15 Jan 2024 7:22 AM GMT
The Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) which seeks to replace the existing Code of Criminal Procedure, has made certain changes by adding provisions relating to the recording of evidence through 'audio-visual' means.
The new law has emphasized the significance of audio-video technology to aid the police in crime scene investigation. The new law defines the “audio-visual electronic means” to include the use of any communication device for the purposes of video conferencing, recording of processes of identification, search and seizure or evidence, transmission of electronic communication and for such other purposes and by such other means as the State Government may, by rules specify.
Let's understand the changes brought through the new criminal procedure code w.r.t. the recording of evidence through audio-visual means.
Audio-Visual Recording During the 'Search and Seizure'
The new law has specifically provided a provision relating to the 'recording of search and seizure through audio-video electronic means' making it mandatory for the police officer to make the audio-video recording of the search of a place or taking possession of any article, property or thing and the seizure list containing the list of items seized in the course of search and seizure, thereby forwarding the recording to the authorities without delay. Section 105 of BNSS 2 reads as: -
“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 mobile 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.”
It is worthwhile to mention that the mandate of Section 105 extends to firstly, to all search and seizures made under Chapter VII of the BNSS, i.e., 'processes to compel the production of things', and secondly, search by a police officer during the course of an investigation under Section 185. Section 185 (2) makes it mandatory to record the search through an audio-visual by stating that:
“A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person:
Provided that the search conducted under this section shall be recorded through audio-video electronic means preferably by mobile phone.
Contrastingly, the aforesaid mandate of recording audio-visual recordings doesn't apply to firstly, the search made by a police officer having a reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place as provided under Section 44 of BNSS, and secondly, the search made by a police officer of an arrested person as provided under Section 49 of BNSS.
Audio-Visual Recording of Confessions and Statements Made Before a Magistrate Not Mandatory
The new law didn't extend the mandatory requirement of recording the confessions and statements made before the magistrate through an audio-visual means where proviso 1 to Section 183 of BNSS contains the word 'may' making it optional for the magistrate to record confessions and statements in audio-visual means, the proviso reads as:
“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.”
However, the recording of confessions and statement through an audio-video recording is restricted to a person who is temporarily or permanently, mentally or physically disabled, as outlined under Section 183 (6) of BNSS.
Mandatory Videography of the Process of Collection of Forensic Evidence
Section 176 (3) introduces a mandate for the collection of forensic evidence at the crime scene by a 'forensics expert' in all offences punishable by imprisonment of seven years or more and the videography of the process on mobile phone or any other electronic device shall be made by a police officer thereof, the provision reads as:
“On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device.”
Miscellaneous Changes Made w.r.t. Audio-Video Recording of Evidence
Section 176 of BNSS which provides a procedure of investigation has an option of audio-video recording of any statement made during police investigation, however the caveat is that such recording through audio-visual means shall, if done, be of a victim in relation to the offence of rape. Section 176 (1) to this effect reads as:
“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality and such statement may also be recorded through any audio-video electronic means including mobile phone."
The provision of Audio-video recording of statements by witnesses to police has been made under Section 180 of BNSS but remains option on the part of the police official i.e., whether to record the statement through an audio-video means or not. Section 180(3) to this effect reads as:
“Provided that statement made under this sub-section may also be recorded by audio-video electronic means.”
The provision of audio-video recording of the 'Test Identification Parade' has been made under Section 54 of BNSS, however the recording of the T.I.P. by any audio-video electronic means is only limited to a person identifying the arrested person is mentally or physically disabled. Proviso to Section 54 to this effect reads as:
“Provided that if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with and the identification process shall be recorded by any audio-video electronic means.”
The use of audio-video means to communicate and explain charges to the accused person, is introduced by Section 251(2).
Section 254 allows for the use of audio-video electronic means in Sessions cases for the deposition of evidence or statements of witnesses, police officers, public servants, or experts. A similar provision is included in Section 265 for the trial of warrant cases, enabling the use of electronic means for examining witnesses.
Sections 265 and 266 allow the examination of a witness through audio-video electronic means at the designated place to be notified by the State Government.
Section 308 empowers the examination of the accused through electronic means, specifically utilizing audio-video conferencing (VC) facilities accessible in any place designated by the State Government.
Section 336 allows the use of audio-video means for the deposition of a public servant.
Also Read other articles on new criminal laws :
Bail Provisions In Bharatiya Nagarik Suraksha Sanhita (New CrPC) : Understanding Changes
Admissibility Of Electronic Evidence Under Bharatiya Sakshya Adhiniyam (New Evidence Act)
Registration Of FIR Under The Bharatiya Nagarik Suraksha Sanhita (New CrPC)
Major Changes Introduced by Bharatiya Nyaya Sanhita
New Criminal Laws Continue Colonial Logic, Expand Police Powers : Prof.Anup Surendranath
Click here to read the Bharatiya Nyaya Sanhita 2023 (new IPC)
Click here to read the Bharatiya Nagarik Suraksha Sanhita 2023 (new CrPC)
Click here read the Bharatiya Sakshya Bll 2023 (new Evidence Act)