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BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS) –

NEW SECTIONS

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Prepared by :-

E. Ramulu (Retd)

DEFINITIONS [SECTION 2 OF BNSS]

NEW DEFINITIONS:

Section 2(1) of the BNSS contains definitions of certain terms used in the legislation. Section 2(1) gives the following new definitions which were not there in Cr.PC:

Audio-video electronic means" [Section 2(1)(a) of BNSS] "

• Section 2(1)(a) of the BNSS defines "audio-video electronic means“
• In BNSS, unless the context otherwise requires, the term "audio-video electronic means" shall include use of any communication device for the purposes of –

• Video conferencing
• Recording of processes of identification
• Search and seizure or evidence
• Transmission of electronic communication, and
• For such other purposes and by such other means as the State Government may, by rules provide

"Bail" [Section 2(1)(b) of BNSS]

Section 2(1)(b) of BNSS defines 'bail to mean release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond

Bail Bond"[Section 2(1)(d) of BNSS]

Section 2(1)(d) of BNSS defines 'bail bond' to mean an undertaking for release with surety

Bond" [Section 2(1)(e) of BNSS]

Section 2(1)(e) of BNSS defines 'bond' to mean a personal bond or an undertaking for release without surety

Electronic communication" [Section 2(1)(i) of BNSS]“

Electronic communication means-

• the communication of any written, verbal, pictorial information video content transmitted or transferred
• whether from one person to another, or from one device to another or from a person to a device or from a device to a person

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• by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio video players or cameras or any other electronic device or electronic form as may be specified by notification, by the Central Government

WHEN MAY POLICE ARREST WITHOUT A WARRANT [SECTION 35 OF BNSS/SECTIONS 41 AND 41A OF Cr.PC.]

Infirm/Old age person

• Section 35(7) of BNSS is a new provision
• New sub-section (7) of section 35 provides that no arrest shall be made without the prior permission of an officer not below the rank of Deputy Superintendent of Police in cases where the offence is punishable for less than three years, and the person is infirm or above sixty years of age.

IDENCTIFICATION AND ATTACHMENT OF PROPERTY OF PROCLAIMED PERSON

(SECTION 86 OF BNSS)

Attachment of property:

• This is a new provision. There was no corresponding provision in Cr.PC.

• Section 86 of BNSS provides that the Court may, on the written request from a police officer not below the rank of the Superintendent of Police or Commissioner of Police, initiate the process of requesting assistance from a court or an authority in the contracting State fro identification, attachment and forfeiture of property belonging to a proclaimed person in accordance with the procedure provided in Chapter VIII.

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RECORDING OF SEARCH AND SEIZURE THROUGH AUDIO-VIDEO ELECTRONIC MEANS (SECTION 105 OF BNSS)

Recording of search & seizure by mobile phone:

• Section 105 is a new provision. There was no corresponding requirement or provision in Cr.PC
• Section 105 provides that the process of conducting search of a place or taking possession of any property, article or thing, including preparation of the li9st of all thing seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably cell phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

ATTACHMENT, FORFEITURE OR RESTORATION OF PROPERTY (SECTION 107 OF BNSS)

Attachment, forfeiture, etc.

Section 107of the BNSS is a new provision

• Section 107 provides as under:

(1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Judicial Magistrate exercising jurisdiction to take cognizance of the offence or commit for trail or try the case, for the attachment of such property.

(2) If the Court or the Judicial Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, the Court or the Magistrate may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.

(3) Where the notice issued to any person in (2) above specifies any property as being held by any other person on behalf of such person, a copy of the notice shall also be served upon such other property.

(4) The Court or the Judicial Magistrate may, after considering the explanation, if any, to the show-cause notice issued as above and the material fact available before such Court or Magistrate and after giving a reasonable opportunity of being heard to such person or persons, may pass an order of attachment, in respect of those properties which are found to be the proceeds of crime.

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If such person does not appear before the Court or the Magistrate or represent his case before the Court or Judicial Magistrate within a period of fourteen days specified in the show-cause notice, the Court or the Judicial Magistrate may proceed to pass the ex-parte order.

(5) If the Court or the Judicial Magistrate is of the opinion that issuance of notice under the said sub-section would defeat the object of attachment or seizure, the Court or Judicial Magistrate may by an interim order passed ex-parte direct attachment or seizure of such property, and such order shall remain in force till an order in (6) below is passed.

(6) If the Court or the Judicial Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Judicial Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

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(7) On receipt of an order passed in (6) above, the District Magistrate shall, within a period of sixty days distribute the proceeds of crime either by himself or authorize any officer subordinate to him to effect such distribution.

(8) If there are no claimants to receive such proceeds or no claimant is ascertainable or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the Government.

For the purposes of this section, the word "property" and the expression "proceeds of crime" shall have the meaning assigned to them in clause (d) of section 111 of BNSS.

PERSONS BOUND TO CONFORM TO LAWFUL DIRECTIONS OF POLICE [SECTION 172 OF BNSS] (NEW)

Binding force of lawful directions of Police

• Section 172 of the BNSS is a new provision.
• Section 172 of BNSS provides as under:
• All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter [Chapter XII of BNSS dealing with Preventive Action of the Police)

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• A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him as above and may either take such person before a Judicial Magistrate or, in petty cases, release him as soon as possible within a period of 24 hours.

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Preliminary enquiry[NEW]

• Section 173(3) is a new provision. It provides that without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,-

1. proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
2. proceed with investigation when there exists a prima facie case.
1. There was no provision along these lines in section 154 of Cr.PC

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POLICE OFFICER'S POWER TO INVESTIGATE COGNIZABLE CASE [SECTION 175 OF BNSS/SECTION 156 OF Cr.PC.]

Powers of Superintendent of Police/Judicial Magistrate

• Sub-section (4) of section 175 is a new provision. It provides that any Magistrate empowered under section 210, may upon receiving a complaint against a public servant arising in course of the discharge of his official duties, take cognizance, subject to-
• receiving a report containing facts and circumstances of the incident from the officer superior to him; and

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(b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.

There are no provisions in section 156 of Cr.PC corresponding to sub-section (4) of section 175 of BNSS. [NEW]

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PROCEDURE FOR INVESTIGATION

[SECTION 176 OF BNSS/ SECTION 157 OF Cr.PC.]

Audio-video electronic data

• Second proviso to section 176(1) of BNSS permits recording of rape victim's statement through any audio-video electronic means preferably cellphone. Section 157 of Cr.PC contained no provision along these lines.

Forensic facility[NEW]

• Section 176(3) of BNSS is a new provision. It provides that on receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensics expert to visit the crimes scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device.

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• Where forensics facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that matter is developed or made in the State, notify the utilisation of such facility of any other State.[NEW]

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• Section 157 of Cr. PC did not contain such a provision.

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EXAMINATION OF COMPLAINANT

[SECTION 223 OF BNSS/SECTION 200 OF Cr.PC.]

Cognizance of complaint

New sub-section (2) of section 223 provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless-[NEW]

1. such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
2. a report containing facts and circumstances of the incident from the officer superior to such public servant is received.

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PROCEDURE WHERE ACCUSED IS NOT DISCHARGED [SECTION 269 OF BNSS/SECTION 246 OF Cr.PC.]

Closure of prosecution evidence where attendance of PWs cannot be secured despite giving opportunity to the prosecution and after taking all reasonable measures under this Sanhita

• New sub-section (7) of section 269 of BNSS provides that where, despite giving opportunity to the prosecution and after taking all reasonable measures under this Sanhita, if the attendance of the prosecution witnesses

under sub-sections (5) and (6) of section 269 cannot be secured for cross Examination, 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 with the case on the basis of the materials on record [NEW]

SUBSTANCE OF ACCUSATION TO BE STATED [SECTION 274 OF BNSS/ SECTION 251 OF Cr.PC.]

Release of accused[NEW]

• New proviso to section 274 requires that if the Magistrate considers the accusation as groundless, he shall, after recording the reasons in writing release shall have the effect ofdischarge. This provision corresponding release the accused. Such is a new requirement which was not there in section 251 of CrPC

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POWER TO TRY SUMMARILY

[SECTION 283 OF BNSS/SECTION 260 OF Cr.PC.]

• New sub-section (2) of section 283 of the BNSS 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 three years.

No appeal shall lie against decision of Magistrate to try a case in a summary way. [NEW]

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EVIDENCE OF PUBLIC SERVANTS, EXPERTS, PUBLIC OFFICERS IN CERTAIN CASES [SECTION 336 OF BNSS]

Successor officer/expert

• Section 336 of the BNSS is a new provision.
• Section 336 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 inquiry, trial or other proceeding under this Sanhita, and -

1. such public servant, expert or officer is either transferred, retired, or died; or
2. such public servant, expert or officer cannot be found or is incapable of giving deposition; or
3. securing presence of such public servant, expert or officer is likely to cause delay in holding the inquiry, trial or other 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.

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INQUIRY. TRIAL OR JUDGMENT IN ABSENTIA OF PROCLAIMED OFFENDER

[SECTION 356 OF BNSS][NEW]

• Section 356 of BNSS is a new provision
• Section 356 provides as follows:

1) When person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him,

• it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and
• the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present and pronounce the judgment:
• The Court shall not commence the trial unless a period of 90 days has lapsed from the date of framing of the Charge.

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2. The Court shall ensure that the following procedure has been complied with before proceeding under (1) above namely:-

1. issuance of execution of two consecutive warrants of arrest within the interval of atleast thirty days;
2. publish in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the Court for trial and informing him that in case he fails to appear within thirty days from the date of such publication, the trial shall commence in his absence;

1. inform his relative or friend, if any, about the commencement of the trial; and
2. affix information about the commencement of the trial on some 971 conspicuous part of the house or homestead in which such person ordinarily resides and display in the police station of the district of his last known address of residence.

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3. Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State.

4. Where the Court, competent to try the case or commit for trial, has examined any witnesses for prosecution and recorded their depositions, such depositions shall be given in evidence against such proclaimed offender on the inquiry into, or in trial for, the offence with which he is charged.

If the proclaimed offender is arrested and produced or appears before the Court during such trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence.

5. Where a trial is related to a person under this section,

• the deposition and examination of the witness, may, as far as practicable, be recorded by audio-video electronic means preferably mobile phone and
• such recording shall be kept in such manner as the Court may direct.

6. In prosecution for offences under this Sanhita, voluntary absence of accused after the trial has commenced under (1) above shall not prevent continuing the trial including the pronouncement of the judgment even if he is arrested and produced or appears at the conclusion of such trial.

7. No appeal shall lie against the judgment under this section unless the proclaimed offender presents himself before the Court of appeal.

No appeal against conviction shall lie after the expiry of three years from the date of the judgment.

8. The State may, by notification, extend the provisions of this section to any absconder mentioned in section 84(1) of this Sanhita.

WITNESS PROTECTION SCHEME

[SECTION 398 OF BNSS][NEW]

Protection of witness

• Section 398 of BNSS is a new provision.
• Section 398 of BNSS provides that every State Government shall prepare Sed notify a witness protection scheme for the State with a view to ensure protection of the witnesses.

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MERCY PETITION IN DEATH SENTENCE CASES

[SECTION 472 OF BNSS[NEW]

Mercy petition

• Section 472 of BNSS is a new provision.
• Section 472 of the BNSS provides for Mercy petition in death sentence cases. Section 472 provides as under.
• A convict under the sentence of death or his legal heir or any other relative may, if he has not already submitted a petition for mercy, file a mercy petition before the President of India under article 72 or the Governor of the State under article 161 of the Constitution within a period of thirty days after the date on which the Superintendent of the Jail,-

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(i) informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court; or

(ii) informs him about the date of confirmation of the sentence of death by the High Court and the time allowed to file an appeal or special leave in the Supreme Court has expired

■The petition may, initially be made to the Governor and on its rejection or disposal by the Governor, the petition shall be made to the President within a period of sixty days from the date of rejection or disposal of his petition.

■The Superintendent of the Jail or officer in charge of the Jail shall ensure, that every convict, in case there are more than one convict in a case, also makes the mercy petition within a period of sixty days and on non-receipt of such petition from the other convicts, Superintendent of the Jail shall send the names, addresses, copy of the record of the case and all other details of the case to the Central Government or State Government for consideration along with the said mercy petition.

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■The Central Government shall, on receipt of the mercy petition seek the comments of the State Government and consider the petition along with the records of the case and make recommendations to the President in this behalf, as expeditiously as possible, within a period of sixty days from the date of receipt of comments of the State Government and records from Superintendent of the Jail.

■ The President may, consider, decide and dispose of the mercy petition and, in case there are more than one convict in a case, the petitions shall be decided by the President together in the interests of justice.

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■Upon receipt of the order of the President on the mercy petition, the Central Government shall within forty-eight hours, communicate the same to the Home Department of the State Government and the Superintendent of the Jail or officer in charge of the Jail.

■ No appeal shall lie in any Court against the order of the President made under article 72 of the Constitution and it shall be final, and any question as to the arriving of the decision by the President shall not be enquired into in any Court.

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TRIAL AND PROCEEDINGS TO BE HELD IN ELECTRONIC MODE [SECTION 530 OF BNSS][NEW]

• Section 530 is a new provision. There were no corresponding provisions in Cr.PC
• Section 530 of the BNSS relates to trial and proceedings to be held in electronic mode.
• This section provides that trials and proceedings under this Code, may be held in electronic mode, by use of electronic communication or use of audio-video electronic means

• Section 530 provides that all trials, inquires and proceedings under this Sanhita, including-

(i) summons and warrant, issuance, service and execution thereof,

(ii) holding of inquiry;

(iii) examination of complainant and witnesses;

(iv) trial before a Court of Session, trial in warrant cases, trial in summons cases, summary trials and plea bargaining;

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(v) recording of evidence in inquiries and trials;

(vi) trials before High Courts;

(vii) all appellate proceedings and such other proceedings, may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

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