 15714 of the CrPC), the statement of the victim may also be recorded through audio-video electronic means including a cell phone, as also that of a witness under Section 265(3) of the Bill. Similarly, Section 185 of the Bill (dealing with search by a police officer corresponding to Section 16515 of the CrPC) requires the search to be recorded through audio-visual electronic means preferably by cell phone.

Conduct proceedings through electronic means

Section 355 of the Bill (corresponding to Section 31716 of the CrPC) now inserts a new explanation to subsection (2) providing that personal attendance of the accused includes attendance through audio-video electronic means.

Similarly, Section 532 of the Bill now allows all trials, inquiries, and proceedings, including summons and warrants; holding of inquiry, examination of complaint and witnesses; trials before a Court of Session, recording of evidence in inquiries and trials, trials before the High Court, all appellate proceedings, and such other proceedings, to be held in electronic mode, via electronic communication or audio-video electronic means.

Forensic experts

Another significant addition under Section 176(3) of the Bill is the requirement for the officer in charge of a police station to arrange for a forensic expert to visit the crime scene to collect forensic evidence of the offence and also arrange for videography of the process on a mobile phone or any other electronic device. Furthermore, this provision empowers a state government to notice the use of another state’s forensics facilities until a forensics facility is available in that state.

Cheating through electronic means

From the perspective of economic offences, particularly about the offence of cheating, Section 202(1) of the Bill corresponding to Section 18217 of the CrPC 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.

Custody of an accused 

Under Section 187(2) of the Bill (corresponding to Section 167(2)18 of the CrPC), a judicial magistrate to whom an accused is forwarded may authorize the accused’s detention in custody for a term not exceeding 15 days in whole or in parts at any time during the initial 40 days out of 60 days or 60 days out of 90 days. Notably, the Magistrate may now authorize detention in police custody for more than 15 days provided there are sufficient grounds for doing so. However, such detention shall not exceed 90 days if the investigation relates to an offence punishable by death, life imprisonment, or imprisonment for a term of not less than ten years, or 60 days in the case of any other offence. While this alteration appears to be relevant for major offences, the intended usage and effect, when seen in connection with the proposed changes to the IPC, will need to be investigated further before such provisions are incorporated into law to avoid abuse or arbitrariness.

Furthermore, the Bill states that if the accused is not in custody (corresponding to Section 170 of the CrPC), the police officer shall take security from such person for his appearance before the Judicial Magistrate, and the Judicial Magistrate to whom such report is forwarded shall not refuse to accept the same on the grounds that the accused was not taken into custody.

Bail and Anticipatory Bail

Section 479 defines the terms bail, bond, and bail bond. The Bill now states that if a person is the subject of an investigation, inquiry, or trial for more than one offence in several cases, the Court may not release him on bond.

More importantly, in the case of anticipatory bail under Section 43819 of the CrPC, the new Section 484 of the Bill omits the elements set out in Section 438(1) for anticipatory bail issuance. Sections 438(1A) and (1B) are also missing.

Cognizance of special laws and cases against public servants

The Bill, under Section 210(1) now permits a magistrate to take cognizance of any offence also in relation to a complaint filed by a person authorized under any special law which constitutes an offence.

Further, the Magistrate may also take cognizance against a public servant arising in the course of discharge of his official duties subject to (i) receiving a report containing facts and circumstances of the incident from the officer superior to such public servant; and (ii) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.

Trial against an absconding person

Another significant addition to the Bill is the introduction of Section 356, which provides for an inquiry, trial to be conducted or a judgment to be passed against a proclaimed offender, in absentia.

When trying a proclaimed offender who has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of such person’s right to be present and tried in person, and the Court shall, after recording reasons in writing, proceed with the trial in the same manner and with the same effect as if he was present, under this Bill and pronounce the judgment. Furthermore, the proclaimed offender may not file an appeal unless he appears before the Court of Appeal. Furthermore, no appeal against conviction shall be allowed after three years from the date of judgment. This introduction appears to be squarely aimed at prosecuting those accused who have escaped Indian jurisdiction, and its efficacy will lie in how such inquiries and trials are actually conducted

Other relevant provisions

In relation to trial

Section 269(7) of the Bill (corresponding to Section 24620 of the CrPC), which is newly inserted, provides that if the attendance of prosecution witnesses for cross-examination cannot be secured despite giving the prosecution opportunity and taking all reasonable measures, it shall be deemed that such witness has not been examined for not being available, and the Magistrate may close the prosecution evidence for reasons to be recorded in writing and proceed.

Section 336 of the Bill provides that where any document or report prepared by a public servant, scientific expert, medical officer or investigating officer is purported to be used as evidence in any enquiry, trial or other proceeding under this Code and (i) such public servant, expert of the officer is either transferred, retired or dead; or (ii) such public servant, expert or officer cannot be found or is incapable of giving deposition or securing the presence of such public servant, expert or officer is likely to cause delay in holding the inquiry, trial or proceeding, the Court shall secure presence of successor officer of such public servant, expert or officer who is holding that post at the time of such deposition to give deposition on such document or report.

Witness protection program

By virtue of Section 398 of the Bill, the concept of a witness protection scheme has been formalized, which it is provided shall be notified by every state government.

Witness protection program

In relation to withdrawal from prosecution under Section 32121 of the CrPC, Section 360 of the Bill now states that no Court shall allow withdrawal from prosecution until the victim is given an opportunity to be heard in that matter.

Compoundable Offences

Section 359 of the Bill (corresponding to Section 32022 of the CrPC) now removes adultery from the list of compoundable offenses and also excludes defamation against the President, Vice-President, Governor of a State, Administrator of a Union Territory, or Minister in relation to his public functions when instituted on a complaint made by the public prosecutor.

Clarifications with respect to Limitation period and Superintendence of the High Court

The Bill now clarifies that (i) the relevant date for computing the period of limitation shall be the date of filing complaint under Section 223 or the date of recording information under Section 173; and (ii) that every High Court in the state shall exercise such superintendence over Sessions Courts.

Conclusion

In a nutshell, the proposed changes can be viewed as a much-needed panacea for improving the functioning of the criminal justice system in terms of the prescription of timelines for inquiry, investigation, and trial, as well as the formal adoption of audio-visual and electronic means for carrying out various processes. However, its effectiveness in the actual world is dependent on how such regulations are implemented and followed in letter and spirit.