New Features of the | BNSS 2023

New Features of the BNSS, 2023: Zero FIR, e-FIR, Forensic Investigation, Trial in Absentia, Witness Protection and Electronic Proceedings

The previous topic dealt with provisions of the Bharatiya Nagarik Suraksha Sanhita that correspond to a provision of the Code of Criminal Procedure, 1973 but say something different. This topic deals with the smaller and more interesting category: provisions that have no counterpart at all in the older Code. There is nothing in the 1973 Code that answers to section 105, section 107, section 356, section 398, section 472, section 529 or section 530. These are the additions by which the Sanhita is most often described, and they fall into six groups.

Figure 1: The provisions of the Sanhita that have no counterpart in the Code of Criminal Procedure, 1973

1. The Technological Foundation

The electronic provisions of the Sanhita rest on two definitions and one enabling section. Without the definitions the scattered references to electronic procedure would have no content, and without section 530 they would have to be read as a series of exceptions rather than as a general permission.

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

“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.

“Electronic communication” means the communication of any written, verbal, pictorial information or video content transmitted or transferred, whether from one person to another or from one device to another or 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.

Section 2(2). Words and expressions used herein and not defined but defined in the Information Technology Act, 2000 and the Bharatiya Nyaya Sanhita, 2023 shall have the meanings respectively assigned to them in that Act and Sanhita.

Section 530, BNSS 2023: trial and proceedings in electronic mode

All trials, inquiries and proceedings under this Sanhita, including the issuance, service and execution of summons and warrant; examination of complainant and witnesses; recording of evidence in inquiries and trials; and 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.

The reach of section 530 is worth reading carefully, because it is a general provision and not a narrow one. It covers the issue, service and execution of process, the examination of the complainant and of witnesses, the recording of evidence, and appellate proceedings. The word used is “may”, so the section confers a permission rather than imposing an obligation, and its practical operation depends on rules made by the State Governments and on the infrastructure available in a given court.

Provision	What it permits electronically
Section 63(ii)	Summons issued in encrypted or other electronic form, bearing the image of the court’s seal or a digital signature
Section 64(2) proviso	Service of summons by electronic communication in such form and manner as the State Government provides by rules
Section 70(3)	Summons served through electronic communication are deemed duly served, and an attested copy is kept as proof of service
Section 71	A copy of a summons to a witness served by electronic communication simultaneously with the ordinary summons
Section 105	Audio-video recording of search and seizure, and of the list of things seized, forwarded to the Magistrate without delay
Section 173(1)	Information about a cognizable offence given by electronic communication, taken on record on being signed within three days
Section 176(1) proviso and 176(3)	Audio-video recording of the statement of a victim of a sexual offence, and videography of the collection of forensic evidence
Sections 180 and 183	Recording of witness statements and of confessions and statements by audio-video electronic means, including on a mobile phone in specified cases
Section 251(2)	The accused appearing, and the charge being read and explained, through electronic means
Section 254	Deposition of evidence by audio-video electronic means at a designated place
Section 308	Evidence taken in the presence of the accused, including by audio-video electronic means
Section 355 Explanation	Personal attendance of the accused, including attendance through audio-video electronic means
Section 530	The general enabling provision for all of the above

📖 State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601

Facts: A doctor resident in the United States was an important prosecution witness in a trial for criminal negligence and was unwilling to travel to India. The prosecution applied to examine him by video conference. It was objected that evidence could be recorded only in the physical presence of the accused, and that video conferencing was not contemplated by the Code of Criminal Procedure, 1973.

Held: The Supreme Court held that the recording of evidence by video conference is permissible. “Presence” in section 273 of the Code does not necessarily mean actual physical presence; constructive presence is sufficient where the accused and his counsel can see and hear the witness and instruct counsel. The law is not static, and a procedural statute must be read so as to take advantage of technological advances where doing so does not prejudice the accused. Safeguards were laid down for the manner in which such evidence is to be recorded.

Ratio: Procedural provisions are to be construed so as to accommodate technology, provided the substance of the right, which is the opportunity to confront and cross-examine, is preserved. Constructive presence satisfies the requirement of presence.

Section 530 converts what that decision permitted by construction into an express statutory permission of general application. The safeguard identified in the decision remains the governing consideration: what may not be dispensed with is the substance of the opportunity to see, hear, confront and cross-examine.

2. Zero FIR, e-FIR and the Statutory Preliminary Inquiry

Figure 2: The routes that information about a cognizable offence may now take under section 173

2.1 Zero FIR

A Zero FIR is a first information report registered at a police station which does not have territorial jurisdiction over the offence, given the serial number zero, and then transferred to the station that does. The device was developed administratively after the Justice J.S. Verma Committee report of 2013 and was enforced by judicial direction and by circulars, but it had no statutory basis. Section 173(1) now provides that information relating to the commission of a cognizable offence may be given to an officer in charge of a police station irrespective of the area where the offence is committed. The refusal to register on the ground of jurisdiction, long a standard obstacle for a complainant, is removed by the text of the section itself.

2.2 e-FIR

Section 173(1) also permits information to be given by electronic communication. Where it is so given, it is taken on record by the officer in charge on being signed by the person giving it within three days. The three-day signature requirement is the safeguard against anonymous or unattributable complaints, and it is the point at which the electronic and the paper routes converge. Section 173(2) requires that a copy of the information be given free of cost to the informant or the victim, which the 1973 Code required only for the informant.

2.3 The preliminary inquiry in section 173(3)

Section 173(3) is new as a matter of statute, although it addresses the ground covered by Lalita Kumari v. Government of Uttar Pradesh. On receiving information relating to a cognizable offence punishable with three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police and having regard to the nature and gravity of the offence, conduct a preliminary inquiry to ascertain whether there exists a prima facie case, and must complete it within fourteen days. Alternatively he may proceed to investigate where a prima facie case exists. The interaction with Lalita Kumari is examined in the topic on major changes; what matters here is that the power is a creation of the Sanhita and did not exist in the 1973 Code.

3. Forensic Investigation and the Recording of Search and Seizure

3.1 Section 176(3): forensic evidence in serious offences

Section 176(3) provides that where an offence is punishable with imprisonment for seven years or more, the officer in charge shall cause a forensic expert to visit the scene of the offence to collect forensic evidence and shall cause the process to be videographed on a mobile phone or other electronic device. Where a State has no forensic facility, it is to utilise the facility of another State. A proviso allowed the States a period of five years from the commencement of the Sanhita to put the necessary facilities in place, which is why the obligation takes practical effect in stages although it is in force.

The provision is the first attempt in Indian criminal procedure to make scientific evidence a routine requirement rather than a matter for the discretion of the investigating officer. Its significance is as much evidentiary as procedural: it is designed to reduce the dependence of the prosecution on oral testimony, and thereby the effect of witnesses turning hostile.

3.2 Section 105: audio-video recording of search and seizure

Section 105 requires that a search and the preparation of the list of all things seized and of the places in which they were found be recorded through audio-video electronic means, preferably a mobile phone, and that the recording be forwarded to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class without delay. Nothing corresponding to it existed in the 1973 Code, which required only that the search be conducted in the presence of witnesses and that a list be prepared.

The provision addresses one of the most persistent evidentiary problems in Indian criminal trials, which is the challenge to a recovery on the footing that it was planted or that the seizure witnesses were not independent. A contemporaneous recording forwarded to a judicial officer is a far stronger answer to that challenge than the testimony of panch witnesses, and its absence is likely to become a standard ground of cross-examination.

4. Attachment of the Proceeds of Crime

Section 107 permits a police officer making an investigation, where he has reason to believe that any property is derived or obtained directly or indirectly as a result of criminal activity or from the commission of an offence, to make an application, with the approval of a superior officer, to the court or Magistrate for the attachment of that property. The court issues a show cause notice, and on being satisfied that the property constitutes proceeds of crime, may order attachment, and may direct the District Magistrate to distribute the proceeds rateably to the persons affected by the crime.

This technique was previously confined to special statutes such as the Prevention of Money-laundering Act, 2002, the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Unlawful Activities (Prevention) Act, 1967, each of which contains an elaborate adjudicatory mechanism with an appellate tribunal. Section 107 imports the technique into ordinary criminal procedure. Section 86 makes a related addition, permitting the court to request assistance from a court or authority in a contracting State for the identification, attachment and forfeiture of property belonging to a proclaimed person situated abroad.

⚠ The objection to section 107

Attachment operates before trial and therefore before any finding of guilt. The special statutes that use the technique surround it with an adjudicating authority, a defined standard of proof and an appellate tribunal. Section 107 provides for a show cause notice and a hearing of not less than fourteen days and leaves the rest to the court.

The criticism is accordingly that a far-reaching power over property has been conferred with a lighter procedural apparatus than the special statutes require. The answer offered is that the power is exercised by a court and not by an executive authority, and that the ordinary safeguards of a judicial proceeding apply.

The provision is new enough that there is little authority on the standard of satisfaction it requires or on the relationship between attachment under section 107 and the powers of seizure under section 106.

5. Trial in Absentia of a Proclaimed Offender

Section 356 is the most discussed of the new provisions. The 1973 Code permitted an inquiry or trial to proceed in the absence of an accused who was represented and whose personal attendance had been dispensed with, under section 317, now section 355. It did not permit a trial of an accused who had never been apprehended. Section 356 does.

Figure 3: The procedure under section 356 for an inquiry, trial or judgment in absentia

The scheme is deliberately cautious. The accused must have been declared a proclaimed offender under section 84 and must have absconded to evade trial, and there must be no immediate prospect of arresting him. The court records that finding in writing and only then proceeds. Ninety days must elapse from the framing of the charge. Two summons must be issued at intervals of thirty days, a notice published in a national or local daily circulating in the place where the accused ordinarily resided, information given to a relative or friend, and the notice affixed at his last known place of residence and at the police station. Where the accused is unrepresented, the court appoints an advocate at the expense of the State. Depositions and the examination of witnesses may be audio-video recorded. The judgment is pronounced in the absence of the accused.

Two consequences follow. The accused who absconded and was tried in absentia is not entitled to a fresh trial on being apprehended, although the right of appeal is preserved. And the evidence recorded in his absence may be used against him, and against any co-accused subsequently arrested, subject to the ordinary rules of evidence.

Question	Section 355 BNSS (CrPC 317)	Section 356 BNSS (no counterpart)
Who is absent	An accused who has appeared and whose personal attendance is dispensed with, or whose conduct prevents the orderly conduct of proceedings	A proclaimed offender who has absconded and has never been apprehended
Representation	The accused is represented by an advocate	The court appoints an advocate at State expense if he is unrepresented
Preconditions	Satisfaction of the Magistrate; reasons recorded	Proclamation under section 84, a recorded finding, ninety days from the framing of charge, two summons at thirty-day intervals, publication, notice to a relative and affixation
Outcome	The trial proceeds and may be completed	Trial and judgment are completed in his absence
Fresh trial on arrest	Question does not arise in the same form	No right to a fresh trial; the right of appeal survives

The provision is defended as the answer to a real problem: an accused who successfully evades arrest could, under the 1973 Code, prevent the trial of his co-accused from concluding and could defeat the prosecution by the passage of time and the death or fading memory of witnesses. It is criticised on the footing that a trial conducted without the accused is in tension with the right to be present, to instruct counsel and to cross-examine, and that the substituted service provisions may in practice give no real notice. The constitutional challenge to the section has not yet been authoritatively resolved.

6. The Victim and the Witness

6.1 Section 398: witness protection scheme

Section 398 provides that every State Government shall prepare and notify a witness protection scheme for the State with a view to ensuring the protection of witnesses. It is a short provision with a long background.

📖 Mahender Chawla v. Union of India, (2019) 14 SCC 615

Facts: Witnesses in serious criminal cases, including witnesses in cases involving persons of influence, petitioned the Supreme Court complaining of threats and of the absence of any legal framework for their protection. India had no statute and no scheme for the protection of witnesses, and the problem of witnesses turning hostile under pressure had been noticed repeatedly by the courts.

Held: The Court approved the draft Witness Protection Scheme, 2018 prepared by the Union in consultation with the States, and directed that it be treated as the law under Article 141 and Article 142 until suitable legislation was enacted by Parliament. The Court held that the right of a witness to testify in a free and fair atmosphere without fear is part of the right to life under Article 21, and that the State is obliged to protect it. Directions were given for the setting up of vulnerable witness deposition complexes.

Ratio: Witness protection is a constitutional obligation of the State flowing from Article 21, and not merely a matter of administrative convenience. The absence of legislation was filled by a scheme given the force of law until Parliament acted.

Section 398 is the legislative response that the Court called for. It does not itself contain the content of the scheme, which is left to the State Government, so the standards approved in 2018, including the categorisation of witnesses by threat perception, the role of the competent authority and the mechanism for protection orders, continue to supply the substance.

6.2 Section 397 and the other victim-facing provisions

Section 397 requires all hospitals, whether public or private and whether run by the Government or by a local body or any other person, to provide free first aid or medical treatment immediately to victims of specified offences, and to inform the police forthwith. It carries forward and consolidates sections 357B and 357C of the 1973 Code.
Section 193(3)(ii) requires the police to inform the informant or victim of the progress of the investigation, including by electronic communication, within ninety days. There was no such duty in the 1973 Code.
Section 360 prohibits the withdrawal of a prosecution by the Public Prosecutor, in the offences to which it applies, without giving the victim an opportunity of being heard.
Section 230 requires the police report and the accompanying documents to be supplied to the victim as well as to the accused, within fourteen days.

7. New Institutional Provisions

Provision	What it creates	Why it matters
Section 20	A Directorate of Prosecution in the State and a District Directorate, with prescribed qualifications and graded monitoring: the Director monitors cases punishable with ten years or more, life imprisonment or death; the Deputy Director those of seven years or more but less than ten; the Assistant Director those of less than seven years	Section 25A of the CrPC, inserted in 2005, merely permitted a State to establish a Directorate. Section 20 prescribes its structure, qualifications and functions, and attaches named responsibility for the progress of a case to a named officer
Section 37	A police control room in every district and at State level, and a designated officer not below the rank of Assistant Sub-Inspector in every district and police station responsible for maintaining information about persons arrested, prominently displayed including in digital mode	Converts what was a direction in D.K. Basu v. State of West Bengal into a permanent institutional arrangement, and makes information about an arrest publicly available rather than dependent on inquiry
Section 529	A duty on every High Court to exercise continuous superintendence over the courts subordinate to it, to ensure that there is no undue delay in the disposal of cases	Article 227 of the Constitution already confers the power of superintendence. Section 529 converts the power into a statutory duty and directs it specifically at delay
Section 172	Persons bound to conform to lawful directions of the police, with a power to detain or remove a person resisting or refusing to conform, and to produce him before a Magistrate or release him when the occasion has passed	A general provision on obedience to lawful police directions, with no direct counterpart in Chapter XI of the 1973 Code

8. After the Sentence: the Mercy Petition Procedure

Section 472 supplies, for the first time, a statutory procedure and timetable for mercy petitions in death sentence cases. The exercise of the power under Articles 72 and 161 of the Constitution is not and cannot be controlled by statute, but the steps leading up to it can be.

Where a convict under sentence of death has exhausted his appeals and review, the jail Superintendent informs him, and any of his legal heirs or relatives, of the entitlement to prefer a mercy petition.
The petition is to be made to the Governor within thirty days of the intimation, and to the President within sixty days of the rejection by the Governor.
The Superintendent forwards the petition with the record and the comments of the State Government.
Where there are several convicts in one case, the petitions are to be decided together.
No appeal against the order of the President or the Governor lies to any court, and the matter is not to be inquired into by any court.

The provision responds to a line of decisions, beginning with Shatrughan Chauhan v. Union of India, which held that inordinate and unexplained delay in the disposal of a mercy petition is a ground for commuting a death sentence to imprisonment for life. Section 472 does not fix a time within which the constitutional authority must decide, which would raise a different question altogether, but it fixes every other step and thereby narrows the scope for administrative delay.

9. Key Takeaways

The position stated shortly

1. The electronic provisions rest on the definitions in sections 2(1)(a) and 2(1)(i), the incorporation of the Information Technology Act, 2000 by section 2(2), and the general enabling provision in section 530.

2. Section 530 permits all trials, inquiries and proceedings, including process, examination of witnesses, recording of evidence and appellate proceedings, to be held in electronic mode. It codifies what State of Maharashtra v. Dr. Praful B. Desai permitted by construction.

3. Section 173(1) gives statutory form to the Zero FIR and to the e-FIR; section 173(3) creates a preliminary inquiry of fourteen days for offences punishable with three years or more but less than seven.

4. Section 176(3) requires a forensic expert to visit the scene in offences punishable with seven years or more, with videography; section 105 requires search and seizure to be recorded audio-visually and the recording forwarded to a Magistrate.

5. Section 107 imports the attachment of the proceeds of crime into ordinary criminal procedure; section 86 permits assistance from a foreign court in attaching the property of a proclaimed person abroad.

6. Section 356 permits an inquiry, trial or judgment in absentia of a proclaimed offender, subject to proclamation, a recorded finding, ninety days from the charge, two summons, publication, notice to a relative, affixation and an advocate at State expense. There is no right to a fresh trial, but the right of appeal survives.

7. Section 398 requires every State Government to notify a witness protection scheme, giving legislative form to Mahender Chawla v. Union of India.

8. Sections 20, 37 and 529 attach named institutional responsibility for prosecution, for information about arrest, and for the superintendence of subordinate courts.

9. Section 472 supplies a statutory procedure and timetable for mercy petitions in death sentence cases.

10. Frequently Asked Questions

What is a Zero FIR under the BNSS?

A first information report registered at a police station that does not have territorial jurisdiction over the offence, which is then transferred to the station that does. Section 173(1) permits information to be given irrespective of the area where the offence was committed, so refusal on the ground of jurisdiction is no longer open.

What is an e-FIR and when does it become effective?

Information about a cognizable offence given by electronic communication under section 173(1). It is taken on record by the officer in charge on being signed by the person giving it within three days.

Which offences require mandatory forensic investigation under the BNSS?

Offences punishable with imprisonment of seven years or more, under section 176(3). A forensic expert must visit the scene to collect forensic evidence and the process must be videographed. States were given five years from commencement to establish the necessary facilities.

Can a criminal trial be held in the absence of the accused under the BNSS?

Yes, under section 356, but only where the accused is a proclaimed offender who has absconded to evade trial and there is no immediate prospect of arresting him, and only after proclamation under section 84, a recorded finding, ninety days from the framing of charge, two summons at thirty-day intervals, publication in a newspaper, notice to a relative or friend and affixation. An advocate is appointed at State expense if the accused is unrepresented.

Is there a witness protection law in India?

Section 398 of the Sanhita requires every State Government to prepare and notify a witness protection scheme. The content of such schemes follows the Witness Protection Scheme, 2018, which the Supreme Court approved and directed to be treated as law in Mahender Chawla v. Union of India until Parliament legislated.

What is the new provision on attachment of property in the BNSS?

Section 107. A police officer investigating an offence may, with the approval of a superior officer, apply to the court for the attachment of property he has reason to believe is derived from criminal activity. The court issues a show cause notice and, if satisfied that the property is the proceeds of crime, may order attachment and direct rateable distribution to the persons affected by the crime.

Related Topics

Major Changes Introduced by the BNSS, 2023
BNSS, 2023 vs Code of Criminal Procedure, 1973: Section Mapping
Information in Cognizable Cases: Section 173, Zero FIR and e-FIR
Section 356 BNSS: Trial in Absentia of a Proclaimed Offender
Electronic Mode of Proceedings: Section 530 and the Digital Criminal Trial
Victim Rights under the BNSS, 2023