Investigation under the BNSS 2023 Sections 173 to 196

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.

⚠ What the provision does and does not settle

It is mandatory in form. The word is “shall”, and the trigger is the punishment prescribed, read off the Bharatiya Nyaya Sanhita. The officer has no discretion to decide that the case does not need forensic attention.

But it is not yet in force everywhere. The obligation operates “from such date as may be notified within a period of five years by the State Government”, and the proviso contemplates States without the facility using another State’s. The five-year window is a frank acknowledgment that the infrastructure does not exist, and the practical reach of the provision depends on the notifications each State issues.

It prescribes no consequence for breach. Where the visit was not caused, or the process not videographed, the section is silent. Chapter XXXVII and the test of failure of justice under section 511 will govern, which means that the omission is a matter going to the weight of the prosecution case rather than to the validity of the proceeding.

It says nothing about custody or integrity. What is collected must be preserved, and its chain of custody must be capable of proof. The Sanhita addresses that in one respect only: section 193(3) requires the report to state the sequence of custody in case of electronic device.

Section 181, BNSS 2023

(1) No statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by the Bharatiya Sakshya Adhiniyam, 2023; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

📖 Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012 (Constitution Bench)

Facts: Witnesses for the prosecution had given evidence at the trial containing details not found in their earlier statements to the police. The defence sought to use those omissions to contradict the witnesses under the proviso to section 162 of the Code of Criminal Procedure. The question was whether an omission in a police statement can amount to a contradiction, and if so when.

Held: The Constitution Bench held that the section permits a police statement to be used only to contradict, and that an omission can amount to a contradiction only where the statement, read as a whole, is inconsistent with the evidence given. The Court laid down the test: where a witness deposes to a fact and his police statement, by necessary implication, negatives that fact, there is a contradiction; a mere failure to mention a detail is not. It gave the familiar illustrations: if the witness says at trial that A stabbed the deceased and his police statement says that B did, that is a contradiction; if the statement says that he saw the stabbing but does not say who did it, that may be a contradiction by implication where the omission is of a fact which he would in the ordinary course have stated; but the omission of an ordinary detail is not. The Court emphasised that the statement is not substantive evidence and cannot be used to corroborate or to fill a gap.

Ratio: A police statement may be used only to contradict. An omission amounts to a contradiction only where the statement, by necessary implication, negatives what the witness has deposed to; a mere absence of a detail does not.

📖 Shivappa v. State of Karnataka, (1995) 2 SCC 76

Facts: A conviction rested substantially on a confession recorded by a Magistrate. It appeared that the Magistrate had not given the accused any time for reflection, had not put questions to satisfy himself that the confession was voluntary, and had recorded the confession shortly after the accused was produced from police custody, appending the memorandum as a matter of form.

Held: The Supreme Court set aside the conviction. It held that the provisions on the recording of a confession are mandatory and must be strictly complied with, because a confession is admitted as evidence against its maker and the only guarantee of its reliability is the manner of its recording. The Magistrate must explain to the accused that he is not bound to confess and that the confession may be used against him; must question him to ascertain whether he is making it voluntarily; must give him adequate time for reflection and ensure that he is free from the influence of the police, ordinarily by remanding him to judicial custody before recording; and must record the questions put and the answers given, not merely append a formal certificate. A confession recorded in disregard of those requirements is unreliable and cannot be acted upon.

Ratio: The requirements for recording a confession are mandatory. The Magistrate must explain, question, allow time for reflection, and record the questions and answers; a formal memorandum without that process does not make a confession reliable.

⚠ The three propositions on the case diary

It is not evidence. The court may use it to aid it in the inquiry or trial — to understand the course of the investigation, to see what was done and when — but not as proof of any fact stated in it. A finding founded on an entry in a case diary is bad.

The accused cannot call for it. That is expressly provided, and it is not a denial of a fair trial, because the material the prosecution relies on must be supplied to him separately under section 230, and the statements of the witnesses it proposes to examine accompany the report under section 193.

But there are two doors. If the officer uses the diary to refresh his memory, or if the Court uses it to contradict him, the ordinary rules on refreshing memory and on the cross-examination of a witness on a document apply, and the accused then gets access to the relevant part. The diary is therefore not absolutely closed; it is closed unless the prosecution opens it.

⚠ The change in police custody, and what it means

The fifteen-day cap is unchanged. What changed is the window within which it may be taken: previously the first fifteen days from the first remand, and now in parts, at any time during the first forty or sixty days of the sixty or ninety day period.

The practical effect is considerable. An accused who is in judicial custody after the first fifteen days may now be taken back into police custody weeks later, for the unused balance of the fifteen days, if the investigation requires it.

The argument for the change is that a modern investigation produces leads late — a forensic report, a recovery, a co-accused’s arrest — and the earlier rule made it impossible to act on them. The argument against is that the prospect of being returned to police custody at any point over forty or sixty days is a pressure that the earlier rule removed after a fortnight.

📖 Gautam Navlakha v. National Investigation Agency, (2021) 3 SCC 87

Facts: The accused had been placed under house arrest under an order of a court for a period, and thereafter taken into custody in the ordinary way. He claimed default bail, contending that the period of house arrest was custody and should be counted towards the period within which the investigation had to be completed. The question was what constitutes custody for the purposes of the remand provision, and whether house arrest counts.

Held: The Court examined the nature of custody and held that house arrest is a form of custody: a person confined to premises under an order of a court, unable to leave, is deprived of his liberty and is in the custody of the law, and there is no reason in principle why detention in a house should not be a mode of detention that a court may order. On the facts, however, the Court held that the particular period did not count towards the statutory period, because the order under which he had been kept was not a remand order under the section. Looking forward, the Court observed that house arrest may be resorted to by courts in appropriate cases, having regard to the age, health, antecedents and the nature of the offence, as a measure that reduces the burden on prisons and the harshness of incarceration.

Ratio: Custody is not confined to detention in a prison or a lock-up; house arrest is a form of custody and may be ordered in an appropriate case. Whether a period counts towards the statutory investigation period depends on the provision under which it was ordered.

📖 Vishnu Kumar Tiwari v. State of Uttar Pradesh, (2019) 8 SCC 27

Facts: The police submitted a final report recommending closure. The informant filed a protest petition. The Magistrate treated the protest petition as a complaint and issued process without examining the complainant and his witnesses on oath. The question was in what circumstances a Magistrate may treat a protest petition as a complaint, and what he must do if he does.

Held: The Supreme Court held that on a final report the Magistrate has three courses: he may accept the report and drop the proceedings, after hearing the informant; he may disagree with it and take cognizance on the material in the report itself; or he may treat the protest petition as a complaint and proceed under the complaint chapter. Where he chooses the third course, he is bound to follow that chapter in full: he must examine the complainant and his witnesses on oath, and may hold an inquiry or direct an investigation before issuing process. A protest petition which merely disputes the conclusion of the police, without disclosing material on which cognizance could be taken, does not oblige the Magistrate to proceed; but where it is accompanied by material, he must consider it and record his reasons.

Ratio: A protest petition is not mentioned in the statute and does not automatically become a complaint. The Magistrate may accept the report, disagree and take cognizance on it, or treat the petition as a complaint — and if he takes the third course he must follow the complaint procedure in full.

📖 Podda Narayana v. State of Andhra Pradesh, (1975) 4 SCC 153

Facts: A conviction was challenged on the ground that the inquest report prepared under section 174 of the Code of Criminal Procedure did not name the assailants or set out the details of the occurrence deposed to at trial, and that the omissions showed the prosecution version to be a later invention.

Held: The Supreme Court rejected the argument and explained the limited scope of an inquest. The object of the proceeding is to ascertain whether a person died under suspicious circumstances or an unnatural death, and if so what the apparent cause of death is. The question whether the death was caused by an offence, who caused it, in what manner, and with what intention, is foreign to the ambit and scope of the proceeding. The report is therefore not required to name the assailants or to describe the manner of the assault, and the absence of such particulars is not an infirmity and cannot be used to contradict the prosecution case. The Court held that neither the inquest report nor the post-mortem report is substantive evidence of the cause of death.

Ratio: An inquest is directed at the apparent cause of death and nothing more. Omissions of the assailants’ names or of the details of the occurrence are not defects, because such particulars fall outside the scope of the proceeding.

📖 Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409

Facts: An aggrieved person, dissatisfied with the manner in which the police were conducting an investigation, approached the High Court under Article 226 seeking a direction for an investigation by an independent agency. The question was what remedies are available to a person who alleges that the police have not registered a case, or are not investigating it properly, and at what stage the High Court should be approached.

Held: The Supreme Court held that a person aggrieved by the non-registration of a case has a remedy by approaching the Superintendent of Police, and if that fails, by an application to the Magistrate for a direction to investigate. It held that the Magistrate’s power to direct an investigation carries with it, by necessary implication, the power to give such ancillary directions as are necessary to ensure a proper investigation — including directions to register a case, to monitor the progress of the investigation, and to direct that it be conducted in a particular manner — though he cannot direct what conclusion the police should reach. The Court held that because those statutory remedies exist and are efficacious, the High Court should not ordinarily be approached under Article 226 in the first instance, and it deprecated the practice of bypassing the Magistrate.

Ratio: The Magistrate’s power to order an investigation carries the implied power to give ancillary directions to ensure that it is properly conducted. Those statutory remedies should be exhausted before the High Court is approached.

The position stated shortly

1. Investigation is defined in section 2(1)(k) as all proceedings for the collection of evidence by a police officer or a person authorised by a Magistrate other than a Magistrate. An inquiry is by a Magistrate or Court; a trial determines guilt.

2. Section 175(1): an officer in charge may investigate a cognizable case without any order. Section 175(2): his proceedings shall not be called in question on the ground that he was not empowered.

3. Section 176(3) is new and mandatory: for offences punishable with seven years or more, a forensic expert shall visit the scene and the process shall be videographed — from a date each State notifies within five years.

4. Section 179 proviso: a woman, a male under fifteen or above sixty, a disabled person and a person with an acute illness shall not be required to attend anywhere but where they reside.

5. Section 180(2): a person is bound to answer truly except where the answer would tend to expose him to a criminal charge, penalty or forfeiture. Section 180(3) now permits audio-video recording.

6. Section 181: a police statement is not signed and may be used only to contradict the maker — by the accused as of right, and by the prosecution only with the Court’s permission. An omission is a contradiction only where the statement by necessary implication negatives the evidence: Tahsildar Singh.

7. Section 183: the requirements for recording a confession are mandatory — explain, question, allow time for reflection, record the questions and answers, and append the memorandum: Shivappa.

8. Section 192: the case diary is kept day by day, is not evidence, cannot be called for by the accused, but is open to him where the officer uses it to refresh his memory or the Court uses it to contradict him.

9. Section 187: fifteen days of police custody, now available in parts during the first forty or sixty days; sixty or ninety days of total detention; default bail on expiry; production in person every time, and now permissible by audio-video means.

10. House arrest is a form of custody and may be ordered in an appropriate case: Gautam Navlakha.

11. Section 193: the report must state the sequence of custody of an electronic device, and the victim must be told of the progress within ninety days. Further investigation during trial now needs the Court’s permission and must be completed in ninety days.

12. On a closure report the Magistrate may accept it after hearing the informant, disagree and take cognizance on it, or treat a protest petition as a complaint — and if he does the last, he must follow the complaint procedure in full: Vishnu Kumar Tiwari.

13. An inquest is directed at the apparent cause of death only. The report need not name the assailants, and omissions of that kind are not contradictions: Podda Narayana.

14. The Magistrate’s power to order an investigation carries the implied power to give ancillary directions to ensure it is properly conducted, and those remedies should be exhausted before the High Court is approached: Sakiri Vasu.