September 23, 2024

The Bharatiya Nagarik Suraksha Sanhita, 2023 |

A primer on the legislation replacing the Code of
Criminal Procedure, 19731 (2/3)

1. The Bharatiya Nagarik Suraksha (Second) Sanhita,

2023, which aimed to replace the existing Code of
Criminal Procedure, 1973 (CrPC) was passed by the
Parliament in winter session of 2023, following which
presidential assent received on December 25, 2023.
Along with the BNSS, the Bharatiya Nyaya Sanhita,
2023 (which replaces the Indian Penal Code, 1860
(IPC)) and the Bhartiya Sakshya Sanhita, 2023 (which
replaces the Indian Evidence Act, 1872 (Evidence Act)
have also been passed by the Parliament and have
received presidential assent. Upon notification, it is
called the ‘Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS).

2. To allow India’s criminal justice system (judiciary and

police machinery) to prepare and equip itself for a including police processes, taking evidence and in
monumental overhaul, the three laws came into force Court processes. Some of the most significant changes
from July 1, 2024 onwards. which have been made to the CrPC are summarized as
3. This note summarizes the notable changes to the CrPC under:
which have been made in the BNSS.
Introduction of new definitions
4. Summarily, the BNSS introduces certain timelines
in the investigation, inquiry, and trial processes in 5. In the Section 2 of the BNSS setting out definitions,
our criminal justice system, apart from certain new the concept of “audio-video electronic means” has
provisions for conducting trial in absentia against been introduced. The expression “investigation” has a
persons who have absconded, and allowing police newly inserted explanation that now states that were
custody beyond 15 days, if there exist adequate any provisions of a Special Act are inconsistent with
grounds for doing so. The BNSS also seeks to formalize the provisions of the BNSS, the special Act shall prevail.
the adoption of electronic communication and Consequently, investigation or inquiry under acts such
electronic forms in investigation, inquiry and trial as the Prevention of Money Laundering Act, 2002 or

1 Authors: Ankoosh K Mehta, Faraz Alam Sagar, Kapil Arora, Sara

Sundaram, Nikhil Varshney, Srinivas Chatti, Rinkel Singh and Darshan
Patankar, Sangram Parab, Nitya Ravichandran, Stuti Bhargava,
Arunima Phadke, Aman Siwach.
September 23, 2024

the Narcotic Drugs and Psychotropic Substances Act, Superintendent of Police grants prior permission for
1985 shall take precedence over the BNSS in case of such arrest.
any inconsistency.
10. As regards arrest by a private person, a time limit of
six hours has now been introduced within which the
Establishing a Directorate of Prosecution private person will have to make over such person so
6. In Section 20 of the BNSS, the concept of Directorate arrested to the Police. Under Section 43 of the BNSS,
of Prosecution has been introduced for each of the a police officer is permitted to use handcuffs when
states to establish (with a prescribed hierarchy) with arresting an accused or producing him before the
the stated purpose of monitoring cases by scrutinizing court in certain cases, mostly relating to serious and
police reports, expediting proceedings, and providing heinous offences such as organized crime, offences
opinions on filing of appeals, wherever applicable. against the State, terrorist acts, etc. It is notable to
mention that economic offences have been removed
from the blanket provision of handcuffing in all cases
In relation to First Information Report (FIR)
to restrict their usage for heinous crimes in a bid to
7. Section 173 of the BNSS allows citizens to lodge a prevent escape of individuals and ensure the safety of
FIR at any police station for a cognizable offence, officers and bystanders.
irrespective of the jurisdiction. The provision also
11. Further, as regards arrest of a woman, in Section 43(1)
introduces electronic registration of FIR, which would
of the BNSS, an obligation has been cast on the police
have to be signed by the person making it, within 3
to effectuate the arrest of a woman only by a female
days of it being taken on record.
police officer or unless the circumstances so require.
8. In Deepu and 4 Others v. State of Uttar Pradesh2, the Section 51(3) of the BNSS introduces an obligation
Hon’ble Allahabad High Court has taken the view that upon a medical practitioner to forward, without
if an FIR is lodged on or after July 1, 2024 (the date of delay, the examination report of an accused to the
commencement of the three new criminal laws), for investigation officer.
an offence committed prior to such date, the FIR will
still be registered under the provisions of the IPC. This On Attachment and seizure of property
position was also affirmed by the Hon’ble Bombay High
Court3. The Allahabad High Court observed that the 12. A new provision has been introduced under Section
investigation will be conducted as per the BNSS. For 107 of the BNSS, by which a police officer can make
investigations pending on July 1, 2024 however, while an application to the Court or Judicial Magistrate with
the investigation may continue under the erstwhile the approval of the Superintendent or Commissioner
legislation, cognizance of the police report shall be of Police for attachment of certain properties where
taken in accordance with the procedure stipulated in such properties are derived or obtained, directly or
the BNSS. indirectly, as a result of criminal activity or from the
commission of any offence or which are proceeds of
crime. Notably, this power can be exercised in respect
In relation to arrest
of any offence or where property is derived from any
9. Section 35 of the BNSS consolidates Sections 41 and ‘criminal activity’. Further, as per the explanation to
41A of the CrPC4 into one provision. In case of an this section, the word ‘proceeds of crime’ is defined
offence punishable for less than 3 years, and where a in Section 111 of the BNSS (which provides certain
person is infirm or above 60 years of age, an arrest can definitions under the chapter VIII pertaining to
be made only if an officer not below the rank of Deputy reciprocal arrangements) and is akin to the definition

2 Criminal Miscellaneous Writ Petition No. 12287 of 2024.

3 Chowgule and Company Pvt. Ltd. v. State of Maharashtra, Criminal
Writ Petition 618 of 2024.
4 Section 41. When police may arrest without warrant; Section 41-A.
Notice of appearance before police officer

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September 23, 2024

of the term under the Prevention of Money Laundering

Act, 2002.

13. Further, under Section 497 of the BNSS (corresponding

to Section 451 of the CrPC5) a new provision has been
inserted stipulating that the Magistrate shall within
14 days from the production of the property, prepare a
statement of such property containing its description,
along with photographs and videography of the
property, if necessary.

Power to remove obstructions by a police officer

14. Section 172 of the BNSS is a newly inserted provision

which casts an obligation on persons to conform to the
lawful directions of a police officer in the fulfilment of
any of his duty under the relevant chapter pertaining 3 years or more but less than 7 years, the officer in
to the preventive action of the Police. Further, a police charge may with the prior permission of the Deputy
officer has the power to detain or remove any person Superintendent of Police proceed to conduct a
resisting, refusing, ignoring, or disregarding to conform preliminary enquiry within 14 days to ascertain if
to any direction given by such police officer. The there exists a prima facie case and proceed with the
police officer may either present such person before investigation where there exists one. Section 173 of the
a Magistrate or in petty cases, release him within a BNSS also specifies that information in relation to a
period of 24 hours. While seemingly innocuous, this cognizable offence can be given to police, irrespective
provision appears to further empower the police in of the area where the offence has been committed,
their exercise of their authority under the provisions either orally or through electronic communication.
of the BNSS.
17. Another change is found in Section 173(4) (corresponding
Introduction of timelines to Section 154(4) of the CrPC) which provides that the
complainant may file an application to the Magistrate
Preliminary enquiry and investigation to register an FIR only if the Superintendent of Police
does not investigate the case or direct a subordinate
15. One of the more significant changes sought to be police officer to investigate, in accordance with the
brought about through the BNSS is the attempt BNSS.
to address the delays in investigation and trial.
Specified timelines have been prescribed for various 18. Further, Section 1557 of the CrPC (under Section 174(1)
stages of the criminal process including to complete of the BNSS) has been augmented by introducing a
the investigation and file a final report and for trial time period of a fortnight for a police officer to forward
of the offence. For instance, it is mandatory for a the daily diary report to the Magistrate.
Magistrate to decide whether to take cognizance of
the chargesheet within a period of 14 days. 19. As regards the police officer’s power to investigate
cognizable offences, the BNSS now provides that the
16. In Section 173(3) of the BNSS (which corresponds to Superintendent of Police may require the Deputy
Section 1546 of the CrPC), for offences punishable for

5 CrPC - Section 451. Order for custody and disposal of property pending 7 CrPC – Section 155. Information as to non-cognizable cases and
trial in certain cases investigation of such offences
6 CrPC – Section 154. Information in Cognizable cases

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September 23, 2024

Superintendent of Police to investigate the offence. 24. Section 258(1) of the BNSS (corresponding to Section
The BNSS further provides that a Judicial Magistrate 235(1)11 of the CrPC) provides that after hearing
may take cognizance of a complaint against a public arguments and points of law, the judge shall give
servant. a judgment within 30 days from the completion of
arguments, which may for specific reasons extend to a
20. Crucially, Section 193 of the BNSS (corresponding to period of 45 days, for reasons to be recorded in writing.
Section 1738 of the CrPC) now casts an obligation on
the Police to inform the victim or informant of the 25. Finally, the BNSS under Section 392, provides that the
progress of the investigation including by electronic Court shall upload a copy of the judgment on its portal
communication within a period of 90 days. Further, within 7 days from the date of judgment.
the BNSS also permits further investigation after the
chargesheet has been submitted to the Magistrate but Discharge
now requires that such further investigation shall be
completed within 90 days, but which may be extended 26. In relation to discharge, Section 262 of the BNSS
with the permission of the Court. (corresponding to Section 23912 of the CrPC) provides a
time limit to the accused to prefer an application for
Sanction for prosecution discharge within a period of 60 days from the date of
supply of copies of documents under Section 230 of
21. Section 218 of the BNSS (corresponding to Section the CrPC. On the same subject of discharge, Section
1979 of the CrPC) now provides that the Government 274 of the BNSS (corresponding to Section 25113 of the
shall take the decision of whether to grant sanction CrPC) has a newly inserted proviso providing that if the
for prosecution of judges or public servants within Magistrate considers the accusation as groundless,
120 days from the date of receipt of the request for he shall, after recording reasons in writing, release
sanction and if it fails to do so, the sanction shall be the accused and such release shall have the effect of
deemed to have been accorded. discharge.

Committal to the Sessions Court Summary trial

22. In cases involving offences which are triable 27. The BNSS now provides that the Magistrate may, after
exclusively by a sessions court, which are required to giving the accused a reasonable opportunity of being
be committed by the Magistrate under Section 20910 heard, for reasons to be recorded in writing, try in a
of the CrPC, the corresponding Section 232 of BNSS summary way, all or any of the offences not punishable
stipulates a time period of 90 days to commit the with death or imprisonment for life or imprisonment
offences to the sessions court, which may be extended for a term exceeding 3 years, provided that no appeal
for a period not exceeding 180 days for reasons to be shall lie against any such decision of a Magistrate14.
recorded in writing.
Use of electronic communication and video conferencing
Framing of charge, trial, and judgement in investigation, inquiry and trial

23. In relation to framing of charges, a timeline of 60 days 28. The BNSS electronic communication and video
has been specified (in Section 251(1)(b) of the BNSS) for conferencing facilities at various stages including
the Sessions judge from the date of the first hearing at the time of inquiry, investigation, and trial. For
to frame in writing a charge against the accused. instance, the BNSS permits giving information as
regards commission of a cognizable in electronic form.

8 CrPC – Section 173. Report of police officer on completion of 11 CrPC – Section 235. Judgement of acquittal or conviction
investigation (also referred to as Final Report or Charge Sheet) 12 CrPC – Section 238. When accused shall be discharged
9 CrPC – Section 197. Prosecution of Judges and public servants 13 CrPC – Section 251. Substance of accusation to be stated
10 CrPC – Section 209. Commitment of case to Court of Session when 14 BNSS – Section 283(2). Power to try summarily
offence is triable exclusively by it

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September 23, 2024

Issuance of process recording of evidence in inquiries and trials; and

all appellate proceedings or any other proceeding
29. Further, a summons issued by a Court under Section 63 may be held in electronic mode, by use of electronic
(corresponding to Section 6115 of the CrPC), or a Police communication or use of audio-video electronic means.
officer under the newly inserted Section 64(2), or a The Parliamentary Panel Report on the erstwhile
witness under Section 71, or a warrant may also be in Bharatiya Nagarik Suraksha Sanhita Bill, 2023 had
the form of electronic communication. Section 94 of however raised concerns regarding data security and
the BNSS (corresponding to Section 9116 of the CrPC) the possibility of unauthorized breaches due to an
now permits a Court or an officer in charge of a police increased use of technology. The Report, therefore,
station to summon electronic communication which is recommended that the adoption of electronic means
likely to contain digital evidence. Section 231 of the for communication and trials should only be done
BNSS provides that supply of copies of statements post means of secure usage and authentication of
and documents to accused in other cases triable by electronically available data is possible. However, the
Court of Session are permitted to be issued by the BNSS does not seem to account for any additional
Magistrate in an electronic form. safeguards, presently.

Use of audio-visual electronic means in investigations Forensic experts

30. Under Section 176 of the BNSS providing for procedure 33. Another significant introduction under Section 176(3)
for investigation of cognizable offence (corresponding of the BNSS, particularly in investigation offences
to Section 15717 of the CrPC), the statement of the victim which are punishable for 7 years of more is the
may also be recorded through audio-video electronic requirement for the officer in charge of a police station
means including a cell phone, as also that of a witness to cause a forensic expert to visit the crimes scene
under Section 265(3) of the BNSS. Similarly, Section to collect forensic evidence in the offence and also
185 of the BNSS (dealing with search by a police officer cause videography of the process on mobile phone
corresponding to Section 16518 of the CrPC) requires the or any other electronic device. Further, this provision
search to be recorded through audio-visual electronic also confers powers on a State Government to notify
means preferably by cell phone. utilization of the forensics facilities of another state
until forensics facility is available in that state.
Conduct of proceedings through electronic means
31. Section 355 of the BNSS (corresponding to Section Cheating through electronic means
31719 of the CrPC) now inserts a new explanation to 34. From the perspective of economic offences, particularly
sub-section (2) providing that personal attendance of in relation to the offence of cheating, Section 202(1) of
the accused includes attendance through audio video the BNSS corresponding to Section 18220 of the CrPC
electronic means. now includes cheating by electronic communications
32. On the same vein, Section 530 of the BNSS now allows and a Court within whose local jurisdiction such
that all trials, inquiries, and proceedings including electronic communications or letters or messages
issuance, service and execution of summons and were sent or were received has been empowered to
warrant; examination of complainant and witnesses; try such offence.

15 CrPC – Section 61. Form of summons 20 CrPC – Section 182. Offence committed by letters etc.
16 CrPC – Section 91. Summons to produce document or thing
17 CrPC – Section 157. Procedure for investigation
18 CrPC – Section 165. Search of police officer
19 CrPC – Section 317. Provision for inquiries and trial being held in the
absence of the accused in certain cases

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September 23, 2024

Custody of an accused

35. Under Section 187(2) of the BNSS (corresponding to

Section 167(2)21 of the CrPC), a Magistrate to whom
an accused is forwarded, may authorize detention
of custody of the accused for a term not exceeding
15 days in the whole, or in parts at any time during
the initial 40 days out of 60 days or 60 days out of
90 days. Notably however, the Magistrate may now
authorize detention in police custody beyond the
period of 15 days if there exist adequate grounds for
doing so. However, such detention shall not exceed
90 days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of 10 years or more, or 60 days
in case of any other offence. It has been clarified that
provides that where an investigation, inquiry, or trial
the introduced flexibility shall also address situations
in more than one offence or in multiple cases are
wherein high-profile accused may feign illness and
pending against a person, he shall not be released on
get admitted to hospitals to obviate police custody.
bail by the Court.
While this change is seemingly applicable for serious
crimes, the intended usage and effect, when viewed
in conjunction with the proposed changes to the IPC, 38. More importantly, with regard to anticipatory bail
will have to be examined further to avoid abuse before under Section 43822 of the CrPC, the new Section 482 of
such provisions are made into law. the BNSS omits the factors contained in Section 438(1)
for grant of anticipatory bail. Further, Section 438(1A)
36. Further, the BNSS provides that if the accused is not in and (1B) stand omitted. As per the Hon’ble Delhi High
custody (corresponding to Section 170 of the CrPC), the Court in Prince v. State of Government of NCT of Delhi,23
police officer shall take the security from such person the procedure with respect to anticipatory bail pleas
for his appearance before the Magistrate and the filed for FIRs registered prior to enforcement of the
Magistrate to whom such report is forwarded shall new criminal laws shall be as per the BNSS if the date
not refuse to accept the same on the ground that the of filing such applications is on or after July 1, 2024.
accused is not taken in custody.
Cognizance of special law and cases against public
Bail and Anticipatory Bail servants
37. The definitions of bail, bond, and bail bond have also 39. The BNSS, under Section 210(1) now permits a
been added to Section 2 of the BNSS. The BNSS now magistrate to take cognizance of any offence also in

21 CrPC – Section 167. Procedure when investigation cannot be completed in twenty-four hours
22 CrPC – Section 438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to
the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest,
he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the
light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
23 Bail Application No. 1174 of 2024.

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September 23, 2024

relation to a complaint filed by a person authorized prosecution and after taking all reasonable measures,,
under any special law which constitutes an offence. if the attendance of prosecution witnesses cannot be
secured for cross examination, it shall be deemed
40. Further, the Magistrate may also take cognizance that such witness has not been examined for not
against a public servant arising in the course of being available, and the Magistrate may close the
discharge of his official duties subject to: (i) receiving prosecution evidence for reasons to be recorded in
a report containing facts and circumstances of the writing and proceed with the case on the basis of the
incident from the officer superior to such public materials on record.
servant; and (ii) after consideration of the assertions
made by the public servant as to the situation that led 44. Section 336 of the BNSS provides that where any
to the incident so alleged. document or report prepared by a public servant,
scientific expert, medical officer of investigating
Trial against an absconding person officer is purported to be used as evidence in any
enquiry, trial or other proceeding under this Code
41. Another significant addition through the BNSS is the and (i) such public servant, expert of officer is either
introduction of Section 356, which provides for an transferred, retired or died; or (ii) such public servant,
inquiry, trial to be conducted or a judgement to be expert or officer cannot be found or is incapable of
passed against a proclaimed offender, in absentia. giving deposition or securing the presence of such
public servant, expert or officer is likely to cause delay
42. In trying a proclaimed offender who has absconded to in holding the inquiry, trial or proceeding, the Court
evade trial and where there is no immediate prospect shall secure presence of successor officer of such
of arresting him, it shall be deemed to operate as public servant, expert or officer who is holding that
waiver of the right of such person to be present and post at the time of such deposition to give deposition
tried in person, and the Court shall, after recording on such document or report. However, the section also
reasons in writing, in the interest of justice, proceed provides that no public servant, scientific expert, or
with the trial in the like manner and with like effect as medical officer shall be called to appear before Court
if he was present, under this Sanhita and pronounce unless their report is disputed by any of the parties to
the judgment. Further, the proclaimed offender shall the trial or other proceedings.
not prefer an appeal unless he presents himself
before the Court of Appeal. Further, no appeal against Witness protection program
conviction shall lie after the expiry of three years
from the date of judgment. This introduction appears 45. By virtue of Section 398 of the BNSS, the concept
to be squarely aimed at prosecuting those accused of witness protection scheme has been formalized,
who have escaped Indian jurisdiction, and its efficacy which it is provided shall be notified by every state
will lie on who such inquiries and trials are actually government.
conducted.
Withdrawal from prosecution
Other relevant provisions 46. In relation to withdrawal from prosecution covered
In relation to trial under Section 32125 of the CrPC, Section 360 of the BNSS
now provides that no Court shall allow withdrawal
43. Section 269(7) of the BNSS (corresponding to Section from prosecution without giving an opportunity of
24624 of the CrPC) which is newly inserted provides being heard to the victim in that case.
that where despite giving opportunity to the

24 CrPC – Section 246. Procedure where accused is not discharged 25 CrPC – Section 321. Withdrawal from prosecution

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September 23, 2024

Compoundable Offences Conclusion

47. Section 359 of the BNSS (corresponding to Section 49. In a nutshell, in so far as the prescription of timelines
32026 of the CrPC) now removes adultery for the table of for inquiry, investigation and trial and formal adoption
compoundable offences. It provides for compounding of audio-visual and electronic means for to undertake
with the permission of the Court for the offence of various processes, the proposed changes are intended
defamation, specified under Section 356(2) of the to introduce a more efficient and technologically
BNSS, as against the President or the Vice- President aligned regime for administration of criminal justice
or the Governor of a State or the Administrator of a and move away from the language of British-era
Union Territory or a minister in respect of his public criminal laws. However, its efficacy in the real world
functions when instituted upon a complaint made by depends not only on the manner in which such
the public prosecutor. provisions are implemented and adhered to in letter
and spirit, but also on ensuring that all magistrates,
Clarifications with respect to Limitation period and law enforcement personnel, and allied agencies
Superintendence of the High Court undergo the necessary training to implement the
changes that the BNSS brings in its word and spirit.
48. The BNSS now clarifies that: (i) for computing the
period of limitation, the relevant date shall be the date
of filing complaint under Section 223 or the date of
recording information under Section 173; and (ii) that
every High Court shall so exercise its superintendence
over Sessions Courts in the state.

26 CrPC – Section 320. Compounding of offences

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September 23, 2024

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Cyril Shroff Ankoosh Mehta Faraz Alam Sagar

Managing Partner Partner (Co-Head - White Collar & Partner (Co-Head - White Collar
cyril.shroff@cyrilshroff.com Investigations) & Investigations)
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Contributors:
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Partner Partner Partner

Nikhil Varshney Rinkel Singh Darshan Patankar

Partner Senior Associate Associate

Sangram Parab Nitya Ravichandran Stuti Bhargava

Associate Associate Associate

Aman Siwach Arunima Phadke

Associate Associate

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