IMPORTANCE OF FORENSIC SCIENCE IN NEW CRIMIINAL LAWS
Lecture on New Criminal Laws by Sri D.C.Jain, IPS, Retd DGP on 05.10.2024
He handled many high-profile cases in CBI like the Tehelka tape case, Chandigarh high court case etc. He was appointed by director CBI as chairperson of the newly created empowered committee of CBI to solve legally complex issues faced by the agency. Sir represented India in the working group of Interpol.
He holds a degree in BE from NIT Jaipur and for his services he received the UN peace medal in 2001, police medal for military services in 2007, the president's medal for distinguished services in 2017 and DGP disc of Rajasthan police in 2018. Sir, we welcome you to address the officers, sir. Thank you.
Thank you so much. First of all, my thanks to DGP Shri Jitender. We have been good friends, have very good fond memories of working together in CBI.
I am also thankful to the director academy for giving me this opportunity. I got earlier also an opportunity when I had come physically. Today also I wish I was there physically.
But because of some work here in Mumbai, I am actually talking to all of you from here. And since I have to attend a meeting at 12 o'clock, so I'll have to finish this lecture by 1145. Thank you so much.
I think I could see a couple of last slides of the earlier presentation. Good morning, sir. We welcome you.
Yeah, thank you. Thank you, Jitender. But next time shortly, I'll be there to congratulate you in person.
Thank you, sir. Yeah, thank you. Thank you so much.
So I think most of you are already familiar by now with the many things which are there in the criminal laws. And I already have some suggestions. So I'll focus more upon, you know, like the more important things and I will skip some of the slides because we have to finish in time and we should also leave some room for discussions or question answers.
So I'll try to conclude the presentation by 1130 so that we can take some questions for 10-15 minutes. I think many questions I was just listening to in the last presentation, I think some doubts have already been cleared. So we will generally focus about what is there for the victim, what is there for the police, what is there for the witnesses, what is there for the accused? And why do we call them victim-centric laws? What are the provisions relating to the victim which were not there in CRPC? What new powers the police have acquired in the new laws which maybe empower them to do an effective investigation? What was not there in CRPC, which is there now in this new act, particularly the BNSS, that would be the focus of my talk.
And I think some related things. And if time permits, then I'll give you a very brief overview of the new Evidence Act, that is the Bhartiya Sakshaya Aadheniyam. We'll straight come to the BNSS because of the paucity of time, we do not have the luxury of introducing the topic.
Straight away, I will go to this Section 35, which I think all of you by now know very well. It is like the corresponding section in CRPC was Section 41 and Section 41 A. Both were very important sections because you know, in 2009, when this particular section was amended, they divided the non-bail able offences in two categories, those which were punishable with seven years or less, and those which were punishable with more than seven years. What was amended was that if you intend to arrest a person in a crime which was punishable with less than seven years, you have to record your reasons.
Unless there are justifiable reasons, you should not arrest, that was the mandate. And Section 41 A was added, where it was again mandated that if in all the clauses of Section 41, there I think most of the people do make a mistake because they confuse Section 41 A in the sense that they think that Section 41 A is applicable only in those cases where the punishment in the offence is seven years or less. I think that is an incorrect reading of that law because it says that all those offences which are there in Section 41, subsection 1, means including all the clauses, if your decision is not to arrest a person, then you must issue a notice.
I think there is there somewhere, there was some misreading, miscommunication in our sub consciousness. We perhaps made this impression that in those cases only we need to give a notice where the punishment is seven years or less, and we should not arrest any person unless we first give this person a notice. Because maybe the way we read the judgment of the apex court in Ernest Kumar v. State of Bihar in 2014, but the correct legal position is this, that if you have decided not to arrest, then you must give a notice.
If you have decided to arrest for arresting a person, in fact, Section 41 A doesn't apply. You don't have to give any notice if you have decided to arrest. Only thing is if the punishment is less than seven years or seven years, in that case, you should have justifiable reasons.
You have to record your reasons in writing that though the punishment was seven years or less, but you still felt that this person needs to be arrested. You will have to satisfy the court when you take that person to the court that on valid grounds only we have arrested this person. So in the new section, the corresponding Section 35 BNSS, all those changes have been incorporated.
You can see that in Section 35, subsection 3 to subsection 6, earlier Section 41 A has been reproduced as it is. Because here they say where in Section 35 1 above, decision is not to arrest, then you have to issue a notice to the person for appearance. And if that person appears, it is his duty to appear in response to this notice.
And if that person appears, then you shall not arrest. Whereas what most of the police officers have been doing is that they first give a notice and then they arrest. Supreme Court in another landmark judgment on the same subject, that is Satyendra Kumar Antil versus CBI have, I think, kind of questioned this practice.
They have come down heavily. I think they have sought affidavits also from all these states, disease, why you are allowing such arrest after issuing the notices. So one is that there should be a very correct understanding and application of the new Section 35.
As far as the change in the new law is concerned, as was discussed just before, the change is only this, that if you intend to arrest a person who is above 60 years of age or who is infirm, not able, and not in all cases, only in those cases where the punishment is less than three years, only in those cases where the punishment is less than three years, then there is a new safeguard that has been introduced or a new condition that has been introduced is this, that you will require prior permission of an officer of the rank of deputy superintendent of police or above rank, if you intend to arrest a person who is a senior citizen above 60 years of age or who is infirm, but only in those cases where the punishment is less than three years, not in other cases. So these are changes that have been made regarding powers of police to arrest. As far as the rights of the arrested persons are concerned, two important changes here they have made.
One is that when we arrest a person not in the presence of the family member or not from his place of residence, in that case, we have to ask that person, whom do we inform about your arrest? As per the earlier provisions, that person either could name a family member, a relative or a friend. Now they have added a fourth category. Now they say any person could be named by the accused person for providing information about arrest of that accused person.
So it is now the discretion of the accused person, whomsoever he wants to be informed, will have to inform that person. Second thing now, which is I think the state government will have to take steps because there it is a mandate for the state government that the state government shall designate an officer who will not be of the rank below the rank of the assistant sub-inspector for every police station and every district. What will be the duty of this officer? To collect information about all those who have been arrested in respect of a police station in the police station and in respect of the district in the district in last 24 hours and get this information displayed preferably by electronic means, digital display at a place where people can easily access this information that these are the people who have been arrested by either this police station or in this district in last 24 hours.
So this is the responsibility of the state government that state government will have to issue a kind of notification where they shall designate officers for each police station and for every district of the state. So this work will have to be done by the state government. However, as far as I know, I think from the state also this request has been met to the MHA that if it is amended and instead of giving this responsibility to the state, if it is given to I think the police officers, because he's the best person to designate officers for the district also and for the police stations also instead of giving this responsibility to the state.
Practical issues. Every time there is a new officer who will be designated, then state will have to issue a new notification. So keeping in view these practical difficulties, I understand from my limited interaction and knowledge that many states have made a request to the MHA to please amend this and provide this power to the district SPs.
Now, as far as empowering the police is concerned, one of the grievance of the police was that after this judgment of the apex court in citizen for democracy versus state of Assam in the year 1995, Supreme Court placed a restriction on the use of handcuffs by the police whenever they would arrest a person, particularly in a serious offense. And what was mandated by the Supreme Court in 1995 was that if you want to use handcuffs, first you obtain permission of the court. So you have to make an application in the magisterial court, obtain permission of your magistrate, then only you could use handcuffs.
People started, you know, like escaping from custody, people started taking police convoys and like particularly when everyday people are taken from the prison to the courts, then for one person, you have to deploy four, five, six people. In the new criminal law, they have amended the corresponding section 43 and now they have restored this power of the police where they could use handcuffs for arresting serious offenders. What is to be noted, the restoration is not blanket, not that in every non-bailable offense, you would be able to use handcuffs.
They have specified the categories of arrested persons for arresting whom you can use handcuffs and also for producing these arrested persons in the court. Who are they? Who can be they? They have specified three categories of persons, those who are habitual or repeat offenders, or those who have the history of escaping from custody, past history. And third category, I think is the most important category over here, who has committed one or more of the 11 crimes, which are those 11 crimes, like organized crime, terrorist act, drug-related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offenses against children, and offenses against the state.
In 11 crimes, if you want to arrest a wanted person or if you have a past record of police custody or judicial custody, or those whom you consider, those who qualify to be called habitual or repeat offenders, you don't need to ask the court to arrest them. You will be able to use handcuffs while arresting and producing such arrested persons in the court. Medical examination of an arrested person may be an important change.
In the earlier law, that is CRPC, there was a provision that when you go to the medical jurist and make an application for the medical examination of such person, the application could be signed by not less than an officer of the rank of sub-inspector. So, it doesn't have to be a sub-inspector. It can be an ASI, head constable, or even a constable.
So, the application need not be signed by an officer of the rank of sub-inspector. It can be signed by any officer. It has also been mandated in the new law for the medical jurist that they shall without any delay forward this medical examination report to the police officer.
It doesn't have to be necessarily an officer of the rank of sub-inspector or above. State government has to play an important role only then this provision will come into effect. We all know that the police have to spend a lot of time and resources to implement the summons warrant.
We have to service summons which are issued by the courts and they are generally done physically by us. Therefore, it takes a lot of our energy, resources, time, etc. So, what has been enabled? It is an enabling provision as far as the law is concerned because it enables that now the summons can be issued in electronic and digital form also by the courts.
In digital form, it has been written that either by putting digital signatures or by having an image of court seal. It has also been mandated that in every police station and the court registrar who will maintain a register, all this information will be maintained which will enable issuance of summons in the electronic or digital form. Either the summon will have a digital signature of the magistrate of the court or the officer who will be authorized to issue the summons by the court and those summons which are bearing the image of court seal.
But when it comes to its service, they only mentioned summons bearing the image of court seal. Here they seem to have forgotten to include digital signature. Then it says may also be served by electronic communication.
Why I am particularly pointing it out? Because it is now for the state to point out these I think shortcomings. But more important is how in such form and manner as the state government may by rules provide. This is I think the most important part of this subsection because the duties of the the onus is on the state government.
So whether the state has already initiated this exercise or not, that is I think for the state to introspect and take necessary actions. Then as per the earlier law, we could leave a copy with any adult male member of that person's family. What has been changed in the new law is that this has been made now gender neutral.
It need not necessarily be an adult male member. It could be any adult member of the family. What shall be considered as proof of service of electronic summons by the courts? For that, they have written in this section 70 that the proof would be like if you take a copy and provide that copy to the court, so that will be treated as a proof.
So they have written that. But more important, the most important two things are in this. One is that you can issue the summons in digital or electronic form.
And you can also get it serviced in digital or electronic form. But how will you get it done? What will be the procedure? That will be decided by the state government. Last is very important, section 71.
It says because now the courts also have the necessary information, so why it has to be routed through the police? Why police has to act as an intermediary, particularly for servicing the summons? So last section 71 says courts can also directly serve a summon by electronic communication. So I think if we promote this, then it will save a lot of the resources that police has to today spend on servicing of summons. So this is very important.
Proclaimed offender and attachment of the property of the proclaimed offenders who flee the country and go abroad. What is the important change in this? One is the change in the definition of proclaimed offender. That I think has to be noted very carefully.
Because in the earlier law, that is in section 82 subsection 4 of CRPC, if we look at the definition of the proclaimed offender, we find that only certain persons, absconders who were wanted in one of the 19 crimes, 19 crimes listed in that subsection. And as you can see on the screen, all these 19 crimes are IPC offences, not of any special act, only IPC offences. And here also, if you look at the sections, you find many important sections missing out of here.
Say for example, 376, the offence of rape is not here. To address this anomaly, what has been improved in the new law? They have changed the definition of proclaimed offender. Instead of linking it to individual offences, now they have linked it to the punishment.
All those absconders who are wanted in any offence, either under BNS or any other law, that is again a very important thing to be noted. Because earlier all the offences were of IPC. So they have said that not only BNS offence, but if there is any offence of any special act, in which punishment is 10 years or more, or life imprisonment or death penalty, so the definition has now been linked to the punishment, not to the specific sections of a particular law.
That is, I think, a very, very important change. Another change, they have introduced a new section, 86, in which it is stated that if a proclaimed offender, if that person flees this country, goes abroad, and there if he uses the proceeds of crime, if he is able to invest the proceeds of crime in that foreign country, then the court of our country will be able to issue on our request, that is on the request of police, superintendent of police, or commissioner of police. On the request of the police, the court will issue a letter of request, or letter of entry, or LR, which is popularly called.
He will send it to the corresponding court there, and will request them to identify the proceeds of crime properties, attach them and forfeit them. Obviously, a due process of law has to be followed, which generally we already know. Secondly, this is a very important section, because, as we know, it is a matter of empowering the police, it is a matter of empowering the investigating officer.
Until now, the 91 CRPC notices that we used to give to any person, what could we demand from them? One, we could demand documents, or we could demand material things, which were in possession of a person, and we thought that those documents or material things were of relevance to the issue that we were investigating. The corresponding section of 94 BNSS, what they have added in addition to the documents or material object, what has been added is, that now you will also be able to demand the production of electronic evidence, which includes electronic communication, including communication devices, which are likely to contain digital evidence, If we read this properly, then you will see that any type of electronic or digital evidence in any form, whether it has been stored in your email, whether it has been stored in your mobile or any device, pen drive, other mediums of storage, or even if it is stored in a person's cloud, that also can be demanded by the investigating officer by issuing a notice under section 94 of BNSS. So, the amendment now empowers the investigating officer to collect electronic or digital evidence in possession of any person.
This is the important change that has been made in this particular section. Now, this is, I think, the most talked about and discussed and debated section. So, I don't need to tell you much about what has been proposed in the section.
You have already started that, because this is one provision which came into effect from 1st of July 2024 in all the new FIRs that you have registered. All the new FIRs, not in the previous FIRs. Those FIRs which were registered before 1st of July, a new fact comes up, a new place is found, a new accusation comes up.
And if we are searching today, then please note that the provision of section 105 BNSS would apply only on the new FIRs, not on the earlier pending FIRs. This is one thing. What issues are coming in this, what recording should be done, because what they have written here, the process of conducting search of a place, I think that has added to our woes, because it practically covers everything that you do once you enter the premise.
Otherwise, the remaining three things can be understood. The process of taking possession of any property, article or thing. Because it will be limited.
When you start doing actual search, at that time you have to record what items, what objects, what documents you are taking from here. In the same way, the properties that you will search, you will make a list of them. So, the process of making a list has to be videographed.
That is also completely manageable. In the same way, when that list will be signed by the witnesses, I don't think it will take much time. And it will be very easy to do the recording of this process.
The problem is the first one, where they say the process of conducting search of a place. But one thing to note in this, that is my own observation. Some people may have a different view on that.
One, note that in section 105, which search is he talking about? In that, he is talking about two types of search, if you read it properly. Because in the opening sentence itself, he says, search is done under this chapter. So, many people are confused, that if I am standing in the middle of the road, suddenly a suspicious vehicle comes, I have to search the vehicle, so do I need to do videography under section 105? Because I am going to conduct search of the vehicle.
Certainly not. Because that will not be considered as a search under this chapter. And what is the second one? 185 BNSS.
So, he is talking about two types of search. If you strictly ask me, it has nothing to do with the examination of scene of crime. First of all, the state government will have to notify.
From that day, that notice will be applicable. For what? Only in those offenses where the punishment is more than seven years. And it will be made mandatory by the state government, by notification that now from this day onwards, you will have to mandatorily take a forensic expert along with the team for the purpose of collecting forensic evidence from the scene of crime.
So, what is mandated for videography? When this forensic expert will go on the spot, and he will go on the spot to collect the evidence, you have to videograph that process. That will also be mandatory the day the state government will notify it. And for that, the state government has been given a five-year window.
So, first of all, I do not think it is right to link the examination of the scene of crime to section 105. Secondly, people had a doubt in this. That doubt was that, you know, like earlier, there was this section 27 of the Indian Evidence Act, in which we take information from the accused and on the statement of the accused, we go and recover some evidence from some place.
Whether those recoveries will also be covered under section 105? Therefore, when we do effect recovery on the information of the accused, either given under section 27 of the Indian Evidence Act, and there is a corresponding section 23 of the BSA, then should we consider it as the truth of section 105 and record it in this way or not? If you ask me, certainly not. By the way, if you do videography voluntarily, that is a different matter. Law does not bar, law does not prohibit you to do.
For your own safety, for your own security, for your own directions, that is totally understood. But what I am trying to impress upon, that as far as the new law is concerned, the BNSS is concerned, section 105 of the BNSS is concerned, those recoveries cannot be categorized as searches under section 105 of the BNSS. This is the limited point I am trying to make over here.
This is not recording a year. They are not talking about copy that also. I think we need to understand.
They say such recording will have to be forwarded without delay to whom district magistrate, sub divisional magistrate or judicial magistrate of the first class. So many people thought that why district magistrate and sub divisional magistrate when judicial magistrate we understand from the court we obtain such warrant and etc. In that as I said, in the beginning of section 105 it is written that searches done under this chapter.
If you see that entire chapter then there are many such sections which I have listed here in my slide. That obviously the legislative intent here is that from which authority you have issued the search warrant. If district magistrate has given you the search warrant, then we will send the recording to him.
If SDM has given you the search warrant, then we will send the recording to him and obviously if the search warrant has been obtained from the judicial magistrate in that case our recording will have to be provided to the judicial magistrate. This is section 107 BNSS. It was being discussed that what new powers have been given to the IOs in order to enable them doing effective investigation which were not there in CRPC.
So if you ask me this is a new section because there was no corresponding section in CRPC. This particular section gives very good power to the IO and what kind of power does it give? Particularly if the investigating officer is investigating an economic offence, if he is investigating financial crime in which proceeds of crime and if those proceeds of crime happen to be immovable properties in particular. So you will see that in CRPC during investigation there was no corresponding section to attach immovable properties immediately.
IO did not have any power. If it has to be done, then there was a separate special law for it which is called Criminal Law Amendment Ordinance 1944. And the process in that is very complicated and cumbersome.
Under that law first you have to obtain permission of the state government. Then you can make application only in one court that is the district court of the district judge. And the rest of the process is also very complicated.
Looking at all these practical difficulties this issue has been solved very well in the new law. What is the new law? First of all now there is no requirement of seeking permission of the state government. Who will give the permission? Permission will now be given by the superintendent of police or the commissioner of police.
So you have to take permission from your authority. Second change now I need to make an application as an IO. I don't have to rush each time to the court of the district judge.
I can now make an application in my own court that is the court having jurisdiction to take cognizance. Simply put it where I will file my F.I.R. of the police station. The F.I.R. that I am investigating I have to make an application to that magistrate.
And that process has also been streamlined. If the magistrate is satisfied, then immediately he will give notice to the person whose property is in his possession. If there is any unknown property, then he will also give notice to that person.
And in 14 days he will have to file a reply of a show-case notice. In 14 days if that person doesn't reply in that case an ex-party order can be issued by the court. What is written further in sub-section 5? And what is written further? That means till trial is concluded.
It means that even add-interim attachment order will also remain in force till the trial is concluded. Because further they have written in sub-section 6 that after the trial is over if the magistrate or the court feels that the property that was attached or seized is indeed a proceed of crime. The court shall direct the district magistrate to readily distribute such proceeds of crime to the persons who are affected by such crime.
Obviously the victim and other persons who are affected by this crime will be informed by the court in their order. Who all are affected by this crime and it will be the duty of the district magistrate and they have given a timeline for that within the period of 60 days from the date of receipt of this order. The district magistrate will take the property in his possession, auction it and the proceeds will be readily distributed to the persons who are affected by this crime.
So the victim will get some kind of additional compensation over here as we can see. Now this I think has already been debated. I did not again devote much time because of the paucity of time.
I will tell you the main things here. Everyone knows what is the zero FIR, how it will be registered and who will transmit it. The electronic communication will also register the FIR but there is a condition that it will be taken on record when the person will come and sign it in three days.
The importance of the police chief is here. Because here you will have to issue guidelines. It should not be the case that different police stations are doing different practices.
Any police officer will think that he will come to the police station and sign it in three days. Then only I will take it on record. What kind of information is it? What is its nature? Whether the police will have to take proactive steps to contact the person who has sent the communication? First of all, how will that communication come to you? Will the OTP be authenticated? Will the Aadhaar card be enabled? Will it come through the website? Will it come through email? Will it come on WhatsApp? Who will decide these modalities? Law does not write everything.
These are to be decided by the leadership. So that there is uniform application of this particular provision throughout the state. So I would request, I am sure by now, it is possible that you have also issued it.
But I think it is appropriate to say this here. This P, the primary inspection, as has already been discussed. Firstly, this is an enabling provision.
It is not a mandatory provision. It is a discretionary provision. What is written? In cases where the punishment is more than 3 years or less than 7 years, now the SHO has been given this discretion, considering the nature and gravity of the offence.
If the SHO is of the opinion that I first need to conduct a P, preliminary inquiry. Why? To ascertain whether there exists a prima facie case. So, with the permission of a senior rank officer, who would not be below the ISP, taking permission from him, within a period of 14 days, he will have the right to do this P. This is not mandatory.
But in this, I believe that if we leave the matter of the letter of Lalita Kumari, the letter is a little different, but if we hold the spirit, then obviously registration of P should be an exception. Registration of FIR should be the rule. And the guidelines that were given in it, that if the information is sketchy, ambiguous, or there is a matter of some specific categories, of matrimonial dispute, or there is a matter of trade dispute, or there is a complaint of corruption, or there is an information that has come to the police station with an abnormal delay, then this is my opinion, this is just a suggestion, that I think, by and large, we should follow the spirit of the Apex Court in Lalita Kumari when we issue guidelines to our officers.
Sorry. Again, here, I think the leadership need to intervene. Because it should not be left totally to the discretion of the SHOs.
Otherwise, in different police stations, you will see different practices. So to rule out that thing a little, to bring uniformity, it is necessary to maintain discretion. If we give broad guidelines to our officers, that these are the cases in which you may consider first doing a P, otherwise, by rule, you should do a FIR if the information clearly discloses commission of a cognizable offense.
This is a little additional duty. In non-cognizable reports also, now you will have to tell every fortnightly magistrate that in which 15 days’ non-cognizable reports were filed at your police station. This requirement was not there earlier.
It has come in a new law. This section 175 BNSS is important. Because two important provisions have been made in this, which were not there in the old Act.
175, which is equivalent to 156, particularly in subsection 3, if you look at, what was 156-3? That if your FIR is not registered in the police station, you have also complained to the SP, still your FIR is not registered, then you could go to the magistrate, make a request for issuing an order to the police station for registration of FIR. To prevent its misuse, there was a ruling of a Supreme Court in 2015, which is called Priyanka Srivastava v. State of UP. In that, they issued directions for the magistrates that until you do not order, there should not be an affidavit with the application.
In that affidavit, the person should declare that I went to the police station earlier, this is its proof, I had also sent an application to the SP, this is its proof. Despite that, my FIR is not registered. After that, the Supreme Court said that along with taking this affidavit, you should also do some necessary inquiry to satisfy yourself whether what is written in the affidavit is true or not.
And only after satisfying yourself, you should order the police to register the FIR. In this, a new thing has been added, in the new law, maintaining these two conditions, which the Supreme Court had written in Priyanka Srivastava, that during the inquiry, the magistrate will also listen to the side of the police. They will seek a report from the police officer whether this person had actually approached you or not.
If he had approached you, then why did you not file a case or what action did you take? So, after listening to the whole side, it will now be a kind of well thought out order of the court. Fourth, what is important for all of us, the new addition, subsection 4, because there were only three in 156, in 175, a fourth subsection has been added. It is particularly relevant for the police officers.
Because there are many such cases, during the police operations, when the police uses force, or the police arrests or searches against a person, or takes any action, then many times, the motivated people, to discourage the police, try to file false cases against them, by taking orders from the court. In this, they have written, if in a case against a public servant, i.e. you have an application with this request, that this public servant has committed a crime during discharge of official duty, so you order to file an FIR against him, then in such a case, a condition has been put, before ordering the magistrate, first, the public servant, will get a report from his superior officer, a report of fact finding inquiry type, in which his version will be asked, what do you have to say about this complaint, about this incident. Second, not only that a report will be sought from the superior officer, in fact, the concerned public servant, will also be provided an opportunity, of presenting their side of the story, to the court.
So I understand, that it is a very important safeguard, so that people can exercise their duties, discharge their duties, without fear. So keeping that in mind, two very important safeguards have been done. Here itself I will tell you, that in the form of a complaint case, the corresponding section, which was 200 CRPC earlier, the corresponding section has come, 223 BNSS.
So under that section, if the person approaches the court, with the necessary evidence, that you take cognizance and initiate action, against this public servant, on the similar ground, there also the same safeguard, has been provided in that section, 223 also, that before the court takes cognizance, on such complaints, it will have to first obtain a report, from the superior officer, and also provide the concerned public servant, the opportunity of being heard. So these are the safeguards. This 176, which is the corresponding section of 157, in this also, they have made some important changes.
In the case of the victim of rape, it has been stated, that its statement can be made, through audio and video recording. And the second thing is, that in very petty cases, if you have decided to close the investigation, you have decided to close the matter, without doing any investigation, in such cases also, the SHO will have to send a fortnightly report, to the magistrate. But what we have already discussed, that 105, when we were discussing, what is written in subsection 3, in the cases where the sentence is more than 7 years, the date on which the state government will notify, and for that the state government has been given, 5 years’ time, on that date it will be compulsory, in every such case, to send a forensic expert, to collect forensic evidence on the spot.
His videography, of this process on a mobile phone, or any other electronic device, will become mandatory. So let us be very clear, about the difference between section 176, and 105, which we have discussed in detail. What is important here, which again is the power of the SHO, to collect oral evidence, to any person, 160 CRPC, the corresponding is 179 BNSS, can give notice.
As we already know, there are certain categories of persons, who are exempted, they cannot be called to the police station, for the purpose of examination. In 160 CRPC, there were 4 categories of persons, any woman, any female of any age, cannot be called, male children below 15 years, cannot be called, and elderly persons, above 65 years of age, male persons in particular, they cannot be called, and persons who are mentally, and physically challenged, they can also not be called. So the first thing is, what has been changed in the new law? What has been changed in the new law? There have been two changes.
What is the second change? This new provision, that is one. But more important is, this new provision, that has been added in this section. Here they have written, that any person above this category, if that person himself or herself, makes a request to the investigating officer, because they have to express their willingness, to attend at the police station.
In that situation, such person may be permitted so to do. So here I always caution the police officers, that before you exercise the powers, newly given powers under this proviso, please you must know, that if we call any person, in violation of the direction of law, to the police station for examination, it is a cognisable offence. Earlier under section 166A of IPC, now the same offence has been retained in section 195 of B.N.S.S. Not only that, what is the second problem in that, that for offence of 166A IPC and 195 B.N.S.S., you will not get any protection under section 197 C.R.P.C and corresponding section 218 B.N.S.S. What is the meaning of this? There is no requirement of seeking prosecution sanction, for prosecuting an officer, under section 166A IPC or 195 B.N.S.S. So what difference does it make? Why I am saying, the habit of police officers, is that they work with their mouth.
That person has requested you on the telephone, you have accepted the request on the telephone, and said okay, you come. Mostly what you will do is, you will put a note in the case diary. My opinion is, that sometimes it cannot be sufficient, your safeguard, if that person turns around tomorrow, and puts allegations on you.
So what will you do? Our request will be, please ask that person to send you an application in writing, either by physical form or electronic form. And you should also inform in writing, that okay, keeping in view your application for this request, I am allowing you on such and such date, now you may visit the police station, for the purpose of examination. Means you should have necessary safeguard.
This is very important, particularly in view of the issues that I have raised. As far as section 164 C.R.P.C is concerned, you will note two important changes in it. Which is related to the recording of confessions and statements.
Firstly, its scope has been restricted. Mostly it has been increased. But this is one section, where the applicability has been reduced.
In the sense, what was there before in section 164, that if you have to get a statement of any person, then you can get it done in any court of India. No matter where the case is. No matter where the registration F.I.R. has been done.
If you have to register a case of a person from Hyderabad in Delhi, then you could have done it in Delhi's court. That has been limited. Any court of the district, where the F.I.R. has been registered, no court in the whole of India can do it.
The second important change from the point of view of the police, is that in serious offences, which are punishable with 10 years or more, or with a life or death, if now a police officer will make a request to the magistrate, to record a statement of 183 BNSS, now the magistrate will not be able to say no. Because it has now been made compulsory, mandatory for the magistrate, that the magistrate shall record a statement of such witnesses. So these were two important changes from the point of view of the police.
Here they have given a time period of 7 days in this section, particularly for furnishing the medical examination report of a rape victim. I believe that in most of the states, this time limit is very less. Like I can say for Rajasthan, it was less than 24 hours.
So we were already getting such reports in our state within the period of 24 hours. I understand that many states have made this request to the MHA, again to amend this provision and reduce this time period also, to bring it down I think. Because in a rape case, particularly in a sensitive rape case, I don't think you can afford the doctor to take 7 days, in providing you the medical examination report.
I think getting medical examination report within the period of 24 hours, is quite crucial for investigation of rape cases. So I think I can make a note of it in the state. We have already discussed this.
Here they have made only one change, that you will have to record reasons. Why do you think that you need to immediately conduct searches, without obtaining a warrant from the court? In that case, earlier the document where we have to record reasons, was not specified in the new law. So they have specified that you will have to record your reasons, in the case diary.
This is the only change. We have already seen that the search that we will do, will be recorded in the video. Regarding the police remand, I don't think there should be any confusion.
There is already clarity in this. Earlier the Supreme Court had put a restriction, Anupam Kulkarni v. CBI, which came in the year 1992. It was written that after arrest, within the first 15 days, you can obtain police custody, and from the 16th day onwards, it can either be a judicial custody, or release of that person on bail.
So the first 15 days timeline, the time limit imposed by the Supreme Court in Anupam Kulkarni, by removing it, by extending it, because there are two categories of offences, which are covered in this section, Offences which are punishable with less than 10 years, Offences which are punishable with more than 10 years, 10 years or less, and more than 10 years. Accordingly, the 10 years or less category of offences, the time limit has been increased from 15 days to 40 days, and the more than 10 years category of offences, has been increased to 60 days. So what is to be noted here, that the total period of police custody, has neither been reduced nor increased.
It stays at 15 days. Secondly, they have clarified, which was not there before, that it is not necessary to obtain full 15 days of custody at once. You can also take it in parts.
This is one thing. Thirdly, it is written that, to obtain this period of up to 15 days, the request you will make, will be for the first 40 days, if the crime is less than 10 years. Punishable, if it is more than 10 years, in that case, you can make this request, with up to the period of 60 days, from the date of arrest.
The rest is the same. This clarification, they have issued in a way, by provisioning, the corresponding section of 170 CRPC, 190 BNSS, that when we have to file charges, against a person in the court, suppose, you have not arrested that person, during an investigation, it has been made very clear, that when the section 41A notice, because what was written in that, so it is during this stage, when that person appears before you, in response to the notice, under section 35-3, that you shall take security, from such person, that you will appear in the court, as and when you will be called, by the court. In which form will you take security? You will see that this form is also, given in this BNSS.
So you don't have to bother, even about that. They have given the form also, in which you will obtain security, from such person. If you have obtained security, from this person, during an investigation, in response to this notice, under section 35-3, in that case, you will file charges, along with that security, and the magistrate shall not refuse, to accept the police report, on the ground, that the accused is not taken, in custody.
So the ambiguity in 170 CRPC, regarding this matter, that has been removed well, in corresponding section 190 BNSS. I think now there should be no, confusion on this particular point. This is your section, which is related to filing charges, under section 173-193.
In this, 2-3 important changes have been made. One is that, whether you have maintained, the sequence and integrity, of your electronic evidence, whether your chain of custody, was proper or not. You will have to write that, along with your police report.
The second important change is, the victim point of view, what is new for the victim, in the new law. We have seen many things, the sections related to FIR, have already come up. But here, an important section is, that the victim, will have to tell the police, that what is the progress, of the investigation you are doing.
Now it has been made a legal right, of the victim to know, the progress of investigation, from the police officer. So here, you will have to change, your attitude and habits. Plus, one again suggestion, because here comes the role of, supervisory officers or the leadership.
Again, it should not be that, one police station is writing this, when they ask, what is the progress, you tell them, that we are doing investigation. Investigation is continuing, investigation is on. This is no information.
They know that, the investigation has not yet concluded. So the point is, how much will they tell, what will they tell, what information will they give, what will they not give, to maintain uniformity, in the entire state. My suggestion would be to issue, I think guidelines, what exactly is the information, that we will provide to the victim, when the victim or the informant, shall ask us, about the progress of investigation.
Last point is important. In 173, subsection 8, used to end. And we all know, 173-8, gave us power to continue, further investigation, even after filing police report.
That provision has been retained. Those powers of the police, have been retained, no change. But, they have added a new proviso, in the new subsection 9, which is the corresponding section, of 173-8.
If you intend, to continue further investigation, or you intend, to initiate further investigation, during trial. During trial, it was not there. Here, they have said, if you want to continue further investigation, then you require, prior permission of the court, and they have put a timeline, you have to finish it in 90 days, which may be extended, by the permission of the court.
So, keep this in mind. First, there should be clarity, about the date of trial. On which date, we should believe, that the trial has started.
As we have discussed earlier, on which date, the court charges, and gives an option to the accused, to either plead guilty, or to face trial. Generally, the accused, selects the option to face trial. On that day, the trial begins.
Prior to that, the proceedings, are not considered to begin. They are pre-trial proceedings. Prior to that, the court can discharge the accused.
Because, either they apply the discharge application, or frame, when argument on charge is going on, during that time, if you are not able to satisfy the court, that you have sufficient evidence against a particular person, court has the option, instead of framing charge, to discharge the accused, at this stage itself. That is why, the trial has not started yet. Court has not decided to initiate trial.
On which date, it will decide, when the charge will be framed, and the accused will say, I don't want to plead guilty.
What is this for witnesses? What has been made in the new laws for witnesses? The most important thing that has been given in the new law for witnesses is that now you need not go physically to the court for the purpose of giving your evidence. Again, it will depend on the state governments. Because a witness is a normal person.
You cannot expect a witness to join the court proceedings from his or her own mobile. Because that may not have the state-of-the-art facilities. That is why it has been written in the next section.
There will be more clarity here. It will be the responsibility of the state to make designated centre’s in different places. Where there should be the facilities of state-of-the-art video conferencing.
And it should be convenient to connect to your court. If you have made such designated centre’s in your state, then it will be your duty to notify the nearest centre witness that this facility is available in a particular place. You will reach there on this date.
And it will be deposited through audio-video-electronic means. So I think whether you are a public servant as a witness or you are a normal person as a witness, what has been emphasized a lot in the new law is please don't insist for their physical presence in the court. Sometimes witnesses travel such long distances.
And after going to the court, it is found that there will be no evidence. Today either the judge is on leave or there has been a strike of lawyers. Or for some reason, this matter has not come to the board.
It has already ended. And you will have to come to the court again after 2 months, 3 months, 4 months. So to save these inconveniences for witnesses, it has been repeatedly said in the new law that please don't call them physically to the court.
Please provide facilities. State must provide facilities where the state witnesses can be taken to the nearest centre having such facilities from where they can deposit in the court through audio-video-electronic means. Like this session trial case, here you can see in the warrant case, they have written this thing clearly.
Examination of a witness may be done by audio-video-electronic means at the designated place to be notified by the state government. I want to say that when you are writing for a warrant case, then you should have written the same thing for session trial cases. But if it is not written, then that doesn't bar the state government to create such facilities.
Because what has been written is that even in session trial cases also, witnesses will be able to deposit through audio-video-electronic means. So whether you use this facility for a warrant case, same facility can also be used for the trial of session trial cases. Here again the same thing is witnesses.
But these witnesses are of special category. These witnesses are public servants as an expert. They are experts like forensic experts.
You have so many medical examinations. There are medical officers. So these people face 2-3 big difficulties.
Your work is also delayed. One is that they go to the court again and again to testify in their old cases. So you don't get it at all.
You go to a forensic expert and ask him to quickly examine your exhibit. He will find out that it is appearing in court every 2-3 days. So to save this time, to save this facility, what are the new things they have added in the new law? Because you can appreciate it is a new section.
There is no corresponding section in CRPC. 2-3 things. First of all, a rider has put a condition.
First of all, the court has to ask the defence in particular, do you dispute the document or the report prepared by this public servant or expert? If there is no dispute on the document, there is no requirement of getting this document proved or exhibited in the court. So the matter is over. So one is saying that if there is no dispute, then there is no need to call the witness who prepared this document or report.
The second thing is that if he disputes and needs to examine that person, then what they have written is, if such person has been transferred or retired or died or cannot be found or incapable of giving deposition may be due to medical and health reasons and securing their presence would cause delay. Many times such people go abroad and sit with their children. So they are very reluctant to come from abroad.
So there is a lot of delay in this. So what has the law written? That the court shall secure presence of their successor holding that post to give deposition on such document or report. You forget that original person.
Instead of that, the person who is working on that post today, public servant or expert, work from his deposition. Third thing, do not physically call him to the court. You may allow examination through audio, video, electronic means.
So these are the precautions. One more thing about witnesses. We will see that.
This next section also empowers the IOs. There was only one issue in this. There was no provision in the previous law that if a person refuses to give finger impressions or voice sample, voluntarily when you ask that person to provide you voice sample or the finger impressions, then you may approach now the magistrate and request the magistrate to issue order to such person for providing their finger impressions or voice sample.
There was a court ruling, Supreme Court ruling on this known as Ritesh Sinha v. State of UP. The decision that came in 2019, keeping that in mind, this has been incorporated in the new law. And one more rider or condition in the old law that the court can only issue order for those people who are in custody.
That condition has also been removed. And it is written that it is not necessary to issue such an order that that person should be in police custody. Or should be in custody.
Word is custody, not police custody. So that's why without him being arrested, without arrest, when you can do the entire investigation without arrest, then only to take that person's voice sample or to take finger impressions or to take specimen signature or to take handwriting, we arrest that person, without feeling the need, it has been provided in the new law. This is again a very, very important change that has been made in the corresponding section of CRPC for 97 BNSS disposal of your seized articles.
Malkhana items, which you call popularly. In this, they have written very clearly that most of the articles can now be disposed of during investigation itself. This is important because this word investigation was not there in the corresponding section of CRPC.
This has been added in the new law very clearly that during investigation itself, if you will make an application to the court, then please prepare a statement containing description of the property, but in a manner provided by the state government by rules. So again, I think some responsibility has been put on the state government to prescribe rules in the manner in which the statement shall be prepared containing description of the property. Then once this statement is prepared, then the second direction the court will issue is that now do photography of the property which you want to get disposed of.
Videography is optional. Photography is mandatory. It further says, the statement containing description you have prepared, the photography you have done, we will exhibit this property on its basis.
You don't have to keep the property in physical form and therefore, now the court can order disposal, destruction, confiscation, or delivery of the property within a period of 30 days. So my request would be, law has enabled you. Now even after this, you can keep old properties, vehicles badly damaged in an accident in the form of trophies and keep them in the police station.
This is not necessary. The badly damaged vehicles, which no one will take, insurance has also claimed it. Everything is done.
It is not known who owns it and who does not. Such iron and wood can be disposed of, auctioned and whatever money comes, deposited in the state treasury. In future, if the court gives an order in someone's favour, then the amount of money you have deposited, that amount will be ordered to be given to that person.
So most of the stuff that we now keep in our malkhana or the police stations, it appears to me that if we will use this provision which has been given, then we will be able to dispose of many of such items from the police stations. Last but not the least, section of BNSS, what it says, this is a new section where they have been emphasizing use of technology, audio, video, electronic means. To sum it up, in simple language, if I say this, then what they say, what is the legislative intent over here, that is, if during an investigation, from the police point of view I am talking, because it extends to the courts also, the similar offer is extended to the courts also, but from the police point of view, they say, anything which you think could have been done by the use of technology, by audio, video, electronic means, and we may have not made a specific provision in the corresponding section, then please use exercise powers under this section, refer to section 530 BNSS, and if you think that something can be done by the use of technology, go ahead and do it.
So you can say this, all-encompassing section, which enables the use of technology in all kinds of proceedings, either relating to investigation, trial, inquiries, etc. So this was very important, 531 we already know, there are doubts about the applicability of 531-2, already different rulings have come from different High Courts, even in the old cases, that in the old cases which are going on, in which case will CRPC be applied, in which case will BNSS be applied, Delhi High Court has given a different order, Rajasthan High Court has given a different order, Punjab High Court has given a different order, Kerala High Court has given a different order. Obviously, ultimately this issue will reach the Apex Court, and they will have to come out with either the legislature, or there will be a clarification issue in the legislature, because this also I think needs to be flagged to the MHA, or the Ministry of Law, or I think the matter will have to reach someday to the Apex Court, because which court's decision is right, I think it is not possible for us to comment.
We can't say that what Delhi High Court has said is very good, Rajasthan High Court's is not that good, because these court rulings have come, that's why keeping this in mind, because there is a lack of time, that's why I won't be able to tell you in detail. I will only say one important thing about the Evidentiary Act in two minutes, there are only two important changes according to me, there are many other things. One is that they have cleared that anything related to electronic evidence, electronic communication, the value that we used to give to the document, the importance of a document, as far as the admissibility of the evidence is concerned, so they have clarified it very clearly, that now the electronic information will also have the same value, as far as the degree of admissibility of evidence is concerned, which you have given to the physical documents till now.
Firstly, they have said this. Secondly, by expanding the definition of primary evidence, they have tried to say that many such recordings, which we used to consider as secondary evidence, now they will be treated as primary evidence. So, if you start considering it as primary evidence, then you will not need to take the certificate of section 63 in order to make such evidence admissible in the court of law.
In primary evidence, you don't have to have a certificate. They have also expanded the secondary evidence separately, but the section 63 of electronic secondary evidence is important. You should know that you may face some practical difficulties with it.
And my request would be for the leadership here again to flag these difficulties through your state government to the MHA. Only then the MHA will change it. Because what is section 65b, which was the admissibility of your secondary electronic evidence, that we used to take the certificate of section 65b and present the secondary electronic evidence in the court, we used to make it admissible on the basis of that.
In the corresponding section 63, now there are two requirements of taking two certificates instead of one. In addition to the certificate that you would take under section 65b, that is the certificate from the handler of the machine, now there is an additional requirement of also seeking a certificate from an expert. So I believe that the feedback I am getting from most of the states, the feedback coming from the Central Agencies, so far no state has been able to tell me satisfactorily that they have defined such experts properly, identified them, notified them.
And in every secondary electronic evidence that they are collecting in the new FIRs, they are obtaining part B of the certificate from this expert. There is also an issue of hash value in it. Particularly, if I give one example, CDRs, all detailed records which you obtain from the service providers, and as we all know, it runs into thousands every day, if we take a comprehensive look of the all CDR requests which are made by all the police stations of the state.
So how you will obtain a certificate of the expert in order to present this secondary electronic evidence in the court? Who will give? Who will note the hash value of part B on the CDR? How will it be noted? So all these difficulties that are coming, while flagging them, I think a request will have to either the state should think of making its own amendment, and if the state is not thinking of making its own amendment, then at least they should flag it. Because this is a national level issue. I think there is a scope of making a request to the Government of India that you kindly restore the earlier position of taking only one certificate, that is from the handler of the machine.
And I would further go and say, this requirement of noting hash value, which was not there in Section 65B, may also be done away with. Because it may not be possible for each person, in whose possession that machine will be, with which you will take secondary evidence, will be familiar, will know how to take the hash value, how to record it. So these were some of my observations.
I think I have tried, though I have exceeded, I mean I took a little more than 5 minutes. But with this, I thank you for the patient hearing. I think I can close the presentation.
And very quickly, if there are a couple of observations, then I think we can attend to that. Thank you so much. The floor is open for questions.
If anyone has any doubts, comments or questions. I hope, I'm not sure because this is the problem, when you address through the electronic mode, you are not able to look into the eyes of the audience. So you really do not know how they've responded to the monologue that you're mad sitting from a distance.
Sir, one question sir. Morning. Yes, please.
Sir, under 187 BNSS, you said that any magistrate can order for the remand. Yeah. If a CP having magisterial powers.
Correct. Can order for the same kind of remand. Please read the whole section.
There they distinguish between judicial magistrates and executive magistrates. Okay. So when you will read the entire section, you will come to know this particular power is mean to be excised by the judicial magistrate, but the executive magistrates, whether they are CP or they are the district magistrate or SDMs, they have also been given power only in certain situations when it is not possible for you to tell the accused to a judicial magistrate, then you can produce the accused before an executive magistrate and the maximum period of demand they can give is up to seven days.
So when we read the entire section, it is very clearly let down that that magistrate doesn't include an executive magistrate. In fact, I would also request you to read sections three of the BNSS and also the first there is a problem. They have clarified.
What do you mean by when they say any magistrate? So they say unless we very clearly specify that this magistrate also includes executive magistrate when we say only magistrate, that means judicial magistrate. So whenever we want a particular power to be excised by an executive magistrate, then we will clearly mention in the law that so in section 187 BNSS specifically, if you read the entire section, you will find the executive magistrates also have powers, but only in certain situations and only up to maximum seven days of police custody demand. Thank you, sir.
Good afternoon, sir. This is Karthikeyan, sir. Thank you so much, sir.
Very informative session, sir. One thing, sir, now there is a lot of welcoming change as far as the digital forensics is concerned. We see a lot of convenient things like recording your mobile phone and all, which actually we were doing for a long time as well, sir.
Now we have a legitimate basis to do that, sir. But at the same time, sir, when we are collecting more of digital evidence, I think we are largely dependent on our forensic capacity building because right now when we record something, a video, an audio or something, the time we have to legitimize or to certify it through some forensic lab, sir. So I think there is a lot of onus on the forensic capacity building as well so that in the interest of justice, the reports come to us because it is definitely going to be disputed, sir.
Now AI is there, modifications are there in videos, audio and all. So I think that also will be a challenge for the future policing. That's my observation, sir.
Thank you so much, sir. I think you have made a very pertinent observation. That is why when I make my suggestions, one is that we must know very clearly what is the mandate of the law where the law has made it mandatory, compulsory for us to do the recording.
Say, for example, section 105, where we have already been doing it or we want to do it as a measure of our own safety that, okay, now nobody will be able to make any kind of allegation against me because I have got the entire process video graphed. So one is, I think it is for us to decide whether we should continue this discretion use of videography or whether we confine it only to those where the law mandates it, makes it mandatory. That is one.
Secondly, I think when we do recordings, we need to make a distinction. Recordings per se are not evidences. Even section 105 is not enabling you to collect evidence.
Certainly not. Because when I do the videography of a search process, this by itself doesn't help me as far as proving guilt of the accused person is concerned. This per se is not an evidence against the accused person that, you know, when I went to his house, I seized this, this, this.
In fact, even without videography also, when there are other ways of proving what has been seized, you can prove to the court. Then why it has been prescribed? I think only in order to say, you know, one is that in order to enforce accountability, responsible behaviour, because now we know that now it is mandatory for us to do the recording of the entire process. Then obviously complaints of abuse or misuse which used to flow against the police officers.
So I think the legislative intent here is to reduce those possibilities so that police will behave more responsibly. They will be more accountable. Section 105 per se doesn't empower you to collect evidence.
Evidence will be what we get in the search. You will get some incriminating material, you will get a document, you will seize some digital evidence from there, computer, mobile phone or something like that. Evidence is that.
This recording per se is no evidence. So I think whenever we do any recording, we need to... Why would we send an expert? Do we have to get it analysed by an expert? As far as I understand, we get it analysed by an expert in which there is a possibility of incriminating material. If you read Section 105 properly, then what does it say? As soon as you do the recording, who will you send the original recording to? To the magistrate.
There is no scope of sending this recording to any laboratory. Because that is not its purpose. It is just a safeguard.
It will stay with the magistrate. In fact, you know, if you ask me, this recording that we will do, which will go to the magistrate in its original form, this will not even be given to the accused in Section 193. It is not covered in Section 193.
If that man disputes, that no, sir, he did this, he did that, if someone accuses, then it is the magistrate's discretion to take the help of that recording and decide that accusation. What is this legislative intent? We also need to understand this thing well. Thank you.
Thank you, sir. Sir, in continuation of the previous point itself, regarding the video recording, of search and seizure, sir, in relation to the scene of crime. Sir, as you told, examination of a scene of crime is under Section 176.
But any seizure made at the scene of crime, should we interpret it under 185, sir? Not necessary. Again, examination of, you see, it has been mentioned in 176 itself. Why do you examine a scene of crime? Obviously, whatever incriminating material or thing or article, you find there, it has to be seized.
Section 165, now 185 BNSS, you see, it comes into play much after registration of FIR. Whereas, Section 157, 154 was there earlier, now if you start from 173, 173 FIR, 174 non-cognisable reports, 175 power of the magistrate to order investigation, 176, you understand, FIR is registered, where you start the investigation. What is the first step given by the law? Please go to the scene of crime and collect necessary evidences from there.
We have not yet reached Section 185. We have not reached the old 165. It is very far.
Before that, the law has mandated you that as soon as FIR is registered, you go to the crime scene and seize whatever incriminating material you find there. If you ask me, those seizures are not covered under Section 185 of BNSS. And that is why it is written there, the provision put by the new forensic expert, what is written in it? If you have committed more than 7 years of criminal offences, then it is mandatory that you send an expert.
But since there is no such facility in all the states, they have given a window of 5 years to the states. That you create these facilities and within 5 years you notify, make it compulsory. Then they say, the expert who will go on the spot and collect the forensic evidence, you have to video graph the process.
It is a matter of videography. There they have clearly mentioned which thing is mandatory to video graph. So if you ask me, neither the provision of 105 nor the provision of 185 would apply on both the examination of crime and whatever you seize from there.
No, no, no. I think again we have to be very clear. You see, if you read, again you will have to read which section.
Section earlier was 161 and now the corresponding section is 180 of the BNSS. If you read it carefully, you already had a discretion earlier also. When you examine a person, you are now not sure what this person is going to tell me.
The notice that you send of 160 CRPC, now the corresponding section is 179 BNSS. What is written there? You seem to be acquainted with the facts and circumstances of the case I am investigating. Therefore, I need to examine you.
Please appear before me. I don't know whether you really know what you know, what you do not know, whether that would be relevant or irrelevant for the purpose of the investigation that I am making. I will know only after talking to you.
So section 161 CRPC, the corresponding section is 180 BNSS. What discretion does it give you as an investigating officer? First, let us listen to this person. What he has to say about the issue that I am investigating.
If in the examination, he tells you something relevant and you feel that now I need to make this person a witness. Therefore, I need to reduce what he is stating in writing. So there is a discretion left to the investigating officer.
It is not that you have to write the statement of every person that comes in front of you in writing. This was already there. Same thing is maintained.
Now what is the new addition as far as the use of audio-video means for recording is concerned? He says, if you want, this process is only facilitated by distant recording. Listen carefully. One is that you are seeking physical presence of that person that you come in front of me, sit here and tell me.
One is that you now need not insist for physical presence of the witness before you. You can examine the witness through audio-video electronic means. Rest of the provisions are the same.
This is your discretion. If you want, you can reduce it in writing. But if you want to use this person as a witness, you think that this person is giving me some information which is relevant for the case.
You will have to record the statement in writing. The audio-video recording is not the statement under section 180 BNSS which you used to write in section 161 and you used to write read over and accepted as correct. Same formality you will have to do.
Because what will go to the court? The written statement will go to the court. New law gives you only this facility that instead of physically calling that witness and examining him, you can examine him through audio.
Role of Forensic Science in New Criminal Laws — Cadet Handout • Mandatory forensic involvement ≥ 7-year offences (BNSS Sec. 176) • Videography of search & seizure processes (BNSS Sec. 105) • Electronic records = primary evidence (BSA) • Chain of custody legally enforceable (BNSS Sec. 193) • Digital summons, arrest transparency, tech-driven policing • Expert AV depositions → reduced trial delays • Victim right to progress report of investigation • Economic offence special powers for forensic accounting (Sec. 107) • Deepfake & AI manipulation → increased cyber forensics need
Role of Forensic Science in the New Criminal Laws Training for DySP Officer Cadets Theme: Forensic Evidence
Overview • BNS, BNSS, BSA reforms • Forensic mandates • Digital evidence • Victim-centered justice • Scene-of-crime requirements
Legal Shift From confession-driven justice → Science-led evidence system Focus: Accuracy, Transparency, Accountability
Mandatory Forensics
176. (1) If, from information received or otherwise, an officer in charge of a police
• Mandatory Forensic Scene Examination • Cases with punishment ≥ 7 years
Forensic Videography
BNSS SEC 105. The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably cell phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. BNSS Section 105 • Videography of search & seizure • Original recording → Magistrate
Evidence Integrity
BNSS SEC 193. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) The investigation in relation to an offence under sections 64, 66, 67, 68, 70, 71 of the Bharatiya Nyaya Sanhita, 2023 or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012 shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (3) (i) As soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form as the State Government may, by rules provide, stating— (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether the accused has been released on his bond and, if so, whether with or without sureties; (g) whether the accused has been forwarded in custody under section 190; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 64, 66, 67, 68 or section 70 of the Bharatiya Nyaya Sanhita, 2023.
(ii) The police officer shall, within a period of ninety days, inform the progress of the investigation by any means including electronic communication to the informant or the victim. (iii) The officer shall also communicate, in such manner as the State Government may, by rules, provide, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (4) Where a superior officer of police has been appointed under section 177, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (5) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (6) When such report is in respect of a case to which section 190 applies, the police officer shall forward to the Magistrate along with the report— (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 180 of all the persons whom the prosecution proposes to examine as its witnesses. (7) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (8) Subject to the provisions contained in sub-section (7), the police officer investigating the case shall also submit such number of copies of the police report along with other documents duly indexed to the Judicial Magistrate for supply to the accused as required under section 230: Provided that supply of report and other documents by electronic communication shall be considered as duly served. (9) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (7) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be permitted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may extend with the permission of the Court. BNSS Section 193 • Chain of custody documentation • Digital evidence handling rules
Digital Evidence = Documentary Evidence BSA reform • Electronic records treated as primary evidence • Reduced need for certificates
Scene-of-Crime Role • Evidence recognition • Preservation • Documentation • Interpretation
Technological Empowerment
BNSS SEC 530. Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice BNSS Section 530 • Use of tech in policing • Audio-video tools, e-warrants
Arrest Transparency
BNSS SEC 37. The State Government shall— (a) establish a Police control room in every district and at State level; (b) designate a police officer in every district and in every police station, not below the rank of Assistant Sub-Inspector of Police who shall be responsible for maintaining the information about the names and addresses of the persons arrested, nature of the offence with which charged, which shall be prominently displayed in any manner including in digital mode in every police station and at the district headquarters.
BNSS SEC 43. (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest, and give the information regarding such arrest and place where she is being held to any of her relatives, friends or such other persons as may be disclosed or mentioned by her for the purpose of giving such information. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences. (4) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. (5) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. BNSS Sections 37 & 43 • Display of arrests in 24 hours
if we call any person, in violation of the direction of law, to the police station for examination, it is a cognisable offence. Earlier under section 166A of IPC, now the same offence has been retained in section 195 of B.N.S.S. Not only that, what is the second problem in that, that for offence of 166A IPC and 195 B.N.S.S., you will not get any protection under section 197 C.R.P.C and corresponding section 218 B.N.S.S. What is the meaning of this? There is no requirement of seeking prosecution sanction, for prosecuting an officer, under section 166A IPC or 195 B.N.S.S. So what difference does it make? Why I am saying, the habit of police officers, is that they work with their mouth
Expert Testimony Simplified • AV recording allowed • Less frequent court travel • Faster trial timelines
Witness Support • Remote evidence recording • State-run video testimony centers
CONFESSIONS ADMISSIONS
Section 164 of the Code of Criminal Procedure (CrPC) is now Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
As far as section 164 C.R.P.C is concerned, you will note two important changes in it. Which is related to the recording of confessions and statements.
183. (1) Any Judicial Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 316 for
recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:— "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate." (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Judicial Magistrate, best fitted to the circumstances of the case; and the Judicial Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) (a) In cases punishable under section 66, section 67, section 68, section 70, section 71, section 73, section 74, section 75, section 76, section 77, sub-section (1) or sub-section (2) of section 74, or section 78 of the Bhartiya Nyaya Sanhita, 2023, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner specified in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that such statement shall, as far as practicable, be recorded by a woman Judicial Magistrate and in her absence by a male Judicial Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or imprisonment for life or with death, the Judicial Magistrate shall record the statement of the witness brought before him by the police officer: Provided that such statement shall, as far as practicable, be recorded by a woman Judicial Magistrate and in her absence by a male Judicial Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or imprisonment for life or with death, the Judicial Magistrate shall record the statement of the witness brought before him by the police officer: Provided also that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided also that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means preferably cell phone. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 142 of the Bhartiya Sakshya Adhiniyam, 2023 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. Firstly, its scope has been restricted. Mostly it has been increased. But this is one section, where the applicability has been reduced. In the sense, what was there before in section 164, that if you have to get a statement of any person, then you can get it done in any court of India. No matter where the case is. No matter where the registration F.I.R. has been done. If you have to register a case of a person from Hyderabad in Delhi, then you could have done it in Delhi's court. That has been limited. Any court of the district, where the F.I.R. has been registered, no court in the whole of India can do it. The second important change from the point of view of the police, is that in serious offences, which are punishable with 10 years or more, or with a life or death, if now a police officer will make a request to the magistrate, to record a statement of 183 BNSS, now the magistrate will not be able to say no. Because it has now been made compulsory, mandatory for the magistrate, that the magistrate shall record a statement of such witnesses. So these were two important changes from the point of view of the police. Here they have given a time period of 7 days in this section, particularly for furnishing the medical examination report of a rape victim. I believe that in most of the states, this time limit is very less. Like I can say for Rajasthan, it was less than 24 hours. So we were already getting such reports in our state within the period of 24 hours. I understand that many states have made this request to the MHA, again to amend this provision and reduce this time period also, to bring it down I think. Because in a rape case, particularly in a sensitive rape case, I don't think you can afford the doctor to take 7 days, in providing you the medical examination report. I think getting medical examination report within the period of 24 hours, is quite crucial for investigation of rape cases. So I think I can make a note of it in the state. We have already discussed this. Here they have made only one change, that you will have to record reasons. Why do you think that you need to immediately conduct searches, without obtaining a warrant from the court? In that case, earlier the document where we have to record reasons, was not specified in the new law. So they have specified that you will have to record your reasons, in the case diary. This is the only change. We have already seen that the search that we will do, will be recorded in the video. Regarding the police remand, I don't think there should be any confusion.
Economic Offences & Forensics
ATTACHMENT BNSS SEC 107. (1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Judicial Magistrate exercising
jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property. (2) If the Court or the Judicial Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, the Court or the Magistrate may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made. (3) Where the notice issued to any person under sub-section (2) specifies any property as being held by any other person on behalf of such person, a copy of the notice shall also be served upon such other person. (4) The Court or the Judicial Magistrate may, after considering the explanation, if any, to the show-cause notice issued under sub-section (2) and the material fact available before such Court or Magistrate and after giving a reasonable opportunity of being heard to such person or persons, may pass an order of attachment, in respect of those properties which are found to be the proceeds of crime: Provided that if such person does not appear before the Court or the Magistrate or represent his case before the Court or Judicial Magistrate within a period of fourteen days specified in the show-cause notice, the Court or the Judicial Magistrate may proceed to pass the ex-parte order. (5) Notwithstanding anything contained in sub-section (2), if the Court or the Judicial Magistrate is of the opinion that issuance of notice under the said sub-section would defeat the object of attachment or seizure, the Court or Judicial Magistrate may by an interim order passed ex-parte direct attachment or seizure of such property, and such order shall remain in force till an order under sub-section (6) is passed. (6) If the Court or the Judicial Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Judicial Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime. (7) On receipt of an order passed under sub-section (6), the District Magistrate shall, within a period of sixty days distribute the proceeds of crime either by himself or authorise any officer subordinate to him to effect such distribution. (8) If there are no claimants to receive such proceeds or no claimant is ascertainable or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the Government. Explanation.—For the purposes of this section, the word ‘‘property’’ and the expression ‘‘proceeds of crime’’ shall have the meaning assigned to them in clause (d) of section 111. BNSS Section 107 • Attachment of proceeds of crime • Forensic accounting
Cyber Forensics Priority • Mobile phone evidence • Cloud data access • OSINT investigations
• Digital legal communications
Victim-Centric Approach
The second important change is, the victim point of view, what is new for the victim, in the new law. We have seen many things, the sections related to FIR, have already come up. But here, an important section is, that the victim, will have to tell the police, that what is the progress, of the investigation you are doing. Now it has been made a legal right, of the victim to know, the progress of investigation, from the police officer. So here, you will have to change, your attitude and habits. Plus, one again suggestion, because here comes the role of, supervisory officers or the leadership. Again, it should not be that, one police station is writing this, when they ask, what is the progress, you tell them, that we are doing investigation. Investigation is continuing, investigation is on. This is no information. They know that, the investigation has not yet concluded. So the point is, how much will they tell, what will they tell, what information will they give, what will they not give, to maintain uniformity, in the entire state. My suggestion would be to issue, I think guidelines, what exactly is the information, that we will provide to the victim, when the victim or the informant, shall ask us, about the progress of investigation. BNSS • Victim informed of progress of investigation
Police Empowerment • Handcuffs for severe/organized crimes • Medical exam strengthened
Forensics in Custody Crimes • Injury documentation • Accountability checks
Case Example 1 • Scene contamination prevented conviction collapse • Demonstrates scientific necessity
Case Example 2 • Mobile extraction validated alibi • Digital timeline reconstruction
Challenges • Lab delays • Limited manpower • Hash-value certification issues
Deepfake Threats • AI alteration risk • Need authentication tools
Capacity Building • 24x7 forensic teams • Regional cyber labs • Training for DySP
Collaboration Model Police + FSL + Judiciary + Technology Partners
Operational Readiness • Rapid response kits • Forensic vans • Documentation templates
Court Expectations • Scientific chain-of-custody • Expert interpretation
Impact on Justice • Faster trials • Fewer wrongful arrests • Improved conviction integrit
Future Vision • AI decision support tools • National forensic grid integration
Leadership Demand • SENIOR POLICE OFFICERS must drive modernization • Policy + supervision + trainin
Conclusion New laws → Forensics at the core of investigation ‘Justice powered by science
Interactive Discussion for Cadets • How will police officers enforce mandatory forensic videography? • Strategies to prevent digital evidence tampering? • How to ensure victims receive progress reports timely? • Best ways to integrate forensic teams regionall
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