Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Major Changes Introduced by the BNSS, 2023: Arrest, Police Custody, Investigation, Trial Timelines, Bail and Sentencing
A provision of the Bharatiya Nagarik Suraksha Sanhita falls into one of three categories. It may reproduce a provision of the Code of Criminal Procedure, 1973 with a new number and no change of substance, which is true of the majority. It may exist for the first time, with nothing corresponding to it in the older Code. Or it may correspond to a provision of the 1973 Code but say something different. This topic deals with the third category, the changes, and takes them in the order in which they arise in a criminal case. The second category, the genuinely new provisions, is treated in the topic that follows.
The distinction matters in practice. Where a provision has been changed, the older case law survives only so far as the altered text permits, and the extent of that survival is the question that is being litigated across the country. Where a provision is merely renumbered, the older case law applies without qualification.
Figure 1: The major changes grouped by the stage of the case at which they arise
1. Changes in the Court Structure and in Sentencing Power
1.1 The criminal courts
Section 6 of the Sanhita lists four classes of criminal court in every State: Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class and Executive Magistrates. Three institutions recognised by the 1973 Code do not appear. The metropolitan area and the Metropolitan Magistrate are gone, so that a Judicial Magistrate carries the same designation in Mumbai as in a district town. The Assistant Sessions Judge, who under section 28(3) of the CrPC could pass a sentence of up to ten years, is gone, and a Court of Session now consists of the Sessions Judge and Additional Sessions Judges. The Judicial Magistrate of the third class is gone.
1.2 Sentencing powers of Magistrates
Court | Under section 29, CrPC 1973 | Under section 23, BNSS 2023 |
|---|---|---|
Chief Judicial Magistrate | Any sentence authorised by law except death, imprisonment for life, or imprisonment exceeding seven years | Unchanged |
Judicial Magistrate of the first class | Imprisonment up to three years, or fine up to ten thousand rupees, or both | Imprisonment up to three years, or fine up to fifty thousand rupees, or both, or community service |
Judicial Magistrate of the second class | Imprisonment up to one year, or fine up to five thousand rupees, or both | Imprisonment up to one year, or fine up to ten thousand rupees, or both, or community service |
Consecutive sentences at one trial | Aggregate not to exceed twice the punishment the court may inflict for a single offence; no absolute ceiling in years | The same, and in no case a term longer than twenty years (proviso to section 25) |
The Explanation to section 23 defines community service as work which the court may order a convict to perform for the benefit of the community, for which he is not entitled to any remuneration. It operates together with the Bharatiya Nyaya Sanhita, which prescribes community service as a punishment for a small group of petty offences. Its introduction is the first addition to the list of punishments available in Indian criminal law in a very long time.
2. Changes in Arrest and in the Treatment of the Arrested Person
BNSS | Change from the CrPC | Effect |
|---|---|---|
35(7) | New sub-section | No arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with less than three years and the person is infirm or above sixty years of age |
36 | Expands CrPC 41B | The arresting officer must bear an accurate, visible and clear identification of his name; the memorandum of arrest must be attested by a family member or a respectable member of the locality and countersigned by the arrested person |
37 | Expands CrPC 41C | A police control room in every district and at State level, and a designated officer not below the rank of Assistant Sub-Inspector in every district and police station maintaining the names, addresses and offences of persons arrested, displayed prominently including in digital mode |
43(3) | New sub-section | Handcuffs may be used, having regard to the nature and gravity of the offence, for a habitual or repeat offender, an escapee, or a person accused of organised crime, a terrorist act, a drug related crime, illegal arms, murder, rape, acid attack, counterfeiting, human trafficking, a sexual offence against a child or an offence against the State |
43(5) | Carried forward with the requirement of a written report | Save in exceptional circumstances no woman may be arrested after sunset and before sunrise; where such circumstances exist the woman police officer must obtain the prior permission of a Magistrate of the first class by written report |
48 | Expands CrPC 50A | Information of the arrest and of the place where the arrested person is held must go to a relative, friend or nominated person and to the designated police officer in the district |
53 | Expands CrPC 54 | Medical examination of every arrested person by a government medical officer soon after arrest, with a copy of the report to the arrested person or his nominee; a female is examined by or under the supervision of a female practitioner |
56 | Carried forward from CrPC 55A | A duty on the person having custody to take reasonable care of the health and safety of the accused |
⚠ Section 43(3) and the case law on handcuffs The Supreme Court held in Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and in Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 that handcuffing is prima facie inhuman, unreasonable and arbitrary, that it may be resorted to only where there is clear and present danger of escape, and that the reasons must be recorded and are subject to judicial scrutiny. Section 43(3) now provides a statutory list of categories in which handcuffs may be used. Whether the provision displaces the constitutional standard, or must be read subject to it so that the recording of reasons and the requirement of necessity survive, is an open question. The safer reading is that a statutory permission does not remove the requirement under Article 21 that the restraint be no more than necessary, which is itself expressed in section 46 of the Sanhita. |
3. The Change in Police Custody: Section 167 CrPC and Section 187 BNSS
This is the single most consequential change in the Sanhita, and the one that has produced the most litigation. The total period of detention during investigation is unchanged at ninety days where the offence is punishable with death, imprisonment for life or imprisonment of not less than ten years, and sixty days otherwise, with the right to default bail on the expiry of that period. The maximum period of police custody is also unchanged at fifteen days. What has changed is the window within which those fifteen days may be taken.
Figure 2: The custody window under the two provisions
Section 187, BNSS 2023: the operative words Section 187(2) empowers the Magistrate to authorise the detention of the accused otherwise than in the custody of the police beyond the period of fifteen days, if satisfied that adequate grounds exist. Section 187(3) provides that the Magistrate may authorise the detention of the accused person beyond the period of fifteen days if there are adequate grounds for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and sixty days where the investigation relates to any other offence. The critical expression is that the fifteen days of custody of the police may be sought in whole or in part at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be. |
📖 Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141 Facts: The accused was arrested and remanded. The question was whether, after the first fifteen days of remand had expired and the accused had been committed to judicial custody, a Magistrate could later authorise police custody on the ground that further interrogation had become necessary, and whether a fresh period of police custody could be claimed on the arrest of the same accused in respect of a different offence arising out of the same transaction. Held: The Supreme Court held that under section 167(2) of the Code of Criminal Procedure, 1973 detention in police custody can be authorised only during the first fifteen days from the date of production before the Magistrate. After that period the Magistrate may authorise detention only in judicial custody, and cannot send the accused back to police custody, however necessary further interrogation may appear. A different offence arising out of the same transaction does not create a fresh entitlement to police custody. Ratio: Under the Code of Criminal Procedure, police custody was confined to the opening fifteen days of remand. After day fifteen the accused was beyond the reach of custodial interrogation for the remainder of the investigation. |
That rule had been questioned before the Sanhita was enacted. In Central Bureau of Investigation v. Vikas Mishra the Supreme Court observed that an accused should not be able to defeat police custody by artifice, and in V. Senthil Balaji v. State, decided in August 2023, the Court took the view that the fifteen-day period could be spread over the whole period of investigation and referred the correctness of Anupam J. Kulkarni to a larger Bench. Section 187 of the Sanhita, drafted in the same period, adopted that position by statute.
Question | Under section 167, CrPC | Under section 187, BNSS |
|---|---|---|
Maximum police custody | Fifteen days | Fifteen days, unchanged |
When police custody may be taken | Only within the first fifteen days of remand | In whole or in part at any time within the first forty days where the total period is sixty days, and within the first sixty days where it is ninety days |
Return to police custody after judicial custody | Not permissible: Anupam J. Kulkarni | Permissible within the window, subject to the aggregate of fifteen days and to the satisfaction of the Magistrate |
Total detention during investigation | Sixty or ninety days | Unchanged |
Default bail on expiry | Available, and an indefeasible right if exercised before the report is filed | Unchanged in terms |
The Supreme Court has since confirmed the reading of section 187 that the text invites. The aggregate remains fifteen days; police custody may be granted in separate spells; and the outer boundary of the window is day forty in a sixty-day case and day sixty in a ninety-day case. A High Court direction fixing an absolute outer limit on custody that would foreclose a later application under section 187(2) has been held unsustainable.
⚠ Why the change is contested The Anupam J. Kulkarni rule created a clear boundary. After day fifteen the accused knew that custodial interrogation was over and could apply for bail without facing recurring applications for police custody. Section 187 removes that boundary for the first forty or sixty days. The argument for the change is that investigations do not proceed in a predictable sequence: a recovery, a fresh lead or a new co-accused may emerge after day fifteen, and an absolute bar prevents the agency from acting on it. The argument against is that the possibility of a further spell of police custody hanging over the accused for forty or sixty days is itself a pressure of a kind that Article 21 was understood to have removed, and that it may affect the consideration of bail applications during that window. |
4. Changes in Investigation
BNSS | Corresponds to | Change |
|---|---|---|
173(1) | CrPC 154(1) | Information about a cognizable offence may be given irrespective of the area where the offence is committed, which gives statutory form to the Zero FIR, and may be given by electronic communication, taken on record on being signed within three days |
173(2) | CrPC 154(2) | A copy of the information is to be given free of cost to the informant or the victim |
173(3) | No counterpart | For a cognizable offence punishable with three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, conduct a preliminary inquiry within fourteen days to ascertain whether a prima facie case exists |
175(3) | CrPC 156(3) | A Magistrate ordering investigation must now do so after considering the application supported by an affidavit and after making such inquiry as he thinks necessary, and after considering the submissions of the police officer on the request |
176(1) proviso | CrPC 157(1) proviso | The statement of a victim of a sexual offence is to be recorded by a woman police officer, and in specified offences the statement may be recorded by audio-video electronic means |
176(3) | No counterpart | Where the offence is punishable with seven years or more, a forensic expert shall visit the scene to collect forensic evidence and shall cause the process to be videographed |
180 | CrPC 161 | Statements of witnesses may be recorded by audio-video electronic means |
183 | CrPC 164 | Confessions and statements may be recorded by audio-video electronic means; the statement of a victim of specified offences is recorded by a Judicial Magistrate, and may be recorded on any audio-video electronic means including a mobile phone |
184 | CrPC 164A | The medical examination report of a victim of rape must be forwarded to the investigating officer within seven days |
193(3)(ii) | CrPC 173 | The police must inform the informant or victim of the progress of the investigation within ninety days, including by electronic communication |
193(9) | CrPC 173(8) | Further investigation after the filing of a report must be completed within ninety days, extendable with the permission of the court |
349 | CrPC 311A | The Magistrate’s power to order specimen signatures or handwriting now extends to finger impressions and voice samples, with a proviso requiring that the person has been arrested in connection with the case |
4.1 The preliminary inquiry and Lalita Kumari
Section 173(3) is a change of principle and not of detail. A Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh held that the registration of a first information report is mandatory where the information discloses a cognizable offence, and that a preliminary inquiry is permissible only where it does not. Section 173(3) permits a preliminary inquiry in a band of offences where the information does disclose a cognizable offence, subject to the permission of a Deputy Superintendent of Police and a fourteen-day limit.
Three readings are advanced. The first is that Parliament has displaced Lalita Kumari for that band, as it is entitled to do, since the decision construed a statute rather than the Constitution. The second is that the decision rested on Article 21 and on the rights of the victim, so that section 173(3) must be read narrowly, as conferring a discretion to be exercised only where the information is of doubtful character. The third is that the provision is permissive rather than mandatory, so that an officer who registers immediately commits no illegality and the question arises only where he does not. The matter is unsettled, and the discipline in this area is to state the competing readings rather than to assert one.
5. Changes in Cognizance, Sanction and the Approach to Trial
BNSS | Corresponds to | Change |
|---|---|---|
218 | CrPC 197 | Sanction for the prosecution of a Judge, Magistrate or public servant must be decided within one hundred and twenty days of receipt of the request; if no decision is taken, the sanction is deemed to have been accorded |
222 | CrPC 199 | Prosecution for defamation, now read with the Bharatiya Nyaya Sanhita, under which community service is a punishment for the offence |
223 proviso | CrPC 200 | On a complaint, the Magistrate shall not take cognizance without giving the accused an opportunity of being heard |
230 | CrPC 207 | Copies of the police report, the first information report, statements, confessions and other documents must be supplied within fourteen days of the production or appearance of the accused, and to the victim as well as the accused |
232 | CrPC 209 | Committal proceedings must be completed within ninety days of taking cognizance, extendable by the Magistrate up to one hundred and eighty days for reasons recorded in writing |
250 | CrPC 227 | An application for discharge in a Sessions case must be made within sixty days of the date of committal |
251 | CrPC 228 | The charge in a Sessions trial is to be framed within sixty days of the first hearing on charge; section 251(2) permits the accused to appear through electronic means |
262 and 263 | CrPC 239 and 240 | In a warrant case on a police report, discharge is to be applied for within sixty days of the supply of copies, and the charge framed within sixty days of the first hearing on charge |
258 | CrPC 235 | Judgment of acquittal or conviction in a Sessions trial within thirty days of the completion of arguments, extendable to forty-five days for reasons recorded |
283 | CrPC 260 | The property-value threshold for a mandatory summary trial of theft and related offences is raised from two hundred rupees to twenty thousand rupees, and discretionary summary trial is extended to offences punishable with up to three years |
346 | CrPC 309 | Inquiries and trials are to proceed day to day, and a party may be granted not more than two adjournments |
355 | CrPC 317 | Inquiry or trial in the absence of the accused; the Explanation clarifies that personal attendance includes attendance through audio-video electronic means |
392(4) | CrPC 353 | A copy of the judgment is to be uploaded on the portal of the court within seven days of pronouncement, as far as practicable |
5.1 The deemed sanction in section 218
The requirement of sanction under section 197 of the 1973 Code protected a public servant against a prosecution for an act done in the discharge of official duty, and the absence of a time limit had long been criticised as a means of indefinite delay. The first proviso to section 218(1) fixes one hundred and twenty days and provides that the sanction is deemed to have been accorded if no decision is taken within that period.
The change is significant for two reasons. It converts what had been a matter of executive discretion into a matter of time. And it reverses the default: silence, which previously meant that the prosecution could not proceed, now means that it may. The provision is recent enough that its interaction with the earlier case law is still being worked out, and at least one decision under section 197 of the CrPC has proceeded on the footing that there is no concept of deemed sanction in Indian law, which is accurate as to the repealed Code and no longer accurate as to the Sanhita.
5.2 The hearing before cognizance in section 223
The proviso to section 223(1) provides that a Magistrate shall not take cognizance on a complaint without giving the accused an opportunity of being heard. Nothing in section 200 of the 1973 Code required this. It introduces an adversarial element at a stage that had been ex parte, and its practical consequences are significant: the complaint process now involves notice to the proposed accused before cognizance, which affects the timing of proceedings and the possibility of the accused seeking to forestall them. Its application to complaints under special statutes, and to proceedings begun before 1 July 2024, has been the subject of early litigation.
6. Changes in Bail
Figure 3: Section 436A of the CrPC and section 479 of the Sanhita compared
The framework of bail is carried forward. Section 478 corresponds to section 436, section 480 to section 437 and section 483 to section 439. Anticipatory bail, which was section 438, becomes section 482. The substantive change is in the release of undertrial prisoners.
Element | Section 436A, CrPC 1973 | Section 479, BNSS 2023 |
|---|---|---|
General rule | Release on personal bond after detention for one half of the maximum period of imprisonment specified for the offence | Retained |
First-time offender | No separate provision | Release on bond after detention for one third of the maximum period, where the person has never been convicted of any offence |
Who moves the court | In practice the prisoner or his counsel | The Superintendent of the jail shall make an application to the court for release once the period is complete |
Excluded offences | Offences punishable with death | Offences punishable with death and offences punishable with imprisonment for life |
Multiple cases | No express exclusion | The benefit does not apply where an investigation, inquiry or trial in more than one offence, or in multiple cases, is pending against the person |
Overall cap | No detention beyond the maximum period of imprisonment specified for the offence | Retained |
The one-third rule is a real widening of the entitlement for a person with no previous conviction, and the duty cast on the Superintendent of the jail addresses the practical problem that the benefit under section 436A was frequently not claimed because the prisoner did not know of it. The Ministry of Home Affairs has written to the States urging implementation. Against that, the exclusion of cases where an investigation, inquiry or trial in more than one offence is pending is a substantial narrowing, because a charge sheet commonly lists several offences arising out of a single transaction. Whether the exclusion is directed at multiple cases or extends to multiple offences in one case is the question on which the practical reach of the section turns.
7. Changes After Conviction
BNSS | Corresponds to | Change |
|---|---|---|
395 | CrPC 357 | Order to pay compensation, retained |
396 | CrPC 357A | Victim compensation scheme, now to be prepared by the State Government in coordination with the Central Government |
397 | CrPC 357B and 357C | Free first aid or medical treatment of victims of specified offences at all hospitals |
413 to 435 | CrPC 372 to 394 | Appeals, retaining the victim’s right of appeal against acquittal, conviction for a lesser offence or inadequate compensation |
473 | CrPC 432 | Power to suspend or remit sentences, with new restrictions: a specified minimum period must be undergone before remission in cases where the sentence was commuted from death or where the offence was punishable with death |
479 | CrPC 436A | Release of undertrial prisoners, as set out above |
— (section 472) | No counterpart | A statutory procedure and timeline for mercy petitions in death sentence cases |
8. Key Takeaways
The position stated shortly 1. Section 6 removes the Metropolitan Magistrate; section 8 removes the Assistant Sessions Judge; the Judicial Magistrate of the third class is also gone. 2. Section 23 raises the fine ceilings for Magistrates to fifty thousand and ten thousand rupees and adds community service; the proviso to section 25 caps consecutive sentences at twenty years. 3. Section 35(7) requires the permission of a Deputy Superintendent of Police to arrest an infirm person or one above sixty in an offence punishable with less than three years; section 53 makes medical examination of every arrested person mandatory. 4. Section 187 retains the fifteen-day cap on police custody but permits it to be taken in whole or in part within the first forty days where the detention period is sixty days, and within the first sixty where it is ninety, departing from CBI v. Anupam J. Kulkarni. 5. Section 173(3) permits a preliminary inquiry of fourteen days in offences punishable with three years or more but less than seven, which sits uneasily with Lalita Kumari. 6. Section 218 requires a decision on sanction within one hundred and twenty days, failing which the sanction is deemed granted. 7. Section 223 requires the accused to be heard before cognizance is taken on a complaint. 8. The trial timelines: documents in fourteen days (s.230), committal in ninety days (s.232), discharge application in sixty days (s.250), charge in sixty days (ss.251 and 263), judgment in thirty days extendable to forty-five (s.258), two adjournments only (s.346), judgment uploaded in seven days (s.392(4)). 9. Section 479 adds release after one third of the maximum for a first-time offender and a duty on the jail Superintendent to apply, but excludes offences punishable with life imprisonment and cases where more than one offence or case is pending. |
9. Frequently Asked Questions
Has the BNSS increased the period of police custody?
No. The maximum remains fifteen days and the total period of detention during investigation remains sixty or ninety days according to the offence. What has changed is that the fifteen days may now be taken in one or more spells at any time within the first forty or sixty days, instead of only within the first fifteen.
What is the fine that a Judicial Magistrate of the first class can impose under the BNSS?
Up to fifty thousand rupees under section 23(2), raised from ten thousand rupees under section 29(2) of the CrPC. A Magistrate of the second class may impose up to ten thousand rupees, raised from five thousand. Both may also order community service.
Is there a time limit for granting sanction to prosecute a public servant?
Yes. Under the first proviso to section 218(1), the Government must decide within one hundred and twenty days of receiving the request, and if it does not, the sanction is deemed to have been accorded.
Must the accused be heard before a Magistrate takes cognizance on a complaint?
Yes, under the proviso to section 223(1) of the Sanhita. There was no such requirement in section 200 of the CrPC.
What is the maximum period within which a judgment must be delivered under the BNSS?
In a Sessions trial, thirty days from the completion of arguments under section 258, extendable to forty-five days for reasons recorded in writing. A copy of the judgment is to be uploaded on the court’s portal within seven days of pronouncement under section 392(4).
Who can now be released under the undertrial provision?
Under section 479, a person who has undergone one half of the maximum period of imprisonment for the offence, or one third if he has never been convicted of any offence. The benefit does not apply to an offence punishable with death or imprisonment for life, or where an investigation, inquiry or trial in more than one offence or in multiple cases is pending. The Superintendent of the jail must apply to the court once the period is complete.
Related Topics
- New Features of the BNSS, 2023
- BNSS, 2023 vs Code of Criminal Procedure, 1973: Section Mapping
- Arrest under the BNSS, 2023: Sections 35 to 62
- Section 187 BNSS: Remand, Police Custody and Default Bail
- Information in Cognizable Cases: Section 173, Zero FIR and e-FIR
- Bail and Bonds under the BNSS, 2023: Sections 478 to 496