Investigation to Trial Under BNSS, 2023: Complete Criminal Justice Process, Important Sections and Supreme Court Judgments

Blog by: Jayprakash B. Somani
Advocate, Supreme Court of India & IP
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Introduction: Understanding the Criminal Justice Process Under BNSS, 2023

The criminal justice process in India follows a structured journey from the commission of an offence to investigation, trial, judgment, sentencing and appeal. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 (CrPC), with effect from 1 July 2024, introducing significant procedural reforms.

The BNSS incorporates provisions relating to electronic information, audio-video recording, forensic investigation in specified serious offences and procedural timelines. Understanding these provisions is essential for criminal advocates, law students, accused persons and individuals seeking legal remedies.

1. Commission of Offence and Registration of FIR

The process begins when an offence is committed. The Bharatiya Nyaya Sanhita, 2023 (BNS), generally defines offences and punishments, while the BNSS governs criminal procedure.

Section 173 BNSS deals with information relating to cognizable offences, including information provided electronically, subject to statutory requirements. It also provides the framework for Zero FIR and registration of information irrespective of territorial jurisdiction.

Example: A person reports cyber fraud to the police. The information may lead to FIR registration and a formal investigation.

In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, the Supreme Court held that FIR registration is mandatory when the information discloses a cognizable offence, subject to the applicable legal framework.

2. Preliminary Inquiry and Police Investigation

Under Section 173(3) BNSS, a preliminary inquiry may be conducted in specified cognizable offences punishable with imprisonment of three years or more but less than seven years, subject to the statutory conditions and required approval.

Sections 175–193 BNSS govern important aspects of police investigation, including evidence collection, witness examination, search, seizure and submission of the police report.

Investigation may involve digital records, CCTV footage, financial documents and forensic evidence. Section 176(3) BNSS provides for forensic examination at the crime scene in offences punishable with imprisonment of seven years or more, subject to the statutory framework and applicable implementation arrangements.

3. Arrest, Rights of the Accused and Custody

Section 35 BNSS governs arrest without warrant in specified circumstances. Arrest is not automatic merely because an allegation has been made; statutory requirements and safeguards must be followed.

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Supreme Court emphasised that arrest must be justified by law and cannot be routine. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, the Court laid down safeguards against custodial abuse.

An arrested person has important rights, including being informed of the grounds of arrest, informing a relative or friend, consulting a legal practitioner and being produced before a Magistrate within the legally prescribed period.

Section 187 BNSS regulates remand and custody during investigation. The Magistrate must consider the applicable statutory conditions when authorising police or judicial custody.

4. Search, Seizure and Recording of Statements

Sections 93–106 and 185 BNSS address relevant aspects of search and seizure, including judicial processes and police searches. Sections 180 and 183 deal with examination of witnesses by police and recording of statements or confessions before a Magistrate, respectively.

For example, in a cybercrime investigation, police may collect mobile phones, computers, transaction records and other relevant electronic evidence in accordance with the law.

In State of Karnataka v. Shivanna, (2014) 8 SCC 913, the Supreme Court emphasised the importance of prompt recording of a rape victim’s statement before a Magistrate under the then-applicable CrPC framework.

5. Bail and Completion of Investigation

Bail is a crucial safeguard of personal liberty. The BNSS contains provisions governing bail, anticipatory bail, default bail and related matters, including Sections 478–496, depending on the nature of the relief sought.

In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, the Supreme Court explained the principles governing anticipatory bail. In Sanjay Chandra v. CBI, (2012) 1 SCC 40, the Court highlighted that pre-trial detention should not become punitive.

Upon completion of investigation, Section 193 BNSS governs submission of the police report. Depending on the evidence, the police may submit a charge sheet or a closure report. Further investigation may also be undertaken in accordance with law.

6. Cognizance, Charges and Criminal Trial

After receiving the police report, the competent Magistrate considers cognizance under Section 210 BNSS and other applicable provisions. The court may issue process, such as summons or warrants, where legally justified.

Cases exclusively triable by a Court of Session are committed under Section 232 BNSS. The applicable provisions governing discharge and framing of charges depend on the type of trial and the court concerned.

In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, the Supreme Court explained the principles for assessing whether a charge should be framed.

The trial generally involves prosecution evidence, examination and cross-examination of witnesses, consideration of expert evidence, examination of the accused under the applicable BNSS provision, defence evidence where presented, and final arguments.

The Bharatiya Sakshya Adhiniyam, 2023 governs the admissibility and evaluation of evidence, subject to its provisions and applicable exceptions.

7. Judgment, Sentencing and Appeal

After evaluating the evidence and arguments, the court delivers its judgment. The accused may be acquitted or convicted. If convicted, the court determines the appropriate sentence under the applicable law.

In Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158, the Supreme Court underscored the importance of a fair trial. In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court established the “rarest of rare” doctrine governing the death penalty.

A party may challenge an eligible judgment through an appeal or revision, subject to statutory restrictions and procedural requirements. Further recourse to the Supreme Court may be available through the applicable appellate provisions or a Special Leave Petition under Article 136 of the Constitution of India.

In Pritam Singh v. State, AIR 1950 SC 169, the Supreme Court explained the exceptional and discretionary nature of its special leave jurisdiction.

8. Practical Criminal Litigation Flow

The criminal justice process can be summarised as:

Offence ? FIR ? Investigation ? Arrest, where necessary ? Bail ? Evidence Collection ? Police Report ? Cognizance ? Court Process ? Charges ? Prosecution Evidence ? Cross-Examination ? Accused’s Examination ? Defence Evidence ? Final Arguments ? Judgment ? Sentence ? Appeal or Revision ? Supreme Court Proceedings, where maintainable.

Conclusion

Understanding the investigation-to-trial process under BNSS, 2023 is essential for effective criminal litigation in India. From FIR registration and arrest safeguards to bail, evidence, trial, sentencing and appellate remedies, every stage involves specific legal requirements.

Knowledge of the BNSS, BNS, Bharatiya Sakshya Adhiniyam and leading Supreme Court judgments helps legal practitioners identify procedural issues, protect legal rights and pursue appropriate remedies before Magistrate Courts, Sessions Courts, High Courts and the Supreme Court of India.

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