Context

• The Parliament has passed The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) which seeks to replace the Criminal Procedure Code, 1973 (CrPC). The CrPC provides for the procedure for arrest, prosecution, and bail.  
• The BNSS2 retains most of the provisions of the CrPC.  

Key changes proposed include:

Detention of undertrials:  

• As per the CrPC, if an accused has spent half of the maximum period of imprisonment in detention, he must be released on personal bond.  
• This does not apply to offences punishable by death. The BNSS2 adds that this provision will also not apply to: (i) offences punishable by life imprisonment, and (ii) persons against whom proceedings are pending in more than one offence.

Medical examination:  

• The CrPC allows medical examination of the accused in certain cases, including rape cases.  Such examination is done by a registered medical practitioner on the request of at least a sub-inspector level police officer.  
• The BNSS2 provides that any police officer can request such an examination.

Forensic investigation:  

• The BNSS2 mandates forensic investigation for offences punishable with at least seven years of imprisonment. In such cases, forensic experts will visit crime scenes to collect forensic evidence and record the process on mobile phone or any other electronic device.  
• If a state does not have a forensics facility, it shall utilise such facility in another state.

Signatures and finger impressions:  

• The CrPC empowers a Magistrate to order any person to provide specimen signatures or handwriting.  
• The BNSS2 expands this to include finger impressions and voice samples. It allows these samples to be collected from a person who has not been arrested.

Timelines for procedures:  

• The BNSS2 prescribes timelines for various procedures. For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within seven days.  
• Other specified timelines include: (i) giving judgement within 30 days of completion of arguments (extendable up to 45 days), (ii) informing the victim of progress of investigation within 90 days, and (iii) framing of charges by a sessions court within 60 days from the first hearing on such charges.

Hierarchy of Courts:  

• The CrPC establishes a hierarchy of courts for the adjudication of criminal matters in India. These courts include: (i) Magistrate’s Courts: subordinate courts responsible for the trial of most criminal cases, (ii) Sessions Courts: presided over by a Sessions Judge and hear appeals from Magistrate’s Courts, (iii) High Courts: have inherent jurisdiction to hear and decide criminal cases and appeals, and (iv) Supreme Court: hear appeals from High Courts and also exercise its original jurisdiction in certain matters.  
• The CrPC empowers the state governments to notify any city or town with a population of more than one million as a metropolitan area. Such areas have Metropolitan Magistrates.  
• The BNSS2 removes the classification of metropolitan areas and Metropolitan Magistrates.

Other Features:

• The BNSS2 provides for the use of handcuffs during arrest. Handcuffs may only be used to arrest: (i) a habitual or repeat offender who has escaped custody, or (ii) a person who has committed offences such as rape, acid attack, organised crime, drug related crime, or offence against the State.
• All trials, inquiries, and proceedings may be held in electronic mode. Production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial.
• If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the trial can be conducted and judgement pronounced in his absence.  

Key Issues and Analysis

• The BNSS2 allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. This may lead to denial of bail for the entire period if the police has not exhausted the 15 days custody. 
• The CrPC provides for bail for an accused who has been detained for half the maximum imprisonment for the offence. The BNSS2 denies this facility for anyone facing multiple charges. As many cases involve charges under multiple sections, this may limit such bail. 
• The use of handcuffs is permitted in a range of cases including organised crime, contradicting Supreme Court directions.
• The BNSS2 retains provisions of the CrPC related to maintenance of public order. Since trial procedure and maintenance of public order are distinct functions, the question is whether they should be regulated under the same law or be dealt with separately.