The Bharatiya Nagarik Suraksha Sanhita, 2023, represents a significant legislative development. The Act, officially named in its first section, outlines its applicability and the conditions under which it may be enforced. Notably, the Sanhita excludes its provisions in Chapters IX, XI, and XII from applying to the State of Nagaland and designated tribal areas. However, the respective State Government holds the authority to extend these provisions, either entirely or partially, to Nagaland or the specified tribal regions through a formal notification. This notification may include necessary modifications to adapt the provisions suitably to local contexts.
An important clarification is provided in the explanation attached to this section. Here, “tribal areas” are defined specifically as those regions that were part of Assam’s tribal areas before January 21, 1972, as mentioned in paragraph 20 of the Sixth Schedule to the Constitution. This definition excludes territories within the municipality of Shillong, thereby providing a clear boundary for the application of the Sanhita.
The Act’s commencement is contingent upon a date appointed by the Central Government, which will be announced through a notification in the Official Gazette. This approach allows for a flexible and controlled implementation of the Act, ensuring that necessary preparations and considerations are in place before it becomes effective. Overall, the Bharatiya Nagarik Suraksha Sanhita, 2023, introduces a structured legal framework with specific exemptions and the possibility for regional adaptations, reflecting the diverse administrative and cultural landscapes of India.
Also Read: THE BHARATIYA NYAYA SANHITA, 2023 (“BNS”): KEY CONCEPTS
Construction of references in Bhartiya Nagarik Suraksha Sanhita-
This legal provision clarifies the roles and references to different types of magistrates under various laws. Firstly, it establishes that any mention of a “Magistrate” without qualifiers, or specifically a “Magistrate of the first class” or “Magistrate of the second class” in any law, should be interpreted as referring to a Judicial Magistrate of the first or second class, respectively, within the relevant jurisdiction. This ensures clarity in legal interpretation, specifying that judicial functions are performed by Judicial Magistrates.
Secondly, it differentiates the functions of magistrates based on the nature of their duties under any law other than the Bharatiya Nagarik Suraksha Sanhita. If a magistrate’s functions involve judicial activities—such as evaluating evidence, making decisions that could lead to punishment, penalty, detention, or initiating trial processes—these functions must be carried out by a Judicial Magistrate. This ensures that judicial decisions, which significantly impact individual rights and freedoms, are handled by magistrates with judicial authority and expertise.
On the other hand, if the functions are administrative or executive—like issuing or revoking licenses, sanctioning or withdrawing prosecutions—these are to be carried out by an Executive Magistrate. This distinction helps maintain a clear separation between judicial and executive functions, preventing the overlap of duties and ensuring that administrative tasks do not interfere with judicial responsibilities. In summary, this provision delineates the responsibilities of Judicial and Executive Magistrates, promoting an organized and efficient judicial system where judicial tasks are handled by Judicial Magistrates and administrative tasks by Executive Magistrates, maintaining the integrity and specialization of each role.
Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws–
This provision outlines the procedures for handling offences under the Bharatiya Nyaya Sanhita, 2023, and other laws.
Firstly, it states that all offences specified in the Bharatiya Nyaya Sanhita, 2023, must be investigated, inquired into, tried, and otherwise managed according to the specific provisions detailed in this Act. This ensures a consistent and standardized approach to dealing with these offences, providing clear guidelines on the legal processes to be followed.
Secondly, it extends the same procedural framework to offences under other laws, indicating that they too should be handled according to the provisions of the Bharatiya Nyaya Sanhita, 2023. However, this is subject to any current laws that may dictate different methods or locations for investigating, inquiring into, trying, or otherwise managing these offences. Essentially, while the default procedural rules of the Bharatiya Nyaya Sanhita, 2023, apply, any specific provisions in other laws that regulate these processes take precedence.
This dual approach ensures that there is a unified procedural standard for handling offences, while also allowing flexibility for other laws that may have specialized requirements. It maintains consistency in the judicial process for most offences but respects and incorporates the specific procedural regulations of other existing laws.
In summary, this provision mandates that the procedures in the Bharatiya Nyaya Sanhita, 2023, apply broadly to offences under both this Act and other laws, with the caveat that any existing legal stipulations about the handling of offences under other laws will override the general procedures where applicable. This balance ensures both standardization and necessary legal flexibility.
Courts by which offences are triable under in Bharatiya Nagarik Suraksha Sanhita–
This legal provision specifies the courts responsible for trying offences under the Bharatiya Nyaya Sanhita, 2023, and other laws.
**Clause (a)** addresses offences under the Bharatiya Nyaya Sanhita, 2023:
– Such offences can be tried by the High Court, the Court of Session, or any other court designated in the First Schedule of the Sanhita.
– There is a specific proviso for offences listed under sections 64 to 71 of the Bharatiya Nyaya Sanhita, 2023. These offences should ideally be tried by a court presided over by a woman, as far as practicable. This provision likely aims to ensure sensitivity and fairness, especially in cases that might involve gender-related issues.
**Clause (b)** deals with offences under any other law:
– If a specific court is mentioned in the relevant law, then that court will try the offence.
– If no specific court is mentioned, the offence may be tried by the High Court or any other court indicated in the First Schedule as having jurisdiction over such offences.
This structure ensures clarity in the judicial process by clearly delineating the jurisdiction of various courts. For offences under the Bharatiya Nyaya Sanhita, 2023, it standardizes the courts that can try these cases, while also adding a special consideration for certain sensitive offences to be handled by female judges. For offences under other laws, it respects the provisions of those laws by deferring to any specified court. In the absence of such specifications, it defaults to the High Court or other designated courts listed in the First Schedule, thereby maintaining consistency and legal order across different types of offences and laws.
Attachment, forfeiture or restoration of property in in Bhartiya Nagarik Suraksha Sanhita–
This legal provision outlines the procedures for the attachment and distribution of property believed to be derived from criminal activities-
**Sub-section (1)**
Sub-section (1)** allows a police officer who is investigating a crime and believes that certain property is a result of criminal activity to seek its attachment. This must be done with the approval of the Superintendent or Commissioner of Police. The officer can then apply to the appropriate Court or Magistrate, who has jurisdiction over the offence, to take action regarding the attachment of such property.
**Sub-section (2)**
**Sub-section (2)** empowers the Court or Magistrate to issue a notice to the person holding the property if there are reasons to believe that it constitutes proceeds of crime. This notice calls upon the person to show cause within fourteen days as to why the property should not be attached. This step allows the person to provide an explanation or evidence regarding the legitimacy of the property.
**Sub-section (3)**
**Sub-section (3)** specifies that if the notice involves property held by someone else on behalf of the accused, a copy of the notice should also be served to that person. This ensures that all parties with a claim or interest in the property are informed and given an opportunity to respond.
**Sub-section (4)**
**Sub-section (4)** details the process after the show-cause notice is issued. The Court or Magistrate will consider any explanations provided, along with all available evidence, and provide the individuals involved a reasonable opportunity to be heard. Based on this assessment, the Court or Magistrate may order the attachment of properties deemed to be proceeds of crime. If the person fails to appear or respond within the fourteen-day period, the Court or Magistrate can proceed to make an ex parte order, meaning the decision is made without their input.
**Sub-section (5)**
**Sub-section (5)** allows the Court or Magistrate to bypass the notice period if they believe that issuing a notice would compromise the attachment or seizure of the property. In such cases, the Court or Magistrate can issue an interim ex parte order for the attachment or seizure, which remains in effect until a final order is made under sub-section (6).
**Sub-section (6)**
**Sub-section (6)** mandates that if the Court or Magistrate concludes that the attached or seized properties are proceeds of crime, they must order the District Magistrate to distribute these proceeds proportionally to the victims of the crime. This ensures that those affected by the crime are compensated from the assets derived from the criminal activity.
**Sub-section (7)**
**Sub-section (7)** requires the District Magistrate to carry out the distribution within sixty days of receiving the order. The District Magistrate can either perform this distribution personally or delegate it to a subordinate officer.
**Sub-section (8)**
**Sub-section (8)** addresses the scenario where there are no claimants or identifiable victims to receive the proceeds, or if there is any surplus after satisfying all claims. In such cases, the proceeds of the crime are forfeited to the Government. This ensures that unclaimed or surplus assets do not remain idle and are instead transferred to the state.
Evidence of public servants, experts, police officers in certain cases–
This paragraph establishes procedures regarding the use of documents or reports prepared by public servants, scientific experts, or medical officers as evidence in legal proceedings under the Bharatiya Nyaya Sanhita, 2023.
**Subsection Overview:**
1. **Conditions for Inaccessibility:**
If the original public servant, scientific expert, or medical officer responsible for preparing a document or report:
– has been transferred, retired, or deceased,
– cannot be located, or
– is unable to provide testimony,
The court is directed to summon the current successor holding the same position at the time of the deposition to testify about the document or report.
2. **Procedural Safeguards:**
– **No Summons Without Dispute:** A public servant, scientific expert, or medical officer cannot be compelled to appear before the court unless the authenticity or content of their report is contested by any party involved in the trial or proceeding.
– **Use of Audio-Video Means:** The successor officer may give their deposition via audio-video electronic means, allowing for remote testimony. This provision facilitates efficient court proceedings without unnecessary delays due to physical appearance requirements.
**Explanation:**
This provision ensures continuity in the use of official documents or reports even if the original preparer is unavailable due to transfer, retirement, death, or other reasons. It mandates that the court must summon the current successor who holds the same official position at the time of the legal proceeding to provide testimony regarding the document or report in question. This successor is expected to have relevant knowledge and expertise to testify effectively.
The requirement that no public servant or expert can be summoned unless their report is disputed protects them from unnecessary legal summons when their report is accepted without objection. This safeguard prevents undue burden and respects their professional duties.
The allowance for audio-video electronic deposition of the successor officer ensures flexibility and efficiency in legal proceedings. This modern approach enables remote testimony, which can expedite the judicial process by overcoming geographical barriers and logistical challenges.
In essence, this paragraph aims to uphold the reliability of evidence derived from official documents or reports while ensuring fair treatment of public servants and experts involved in legal proceedings under the Bharatiya Nyaya Sanhita, 2023. It balances the need for procedural integrity with practical considerations to facilitate timely and effective justice delivery.
Inquiry, trial or judgment in absentia of proclaimed offender-
This paragraph details the legal provisions concerning persons declared as proclaimed offenders who have absconded to evade trial under the Bharatiya Nyaya Sanhita, 2023.
**Sub-section (1)**-
**Sub-section (1)** establishes that if a person declared as a proclaimed offender, meaning someone who has evaded the legal process despite being accused, whether charged alone or jointly, absconds to avoid trial and there is no immediate prospect of arresting them, it is considered a waiver of their right to be physically present for trial. The court, after recording reasons in writing and in the interest of justice, proceeds with the trial as if the person were present. The court may then pronounce judgment under the provisions of the Bharatiya Nyaya Sanhita, 2023.
**Proviso to Sub-section (1)**-
**Proviso to Sub-section (1)** stipulates that the court cannot commence the trial until at least ninety days have passed from the date when charges were framed against the accused. This provision ensures a reasonable period for the accused to potentially reappear before proceedings continue in their absence.
**Sub-section (2)**
– Issuance of two consecutive warrants of arrest with a gap of at least thirty days between them.
– Publication of a notice in a national or local newspaper circulating in the area of the accused’s last known residence, informing them of the trial and consequences of non-appearance.
– Notification of the trial to any known relatives or friends of the accused.
– Posting information about the trial at conspicuous locations in the accused’s residence and at the police station of their last known address.
**Sub-section (3)**
It ensures that if the proclaimed offender does not have legal representation, the state must provide an advocate for their defence at the state’s expense.
**Sub-section (4)** , **Sub-section (5)** and **Sub-section (6)**
It allows the court to use depositions of prosecution witnesses recorded earlier as evidence against the proclaimed offender during the trial, even if they are absent. However, if the accused later appears during the trial, they may be allowed to examine such evidence in the interest of justice.
**Sub-section (5)** permits the recording of witness depositions and examinations via audio-video electronic means, such as mobile phones, to ensure accurate documentation of proceedings.
**Sub-section (6)** clarifies that if the accused voluntarily remains absent after the trial commences under sub-section (1), the trial continues, including the pronouncement of judgment, even if they are arrested or appear later.
**Sub-section (7)**
**Sub-section (7)** restricts the right to appeal against the judgment pronounced under this section. No appeal can be lodged unless the proclaimed offender surrenders before the appellate court. Additionally, appeals against conviction cannot be filed after three years from the date of the judgment.
**Sub-section (8)**
**Sub-section (8)** provides the state with the authority to extend the application of these provisions to any other absconding individual mentioned in section 84(1) of the Bharatiya Nyaya Sanhita, 2023.
Mercy petition in death sentence cases–
This paragraph outlines the process and procedures related to filing and processing mercy petitions for convicts under the sentence of death in India, as per the constitutional provisions under Article 72 (President of India) and Article 161 (Governor of the State).
1. Sub-section 1-
**Sub-section (1)** specifies that a convict facing the death penalty, or their legal heir or relative, must file a mercy petition within thirty days from either:
– The Superintendent of the jail informing them about the dismissal of their appeal, review, or special leave to appeal by the Supreme Court, or
– The Superintendent of the jail informing them about the confirmation of the death sentence by the High Court, and the expiry of the time allowed to file an appeal or special leave in the Supreme Court.
2. Sub-section 2-
**Sub-section (2)** allows for the mercy petition to be initially submitted to the Governor of the State. If the petition is rejected or disposed of by the Governor, the petitioner must subsequently submit it to the President of India within sixty days from the date of rejection or disposal.
3. Sub-section 3-
**Sub-section (3)** mandates that if there are multiple convicts in a case, the Superintendent of the jail must ensure that every convict files a mercy petition within sixty days. If any convict fails to submit the petition, the Superintendent of the jail is required to forward the names, addresses, and case details to the Central Government or State Government for consideration, along with the mercy petition of the other convicts.
4. Sub-section 4-
**Sub-section (4)** directs the Central Government to seek comments from the State Government upon receiving the mercy petition. The Central Government must consider the petition, along with the case records, and make recommendations to the President within sixty days from receiving the State Government’s comments and jail records.
5. Sub-section-5-
**Sub-section (5)** empowers the President to consider, decide, and dispose of the mercy petition. If there are multiple convicts involved, the President must decide all petitions together in the interest of justice.
6. Sub-section 6-
**Sub-section (6)** requires the Central Government to communicate the President’s decision on the mercy petition to the Home Department of the State Government and the Superintendent of the jail within forty-eight hours of receiving the order.
7. Sub-section 7-
**Sub-section (7)** states that no appeal can be made in any court against the decision of the President or Governor made under Article 72 or Article 161 of the Constitution. The decision is final, and no court can question how the decision was arrived at.
In summary, these provisions establish a structured and time-bound process for mercy petitions in cases involving the death penalty. They ensure that convicts or their representatives have specific deadlines to submit petitions, define responsibilities for jail authorities and government bodies in handling and forwarding petitions, and outline the decision-making authority of the President or Governor as final and non-appealable. This framework aims to balance the constitutional provisions for mercy with procedural clarity and administrative efficiency in the context of capital punishment cases in India.
Trial and proceedings to be held in electronic mode-
This paragraph emphasizes the authorization and facilitation of conducting all aspects of trials, inquiries, and proceedings under the Bharatiya Nyaya Sanhita, 2023 through electronic means. It encompasses the entire legal process from the issuance, service, and execution of summons and warrants to the examination of complainants and witnesses, the recording of evidence in both inquiries and trials, and all appellate or other related proceedings.
**Key Points:**
1. **Electronic Mode:
The provision allows for the utilization of electronic mode throughout legal proceedings. This means that traditional physical processes, such as the issuance and service of legal documents like summons and warrants, can be conducted electronically.
2. **Audio-Video Electronic Means:
:** It specifically permits the use of audio-video electronic means for various purposes. This includes conducting examinations of complainants and witnesses remotely through video conferencing, as well as recording evidence digitally.
3. **Comprehensive Coverage:
By stating “all trials, inquiries, and proceedings,” the paragraph ensures that electronic methods are applicable across the entire spectrum of legal activities governed by the Bharatiya Nyaya Sanhita, 2023. This encompasses not only the initial stages of legal processes but also extends to appellate proceedings and any other related proceedings.
4. **Flexibility and Efficiency:
The inclusion of electronic communication and audio-video electronic means offers flexibility in how legal proceedings are conducted. It promotes efficiency by potentially reducing logistical challenges such as travel time and costs associated with physical appearances in court.
5. **Legal Validity:
The paragraph implicitly recognizes the legal validity and acceptance of electronic methods for conducting trials and inquiries, provided they meet prescribed standards and ensure procedural fairness. Overall, this provision reflects a contemporary approach to legal proceedings, leveraging technology to enhance accessibility, efficiency, and effectiveness in the administration of justice under the Bharatiya Nyaya Sanhita, 2023. It aligns with global trends towards digitalization in legal systems, aiming to streamline processes while maintaining the integrity and fairness of judicial proceedings.
FREQUENTLY ASKED QUESTIONS (FAQ’S)-
- What is the difference between CrPC and Bharatiya Nagarik Suraksha Sanhita?
A: The BNSS largely retains the framework of the current CrPC while aiming to streamline criminal procedures, shorten trial durations, empower police investigative capabilities, and establish clear procedural timelines.
2.What is the effective date of Bhartiya Nagrik Suraksha Sanhita?
A: The Bharatiya Nagarik Suraksha Sanhita, 2023 will be enforced starting from July 1, 2024, as appointed by the Central Government.
3. What are the highlights of Bharatiya Nagarik Suraksha Sanhita?
A: The BNSS aims to create a swift and effective justice system that tackles challenges such as procedural complexity, high case backlogs in courts, low conviction rates, underutilization of technology in the legal system, delays in investigations, and insufficient use of forensic methods.
4. What is the old name of Bharatiya Nagarik Suraksha Sanhita?
A: The Union Home Ministry announced on Friday that three new criminal laws, including the Bharatiya Nagarik Suraksha Sanhita, will replace the Code of Criminal Procedure (CrPC), the Indian Penal Code (IPC), and the Indian Evidence Act, effective from July 1 this year.
5. What is the meaning of Nagrik Suraksha Sanhita?
A: The Bharatiya Nagarik Suraksha Sanhita (also known as the Indian Civil Protection Code) is the primary legislation governing procedural aspects related to the enforcement of substantive criminal law in India. It was enacted by the Parliament of India.
6. How many sections are in BNSS?
A: Comparison of section counts between existing Acts and proposed legislations:
– Old IPC: 511 sections
– New BNS: 358 sections
– Old Cr. PC: 484 sections
– New BNSS: 531 sections
– Old Evidence Act: 167 sections
– New BS: 170 sections
7. What are the salient features of Bharatiya Nagarik Suraksha Sanhita?
A: The Bharatiya Nagarik Suraksha Sanhita, 2023 was introduced in the Lok Sabha on August 11, 2023. It replaces the 1973 Code of Criminal Procedure and regulates procedures related to arrest, prosecution, and bail for offenses under various Acts, including the Indian Penal Code, 1860.
8. What is zero FIR in BNSS?
A: Let’s start with understanding the concept of a Zero FIR. A Zero FIR can be filed at any police station upon receiving information about a cognizable offence (an offence where a police officer can arrest without a warrant), regardless of the location where the offence occurred.
9. Who is a proclaimed offender in BNSS?
A: Previously, under the CrPC, proclaimed offenders could only be declared in 19 specific offences. However, under the BNSS, any individual evading legal proceedings for offences punishable by 10 years or more, life imprisonment, or death sentence may be declared a “proclaimed offender.” (24 Feb 2024)
10. What is the new form of punishment introduced in BNS?
A: “For the first time, the Government of India has introduced Community Service as a punishment for ‘petty’ offences under the Bhartiya Nyaya Sanhita 2023 (BNS).”
11. What is preliminary inquiry under BNSS?
A: “Section 173(3) of the BNSS establishes the legal framework for preliminary inquiries, marking a departure from its previous inclusion solely in specific police regulations or manuals. This inquiry is limited to cognizable offences punishable by imprisonment ranging from three to less than seven years.”
12. What is the section 23 of BNSS?
A: “Section 23 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) states:
(2) A Magistrate of the first class may impose a sentence of imprisonment for up to three years, a fine not exceeding fifty thousand rupees, or both, or community service.”
13. What is the difference between zero FIR and normal FIR?
A: The main difference between a Zero FIR (First Information Report) and a normal FIR lies in the jurisdiction where they can be registered and their initial handling by the police:
1. **Zero FIR**: A Zero FIR can be registered at any police station irrespective of where the crime occurred. It allows for the immediate recording of the complaint and initiation of the investigation without delay, even if the jurisdiction is not under the police station where the complaint was first filed. This is particularly useful in cases where immediate action is required, such as in serious criminal offenses.
2. **Normal FIR**: A normal FIR, on the other hand, is registered at the police station having jurisdiction over the area where the crime took place. If the crime occurred in one jurisdiction, the FIR must typically be filed at that specific police station. This process is based on the territorial jurisdiction of the police station where the offense was committed.
In essence, the key distinction is that a Zero FIR can be lodged at any police station for a cognizable offense, facilitating prompt action and ensuring that the investigation begins promptly, regardless of the location of the incident. This mechanism aims to ensure that victims of crimes receive timely justice and that investigations are not delayed due to jurisdictional issues.
14. What is 302 IPC in BNS?
A: “Interestingly, Section 302 in the new bill now addresses the crime of snatching. The offence of cheating, formerly under Section 420 of the Indian Penal Code, has been reclassified and is now covered under Section 316 in the new bill, resulting in the complete removal of Section 420.”
15. What is Section 482 of BNSS?
A: “Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) pertains to Anticipatory Bail. The first three sub-sections of Section 482 mirror those of Section 438 of the CrPC, indicating no alteration in the primary provision. Consequently, all legal precedents and interpretations concerning Section 438 of the CrPC remain applicable to Section 482 of the BNSS.”
16. What is section 173 of the BNSS?
A: “Section 173 of the BNSS permits individuals to file a FIR at any police station for a cognizable offence, regardless of jurisdiction. It requires that the FIR be promptly transferred to the police station having jurisdiction over the location where the crime occurred, within 15 days.”