Electronic Communication under the | BNSS 2023

Electronic Communication under the BNSS, 2023: Section 2(1)(i), Audio-Video Electronic Means, Section 530 and the Digital Criminal Process

The most visible change made by the Bharatiya Nagarik Suraksha Sanhita, 2023 is the introduction of electronic procedure into every stage of a criminal case. Information about an offence may be given electronically, summons may be served electronically, a search must be recorded audio-visually, statements and confessions may be recorded by audio-video electronic means, an accused may appear for the framing of a charge through electronic means, evidence may be deposed electronically, a judgment must be uploaded within seven days, and section 530 permits the whole of a trial, inquiry or proceeding to be held in electronic mode.

The Code of Criminal Procedure, 1973 acquired electronic provisions piecemeal by amendment from 2008 onwards, and each was an exception to a physical default. The Sanhita reverses the arrangement: it defines the electronic vocabulary in section 2, confers a general permission in section 530, and then attaches the electronic mode to particular steps. Electronic procedure is no longer the exception but a parallel mode available throughout.

1. The Definitions

Sections 2(1)(a) and 2(1)(i), BNSS 2023

(a) “audio-video electronic means” shall include 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, provide;

(i) “electronic communication” means the communication of any written, verbal, pictorial information or video content transmitted or transferred, whether from one person to another, from one device to another, from a person to a device or from a device to a person, by means of an electronic device including a telephone, mobile phone or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form as may be specified by notification by the Central Government.

1.1 Three features of the two definitions

Both are inclusive and both are extensible. Clause (a) uses “shall include” and permits the State Government to add purposes and means by rules; clause (i) permits the Central Government to specify further devices or forms by notification. The reach of electronic procedure is therefore not fixed by the statute, and it may differ between States.
They do different work. Audio-video electronic means is about a process conducted or recorded through a device: a video conference, the recording of a search, the recording of evidence. Electronic communication is about the transmission of content: sending information, serving a summons, forwarding a report. Most provisions of the Sanhita use one or the other deliberately.
Neither defines an electronic record. That expression, and “computer”, “electronic form” and “digital signature”, come in through section 2(2), which provides that words used in the Sanhita and not defined in it but defined in the Information Technology Act, 2000 or the Bharatiya Nyaya Sanhita, 2023 carry the meanings assigned there.

2. The Architecture

Figure 1: The three layers on which electronic procedure rests

2.1 Section 530: the general enabling provision

Section 530, BNSS 2023

All trials, inquiries and proceedings under this Sanhita, including — (i) the issuance, service and execution of summons and warrant; (ii) examination of complainant and witnesses; (iii) recording of evidence in inquiries and trials; and (iv) all appellate proceedings or any other proceeding, may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

Four things should be noticed about the section. Its subject is “all trials, inquiries and proceedings”, so it is not confined to any stage or any class of case. The enumeration is introduced by “including”, so it is illustrative and the four items do not limit the general words. The word is “may”, so the section confers a permission and not an obligation, and a proceeding conducted physically is in no way irregular. And the section is silent on the conditions in which the permission is to be exercised, which are left to the rules made by the State Governments and to the practice directions of the High Courts.

📖 Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639

Facts: Petitions sought the live streaming of proceedings of the Supreme Court in cases of constitutional and national importance, on the ground that open justice requires that the public be able to see what the courts do and that physical access to a courtroom is a limited and unequal form of access.

Held: The Court held that the principle of open justice, which is an aspect of the right to a fair trial and of the right to receive information, is advanced rather than compromised by the use of technology. It permitted live streaming of proceedings of constitutional and national importance as a pilot project, subject to safeguards excluding matrimonial matters, matters involving sensitive identities, proceedings in camera and material whose publication would prejudice a party. The Court directed that rules be framed to govern the manner of streaming, archiving and use of the recordings.

Ratio: The use of technology in judicial proceedings is an extension of open justice, not an exception to it, provided the conditions that protect the parties and the integrity of the record are observed. Technology is to be introduced through rules, not case by case.

The decision predates the Sanhita and concerns a different subject, but the approach it takes is exactly the one section 530 assumes. Technology is permitted generally; the conditions on which it is used are supplied by rules; and the safeguards are those that protect the fairness of the proceeding and the interests of vulnerable parties.

3. The Specific Provisions

Figure 2: Every electronic provision of the Sanhita, grouped by the stage at which it operates

3.1 Process

Section 63 provides that a summons shall be in writing, in duplicate, signed by the presiding officer or such other officer as the High Court directs, and shall bear the seal of the court, and adds that it may be in encrypted or any other form of electronic communication and shall bear the image of the seal of the court or a digital signature. Section 64(2) permits service by electronic communication in such form and manner as the State Government may provide by rules. Section 70(3) provides that summons served through electronic communication shall be deemed to be duly served, and a copy is attested and kept as proof of service. Section 71 permits a copy of a summons to a witness to be served by electronic communication at the same time as the ordinary summons.

3.2 Investigation

Provision	Electronic element	Permissive or obligatory
Section 94	Production of a document or an electronic communication device likely to contain digital evidence, on a summons or written order	Obligatory on the person required
Section 105	Search and seizure, 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 forwarded to the Magistrate without delay	Obligatory
Section 173(1)	Information about a cognizable offence may be given by electronic communication, and is taken on record on being signed within three days	Permissive for the informant
Section 176(1), proviso	The statement of a victim of specified sexual offences may be recorded by audio-video electronic means, and in the case of a disabled victim the recording shall be videographed	Mixed
Section 176(3)	The collection of forensic evidence at the scene, in offences punishable with seven years or more, shall be videographed	Obligatory
Sections 180 and 183	Statements of witnesses, and confessions and statements before a Magistrate, may be recorded by audio-video electronic means, in specified cases including on a mobile phone	Permissive
Section 193(3)(i)(i)	The police report shall state the sequence of custody of an electronic device	Obligatory
Section 193(3)(ii)	Progress of the investigation communicated to the informant or victim within ninety days, by any means including electronic communication	Obligatory as to the communication
Section 349	A Magistrate may order a person to give specimen voice samples and finger impressions, provided he has been arrested in connection with the case	Obligatory on the person ordered

📖 Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1

Facts: The police sought an order compelling an accused to give a voice sample for comparison with a recorded conversation. The Code of Criminal Procedure empowered a Magistrate to order specimen signatures or handwriting but said nothing about voice. The questions were whether such an order infringes the protection against self-incrimination, and whether a Magistrate has the power in the absence of an express provision.

Held: The Supreme Court held that compelling an accused to give a voice sample does not infringe Article 20(3), because a voice sample is material for comparison and is not in itself a testimonial communication conveying any personal knowledge of the facts. On the second question the Court held that, until the legislature acted, a Judicial Magistrate must be conceded the power to order a person to give a voice sample for the purposes of investigation, the power being an incident of the court’s duty to make the investigative process effective.

Ratio: A specimen taken for comparison is not testimony, and compelling it does not offend the protection against self-incrimination. Where the statute is silent, the court supplies the power; where the legislature acts, the statutory provision governs.

Section 349 of the Sanhita is the legislative answer the Court invited. It extends the Magistrate’s power to order specimen signatures or handwriting so as to cover finger impressions and voice samples, and adds a safeguard the earlier position lacked: a proviso requiring that the person from whom the sample is sought has been arrested in connection with the case. The power is therefore no longer available against a person who is a stranger to the proceeding.

3.3 Trial, judgment and jurisdiction

Section 193(8), proviso. Supply of the report and other documents by electronic communication is considered as duly served.
Section 202. Offences committed by means of letters or electronic communication may be inquired into or tried by a court within whose local jurisdiction such letters or electronic communications were sent or received. The provision fixes jurisdiction for an offence whose acts are distributed across networks.
Section 251(2). The accused may appear, and the charge may be read over and explained to him, through electronic means.
Section 254. Evidence may be deposed by audio-video electronic means at a designated place notified by the State Government.
Section 308 and section 355, Explanation. Evidence is taken in the presence of the accused, and personal attendance includes attendance through audio-video electronic means.
Section 392(4). A copy of the judgment is to be uploaded on the portal of the court within seven days of pronouncement, as far as practicable.

4. What Electronic Procedure Does Not Supply

⚠ Collection is not proof

The Sanhita generates a great deal of electronic material: the recording of a search under section 105, the videography of forensic collection under section 176(3), statements and confessions under sections 180 and 183, and the record of proceedings held in electronic mode under section 530. Every one of those is an electronic record.

Whether such a record may be proved, and on what conditions, is governed by the Bharatiya Sakshya Adhiniyam, 2023 and not by the Sanhita. An electronic record produced in secondary form requires the certificate that statute prescribes, and the chain of custody must be established. A recording lawfully made and lawfully forwarded may still be unusable at trial if the evidentiary conditions were not attended to at the time it was made.

This is why section 193(3)(i)(i), requiring the police report to state the sequence of custody of an electronic device, is a more consequential provision than its brevity suggests. It is the procedural counterpart of an evidentiary requirement.

4.1 The other limits

The permission is not an obligation. Section 530 uses “may”. A court that proceeds physically is not acting irregularly, and an accused cannot insist on an electronic hearing as of right.
The reach depends on rules. Both definitions are extensible by delegated legislation, and several provisions operate “in such form and manner as the State Government may by rules provide”. Until such rules are made, the provisions they govern have no settled operation, and the position may differ between States.
The reach depends on infrastructure. An electronic mode requires connectivity, equipment and trained personnel at the police station, the court and the place from which a witness deposes. The proviso allowing five years for forensic facilities under section 176(3) is an acknowledgment of the same problem in a related field.
The constitutional standard is unchanged. What may not be dispensed with is the substance of the opportunity to be present, to instruct counsel, to see and hear the witness and to cross-examine. Constructive presence through a video link satisfies that requirement; an arrangement that does not preserve it would not become lawful merely because section 530 permits an electronic mode.

5. Electronic Provisions: CrPC and BNSS Compared

Subject	Under the CrPC, 1973	Under the BNSS, 2023
Definitions	None. “Electronic” expressions were used without definition	Sections 2(1)(a) and 2(1)(i), with section 2(2) importing the Information Technology Act, 2000
General enabling provision	None	Section 530
First information	Physical only; e-FIR existed as administrative practice in some States	Section 173(1): by electronic communication, signed within three days
Service of summons	Personal service, with limited provision for post	Sections 63, 64(2), 70(3) and 71: encrypted or electronic form, deemed duly served
Search and seizure	A list and witnesses; no recording requirement	Section 105: audio-video recording, forwarded to the Magistrate
Statements and confessions	Audio-video recording introduced by amendment for limited categories	Sections 180 and 183: generally available, including on a mobile phone in specified cases
Evidence	Video conferencing permitted by construction	Sections 254, 308 and 530: expressly permitted
Appearance for the charge	Physical presence	Section 251(2): through electronic means
Supply of documents	Physical copies	Section 193(8) proviso and section 230: electronic supply deemed duly served
Judgment	Pronounced in open court	Section 392(4): also uploaded on the court’s portal within seven days
Voice samples	No express power; supplied by the Supreme Court	Section 349, with the safeguard of prior arrest

6. Key Takeaways

The position stated shortly

1. Section 2(1)(a) defines audio-video electronic means, covering video conferencing and the recording of identification, search and seizure and evidence, extensible by State rules.

2. Section 2(1)(i) defines electronic communication as the transmission of written, verbal, pictorial or video content by an electronic device, extensible by Central Government notification.

3. Section 2(2) imports the Information Technology Act, 2000, which supplies “electronic record”, “computer” and the rest of the vocabulary the Sanhita uses without defining.

4. Section 530 permits all trials, inquiries and proceedings, including process, examination of witnesses, recording of evidence and appeals, to be held in electronic mode. The word is “may”.

5. Some electronic provisions are obligatory, not permissive: section 105 on the recording of search and seizure, section 176(3) on videography of forensic collection, and section 193(3)(i)(i) on the sequence of custody of an electronic device.

6. Process may be issued and served electronically under sections 63, 64, 70 and 71, and such service is deemed duly served.

7. Section 202 fixes jurisdiction for offences committed by electronic communication at the place where the communication was sent or received.

8. Section 349 codifies the power to order voice samples, with the new safeguard that the person must have been arrested in the case: Ritesh Sinha supplied the power before the statute did.

9. The Sanhita governs collection; the Bharatiya Sakshya Adhiniyam governs proof. Lawful electronic collection does not by itself make the record admissible.

7. Frequently Asked Questions

What is electronic communication under the BNSS?

Under section 2(1)(i), the communication of any written, verbal, pictorial information or video content transmitted between persons, between devices, or between a person and a device, by an electronic device including a telephone, mobile phone, computer, audio-video player or camera, or any other device the Central Government specifies by notification.

What is the difference between electronic communication and audio-video electronic means?

Electronic communication concerns the transmission of content, such as giving information, serving a summons or forwarding a report. Audio-video electronic means concerns a process conducted or recorded through a device, such as video conferencing or the recording of a search, a seizure or evidence. Section 2(1)(a) permits State rules to extend the second.

Can a whole criminal trial be conducted online under the BNSS?

Section 530 permits all trials, inquiries and proceedings, including the issue and service of process, the examination of witnesses, the recording of evidence and appellate proceedings, to be held in electronic mode. The provision is permissive, and its practical operation depends on State rules and on the infrastructure available.

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 a summons be served by WhatsApp or email under the BNSS?

Service by electronic communication is permitted by the proviso to section 64(2), in such form and manner as the State Government provides by rules, and section 70(3) deems such service to be duly served with an attested copy kept as proof. Whether a particular medium qualifies depends on the rules the State has made.

Does the BNSS make electronic evidence admissible?

No. The Sanhita governs how material is collected and how proceedings are conducted. Admissibility and proof of an electronic record are governed by the Bharatiya Sakshya Adhiniyam, 2023, including its certificate requirement for records produced in secondary form.

Related Topics

Police Report under the BNSS, 2023: Section 193
The Public Prosecutor under the BNSS, 2023
New Features of the BNSS, 2023
BNS, BNSS and BSA: Their Interrelationship
Search and Seizure under the BNSS, 2023: Chapter VII
Important Definitions under Section 2 of the BNSS, 2023