Here is a comparative analysis of new provisions of arrest under the Bharatiya Nyay Sakshya Sanhita, 2023 replacing the former Code of Criminal Procedure of 1973.
Every arrest has a victim and an accused. Every arrest also is a relief and a pain. But is a critical part of the justice system. All arrests have to be justified and be based on evidence and pave the way for justice. It is to be scrutinised closely by all supervisory authorities accountable.
Here is a comparative analysis of new provisions of arrest under the Bharatiya Nyay Sakshya Sanhita, 2023 replacing the former Code of Criminal Procedure of 1973. Also the likely social impact.
The new safety provisions are:
* Notice of appearance before police officer clubbed and included under arrest by police without warrant.
* No one can be arrested for an offence punishable by less than three years’ imprisonment without prior permission from an officer of at least DSP rank, and if the person is infirm or over 60.
* The state government must designate a police officer of at least ASI rank in every district and police station to maintain and display information about arrested persons and their offences, both at police stations and district headquarters, including in digital format.
* A private person making an arrest must hand over the arrested individual to a police officer or the nearest police station within 6 hours. If the individual falls under provisions of S.35(1), a police officer shall take such person into custody.
* A police officer may use handcuffs during an arrest or transport to court based on the offence’s severity, particularly if the person is a habitual offender, escapee, or involved in organized crime, terrorism, drug crimes, illegal arms, murder, rape, acid attacks, counterfeiting, human trafficking, sexual offences against children, or offences against the State.
* A police officer or other person must inform the designated district police officer and the nominated persons about an arrest. The details of who was informed must be recorded in a book at the police station, as specified by state government rules.
* A registered medical practitioner may now act at the request of any police officer, including those below the rank of sub-inspector. The practitioner must promptly forward the examination report to the Investigating Officer and be registered under the National Medical Commission Act, 2019, with their name in the national or state medical register.
* If deemed necessary, a medical officer or registered medical practitioner may conduct an additional examination of a person arrested.
* Any audio-video electronic means, including but not limited to videography, can be used for identification of an arrested person if the person identifying is mentally or physically disabled.
* A person arrested without a warrant must now be presented before any magistrate’s court within 24 hours, irrespective of jurisdiction.
WHAT DO THESE CHANGES MEAN FOR A COMMON PERSON?
The changed and newly introduced provisions under the BNSS seem to make the entire procedure more officer-oriented, accountable, balanced, and accessible to the common people. This can be made out from the following:
* Requiring prior permission from an officer of DSP or higher rank for arrests in cases of offences punishable by less than three years’ imprisonment and for individuals who are infirm or over 60 ensures oversight and reduces arbitrary arrests.
* Designating a police officer of at least ASI rank in every district and police station enhances administrative accountability.
* Displaying arrest information digitally at police stations and district headquarters increases transparency and public access to police actions.
* The requirement for private persons to deliver arrested individuals to police within six hours ensures expedited processes, reducing unlawful detention risks.
* Handcuff use during arrest or transport enhances safety but requires vigilant oversight to prevent misuse.
* Mandatory notification to a designated police officer and nominated persons improves communication and transparency within the police department.
* State governments now establishing strict rules instead of discretionary forms streamlining procedures and preventing arbitrary handling of cases.
* Any police officer’s authority to request medical examinations.
* Medical practitioners promptly forwarding reports to the investigating officer benefits investigations but may pressure practitioners to expedite reporting.
* Registration under the National Medical Commission Act, 2019 ensures practitioner qualifications, potentially enhancing examination quality but requiring updated registrations.
* Requirement for practitioners to be listed in the national or state register ensures availability for timely examinations, minimizing delays.
* Permission for further examinations in rape cases aids thorough evidence collection, improving investigation quality.
* Use of audio-video electronic means simplifies recording, reducing logistical challenges and accommodating technological resources.
* Faster judicial oversight, especially in remote areas, ensures timely processing of arrests.
* Clarifying the 24-hour presentation rule across jurisdictions prevents delays in accessing judicial oversight.
THE OLD PROVISIONS UNDER THE CODE OF CRIMINAL PROCEDURE, 1973:
for benefit of recall….
* Arrest by police and notice of appearance before the police officer were two separate provisions.
* There was no requirement of prior permission from any officer for arrest for an offence punishable by less than three years’ imprisonment, and if the person is infirm or over 60.
* No provision of a designated police officer. The state governments set up control rooms in each district and at the state level. Notice boards outside these control rooms displayed the names and addresses of those arrested, along with the names and designations of arresting officers. The state police headquarters’ control room maintained a database of arrested individuals and the nature of their offences for public access.
* There was no time-bar on a private person to hand over such a person to a police officer or police station. He simply had to avoid “unnecessary delay”. If the individual falls under provisions of S.39 of CrPC, a police officer could re-arrest such a person.
* The Code of Criminal Procedure, 1973, had no provisions for handcuffs.
* The details of who was informed about the arrest of a person were recorded in a book at the police station in a form as prescribed by the state government.
* A registered medical practitioner could examine the accused at the request of a police officer not below the rank of sub-inspector and forward the examination report to the investigating officer in cases of rape.
* Medical practitioners to be registered under the Medical Council Act, 1956, with their name in the state medical register.
* Videography used for identification of an arrested person, if the person identifying is mentally or physically disabled.
* A person arrested without a warrant was presented before magistrate’s court having jurisdiction within 24 hours.
Arrest forms a very crucial part of serving justice under the criminal system. It helps prevent unlawful activities and maintain law and order. Therefore, understanding the law for lawfully restraining criminal activities becomes of utmost importance, not only for the police but also for the common people.
Knowing new laws is both a right and a responsibility.
By Kiran Bedi, supported by Prasha Bhatia, law intern with India Vision Foundation.