Introduction
The Bharatiya Nagarik Suraksha Sanhita
(BNSS) 2023, which replaced the Criminal Procedure Code 1973, represents a
significant milestone in India’s criminal justice reform. One of the most
noteworthy aspects of this new legislation is how Parliament has systematically
incorporated key directions and principles established by the Supreme Court,
particularly those outlined in the landmark case of Satender Kumar Antil v. Central Bureau of Investigation (2022). This integration demonstrates a remarkable convergence between
judicial wisdom and legislative intent, creating a more balanced and
rights-oriented criminal procedure framework.
The Satender Kumar Antil Foundation
The Supreme Court’s comprehensive
guidelines in Satender Kumar Antil v.
CBI (2022) established the fundamental principle that “bail is the rule, jail is the exception”. The Court categorized offenses into four distinct
categories (A, B, C, and D) and issued detailed directions covering arrest
procedures, bail applications, and undertrial prisoner rights. These judicial
pronouncements have found concrete expression in the BNSS provisions, showing
Parliament’s commitment to transforming Supreme Court directives into statutory
law.
Key Areas of Integration
1. Arrest and Notice Provisions
Supreme
Court Direction: The
Court emphasized strict compliance with Sections 41 and 41A of CrPC, requiring
police to record reasons for arrest and issue notices before arrest in
appropriate cases.
BNSS
Implementation: Section
35 of BNSS (corresponding to Section 41 CrPC) retains these safeguards while
adding enhanced protections. Notably, subsection (6) introduces a new
requirement for prior permission from a Deputy Superintendent of Police for
arrests involving offenses punishable below three years when the accused is
infirm or above sixty years of age. Additionally, the Supreme Court has
specifically directed that notices under Section 35 BNSS must be served through
prescribed legal modes, not through WhatsApp or electronic means.
2. Enhanced Default Bail Framework
Supreme
Court Direction: The
Court reinforced the indefeasible right to default bail under Section 167(2)
CrPC as an integral part of Article 21.
BNSS
Implementation: Section
187(3) BNSS maintains the 60/90-day framework for default bail while
introducing significant procedural improvements. The provision now allows
police custody up to 15 days during the initial 40 or 60 days of the detention
period, but this cannot be used to deny bail for the entire period.
3. Revolutionary Changes in Undertrial
Prisoner Rights
Supreme
Court Direction: The
Court emphasized implementing Section 436A CrPC to prevent prolonged detention
of undertrial prisoners.
BNSS
Implementation: Section
479 BNSS represents perhaps the most progressive incorporation of Supreme Court
directions:
First-Time Offender Benefit
The provision introduces a
groundbreaking concept for first-time offenders who have never been convicted
previously. Such individuals must be released on bond after serving one-third of the maximum imprisonment
period. This goes beyond the Supreme Court’s specific directions
and shows Parliament’s progressive interpretation of the Court’s underlying
philosophy.
Mandatory Jail Superintendent
Obligation
Section 479(3) creates a statutory
obligation requiring jail superintendents to submit written applications to
courts for releasing undertrial prisoners upon completion of the requisite
detention period. This institutional mechanism ensures proactive
implementation of undertrial rights.
Restrictions on Multiple Cases
However, Section 479(2) introduces a
restrictive provision stating that where investigation, inquiry, or trial in
multiple offenses or cases are pending against a person, bail under this
section shall not be granted. This limitation has drawn criticism
as potentially negating the benefits for many undertrial prisoners.
4. Anticipatory Bail Modernization
Supreme
Court Direction: The
Court emphasized that anticipatory bail should be available to prevent
harassment and unnecessary arrests.
BNSS
Implementation: Section
482 BNSS (replacing Section 438 CrPC) significantly liberalizes anticipatory
bail provisions. Notably, the Allahabad High Court has ruled that BNSS has
deliberately removed several restrictive provisions that existed in state
amendments to CrPC, including prohibitions for NDPS cases. This demonstrates Parliament’s
conscious decision to align with Supreme Court’s liberal bail jurisprudence.
5. Indigent Person Protection
Supreme
Court Direction: The
Court emphasized special consideration for poor and marginalized sections of
society in bail matters.
BNSS
Implementation: Section
478 BNSS enhances protections for indigent persons. The explanation provides
that if a person cannot give a bail bond within a week of arrest, it shall be
sufficient ground to presume indigence. Such persons can be discharged on
executing a personal bond without monetary obligations, directly implementing
the Supreme Court’s concerns about poverty-based discrimination in bail.
6. Bail Amount and Conditions
Supreme
Court Direction: Section
440 CrPC mandates that bail amounts should not be excessive and must consider
the accused’s circumstances.
BNSS
Implementation: Section
484 BNSS retains these provisions while the overall framework creates better
enforcement mechanisms. The systematic definition of “bail,”
“bond,” and “bail bond” in Section 2 provides clarity that
was lacking in CrPC.
Definitions and Conceptual Clarity
For the first time in Indian criminal
procedure, BNSS provides statutory definitions:
·
“Bail”: Release of a person accused of an
offense from custody upon certain conditions imposed by an officer or court
·
“Bond”: A personal bond or undertaking for
release without surety
·
“Bail Bond”: An undertaking for release with
surety
These definitions, absent in CrPC,
provide much-needed conceptual clarity and align with the Supreme Court’s
emphasis on understanding bail as a fundamental right rather than mere
procedural provision.
Progressive Police Custody Framework
Section 187 BNSS introduces a nuanced
approach to police custody that balances investigation needs with liberty
rights. While maintaining the 15-day limit, it allows this custody to be
utilized in parts during the initial period, providing flexibility to
investigating agencies while ensuring judicial oversight. This represents a sophisticated
implementation of the Supreme Court’s balance between effective investigation
and personal liberty.
Age Enhancement for Vulnerable Groups
Section 480 BNSS raises the age limit
for automatic bail consideration from 16 to 18 years, aligning with the
Juvenile Justice Act 2015. This change reflects Parliament’s
commitment to protecting vulnerable populations, consistent with the Supreme
Court’s emphasis on special consideration for women, children, and infirm
persons.
Institutional Accountability Mechanisms
The BNSS creates several institutional
accountability mechanisms that directly respond to Supreme Court concerns:
1. Mandatory
judicial oversight for all
detention beyond 24 hours
2. Written
recording requirements for
arrest decisions
3. Systematic
review mechanisms for
undertrial prisoners
4. Enhanced
powers for Sessions Courts and High Courts in bail matters
Challenges and Limitations
Despite these progressive features,
some BNSS provisions have drawn criticism for being more restrictive than
Supreme Court directions:
Multiple Cases Restriction
The prohibition on bail under Section
479(2) for persons facing multiple cases potentially affects a large number of
undertrial prisoners, as many FIRs contain multiple charges.
Police Custody Concerns
The provision allowing police custody
in parts during the initial detention period may be misused to keep accused
persons in custody for extended periods.
Implementation and Compliance
The Supreme Court continues to monitor
implementation of its directions even under the new BNSS framework. Recent
orders in the Satender Kumar Antil
case emphasize:
1. Compliance with notice provisions under
Section 35 BNSS
2. Proper implementation of undertrial
prisoner rights
3. Establishment of institutional
monitoring mechanisms
4. Regular reporting by states and High
Courts