The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) bill which aims to replace the Code of Criminal Procedure, 1973 (“CrPC“), was introduced in the Lok Sabha on August 11, 2023 along with the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Bill, 2023. The bills have been introduced with the intent of freeing India from the shadow of colonisation, however a plain reading of the BNSS bill reveals that it has retained a majority of the provisions of the soon to be erstwhile CrPC. This article explores the relevant changes brought about by the BNSS.
Introduction of Electronic Communication
The BNSS introduced a new provision that provides that all, trials, inquiries and proceeding (including issuance, service and execution of summons and warrants, holding of an inquiry, examination of complainants and witnesses, trial in warrant and summons cases as well as summary trials and plea bargaining, recording of evidence in inquiries and trials and all appellate proceedings and such other proceedings) can be held in electronic mode, by using ‘electronic communication’ or ‘audio-video electronic’ means.1
The BNSS has introduced the following two new definitions to supplement the above-mentioned provision:
- Audio-Video Electronic: This includes the use of any communication device for the purposes of video conferencing, recording of processes of identification, search and seizure or evidence, transmission of electronic communication and for such other purposes and by such other means as the State Government may, by rules, provide2; and
- Electronic Communication: This means the communication of any written, verbal, pictorial information or video content transmitted (whether from one person to another, from one device to another, from a person to a device, or from a device to a person) by means of an electronic device including but not limited to a telephone, a mobile phone, a computer, cameras or any other electronic device or electronic form as may be specified by notification, by the Central Government3.
Some of the specific changes made in the BNSS to effectuate the introduction of electronic means in trials include:
- Identification of a person arrested by another person can be recorded by means of ‘electronic communication’4;
- Summons can be issued in an encrypted or any other form of ‘electronic communication’5;
- The charges framed by the judge in a sessions trial can be read and explained to the accused present either physically or through electronic means6;
- Search and seizures can be recorded through any ‘audio-video electronic’ means, preferably by cell phone7;
- Conditional order for removal of nuisance, if unable to be served, can be notified by ‘electronic communication’8;
- Information in cognizable cases can be given and taken on record by a police officer by means of ‘electronic communication’9;
- Statements made by any person supposed to be acquainted with the facts and circumstances of a case can be recorded by ‘audio-video electronic’ means10;
- The police are required to inform the victim or the informant about the progress of the investigation within 90 (ninety) days by means including via ‘electronic communication’11;
- Police report, FIR, statements, confession and other documents can be served to the accused and the victim via ‘electronic communication’12;
- Police officers conducting searches are mandated to record the proceedings of such search by ‘audio-video electronic’ means, preferably by mobile phones and forward the same to the concerned magistrate;
- The procedure regarding offences committed by letters, etc.13 has now been suitably modified to include ‘electronic communication’ as well. The provision now provides that such offence can be inquired into or tried by any Court within whose jurisdiction such ‘electronic communication’, messages or letters were sent or received14; and
- Evidence for prosecution can be recorded by ‘audio-video electronic’ means15.
Service of Summons on Corporate Bodies, Firms and Societies
While the CrPC provides that the service of summons on a corporation could be effected by serving it on the secretary, local manager or other principal officer of the corporation,16 this provision has been revised by the BNSS. The BNSS now provides that “summons on a company or corporation may be effected by serving it on the director, manager, secretary or other officer of the company or corporation, or by a letter sent by registered post addressed to the director, manager, secretary or other officer of the company or corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post“17. Additionally, the BNSS states that summons can be served on a firm by serving it on any partner of such firm18. The BNSS provides that summons can be served on companies and firms via ‘electronic communication’.
Use of Forensic Science in Investigations
A new provision has been inserted in the BNSS which provides for a forensic team to visit the scene and collect samples and cause the entire procedure to be recorded via videography whenever information about commission of a crime punishable by more than 7 (seven) years is acquired by the police19. Further, while under the CrPC a magistrate could not ask a person to give a sample of his signature or handwriting if the person did not have a history of arrest20, the BNSS has revised this provision to allow such specimens to be obtained without a person being arrested, but the reasons for requiring the sample are to be recorded in writing21. Another notable revision is that finger impressions and voice samples have also been brought under the ambit of this provision.
The introduction and adoption of electronic communication/audio-visual means for judicial processes is a welcome step and one that can surely improve the functioning of the justice system and align it with the requirements of the 21st Century. The draft legislation falls in line with the government’s Digital India initiative and will give it a boost if and when implemented.
1 Section 532 of the BNSS.
2 Section 2 (1)(a) of the BNSS.
3 Section 2(1)(f) of the BNSS.
4 Section 54 of the BNSS.
5 Section 63(ii) of the BNSS.
6 Section 251(2) of the BNSS.
7 Section 105 of the BNSS.
8 Section 153(2) of the BNSS.
9 Section 173(1) of the BNSS.
10 Section 180(3) of the BNSS.
11 Section 193(3)(ii) of the BNSS.
12 Section 193(8) and Section 230 of the BNSS.
13 Section 182 of the CrPC.
14 Section 202 of the BNSS.
15 Section 254(1) of the BNSS.
16 Section 63 of the CrPC.
17 Section 65(1) of the BNSS.
18 Section 65(2) of the BNSS.
19 Section 176(3) of the BNSS.
20 Section 311 of the CrPC.
21 Section 349 of the BNSS.