This Article is written by AISHWARYA SURESH CHOUGULE, V BA LLB, Law student at KLE SOCIETY’S LAW COLLEGE, CHIKODI. The article examines thoroughly the criminal investigations under BNSS.
Introduction
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on 11th of August, 2023. It is an Act to consolidate and amend the law relating to Criminal Procedure (Cr.PC)The BNS is the important legislation on procedure for administration of substantive criminal laws in India. This framework aims at addressing the contemporary legal challenges. Itprovides the comprehensive knowledge of legal and procedural governance in India. The aim behind BNSS is to provide the faster and even more efficient judicial system to address the issues of delay in delivery of justice due to complex procedures. It also aims atstrengthening the security, rights, and well-being of citizens in India.
The BNSS has also introduces various key changes in the existing criminal procedure in India. These changes are aimed at streamlining the process, enhancing efficiency, and ensuring a more effective administration of justice.
What Is Criminal Investigation?
A criminal investigation is referred as an undertaking that seeks, collects, and gathers evidence of a crime for a case or specific purpose. It is nothing but the systematic inquiry into a criminal act. It starts with the reporting of the crime. It is also known as the process of identifying, collecting and analyzing evidence about who committed a crime and what specifically happened. In criminal investigation, the investigator devotes time and efforts to seek information and examine evidence in order to achieve a result, such as a conviction or an instance where there is no further possibility to continue with an investigation.
What is the importance of criminal investigation?
Criminal investigation is the methods which are used to study the crimes and to catch the criminals. A criminal investigation may include searching, interrogations, collection of the evidence etc. and also various other methods. The purpose of the investigation is to determine whether the offence exists and whether a perpetrator/person that carried out the crime can be identified, with sufficient evidence to satisfy a court and obtain a conviction.
Criminal investigations are used to uncover evidence that leads to a truthful and accurate picture of a crime and the evidence that supports the truth. Criminal investigations are very much important as it helps to detect and prosecute the crime in the society. It helps to keep the check on the society, if there is no check then there will be increase the crimes.
Procedure of criminal investigation under BNSS.
This act introduced various reforms in the investigative process, which includes the use of electronic communication as well as the forensic sciences to ensure justice for all parties involved.
Here’s the procedure regarding how the investigation can be conducted.
Information given to the police officer with respect to cognizable and non-cognizable offence
Information in cognizable offences – Section 173
A person can report acognizable offenceorally or through electronic communication. If it is reported orally, then the police must write it down, and must read it to the informant, and must also get it signed. If the report is reported electronically, then the informant must sign it within three days, and then the police must record it in a register. Also, if a woman wants to reports certain crimes.
For e.g., sexual offence, acid attack etc, and then a female police officer must record her complaint. In case of the person against whom the crime is alleged to have committed is temporarily or permanently mentally or physically disabled, the police officer must take their statement at their home or a place of their choice. And the statement must be recorded in the presence of an interpreter or special educator.
As well as such statement must be video graphed. And the police officer must get the judicial magistrate to record the statement as soon as possible. If any crime is punishable between 3 to 7 years, the police officer needs to take the approval from a Deputy Superintendent of Police (DSP) before investigating. And if any Police officer refuses to register a Complaint, then the victim can send a written complaint by the post to the Superintendent of Police (SP).
If the SP finds that the case is valid; then they may either investigate the case by themselves. Or may order the subordinate officer to investigate for the same. Even if no action is taken, then the victim can approach the Magistrate under Section 175(3).
Information of non-cognizable cases and investigation of such cases. Section 174
Suppose anyone gives a report regarding a non-cognizable. In that case, the police must record the details in a register kept by such officer and must refer the informant to the Magistrate for further action. And must send a daily diary report of all such cases to the Magistrate every 15 days. The police cannot investigate a non-cognizable offence without approval from the Magistrate. When the Magistrate gives permission, the police can investigate using all normal powers except arresting without a warrant. But if any of the case includes at least one of the cognizable offences, then the entire case will be treated as a cognizable case/cognizable offence, then the police can investigate such offence/case without separate permission.
Police officer’s power to investigate cognizable case – Section 175
The officer who is the in charge of a police station may directly investigate any case that is cognizable within its jurisdiction. But if the nature of the crime is serious, the Superintendent of Police (SP) may make the investigation and can also assign it to the Deputy Superintendent of Police.
Also, cognizance of a complaint against a public servant in the course of their official duties may be taken by magistrate under section 210, only after, receiving a report from a superior officer detailing the facts and circumstances of the incident and after considering the public servant’s explanation regarding the situation that led to the incident
Procedure for conducting the investigation – Section 176.
If on the information received, thepolice officer has a reason to suspects a crime, then he must send a report to the Magistrate to take the cognizance of the offence and shall also proceed to the crime scene or send a subordinate officer as per State Government rules to investigate and arrest the accused if necessary. If the complaint is given against a specific person by name and if the case is not of serious nature, there is no need for officer to go in person or to send an officer.
Also, if the officer believes there is no valid reason for an investigation, he can choose not to investigate. If case of rape the victim’s statement must be recorded at her residence or a place of her choice by a woman police officer. It should be conducted in the presence of a parent, guardian, relative, or social worker. And it can also be recorded using audio-video means preferably a mobile phone.
Also, When the crimes are punishable with imprisonment of 7 years or more, then the police must call the forensic expert to examine the crime scene and to make a videotape of the process using a mobile phone or any another device. If the State lacks forensic facilities and until its own setup is ready, it must use the facility of another State.
Submitting the report – Section 177
If the State Government requires it, then every police report sent to the Magistrate under Section 176 must be submitted through a superior police officer. The superior officer can give instructions to the investigating officer. And after recording such instructions on the report much forwarding it to the Magistrate without making any delay.
Power to hold investigation or preliminary inquiry – Section 178
After receiving report under section 176, the Magistrate may order further investigation or he may also direct the deputy magistrate or may personally conduct a preliminary inquiry. And may dispose of the case as per the law.
Police officer’s power to require attendance of witnesses – Section 179
Any police officer who is conducting an investigation may require the attendance of the person within the limits of his own or any adjoining station if the officer has reason to believe the person is acquainted with the case facts. The males below 15 years or above 60 years, Women, Persons with mental or physical disabilities, Persons with acute illness cannot be required to attend at a police station or other location outside their residence:
Examination of witnesses by police -Section 180
Apolice officer who is investigating the case can orally ask question or examine any person who may have been acquainted with the facts and circumstances of the case or any relevant information. The person who is being questioned by such police officer must answer all the questions truthfully. But they cannot be forced to answer if it could lead to self-incrimination, a penalty, or forfeiture. The police officer who conducted the investigation may write down the statement of the witnesses and each statement has to be separately recorded and must be accurate. Such statements can also be recorded by the way of audio-video means.
Statements to police and use thereof – Section 181
The statement cannot be signed by the person making it to the police officer during an investigation. Such statements cannot be used in any inquiry or trial related to the offence under investigation. If a witness makes a written statement during the investigation, then the accused may use it to contradict the witness under Section 148 of the Bhartiya Sakshya Adhiniyam, 2023.
No inducement to be offered. Section 182.
Police officer or authority cannot offer, make, or cause to be made any inducement, threat, or promise to a person under investigation. No person can be stop or discouraged by police officer from making a statement of their own free will during an investigation.
Recording of confessions and statement Section -183
Judicial Magistrate can record a confession or statement in the district where an offence is registered even if they don’t have jurisdiction over the case. It should be recorded in the presence of the accuser’s advocate. Police officers cannot record confessions with Magistrate powers. The accused must be informed by the magistrate that they are not bound to confess and that their confession can be used as evidence against them.Only if the Magistrate believes that the confession is made voluntarily, it can be recorded. Confessions are recorded as per Section 316. Magistrate must sign a memorandum confirming that the confession was voluntary.
Medical examination of the victim of rape – Section 184
In the investigation of rape cases the woman must be examined by a registered medical practitioner at a government or local authority hospital. Consent of the woman is mandatory, Medical examination must be done within 24 hours of receiving the information about the offence. A report must be prepared detailing: Name and address of the victim and the person accompanying her. Age of the victim. Description of materials collected for DNA profiling. Injury marks, if any, on the victim’s body. General mental condition of the victim.Other relevant details in reasonable detail. The report must be sent within seven days to the investigating officer. The investigating officer must forward the report to the Magistrate. No medical examination is lawful without the victim’s consent
Search by police officer – Section 185
If an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police station of which he is in charge and if such thing cannot be obtained without undue delay, such officer may after writing for the things for which search is to be made. A police officer shall conduct search in person. In addition to it Copies of any record shall be sent to the nearest Magistrate empowered to take cognizance of the offence not later than forty-eight hour and the owner or occupier of the place searched shall be furnished a copy of the same by the Magistrate free of cost.
When the officer in charge of a police station requires another to issue a search warrant – Section 186.
An officer in charge of a police station or any officer who is not below the rank of sub-inspector is making an investigation, and if he needs an officer in charge of another police station to make a search in any case, within the limits of his own station.
Such Officer shall forward the thing found to the officer at whose request the search was made. In addition to it, the officer conducting a search shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate also send with such notice a copy of the list prepared and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records
Procedure When Investigation Cannot Be Completed in 24 Hours – Section 187
If any person is arrested and is detained in the custody and if it appears that the investigation cannot be completed within the period of twenty-four hours, and if there are grounds for believing that the accusation or information is well-founded, the officer who is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary relating to the case, and shall also forward the accused to such Magistrate at the same time.
The Magistrate, irrespective of whether he has or has no jurisdiction to try the case after taking into consideration authorize, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days sixty days.
If the Magistrate has no jurisdiction to try the case, he may forward the accused to the Magistrate who has proper jurisdiction. If there are valid reasons, then only a magistrate can authorize detention of the accused beyond 15 days. The maximum detention period allowed is. Also, for offences punishable with death, life imprisonment, or 10+ years imprisonment, the period is 90 days
For all other offences the period is 60 days. The Magistrate shall not authorize the detention of the accused until and unless he is presented before the Magistrate in person the first time and every time, they are in police custody.
Even if the accused is presented in person or via audio-video mean the magistrate may extend the detention in judicial custody. In case if the accused is a woman who is less than 18 years, then they must keep such women in a remand home or a recognized social institution but should not be kept in regular police/judicial custody.
When a Judicial Magistrate is not available, the police officer can send the copy of the entry in the diary relating to the case to the nearest Executive Magistrate. And such Executive Magistrate cannot authorize detention beyond 7 days.
Once such period expires the accused must be released on bail unless a competent Magistrate extends detention. The magistrate who authorizes detention in police custody under this section may give reasons for the same. If the investigation of the case triable by a Magistrate as a summons case is not concluded within a period of six months from the date on which the accused was arrested, then the Magistrate must stop the investigation unless there are special reasons.
Report of investigation by subordinate police officer- Section 188
If any subordinate police officer has made any investigation, he shall report the result of such investigation to the officer in charge of the police station.
Release of accused when evidence deficient- Section 189
After an investigation if it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, then the officer shall release him on his executing a bond, with or without sureties
Cases to be sent to the magistrate when the evidence is sufficient- Section 190
After the investigation, if it appears there is sufficient evidence or reasonable ground then such officer shall forward the accused under custody to a Judicial Magistrate empowered to take cognizance of the offence upon a police report to try the accused or commit him for trial and can also take security for his appearance before such Magistrate on a day fixed when the offence is bailable.
If the officer in charge of a police station forwards an accused person to a Judicial Magistrate or takes security for his appearance before such Magistrate, then he shall send any weapon or other article which it may be.
Complainant and witnesses are not required to accompany police officer and he is not to be subjected to restraint- Section 191
It is not required to complainant or witnesses to accompany a police officer on their way to court and shall not be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond, but if he refuses to attend or to execute a bond then he will be detained in custody until and unless he executes such bond or until such hearing of the case is completed.
Diary of proceedings in investigation- Section192
The police officer is required enter his day-to-day proceedings in the investigation in a diary at the time when information reaches him and also the time when he began as well as closed this investigation, and also the places visited by him, and also the statement of the circumstances ascertained through his investigation. The recorded statements of the witness during the course of investigation shall be inserted in the case diary. The police diaries of a case may be sent not as evidence in the case, but to aid it in such inquiry or trial.
Report of police officer on completion of investigation- Section 193.
Every investigation shall be completed without unnecessary delay. Investigation for the heinous offences such as sections 64, 66, 67, 68, 70, 71 of the Bhartiya Nyaya Sanhita, 2023orSections 4, 6, 8, 10 of POCSO Act , must be completed within two months from the date of complaint.
After completion of the investigation a detailed report must be by the officer in charge to the Magistrate, containing:
- Names of the parties.
- Nature of the complaint.
- Witnesses.
- Details of the offence and the accused (whether arrested, released on bond, or in custody).
- Medical report (if applicable in sexual offences).
The police has to update the victim or informant regarding the progress of the investigation within 90 days either through electronic way or other means. The informant must also be notified about the action taken by the police. The report must be sent through superior officer if appointed. He can also order for the further investigation evenbefore the Magistrate acts on the report.
Relevant documents supporting prosecution as well as Statements of witnesses recorded under Section 180 must be sent to the Magistrate by the police.
Servingpolice reports & documents electronically will be considered valid service. After submitting the report if new evidence is found then further investigation is allowed. If such further investigation occurs during trials, then permission is required which must be completed within 90 days.
Police to enquire and report on suicide, etc- Section 194
When the officer in charge of a police station receives information that a person has committed suicide, or he has been killed by another or by an animal or by any machinery or by an accident, or has died under circumstances and also raises a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation to the nearest Executive Magistrate empowered to hold inquiry.
He shall proceed to the place where the body of such deceased person is, in the presence of two or more respectable inhabitants of the shall make an investigation, and shall draw up a report of the cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted only when he is directed by special order of the District or Sub-divisional Magistrate. And the report must be signed by the investigating officer and any witnesses. It must also be sent to the District Magistrate or the Sub-divisional Magistrate within 24 hours.
Power to summon persons- Section 195
Police officer may, by order in writing, summon two or more persons for the purpose of the said investigation may ask every person so summoned shall be bound to attend and answer the entire entire question other than the questions which would have a tendency to expose him to a criminal. And if the facts do not disclose a cognizable offence such persons shall not be required by the police officer to attend a Magistrate’s Court.
Inquiry by Magistrate into cause of death- Section 196.
When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section 194, the nearest Judicial Magistrate is empowered to hold inquests and he shall have all the powers in conducting an inquiry into an offence. Where such person dies or disappears, or rape is alleged to have been committed on any woman
Major changes brought by the BNSS in investigation process.
- Zero FIR
This concept of Zero FIR was not in the Cr.PC. It was inserted with the view of making it obligatory to the police stations to register an FIR regardless of jurisdiction, after receiving information about a cognizable offence. The concept of Zero FIR was recognized, in State of A.P. v. Punati Ramulu[1].
The court, in the case of Satvinder Kaur v. State (NCT of Delhi)[2],ruled that if a police officer refuses to file a FIR on the ground that it has no territorial jurisdiction, such an act will amount to dereliction of duty.
Section 173(1) has been enacted to include the provision for Zero FIR. This section states that,“irrespective of the area where the offence is committed”
- Preliminary Enquiry
Section 173(3) of the BNSS, codifies the concept of a ‘preliminary enquiry’ prior to registration of FIR. It is done to establish the existence of a prima facie case relating to commission of cognizable cases punishable with more than 3 and less than 7 years of imprisonment. It helps brings to light to the concept that the police is bound to record an FIR, if the cognizable offence is disclosed.
- Forensic Examination of the Scene of Crime.
Crime Scene is a crucial aspect of investigation. Various clues and evidence are available on the crime spot without contamination. This concept has been inserted in the Section 176(3) where the officer in charge of the police station must invite the forensic expert for a crime scene inspection and for collecting the forensic evidence whenever he receives information about the commission of an offence that carries a seven-year or longer prison sentence. Video-recording of the proceedings must also been done.
- Technological compatibility and use of electronic means in investigation and trial.
Section 530 of the BNSS envisages conducting all trials, inquiries, and proceedings in a manner compatible with technology by utilizing the electronic communication or audio-video electronic means.
Conclusion
It is a thorough examination of the provision of criminal investigation under BNSS. It gives the significant reforms in police investigation which ensures efficiency, and accountability. Police officers and Magistrates ensure swift action and proper procedures due to the powers granted to them. Updates to victims enhance transparency and accountability. Through modern technology and forensic sciences, it aims to enhance the efficiency, professionalism, and effectiveness of police investigations. It empowers authorities while safeguarding individuals’ rights.
Reference:
https://www.mha.gov.in/sites/default/files/2024-04/250884_2_english_01042024.pdf
