Information to Police and their Power to Investigate (Section 154 BNSS)

The process of criminal investigation officially begins with information being provided to the police, which forms the basis for registering a First Information Report (FIR). Section 154 of the BNSS governs this crucial initial step.

First Information Report (FIR)

An FIR is the first formal record of a cognizable offence. It triggers the police's power to investigate.

• What is an FIR: Section 154(1) of BNSS states that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station or conveyed to him, shall be reduced to writing by him or under his direction, and by the person giving such information, shall be signed, and the substance thereof shall enter into a book to be kept by such officer in such form as the State Government may prescribe.

• Purpose of FIR: The FIR serves several purposes:

  • It initiates the criminal investigation process.

  • It provides the police with the necessary information to start collecting evidence.

  • It acts as a vital piece of evidence at the trial, although it is not considered a substantive piece of evidence but can be used for corroboration or contradiction of the informant's statement.

• Cognizable Offence: An FIR can only be registered for a cognizable offence, meaning an offence for which a police officer can arrest without a warrant, as defined in the First Schedule of the BNSS or any other law.

• Mandatory Registration: The law is clear that upon receiving information about a cognizable offence, the police have a statutory duty to register an FIR. They cannot delay or refuse registration, nor can they conduct a preliminary inquiry before registering an FIR for a cognizable offence (except in cases of suspected criminal misconduct by public servants as per Section 155(4) BNSS, which requires prior sanction).

• Electronic FIR: BNSS explicitly allows for the filing of FIRs electronically (Section 154(1)).

Reduction of Information Given Verbally to the Police into Writing

If the information is given orally, the police officer has a duty to reduce it to writing.

• Procedure: Section 154(1) BNSS mandates that such oral information shall be reduced to writing by the officer in charge of the police station or under his direction.

• Signing: The written report must be signed by the person giving the information.

• Entry in Record: The substance of the FIR must be entered into a prescribed book (known as the 'Station House Diary' or 'Roznamcha').

• Copy to Informant: The informant is entitled to receive a free copy of the FIR so recorded.

This ensures accuracy and provides a record of the initial complaint.

Procedure when investigation cannot be completed in one day

If the investigation cannot be completed within 24 hours from the time of arrest, the BNSS outlines the procedure for further detention.

• Section 46(2) BNSS: This section states that no person arrested and produced before a Magistrate shall be detained in custody beyond the period of twenty-four hours excluding the time necessary for the journey from the place of arrest to the Magistrate's Court, unless authorised by the Magistrate by a further order.

• Remand to Custody: If the investigation requires the arrested person to be detained for more than 24 hours, the police officer must produce the arrested person before a Magistrate. The Magistrate, if satisfied, may authorise detention in police custody or judicial custody for a period not exceeding fifteen days in the whole.

• Magistrate's Discretion: The Magistrate exercises judicial discretion and must record reasons for authorising further detention, ensuring it is necessary for the investigation and not for other improper purposes.

Preliminary Inquiry (Section 155 BNSS)

While an FIR must be registered for all cognizable offences, Section 155 of BNSS provides for a preliminary inquiry in specific circumstances before a First Information Report (FIR) is registered.

When inquiry is not required

The general rule is that for cognizable offences, a preliminary inquiry is not required before registering an FIR. The police must proceed to investigate upon receiving information about such an offence.

• However, Section 155(4) BNSS allows for a preliminary inquiry in cases of alleged criminal misconduct by a public servant, where the inquiry is conducted by an officer not below the rank of Deputy Superintendent of Police, and such inquiry is necessary for the purpose of deciding whether or not to register a First Information Report.

• This provision is intended to prevent the misuse of the FIR registration process against public servants on frivolous or malicious grounds, ensuring that there is some initial verification before a formal case is registered.

• It is important to note that this is an exception to the general rule of immediate FIR registration for cognizable offences.

Powers of Investigation Officers

Investigation officers (police officers) are vested with significant powers to collect evidence and build a case against the accused. The BNSS codifies these powers, along with procedural safeguards.

Examination of Witnesses (Section 160 BNSS)

Section 160 BNSS empowers police officers to require the attendance of persons for examination:

• Power to Summon Witnesses: An officer in charge of a police station, or any police officer making an investigation under his direction, may require any person, who appears to be acquainted with the facts and circumstances of the case, to attend at the station or at a place specified in the notice.

• Purpose: The purpose is to obtain information about the case, gather evidence, and record statements.

• Limitations: A person required to attend shall not be required to attend at any place other than the place of the offence or such place as is nearby.

• Women and Minors: If the witness is a woman or a person under 18 years of age, the police officer must, if practicable, examine her or him at her or his residence with a police officer or woman police officer, not below the rank of a female constable, or a woman interpreter, in the presence of such woman.

Recording of Statements (Section 173 BNSS)

Section 173 BNSS (corresponding to Section 161 CrPC) deals with the recording of statements of witnesses during the investigation:

• Oral Examination: Police officers can examine orally any person acquainted with the facts and circumstances of the case. Such persons are bound to answer truly all questions put to them by the police officer, relating to such case, except such as might tend to incriminate themselves.

• Reduction to Writing: Statements so made shall be reduced into writing and shall be signed by the person making it, or the Magistrate shall sign it if the person is unable to read or write.

• Admissibility: Statements recorded under this section are not substantive evidence but can be used for corroboration or contradiction of the witness at the time of trial (Section 173(7) BNSS).

• Videography: Crucially, Section 173(5) and (6) mandate that statements of persons other than the accused, and confessions/statements of the accused, shall be recorded by audio-video electronic means and shall be videographed.

Power to require attendance of persons for interrogation

This is essentially covered under Section 160 BNSS, which empowers police to summon persons acquainted with the facts of the case for examination. This power is to be exercised reasonably and judiciously.

Investigation in case of FIR

Once an FIR is registered for a cognizable offence, the police have the power to commence an investigation.

Speedy investigation

The BNSS, as a reform measure, emphasizes the need for a speedy investigation.

• Timelines: The overall spirit of the BNSS is to expedite the criminal justice process. While specific timelines for completing the entire investigation are not as rigidly prescribed as for producing the accused before a Magistrate or for trial, the intention is to avoid undue delays.

• Section 173(1) BNSS: This section generally mandates that the police officer shall proceed to investigate the case. While it doesn't set a hard deadline for the completion of the entire investigation, it directs the officer in charge of a police station to forward a report to the Magistrate, implying the investigation should be concluded to the point of filing a report.

• Role of Magistrate: The Magistrate supervises the investigation and can direct the police to expedite it or take necessary steps if there are delays.

• Timelines for Charge Sheet: The 90-day period for filing a charge sheet for default bail in cases punishable with death, life imprisonment, or imprisonment for 10 years or more, and 60 days for other offences, indirectly pushes for timely investigation.

Investigation in case of Rape (Section 173(1)(b) BNSS)

The BNSS places a special emphasis on the timely and sensitive handling of investigations in cases of rape and sexual assault.

Timely recording of Victim's statement

A crucial aspect is the prompt recording of the victim's statement:

• Section 173(1)(b) BNSS: Mandates that in cases of rape or sexual assault, the statement of the victim shall be recorded by a woman police officer or a police officer in the presence of a woman interpreter or social worker as soon as possible after the commission of the offence.

• Importance: This is vital for capturing the victim's account while memories are fresh and to ensure the process is handled with sensitivity, reducing further trauma to the victim.

• Videography: As per Section 173(5) and (6), these statements are also to be videographed, ensuring transparency and accuracy.

Investigation in case of Sexual Assault

The provisions concerning sexual assault investigations are similar to those for rape, with an emphasis on the victim's statement and timely action.

• Section 173(1)(b) BNSS specifically refers to "rape or sexual assault," covering both types of offences. Therefore, the requirements regarding recording the victim's statement by a woman police officer or in the presence of a woman interpreter/social worker, and videography, apply equally to sexual assault cases.

• The overarching goal is to ensure a fair, sensitive, and efficient investigation that respects the dignity and well-being of the victim.

Medical Examination of Victim of Rape or Sexual Assault

The BNSS integrates the importance of medical examination for corroborating allegations in cases of rape and sexual assault.

Section 176 BNSS

Section 176 BNSS (corresponding to Section 164A CrPC) deals with the medical examination of the victim of rape or sexual assault:

• Mandatory Examination: It mandates that the medical examination of the victim shall be conducted by a registered medical practitioner as soon as possible after the alleged offence.

• Procedure: The registered medical practitioner shall, on the request of the investigating officer or any person authorised by him, examine the victim and shall state in his report about the presence of rape or sexual assault, the age of the victim, etc., and other particulars as may be prescribed.

• Report: The report of such examination shall be submitted to the investigating officer or the Magistrate. This report is crucial evidence in rape and sexual assault cases.

• Victim's Consent: The examination is to be conducted with the consent of the victim.

• Timeliness: The emphasis is on conducting the examination as soon as possible to preserve evidence.

Use of Technology in Evidence Collection

The BNSS significantly enhances the role of technology in evidence collection, aiming to improve accuracy, transparency, and efficiency.

Videography of search, seizure and statements

This is one of the most prominent technological integrations in the BNSS:

• Section 47(5) BNSS: Mandates that the process of search and seizure shall be videographed in the presence of two independent witnesses.

• Section 173(5) & (6) BNSS: Requires that statements of persons other than the accused shall be recorded by audio-video electronic means, and confessions and statements of the accused shall be videographed. This applies to statements recorded by police officers and also by Magistrates.

• Objective: The primary objective is to ensure transparency, prevent custodial torture, malpractices during searches, manipulation of evidence, and to provide an objective record of what transpired during these critical stages of investigation.

• Admissibility: Videographed evidence is expected to be a robust piece of evidence to establish the facts of the case.

Digital evidence

While the BNSS focuses on the procedural aspects and the collection of evidence, the admissibility and handling of digital evidence are also implicitly covered and gain prominence through the emphasis on electronic means.

• Electronic Records: The BNSS allows for the use of electronic records in various stages, such as electronic FIRs (Section 154), electronic summons and warrants (Sections 63, 71), and statements recorded through audio-video means (Section 173). These are all forms of digital evidence.

• Indian Evidence Act, 1872: The admissibility and proof of electronic records are governed by the Indian Evidence Act, 1872 (specifically Section 65B and Section 73A, which deal with admissibility of electronic records and proof of digital signature respectively). The BNSS complements these provisions by laying down the procedure for collecting and documenting such evidence.

• Challenges: The effective use of digital evidence also depends on the capacity of law enforcement agencies to collect, preserve, and present it in a manner that meets the evidentiary standards.

Forensic Investigation

Forensic investigation plays a vital role in modern criminal justice by providing scientific analysis of evidence.

Mandatory forensic examination for offences punishable with imprisonment of seven years or more (Section 173(1)(d) BNSS)

This is a significant new provision aimed at improving the quality of evidence collection:

• Mandatory Requirement: Section 173(1)(d) BNSS mandates that it shall be the duty of the police officer to conduct the investigation in accordance with the provisions of this Sanhita and to take all necessary measures to secure the evidence relating to the commission of an offence.

• Compulsory Forensic Examination: More specifically, Section 173(1)(d)(ii) states that for offences punishable with imprisonment for a term of seven years or more, the investigation shall, inter alia, include the collection of evidence through forensic investigation.

• Purpose: This provision makes forensic examination mandatory for serious crimes, ensuring that scientific evidence is collected systematically to support the investigation and prosecution, thereby increasing the reliability of evidence and potentially improving conviction rates.

• Scope: This applies to a wide range of serious offences, aiming to strengthen the evidential basis for such cases.

Collection of bodily substances

The collection of bodily substances from the accused and victim is critical evidence in many criminal cases, particularly those involving sexual offences, assault, or identification.

• Legal Basis: While BNSS doesn't have a single dedicated section for the general collection of all bodily substances (like DNA, blood, etc., from the accused or victim for the purpose of identification or corroboration), the powers are generally derived from existing legal principles and the broad mandate for investigation and evidence collection.

• Section 47 BNSS (Search of Persons Arrested): This section allows the police to search the arrested person and take into custody any article found upon them which they have reason to believe is necessary for investigation. Bodily substances found during a lawful search can be collected.

• Section 176 BNSS (Medical Examination): This section specifically mandates medical examination of victims of rape or sexual assault by a registered medical practitioner. This would naturally involve the collection of relevant bodily substances from the victim as per medical forensic protocols.

• Magistrate's Order: In certain circumstances, a Magistrate may also order the collection of bodily substances from an accused or a victim to aid in the investigation, under their general powers to direct the collection of evidence.

• Indian Evidence Act, 1872: The admissibility of such collected samples as evidence is governed by the Indian Evidence Act, which requires proper seizure memos, chain of custody, and scientific analysis.

The emphasis on forensic investigation in serious cases under BNSS implicitly strengthens the importance of collecting bodily substances as crucial scientific evidence.