Rebooting the  Criminal Code of Procedure: A step towards new age or a mere colonial whitewash!

• The Indian Penal Code (IPC), 1860 was the principal law on criminal offenses in India. Its ratification In December 2023, by the Indian Parliament brought about major changes to the three new criminal codes.
• The stated aim of the new three legislations was to ‘decolonize’ criminal laws of the British era.
• Currently, ‘organized crime’ and ‘acts of terrorism’ are not covered under IPC. Acts of terrorism are covered under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
• The three new criminal laws that were passed by Parliament in 2023 came into effect as of July 1, 2024, according to a notification by the Ministry of Home Affairs (MHA).
• Organized crime as a subject, is covered within laws of many states; such as the Maharashtra Control of Organized Crime Act, 1999 (MCOCA), and similar laws are enacted by various states.
• Hence, there was a demand for a single platform for this code. However, the designed law too has its challenges which need to be revisited considering the sensitive state of the Indian Law & the diversity of society as its demands.

Objectives:

• Modernization & simplification
  • BNS will have 358 sections instead of IPC’s 511 sections
  • BNSS will have 531 sections instead of CrPC’s 484 sections
  • BSA will have 170 sections instead of IEA’s 166 sections
• Technological integration
  • Modifications to NCRB (National Crime Records Bureau) & CCTNS (Crime and Criminal Tracking Networks and Systems)
  • Inclusion of Electronic evidence
  • Use of Cloud-Based Systems for security of evidences such as e-Sakshya and e-Pramaan applications
• Training & adaptation
  • Mandatory inclusion of course modules in schools and higher education institutes by UGC.

Features of the New Criminal Procedures

A] Bhartiya Nyaya Sanhita (Replacing Indian Penal Code – 1860):

• Offences against the body: The IPC criminalizes acts such as murder, abetment of suicide, assault and causing grievous hurt.  The BNS retains these provisions.  It adds new offences such as organized crime, terrorism, and murder or grievous hurt by a group on certain grounds.  
• Sexual offences against women: The IPC criminalizes acts such as rape, voyeurism, stalking and insulting the modesty of a woman.  The BNS retains these provisions.  It increases the threshold for the victim to be classified as a major, in the case of gang-rape, from 16 to 18 years of age.  It also criminalizes sexual intercourse with a woman by deceitful means or making false promises.
• Sedition: The BNS removes the offence of sedition.  It instead penalizes the following:
  • (i) exciting or attempting to excite secession, armed rebellion, or subversive activities,
  • (ii) encouraging feelings of separatist activities, or
  • (iii) endangering the sovereignty or unity and integrity of India.  These offences may involve exchange of words or signs, electronic communication, or use of financial means.     
• Terrorism: The BNS defines terrorism as an act that intends to:
  • (i) threaten the unity, integrity, and security of the country,
  • (ii) intimidate the general public, or
  • (iii) disturb public order.  
  • Punishment for attempting or committing terrorism includes:
    • (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or
    • (ii) imprisonment between five years and life, and a fine of at least five lakh rupees.
• Organized crime: Organized crime includes offences such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate.  Attempting or committing organized crime will be punishable with:
  • (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or
  • (ii) imprisonment between five years and life, and a fine of at least five lakh rupees.
• Mob lynching:  The BNS adds murder or grievous hurt by five or more people on specified grounds, as an offence.  These grounds include race, caste, sex, language, or personal belief.  The punishment for such murder is a minimum of seven years imprisonment to life imprisonment or death.
• Rulings of the Supreme Court:  The BNS conforms to some decisions of the Supreme Court.  These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.

B] Bhartiya Nagarik Suraksha Sanhita (Replaces Code of Criminal Procedure – 1973):

• 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 Bill 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 Bill provides that any police officer can request such an examination.
• Forensic investigation:  The Bill 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 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 Bill 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 Bill 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 60 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 Bill omits this provision as proposed by CrPC)

C] Bhartiya Sakshya Adhiniyam (Replacing the Indian Evidence Act – 1872)

• Admissible evidence:  Parties involved in a legal proceeding can only present admissible evidence.  Admissible evidence can be classified as either ‘facts in issue’ or ‘relevant facts’.   Facts in issue refer to any fact that determines the existence, nature, or extent of any right, liability, or disability claimed or denied in a legal proceeding.  Relevant facts are facts that are pertinent to a given case.  The IEA provides for two kinds of evidence – documentary and oral evidence.  
• A proved fact:  A fact is considered proven when, based on the evidence presented, the Court believes it to either: (i) exist, or (ii) its existence so likely that a prudent man should act as if it exists in circumstances of the case.
• Police confessions: Any confession made to a police officer is inadmissible.  Confessions made in police custody are also inadmissible, unless recorded by a Magistrate. However, if a fact is discovered as a result of information received from an accused in custody, that information might be admitted, if it distinctly relates to the discovered evidence.
• Documentary evidence:  Under the IEA, a document includes writing, maps, and caricature.  The BSB adds that electronic records will also be considered as documents.  Documentary evidence includes primary and secondary evidence.  Primary evidence includes the original document and its parts, such as electronic records and video recordings.  Secondary evidence contains documents and oral accounts that can prove the contents of the original.  The BSB retains this classification.
• Oral evidence: Under the IEA, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry.  The BSB allows oral evidence to be given electronically.   This would permit witnesses, accused persons, and victims to testify through electronic means.
• Admissibility of electronic or digital records as evidence: Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer.  Such information may have been stored or processed by a combination of computers or different computers.  The BSB provides that electronic or digital records will have the same legal effect as paper records.  It expands electronic records to include information stored in semiconductor memory or any communication devices (smartphones, laptops).  This will also include records on emails, server logs, smartphones, locational evidence and voice mails.
• Secondary evidence:  The BSB expands secondary evidence to include:
  • (i) oral and written admissions, and
  • (ii) the testimony of a person who has examined the document and is skilled in the examination of documents.  
  • Under the Act, secondary evidence may be required under various conditions, such as when the original is in the possession of the person against whom the document is sought to be proved or has been destroyed.  The BSB adds that secondary evidence may be required if the genuineness of the document itself is in question.  
• Joint trials: A joint trial refers to the trial of more than one person for the same offence.  The IEA states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both.  The BSB adds an explanation to this provision.  It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.

Need for reforms

• The issue with Section 106 (Hit-and-Run):
  • The Section 106 provision is part of the BNS, which is set to replace the colonial-era Indian Penal Code, 1860.
  • Section 106(1) provides for a punishment of up to 5 years for causing death by any rash or negligent act not amounting to culpable homicide.
  • Section 106 (2) stipulates a penalty of up to 10 years in jail and a fine for fleeing an accident spot and failing to report the incident to a police officer or a magistrate.
  • This section has become a focal point of discontent, especially among the driving community. Even though the driver reports immediately after the accident, they will be charged under Section 106(1) instead of Section 106(2).

• The issue with Section 112 (petty organized crime):
  • It talks about a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other similar criminal acts is said to commit a petty organized crime”.
  • The “unauthorized selling of tickets” and “selling of public examination question papers” are not linked with any special Act. However, the phrase ‘any other similar criminal acts’ of the section is more indefinite and open-ended.

• Section 104 (No discretion):
  • Section 303 of the Indian Penal Code (IPC) mandated the death sentence for a person who murders while undergoing imprisonment for life. This provision was struck down by the Supreme Court in Mithu vs State of Punjab (1983) as it violated Articles 14 and 21 of the Constitution of India.

Section 303 of the IPC has been reinstated as Section 104 of the BNS without rectifying the unconstitutional defect.

• Section 303 of the BNS (Reassessment of Theft Offenses):
  • No reason behind it is considered Non-cognizable: The provision stipulates that for theft cases where the value of the stolen property is less than ₹5,000 and it’s the first conviction, community service is mandated upon the return or restoration of the property. This offense is categorized as non-cognizable.

• Three Legal issues may arise:
  • Firstly, if property offenses, of whatever value, are not registered, property offenders will be out of the police radar for surveillance.
  • Secondly, legal issues may also arise about the return of such property if recovered with some other stolen or looted property.
  • Thirdly, if the stolen property of a value less than ₹5,000 is not returned or restored by the convict as provided for, the only option available to the court will be to award imprisonment which may extend up to 3 years.

Contentions regarding the new set of Procedures

Contentions in BNS – 2023

1. The ground of mental illness does not recognize general exceptions of criminal responsibility.
2. The definition of Terrorism is too broad for legal justification
3. Absence of clarity in defining “petty – organized crime”
4. Legal contentions regarding the Age of Criminal Responsibility (juvenile delinquency)
5. Conflict in age threshold regarding punishment for criminal offences, with other provisions. Eg. Protection of Children from Sexual Offences Act, 2012.
6. Duplication of offences with other special laws
7. Addition of crimes related to organized crime and terrorism, causing either duplication of laws & multiple trial procedures.
8. No strengthening in criminal procedures related to crimes against women
9. Retention of Sedition (a colonial blot)
10. Provisions of solitary confinement & its violation to Fundamental Rights (Article 21)
11. The BNS does not define what community service will entail and how it will be administered.
12. Miscellaneous Drafting issues:
    • Missing offences: eg. Section 377 of IPC; intercourse against order of nature
    • Procedural issues: eg. Section 85 (clause 23) acting while intoxicated & section 124A “sedition”
    • Obsolete references

Contentions in BNSS – 2023

1. The Bill amends the provisions related to detention, police custody and use of handcuffs, which may give extraordinary powers in hands of the police.
2. No requirement for the investigating officer to provide reasons when seeking police custody for someone in judicial custody.
3. Amendments to powers of police in matter of detention (Article 22)
4. The power to use handcuffs may infringe on the accused’s personal liberty. (Article 21)
5. Scope of mandatory bail limited in case of multiple charges
6. Limited scope for bargaining of plea
7. Bottlenecking the prison system; by restricting the bail procedure & limiting the scope for plea bargaining
8. Retention of “public order function” in the criminal procedure (VII^th Schedule public order is state subject) *(although matters to CrPC fall under Concurrent list)
9. Overlapping with existing laws;
   • The Criminal Procedure (Identification) Act, 2022; with respect to data collection for criminal identification.
   • The Maintenance and Welfare of Parents and Senior Citizens Act, 2007; with respect to maintenance of senior citizens.

Contentions in BSA – 2023

1. The admissibility of electronic records as evidence poses 2 challenges;
   • Tampering of electronic records, &
   • Ambiguity in recorded evidence
2. Information obtained in police custody using coercion may be provable
3. Admissibility of fact depends on whether it was obtained outside or within police custody

A way forward

• The implementation of these new laws represents a significant overhaul of India’s criminal justice system, aiming to make it more efficient, transparent, and responsive to contemporary needs.
• The integration of technology, flexibility for state-specific amendments, and enhanced security measures are key features that underscore the significance of these changes.
• Reforming criminal laws is a complex and ongoing process that requires collaboration, thoughtful deliberation, and a commitment to upholding justice and fairness for all members of society.
• Thus there must be a careful consideration from the government to sensitize the criminal laws with respect to the shaping time & scenario.
• And suggestions of civic societies, law commissions & socio-political activists must be prioritized & addressed as well so as to bring active participation of citizens towards shaping laws for a better society to be lived in.

Sources: The Hindu, PRS, Innovative Judiciary