Section 173 to section 196 of BNSS, 2023: Investigation process under the BNSS

This article has been written by BHAVYA GAUTAM, a 5th year BBA LLB Student from RNB GLOBAL UNIVERSITY BIKANER (RAJASTHAN)

Introduction

The enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 marks a significant transformation in the Indian criminal justice system, promising substantial reforms and innovations. This new law aims to reform and consolidate the criminal system laws in India, previously governed by the Code of Criminal Procedure (CrPC), 1973. The BNSS seeks to strike a balance between empowering authorities, such as the police, to make the investigative and adjudicatory processes robust and efficient, and controlling the potential misuse or abuse of these powers against individuals involved in the criminal justice system.

By introducing a citizen-centric criminal procedure, BNSS effectively addresses long-standing issues within the criminal justice system, such as complex legal procedures, the backlog of criminal cases in courts, and the insufficient use of forensic sciences and other scientific methods in crime scene investigations. This article focuses on the provisions that enable the police to conduct investigations professionally, expeditiously, and effectively, utilizing advanced technology and reliance on forensic sciences.

Reformation of Investigation System under Bharatiya Nagarik Suraksha Sanhita (BNSS)

Investigation constitutes a critical aspect of the criminal process, initiated upon receipt of information by a police officer regarding the commission of an offence. Its primary objective is to identify the perpetrator and gather evidence for the subsequent initiation of a trial against the alleged offender to administer appropriate punishment according to legal provisions.

Chapter XII of the CrPC delineated procedures related to information given to the police concerning the commission of an offence and their investigative powers. The BNSS introduces several reforms to the investigative process, including the use of electronic communication and forensic sciences to foster trust and ensure justice for all parties involved.

Information Given to the Police Officer Concerning Cognizable and NonCognizable Offences

Electronic Communication

CrPC Section 154(1): Previously, there was no provision for an officer in charge of a police station to receive information about the commission of a cognizable offence by electronic means.

BNSS Section 173(1): Allows information about the commission of a cognizable offence to be transmitted to the officer in charge of the police station via electronic communication. This information must be recorded and signed within three days by the individual who provided it, and the substance of such electronic communication must be recorded in a diary as prescribed by the state government.

Copy to Informant or Victim

CrPC Section 154(2): Required that a copy of the recorded information be provided only to the informant.

BNSS Section 173(2): Requires that a copy be sent to either the informant or the victim.

Preliminary Inquiry

BNSS Section 173(3): Introduces the concept of a preliminary inquiry. If a police station receives information about the commission of a cognizable offence punishable with imprisonment of three to seven years, the officer in charge may conduct a preliminary inquiry with the permission of a Deputy Superintendent of Police, depending on the nature and gravity of the offence.

seven years, the officer in charge of the police station may with the prior permission According to Bare Act Sec. 173: (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given—

• orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it;
• by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf: Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that—
• in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
• the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.
• A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim.
• Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,—
• proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
• proceed with investigation when there exists a prima facie case.

(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.

Handling Non-Cognizable Offences

CrPC Section 155(1): Required that if someone reports a non-cognizable offence to the police officer in charge of a police station within that station’s jurisdiction, the officer must record the information in a book as prescribed by the state government and refer the person reporting the offence to the magistrate.

BNSS Section 174: Requires such officers to forward the daily diary report of all such cases on a fortnightly basis to the magistrate.

According to Bare Act Sec.174: (1) When information is given to an officer in charge of a

police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf, and,—  (i)refer the informant to the Magistrate;

(ii)forward the daily diary report of all such cases fortnightly to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

• Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
• Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are noncognizable.

Procedure for Conducting an Investigation

CrPC Section 157: Governed the procedure for investigations conducted by police officers. However, it lacked provisions for modern technology and forensic methods in recording evidence from a crime scene.

BNSS Section 176: Incorporates these aspects in crime scene investigation and evidence recording. For example, it allows for the recording of a rape victim’s statement through audiovideo digital devices, including mobile phones, and permits such recordings to be admitted as evidence.

BNSS Section 176(3): Mandates that upon receiving information about an offence punishable by seven years or more, the officer in charge of the police station must ensure that a forensic expert visits the crime scene to collect evidence and that the scene is video graphed using mobile phones or electronic devices. If forensic facilities are lacking, the state government should notify the use of facilities from other states until local facilities are developed.

According to Bare Act Sec. 176: (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 175 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that—

• when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
• if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case: 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.
• In each of the cases mentioned in clauses (a) and (b) of the first proviso to sub-section (1), the officer in charge of the police station shall state in his report the reasons for not fully complying with the requirements of that sub-section by him, and, forward the daily diary report fortnightly to the Magistrate and in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by rules made by the State Government.
• 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:

Provided that where forensic facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that matter is developed or made in the State, notify the utilisation of such facility of any other State.

Development of Investigation

BNSS Section 193(3)(ii): Mandates that the officer inform the progress of the investigation by all means, including electronic communication, to the informant or the victim.

According to Bare Act Sec 193: (1) Every investigation under this Chapter shall be completed without unnecessary delay.

• The investigation in relation to an offence under sections 64, 65, 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.
• (i) As soon as the investigation is completed, the officer in charge of the police station shall forward, including through electronic communication 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;
• the nature of the information;
• the names of the persons who appear to be acquainted with the circumstances of the case;
• whether any offence appears to have been committed and, if so, by whom;
• whether the accused has been arrested;
• whether the accused has been released on his bond or bail bond;
• whether the accused has been forwarded in custody under section 190;
• whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 64, 65, 66, 67, 68, 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023;
• the sequence of custody in case of electronic device;
• the police officer shall, within a period of ninety days, inform the progress of the investigation by any means including through electronic communication to the informant or the victim;
• 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.
• 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.
• Whenever it appears from a report forwarded under this section that the accused has been released on his bond or bail bond, the Magistrate shall make such order for the discharge of such bond or bail bond or otherwise as he thinks fit.
• 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—
• all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
• the statements recorded under section 180 of all the persons whom the prosecution proposes to examine as its witnesses.
• 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.
• 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 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.
• 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 subsections (3) to (8) 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 conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court.

Procedure When Investigation Cannot Be Completed in 24 Hours

CrPC Section 167(2): Allowed a magistrate to authorize the detention of an accused for up to 15 days if the investigation could not be completed within 24 hours. If the magistrate lacked jurisdiction, they could order the accused to be forwarded to a magistrate with proper jurisdiction.

BNSS Section 187(2): Expands this provision, allowing a magistrate, regardless of jurisdiction, to consider whether the accused has been released on bail or their bail has been canceled. The magistrate can then authorize the accused’s detention for up to 15 days during the initial detention period of either 40 or 60 days, as specified in BNSS Section 187(3). If the magistrate lacks jurisdiction and believes further detention is unnecessary, they can order the accused to be sent to a Judicial magistrate with the proper jurisdiction.

According to Bare Act Sec.187: . (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.

• The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in subsection (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
• The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—
• ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;
• sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.
• No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means.
• No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in sub-section (3), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under sub-section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may be:

Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution:

Provided further that no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government.

• Notwithstanding anything contained in sub-section (1) to sub-section (5), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Magistrate have been conferred, a copy of the entry in the diary hereinafter specified relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in subsection (3):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

• A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
• Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
• If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
• Where any order stopping further investigation into an offence has been made under subsection (9), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (9) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

Conclusion

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, introduces significant reforms to the investigation process within the Indian criminal justice system. By incorporating modern technology and forensic sciences, the BNSS aims to enhance the efficiency, professionalism, and effectiveness of police investigations. These reforms address long-standing issues and seek to create a more balanced and just system that empowers authorities while safeguarding individuals’ rights.