#TaxmannPPT | Bharatiya Nagarik Suraksha Sanhita 2023 – An Overview

Bharatiya Nagarik

Suraksha Sanhita

Prof S D Sharma

Recipient of President of India Award in Legal Research

Overview-

• Statement of objects and reasons

• 247th Report on Bharatiya Nagarik Suraksha Sanhita

• Parliamentary Standing Committee on Home Affairs

• Observations of the committee

• Recommendations of the committee

• Speech of Honorable Minister of Home Affairs on 20th December 2023

• Provisions of other Acts referred to in BNSS

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• Fundamental Changes in Criminal Administration of Justice

• Practical procedural approach of the new law

• Application of the BNSS in progressive India

• System of Electronic Court in India

• Use of technology in the criminal justice delivery system

• Challenges and solution for the implementation of the BNSS

• Human rights approach of the BNSS

• Speedy trial under BNSS

Statements of Object and Reasons

• The object of criminal administration of justice is-

• We can not be true ourselves, if we are not true to others. We can not be free individually unless every individual regards and respect the freedom of his neighbors’. P K Sen, Member, Constituent Assembly

• A person is not prison because he is guilty. He is not in prison because he has been punished. He is not prison because there was apprehension that he would escape before release. The only reason why he is in prison is that he is poor. Lyndon B Johnson, former President of America; section 341 of BNSS & 304 CrPC

Object and reason for enacting BNSS

• The purpose of CrPC was from FIR, complaint to final order of the appeal

• However, the purpose of BNSS is Good governance- efficient justice system, BNSS is antithesis of poor man adversely

• Citizen centric new criminal procedure

• To repeal and modify seven decades old criminal procedure and new need with contemporary and aspiration of people

• Sabka Sath , Sabka Vikas, Sabka Vishwas and Sabka Prayash; Speedy Justice

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• BNSS provides use of technology and forensic science in investigation

• Use of electronic communication

• Specific timeline for every procedure

• Citizen centric

• Use of digital means

• In the cases where punishment is 7 years and above for withdrawing the cases victim shall given opportunity of being heard ( sections 473-477 of BNSS)

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• Summary trial is mandatory (Section 283 to 288 of BNSS)

• Accused person may be examine through the electronic means

• Magisterial system has been streamlined

• The Bill after placing on the floor of House of People on 11th August 2023 referred to standing committee

• The committee submitted report to government on 10th November 2023

• Bill finally incorporates the recommendation of the standing committee report

247th Report on BNSS /PSC

• Observation on chapter XXVII (section 367-378) provisions as to accused persons of unsound mind, Asylum word removed

• Recommendations on the ground of Mental Healthcare Act 2017

• New provision u/s 86 identification and attachment of property proclaimed person, investigation u/s 112 outside India

• u/s 530 trial and proceeding to be held in electronic mode, it safeguard the integrity of justice

• Committee said title in Hindi is not in violation of Article 348 of the Constitution because of the reason the text is in English

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• Section 2(1)(a) provides the definition of ‘audio-video electronic means’ is an appreciable attempt, here scope for making rules by the state government

• Advocate word replaced in place of pleader

• Section 23 (2) & (3) provides the power of First and Second classes Magistrate for community service

• Encompasses social restitution

• Section 33, public to give information of certain offence mostly related search and seize the property

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• Handcuffing in serious cases of arresting not in the economic offences

• Section 52 of the BNSS examination of person accused of rape by medical practitioner without any delay

• In view of the repeal of the sedition the extra discretionary power is given under section 127 to EM for taking security from the any person based on sufficient ground for proceeding

• Time bound of releasing a person u/s 172 by police within 24hrs in case of persons to bound to confirm to lawful direction of police

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• Human rights approach in lodging FIR under section 173 relating to protect the disabled person and women of rape victim

• Procedure for the preliminary enquiry with the permission of Dy SP of the cases 3 to 7 years punishment cases.

• No recommendation accepted by the parliament relating to clause 2 of section 173 for providing copy of FIR to accused in the light of the judgment of the SC in Youth Bar Association v Union of India

• Power of investigation under section 175 to Dy SP as per gravity of the case

Section 179 of BNSS and 160 of Cr PC

• Under section 160 of Cr PC there was no provision for the witness above 60 years of age to record statement to police in a place other than the place in which such person resides, same is the protection to mentally or physically disabled and persons of acute illness.

• The above is in protection with reference to protection of human rights.

New Provisions under BNSS

• The community service punishment

• Section 23 power of Fist Class magistrate and second-class magistrate

• Explanation under section 23

• It is in benefit of the community

• Work without remuneration

• Question of the period of community service

• It was a provision in USA and UK

Section 86 of BNSS Identification and attachment of Property of Proclaimed Person

• On the request of SP or Commissioner of Police

• Initiate the process of requesting for-

• Court or authority of law

• After taking permission the authority may contract to contracting state

• The provision of the chapter VII section 111 to124 related to attachment and forfeiture of the property shall apply

Section 105

• Recording of search and seizure through Audio-video electronic means

• Any property, article, or thing under the chapter VII

• Search by the police officer section 185

• These words written under section 185 (2) proviso related to recording

• Recording preferably by the mobile

Section 107 Attachment, forfeiture or restoration of the property

• Elements- during investigation by Police officer

• Found any property related to crime

• May make an application

• With approval of SP or P Commissioner

• To the Court

• For the attachment of property

• Court order shall be based on reason to be believed before and after receiving evidence

Continued-

• Notice of 14 days

• It can be issued to any other person if property is the possession of that person

• In case of material facts available, Court of magistrate may pass an order for attachment

• If the person shall not present, Court may pass ex-party order

• In case of emergency Court or magistrate may pass an order but information to DM

• Within sixty days DM shall proceed of crime

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• If no claimant is there, the property shall be forfeited to the government

• In this way, second hearing by the DM within sixty days in case of ex-party decision by the Court

• Total eight clauses are under section 107, litigation will increase, because for the protection of human rights, much scope for various stages is given

• Interestingly restoration of ex-party decision is not in such form, because the power of second hearing is given to DM

Persons Bound to confirm to Lawful

Directions of Police- Section 172

• Under Chapter XII; the power is given to police

• The chapter is related to Preventive Action of the Police in the emergent cases but in the CrPC it was chapter XI (section 149 to 153)

• In new procedure inspection of weights and measures has been removed as section 153 CrPC

• A new section related to strengthen power of the police already given

• Interestingly if any person shall not follow the order of the police, after 24 hrs. what will be the situation it is not clear

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• All are bound to fulfill the lawful direction of the police officer

• Given in fulfilment of any of his duty for the preventive action of the police

• A police officer may detain or release any person –

• Resisting, refusing, ignoring, or disregarding

• To confirm any direction given by him

• May either take such person before Magistrate or

• In petty cases, release him as soon as possible

• Within a period of twenty-four hrs.

Evidence of public servant, Expert, Police officer section 336

• It was chapter XXIII of CrPC(section 273-299) but now it is chapter XXV (section 307- 336) of BNSS

• Where any document prepared by PS, SE, or MO required to use as evidence, in any stage, but-

• Transferred, retired, or died

• Can not be found or unable for deposition or

• Cause to delay

• Court shall secure the presence of successor

• Statement may be recorded through audio-video electronic means

Inquiry,

Trial or Judgment in absentia of Proclaimed Offender- Section 356

• In absence of proclaimed offender;

• Court may proceed with trial by recording the reasons in writing

• In the interest of justice

• Proviso- Trial shall not commence unless- period of ninety days lapsed from the date of framing charges.

• Conditions- issued two consecutive warrant within interval of thirty days

• Publication in two news papers of National and local

• Inform his relative and friend about the commencement of trial

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• Affix information at residence, home street and notice board

• Advocate will allow

• In absence of the advocate of accused, state shall appoint advocate with the cost of advocacy

• Witness will examine

• If proclaimed offender appears in between proceeding and before judgment

• Court will allow him to examine witnesses, where his statement recorded in absence of accused

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• Statement as far as possible by audio-visual, preferable by Cell Phone.

• Record shall be kept as per the order of the Court

• If the accused appear or arrested or brought in any stage of trial including judgment shall not prevent the continuing the trial

• No appeal of this case-

• Unless proclaimed offender appeared

• Time limit for appeal is three years

• State can apply this provision on the proclaimed accused u/s 84

Witness protection Scheme

Section 398

• Every state shall prepare and

• Notify

• A witness protection scheme

• For the state

• With a view to

• Ensure protection of witness

• It is in Canada and European countries

• Witness protection scheme already prepared in 2018 in India

Mercy petition in death sentence cases- section 472

• It is convicted only for the death

• Locus standi to the convicted person

• To legal heir or any other relative

• May file the mercy petition before the President of India under Article 72 or the Governor of the State under 161

• Within a period of thirty days

• From the date when superintend of jail inform him about the dismissal of SLP, appeal, review

• Inform about the confirmation of death by High Court

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• Mercy petition firstly to Governor

• Than to President of India within sixty days from the rejection or disposed of by Governor

• Every convicted for the death of right to file mercy within sixty days after receiving information

• Procedure says that after receiving the mercy petition by the President of India

• Centre government will seek the comments of the state government

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• Disposed off the case within sixty days by the President of India

• In case more than one convicted-

• President shall decide together in the interest of the justice

• The decision of the President of India shall be communicated within 48hrs

• To home department of state and superintend of jail

• No appeal shall lie in any court against the order of the President of India or Governor of the State

• It shall be final

Trial and proceedings to be held in electronic mode- section 530

• All trial, inquiries, and proceedings

• Issuing, service, and execution of summons and warrants

• Examination of complaints and witnesses

• Recording of evidence in inquiries and trials and

• All appellate proceedings or any other proceedings

• May be held in electronic mode

• By use of electronic communication

• By use of audio video electronic means

Conclusion-

• Various new provisions

• Incorporate under BNSS

• Sections 23, 86, 105, 107, 172, 336, 356, 398, 472 and 530

• To provide real justice by adopting transparent procedure

• Provisions are in the interest of justice

• Reformative legal procedure

• Victim relief system

• Protection of human rights

• Witness protection scheme