BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 & CRIMINAL PROCEDURE CODE: A COMPARISON OF ARREST AND INVESTIGATION PROCEDURE
Abstract
The scope of the article would be restricted to only substantial changes made in criminal procedure law by doing an exhaustive comparative analysis of provisions from Crpc and BNSS[i] with regard to procedure of arrest and investigation. With speedy justice as its primary goal, a significant change in the BNSS is the introduction of timelines for various steps in the investigation and trial. These timelines have been reviewed briefly towards the end of this article. Note that previous attempts to address delays through measures like fast track courts have had limited success due to systemic constraints such as heavy caseloads and shortage of judges. It is thus unclear if these timelines would be able to ensure quick disposal, without simultaneous institutional investments. More concerning is the likely adverse consequence of rushed proceedings on the quality of investigation and fair trial rights of the accused.[ii]
Besides these timelines, several procedural changes have been introduced in the BNSS. Most of these may be categorised broadly in the following manner. The first category includes amendments that have been introduced in procedure of arrest. For instance, the provision on remand now permits the police to take custody of the accused at any time within the maximum of sixty or ninety-day period of detention after arrest. This resolves a conflict in the Supreme Court jurisprudence on whether police custody can be only in the initial fifteen days after arrest, or even thereafter.
Another category of amendment is the inclusion of audio-video measures in investigation, such as the mandatory need for such recording in search and seizure proceedings. Though some concerns with this proposal are discussed in the brief, inclusion of these measures is in line with the legislative and judicial trend of expanding the use of technology towards ensuring better transparency.
Further, contrary to settled jurisprudence that use of handcuffs on arrestees violate human dignity under Art.21 of the Constitution, BNSS provides statutory sanction for handcuffing of a ‘habitual, repeat offender’ by the police, without requiring an individualised assessment of the tendency to escape or consideration of less restrictive measures. Another significant change is that BNSS expands the category of experts who are exempted from coming to court to include not just government scientific experts as under the CrPC, but also any expert certified by the State or Central governments. This disregards existing jurisprudence that emphasises the importance of meaningful examination of forensic evidence by courts, including the accuracy and reliability of the expert opinion.
[i] An Exhaustive Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023 available at: https://www.barandbench.com/columns/comparative-analysis-of-code-of-criminal-procedure-1973-and-bharatiya-nagarik-suraksha-sanhita-2023, (last accessed on 13th October, 2023)
[ii] Project 39a, National Law University, Delhi
