COMPARATIVE ANALYSIS OF CHAPTER VII PROCESSES

TO COMPEL THE PRODUCTION OF THINGS OF

BHARATIYA NAGARIK SURAKSHA SANHITA BILL , 2023
(BNSS) WITH THAT OF THE PROVISIONS OF CRPC

-By

NAME: ABHISHEK CHATTERJEE

CLASS: LLM (2023-24) , CRIMINAL & NATIONAL SECURITY LAWS.

SCHOOL OF NATIONAL SECURITY LAW (SNSL)

ENROLLMENT NO. : 230051101221015

UNIVERSITY : RASHTRIYA RAKSHA UNIVERSITY, GANDHINAGAR

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“A rapid and effective judicial system is a fundamental element of sound governance. The
impediments to the expeditious administration of justice that disproportionately affect
individuals of limited means include the intricate legal procedures, substantial backlog of
cases in the judicial system, diminished rates of successful prosecutions, limited integration
of technological advancements in the legal framework, protracted investigation processes,
convoluted procedures, and insufficient utilization of forensic techniques. To effectively tackle
these concerns, it is imperative to implement citizen-centric criminal proceedings.”1

INTRODUCTION

The Bharatiya Nagarik Suraksha Sanhita of 2023 has introduced a new provision that enables
the utilization of electronic methods for the execution of diverse legal tasks, including trials,
inquiries, and hearings. “The aforementioned activities encompass the issuance, delivery, and
implementation of summonses and warrants, along with the conduct of investigations,
questioning of complainants and witnesses, adjudication in cases involving warrants and
summonses, expedited trials, negotiation of pleas, documentation of evidence in
investigations and trials, appellate procedures, and any additional pertinent legal proceedings.
These activities can be conducted utilizing electronic communication or audio-visual
technological modalities.”2

The BNSS has implemented two additional definitions to complement the aforementioned
regulation.

1. Audio-Video Electronic pertains to the application of communication devices for

many purposes, including video conferencing, the documentation of identification
procedures, the execution of search and seizure operations, and the collection of
evidentiary material. “Furthermore, it includes the dissemination of digital

1
Amit Shah, ‘Statement of Objects and Reasons of Bhartiya Nagrik Suraksha Sanhita 2023’
<https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/
64df765c9a0dc559f8d5ec30/1692366475187/Annotated+Comparison+of+BNSS+and+CrPC.pdf> accessed 7
November 2023.
2
Bharatiya Nagarik Suraksha Sanhita 2023, s 532.

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 correspondence and any additional objectives and methods as specified by the
governing body of the State, in accordance with established legislation.”3
2. Electronic communication refers to the process of transmitting information, such as
written text, vocal messages, pictorial representations, or video content, via electronic
equipment. The process of transmission can take place among humans, devices, or a
combination thereof. Examples of electronic devices include “telephones, mobile
phones, computers, cameras, and any other electronic device or form specified by the
Central Government through official notification.”4

The incorporation of audio-visual elements in investigations represents a beneficial step

aimed at enhancing transparency and accountability within police investigations. This
practice serves to safeguard the rights of both the accused and the victims, while also
enhancing the overall quality of evidence.

The inclusions implemented by the BNSS align with the prevailing tendency to enhance the
utilization of technology in investigative practices, as evidenced by legislative advancements
and judicial discussions.

The present CrPC include provisions that allow for the “audio-video recording of witness
statements made in the presence of the police (section 161) and confessions and other
statements made before a Magistrate (section 164(1))” 5. Additionally, there exist obligatory
stipulations that necessitate the documentation of procedures involving individuals with
physical or mental disabilities. This includes the recording of police statements made by
“victim-informants in instances of sexual violence (s.154), statements given before a
Magistrate (s.164(5A)), and test identification proceedings (s.54A).” 6 The user’s text is
already academic and does not need to be rewritten. Furthermore, the Protection of Children
from Sexual Offences (POCSO) Act also offers the provision of utilizing audio-electronic
methods to document the testimony of a minor victim. Courts have continuously stressed the
importance of employing audio-video recording in different scenarios, including the
3
ibid, s 2(1)(a).
4
ibid, s 2(1)(f).
5
The Code of Criminal Procedure 1973.
6
ibid.

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examination of crime scenes, the documentation of dying pronouncements, the recording of
testimonies from victims of sexual assault, and the conduct of post mortems in cases
involving custodial fatalities.

The integration of audio-visual technology has the capacity to enhance the reliability of
evidence. Nevertheless, it is crucial to recognize that this particular medium is also
susceptible to manipulation, alterations, and displacement, whether by intentional
intervention or inadvertent degradation of a digital recording. In “Arjun Panditrao Khotkar vs
Kailash Kushanrao Gorantyal7”, the disagreement about legal interpretation was resolved by
the Supreme Court, which affirmed that strict adherence to the prescribed procedure
described in Section 65B of the Indian Evidence Act is necessary for the admission of
electronic records as evidence. The successful use of this methodology is essential in
ensuring the authenticity and accuracy of digital evidence.

“Shafhi Mohammad vs State of Himachal Pradesh”8- The significance of audio-video

technology in aiding law enforcement with crime scene investigations was underscored by
the Supreme Court. Additionally, the court emphasized the need to establish institutional and
infrastructural capabilities to ensure the successful and obligatory adoption of this
technology. Throughout the course of these proceedings, various challenges pertaining to the
utilization of audio-video technology in investigations were brought to attention. These
challenges, which were observed across different states, primarily revolved around
infrastructural and institutional limitations. The highlighted aspects of concern include
inadequate financing, insufficient equipment, inadequate processes for the gathering, secure
storage, and transfer of electronic documents, as well as a lack of proper training and forensic
facilities. The user's text does not have any substantive content for academic rewriting. The
aforementioned factors have been recognized as obstacles to the implementation of a
compulsory mandate for the utilization of audio-visual technology in investigative processes.

7
[2020] 7 SCC 1.
8
[2018] 2 Supreme Court Cases 801.

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 BACKGROUND

In 1882, when the Criminal Procedure Act was passed into law, substantial political unrest
and uprisings against the authority of British colonial government were taking place in the
country at the time. In light of this, the code was conceived with the express purpose of
quelling dissent and putting an end to any and all forms of political resistance. This purpose
was made abundantly evident by the provisions of the law that dealt with preventive arrests,
prohibitions on holding public assemblies, and limitations on bail.

Following India's independence, significant transformations occurred within the criminal

justice system through the implementation of the Constitution and the development of a
revised court structure. The criminal proceedings underwent amendments in order to align
them with the ideals outlined in the Constitution. This process culminated in the enactment of
the CrPC in 1973. Nevertheless, the fundamental framework of the code remained
unchanged. The CrPC, 1973, incorporated a majority of its rules from the colonial
perspective on crime prevention and police.

In addition, the BNSS has widened the application of handcuffs by allowing their use in
scenarios involving serious felonies such as homicide, sexual assault, and acid assaults, as
well as in circumstances in which the accused has a history of repeated or recurrent offenses.
This is a significant departure from the existing legal framework that has been established by
judicial precedents. That framework limits the use of handcuffs to exceptional circumstances
involving the possibility of escape or injury to the individual being restrained by them. It is
predicted that the implementation of this novel rule will have a significant impact on the
human rights and dignity of people who are facing allegations.

In addition, a modification has been proposed in order to make it possible for a trial to
continue and a verdict to be reached even in circumstances in which the accused person
cannot be brought into the courtroom. The present priority is to speed up trials in order to

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avoid delays. However, it is vital to ensure that this objective is followed without
undermining the integrity of the trial process and the fundamental rights of those who are
accused.

Even while the BNSS has made significant strides forward, such as restricting its ability to
make arrests for specific offenses, incorporating technology into its investigative operations,
enacting mandatory bail legislation, and creating timelines for judicial procedures, it has not
fully abandoned its colonial vestiges. There has not been a considerable amount of effort put
in to establish laws and constraints on police authority or to lessen the widespread control
that the state exerts over its population. Both of these issues need to be addressed. Taking into
account all of the relevant factors, one may make the case that the BNSS does not fully
accomplish the purpose of decolonization that it set out to do.

SEARCH AND SEIZURE

The proposal to mandate the inclusion of audio-video recording in search and seizure
proceedings is commendable, given the potential risks associated with evidence manipulation
and the misuse of police power. The aforementioned requirement, as stipulated in Section
105, applies to all search and seizure operations outlined in Chapter VII and Section 185.
Nevertheless, Section 105 is limited in its application to the search of a physical location, and
it seems to explicitly preclude the search of an individual and the confiscation of items
directly from their possession. One notable constraint of Section 105 is the explicit exclusion
of regulations pertaining to the search of the location of arrest (Section 44) and the search of
an arrested individual (Section 49) from the obligatory mandate of audio-video recording as
stipulated in Section 105. Given that Section 105 addresses the procedure of conducting a
search for the purpose of acquiring control over any property, article, or item as outlined in
the stated sections, it is imperative to incorporate the search of an individual who is suspected
of concealing pertinent articles, as stipulated in Section 103(3) within Chapter VII. However,
Section 105 substantially broadens the parameters of audio-visual recording in the context of
search and seizure procedures, encompassing not only the actual act of confiscation, but also
the subsequent activities of item inventorying and witness attestation. The potential for
deterring the fabrication of evidence and subversion of the safeguard that mandates the

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participation of independent witnesses in search and seizure processes is increased by the
implementation of transparency measures. According to Section 105, it is mandatory to
promptly submit the audio-video recording to the District Magistrate, Sub-divisional
Magistrate, or Judicial Magistrate of first class. Section 103 stipulates the protocol governing
the execution of a search and seizure. Notably, subsections (6) and (7) specifically mandate
that the individual present at the premises being searched or the person undergoing the search
must be provided with a copy of the memorandum delineating the confiscated objects.
Nevertheless, it is important to acknowledge that the BNSS does not specifically guarantee
the right of individuals involved in a case, including the accused, to view audio-video
recordings.

OTHER INVESTIGATION

The incorporation of videography into the procedure of gathering forensic evidence, as

stipulated by Section 176(3), represents a notable advancement in promoting transparency
and responsibility in the evidence collection process. Additionally, it functions as a safeguard
against potential irregularities and manipulation. “Section 176(1) additionally offers the
possibility of audio-visual recording for any statement given during a police investigation.
The extent of this provision is sufficiently broad to encompass the disclosure statements
made by the accused to the police, in addition to the statements provided by other witnesses
(for whom audio-video recording is already allowed by section 161 of the Code of Criminal
Procedure, as preserved in Section 180 of the Bill on National Security Statutes). The
implementation of this protection serves as a crucial measure to discourage the use of torture
and coercion against those who are under custody and being interrogated.” 9 Nevertheless, it is
important to note that this particular condition is not obligatory. Furthermore, there exists a
dearth of precision concerning the scope of Section 105 in relation to the audio-visual
documentation of the subsequent evidence recovery procedure, a critical phase that is very
susceptible to irregularities and potential falsification. The proposed measure would introduce
a key provision by mandating the use of audio-video recording during the evidence collection
process, considering the heavy reliance of investigative authorities on the recovery of such
evidence.

9
The Code of Criminal Procedure 1973, s 176.

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The BNSS, meanwhile, fails to incorporate the necessity of audio-video recording for other
significant procedures conducted during investigations, such as spot inspections (except
Section 176(3)), inquest proceedings, or post mortem examinations of the deceased. The
(BNSS) does not enhance the current regulations pertaining to audio-video recording as
outlined in the (CrPC). For example, the inclusion of audio-video recording of witness
testimony by law enforcement personnel remains discretionary in accordance with Section
180. According to Section 54, the recording of audio-video means is mandated solely for test
identification hearings that involve witnesses exhibiting physical or mental limitations. This
requirement does not extend to other identification proceedings, which are exempt from such
recording. In accordance with the Code of Criminal Procedure (CrPC), the (BNSS) maintains
the obligatory provision for the use of videography in documenting police statements.
Additionally, for specific vulnerable victims who have physical or mental disabilities, the
recording of statements before a magistrate is required to be conducted using audio and video
means, as stated in Sections 173(1) and 183(6) of the CrPC.

AUDIO-VIDEO RECORDING

The provision of access to audio-video recordings to witnesses, victim-informants, and the

accused is crucial for ensuring the effectiveness of these recordings as a safeguard throughout
investigations. This would allow individuals to provide evidence supporting their assertions
on the lack of adherence to procedural safeguards by law enforcement officials throughout
the investigative process.

The linguistic scope of Section 230 under BNSS may possess sufficient breadth to permit the
incorporation of audio-visual recording. According to Section 230, it is mandated that both
the accused individual and the victim, if they are being represented by legal counsel, must be
provided with the police report and all pertinent papers, which encompass statements and
confessions. The regulation does not clearly make reference to the supply of audio-video
recordings.

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Nevertheless, the term “document” encompasses a broad scope that extends to encompass
digital and electronic documents.10 The user did not provide any text to rewrite. Moreover,
Section 230 of the Criminal Procedure Code (CrPC) extends the scope of Section 207 by
explicitly incorporating the supply of documents in electronic format. It also empowers the
Magistrate to provide copies of voluminous documents electronically, in addition to the
existing provision that allows personal inspection of such records in court, either by the
individual or through legal representation. However, in the event that there is no specific
requirement for the provision of audio-video recordings, the ability of the accused and the
victim to acquire these materials may primarily rely on the judgment of the Magistrate or the
police.

CHANGES INTRODUCED IN BHARTIYA SAKSHYA BILL, 2023

 “The bill defines electronic evidence as any information generated or transmitted

by any device or system that is capable of being stored or retrieved by any means.

 It lays down specific criteria for admissibility of electronic evidence such as

authenticity, integrity, reliability etc., which can prevent misuse or tampering of
digital data.

 It provides for special provisions for admissibility of DNA evidence such as

consent, chain of custody etc., which can enhance accuracy and reliability of
biological evidence.

 It recognises expert opinion as a form of evidence such as medical opinion,

handwriting analysis etc., which can assist in establishing facts or circumstances
relevant to a case.

 It introduces the presumption of innocence as a fundamental principle of the

criminal justice system, which means that every person accused of an offense is
presumed to be innocent until proven guilty beyond reasonable doubt.”11

PRACTICAL DIMENSIONS OF THE NEW BILL

10
Bharatiya Nagarik Suraksha Sanhita 2023, s 2(c).
11
Reforming Country's Criminal Justice System < https://www.drishtiias.com/daily-updates/daily-news-
editorials/reforming-country-s-criminal-justice-system> accessed 16 November2023.

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 1. The objective of the reform is to contemporize and streamline the existing criminal
legislation, which is antiquated and intricate. The proposed reform aims to align the
laws with the inherent values and cultural identity of India, while also acknowledging
the evolving dynamics of crime, society, and technology.
2. The proposed revision aims to revoke the stringent sedition statute outlined in Section
124A of the Indian Penal Code (IPC), which has garnered significant censure due to
its alleged misuse against those expressing dissent and criticizing the government.
3. The proposed change will additionally incorporate new categories of offenses,
including terrorism, corruption, mob lynching, and organized crime, that are presently
not sufficiently addressed within the current legal framework.
4. The proposed amendment aims to broaden the scope of sexual offences by adopting a
gender-neutral approach, thereby encompassing individuals of all genders, including
men and transgender individuals, as both potential victims and perpetrators, alongside
women.
5. The proposed reform aims to enhance the utilization of electronic evidence and
forensics across the processes of investigation, prosecution, and adjudication.
6. The proposed change seeks to enhance citizen empowerment by enabling people to
file a police complaint at any police station, irrespective of the geographical location
where the crime was committed. The proposed reform will additionally encompass
provisions aimed at ensuring the robust safeguarding of citizens' constitutional rights,
including but not limited to the rights to life, liberty, dignity, privacy, and fair trial.

CONCLUSION

A significant step forward, the promotion and acceptance of electronic communication and
audio-visual means in court proceedings constitute a significant advancement that has the
potential to increase the effectiveness of the judicial system and put it in line with the current
norms of the 21st century. The proposed legislation is in line with the mission of the
government's Digital India effort, and there is reason to believe that, if it is enacted, it would
make this endeavor more successful than it would have been otherwise. The proposed
adjustments that pertain to the setting of timetables for inquiry, investigation, and trial, as
well as the formal integration of audio-visual and electronic means to facilitate various
processes, can be seen as a required remedy to boost the efficiency of the criminal justice
system. This is because these modifications are intended to help facilitate various procedures.

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However, the success of these guidelines in real-world applications is contingent on the
manner in which they are put into practice and adhered to, in terms of both their literal
interpretation and the meaning that was originally intended.

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