The new BNSS came into force from 1st July 2024 and there are number of major changes now in criminal procedure erstwhile CrPC which is now replaced by BNSS.

Now how it will effect the matrimonial proceedings we will discuss in parts.

In this part we will discuss the effect of BNSS on CrPC right from registration of FIR or filing of private complaint

Registration of FIR

The new Section 173 of the Bharatiya Nyaya Sanhita (BNS) introduces several significant features for the registration of First Information Reports (FIRs): which was eas earlier 154 CrPC

1. Electronic FIR Registration:

• FIRs can be lodged electronically via email or WhatsApp.
• This allows for more accessible reporting, especially for victims unable to visit a police station immediately.
• The complainant must sign the complaint within 3 days of the communication to validate the FIR.

1. Zero FIR:

• Complaints can be lodged at any police station, regardless of the location of the incident.
• The initial police station will then transfer the FIR to the relevant jurisdiction for further investigation.
• This ensures that victims can report crimes without worrying about jurisdictional issues.

1. Preliminary Inquiry for Certain Offenses:

• For offenses with punishments greater than 3 years but less than 7 years of imprisonment, a preliminary inquiry is required.
• This inquiry must be completed within 14 days.
• If a prima facie case exists, a full investigation will follow.
• This provision aims to prevent frivolous or false complaints and ensures that only cases with merit proceed to full investigation.

These features enhance accessibility, streamline the process of filing FIRs, and introduce safeguards to ensure genuine complaints are investigated promptly.

Statement under 161 CrPC is Section 180 CrPC

Under the Bharatiya Nagarik Suraksha (BNS), the provisions related to the recording of statements of witnesses and other related procedures have been updated. Here’s how the sections compare:

Section 161 CrPC:

1. Nature: This section deals with the examination of witnesses by the police.
2. Procedure:

• Any police officer making an investigation can examine orally any person supposed to be acquainted with the facts and circumstances of the case.
• The person being examined is bound to answer all questions put to them by the officer truthfully.
• The police officer shall reduce into writing any statement made to them in the course of an examination.

1. Usage: These statements are used during the investigation but are not signed by the witness and cannot be used as substantive evidence in court.

Section 180 BNS (Equivalent to Section 161 CrPC):

1. Nature: This section also pertains to the examination of witnesses by the police.
2. Procedure:

• The investigating officer can examine witnesses and record their statements.
• Statements can now be recorded via electronic means such as audio or video recording.
• This update enhances the transparency and accuracy of witness statements, reducing the chances of tampering or coercion.

1. Usage: As in Section 161 CrPC, these statements are primarily used for investigation purposes and help in building the case, although they are not considered substantive evidence on their own.

Key Differences and Enhancements:

• Electronic Means: The BNS allows the recording of witness statements via electronic means, which was not explicitly provided for in the CrPC. This modernizes the procedure and can help ensure more accurate and tamper-proof records.
• Transparency: The use of electronic recording can enhance the transparency of the investigative process, providing clear and unaltered accounts of witness statements.

Impact:

The inclusion of electronic means for recording statements under Section 180 of the BNS is a significant step forward, making the process more reliable and reducing the risk of tampering with witness testimonies. This change aims to strengthen the integrity of the investigation process and ensure that justice is served more effectively.

Under the Bharatiya Nagarik Suraksha (BNS), the provisions related to issuing notices before arrest for certain offenses have been updated. The previous Section 41A of the CrPC is now encompassed within Section 35(3) of the BNS. Here are the key details:

Section 41A CrPC (Now Section 35(3) BNS):

1. Nature: This section deals with the procedure to be followed by the police before making an arrest for offenses punishable with less than seven years of imprisonment.
2. Procedure:

• The police officer shall, in all cases where the arrest is not required under the provisions of Section 41(1), issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists, to appear before them.
• The person to whom such notice is issued is required to comply with the terms of the notice.
• If the person complies with the notice and continues to do so, they shall not be arrested unless, for reasons to be recorded, the police officer believes that they should be arrested.

1. Incorporation of Lalita Kumari Judgment:

• The judgment in Lalita Kumari vs. Govt. of Uttar Pradesh & Ors. mandates that the police must conduct a preliminary inquiry before registering an FIR for offenses punishable with less than seven years of imprisonment.
• This judgment has now been integrated into Section 35(3) BNS, ensuring that a notice is issued before arresting individuals in such cases, aligning with the principles of fairness and protecting individual rights against arbitrary arrests.

Key Enhancements and Impact:

• Mandatory Notice: The incorporation of the Lalita Kumari judgment ensures that the issuance of a notice before arrest is mandatory for offenses punishable with less than seven years of imprisonment. This reduces the likelihood of unnecessary or arbitrary arrests.
• Preliminary Inquiry: The requirement for a preliminary inquiry before the registration of an FIR adds an additional layer of scrutiny, promoting more thorough and just investigations.
• Protection of Rights: These changes enhance the protection of individuals’ rights, aligning with the principles of due process and ensuring that arrests are made only when absolutely necessary.

By integrating these provisions, Section 35(3) of the BNS aims to strike a balance between effective law enforcement and the protection of individual liberties, reflecting a more modern and rights-oriented approach to criminal justice.

Under the Bharatiya Nagarik Suraksha (BNS), the provisions related to private complaints have been updated. The previous Section 200 of the CrPC is now addressed in Section 223 of the BNS. Here are the key details:

Section 200 CrPC (Now Section 223 BNS):

1. Nature: This section deals with the procedure for taking cognizance of an offense based on a private complaint.
2. Procedure:

• A Magistrate taking cognizance of an offense on a complaint shall examine the complainant and the witnesses present, if any, upon oath.
• The substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, as well as the Magistrate.

1. Mandatory Hearing of Accused:

• Under Section 223 BNS, it is now mandatory to examine the accused. This means that during the proceedings, the accused must be given an opportunity to present their side and be questioned by the Magistrate.
• This ensures that the accused’s perspective is taken into account right from the beginning, promoting a fairer and more balanced judicial process.

Key Enhancements and Impact:

• Mandatory hearing of accused: The requirement to mandatorily hearing the accused provides a more comprehensive view of the case from both the complainant’s and the accused’s perspectives. This helps ensure that the Magistrate has a complete understanding of the situation before proceeding.
• Fair Trial: By incorporating the examination of the accused at an early stage, the process becomes more transparent and just, safeguarding the rights of the accused and preventing potential misuse of the legal system through false complaints.
• Balanced Judicial Process: These changes aim to create a balanced judicial process, where both the complainant and the accused are given equal opportunity to present their cases, thereby enhancing the overall fairness and integrity of the legal proceedings.

Section 223 BNS reflects a more balanced approach to handling private complaints, ensuring that the rights of the accused are protected while maintaining the integrity of the judicial process.

The analysis of Final Report and chargesheet and trial will be covered in next part

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Adv. Nitish Banka

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