Key Criminal Procedures and Rights Under BNSS 2023

Posted on Oct 13, 2025 in Criminology

Trial Procedure Before a Court of Session

When a charge sheet is filed before the Chief Judicial Magistrate (CJM) for an offense triable exclusively by a Court of Session, such as rape, the following procedure is typically followed:

Committal to Court of Session

  1. The CJM commits the case to the Court of Session after ensuring that the offense is indeed triable by the Sessions Court.
  2. The Court of Session then takes cognizance of the offense and proceeds with the trial.

Trial Process

  1. Opening the Case: The Public Prosecutor opens the case by describing the charges against the accused and stating the evidence intended to prove guilt.
  2. Evidence Presentation: The prosecution presents its evidence, and witnesses are examined.
  3. Recording Evidence: Evidence can be recorded through audio-video electronic means.

Judgment and Sentencing

  1. Judgment Timeline: The Court of Session is required to deliver the judgment within 30 days of completing arguments, extendable to 45 days with recorded reasons.
  2. Sentencing: If the accused is found guilty, the court passes a sentence according to law.

Key Considerations in Rape Trials

  • In-camera Trials: Rape cases are typically tried in camera to protect the victim’s privacy.
  • Victim’s Statement: The victim’s statement is recorded in a manner that ensures dignity and respect.
  • Protection of Victim’s Identity: The court ensures that the victim’s identity is protected, and no information that may reveal their identity is published.

Rights of Arrested Persons Under BNSS 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, outlines several fundamental rights for arrested persons in India.

Rights During Arrest

  • Right to Know Grounds of Arrest: The police officer must inform the arrested person of the reasons for their arrest and the offense committed (Section 47 BNSS).
  • Right to Bail: If the offense is bailable, the police officer must inform the arrested person of their right to be released on bail and arrange for sureties (Section 47 BNSS).
  • Right to Notification of Arrest: The arrested person has the right to inform a friend, relative, or any other person about their arrest (Section 50A BNSS).

Rights During Custody

  • Right to Legal Representation: The arrested person has the right to consult with a legal practitioner of their choice during interrogation and detention (Section 41D BNSS).
  • Right to Medical Examination: The arrested person has the right to a medical examination if they allege torture or inhumane treatment (Section 54 BNSS).
  • Right to Dignity and Humane Treatment: The arresting officer must respect the dignity of the person being arrested and avoid unnecessary force (Section 46 BNSS).

Rights After Arrest

  • Right to be Produced Before a Magistrate: The police must produce the arrested person before a magistrate within 24 hours of arrest, excluding travel time (Section 57 BNSS).
  • Right to Free Legal Aid: The arrested person is entitled to free legal aid if they cannot afford a lawyer (Section 341 BNSS).
  • Right to Compensation for Unlawful Arrest: The magistrate can award compensation to individuals subjected to wrongful arrest or detention (Section 399 BNSS).

Initiating Complaint Proceedings Under BNSS 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, outlines a detailed procedure for initiating complaint proceedings in the pre-trial stage.

Filing a Complaint

  • A complaint can be filed with the Magistrate, who will then examine the complainant and witnesses to establish a prima facie case.
  • The Magistrate must ensure that the complaint is valid and has sufficient grounds for proceeding.

Examination of Complainant and Witnesses

  • The Magistrate will examine the complainant and witnesses on oath to determine if there is sufficient evidence to proceed.
  • The examination will be recorded in writing and signed by the complainant, witnesses, and the Magistrate.

Notice to the Accused

  • Before taking cognizance, the Magistrate must provide the accused an opportunity to be heard, as per Section 223(1) of BNSS.
  • The notice to the accused should append the complaint, sworn statement, and witness statements, allowing them to submit their defense.

Inquiry or Investigation

  • The Magistrate may conduct an inquiry or direct an investigation to determine if sufficient grounds exist for proceeding.
  • If the Magistrate finds no grounds, the complaint may be dismissed under Section 226 of BNSS.

Dismissal of Complaint

  • If the Magistrate finds insufficient grounds, the complaint will be dismissed, and the reasons for dismissal will be briefly recorded.
  • The dismissal of a complaint does not necessarily mean the end of the matter, as the complainant may explore other avenues.

Key Considerations for Complaint Proceedings

  • The Magistrate must adhere to the sequence of steps: recording statements, issuing notice, and then taking cognizance.
  • The accused’s right to be heard is a crucial aspect of the pre-trial stage, ensuring fairness and transparency.

Anticipatory Bail Duration and Scope

The Supreme Court of India has clarified the scope and duration of anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC). According to the court’s judgment in Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr. (2020), anticipatory bail can continue till the end of the trial, unless there are specific reasons to limit it.

In Arjun’s case, the High Court granted anticipatory bail without prescribing any specific duration. The State challenged this order, arguing that anticipatory bail should only protect the accused until the filing of the charge sheet, after which they should seek regular bail.

However, based on the Supreme Court’s judgment, it appears that Arjun’s contention that the court has the discretion to grant anticipatory bail for an indefinite period is correct. The court’s decision suggests that anticipatory bail can be granted for a limited time period or continue till the end of the trial, depending on the court’s discretion.

Key Points Regarding Anticipatory Bail

  • Duration of Anticipatory Bail: The court may limit the duration of anticipatory bail if there are justifiable reasons, but the normal rule should be not to limit the same.
  • Continuation of Bail: Anticipatory bail can continue till the end of the trial, unless there are specific reasons to limit it.
  • Discretion of Courts: The court has absolute discretion to limit anticipatory bail duration, but it is not necessary to do so.

Given the facts of the case and the Supreme Court’s judgment, the High Court’s decision to grant anticipatory bail without prescribing any specific duration is valid. The anticipatory bail granted to Arjun can continue till the end of the trial, unless there are specific reasons to limit it.

Revisionary Powers Under BNSS

Revision under the Bharatiya Nagarik Suraksha Sanhita (BNSS) is a legal process that allows higher courts to review and examine the decisions of lower courts.

Key Aspects of Revision

  • High Court’s Powers: The High Court can call for records from inferior courts to examine the correctness, legality, and propriety of findings, sentences, or orders (Section 438 BNSS).
  • Sessions Judge’s Powers: Sessions Judges have revision powers similar to the High Court, allowing them to examine records and order further inquiries (Section 440 BNSS).

FIR Versus Occurrence Report

An FIR (First Information Report) is a document prepared by the police when they receive information about a cognizable offense. An occurrence report, on the other hand, is a report filed by the police when they receive information about a non-cognizable offense or an incident that does not require immediate police action.

Key Differences

  • Cognizable vs. Non-Cognizable Offenses: FIRs are typically filed for cognizable offenses, where the police can arrest without a warrant. Occurrence reports are filed for non-cognizable offenses or incidents that do not require immediate police action.
  • Purpose: The purpose of an FIR is to initiate a police investigation, while an occurrence report is used primarily to document an incident or offense that may not require immediate investigation.

When to File

  • FIR: Filed when the police receive information about a cognizable offense.
  • Occurrence Report: Filed when the police receive information about a non-cognizable offense or an incident that does not require immediate police action.

Importance

  • FIR: An FIR is a crucial document that sets the investigation process in motion. It helps the police to gather evidence, identify suspects, and build a case.
  • Occurrence Report: An occurrence report helps the police to document incidents and offenses that may not be immediately investigated. It can also serve as a record of the incident and provide valuable information for future investigations.

Appellate Court Powers Under BNSS

The Appellate Court’s powers under the Bharatiya Nagarik Suraksha Sanhita (BNSS) are quite extensive.

Powers of the Appellate Court

  • Dismissing Appeals: The Appellate Court can dismiss an appeal if it finds no sufficient grounds for interfering.
  • Reversing Convictions or Acquittals: The court can reverse a conviction or acquittal and order a retrial or pass a sentence according to law.
  • Altering Findings: The Appellate Court can alter the finding, maintaining or modifying the sentence.
  • Enhancing or Reducing Sentences: The court can enhance or reduce the sentence, but not without giving the accused an opportunity to show cause against such enhancement.
  • Additional Evidence: The Appellate Court can take additional evidence or direct it to be taken by a Magistrate or Court of Session.

Limitations on Appellate Powers

  • No Excessive Punishment: The Appellate Court cannot inflict greater punishment than what the original court could have imposed.
  • Finality of Judgments: Appellate Court judgments are generally final, except in specific cases like appeals for sentence enhancement or against acquittal.

Key BNSS Provisions

  • Section 427 BNSS: Outlines the general powers of the Appellate Court.
  • Section 430 BNSS: Allows the Appellate Court to suspend the execution of a sentence pending appeal and grant bail.
  • Section 432 BNSS: Enables the Appellate Court to take additional evidence or direct it to be taken.
  • Section 434 BNSS: Emphasizes the finality of Appellate Court judgments, with exceptions for appeals against acquittal or sentence enhancement.

Cognizable Versus Non-Cognizable Offenses

The main difference between cognizable and non-cognizable offenses lies in the powers of the police to arrest and investigate.

Cognizable Offenses

  • Definition: Cognizable offenses are serious crimes where the police have the authority to arrest a person without a warrant.
  • Examples: Murder, rape, robbery, kidnapping, and other serious crimes.
  • Police Powers: The police can initiate an investigation without the court’s permission and can make arrests without a warrant.

Non-Cognizable Offenses

  • Definition: Non-cognizable offenses are less serious crimes where the police do not have the authority to arrest a person without a warrant.
  • Examples: Assault, cheating, defamation, and other minor crimes.
  • Police Powers: The police require a warrant or court permission to arrest someone and initiate an investigation.

Key Differences

  • Arrest Powers: The police can arrest without a warrant in cognizable offenses, but not in non-cognizable offenses.
  • Investigation: The police can initiate an investigation without court permission in cognizable offenses, but require permission in non-cognizable offenses.
  • Seriousness: Cognizable offenses are generally more serious and carry harsher penalties, while non-cognizable offenses are less serious and may carry lighter penalties.

Bailable Versus Non-Bailable Offenses

The main difference between bailable and non-bailable offenses lies in the grant of bail.

Bailable Offenses

  • Definition: Bailable offenses are crimes where the accused has a right to be released on bail as a matter of course.
  • Grant of Bail: The police or court is bound to grant bail in bailable offenses.
  • Examples: Minor crimes, such as public nuisance, minor theft, or simple assault.

Non-Bailable Offenses

  • Definition: Non-bailable offenses are serious crimes where the grant of bail is not a matter of right but depends on the court’s discretion.
  • Grant of Bail: The court may grant bail in non-bailable offenses, but it is not obligated to do so. The accused must apply for bail and demonstrate that they are not a flight risk or a danger to society.
  • Examples: Serious crimes, such as murder, rape, robbery, kidnapping, and other offenses that carry severe penalties.

Key Differences

  • Right to Bail: In bailable offenses, the accused has a right to bail, while in non-bailable offenses, bail is discretionary.
  • Court’s Discretion: In non-bailable offenses, the court has the discretion to grant or deny bail, considering factors like the severity of the offense, the accused’s criminal history, and the likelihood of tampering with evidence or witnesses.
  • Seriousness: Non-bailable offenses are generally more serious and carry harsher penalties, while bailable offenses are less serious and may carry lighter penalties.