Bhartiya Nagrik Suraksha Sanhita 2023

What
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is a replacement for the Code of Criminal Procedure (CrPC), 1973

Purpose of BNSS
Modernize India's criminal justice system, making it more efficient, technologically advanced, and victim-centric, moving away from the colonial-era CrPC

Key Changes from CrPC
1. Technological Integration: The BNSS allows for the use of electronic communication for summons, warrants, and the registration of First Information Reports (e-FIRs). Trials, inquiries, and proceedings can also be held in electronic mode.
2. Mandatory Forensic Investigation: Forensic experts are required to visit crime scenes and collect evidence for offences punishable with imprisonment of seven years or more, with the process recorded on electronic devices.
3. Timelines: Specific timelines have been introduced for various stages of the judicial process to ensure speedy justice, such as delivering judgments within 30 days of the end of arguments (extendable to 45 days) and updating victims on the investigation's progress every 90 days.
4. Victim Rights: The rights of victims are enhanced, including the right to be heard during bail proceedings and receiving updates on the investigation.
5. Zero FIR: The principle of a "Zero FIR" (registering an FIR at any police station regardless of jurisdiction) has been formally codified into law.
1. This establishes the constitution of criminal courts, High Courts, Court of Session, Judicial Magistrates, CJM, ACJM
2. Appointment of Judicial Magistrate, CJM, ACJM.
3. Establishment of a Directorate of Prosecution and Assistant Public Prosecutors.

Majistrate, CJM, ACJM

Majistrate vs HC/SC Judge

Cases

1. 1983. Kehar Singh vs Delhi Administration (Murder of Indira Gandhi)

  This was legal proceeding for the conspiracy to assassinate the then-Prime Minister of India, Indira Gandhi. assassinated on October 31, 1984, by 2 of her Sikh bodyguards, Satwant Singh(27 years old) and Beant Singh, in an act of retaliation for Operation Blue Star.
  Operation Blue Star: June 1984, the Indian Army, on Gandhi's orders, entered the Golden Temple in Amritsar, the holiest shrine of the Sikhs, to flush out armed Sikh militants and their leader, Jarnail Singh Bhindranwale, who had holed up there. Operation led to death of many pilgrims, damage of sacred Akal Takht(means Throne of the Immortal, highest temporal seat of authority for the Sikh religion and was established in 1606 by Guru Hargobind Sahib Ji). This deeply offended the religious sentiments of the Sikh community worldwide, many of whom blamed Indira Gandhi personally for the perceived desecration.
  Conspiracy of Murder: Beant Singh and Satwant Singh, both Sikh bodyguards, openly expressed their anger and decided to take revenge. Kehar Singh, an assistant in a government office and the uncle of Beant Singh's wife encouraged body guard to do duty of religion.
  The Execution: morning of October 31, 1984, Beant Singh and Satwant Singh positioned themselves at a wicket gate at the Prime Minister's residence knowing she would pass by for an interview. Beant Singh fired multiple shots with his revolver, as she fell, Satwant Singh emptied his submachine gun into her body
  Arrest and Trial: Beant Singh was shot dead by other security personnel immediately after the attack, while Satwant Singh was injured and arrested. Kehar singh and Balbir singh were arrested for conspiracy
  The Verdict: trial court and the Delhi High Court convicted all three accused (Satwant Singh, Kehar Singh, and Balbir Singh) and sentenced them to death. SC acquitted Balbir Singh due to insufficient evidence linking him to the actual conspiracy.
&ensp Execution: Kehar Singh and Satwant Singh were hanged in Tihar Jail on January 6, 1989.

Cognizable(clearly identifiable) and non cognizable offence

In India, offences are classified into cognizable and non-cognizable based on their severity

Procedure to follow by Police Officer in cognizable offence

1. Lodge FIR
2. Record in General diary
3. start investigatation without majistrate orders
4. Send report to Majistrate, since general diary log is sent to majistrate
5. Begin Investigation includes gathering evidence, searching for the offender, making arrests, recording statements, and compiling a case diary

(Chapter 12 BNSS)Powers of Police to Prevent Cognizable Offences

- Police officers are duty-bound to prevent cognizable offences.
- Police must use all means to prevent the offense
- Police has power to arrest without warrant
- Prevention of Injury to Public Property
- Sec172 of BNSS, police can detain or remove any person who resists, refuses
- Production of person before majistrate

Majistrate, Session Court taking cognizance of complaint

Majistrate takes cognizance of offense?
  1. Reception of complaint
  2. A police report
  3. Information from any other means source
Session Court takes cognizance of offense?
  1. When majistrate has sent case to it.
  2. Summon indivisually (rarest)

Cases
1. Kishun Singh vs. State of Bihar (1993): Session court can summon additional accused (after case is committed) based on evidence found in the committal papers

Complaint

A complaint is any allegation, made orally or in writing, to a Magistrate, with a view to their taking action under the respective Sanhita (code).

Essentials of Complaint
Allegation of the commission of an offense.
Made to a Magistrate who has the authority to take action.
The intent must be for the Magistrate to initiate proceedings under the code.
It can be oral or in writing.
The person who committed the offense can be known or unknown.

Procedure the Magistrate Shall Follow on Complaint reception
1. Examine: Examination of Complainant and Witnesses
2. Transfer: Magistrate does not have the jurisdiction to take cognizance, they must return the written complaint for presentation to the proper court or direct the complainant if the complaint was oral.
3. Investigation: Direct police to investigate
4. Dismissal: After examination and any inquiry/investigation, the Magistrate finds there is no sufficient ground for proceeding, he will dismiss.
5. Summon/Warrant: If satisfied that there are sufficient grounds, the Magistrate will issue the appropriate process (summons or warrant) to the accused.

Difference in Complaint in CrPC & BNSS

Cases:

1. Rajendra Singh v. The State of Bihar(1989): rajendra Singh(Sub inspector) accused cut crops of victims, even abducted the victim for 2 days to demand money. Majistrate accuquitted(released) rajendra singh. But CJM found him guilty and sent case ro trial court. rajendra singh asked documents for proof from CJM, where court mentioned hw is not liable to do that(section 202).

Arrest

Taking of a person into custody to be held to answer for a crime or offence, thereby substantially depriving them of their liberty

When a Police Officer Can Arrest Without a Warrant
Sec 41(CrPC)= Sec 35(BNSS) can be done for cognizable offences. Other grounds include being a proclaimed offender, possessing suspected stolen property, obstructing an officer, or being a suspected deserter from the Armed Forces

Arrest before judgment
court ordering the detention of a defendant to prevent them from fleeing or evading a future decree. Not allowed for women.

Attachment before judgment
Court to seize a defendant's property to prevent them from selling or hiding assets that could be used to satisfy a future judgment Can a Magistrate Also Arrest a Person?
Sec 44(CrPC)=Sec 41(BNSS) Yes Magistrate can order arrest or order an arrest for an offence committed in their presence and within their jurisdiction.

When a Private Person May Arrested by normal person?
When private person is procliamed offender. Normal person may arrest and handover to nearst police station

Types of Arrest
1. Arrest with a Warrant: when a court (Magistrate or Judge) issues a written order (warrant) authorizing a police officer or another person
2. Arrest without a Warrant (by Police): arrest individuals without a warrant for cognizable offences (serious crimes like murder, rape, theft, etc.)
3. Arrest by a Private Person:
4. Arrest by a Magistrate:

Cases on Arrest

1. State of Haryana vs. Dinesh Kumar (2008): clarified the distinction between "arrest" and "custody". Supreme Court clarified that the two terms are not synonymous. A person can be in custody even without a formal arrest, such as when they voluntarily surrender to a court
2. State of U.P. vs. Deoman Upadhyaya (1960): Deoman Upadhyay, who was accused of murder. In police custody he directed police to murder weapon, still Session court convicted him, HC acquitted(free) him. SC kept session court decision and given death sentence. fact of the discovery itself serves as confirmation of the truthfulness of that portion of the statement

Bail

Bail is the temporary release of an accused person from legal custody before their trial, secured by a promise (like a cash payment or a bond) that they will appear in court for all future proceedings.
This is a form of pre-trial conditional release, unlike parole which is post-conviction conditional release

How bail works?
To be released on bail, an individual or a third party must provide security to the court.
Conditions of Bail? Accused must meet to remain free. 1. Regularly appearing in court. 2. Not committing other offenses. 3. Not tampering with evidence or influencing witnesses. 4. Surrendering a passport.

Types of Bail

1. Regular bail: A court-ordered release for someone already in custody.
2. Anticipatory bail: Granted to a person who anticipates being arrested for a non-bailable offense.
3. Interim bail: A temporary release granted while the court is still considering an application for anticipatory or regular bail.
4. Default bail: Granted when law enforcement fails to file a charge sheet within the time limit set by the law.

Bailable, Non-bailable Offense

When Cancellation of Bail Can Occur

This is harsh order, arise after bail was initially granted. Reasons of cancellation:
- Violation of conditions: Failure to comply with any of the specific conditions set by the court (e.g., missing a court date, violating a curfew, or traveling without permission).
- Commission of a new offense
- Interference with justice: This includes tampering with evidence, threatening or intimidating witnesses
- Person planning to abscond, go underground, or flee the jurisdiction or country
- Bail granted improperly: A superior court may cancel bail if it finds the original court granted it based on irrelevant facts

Conditional Release

Supervised freedom of an individual from custody (either pre-trial detention or after serving a portion of their sentence) subject to specific, court-ordered conditions. Condtions
- Regular check-ins with a supervising officer
- Mandatory court appearances.
- Restrictions on travel outside a specific jurisdiction.
- Abstaining from criminal activity, drug, or alcohol use.
- No-contact orders with victims or witnesses.
- Maintaining gainful employment or attending educational/treatment programs.

Cases

1. Kalyan Singh vs State 1989: Kalyan Singh and another accused were granted bail by CJM Gwalior. After 15 days bail was canceled by the same magistrate. This decision was made because the case had evolved, and the charges were upgraded to more serious offenses, including kidnapping and extortion

Charge (sec-2(1) of BNSS)

A formal, written accusation that a person has committed a specific crime. It is the foundation of a criminal trial, providing notice to the accused of the allegations against them. court can alter or add to a charge at any time before judgment is pronounced.

Contents of Charge?
Legal content: The name of the offense or a description
Factual content: The specific details of the offense, including the time, place, and manner of the alleged act.
Prior convictions: Details of any previous convictions
Charge must be in the language of the court.

When is an offense considered "charged"? when the court officially frames a formal accusation against the accused.

What is an error in a charge and its effect?
An error in stating the offense which can mislead the court and cause a failure of justice.

Joinder of charges

Multiple charges against one or more persons to be tried together in a single trial to streamline the judicial process

Persons who may be charged and tried jointly (Sec 246 BNSS)
1. Persons accused of the same offense committed in the course of the same transaction.
2. Persons accused of attempt to commit, such offense.
3. Persons accused of more than one offense of the same kind, committed by them jointly within a period of twelve months.
4. Persons accused of different offenses committed in the course of the same transaction.

Rule of separate trials and exceptions (sec 241 BNSS)
General Rule: Each distinct offense should have a separate charge and be tried separately
Exceptions to this rule: Multiple offenses in the same transaction, Offenses of the same kind, Accused's request

Plea bargaining

Accused asking court to provide lesser sentence in exchange for a concession(maybe helping the victim's family) from the prosecutor or court.
This is not applicable to grave offences, affect the country's socio-economic status, or target women or children under 14

Kinds of plea bargaining
1. Charge bargaining: pleading to lesser charges
2. Sentence Bargaining: The accused requests a lesser or alternative sentence

Procedure of Plea Bargaining under BNSS
1. accused files a plea bargaining application within 30 days of charge framing
2. The court examines the accused in camera (privately) to verify that the plea is voluntary.
3. court notifies the Public Prosecutor, complainant, and accused to appear for further proceedings.
4. parties negotiate a mutually satisfactory disposition, which can include lesser sentences or compensation to victims.
5. If an agreement is reached, the court prepares a signed report

Trial

Legal process of determining guilt or innocence. Trial differs in Summon and warrant cases

Fair Trail

Open, impartial, and equal proceeding where an accused has a just opportunity to present their case and is presumed innocent until proven guilty. Accused is considered innocent until their guilt is proven. Trials are generally open to the public to build confidence in the justice system.
Key provisions in BNSS regarding fair trial
1. Notification of arrest grounds
2. Judicial approval for continued detention
3. Speedy trial
4. Trial in the presence of the accused
5. Right to appeal

Section 351

Provides Power to Examine the Accused during inquiry or trial
Object and Scope of Section 351 BNSS
- Provide the accused with a personal opportunity to explain any circumstances
- Fair trial: accused understands the evidence against them and can offer their defense in their own words
- court should question the accused after witness gave the statements

Difference in Summon and Warrant cases

Procedure for a summon in a trial case

1. Issue summon: is a formal legal document issued by a court to an accused person, directing them to appear in court.
2. Signing and Sealing: The summon is signed by the presiding officer and affixed with the court's seal.
3. Service: The summon is then sent to a police officer for service. It is ideally served personally by delivering a duplicate copy to the accused.
4. Appearance: Upon receiving the summon, the accused must appear in court on the specified date and time.
5. Proceeding: The accused is informed of the offense, and the procedure for a summon case begins.

(sec 283-288 BNSS)Summary Trail

speedy and simplified process for minor criminal offenses. Designed to reduce judicial backlog and deliver quick justice. These can be done by CJM, Magistrate of the first class. max pusnishment of 2 or 3 years can be given. Procedure involves a simplified record-keeping process, often without a formal written charge
Examples: Theft, Insult, Abetment, Cattle trespass

Procedures for trial of offence by Session Court

1. Opening the case: public prosecutor(lawyer who represents the government in criminal cases) opens the case by explaining the charges against the accused and the evidence intended to prove guilt. Court can appoint 1 lawyer if accused cannot afford a lawyer
2. Discharge or Charge framing: court reviews the case and may discharge the accused if there is no sufficient ground to proceed with the trial. if sufficient grounds exist, the court frames the charges
3. If charges are framed:
  if accused is found guilty, it can lead to conviction and punishment
  If the accused pleads not guilty, a date is set for the prosecution to present its evidence
  On date, prosecution presents its evidence, and witnesses are cross-examined
4. Defense defends his case
5. After hearing both sides, the court delivers its judgment of either acquittal or conviction.

Process of trial of offence in warrant case

1. Case is submitted to majistrate.
2. Majistrate police to deliver following documents to him:
  (Sec 230 BNSS) police report, FIR, witness statements, and any confessions recorded
3. Majistrate goes thru documents and If he believe the charge is groundless after giving both sides a chance to be heard, the accused is discharged, and the reasons are recorded Stage-1: Majistrate
4. if accused has commited offense, majistrate frames charges on him
5. Accused is trailed for guilty.
6. Evidence and defense: prosecution presents its witnesses and evidence. The accused has the right to cross-examine these witnesses.

Effect of absence of complaint on day fixed for hearing

Depends on the type of case (criminal or civil) and the judge's discretion.
  Earlier Case can be dismissed or the accused acquitted, on majistrate's mind.
  But now As per BNSS(new provision) Court must grant a 30-day window, before discharging or acquitting the accused.
Section 272 BNSS Non-cognizable Offense: If the complainant is absent on the hearing date. Magistrate can provide 30 day time. if complainant still fails after 30 days it leads to Discharge the Accused
Circumstances Where Absence May Not Lead to Acquittal/Discharge: The complainant has a valid reason for their absence, and the court decides to adjourn the case to another date. OR lawyer of complainant is present, their personal presence is not required OR The case has progressed to a later stage (e.g., after charges have been framed)

Are statements of witness and accussed recorded by police officer during investigation admissible in evidence

No, Statements recorded by a police officer during an investigation are generally not admissible as substantive evidence in a criminal trial. But confession is recorded by a magistrate may be admissible as evidence.
Witness attendence is required before police officer investigating the case. How statements can be used?
1. defense can use the police statement to challenge the witness's testimony
2. Accused Statement: Recorded in front of Majistrate & voluntary
Cases 1. Gyan singh vs state case 1981: Statements were recorded before Magistrate. HC sentenced 3 months rigorous improsoment under Indian Forest Act
2. Badri vs State of Rajasthan 1976: Single eye witness of murder was not reliable and court freed the accused.

Offense must be tried by the court in whose local jurisdiction the crime was committed

The rule is practical and is based on the principle that it is expedient for the inquiry and trial to take place as close to the scene of the crime.
Advantages:
- It helps in collecting evidence easily
- Ensuring that witnesses are available during the trial.
Exceptions to this rule
1. offense spans multiple locations
2. Offence was done during travel
3. Offenses committed outside India
4. Transfer of jurisdiction: Higher authority, such as a District Magistrate or CJM, can transfer a case for inquiry or trial to a subordinate court
5. Offenses of a predatory character: Certain predatory offenses like dacoity, Kidnapping, Abduction can be tried by any court within whose local jurisdiction the offender is found.

Cases

1. Kishorilal vs. Mahadeo in 1993: Warrant case was tried as summon case and accused was acquitted. if its identified as both summon case and warrant case, warrant case is filed

Appeal

Formal request to a higher court to review and change a decision made by a lower court
(Sec 416, 418)Accused can appeal to the High Court if convicted by a Sessions Judge or Additional Sessions Judge
(Sec 413)State can appeal an acquittal or a lenient sentence to the High Court

(Sec 417 BNSS)Cases where no appeal lies
1. Guilty Plea: A guilty plea under BNSS is when the accused voluntarily admits to the offense without contesting the charges
2. Petty Cases: minor offenses usually involving fines or short-term penalties that don't require lengthy trials.
3. Supreme Court Judgment: No appeal can be filed after a judgment from the Supreme Court, which is the final court of appeal. However, the Supreme Court can review its own judgment within a specific timeframe

State of Andhra Pradesh v. T Narayana
Trial magistrate examined the evidence and concluded that the accused, T Narayana, was not guilty based on lack of corroborative evidence. appellate court upheld the trial court's acquittal order

Second Appeal

Appeal where party can challenge a decision made by a lower appellate court, but only on the grounds of a substantial question of law, appeal can be filed in High Court. A second appeal cannot be filed solely to re-argue the facts of the case, even if the findings of fact appear erroneous.
Grounds for second appeal
1. Substantial question of law
2. Decree passed ex parte: A second appeal can be filed against a judgment passed ex parte (without the other party present)
3. Misapplication of law
Can second appeal lie on grounds of erroneous findings of fact?
No. it is a matter of law, not fact.
Example
Homeowner appeals in court that builder has used poor material.
Appeal-1. Builder appeals in District court and DC provides judegement in favour of builder
2nd-Appeal. Homeowner appeals in HC that DC misapplied law reagarding quality standards, ie DC has wrongly judged the quality Cases
1. Balkishan vs. Nagar Palika, Morena 1991: Plantiff(Balakishan) claimed that nagar palika has sold some of his land parcel in auction. Court provided verdict in favour of balakrishan

Terms

Appeal: Apply case in higher court
Revision: Higher court reviews the decision of lower court
Reference: Lower court on its own consults higher court for opinion.
Review: Request made to the same court that passed the judgment to reconsider its own decision

Appellate Court

Appellate courts review decisions from lower courts, not conduct new trials. These courts are responsible for correcting errors in the application of law, often by a panel of judges who hear legal arguments from both sides
Powers of Appellate Court
1. Can make final decision to decide the case
2. Remand(send a case back) to the lower court for further proceedings if necessary
3. Issue Framing: Can frame issues and refer them to the lower court
4. Additional Evidence: May take additional evidence or require the lower court
5. Review Evidence: Has the full power to review, re-appraise
6. Review and Alter: Can review, alter, amend, or reverse any order passed by the lower court.
Can additional evidence be allowed in appeal?
Sec 41 of CPC. Yes but only under specific, exceptional circumstances
1. The trial court refused to admit evidence that should have been admitted.
2. The appellate court needs the evidence to pass a judgment.
3. other substantial cause that requires the admission of the evidence.
4. Better decision of case
Cases
1. Bihar Supply Syndicate vs. Asiatic Navigation 1993. Bihar Supply Syndicate(Insurance company) had insured cargo for("warehouse to warehouse")of Asiatic Navigation company. Verdict was given by Appellate court beyond its powers

Revisional jurisdiction of high court in criminal cases

Supervisory power to ensure the correctness, legality in lower court's proceedings. This cannot be used to convert an acquittal into a conviction

Cases

1. Emperor v. Molla Fuzla Karim (1905): The main issue was whether the sanction was invalid because it wasn't given by the specific judge who heard the original case. The court ruled that the sanction granted by the Chief Judge was valid, establishing that the authority to grant sanction rests with the court as an entity, not a particular judge

(sec 144 BNSS) Maintenance of Wives, Children, Parents

Magistrate can order a person with sufficient means to provide monthly maintenance for their wife, children, or parents who are unable to support themselves. magistrate can order a monthly allowance.
Who are eligible for maintainece
1. Wife: Divorced(if she is not married),
2. Children: Legitimate or illegitimate minor children. adult children unable to support themselves due to a disability
3. Parents: (including adoptive mothers and fathers) can claim maintenance if they are unable to maintain themselves.
When rights are lost
1. Wife:
- if found guilty of adultery
- unjustifiably refuses to live with her husband
- if the couple is living separately by mutual consent
2. Child:
- Adult child who can support himself
- Adult child who is married
3. Parent:
- if they can support themselves

Summon and Warrant

What is Summon? A written court order requiring a person to appear in court to respond to a charge or to produce a document or thing.
Summon to natural person
  Summons should be served personally to person.
  Recipient may be required to sign a receipt on the other duplicate.
  if person is not present it can be affixed on his house
Summon to Legal person(Company)
  should be delivered to an officer or other principal person of the company, or by affixing it to the company's registered office.

What is warrant? If the summons is not obeyed the court can issue a warrant, authorizing an official to arrest the person or take other action. warrant is typically directed to a police officer or other law enforcement official
way of executing Warrant   Official executes by arresting the person
  Person presented before court
  Search Warrant may take place

Absconder
Person who is intentionally evading arrest or is not easily traceable.
Procedure for absconders:
- If the court is satisfied that a person is absconding, it can issue a proclamation(Public notice requiring an absconding person to appear in court), requiring the person to appear at a specified time and place
- If the person does not appear after the proclamation has been published, the court can order the attachment(seizure of that person's assets) of their property (e.g., movable or immovable).

Rights of accused person

- Fair trial
- To be informed of charges
- Legal counsel
- To bail
- Expeditious trial
- To an appeal
Cases
1. Raju vs. State of Mysore, 1953: established confession is weak evidence and requires independent corroboration for conviction

Inherent powers of High Court

Intervene in criminal proceedings when necessary.
Powers
- Quash frivolous FIRs
- Correct procedural errors
- Address unique situations not covered elsewhere.
Sec 528 BNSS(Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court)
Cases
1. Dhanlakshmi(wife) vs Prasanna Kumar(husband)(1990): Wife filed a complaint alleging bigamy against her husband (first respondent) and his alleged second wife, claiming he secretly remarried while their divorce was pending. Madras HC quashed the complaint with lacking merit after analyzing probabilities.

(sec 183)Confession

Voluntary statement made by an accused person that admits to their guilt, which can be recorded by a Magistrate
Procedure for recording confession in BNSS
- Recorded in front of majistrate
- can be recorded at any stage during the investigation
- Must be made voluntarily
- Confession can be recorded in writing or using audio-video electronic means
Safeguards which Majistrate take while recording Confession
- No coercion(police pressure)
- Right to remain silent: The individual must be clearly told they have the right to remain silent.
- Accused must be given time to think before confessing
- Should be volunterily

Cases
1. Jit Bahadur vs. State of Andhra Pradesh (1977): Can extra-judicial confession made by the accused could be relied upon for conviction. SC told: extra-judicial confession is inherently a weak type of evidence. Verdict: Supreme Court overturned the conviction of the accused, emphasizing that where an extra-judicial confession is surrounded by suspicion, its credibility becomes doubtful and loses its importance.

Difference

Complaint vs Information