Criminal procedure: meaning, background and salient features of the BNSS

1. Meaning and importance of criminal procedure

Criminal procedure is the body of rules by which the State investigates offences, collects evidence, secures the attendance of the accused, tries him, passes sentence and corrects errors on appeal or revision. It is adjective law: it has no purpose of its own apart from enforcing the substantive law. Section 4 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (old s.4 CrPC) says so directly: all offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried and otherwise dealt with according to the Sanhita, and offences under other laws are dealt with in the same way, subject to any special procedure those laws lay down. Section 5 (old s.5) saves special and local laws.

Its importance lies in three things:

• It protects the innocent. The rules on arrest, remand, bail and charge exist so that a person is not detained or punished without a fair process.
• It makes punishment possible. A substantive offence is useless without machinery for investigation and trial; the police, prosecution and courts are organised by the Sanhita.
• It balances the interests of the State, the accused and the victim. The BNSS gives the victim a statutory place: a defined status (s.2(1)(y)), a free copy of the FIR (s.173(2)), progress reports on investigation (s.193(3)(ii)), a right of hearing before withdrawal of prosecution (s.360) and a right of appeal (proviso to s.413).

2. Background: from the 1861 Code to the BNSS

The first uniform Code of Criminal Procedure was enacted in 1861, followed by Codes of 1872, 1882 and 1898. The 1898 Code lasted until the Code of Criminal Procedure, 1973, which was based on the Forty-first Report of the Law Commission (1969) and came into force on 1 April 1974. The 1973 Code separated the judiciary from the executive (Judicial and Executive Magistrates), abolished the jury, and introduced anticipatory bail.

The Code was amended many times, notably in 2005 (plea bargaining) and in 2013 and 2018 after amendments to the law on sexual offences. In 2023 Parliament replaced the three colonial-era criminal statutes. The BNSS (Act 46 of 2023) received assent on 25 December 2023 and came into force on 1 July 2024, along with the Bharatiya Nyaya Sanhita and the Bharatiya Sakshya Adhiniyam. Section 531 repeals the CrPC but provides that any appeal, application, trial, inquiry or investigation pending on the date the Sanhita came into force continues under the old Code. The syllabus describes the change as a shift of attention “from penalty to nyaya”.

3. Salient features of the BNSS

The BNSS has 531 sections in 39 chapters (the CrPC had 484 sections). The changes most often asked for are these:

• Technology. New definitions of “audio-video electronic means” (s.2(1)(a)) and “electronic communication” (s.2(1)(i)). Summons may be issued and served electronically (ss.63, 64, 70(3)); FIR may be given by electronic communication (s.173(1)); searches and seizures must be recorded by audio-video means (s.105); and s.530 allows all trials, inquiries and proceedings to be held in electronic mode.
• Forensics. For offences punishable with seven years or more, a forensic expert must visit the crime scene and the process must be videographed (s.176(3)).
• Timelines. Preliminary enquiry within 14 days (s.173(3)); sanction to prosecute a public servant deemed granted if not decided within 120 days (s.218(1)); copies to the accused within 14 days (s.230); committal within 90 days of cognizance (s.232); discharge application within 60 days and charge within 60 days of the first hearing (ss.250, 251, 262, 263); judgment within 30 days of arguments, extendable to 45 (s.258); plea bargaining application within 30 days of charge (s.290).
• Zero FIR and e-FIR. Information of a cognizable offence may be given “irrespective of the area where the offence is committed” (s.173(1)).
• Trial in absentia of a proclaimed offender (s.356), and attachment of the property of a proclaimed person, including abroad (ss.85, 86).
• Courts. Metropolitan Magistrates and Assistant Sessions Judges no longer appear in the scheme of courts (s.6). Magistrates may sentence to community service (s.23).
• Undertrials. A first-time offender who has undergone one-third of the maximum sentence must be released on bond (proviso to s.479(1)).
• Victims. Defined in s.2(1)(y) and given rights to information, hearing and appeal.
• Directorate of Prosecution in every State (s.20).

4. Constitutional dimensions

Procedure is where the Constitution meets the citizen most directly. The BNSS must be read with the following guarantees.

• Article 21. No person shall be deprived of life or personal liberty except according to procedure established by law. In Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, the Court held that the procedure must be fair, just and reasonable, not arbitrary, fanciful or oppressive, and that Articles 14, 19 and 21 are to be read together. Speedy trial was then read into Article 21 in Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 INSC 34, where undertrial prisoners had been in jail for periods longer than the maximum sentence for their offences. Section 479 BNSS, the timelines and free legal aid at State expense (s.341) all give effect to this line.
• Article 22(1) and (2). An arrested person must be told the grounds of arrest, has the right to consult a lawyer of his choice, and must be produced before a Magistrate within 24 hours. The BNSS implements these in ss.47, 38 and 58.
• Article 20(2) (double jeopardy) is reflected and extended in s.337.
• Article 20(3) (no compulsion to be a witness against oneself). In Nandini Satpathy v. P.L. Dani, 1978 INSC 80, (1978) 2 SCC 424, the Court held that the protection extends to the stage of police interrogation, and s.180(2) BNSS allows a witness to refuse answers that would expose him to a criminal charge.
• Article 14 requires that classification of offences and procedures (summary trial, special courts) rest on intelligible differences.
• Article 39A (free legal aid) is carried into s.341.
• Fair trial. In Zahira Habibullah H. Sheikh v. State of Gujarat, 2004 INSC 256, (2004) 4 SCC 158 (the Best Bakery case), the Court ordered a retrial outside the State, holding that a fair trial is the right of the victim and society as much as of the accused.

The constitutional points also run the other way. Some new provisions raise questions under Article 21 that an answer may mention briefly: trial in absentia (s.356) against the right to be present and defended; handcuffing (s.43(3)) against the dignity cases; and police custody now sought at any time within the first 40 or 60 days (s.187(2)) rather than only in the first 15.

How this is examined

Expect “Explain the constitutional dimensions of BNSS, 2023” (January 2026) or “Discuss the background and salient features of the BNSS.” For the first, organise the answer Article by Article (21, 22, 20(2), 20(3), 14, 39A), name the BNSS section that carries each one, and close with the new provisions open to challenge. For the second, give a short history (1861, 1898, 1973, 2023), then the features under headings: technology, forensics, timelines, victims, Zero FIR, trial in absentia, community service. A short note may ask for “salient features” alone; use the bullet list in section 3.