Revamping India's Criminal Justice System: A Milestone in Legal Reforms

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Adv Aashish Uday Patankar

Pune, 27th December 2023: The Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 are colonial laws that, have been in place since the British era. Recently as a reformative measure and long-awaited tuning of the provision in the said Acts in line with the changes in the society, an important milestone was achieved by proposing an amendment to India’s Criminal Justice System that aimed at revamping and replacing the colonial laws.

Union Home Minister of India introduced three bills in the Lok Sabha on August 11, 2023 and on 20 December 2023, the Bharatiya Nyaya (Second) Sanhita bill, 2023, the Bharatiya Nagarik Suraksha (Second) Sanhita bill, 2023 and the Bharatiya Sakshya (Second) bill, 2023 were passed in the Lok Sabha and were passed by the Rajya Sabha on 21 December 2023, Hon’ble President of India gave assent to all three bills on 26 December 2023.

The main objective of the new bills is focused on transforming India’s Criminal Justice System. The Indian Penal Code will be replaced by the Bharatiya Nyaya Sanhita, 2023 while the Code of Criminal Procedure will be replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023.

Additionally, the Indian Evidence Act will be substituted with the Bharatiya Sakshya, 2023. The colonial laws were not meant for the protection of the citizens of Bharat but were for the security of British rule. The new bill’s objective is towards delivering speedy justice.

Following are the salient features and comparative narrative of the Bharatiya Nyaya (Second) Sanhita Bill, 2023 (BNS) and the Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023 (BNSS):

The Bharatiya Nyaya (Second) Sanhita bill, 2023 (BNS).
It will now include 358 sections (instead of the IPC’s 511 section). A total of 20 additional offences have been added to the bill, and the imprisonment for 33 of them has been enhanced. Six offences now have community service as a penalty, while 19 sections have been repealed or eliminated from the bill.
To address sexual offences, The Bharatiya Nyaya (Second) Sanhita Bill, 2023 (BNS) has included a new chapter. According to section 69 of BNS, making a promise to marry a woman without any intention of fulfilling the same and on that pretext having sexual intercourse with her is now made an offence for which punishment is upto 10 years.
A new section of BNS limits the culpability of medical practitioners for causing death due to negligence. Section 106 of BNS, prescribes a penalty for causing death due to negligence and the punishment in such cases where a medical practitioner was performing a medical procedure, the punishment is upto two years. Under section 106(2) of BNS, whoever causes the death of any person by rash and negligent driving of a vehicle (hit and run case) and escapes without reporting it to a police officer, then the punishment is upto 10 years.
Terrorism has been defined for the first time in the BNS and section 113(1) of BNS defines the term “Terrorism”. The offence of ‘sedition’ is now omitted from the new act. Mob lynching has been made a separate offence under the 103(2) of BNS, with a maximum punishment of death penalty. Earlier there was no separate punishment for mob lynching.
Organised crime has been defined for the first time in BNS. Section 111(1) of BNS defines the term organised crime and it also includes economic offences and cyber-crimes. For the first time economic offences are dealt with an iron fist. The maximum punishment for organised crime is upto death and minimum of ten lakh rupees fine is imposed.
For the first time petty organised crimes have also been criminalised and they are punishable with imprisonment upto 7 years. Section 112(1) of BNS Act deals with petty organised crime.

The Bharatiya Nagarik Suraksha (Second) Sanhita bill, 2023 (BNSS).

It will include 531 sections (instead of the C.r.p.c 484 section). Timelines have been added to 35 sections and audio-video provision has been added in 35 provisions. A total of 14 sections have been repealed and removed from the bill.
Now First Information Report (F.I.R.) can be registered electronically and the concept of zero F.I.R. is introduced. Now victims can approach any police station, not necessarily the jurisdictional police station. Earlier under section 154 of CrPC such provisions were missing, which are now added to section 173(1) of BNS
Significant reform has been incorporated in Section 176 of the BNSS or Section 157 of the CrPC. By introducing a new sub-section (3), it is mandatory for a forensic team to visit the scene and collect samples, as well as cause videography of the process, when the police obtain information about a crime punishable more than 7 years.
A new clause (ii) has been introduced to Section 193(3)(ii) of the BNSS, which corresponds to Section 173(2) of the CrPC, requiring police to notify informant/victim of investigation progress within 90 days, which may be done electronically as well. In addition to victims, accused have been granted the opportunity to be heard in complaint cases. By inserting a new proviso to Section 223 of the BNSS or Section 200 of the CrPC, the accused must now be heard before cognizance is taken in complaints before the magistrates.
According to section 250 or section 262(1) of the BNSS,2023 the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case. Earlier there was no time limit for filing an application for discharge and it could be filed any time before framing of charges.
Much needed change has been brought by section 190(1) of BNSS, 2023 or section 170(1) of CrPC. Now, after the completion of the investigation but before the submission of the police report, the police are not mandated to arrest an accused simply to secure his appearance before a judicial magistrate.
Under section 479(1) of BNSS 2023, maximum period for which under-trial prisoner (UTP) can be detained is prescribed. In case of a first-time offender he can be eligible for mandatory bail after undergoing 1/3rd of the punishment as compared to 1/2 of punishment to a regular offender. To make this right effective, subsection (3) has been added to Section 479 wherein it will be duty of jail superintendent to apply for release of eligible prisoners.
A historic Section 530 has been introduced to the BNSS. Now, all trials, inquires, and proceeding, as well as the recording of evidence, examinations of parties, service, and execution of summons and warrants, and other processes, can now be done electronically.
As per Section 230 of BNSS corresponding to Section 207 of CrPC, copy of police report and other documents now need to be supplied to the accused by the magistrate within 14 days of date of production/appearance. Earlier there was no time limit prescribed.
As per Section 258 of BNSS corresponding to Section 235 of CrPC, after completion of arguments, a judgment need to be given by the judge within 30 days, which can be extended upto 45 days only by giving special reasons. Earlier there was no time limit to pronounce the judgement.
The new legislation has also included a new clause that, if used wrongly, may allow a lot of possibility for abuse. The inclusion of a new sub-section (3) to Section 173 corresponds to Section 154 of the CrPC, -“Information in cognizable cases.” According to this new provision, the police “may “proceed with investigation when there is a prima facie case” for offences punishable by 3 to 7 years. In such cases, the police “may” undertake a preliminary investigation to confirm the existence of a prima facie case.

Thus it is seen that new sections have been added and they are meant to deliver justice which will help to curb criminal activities. The procedural changes have been carried out in such a way that it has become citizen-friendly and delivering justice at an accelerated rate and in a timely manner, so as to facilitate the State to achieve the conviction rate, to deter the crime.

(About the author: Adv Aashish Uday Patankar has completed his LLM and MBA(Finance) and currently pursuing his PhD from Savitribai Phule Pune University (SPPU). He is a criminal and corporate lawyer by profession and regularly appears before District Court Pune and Bombay High Court.)