The coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 marks one of the most consequential procedural shifts in Indian criminal law. While public debate has often focused on the substantive changes introduced by the Bharatiya Nyaya Sanhita, 2023, the machinery of criminal justice is shaped just as much by procedure: arrest, remand, investigation, evidence collection, medical examination, attachment of property, and the powers of magistrates and police officers.
That procedural architecture matters because criminal law is not enforced in the abstract. It is enforced by police officers, magistrates, medical officers, prison authorities, and investigative agencies. The BNSS therefore deserves close scrutiny not only for what it changes on paper, but for how those changes may affect personal liberty, fair investigation, and the credibility of criminal trials.
The constitutional background is clear. In D.K. Basu v. State of West Bengal, the Supreme Court treated custodial safeguards as essential to Article 21. In Hussainara Khatoon v. State of Bihar, the Court connected criminal procedure to speedy trial and the lived reality of undertrial prisoners. The question, then, is whether the BNSS strengthens procedural justice or expands executive power without equally strong safeguards.
The first concern lies in arrest and handcuffing. Section 35 of the BNSS introduces prior-permission requirements for certain arrests, including offences punishable below three years and arrests of infirm persons or persons above sixty. At the same time, Section 43(3) permits handcuffing in several categories of cases, including organised crime, terrorism, drug-related offences, rape, acid attack, offences against the State, and repeat-offender situations. This has to be read against Prem Shankar Shukla v. Delhi Administration, where the Supreme Court warned against mechanical handcuffing and insisted that dignity does not disappear because a person is accused or undertrial.
The second concern is custody. Section 187 of the BNSS changes the remand framework by allowing police custody in whole or in part during a longer portion of the investigation period. Under the earlier understanding of Section 167 of the CrPC, police custody was tightly confined to the initial phase of remand. The BNSS language raises the risk that custody may be staggered across a longer period, increasing pressure on the accused and making bail strategy more uncertain.
This concern is not theoretical. The Supreme Court has repeatedly treated police custody as a zone requiring heightened judicial caution. In Senthil Balaji v. State represented by Deputy Director, the Court discussed the limits of police custody within the remand period. In Sheela Barse v. State of Maharashtra, the Court recognised the vulnerability of persons in police lock-ups. Any provision that expands the operational window for police custody must therefore be accompanied by rigorous judicial reasons and meaningful protection against coercion.
The BNSS also expands the conversation around attachment and forfeiture. Sections 86 and 107 permit attachment or forfeiture processes in relation to proclaimed offenders and property believed to be derived from criminal activity. The concern is not that the State should lack tools against crime proceeds. The concern is that property interference must carry clear temporal limits, notice safeguards, and effective remedies. A procedural code should not create a parallel property-forfeiture mechanism without protections comparable to specialised statutes.
Preliminary enquiry is another difficult area. In Lalita Kumari v. Government of Uttar Pradesh, the Supreme Court held that registration of an FIR is mandatory where information discloses a cognizable offence, while allowing preliminary enquiry only in limited categories. Section 173(3) of the BNSS expressly contemplates preliminary enquiry for certain offences punishable between three and seven years. If applied loosely, this may delay FIR registration, create uncertainty for complainants, and blur the status of persons summoned before formal registration.
Medical examination provisions also require careful handling. Section 51 permits medical examination on the request of any police officer where there are reasonable grounds to believe that such examination will provide evidence. This lowers the rank threshold compared with the earlier formulation under the CrPC. Because medical examination can involve bodily privacy, dignity, and sensitive evidence, the safeguard should not be treated as a technicality. The officer requesting such examination must be trained, accountable, and conscious of privacy principles.
A further evidentiary issue arises from Section 336 of the BNSS, which allows a successor officer to depose on documents or reports prepared by a public servant, scientific expert, or medical officer who is dead, transferred, retired, incapable of deposing, or whose attendance may delay proceedings. The provision may reduce delay, but it also raises fairness questions. Cross-examination is meaningful when the person who prepared the disputed report can explain methodology, observations, and gaps. Courts will need to ensure that efficiency does not dilute the accused person’s ability to test evidence.
The deeper theme running through these provisions is the balance between administrative efficiency and constitutional restraint. A procedural statute can modernise investigation, reduce delay, and improve coordination between agencies. But it cannot do so by treating liberty as an inconvenience. Criminal procedure must remain anchored in Article 21, Article 22, and the judiciary’s long insistence that investigation must be fair, transparent, and accountable.
The BNSS is now part of India’s criminal justice architecture. The task ahead is not merely to criticise it as new or defend it as reform. The task is to interpret and apply it in a way that preserves the dignity of the accused, protects complainants, enables effective investigation, and prevents executive power from becoming unreviewable. Courts, investigators, prosecutors, and defence counsel will all shape whether the BNSS becomes a procedural improvement or a wider channel for State excess.