Use of Technology in Criminal Justice under the | BNSS 2023

The Use of Technology in Criminal Justice under the BNSS, 2023: From the First Information to the Appeal, the Interface with the Law of Evidence, and the Limits

The Sanhita treats technology as the ordinary way of making a record rather than as an exceptional facility to be justified in each case. What was, under the Code of Criminal Procedure, a series of specific and grudging permissions — each separately provided and separately argued for — is now a general authority running from the first information to the appeal.

But one distinction must be held throughout. Whether a step may be taken electronically is a question for the Sanhita. Whether the resulting record is admissible, and how it is proved, is a question for the Bharatiya Sakshya Adhiniyam, 2023, about which the Sanhita says nothing at all. Recording something and proving it are different questions, and an argument which runs them together usually fails.

1. Technology Through the Process

Figure 1: From the information to the appeal

Section 173 — the information. Information relating to a cognizable offence may be given by electronic communication, taken on record on being signed within three days, and may be given irrespective of the area where the offence was committed.
Section 176(3) — the crime scene. For an offence punishable with seven years or more, a forensic expert shall visit the scene, and the officer shall cause videography of the process.
Sections 105 and 185 — search and seizure. The process of search and of taking possession, including the list and its signing, shall be recorded by audio-video electronic means and forwarded to a Magistrate without delay.
Sections 180 and 183 — the statement. The police officer may record a statement through audio-video electronic means; and the victim’s statement before a Judicial Magistrate is videographed where she is disabled, and treated as a statement in lieu of examination-in-chief.
Sections 63, 64 and 308 — process and evidence. A summons may be in encrypted or electronic form bearing the image of the seal or a digital signature, and served electronically; and evidence may be taken by audio-video electronic means in the presence of the advocate of the accused.
Sections 392 and 530 — judgment, and the general authority. A copy of the judgment made available to the parties immediately and uploaded to the Court’s portal within seven days; and section 530 permits all trials, inquiries and proceedings to be held in electronic mode.

2. What Technology Changes, and What It Does Not

Figure 2: The reach, and the limits

📖 State of Punjab v. Amritsar Beverages Ltd., (2006) 7 SCC 607

Facts: In the course of an inspection under a fiscal statute, officers seized computer hard discs and other electronic records. The statute required seized documents to be signed and dated by the dealer, a requirement framed at a time when records were kept on paper and which could not literally be complied with in the case of an electronic record.

Held: The Supreme Court held that a statute framed before the advent of a technology must be construed so as to accommodate the developments which have taken place since, and that a provision cannot be rendered unworkable merely because the form of record it contemplated has changed. The Court held that the law must keep pace with technology, and that where a literal application of a procedural requirement would make the statute impossible to operate in relation to electronic records, the court should adopt a purposive construction which gives effect to the object of the requirement in a form appropriate to the medium. It emphasised that the safeguards which such a requirement was designed to secure — the identification of what was seized and protection against substitution — remain necessary, and must be achieved by means appropriate to the record, rather than abandoned because the original means no longer fit.

Ratio: A statute framed before a technology existed must be construed to accommodate later developments, and the law must keep pace with technology. Where literal application would make a requirement unworkable for electronic records, the object is given effect by means appropriate to the medium.

📖 Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611

Facts: A tape recording was tendered in evidence, and the question was the conditions on which such a recording may be received and acted upon, and the precautions a court must take before relying on it.

Held: The Supreme Court laid down the conditions governing the use of a tape recording. The voice must be identified by the maker of the record or by a person who recognises it, and where the speaker denies it, the court must require strict proof. The accuracy of the recording must be proved by the maker, and its genuineness beyond doubt; the possibility of erasure, addition or manipulation must be excluded; and the recording must be kept in safe custody from the moment it was made, its custody in the interval being accounted for. The Court held that the recording must be clearly audible, that the relevance of the statements recorded must be established, and that the subject-matter must be proved by the maker of the record by satisfactory evidence. It emphasised that a tape recording is easily tampered with, and that a court should therefore receive such evidence with caution and act upon it only where these conditions are satisfied.

Ratio: A recording may be acted upon only where the voice is identified, its accuracy proved, its genuineness established beyond doubt, the possibility of manipulation excluded, and its custody from the moment it was made accounted for.

⚠ What the Sanhita changes, and what it does not

It changes the means by which a step is taken — the summons sent, the statement recorded, the witness examined, the judgment published; the availability of a record which does not depend on recollection years later; the cost, travel and risk attending a production from custody; and the difficulty of explaining a failure to record, when the means were in the officer’s pocket.

It does not change the admissibility of an electronic record, which the Bharatiya Sakshya Adhiniyam, 2023 governs. The Sanhita says nothing about certification, originality or proof.

It does not relax the requirements on how evidence is recorded, on the presence of the accused or his advocate, or on signature and authentication; nor does it dispense with the open court principle in section 366.

And it does not displace the Court’s discretion. The word in section 530 is may: no party can insist on an electronic hearing, and the fairness of the proceeding remains the test by which every departure is judged.

3. The Questions an Electronic Record Always Raises

Is it genuine, and is it complete? A recording which begins after the event has started, or which stops and resumes, invites the inference that what was omitted was unfavourable. Completeness is as important as authenticity.
Who has had it, and since when? A recording retained by the seizing officer for weeks is worth far less than one placed in judicial custody the same day, because the opportunity to alter it has existed in the interval. This is why sections 105 and 185 require forwarding to a Magistrate without delay.
Has the accused seen it? Where a recording forms part of the material against him he must be given a copy, or — where its contents are such that a copy should not be given — afforded inspection under safeguards. He cannot meet what he has not seen.
And if it exists but is not produced, why not? The best evidence of what happened is the recording itself, and a party who has it and does not produce it must account for that.

4. Key Takeaways

The position stated shortly

1. The Sanhita treats technology as the ordinary way of making a record, converting a series of specific permissions into a general authority.

2. Section 173: the information by electronic communication, signed within three days. Section 176(3): videography of forensic collection at the scene.

3. Sections 105 and 185: search and seizure recorded and forwarded to a Magistrate without delay.

4. Sections 180 and 183: the police statement may be recorded electronically; the victim’s statement before a Magistrate is videographed where she is disabled.

5. Sections 63, 64 and 308: the summons in electronic form and served electronically; evidence taken by audio-video means in the presence of the advocate of the accused.

6. Sections 392 and 530: the judgment available immediately and uploaded within seven days; and all proceedings may be held in electronic mode.

7. A statute framed before a technology existed must be construed to accommodate later developments, the law keeping pace with technology: Amritsar Beverages.

8. A recording may be acted upon only where the voice is identified, its accuracy proved, its genuineness established beyond doubt, manipulation excluded, and its custody accounted for: Ram Singh v. Col. Ram Singh.

9. The Sanhita governs whether, by whom, by what means and to whom forwarded. Admissibility, certification and proof are for the Bharatiya Sakshya Adhiniyam, 2023.

10. And it does not displace the Court’s discretion: the word in section 530 is may, and the fairness of the proceeding remains the test.

5. Frequently Asked Questions

How far does technology now reach into the criminal process?

From the first information to the appeal — the FIR by electronic communication, videography of forensic collection and of search and seizure, electronic recording of statements, electronic summons and service, evidence by audio-video means, and the judgment uploaded to the Court’s portal.

Does the BNSS govern the admissibility of an electronic record?

No. The Sanhita governs whether a step may be taken electronically, who must record it, by what means and to whom it must be forwarded. Admissibility, certification, originality and proof are governed by the Bharatiya Sakshya Adhiniyam, 2023.

How does a court approach a statute framed before the technology existed?

By construing it so as to accommodate the developments which have taken place since. Where literal application would make a requirement unworkable for electronic records, the object of the requirement is given effect by means appropriate to the medium: State of Punjab v. Amritsar Beverages Ltd.

What must be established before a recording can be acted upon?

That the voice is identified, the accuracy of the recording proved, its genuineness established beyond doubt, the possibility of erasure or manipulation excluded, and its custody from the moment it was made accounted for: Ram Singh v. Col. Ram Singh.

Is the accused entitled to see a recording relied on against him?

Yes — by a copy, or, where the contents are such that a copy should not be given, by inspection under safeguards. He cannot meet what he has not seen.

Can a party insist on an electronic hearing?

No. The word in section 530 is may. Nothing compels a court to proceed electronically and nothing entitles a party to insist on it; the discretion belongs to the court, exercised by asking whether the fairness of the proceeding survives the change of means.

Related Topics

Electronic Trials and Proceedings: Section 530, BNSS
Electronic Trials under Section 530
Audio-Video Recording of Statements and Proceedings
The Electronic FIR and the Zero FIR: Section 173, BNSS
Forensic Evidence and Crime-Scene Investigation
Major Changes Introduced by the BNSS, 2023