Arrest of Women

The BNSS incorporates specific provisions to ensure that the arrest of women is conducted with greater sensitivity and adherence to basic human decency and safety.

Section 42 BNSS: No woman shall be arrested after sunset and before sunrise, except in exceptional circumstances

• General Prohibition: Section 42 BNSS clearly states that no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances.

• Exceptional Circumstances: The "exceptional circumstances" are not explicitly defined in the BNSS but generally refer to situations where there is an imminent threat to public safety, a strong likelihood of the woman absconding or tampering with evidence, or if the woman is involved in a grave offence. In such rare cases, a prior permission from a Magistrate is usually required.

• Purpose: This provision is a crucial safeguard to protect women from potential harassment, abuse, or undue distress that might arise from an arrest during night hours. It aims to ensure their safety and dignity.

• Procedure on Arrest: If a woman is arrested after sunset and before sunrise in exceptional circumstances, the police officer making the arrest must promptly inform the nearest Magistrate about the reason for such arrest (Section 42(2) BNSS).

Search of Women

The BNSS emphasizes the need for respect for a woman's privacy and dignity during search procedures.

Section 47 BNSS: Search of females to be conducted with great regard to decency

• Requirement of Decency: Section 47 BNSS, when referring to the conduct of searches, implies and mandates that the search of a female shall be conducted with great regard to decency.

• Conduction of Search: While not explicitly stating that only a female officer can conduct the search (though it's standard practice and implied), it stresses that the search must be conducted in a manner that does not violate the woman's modesty. Typically, this involves the presence of a female police officer or a respectable female witness.

• Videography: Section 47(5) BNSS mandates the videography of search and seizure. This ensures that the search is conducted properly and with due regard to decency.

Recording of Statement of Victim of Rape or Sexual Assault

The BNSS places special emphasis on the sensitive and timely handling of statements from victims of sexual offences.

Section 173(1)(b) BNSS: Timely recording of victim's statement in the presence of a female police officer and recorded by a female police officer

• Mandatory Recording: Section 173(1)(b) BNSS mandates that in cases of rape or sexual assault, the statement of the victim shall be recorded by a woman police officer or a police officer in the presence of a woman interpreter or social worker as soon as possible after the commission of the offence.

• Sensitivity and Timeliness: The law recognizes the trauma associated with sexual offences and therefore emphasizes prompt and sensitive recording of the victim's statement, ideally by a female officer, to ensure comfort and accuracy.

• Videography: Section 173(5) and (6) further mandate that such statements shall be recorded by audio-video electronic means and shall be videographed, adding a layer of transparency and accuracy to the process.

Medical Examination of Victim of Rape or Sexual Assault

The BNSS mandates prompt medical examination of victims of sexual offences to collect evidence and corroborate allegations.

Section 176 BNSS: Mandatory examination by a registered medical practitioner, with consent

• Mandatory Examination: Section 176 BNSS stipulates that the medical examination of the victim of rape or sexual assault shall be conducted by a registered medical practitioner as soon as possible after the alleged offence.

• Consent: The examination is to be conducted with the consent of the victim.

• Purpose: The medical examination is crucial for collecting forensic evidence, determining the nature of the assault, and corroborating the victim's statement. The report generated by the medical practitioner is a vital piece of evidence.

• Report to Investigating Officer: The medical practitioner shall submit the report to the investigating officer or the Magistrate, who then uses it as evidence in the case.

Victim Protection and Assistance

While BNSS focuses on procedural aspects, its provisions related to women victims (like timely statement recording, medical examination, and enhanced rights to be heard) contribute to their protection and assistance during the criminal process. The emphasis on victim-centric approaches throughout the Act also indirectly benefits women victims.

• Right to be Heard: BNSS grants victims the right to be heard during the trial, including at the stage of arguments on conviction or acquittal (Section 327(1) BNSS).

• Information about Case Progress: Victims are to be informed about the progress of the investigation and the status of the case (Section 173(3) BNSS).

Definition of Child

The BNSS, in line with juvenile justice principles, distinguishes between children and adults within the criminal justice system.

• Interpretation: While BNSS does not explicitly redefine 'child' as a standalone definition in its general clauses, the context of special procedures for juveniles implies that 'child' or 'juvenile' refers to a person below the age of eighteen years, as per the Juvenile Justice (Care and Protection of Children) Act, 2015, and the prevailing legal understanding.

• Age Determination: The determination of a child's age is critical for applying the special procedures. The primary document for age proof is usually the birth certificate, or other documentary evidence like school certificates or medical examination reports if the birth certificate is unavailable.

Prohibition of Arrest of Children

The BNSS seeks to minimize the involvement of children in the regular criminal justice system, especially through arrest.

Section 41(1)(b) BNSS: No arrest without informing parents/guardians

• General Principles: While Section 41(1)(b) BNSS pertains to the arrest of any person and requires informing them about the grounds of arrest, for children, additional safeguards are implicitly present and reinforced by juvenile justice laws.

• Specific Safeguard for Children: When a child is arrested, the police officer is mandated to inform the parent or guardian of the child without delay. This is a critical procedural safeguard to ensure that the child is not taken into custody without their guardians being aware and able to provide support or legal assistance. This is also reflected in Section 48 of BNSS.

• Arrest only when Necessary: Arrest of a child should be a measure of last resort, and alternatives like summoning the child or guardian should be preferred whenever possible.

Procedure when Child Arrested or Brought Before Court

Specific procedures are followed when a child is arrested or brought before a court to ensure their welfare and rights are protected.

Section 48 BNSS: Prohibition of imprisonment of children below 18 years

• No Imprisonment: Section 48 BNSS explicitly states that no child who has not completed the age of eighteen years shall be sentenced to imprisonment.

• Alternative Measures: If a child is found guilty of an offence, they shall be dealt with in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. This typically involves rehabilitation, counselling, and placement in juvenile homes or reformatory schools, rather than imprisonment in adult jails.

• Production before Juvenile Court: Children arrested or brought before any court other than a Juvenile Court shall be produced before the Juvenile Court or the Chief Judicial Magistrate/Magistrate, who shall then take appropriate steps as per the Juvenile Justice Act.

• Inform Guardian: As mentioned earlier, the parent or guardian must be informed of the arrest (Section 48(2) BNSS).

Trial of Children

The trial of children involves special procedures to ensure that the process is rehabilitative rather than purely punitive.

Special procedures for juveniles

• Juvenile Justice Act: The primary law governing the trial and rehabilitation of children in conflict with law is the Juvenile Justice (Care and Protection of Children) Act, 2015. The BNSS aligns its procedures with this Act.

• Juvenile Courts: Proceedings against children are conducted in Juvenile Courts or by designated Magistrates who follow the procedures laid down in the Juvenile Justice Act.

• Separation from Adults: Children are never tried or held in custody along with adults.

• Focus on Rehabilitation: The emphasis is on rehabilitation and reintegration of the child into society, rather than punishment. Measures include:

  • Inquiry by the Juvenile Court.

  • Reporting of the inquiry by the police.

  • Adjudication of the child as being in conflict with law or in need of care and protection.

  • Dispositional orders like counselling, community service, probation, or placement in special homes.

• Confidentiality: Proceedings and names of children are kept confidential to protect their identity and future.

The BNSS, by recognizing these special procedures and prohibiting imprisonment of children, underscores its commitment to the child-centric approach in criminal matters.