Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Audio Video Electronic Means under the BNSS 2023
Audio-Video Electronic Means under the BNSS, 2023: Section 2(1)(a), Video Conferencing, Recording of Identification, Search, Seizure and Evidence
The expression “audio-video electronic means” appears in more than a dozen provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 and does two very different kinds of work. In some provisions it permits a step to be taken remotely, so that a person who would otherwise have had to be physically present need not be. In others it requires a step to be recorded, so that what was done can afterwards be seen rather than merely described. The first is about presence; the second is about proof.
The distinction runs through the whole subject. A video-conferenced appearance under section 251(2) removes the need for the accused to travel; an audio-video recording of a search under section 105 does not remove anything, but creates a contemporaneous record of a process that was previously proved only by the oral testimony of those who conducted it. The second use is the more consequential, because it addresses the oldest evidentiary weakness in Indian criminal trials.
1. The Definition
Section 2(1)(a), BNSS 2023 “Audio-video electronic” means shall include use of any communication device for the purposes of — (i) video conferencing; (ii) recording of processes of identification, search and seizure or evidence; (iii) transmission of electronic communication; and (iv) for such other purposes and by such other means as the State Government may, by rules, provide. |
1.1 Four features of the definition
- It is inclusive. The words are “shall include”, so the enumeration does not exhaust the expression. A use of a communication device answering the general description is covered even if it does not fall squarely within one of the enumerated purposes.
- It is device-neutral. The definition speaks of “any communication device” and not of any particular technology. Several provisions add “preferably a mobile phone”, which is a direction as to convenience and not a limitation.
- It is extensible by State rules. Clause (iv) permits the State Government to add purposes and means. The reach of the expression is therefore not fixed by Parliament and may differ between States, which is unusual in a definition clause and has consequences for uniformity.
- It overlaps with electronic communication. Purpose (iii) is the transmission of electronic communication, which is separately defined in section 2(1)(i). The two expressions are not mutually exclusive, and a provision that uses one has generally chosen it deliberately.
Figure 1: Audio-video electronic means and electronic communication compared
2. The Four Purposes and Where Each Operates
Figure 2: The enumerated purposes, with the provisions that give effect to each
2.1 Video conferencing
Video conferencing operates wherever the Sanhita requires a person to be present and permits that presence to be constructive rather than physical.
Provision | What may be done by video conference |
|---|---|
Section 251(2) | The accused may appear, and the charge may be read over and explained to him, through electronic means. The provision is significant because the framing of the charge is the point at which a trial commences |
Section 254 | Evidence may be deposed by audio-video electronic means at a place designated by the State Government |
Section 308 | Evidence is to be taken in the presence of the accused, or where his personal attendance is dispensed with, in the presence of his advocate, and this may be by audio-video electronic means |
Section 355, Explanation | Personal attendance of the accused, for the purposes of the section on inquiry or trial in his absence, includes attendance through audio-video electronic means |
Section 265 | A witness may be examined in the manner the Sanhita and the rules provide, and the recording of that examination electronically follows from section 530 |
Section 530 | The general permission: all trials, inquiries and proceedings, including the examination of witnesses and appellate proceedings, may be held in electronic mode |
📖 Sakshi v. Union of India, (2004) 5 SCC 518 Facts: A public interest petition concerned the ordeal faced by child victims and victims of sexual offences when giving evidence in the physical presence of the accused, and sought directions to make the process of testifying less traumatic without impairing the right of the accused to a fair trial. Held: The Supreme Court directed that in trials of sexual offences and offences against children the court should permit the use of a screen or other arrangement so that the victim or witness does not have to see the body or face of the accused; that questions in cross-examination be given in writing to the presiding officer, who may put them to the witness in language that is clear and not embarrassing; and that the victim be allowed sufficient breaks while testifying. The Court proceeded on the footing that the right of the accused is to have the evidence given in his presence and to have it tested by cross-examination, and that neither is impaired by an arrangement that shields the witness from direct confrontation. Ratio: The requirement that evidence be given in the presence of the accused is satisfied by an arrangement in which he can hear the witness and have the evidence tested, without direct visual confrontation. Presence is about the opportunity to contest, not about physical proximity. |
The reasoning is the foundation on which the electronic provisions of the Sanhita rest. What Article 21 and the Sanhita protect is the substance of the opportunity to see and hear the witness, to instruct counsel and to cross-examine. An arrangement that preserves that substance satisfies the requirement of presence; an arrangement that does not would not become lawful merely because a section permits an electronic mode.
📖 In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic, (2020) 5 SCC 470 Facts: With physical hearings suspended, the Supreme Court took up on its own motion the question of how courts across the country should continue to function, and what the legal basis and the safeguards for hearings conducted through video conferencing should be. Held: The Court held that courts are obliged to maintain access to justice, and that the use of technology to conduct proceedings is consistent with the constitutional mandate. Exercising its powers under Article 142, it directed that all High Courts determine the modalities for the temporary transition to video conferencing, that every District Court adopt the mode prescribed by the High Court, and that courts make available video conferencing facilities to litigants without means. The Court directed that in matters where evidence is to be recorded, the presiding officer may restrict entry and regulate the proceedings so that the integrity of the record and the fairness of the process are preserved, and that a helpline be maintained to address complaints about the quality of the connection. Ratio: Proceedings conducted through video conferencing are proceedings of the court and not an inferior substitute, provided the modalities are prescribed in advance by rules and the conditions that protect the record and the parties are observed. |
2.2 Recording of processes of identification
Section 54 provides for the identification of a person arrested. Where the person identifying is mentally or physically disabled, the section requires the process of identification to take place under the supervision of a Judicial Magistrate, who is to take appropriate steps to ensure that the identification is made in a manner the person is comfortable with, and requires the process to be recorded by audio-video electronic means. A comparable provision appears in the proviso to section 176(1), under which the statement of a victim who is temporarily or permanently mentally or physically disabled is recorded in the presence of an interpreter or special educator and the recording is videographed.
Both provisions share a purpose. Where a witness communicates in a manner that a written record cannot capture, the written record is an unreliable account of what was said, and the answer is to preserve the process itself rather than a transcription of it. The recording is not merely corroborative; it is the only faithful record of what occurred.
2.3 Recording of search and seizure
Section 105 is the most far-reaching of the recording provisions. It requires that the search, and the preparation of the list of all things seized in the course of it and of the places in which they were found, be recorded through audio-video electronic means, preferably a mobile phone, and that the police officer forward the recording without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.
Nothing corresponding to it existed in the Code of Criminal Procedure, which required only that the search be conducted in the presence of witnesses and that a list be prepared. The provision is directed at the single most persistent evidentiary contest in Indian criminal trials, which is the challenge to a recovery on the footing that the article was planted or that the seizure witnesses were not independent. A contemporaneous recording forwarded to a judicial officer is a stronger answer to that challenge than the testimony of panch witnesses, and its absence is likely to become a standard ground of cross-examination.
2.4 Recording of evidence
Provision | What is recorded | Permissive or obligatory |
|---|---|---|
Section 180(3) | Statements of witnesses made to the police during investigation | Permissive |
Section 183 | Confessions and statements recorded by a Magistrate; in the case of a victim of specified offences the statement may be recorded by any audio-video electronic means including a mobile phone | Permissive, subject to the specific requirements in the section |
Section 176(1), proviso | The statement of a victim of specified sexual offences, and, in the case of a disabled victim, the whole recording | Obligatory for a disabled victim |
Section 176(3) | The collection of forensic evidence at the scene of an offence punishable with seven years or more | Obligatory |
Section 254 | The deposition of a witness at a designated place | Permissive |
Section 356(5) | Depositions and the examination of witnesses in a trial conducted in the absence of a proclaimed offender | Obligatory, so that the record is available if the accused is later apprehended |
3. Permissive and Obligatory
⚠ Which provisions actually compel the use of audio-video means Most electronic provisions of the Sanhita are permissive, and a step taken physically is in no way irregular. Four are not. Section 105 requires the recording of a search and seizure and the forwarding of the recording to the Magistrate. Section 176(3) requires the videography of forensic collection in offences punishable with seven years or more. Section 54 requires the recording of an identification where the identifier is disabled. Section 356(5) requires the recording of depositions in a trial in absentia. The consequence of non-compliance is not stated in any of them. It will therefore be governed by Chapter XXXVII and section 511, under which a departure vitiates a proceeding only where a failure of justice has in fact been occasioned. In practice the more likely consequence is evidentiary: the absence of a recording the statute required weakens the prosecution’s answer to a challenge that the recording would have met. |
4. What the Provisions Do Not Settle
- Admissibility. Every recording made under these provisions is an electronic record, and whether it may be proved, and on what conditions, is governed by the Bharatiya Sakshya Adhiniyam, 2023 and not by the Sanhita. The certificate required for an electronic record produced in secondary form, and the chain of custody, must be attended to at the time the recording is made, not at the time it is produced.
- Custody and integrity. The Sanhita requires the recording to be forwarded to a Magistrate in the case of a search, but says nothing generally about how recordings are stored, who has access to them, or how alteration is prevented. Section 193(3)(i)(i), requiring the police report to state the sequence of custody of an electronic device, addresses part of the same problem for devices seized.
- The conditions for a video-conferenced hearing. Section 530 confers the permission and leaves the modalities to State rules and to the practice directions of the High Courts. Until such rules are made and the facilities exist, the provision has no settled operation.
- Privacy. A recording made under section 105 captures the interior of a private dwelling and everyone in it, and a recording under section 183 captures a victim’s account of a sexual offence. The Sanhita provides no express rule about who may view such a recording or how it is to be protected from disclosure. The general law on the protection of the identity of victims, and the court’s power to regulate its own record, supply the answer in the meantime.
5. Key Takeaways
The position stated shortly 1. Section 2(1)(a) defines audio-video electronic means inclusively as the use of any communication device for video conferencing, for the recording of processes of identification, search and seizure or evidence, for the transmission of electronic communication, and for such other purposes as State rules provide. 2. The expression does two kinds of work: it permits a step to be taken remotely, and it requires a step to be recorded. The first is about presence, the second about proof. 3. Video conferencing operates under sections 251(2), 254, 308, 355 and 530, and permits constructive rather than physical presence. 4. Presence is satisfied by an arrangement in which the accused can hear the witness and have the evidence tested by cross-examination: Sakshi. 5. Proceedings conducted by video conference are proceedings of the court, provided the modalities are prescribed in advance by rules: In Re: Guidelines for Court Functioning Through Video Conferencing. 6. Section 54 requires the recording of an identification where the identifier is disabled; the proviso to section 176(1) requires videography of the statement of a disabled victim. 7. Section 105 requires the search, and the list of things seized and of the places in which they were found, to be recorded and the recording forwarded to the Magistrate. It has no counterpart in the CrPC. 8. Sections 105, 176(3), 54 and 356(5) are obligatory; most other electronic provisions are permissive. 9. The Sanhita governs the making of the recording; the Bharatiya Sakshya Adhiniyam governs whether it may be proved. |
6. Frequently Asked Questions
What are audio-video electronic means under the BNSS?
Under section 2(1)(a), the use of any communication device for video conferencing, for recording the processes of identification, search and seizure or evidence, for transmitting electronic communication, and for such other purposes and by such other means as the State Government provides by rules.
How is it different from electronic communication?
Audio-video electronic means concerns a process conducted or recorded through a device; electronic communication under section 2(1)(i) concerns the transmission of content between persons or devices. The first produces a record of what happened; the second moves information from one place to another. Provisions requiring a record, such as sections 105 and 183, use the first; provisions requiring delivery, such as sections 64 and 173, use the second.
Is audio-video recording of a search compulsory?
Yes. Section 105 requires the search and the preparation of the list of things seized and of the places in which they were found to be recorded through audio-video electronic means, preferably a mobile phone, and the recording to be forwarded to the Magistrate without delay.
Can an accused appear for the framing of a charge by video conference?
Yes. Section 251(2) permits the accused to appear and the charge to be read over and explained to him through electronic means. Section 355, Explanation, confirms that personal attendance includes attendance through audio-video electronic means.
Can evidence be recorded by video conference under the BNSS?
Yes, under section 254 at a designated place, and generally under section 530. What may not be dispensed with is the substance of the accused’s opportunity to hear the witness and to cross-examine, which is what the requirement of presence protects.
Does a recording made under section 105 prove itself?
No. It is an electronic record, and its admissibility and proof are governed by the Bharatiya Sakshya Adhiniyam, 2023, including the certificate required for a record produced in secondary form. Lawful recording under the Sanhita and admissibility under the Adhiniyam are separate questions.
Related Topics
- Electronic Communication under the BNSS, 2023
- Classification of Offences under the First Schedule
- Search and Seizure under the BNSS, 2023: Chapter VII
- Recording of Confessions and Statements: Section 183, BNSS
- Trial in Absentia of a Proclaimed Offender: Section 356, BNSS
- Important Definitions under Section 2 of the BNSS, 2023