Adv. Mobin Sayed (mobin@singhania.com)
The criminal justice system has had its own share of challenges with questions over infrastructure, laws being punishment centric, over-stretched trials, pendency, gaps and elongated investigations, overcrowded prisons with under-trial prisoners. The old laws were very much in need of changes to match up to the new age requirements, technological advancements and to fill in the identified gaps, hence, the new laws brought in an entire overhaul.
Bhartiya Nyaya Sanhita (BNS), Bhartiya Nagarik Suraksha Sanhita (BNSS), and Bhartiya Sakshya Adhiniyam (BSA), displaced the existing Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act, respectively.
Bhartiya Nyaya Sanhita-2023: Replaces IPC-1860:
Community Service- Section 4 of the Bhartiya Nyaya Sanhita provides for six types of punishments i.e. Death Penalty, Life Imprisonment (i.e. rest of the convict’s life), Rigorous or Simple Imprisonment (Nature of punishment for certain period), Forfeiture of Property, Fine and Community Service.
Community service has been added as the new type of punishment. This punishment is intended to work towards reformation and restorative justice, for a convict of minor offences. Some of the offences providing this as punishments are – non-appearance in response to a proclamation, theft by 1st time convict (where the value of the stolen property is less than five thousand rupees and returns or restores the value of property), misconduct in public by a drunken person.
Erasure of Specific Terms – Bhartiya Nyaya Sanhita, has changed or displaced references to few of the legal terms in its provisions, for better references or legal implications. The connotation or word ‘minor’ in the provisions of the Indian Penal Code has been replaced with ‘child’ at all the relevant places in the BNS.
- Mob lynching: has been a rising concern, BNS has considered it with specific relevant provisions.
Section 103(2): The provision covers the crime of mob lynching by a certain number of people (i.e.five or more). It punishes for murder committed by a group of 5 or more people, while acting in concert together – on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground.
Section 117(4): Voluntarily Causing Grievous Hurt- When a group of five or more persons acting in concert, voluntarily causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offense of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- Crime Against Women:The Bhartiya Nyaya Sanhita (BNS) categorically provides for distinct and specific chapter, pertinently covering crimes against woman and children (i.e. Chapter 5, Section 63 to Section 99). The provisions dealing with this category of offence under Sanhita includes sexual offences, criminal force, assault, offences related to marriage and others.
Organized Crimes & Terrorism- Bhartiya Nyaya Sanhita, specifically carves and lays down the provisions for organized crimes and terrorism, and hence makes them an offence under the BNS itself. It is noteworthy that this is a new legal provision under this substantive law which succeeds the IPC and was earlier comprehensively covered only under the special laws.S.111(1)- provides that – Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cybercrime, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organized crime. Section 111 covers other aspects like abetment, attempt, membership etc. as well, for the organized crime. There are other special laws that deal with organized crime and terrorism, with special provisions and procedures, with essential safeguards in procedure, for such heinous crimes. These provisions in BNS (which is a general criminal law) now overlap and cut across other specific laws. Explanation attached to the provision dealing with terrorism i.e. Section 113(7) – states that it is for the officer not below the rank of Superintendent of Police to decide that such a case be registered under S.113 or under the special legislation i.e. Unlawful Activities Prevention Act (UAPA). - BNSS-2023 Replaces Cr.PC-1973: It introduces a comprehensive timeline for every stage of criminal proceedings, creating a structured framework for legal processes. Under the BNSS FIR to be recorded within three days for complaints submitted through electronic communication, expediting the initial phase of criminal cases. Medical examination reports for sexual offenses to be forwarded within seven days, ensuring timely collection of crucial evidence. Regular updates to victims/informants about investigation status within 90 days, fostering transparency and keeping stakeholders informed and Competent magistrates required to frame charges within 60 days from document supply, streamlining the trial initiation process and Courts are empowered to initiate trial in absentia against declared offenders within 90 days from framing charges, expediting proceedings. court to declare judgments within 45 days post the trial’s conclusion, ensuring a prompt legal resolution and Court decisions on acquittal or conviction within 30 days post-argument completion, with an extension of up to 45 days for recorded reasons. It’s also added in the BNSS that Expedited criminal proceedings ensure timely resolution, reduce the burden on the legal system and Regular updates to victims and stakeholders, foster a transparent legal process, promoting public trust. In BNSS, if information relating to the commission of a cognizable offence is received by the police then FIR to be taken on record if informant signs it within 3 days, No time prescribed Section 154 Preliminary enquiry to be conducted within 14 days Section 173(3) Initiation of criminal proceeding Police to forward daily diary reports in non-cognizable cases to the Magistrate.
Bhartiya Sakshya Adhiniyam (BSA) Replaces Indian Evidence Act-1872:In Indian law, BSA stands for Bharatiya Sakshya Adhiniyam, which is a new law replacing the older Indian Evidence Act, 1872. It’s essentially the updated legal framework governing the rules of evidence in Indian courts. The BSA aims to modernize and streamline the process of presenting evidence in legal proceedings, considering advancements in technology and the changing legal landscape. The Bharatiya Sakshya Adhiniyam (BSA) replaced the Indian Evidence Act, 1872. The BSA provides the rules for what evidence can be presented in court, how it should be presented, and how it affects judicial decisions
It addresses the limitations of the old 1872 Act by incorporating provisions for electronic and digital records, reflecting the increased use of technology in legal matters. The BSA expands the definition of evidence and documents to include electronic records and digital information. It also includes provisions for secondary evidence and joint trials, among other things. The BSA is designed to ensure fair trials by providing clear and updated rules for the presentation and admissibility of evidence in all types of legal proceedings in India.
