Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
BNS BNSS and BSA Interrelationship
BNS, BNSS and BSA: Interrelationship of the Three New Criminal Laws, Cross-References and How They Operate Together in a Single Case
The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 are three statutes but one system. They were drafted together, introduced together, passed together, assented to on 25 December 2023 and brought into force on 1 July 2024. Each is incomplete without the other two, and each contains cross-references that assume the other two are in operation.
The division between them is a division of questions. The Nyaya Sanhita answers what conduct is an offence and what punishment it attracts. The Nagarik Suraksha Sanhita answers how a person suspected of that conduct is investigated, tried and punished. The Sakshya Adhiniyam answers what may be placed before the court and what effect it has. Remove any one and a criminal case cannot proceed: there is no offence without the first, no machinery without the second and no proof without the third.
1. The Division of Labour
Bharatiya Nyaya Sanhita, 2023 | Bharatiya Nagarik Suraksha Sanhita, 2023 | Bharatiya Sakshya Adhiniyam, 2023 | |
|---|---|---|---|
Citation | Act 45 of 2023 | Act 46 of 2023 | Act 47 of 2023 |
Replaces | Indian Penal Code, 1860 | Code of Criminal Procedure, 1973 | Indian Evidence Act, 1872 |
Nature | Substantive | Procedural | Procedural as to the mode of proof; substantive in effect where it allocates the burden |
Question answered | What is an offence and what is the punishment? | How is the offence investigated, tried and punished? | What may be proved, how, and with what effect? |
Structure | 358 sections, 20 chapters | 531 sections, 39 chapters, two Schedules | 170 sections, 12 chapters, one Schedule |
Operation in time | Prospective; Article 20(1) | Presumptively retrospective, but pending matters saved by section 531(2)(a) | Applies to proceedings conducted after commencement, subject to its own savings |
Applies to | Conduct | Proceedings | Judicial proceedings in or before any court |
The middle statute is the connective tissue. Substantive law declares a liability but cannot impose it; the law of evidence governs proof but has no operation until a proceeding exists in which proof is required. The Sanhita creates and regulates that proceeding, which is why it is the longest of the three and why it is the statute that a practitioner uses most often.
2. The Cross-References That Tie Them Together
Figure 1: How the three statutes refer to one another
2.1 The definitional wiring
The two incorporating provisions Section 2(2), BNSS 2023. Words and expressions used herein and not defined but defined in the Information Technology Act, 2000 and the Bharatiya Nyaya Sanhita, 2023 shall have the meanings respectively assigned to them in that Act and Sanhita. Section 2(2), BSA 2023. Words and expressions used herein and not defined but defined in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have the meanings respectively assigned to them in those enactments. |
Neither the Code of Criminal Procedure, 1973 nor the Indian Evidence Act, 1872 contained anything so comprehensive. Section 2(y) of the 1973 Code imported only the Indian Penal Code, and the Evidence Act contained no incorporating provision at all. The 2023 statutes are drafted on the assumption that all three, together with the Information Technology Act, 2000, are read as one vocabulary.
The practical effect is considerable. Expressions such as “electronic record”, “computer”, “digital signature” and “electronic form” are nowhere defined in the Sanhita, yet the Sanhita uses them throughout its electronic provisions. They come in through section 2(2) from the Information Technology Act. Similarly the Sanhita does not define “document” or “dishonestly”; those come from the Bharatiya Nyaya Sanhita.
2.2 The First Schedule: where the BNS meets the BNSS
The single most important point of connection is the First Schedule to the Sanhita. It takes every offence in the Bharatiya Nyaya Sanhita and states, for each, whether it is cognizable or non-cognizable, whether it is bailable or non-bailable, the punishment, and the court by which it is triable. A second part performs the same function for offences under other laws by reference to the length of the punishment.
The definitions in section 2(1) of the Sanhita operate through that Schedule. A cognizable offence under section 2(1)(g) is one for which a police officer may arrest without warrant in accordance with the First Schedule. A bailable offence under section 2(1)(c) is one shown as bailable in the First Schedule. The Schedule is therefore not an appendix; it is the mechanism by which the substantive statute controls the procedural route.
2.3 The punishment thresholds in the BNS that drive the BNSS
A second connection operates through the quantum of punishment. A large number of procedural consequences in the Sanhita are triggered by the length of the sentence the Bharatiya Nyaya Sanhita prescribes for the offence.
Threshold in the BNS | Procedural consequence under the BNSS |
|---|---|
Punishable with death, imprisonment for life, or imprisonment exceeding two years | The case is a warrant case under section 2(1)(z) and follows Chapter XIX or Chapter XX; any other case is a summons case under section 2(1)(x) |
Punishable with less than three years, where the person is infirm or above sixty | No arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police: section 35(7) |
Punishable with three years or more but less than seven years | A preliminary inquiry of fourteen days is available with the permission of a Deputy Superintendent of Police: section 173(3) |
Punishable with imprisonment up to three years | The case may be tried summarily under section 283 |
Punishable with seven years or more | A forensic expert must visit the scene and the process must be videographed: section 176(3) |
Punishable with less than seven years, seven to under ten years, or ten years and above | Determines which officer of the Directorate of Prosecution monitors the case: section 20 |
Punishable with death, imprisonment for life, or imprisonment of not less than ten years | The period of detention during investigation is ninety days, and the police custody window is the first sixty days: section 187 |
Punishable with death or imprisonment for life | Exclusively triable by the Court of Session; committal under section 232; a death sentence requires confirmation under Chapter XXX |
Offences for which the BNS prescribes community service | The sentence can be imposed only because section 23 of the Sanhita empowers a Magistrate to award it and defines it |
The dependence runs in one direction here. A change in the punishment prescribed by the Bharatiya Nyaya Sanhita automatically changes the procedure applicable to the offence, without any amendment to the Sanhita. This is why the classification entries in the First Schedule were notified with the Sanhita and why a single entry, that relating to section 106(2) of the Bharatiya Nyaya Sanhita, was kept in abeyance.
2.4 Where the BNSS meets the BSA
The relationship between procedure and evidence is best stated as a distinction between collection and proof. The Sanhita decides what may be collected and how; the Adhiniyam decides what may be proved and with what effect. A thing lawfully collected may still be inadmissible, and a thing admissible may be worthless if collected in a way that destroys its reliability.
What the BNSS provides for | What the BSA then decides |
|---|---|
Section 183: recording of a confession or statement by a Magistrate, which may be by audio-video electronic means | Whether the confession is admissible at all, since a confession to a police officer is excluded, and what weight a judicial confession carries |
Section 180: recording of witness statements by the police | That such a statement is not substantive evidence and may be used only for the limited purposes the law allows |
Section 105: audio-video recording of search and seizure, forwarded to the Magistrate | Whether that recording is an electronic record requiring the statutory certificate before it can be proved |
Section 176(3): collection of forensic evidence by an expert | The relevancy and proof of expert opinion, and the manner in which the expert must be examined |
Section 530: proceedings, including the examination of witnesses, in electronic mode | Whether evidence so recorded satisfies the requirement that evidence be given in the presence of the accused |
Sections 94 and 106: production and seizure of documents and property, including electronic devices | Primary and secondary evidence, and the conditions on which the contents of a document may be proved |
📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 Facts: Election petitions turned on video recordings and other electronic material produced without the certificate required by section 65B(4) of the Indian Evidence Act, 1872. Earlier decisions had differed on whether the certificate was a mandatory condition of admissibility or whether the electronic record could be proved by other means. Held: The Supreme Court held that the certificate is a mandatory condition precedent to the admissibility of electronic evidence produced in secondary form, and that oral evidence in place of the certificate cannot suffice. The requirement does not apply where the original electronic record is itself produced by the owner of the device. Where a party is unable to obtain the certificate from the person in control of the device, the court may summon its production, and directions were given for the preservation of electronic records. Ratio: The collection of electronic material and its proof are governed by different rules. Lawful seizure under the procedural code does not by itself make the material provable; the conditions the law of evidence imposes must be separately satisfied. |
The principle carries directly into the new statutes. The Sanhita generates electronic material at every stage: the audio-video recording of search and seizure under section 105, the videography of forensic collection under section 176(3), the recording of statements under sections 180 and 183, and the record of proceedings conducted in electronic mode under section 530. Every one of those is an electronic record, and its proof is governed by the Bharatiya Sakshya Adhiniyam, including the certificate in the Schedule to that statute. A procedural provision that generates evidence is only as useful as the evidentiary provision that permits it to be proved.
2.5 The chain from procedure to conviction
📖 State of Punjab v. Baldev Singh, (1999) 6 SCC 172 (Constitution Bench) Facts: The accused were searched and contraband recovered without their having been informed of the right, conferred by section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to be searched in the presence of a Gazetted Officer or a Magistrate. The question referred to a Constitution Bench was the consequence of that failure on the trial and the conviction. Held: The Court held that section 50 confers a valuable right and that the person to be searched must be informed of it; failure to do so renders the recovery of the illicit article suspect and vitiates the conviction if it is based on that recovery. A conviction may not be recorded on the strength of a search conducted in breach of the requirement, although the trial itself is not invalidated and other evidence lawfully collected may still be relied on. Ratio: A breach of a procedural safeguard attached to the collection of evidence travels through the law of evidence into the substantive outcome. The link between the three statutes is not theoretical: a defect at the first stage can defeat the prosecution at the last. |
3. A Single Case Through All Three Statutes
Figure 2: One case moving through the three statutes
The worked example repays close reading, because it shows that the three statutes are not consulted in sequence but simultaneously at almost every stage. At the point of registering the first information report the officer must know what offence the Bharatiya Nyaya Sanhita creates, in order to know from the First Schedule whether it is cognizable; he must know what punishment it carries, in order to know whether section 176(3) requires a forensic expert; and he must know what the Bharatiya Sakshya Adhiniyam will require, in order to collect the material in a form capable of being proved.
4. Where the BNS Depends on the BNSS
The dependence is usually described as running from the substantive statute to the procedural one. It runs the other way as well, and in three respects.
- Community service. The Bharatiya Nyaya Sanhita prescribes community service as a punishment for a small group of offences. The punishment could not be imposed at all but for section 23 of the Sanhita, which empowers a Magistrate of the first and second class to award it and supplies the only statutory definition of what it means.
- Compounding. A number of offences under the Bharatiya Nyaya Sanhita are compoundable, but the machinery of compounding, including who may compound, with whose permission and at what stage, is in the Sanhita and not in the penal statute.
- The offences that protect the process. Chapter XXVIII of the Sanhita deals with offences affecting the administration of justice, and the substantive offences it addresses are defined in the Bharatiya Nyaya Sanhita. The two statutes here overlap rather than divide: the penal statute creates the offence and the procedural statute creates the special summary procedure by which a court may deal with it.
5. Frictions and Open Questions
⚠ Three points of friction between the three statutes The transitional mismatch. The three commenced together, but they are not applied together in every case. An offence committed before 1 July 2024 and reported afterwards is charged under the Indian Penal Code, 1860, tried under the Bharatiya Nagarik Suraksha Sanhita, 2023, and proved under the law of evidence applicable to that trial. A practitioner must be able to hold a combination of old and new statutes in one case. The preliminary inquiry and the First Schedule. Section 173(3) turns on an offence being punishable with three years or more but less than seven. Where an information discloses several offences carrying different punishments, or where the classification is contested at the threshold, the band into which the case falls is itself a question that has to be decided before the power can be exercised. Electronic material collected but not provable. The Sanhita mandates the generation of electronic records at several stages. If the certificate and custody requirements of the Bharatiya Sakshya Adhiniyam are not attended to at the time of collection, the mandated record may be unusable at trial, and the procedural obligation will have produced no evidentiary benefit. |
6. Key Takeaways
The position stated shortly 1. The BNS answers what is an offence and its punishment; the BNSS answers how it is investigated, tried and punished; the BSA answers what may be proved and with what effect. 2. All three are Acts of 2023, assented to on 25 December 2023 and in force from 1 July 2024. Simultaneous commencement was necessary because each refers to the other two. 3. Section 2(2) of the BNSS imports definitions from the Information Technology Act, 2000 and the BNS. Section 2(2) of the BSA imports from all three of the Information Technology Act, the BNSS and the BNS. 4. The First Schedule to the BNSS is the principal point of connection: it classifies every BNS offence as cognizable or non-cognizable and bailable or non-bailable, and states the court by which it is triable. 5. Punishment thresholds fixed by the BNS drive the procedure: two years for warrant cases, three to seven for preliminary inquiry, three for summary trial, seven for forensic investigation, ten for the ninety-day detention period, and death or life for a Sessions trial. 6. The BNSS governs what may be collected; the BSA governs what may be proved and with what effect. Lawful collection does not itself make material provable: Arjun Panditrao Khotkar. 7. A breach of a procedural safeguard attached to the collection of evidence can defeat the conviction that the substantive law would otherwise support: State of Punjab v. Baldev Singh. 8. Dependence runs in both directions: community service and compounding are prescribed by the BNS but can be given effect only through the machinery of the BNSS. 9. In the transition a single case may combine an offence under the Indian Penal Code with the procedure of the Sanhita, because the penal statute is chosen by the date of the act and the procedural code by what was pending on 1 July 2024. |
7. Frequently Asked Questions
What is the relationship between the BNS, the BNSS and the BSA?
They are the substantive, procedural and evidentiary components of one criminal justice system. The Bharatiya Nyaya Sanhita defines offences and punishments, the Bharatiya Nagarik Suraksha Sanhita supplies the machinery of investigation and trial, and the Bharatiya Sakshya Adhiniyam governs proof. Each contains cross-references assuming the other two are in force.
Which statute decides whether an offence is cognizable or bailable?
The First Schedule to the BNSS, which classifies every offence under the Bharatiya Nyaya Sanhita. The definitions in sections 2(1)(g) and 2(1)(c) of the Sanhita operate by reference to that Schedule, so the classification of a BNS offence is found in the procedural statute.
How does the punishment under the BNS affect the procedure under the BNSS?
Directly and at many points. More than two years makes the case a warrant case; three to under seven years permits a preliminary inquiry under section 173(3); up to three years permits a summary trial; seven years or more requires forensic investigation under section 176(3); not less than ten years attracts the ninety-day detention period under section 187; and death or life imprisonment makes the offence exclusively triable by the Court of Session.
Does the BNSS or the BSA govern electronic evidence?
Both, at different stages. The BNSS governs the collection, recording and seizure of electronic material, including section 105 on the recording of search and seizure and section 530 on proceedings in electronic mode. The BSA governs whether the resulting record is admissible and how it is to be proved, including the certificate requirement.
Can an offence under the IPC be tried under the BNSS?
Yes. Where the act was done before 1 July 2024 but nothing was pending on that date, Article 20(1) requires the charge to be under the Indian Penal Code, 1860 while the Sanhita supplies the procedure, since section 531(2)(a) saved only proceedings that were actually pending.
Which of the three statutes is used most often in practice?
The Bharatiya Nagarik Suraksha Sanhita. The substantive statute is argued principally at the framing of charge and at the close of trial, while the procedural statute is engaged at the first appearance, at every remand, at every bail application and at every adjournment.
Related Topics
- Substantive Criminal Law and Procedural Criminal Law
- Important Definitions under Section 2 of the BNSS, 2023
- Introduction to the Bharatiya Nagarik Suraksha Sanhita, 2023
- BSA, 2023 vs Indian Evidence Act, 1872: Major Changes
- Electronic Mode of Proceedings: Section 530 and the Digital Criminal Trial
- New Features of the BNSS, 2023