5.1.2 Criminal procedure under BNSS and BSA, rights of the accused and legal aid

Explained

1. FIR and investigation.

• FIR (BNSS 173): information about a cognizable offence must be recorded. Lalita Kumari (2013): registration is compulsory when the information discloses a cognizable offence.
• BNSS adds zero FIR (recorded whatever the police station's area, then transferred) and e-FIR (to be signed within 3 days). For offences punishable with 3 to 7 years, a preliminary enquiry of up to 14 days is allowed with a senior officer's permission.
• The informant gets a free copy of the FIR; victims are to be told of the progress of investigation within 90 days (BNSS 193).
• Non-cognizable information: entered in the station diary; police investigate only with a magistrate's order (CrPC 155 → BNSS 174).

2. Arrest.

• Without warrant (BNSS 35): for cognizable offences. For offences punishable with up to 7 years, the officer must be satisfied that arrest is necessary (to prevent another offence, for proper investigation, to stop tampering with evidence or threats to witnesses, to secure attendance) and record reasons; otherwise he issues a notice of appearance (BNSS 35(3)).
• Arnesh Kumar v State of Bihar (2014): no automatic arrest in offences up to 7 years; police must follow the checklist and magistrates must check it before remand. Joginder Kumar (1994): the power to arrest is not the same as the justification to arrest.
• BNSS 35(7), new: no arrest without the permission of an officer of at least DSP rank for an offence punishable with less than 3 years if the person is infirm or over 60.
• Women: arrest only by or in the presence of a woman officer; no arrest after sunset and before sunrise except in exceptional cases with the prior permission of a JM first class (CrPC 46(4) → BNSS 43(5)).
• Handcuffs: Prem Shankar Shukla (1980): handcuffing is the exception, only where there is real danger of escape. BNSS 43(3) now allows handcuffs for habitual or repeat offenders, escapees, and persons accused of organised crime, terrorism and some other grave offences.
• D.K. Basu (1997) guidelines, mostly written into the Code in 2008 (CrPC 41B–41D, 50A → BNSS 36–38, 48): police wear name tags; a memo of arrest signed by a witness and the arrested person; a relative or friend informed; the arrestee told of this right; medical examination (every 48 hours in custody, as per the guidelines); the right to meet an advocate during interrogation, though not throughout; arrest details displayed at the district police control room.

3. Rights of the arrested person (beyond Article 22, see POL-FR-09).

4. Remand (CrPC 167 → BNSS 187).

• When investigation cannot finish in 24 hours, the police send the accused to the nearest Judicial Magistrate with the case diary.
• The magistrate may order police custody or judicial custody (jail).
• Police custody: 15 days at most in all. Under the CrPC this had to be within the first 15 days (CBI v Anupam Kulkarni, 1992). Under the BNSS the 15 days may be taken in parts at any time within the first 40 days (60-day cases) or 60 days (90-day cases).
• Overall limit: 90 days where the offence is punishable with death, life imprisonment or at least 10 years; 60 days for other offences. If the charge-sheet is not filed in time, the accused gets default bail on furnishing bail (an "indefeasible" right).
• An Executive Magistrate may authorise up to 7 days when no judicial magistrate is available.
• Remand is not routine: the magistrate must check that the arrest was legal and the grounds sufficient.

5. Confessions and self-incrimination.

• Confession to police: inadmissible (IEA 25 → BSA 23(1)). Confession in police custody: inadmissible unless made before a magistrate (IEA 26 → BSA 23(2)).
• Exception (discovery): the part of a statement in custody that leads to the discovery of a fact can be proved (IEA 27 → proviso to BSA 23(2)).
• A confession caused by inducement, threat or promise is irrelevant (IEA 24 → BSA 22).
• Recording (BNSS 183): by a Magistrate of the district where the information was registered (CrPC 164 said a Metropolitan or Judicial Magistrate), never by a police officer, even one given a magistrate's powers. The magistrate warns the person that he need not confess and that it may be used against him, and records it only if voluntary; if the person says before recording that he will not confess, the magistrate may not send him to police custody. BNSS allows audio-video recording in the presence of the accused's advocate.
• Article 20(3): Nandini Satpathy (1978): the right to silence applies at police interrogation too. Kathi Kalu Oghad (1961): giving fingerprints, handwriting, signature specimens is not testimonial compulsion. Selvi (2010): narco-analysis, polygraph and brain-mapping without consent violate Articles 20(3) and 21. BNSS 349 lets a magistrate order specimen signatures, handwriting, finger impressions and voice samples.

6. Trial in camera.

• BNSS 366(2): inquiry and trial of rape and related sexual offences in camera, by a woman judge or magistrate as far as practicable; publication of proceedings only with the court's permission, keeping the victim's identity secret (IPC 228A → BNS 72).
• Also in camera: POCSO trials (Section 37). Under civil laws, family and matrimonial matters may be heard in camera, but the criminal-procedure rule the paper asks about is the rape rule.

7. Bail.

• Bailable offence (BNSS 478): bail is a right; police or court must release on bail.
• Non-bailable (BNSS 480): bail is the court's discretion. Women, children under 16, and the sick or infirm get special consideration even in serious offences.
• Anticipatory bail (BNSS 482): only the High Court or Court of Session, before arrest. Gurbaksh Singh Sibbia (1980): a wide, liberal power.
• Undertrial limit (CrPC 436A, 2005 → BNSS 479): an undertrial who has served half the maximum sentence must be released on bond; a first-time offender after one-third. Not for offences punishable with death or life. The jail superintendent must apply.
• Principle: "bail is the rule, jail the exception": State of Rajasthan v Balchand (1977) (Justice V.R. Krishna Iyer); restated in Satender Kumar Antil v CBI (2022).

8. Detention under special laws (crime-control laws with longer pre-trial custody and stricter bail).

9. Plea bargaining and victims.

• Plea bargaining: CrPC Chapter XXIA (265A–265L), added in 2005 (in force 2006) → BNSS 289–300. Allowed for offences punishable with less than 7 years; not for offences affecting the socio-economic condition of the country or committed against a woman or a child under 14. The BNSS sets a 30-day window after framing of charge to apply.
• Victims: compensation by the convicting court (CrPC 357 → BNSS 395) and the State victim compensation scheme (CrPC 357A → BNSS 396); free first aid and treatment of victims by all hospitals (CrPC 357C → BNSS 397).

10. Legal aid.

• Article 39A (DPSP): equal justice and free legal aid. M.H. Hoskot (1978) and Hussainara Khatoon (1979) read free legal aid into Article 21.
• Khatri v State of Bihar (1981) (Bhagalpur blindings): the State's duty begins when the accused is first produced before the magistrate, who must tell him of the right. Suk Das (1986): a trial without informing the accused of legal aid is vitiated, even if he did not ask.
• Sheela Barse v State of Maharashtra (1983): women suspects in separate lock-ups guarded by women constables; the nearest legal aid committee to be informed of arrests; legal aid for poor prisoners.
• BNSS 341 (CrPC 304): legal aid at State expense to an accused without means, in Sessions trials (the State may extend it to other courts).
• Legal Services Authorities Act, 1987, Section 12: those entitled include SC / ST members; victims of trafficking or begar; women and children; persons with disabilities; victims of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; industrial workmen; persons in custody (including protective homes, juvenile homes and psychiatric hospitals); and persons below the notified income limit.
• NALSA is the supreme authority under the Act (structure in POL-JU-07). Its Legal Aid Defense Counsel System (2022) sets up full-time, public-defender-style offices for criminal cases in districts.