Forensic Investigation under the BNSS 2023 Section 176(3)

Section 176(3), BNSS 2023

Where an offence is punishable for seven years or more, the police officer shall, from such date as may be notified within a period of five years by the State Government, 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 offence is developed or ready, notify the utilisation of such facility of any other State.

⚠ Four questions the provision does not answer

When does it start? The obligation operates “from such date as may be notified, within a period of five years, by the State Government”. Until a State notifies, the section does not bite there. The five-year window is a frank legislative acknowledgment that the infrastructure does not exist, and the practical reach of the provision therefore depends on the notifications each State issues and on the laboratories it builds.

What happens if it is not done? The section prescribes no consequence. Chapter XXXVII governs, and section 511 makes failure of justice the test rather than mere non-compliance. The omission therefore goes to the weight of the prosecution case rather than to the validity of the proceeding — but in a case that turns on scientific evidence, weight is the whole of the matter.

Who is a “forensic expert”? The expression is not defined in the Sanhita. In practice it means an officer of a Forensic Science Laboratory or a person of comparable qualification, and the question of his competence is one that arises at the trial when his opinion is tendered.

What of custody and integrity? The section says nothing about how what is collected is to be sealed, stored, transmitted or accounted for. The Sanhita addresses the question in one respect only: section 193(3)(i) requires the report to state the sequence of custody in case of electronic device.

📖 Rahul v. State of Delhi, Ministry of Home Affairs, (2023) 1 SCC 83

Facts: The accused had been convicted of the abduction, rape and murder of a young woman and sentenced to death, and the conviction had been affirmed. On appeal the Supreme Court examined the manner in which the investigation had been conducted and in particular the handling of the scientific evidence on which the prosecution substantially relied.

Held: The Court set aside the convictions. It found serious and unexplained lapses in the investigation: material objects were not properly sealed, the chain of custody of the samples was not established, there was an unexplained delay in sending articles to the laboratory, the DNA evidence had not been proved in accordance with law, and the manner in which the samples had been collected and stored left open the possibility of tampering. The Court held that in a case resting on circumstantial and scientific evidence the prosecution must establish the integrity of the material from the point of seizure to the point of examination, and that a failure to do so is not a technicality that can be overlooked because the offence is grave. It observed that the courts cannot convict on evidence whose provenance has not been established, however heinous the crime, and that lapses of this kind in the investigation result in the guilty escaping.

Ratio: Scientific evidence is worth nothing unless the chain of custody from seizure to examination is established. The gravity of the offence does not relax the requirement; it makes it more important.

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Facts: Video recordings and other electronic records were tendered in evidence without the certificate that the Indian Evidence Act, 1872 required for the admissibility of an electronic record produced otherwise than by the production of the original device. Earlier decisions had differed on whether the certificate was mandatory, one line of authority having held that oral evidence of the manner of production would suffice.

Held: A three-Judge Bench held that the certificate is a mandatory pre-condition to the admissibility of an electronic record adduced as secondary evidence, that is, in any form other than the production of the original device on which the record was first created and stored. Oral evidence of the manner of production is not a substitute. Where the original device itself is produced and proved by its owner, no certificate is needed. Where the party is unable to obtain the certificate because the device is in the possession of someone else who will not give it, the Court held that the party may apply to the court, which may summon the person concerned and direct the certificate to be produced. The Court also directed that electronic records be preserved for the duration of the trial and the appeal.

Ratio: An electronic record tendered otherwise than by the production of the original device is admissible only with the statutory certificate. The obligation to make a recording is one thing; the conditions on which it can be proved are another.

⚠ The practical consequence for an investigating officer

A recording made on a mobile phone under section 176(3) or section 105 will almost never be tendered by producing the phone itself, which will have passed out of the officer’s hands, been used for other things, or been replaced.

It follows that the recording will be tendered as a secondary electronic record, and that the certificate identifying the record, describing the manner of its production and giving the particulars of the device, signed by a person occupying a responsible official position, must be obtained. The moment to attend to that is at the time of the recording, not on the eve of the trial.

A recording lawfully made, lawfully forwarded to a Magistrate, and then rendered unusable because no certificate was ever prepared, is the most easily avoided failure in this area and one of the commonest.

The position stated shortly

1. Section 176(3) requires, where an offence is punishable with seven years or more, that the police officer cause a forensic expert to visit the crime scene to collect forensic evidence and cause videography of the process.

2. The trigger is the punishment prescribed, read off the Bharatiya Nyaya Sanhita or the special law. The officer has no discretion to decide that the case does not need forensic attention.

3. It is the expert who visits, and he visits the scene. The section does not contemplate the investigating officer collecting material and sending it to a laboratory.

4. The obligation operates from such date as the State Government notifies, within a period of five years. Until a State notifies, the section does not bite there.

5. Where a forensic facility is not available, the State Government shall, until it is developed, notify the utilisation of the facility of another State.

6. The section prescribes no consequence for non-compliance. Chapter XXXVII governs and section 511 makes failure of justice the test, so the omission goes to the weight of the case.

7. Forensic evidence is worth nothing unless the chain of custody from seizure to examination is established; the gravity of the offence does not relax the requirement: Rahul v. State of Delhi.

8. The Sanhita supplies four supports: videography of the collection under section 176(3), audio-video recording of every search and seizure forwarded to a Magistrate under section 105, the list and witnesses under section 103, and the sequence of custody of an electronic device under section 193(3)(i).

9. A videograph is an electronic record. Tendered otherwise than by producing the original device, it requires the statutory certificate; oral evidence of the manner of production is not a substitute: Arjun Panditrao Khotkar.

10. The Sanhita is silent on the laboratory: it says nothing about standards, the qualification of an expert, the time for furnishing a report, or the retention of samples.