Reforming Criminal Justice System- Comparison Of Old And New Penal Provisions

On December 12, 2023, the Lok Sabha passed three criminal law Bills that replaced the procedural and substantive provisions of the Criminal law that were first enacted over 100 years ago by the British. With an effective date of 1st July 2024.

The new criminal law Bills are named the Bharatiya Nyaya (Second) Sanhita Bill, 2023 replacing the Indian Penal Code, 1860; the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 replacing the Criminal Procedure Code, 1973 and the Indian Evidence Act of 1872 replaced by the Bharatiya Sakshya Adhiniyam (Second) Bill, 2023.

A Quick Recap:

A comparative analysis of dynamic changes in Criminal Laws

1. Bharatiya Nyaya (Second) Sanhita, 2023 in comparison with Indian Penal Code, 1860

   Srl. No.	Major Points of Change	Analysis
   1	Offence of Mob Lynching	Incorporated as a sub specie of offence of Murder. This provision incorporates many of the Supreme Court's observations in the case of Tehseen Poonawallah vs. Union of India. However, an important pitfall is failure to identify religion as a ground of mob lynching. This lacunae has the propensity of misuse in application of the relevant provision.
   2.	Defined offence of Terrorism, abetment, harboring and conspiracy added.	A widened definition of Terrorism has been incorporated in the general law, this covers instances of crimes of financial nature such as counterfeiting of Indian currency notes and coins. It also grants discretionary power to police official at the position no lower than Superintendent of Police to decide upon invoking general law or Unlawful Activities (Prevention) Act (UAPA). There are concerns that this Section may dilute the seriousness of offence considering Terrorism is a special provision.
   3.	Replacing Sedition with Treason	One of the most significant changes brought forward by the Penal Code is the deletion of the Section 124A that was called the Prince of IPC by the Mahatma. Pursuing upon the recommendations of the Supreme Court, the new Code has deleted this Section whereby disaffection against government was punishable. However, critics have described that mere replacing the offence of Sedition with Treason would not be sufficient since the new offence incorporates similar vague words, hence it remains to be seen whether the true dictatorial remnant of colonial law has been shed away or the new offence of treason is just old wine in new bottle.
   4.	Variety of Offences such as Snatching, Organized Crime and Petty Organized Crime, definition of cruelty; added.	The new offences added are specific in nature and definition which shall allow for the better implementation of law. The definitions of the offences also include various illustrative explanations detailing the applicability. There is also definition to the word cruelty against a woman by her husband and his relatives, punishable with a jail term of up to three years. The term petty organized crime would include trick theft, theft from vehicle, dwelling house, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machine. This is a positive legislative change considering the prevalence of such crimes.
   5.	Deletion of section 377(IPC) (Unnatural offences)	The Bharatiya Nyaya Sanhita (BNS), 2023 has completely removed the offence of unnatural intercourse with men. Which was defined under section 377 as "carnal intercourse against the order of nature" Deletion of this provision implies that there is no legal remedy for acts of non-consensual intercourse with men.
   6.	Section 69 of BNS (Marriage by deceitful means)	The new act replacing IPC has added a long awaited provision of sexual intercourse on false pretext of marriage. Through the words "deceitful means" this new provision can be interpreted
   7.	Section 103 (Murder)	This provision under the new act adds the offence of murder on the grounds of race, caste, or community as a separate offence. This provision has been added after various supreme court's direction for the same.
   8.	Section 111(1)(iii) (Economic Offences)	The new act gives definition to economic offences which are mainly focused on the rise digital scams which includes Forgery, Counterfeiting, Hawala Transactions, Mass marketing fraud under the ambit of digital fraud.

2. Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 in comparison with Criminal Procedure Code, 1973

   Srl. No.	Major Points of Change	Analysis
   1.	Time Lines for Verdict, Charge sheet filing	Various new time lines have been provided for in the new Criminal Bill to ease the worries of the litigants. The new code provides for a timeline of 30-45 days to pronounce the verdict from the time of closure of arguments. In the previous CrPC, no such timeline was enunciated and it vaguely provided that verdict to be declared either immediately or "at some subsequent time." In the same spirit, there are provisions in the new Criminal bill, mandating maximum of two adjournments in the trial. Furthermore, a timeline for discharging persons accused in a case, if the complainant fails to appear in court has been provided; for 30 days. This was not mentioned in the CrPC earlier. Another important development is that the charge sheets will have to be filed within 180 days and the magistrate will have to take cognizance of it within 14 days. The police has been mandated to register an FIR within three days if it finds merit for it in a preliminary investigation.
   2.	Provision of Zero FIR	Now the victim can go to any police station and lodge a zero FIR and it will have to be compulsorily transferred to the concerned police station within 24 hours. Along with this, a police officer has been designated in every district and police station who will prepare a list of the arrested people and inform their relatives. Yet, the effective implementation remains to be seen considering the Hon'ble Supreme Court had earlier as well directed police officials to register zero FIR but at grass root level the same has not translated effectively.
   3.	Community Service as Punishment	This is a welcome and novel method of lessening the burden upon the criminal justice system and in line with the recommendations of the Law Commission. Community service is defined as 'work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.' It can be imposed by the Magistrate of the First or Second Class. Various offences such as Public servants unlawfully engaged in trade, theft of property less than Rs 5,000, and public intoxication shall be punished with community service. This is an important step towards achieving reformative system of justice in the society.
   4.	Handcuffing	This has been permitted by the new criminal bill to prevent the escape of individuals accused of serious offences and ensure the safety of police officers and staff during arrests. However, the act of putting handcuffs has been decried as violation of human rights by the Hon'ble Supreme court and various International humanitarian organization. Hence, it remains to be seen whether this provision will face challenge to its constitutionality. Further, in another significant change, the power of the police to use handcuffs has been expanded beyond the time of arrest to include the stage of production before court as well.
   5.	More discretion to Law Enforcement Officials like Police, Directorate of Prosecution.	The new criminal bill has been criticized to a good measure for providing Police/Law enforcement officials with greater discretion. For instance, the officer not below the rank of Superintendent of Police shall decide whether accused to be tried under UAPA or BNS. This has propensity to increase misuse. The police has also been given power to keep accused in Police custody beyond the initial 15-days of arrest. However, this is clearly in violation to various Supreme Court judgments such as Central Bureau of Investigation v. Anupam J. Kulkarni (1992).
   6.	Changes in language used	Various Terms like lunatic, insane, idiot, British India, Queen, British Calendar; have been removed leading to usage of more sensitive and appropriate language. The new bill also provided for 'intellectual disability' as a ground while considering competence to stand trial.
   7.	Section 105 Search and seizure through the means of audio and Video	This provision makes it mandatory for the police officers to make an audio-video recording of the search of a place or taking possession of any article, property or thing and the seizure list containing the list of items seized in the course of search and seizure, thereby forwarding the recording to the authorities without delay.