A Critical Examination of the Bharatiya Nagarik Suraksha Sanhita, 2023: Structural Shifts and Substantive Anomalies

By Mentor R.K. Samyal, Advocate

Author’s Note

This article continues the analytical discourse initiated in my earlier piece titled “Is the Legislative Measure of Repeal and Substitution of the Three Existing Major Penal Statutes an Inevitable Desideratum?” Upon deeper scrutiny, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) reveals both commendable advancements and notable infirmities. While some provisions reflect modernization in tune with evolving technology and judicial trends, others appear regressive, inconsistent, or even constitutionally questionable.

1. Structural Reorganization and Numbering Confusion

One of the foremost practical hurdles under the BNSS is the complete renumbering of sections compared to the Code of Criminal Procedure, 1973 (Cr.P.C.). This change has created widespread confusion among practitioners, academicians, and law enforcement agencies.

The exclusion of provisions relating to metropolitan areas and Metropolitan Magistrates (Sections 8, 16–19 of Cr.P.C.) further complicates cross-referencing. Apart from these deletions and minor definitional omissions, the wholesale alteration of section numbering has caused unnecessary hardship.

Observation:
Had the legislature opted for selective amendments to the Cr.P.C. instead of wholesale replacement, the legal community could have been spared the current state of interpretative chaos.

1. Deleted Provisions under the BNSS

The BNSS omits several established provisions from the Cr.P.C., the implications of which merit close attention:

1. Deletion of the Definition of “India” (Section 2(f) Cr.P.C.)
   • Observation: The omission of the definition of “India” and modification of Section 1(2) in BNSS leads to interpretative ambiguity. While it excludes certain areas, it fails to clearly state that the BNSS extends to the whole of India, a basic jurisdictional declaration that ought to have been retained.
2. Abolition of Metropolitan Areas and Magistrates
   • Observation: Removing the classification based on population density lacks clarity or justification. It may prove practically unworkable, especially in large urban jurisdictions.
3. Substitution of “Pleader” with “Advocate”
   • Observation: A welcome reform aligning terminology with the Advocates Act, 1961.
4. Deletion of “Prescribed” Definition
   • Observation: While minor, replacing “prescribed” with “specified” seems unnecessary and overly semantic.
5. Abolition of Assistant Sessions Judges
   • Observation: This is a retrograde step. Assistant Sessions Judges handle substantial workloads in many states; their removal without structural realignment may overburden the remaining judiciary.
6. Deletion of Juvenile Jurisdiction (Section 27 Cr.P.C.)
   • Observation: Likely justified due to specialized juvenile justice laws, but cross-referencing and coordination mechanisms should have been maintained.
7. Omission of Section 144A (Arms in Processions)
   • Observation: The removal of powers to prohibit arms-bearing processions is questionable given current security challenges.
8. Omission of Section 153 (False Weighing Instruments)
   • Observation: This likely reflects statutory overlap with The Standards of Weights and Measures Act, 1976.

1. New Insertions under the BNSS: Progress with Caveats

The BNSS introduces several new provisions reflecting modernization and digital adaptation:

• Audio-Video Electronic Means (Section 2(1)(a)) – Welcomed as a step towards digital justice.
• Definition of Bail and Bail Bond (Sections 2(1)(b), (d), (e)) – While inclusion is appreciated, defining “bail” merely as release without recognizing the surety component renders the definition incomplete.
• Electronic Communication (Section 2(1)(i)) – A necessary update for contemporary enforcement.
• Identification and Forfeiture of Property (Sections 86, 107) – Structurally sound, provided procedural safeguards are observed.
• Search and Seizure Recording (Section 105) – Progressive, if implemented with transparency.
• Witness Protection Scheme (Section 398) – A long-awaited and commendable provision, though practical implementation remains uncertain.
• Electronic Trials (Section 530) – Conceptually sound but must be foolproof to protect the rights of the accused.

1. Section 173: Redefining FIRs and Preliminary Enquiry – A Constitutional Setback

Section 173 of the BNSS, purportedly corresponding to Section 154 of the Cr.P.C., redefines the mechanism for registration of First Information Reports (FIRs).

Critical Observation 1:

The section mandates registration of FIRs “irrespective of area,” allowing, for instance, a Punjab police station to register a case concerning an offence committed in Kerala. This impractical provision disregards jurisdictional logic. A better approach would have been to require registration followed by transfer to the competent jurisdiction.

Critical Observation 2:

The introduction of preliminary enquiry under Section 173(3) violates the Constitution Bench ruling in Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1, which made FIR registration mandatory where a cognizable offence is disclosed. Expanding preliminary enquiries to all cases punishable between 3 to 7 years dilutes that constitutional safeguard, enabling police discretion susceptible to misuse.

The recognition of a “judge-made doctrine” of preliminary enquiry as statutory law is both regressive and dangerous.

1. Section 187: The New Remand Regime – A Threat to Liberty

Section 187 of the BNSS corresponds to Section 167 of the Cr.P.C. but departs substantially in spirit and text.

The new clause permits police custody “at any time” during the initial 40 or 60 days of detention — a clear dilution of the long-standing constitutional safeguard limiting such custody to the first 15 days only.

Observation:
This expanded window violates Article 22(2) of the Constitution and judicial precedents including CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 and Budh Singh v. State of Punjab (2000) 9 SCC 266. The change effectively allows intermittent police custody throughout the investigation, keeping the accused under a continuous shadow of coercion.

Further, the clause allowing detention in “police station or prison” ignores the functional distinction between investigative and judicial custody, rendering it both redundant and constitutionally infirm.

1. Section 223: Pre-Cognizance Hearing – A Procedural Paradox

Section 223 introduces a mandatory hearing to the accused before cognizance is taken on a complaint — a radical deviation from established jurisprudence.

Under traditional procedure, cognizance marks the initiation of judicial application of mind, whereas the accused is heard only after commencement of proceedings. Mandating a pre-cognizance hearing creates procedural absurdity, delays justice, and risks pre-judging the matter.

Even in cases against public servants, requiring prior assertion and superior’s report adds another bureaucratic layer, contrary to the spirit of prompt adjudication.

1. Sections 250 and 262: Discharge Provisions – Misplaced Timelines

Both sections introduce a right to file a discharge petition, which in itself is welcome. However, fixing a 60-day limit from the date of commitment (Section 250) or from the date of supply of documents (Section 262) unnecessarily delays framing of charges.

Courts must now wait for the expiry of the 60-day period even in the absence of any discharge plea — defeating the principle of expeditious trial. A more pragmatic time frame of three days post-opening of the prosecution case would have been judicious.

1. Section 274: Substance of Accusation and Discharge in Summons Cases

The newly added proviso to Section 274 permits the Magistrate to discharge an accused in a summons case if the accusation appears groundless.

This is a progressive step, aligning with the judicial approach earlier adopted in Dr. Kamala Raja Ram v. Dy.S.P. (2005 (3) KLT 617) and Anandavel v. Food Inspector (2010 (3) KLT 49)*, but now given statutory recognition. The provision provides a legitimate procedural exit where no offence is made out.

Conclusion

The Bharatiya Nagarik Suraksha Sanhita, 2023 represents an ambitious overhaul of procedural criminal law. However, its structural inconsistencies, constitutional infirmities, and procedural redundancies risk undermining the very efficiency and fairness it purports to advance.

While provisions like electronic trials, witness protection, and digital evidence reflect modern sensibilities, regressive measures such as extended police custody, pre-cognizance hearings, and preliminary enquiry mechanisms threaten to erode procedural safeguards painstakingly evolved through decades of jurisprudence.

The BNSS, in its current form, calls for immediate judicial scrutiny and legislative reconsideration to ensure that reform does not come at the cost of fundamental liberty.

Disclaimer

The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent legal analysis of the Bharatiya Nagarik Suraksha Sanhita, 2023. They do not necessarily represent the views of any institution, organization, or forum with which the author is associated. This article is intended purely for academic and informational purposes and should not be construed as legal advice.