Introduction

CrPC – Ss 2 and 6 - 29 (relevant sub-Ss only), and 303 - 304

BNSS – S 341 and changes regarding trial courts composition

Section 304(1) of CrPC earlier provided for legal aid “in a trial before the Court of Session”.
However, the revised section 341(1) of BNSS has replaced this with “in a trial or appeal
before a Court” which significantly increases the ambit of the same.

Investigation of Crimes

CrPC – Ss 154 - 164 (only sub-s (1) of S 162 is significant), 172, 463, 482

BNSS – Ss 173, 174(1)(ii), 175(3), 176(3), provisos to 179, first two provisos to 183

FIR’s can be legally registered by electronic communication as per addition of clause (ii) to
Section 173(1) which corresponds to Section 154 CrPC.

Section 174 of BNSS, police are required to send information regarding non-cognizable
offences to the concerned on a fortnightly basis.

While it provides good clarification, the subsection 175(3) now also refers to “clause (b) of
subsection (4) of Section 173”. However, while in terms of content there is no ambiguity
per se, on a cursory glance it might cause some confusion as Section 173(4) of BNSS is not
explicitly divided into various sub-clauses.

176(3) states that when the police receive information about commission of a crime
punishable for more than 7 years, it is mandatory for a forensic team to visit the scene and
collect samples as well as cause videography of the process.

179 Proviso one - Provided that no male person under the age of fifteen years or above the
age of sixty years or a woman or a mentally or physically disabled person or a person with
acute illness shall be required to attend at any place other than the place in which such
person resides:

Proviso two - Provided further that if such person is willing to attend at the police station,
such person may be permitted so to do.

183 Provisos same as in CrPC sec.164

Processes to Compel Appearance of Accused

CrPC – Ss 41 - 42, 46 - 47, 49 - 51, 53 - 54A, 55A - 60A, 61 - 62, 64, 70 - 76, 87

BNSS – Ss 35, 36(c), 43(3), 51(1) and (3), 53(1)’s first proviso, 58, 63-64, 66, 70(3)

Sec. 35 of BNSS combines 41 and 41A of CrPC.

Sec. 36(c) of BNSS is the same as 41B (c)

Sec. 43(3) of BNSS says “The police officer may, keeping in view the nature and gravity of
the offence, use handcuff while making the arrest of a person or while producing such
person before the court who is a habitual or repeat offender, or who escaped from
custody, or who has committed offence of organized crime, terrorist act, drug related
crime, or illegal possession of arms and ammunition, murder, rape, acid attack,
counterfeiting of coins and currency-notes, human trafficking, sexual offence against
children, or offence against the State.” [Police officer gets power to handcuff during arrest]

Sec. 51 (1) takes away “not below the rank of sub-inspector" from Sec. 53(1) of CrPC,
enabling any police officer to carry out the same. (3) “The registered medical practitioner
shall, without any delay, forward the examination report to the investigating officer.” 51 (3)
requires medical practitioner to forward report to the investigating officer.

53(1) first proviso states that “Provided that if the medical officer or the registered medical
practitioner is of the opinion that one more examination of such person is necessary, he
may do so”

Sec. 58 of BNSS – “No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate under section 187,
exceed twenty-four hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate's Court, whether having jurisdiction or not.”

Differs from CrPC in the use of “whether having jurisdiction or not” -- question of
jurisdiction of the magistrate?

Sec. 63 (ii) allows electronic summons. In the proviso provided to Section 64(2) of BNSS as
corresponding to Section 62 of CrPC, summons can now be served digitally as well.

“Provided that the police station or the registrar in the Court shall maintain a register to
enter the address, email address, phone number and such other details as the State
Government may, by rules, provide.” -- Sec. 64 proviso requires the maintainance of a
register (record keeping)

Sec. 66 changes adult male member to merely adult member, dropping the male.
Sec. 70(3) “All summons served through electronic communication under sections 64 to
71 (both inclusive) shall be considered as duly served and a copy of such summons shall
be attested and kept as a proof of service of summons” -- electronically served summons
and its digital communication would also be considered valid.

Processes to Compel Production of Things

CrPC – Ss 91, 93, 100, 102-104, 165

BNSS – Ss 94(1), 105, 107 (only the crux), 185

Sec. 94(1) -- electronic communication allowed, electronic summons allowed, digital

evidence permitted

Sec. 105 (new) -- “The process of conducting search of a place or taking possession of any
property, article or thing under this Chapter or under section 185, including preparation of
the list of all things seized in the course of such search and seizure and signing of such list
by witnesses, shall be recorded through any audio-video electronic means preferably
mobile phone and the police officer shall without delay forward such recording to the
District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.”

Police conducting search under section 185 (erstwhile section 165 of CrPC) are mandated
to record the proceedings of such search electronically and forward the same to the
concerned magistrate.

Section 107 gives vast powers of seizure and attachment of property. This section gives
police the power to have the property of any accused seized and forfeited if it is suspected
to be involved in criminal activity. The application and judicial interpretation of this section
would require a close scrutiny going ahead.

Copies of any records made during such a search under Section 185 of BNSS now need to
be sent to the concerned magistrate within 48 hours as per Section 185(5). Earlier, no such
time limit was provided. The search, in accordance with 105, should be recorded
(preferably by mobile phone).

Law of Bail

CrPC – Ss 436, 436A, 437, 438-439, 440-442, 445, 446A

BNSS – Ss 2 (relevant sub-Ss only), 479, 480, 482

(b) "bail" means release of a person accused of or suspected of commission of an offence

from the custody of law upon certain conditions imposed by an officer or Court on
execution by such person of a bond or a bail bond.

(d) "bail bond" means an undertaking for release with surety.

(e) "bond" means a personal bond or an undertaking for release without surety.

Sec. 479 (new) -- This section for the very first time lucidly explains the concepts of ‘Bail’,
‘Bond’ and ‘Bail Bond’.

Sec. 480 replaced the proviso of CrPC sec. 436 with “(i) such person shall not be so
released if there appear reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had
been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously convicted on two or more
occasions of a cognizable offence punishable with imprisonment for three years or more
but less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be
released on bail if such person is a child or is a woman or is sick or infirm.”

Sec. 482 replaces sec. 438 of CrPC, pretty much the same

Custody and Conclusion of Investigation

CrPC – Ss 167, 169, 170, 173, 190

BNSS – Ss 187(2) and (3), proviso to 190(1), 193(3)(ii), 193(8), 193(9)

BNSS in Section 187(2) also uses the following new phrase which is reproduce below:

“…the detention of the accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days
or sixty days out of detention period of sixty days or ninety days, as the case may be, as
provided in sub-section (3)…”.

Curiously enough, the new provision in Section 187(3) of BNSS as corresponding to Section
167 (2)(a) of CrPC does not use the phrase “otherwise than in custody of the police”, can
this be understood to mean that for the entire period of investigation of 60/90 days one
might be sent to police custody?

Even if one supposes that the deletion of the above-mentioned words in Section 187(3)
i.e., “otherwise than in custody of the police” is inadvertent, the new law by Section 187(2)
still seeks to enhance the scope of police custody beyond the initial 15 days to the initial
40/60 days respectively.

According to the proviso of Sec. 190 (1) of BNSS, if after completion of investigation but
before submission of police report, the police are not mandated to arrest an accused
simply to secure his appearance before a judicial magistrate.

A new clause (ii) has been added to Section 193(3) of BNSS corresponding to Section
173(2) of CrPC wherein police are mandated to inform informant/victim about
investigation’s progress within 90 days which can be done electronically as well.

193 (8) permits supply of police report and other investigation related documents to be
done digitally.

Police investigation during trials under section 173(8) of CrPC or Section 193(9) needs to
be completed within 90 days.

Commencement of Judicial Proceedings

CrPC – Ss 190, 192-193, 200-205, 207-209

BNSS – Ss 230, first proviso to Sec 223, provisos to 232, proviso to 193(9)

As per Section 230 of BNSS corresponding to Section 207 of CrPC, a copy of the police
report and other documents now need to be supplied to the accused within 14 days of date
of production/appearance. Earlier there was no time limit for the same as the then section
207 simply mentioned ‘without delay’. Copies of documents such as police report
supposed to be supplied under Section 207 of CrPC or Section 230 of BNSS shall also be
supplied to the victim or their advocates. This can also be done electronically.

By adding a new proviso to Section 223 of BNSS or Section 200 of CrPC, now accused must
be heard before cognizance can be taken in complaints before magistrates.

A proviso has been added to Section 232 of BNSS corresponding to Section 209 of CrPC
wherein during the committal proceedings an application filed by the victim shall also be
forwarded to the Sessions Court. ‘Committal proceedings’ by Magistrate to Sessions court
under Section 232 of BNSS corresponding to Section 209 of CrPC have been mandated to
be completed within 90 days from date of taking cognizance. This can be extended to a
maximum of 180 days by providing reasons in writing.

Police investigation during trials under section 173(8) of CrPC or Section 193(9) needs to
be completed within 90 days.

Framing of Charges

CrPC – Ss 211 - 228

BNSS – Ss 242(1), 250(1), 251(1)(b)

Section 242(1) of BNSS as corresponding to Section 219(1) of CrPC. Earlier, for offences of
the same kind within a span of a year given certain circumstances, a person could be
charged and tried for a maximum of ‘three’ offences at once. This limit has now been
raised to ‘five’.

If the accused wishes to be discharged in a Sessions trial as per Section 250 of BNSS
corresponding to Section 227 of CrPC, he must prefer an application for the same within
60 days of committal.

Even the charges under Sessions Trial and Magistrate Trial in warrant cases now need to be
framed within 60 days of first hearing on charge as per the addition to Section 251(1)(b).

Trial

CrPC – Ss 229 - 235, 238 - 249, 251 - 257, 260 - 264, 300, 309, 311, 313, 315, 319

BNSS – Ss 254’s proviso, 262(1), 263(1), 269(7), 272, proviso to 274, 283(1) and (2), 316(4)’s
proviso, 346(2), 398 (witness protection scheme), 530

[refer to the table]

Judgment and Sentencing

CrPC – Ss 353 - 354, 362 - 363, 366 - 368

BNSS – Ss 258(1), 392

As per Section 258 of BNSS corresponding to Section 235 of CrPC, after completion of
arguments, a judgment of acquittal or conviction by Session Court has to be given within
30 days which can be extended to 60 days only by giving special reasons.

As per Section 392(1) of BNSS or Section 353(1) of CrPC, judgment in every trial has to be
pronounced within 45 days of termination of trial. The said judgment needs to be uploaded
online within 7 days of pronouncement by the addition of a proviso to Section 392(4) of
BNSS or Section 353(4) of CrPC.