Major Changes Introduced by the BNSS 2023

⚠ What is often wrongly called new

Section 528, inherent powers, and section 529, continuous superintendence — identical in substance to sections 482 and 483 of the Code, only renumbered.

The zero FIR. The law always required an officer to register information disclosing a cognizable offence regardless of territorial jurisdiction; section 173 codifies the practice rather than creating it.

The preliminary enquiry. Already permitted by decided authority in a defined class of cases; section 173(3) gives it statutory form, a rank requirement and a time limit.

Video conferencing. Already held permissible for the examination of witnesses; section 530 makes it general.

And the victim’s right of appeal, which was introduced into the Code by amendment in 2009 and is carried forward by the proviso to section 413.

📖 Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688

Facts: Criminal proceedings had been stayed by interim orders which then remained in force for many years, the matters not being taken up, with the result that trials stood suspended indefinitely. The Supreme Court considered the effect of such delay and what could be done about it.

Held: The Supreme Court held that the right to a speedy trial, which flows from Article 21, is defeated as effectively by an indefinite interim order as by any other cause of delay, and that a stay which is granted and then forgotten converts a temporary measure into a permanent obstruction. The Court directed that where a High Court stays proceedings in a criminal case, it should ordinarily dispose of the matter within six months, and that such cases should be listed and monitored so that the stay does not outlive its purpose. It further observed that the systemic causes of delay — among them the inadequacy of judicial strength in relation to the institution of cases — required attention, and referred the question of the assessment of the required judge strength for study, holding that a court cannot address delay case by case while ignoring the conditions which produce it.

Ratio: Delay defeats the right to a speedy trial as effectively when caused by an indefinite interim order as by any other cause. A stay of criminal proceedings should ordinarily be disposed of within six months, and the systemic causes of delay require attention.

📖 Anil Rai v. State of Bihar, (2001) 7 SCC 318

Facts: Judgment in a criminal appeal was reserved and then delivered after a very long interval, during which the recollection of the arguments and of the evidence had inevitably faded. The Supreme Court considered the consequences of such delay and what discipline should govern the pronouncement of judgment.

Held: The Supreme Court held that an unreasonable delay between the reserving and the pronouncing of judgment is a serious matter: it impairs the confidence of the litigant, and it risks a judgment written when the impressions formed at the hearing have faded, so that the appraisal of oral evidence in particular becomes unreliable. The Court held that justice delayed in this way is justice denied, and laid down guidelines: that judgments should ordinarily be pronounced within a short and specified period of being reserved; that where a judgment is not delivered within a stated period, the parties may apply for it to be listed for pronouncement; and that where the delay becomes excessive, the matter may be placed before the Chief Justice for such directions as may be necessary, including transfer to another Bench for rehearing. The Court emphasised that the discipline exists to protect the quality of the decision as much as the patience of the parties.

Ratio: An unreasonable delay between reserving and pronouncing judgment impairs confidence and risks a decision written when the impressions of the hearing have faded. Judgments should be pronounced within a short specified period, with remedies where they are not.

⚠ Why the distinction between new and renumbered matters

Where a provision is carried forward, the whole body of decided authority on it continues to apply, and an argument built on those cases is sound.

Where a provision codifies a practice the courts had already developed, the earlier decisions remain the best guide to how it should be applied.

Where a provision is genuinely new, there is no authority on it, and it must be argued from its own language, its place in the scheme, and the mischief it addresses.

Treating a renumbered provision as new discards decades of authority that is still good. Treating a new provision as old imports reasoning that does not fit it. Both errors are common, and both are avoidable.

The position stated shortly

1. The organising theme is delay. Almost every change puts a number of days on a stage which previously had none.

2. Five provisions are entirely new: section 107 (attachment of property derived from crime), 356 (trial in absentia), 398 (witness protection), 472 (mercy petition) and 530 (electronic mode).

3. The timelines: preliminary enquiry 14 days; progress to the informant 90 days; sanction deemed granted at 120 days; documents 14 days; committal 90 days; discharge and charge 60 days; judgment 30 days, extendable to 45; and not more than two adjournments.

4. The victim is now a defined participant — a free FIR copy, her statement recorded by a Judicial Magistrate, progress within 90 days, documents, a hearing before withdrawal, a copy of the judgment, and an appeal without leave.

5. Forensics: for offences punishable with seven years or more, a forensic expert shall visit the scene, and the process shall be videographed.

6. Technology: the electronic FIR signed within three days, audio-video recording of searches, proof by a successor officer, and the general authority in section 530.

7. Changes within old provisions: remand in parts (section 187), deemed sanction (218), the accused heard before cognizance (223), the commutation ladder as minimums (474), and the one-third rule and multiple-cases bar (479).

8. What is not new: sections 528 and 529; the zero FIR; the preliminary enquiry; video conferencing; and the victim’s right of appeal, which came in by amendment in 2009.

9. Delay defeats the right to a speedy trial whether caused by an indefinite stay or by anything else, and the systemic causes require attention: Imtiyaz Ahmad.

10. And an unreasonable delay between reserving and pronouncing judgment impairs confidence and the quality of the decision alike: Anil Rai — which is the reasoning behind the new forty-five day limit in section 258.