Salient features of The Bharatiya Nagarik Suraksha Sanhita, 2023
On August 11, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 was introduced in Lok Sabha. It repeals the 1973 Code of Criminal Procedure. The Code governs the arrest, prosecution, and bail procedures for offenses under different Acts, notably the Indian Penal Code, 1860. The majority of the Code's provisions are retained in the Bill. Key changes proposed under the Bill include:
• Detention of undertrials: According to the Code, if an accused has served half of the maximum length of imprisonment for an offense in detention pending investigation or trial, he must be released on his personal bond. This does not apply to crimes punished by death.
According to the Bill, this provision will also not apply to: (i) offenses punishable by life imprisonment, and (ii) anyone charged with more than one offense. It goes on to say that first-time offenders will be released on bail after they have served one-third of the maximum jail sentence that can be imposed for the offense. The superintendent of the jail where the accused is being held must file the application for bail release of such undertrials.
• Trials in electronic mode: All trials, inquiries, and proceedings may be held in electronic format, according to the Bill. It also allows for the manufacture of electronic communication devices, which are likely to include digital evidence, for use in investigation, inquiry, or trial. Electronic communication encompasses communication via technologies such as cellphones, computers, and phones.
• Medical examination of accused: In certain circumstances, including rape, the Code allows for a medical examination of the accused. A registered medical practitioner conducts such an examination at the request of at least a sub-inspector level police officer. According to the Bill, any police officer may seek such an examination.
• Forensic investigation: The Bill requires forensic investigations for crimes punishable by at least seven years in jail. In such circumstances, forensic professionals will go to crime scenes to collect forensic evidence and will record the process on a cell phone or other technological equipment. If a state does not have a forensics center, it must use one in another state.
• Power to prohibit carrying arms: The District Magistrate has the authority under the Code to prohibit the carrying of arms in any procession, mass drill, or mass training with arms in public places. This may be done to maintain public order, public peace, or public safety. Such restrictions might last up to six months. The provision, however, was not notified under the Code. This provision is not included in the Bill.
• Signatures and finger impressions: A Metropolitan/Judicial Magistrate can require anyone to furnish specimen signatures or handwriting under the Code. An order of this type can be issued for any investigation or procedure under the Code. However, such a specimen cannot be obtained from someone who has not been arrested as part of the inquiry. This is extended in the Bill to include finger impressions and voice samples. These samples could possibly come from someone who has not been arrested.
• Timelines for procedures: The Bill establishes timetables for certain procedures. For example, medical examiners who examine rape victims must deliver their results to the investigating officer within seven days. Other deadlines include: (i) rendering a decision within 30 days of the conclusion of arguments (extendable up to 60 days), (ii) informing the victim of the progress of the investigation within 90 days, and (iii) framing of charges by a sessions court within 60 days of the first hearing on such charges.
• Trial in absence of offender: In the absence of a proclaimed offender, the Bill provides for the conduct of the trial and the rendering of judgment. This shall be done when such a person has fled to avoid prosecution and there is no immediate chance of apprehending him. A proclaimed offender is someone who: (i) is accused of an offense punishable by at least ten years in jail or death, and (ii) fails to appear at the time and place established by the Court.
• Metropolitan magistrates: The Code gives state governments the authority to designate any city or town with a population of more than one million as a metropolitan region. Metropolitan Magistrates serve in such districts. This provision is not included in the Bill.
Salient features of the bill?
• A copy of the FIR must be made accessible to the accused and the victim free of charge within 14 days after the accused's arrest.
• Zero FIR- It allows for the filing of a zero FIR from anywhere in the country. When a police station gets a complaint about an alleged offence committed in another police station's jurisdiction, it registers a FIR and then transfers it to the relevant police station for further investigation; this is known as a zero FIR.
• Fast procedure-
o Accused person can be examined through electronic means, like video conferencing.
o Summary trials have been made mandatory for small and less serious cases.
o Streamlining magisterial system.
• Use of technology-
• Electronic form- Trials, appeal proceedings, recording of deposition including those of public servants and police officers
• Summons, warrants, documents, police reports etc., in electronic form
• Information to the police too can be sent electronically
• Search and seizure of evidences, visit to a crime scene by a forensic expert, victim’s statement shall be audio-videographed
• e-FIR- Every district and police station will designate a police officer who will officially inform the family of the arrested person about his arrest online and in person.
• Sedition- It outlines a procedure for Executive Magistrate related to information concerning dissemination of any seditious matters.
• Use of handcuffs- A police officer may be permitted to use handcuffs while arresting a person if he is
o A habitual, repeat offender who escaped from custody, or
o Has committed an organised crime, terrorist act, drug-related crime, illegal possession of arms,
o Murder, rape, acid attack, counterfeit currency, human trafficking, sexual offence against children or offences against the state.
• Safeguards against arrests- No person can be arrested without prior permission of an officer, not below the rank of a deputy Superintendent of Police, in cases where the offence is punishable with less than 3 years, or if the person is above 60 years of age.
• Cognizable cases- If the offence attracts 3-7 years, the police officer will conduct a preliminary inquiry to ascertain whether there exists a clear case to proceed within 14 days.
• Mercy petitions- After being informed by jail authorities on the disposal of the petition of a convict sentenced to death, mercy petition can be submitted within 30 days to the Governor.
• If rejected, the person can petition the President within 60 days. No appeal against the order of the President shall lie in any court.
• Sanction to prosecute- A decision to grant or reject sanction to prosecute a public servant must be reached by the government within 120 days of receiving a request.
• No sanction is required in cases including sexual offences, trafficking, etc.
• Arms in procession- The new provision prohibits the district magistrate to carry arms in in any procession, mass drill or mass training.
• Samples without arrest- The magistrate can order any person to give samples of his signature, handwriting, voice or finger impressions for the purpose of investigation without being arrested.
• Detention - Police can detain or remove any person resisting, refusing or ignoring, or disregarding directions given as part of preventive action.
What are the pros and cons of the Bill?
Pros of the Bill
• The Bill provides definite timelines for a lot of procedures that otherwise are not present in the CrPC.
• There is also a deadline for medical officers to submit their reports after their investigation.
• It defines and clarifies certain procedures. For instance, the provision for producing an arrested person before a magistrate within 24 hours.
• It clearly defines that an accused can be produced before "any" magistrate "irrespective of jurisdiction".
Cons of the Bill
• Complex - The proposed code does not simplify the procedures prescribed under the present law.
• Electronic mode - It emphasizes the use of electronic modes for recording statements of the accused and simultaneously calls for their signatures on the statement which is recorded. This may not serve the purpose of permitting electronic recording.
• Delays - Requiring a DSP-level officer to conduct a preliminary enquiry before proceeding with the actual investigation may lead to delay in finding crucial pieces of evidence.
• Allowing investigating agencies to investigate during the course of the trial, could lead to more delays.
• Effect on fundamental right - Allowing police officers to use handcuffs against persons accused of offences of a certain gravity may affect the basic fundamental rights.
• Clarity - While bail has been defined in the proposed code, there is still no clarity on the factors which a court should consider while granting bail in non-bailable offences. Section 484 mentions that “bail may be granted if the court deems fit,” which is vague that could lead to arbitrariness.
• While the issue of remand is clarified, transit bail is still not defined in the Bill.