Mandatory Forensic Evidence Collection and Videography — BNSS New Provisions

In India, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) adds three things the Code of Criminal Procedure, 1973 (CrPC) lacked: a forensic-expert visit and crime-scene videography for offences punishable with seven years or more (s.176(3), from a State-notified date), compulsory audio-video recording of searches (ss.105, 185(2)), and voice samples and finger impressions in Magistrate specimen orders (s.349, formerly s.311A).

At a glance

These procedural provisions create no offence, so no punishment or classification applies.

What changed, provision by provision

• s.176(3) BNSS — New. On information of an offence "made punishable for seven years or more", the officer in charge "shall … 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". Section 157 CrPC had no such duty. The full analysis is on the Section 176(3) page.
• Proviso to s.176(3) — New. Where forensic facility is not available, the State Government "shall" notify use of another State's facility until its own is developed.
• s.105 BNSS — New. The "process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185", including preparing the seizure list and its signing by witnesses, "shall be recorded through any audio-video electronic means preferably mobile phone". The officer must forward the recording "without delay" to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.
• s.185(2) BNSS — Expanded. Section 165(2) CrPC ended at "shall, if practicable, conduct the search in person". The BNSS adds a proviso that the search "shall be recorded through audio-video electronic means preferably by mobile phone". Section 185(1) also now requires the grounds of belief to be recorded "in the case-diary".
• s.180(3) BNSS, first proviso — Identical. "Provided that statement made under this sub-section may also be recorded by audio-video electronic means" — the words of the proviso inserted into s.161(3) CrPC by Act 5 of 2009 (w.e.f. 31-12-2009).
• s.183(1) BNSS — Modified; first proviso Identical. The recording Magistrate changes from "Any Metropolitan Magistrate or Judicial Magistrate" to "Any Magistrate of the District in which the information about commission of any offence has been registered", and "at any time afterwards before" becomes "at any time afterwards but before". The audio-video proviso ("in the presence of the advocate of the person accused of an offence") repeats the one substituted in s.164(1) CrPC by Act 5 of 2009.
• s.51 BNSS — Modified. The requesting officer changes from "a police officer not below the rank of sub-inspector" (s.53(1) CrPC) to "any police officer". New sub-section (3): the registered medical practitioner "shall, without any delay, forward the examination report to the investigating officer". The Explanation now cross-refers to "sections 52 and 53" (CrPC: "sections 53A and 54"). The definition of "registered medical practitioner" now refers to the National Medical Commission Act, 2019. The list in clause (a) — blood, blood stains, semen, swabs, sputum, sweat, hair samples, finger nail clippings, "DNA profiling and such other tests" — is unchanged.
• s.349 BNSS — Expanded. "specimen signatures or handwriting" (s.311A CrPC) becomes "specimen signatures or finger impressions or handwriting or voice sample". The arrest proviso is kept. A second proviso is new: the Magistrate may, "for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested".
• s.329 BNSS — Minor edit; clause (g) Expanded. Sub-sections (1)–(3) repeat s.293 CrPC with "Sanhita" for "Code". Clause (4)(g) widens from "any other Government scientific expert specified, by notification, by the Central Government" to "any other scientific expert specified or certified, by notification, by the State Government or the Central Government".
• s.330 BNSS — Modified. Documents must be admitted or denied "soon after supply of such documents and in no case later than thirty days after such supply", which the Court may relax for recorded reasons. A new second proviso: "no expert shall be called to appear before the Court unless the report of such expert is disputed by any of the parties to the trial". Section 294 CrPC had neither.

Statutory text (relevant extracts)

Section 176(3) BNSS — extract (Gazette):

On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crime scene …

Section 311A CrPC — extract (original-PDF text):

If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect …

Section 349 BNSS — second proviso (Gazette):

Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested.

Section 51 BNSS — Explanation (a), extract (Gazette):

"examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling …

Crime-scene forensics: how s.176(3) works

1. Trigger. "Every information relating to the commission of an offence". The sub-section is not limited to offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).
2. Threshold. The offence must be "made punishable for seven years or more". Murder (BNS s.103(1), death or imprisonment for life) and rape (BNS s.64(1), not less than ten years) meet it on any measure. The text does not say whether the maximum or the minimum term is the measure.
3. Timing. The duty runs only "from such date, as may be notified within a period of five years by the State Government". Until a State notifies, the sub-section imposes no duty on officers there.
4. Action. The officer in charge causes the forensic expert to visit, and "also" causes videography "of the process" — on a reading, the expert's collection at the scene.
5. Fallback. A State without a forensic facility for an offence "shall" notify use of another State's facility.

Audio-video recording across the investigation

The BNSS makes recording compulsory in some places and leaves it optional in others. The verb matters.

Compulsory ("shall"):

• Searches and seizures under Chapter VII or s.185, with the seizure list (s.105).
• Searches by a police officer under s.185 (s.185(2) proviso).
• Crime-scene forensic collection, once s.176(3) applies in the State.
• Identification of an arrested person by a mentally or physically disabled identifying witness "shall be recorded by any audio-video electronic means" (s.54 proviso). The CrPC equivalent was the second proviso to s.54A, inserted by Act 13 of 2013: that process "shall be videographed".
• Information from a disabled victim of specified offences "shall be videographed" (s.173(1), second proviso, clause (b)), carried over from the proviso to s.154(1) CrPC inserted by Act 13 of 2013.
• A disabled person's statement before a Magistrate in specified cases "shall be recorded through audio-video electronic means preferably by mobile phone" (s.183(6)(a), last proviso). Section 164(5A)(a) CrPC said "shall be video graphed".

Optional ("may"):

• Police statements (s.180(3) first proviso).
• Confessions and statements before a Magistrate, in the presence of the accused's advocate (s.183(1) first proviso).
• A rape victim's statement "may also be recorded through any audio-video electronic means including mobile phone" (s.176(1), second proviso).

"Audio-video electronic means" is defined in s.2(1)(a) BNSS to include use of any communication device for "recording of processes of identification, search and seizure or evidence". Where a Court or Magistrate has property produced before it, s.497(3) requires it to "cause to be taken the photograph and if necessary, videograph on mobile phone or any electronic media" of that property, and s.497(4) makes that record usable "as evidence in any inquiry, trial or other proceeding".

Proving a recording. When a party seeks to give a statement in evidence from an electronic record under s.63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), s.63(4) requires a certificate "at each instance where it is being submitted for admission", in the form in the BSA Schedule. On a reading, a search or crime-scene video tendered as an electronic record needs that certificate like any other. See electronic evidence under the BSA.

Medical examination and DNA: s.51

Section 51(1) makes it lawful for a registered medical practitioner, acting at the request of any police officer, to examine a person "arrested on a charge of committing an offence". The offence must be of such a nature, and alleged in such circumstances, that there are "reasonable grounds for believing that an examination of his person will afford evidence". The practitioner may use "such force as is reasonably necessary". A female must be examined only by, or under the supervision of, a female registered medical practitioner (s.51(2)). The report goes to the investigating officer "without any delay" (s.51(3), new).

Two limits follow from the text: the section applies only to a person who has been arrested, and its list is of bodily material and examinations. In Selvi (below) the Supreme Court read the identical words "and such other tests" in the CrPC Explanation as confined to tests of physical evidence.

Specimen orders: s.349

A s.349 order has five elements, each in the text:

1. Who orders — a Magistrate of the first class, not the police.
2. Satisfaction — that it is "expedient" for "any investigation or proceeding under this Sanhita".
3. From whom — "any person, including an accused person".
4. What — specimen signatures, finger impressions, handwriting or voice sample. Nothing else.
5. Arrest — the person must "at some time" have been arrested in connection with the investigation or proceeding (first proviso), unless the Magistrate orders otherwise "for the reasons to be recorded in writing" (second proviso).

The person "shall be produced or shall attend at the time and place specified in such order" and give the specimen. For the change from s.311A in detail, see the Section 311A vs Section 349 page.

Expert reports: s.329 and s.330

A report "under the hand of" a listed Government scientific expert "may be used as evidence" (s.329(1)). The s.329(4) list includes the Director, Deputy Director or Assistant Director of a Central or State Forensic Science Laboratory, the Director of the Finger Print Bureau and the Serologist to the Government. The Court may summon the expert (s.329(2)), who may depute a responsible officer conversant with the facts unless personal appearance was directed (s.329(3)).

Section 330 adds a timetable. Documents filed must be admitted or denied no later than thirty days after supply, subject to relaxation for recorded reasons. Under the new second proviso, an expert is not called unless the report is disputed.

What this means in practice

Investigating officers. Check your State's s.176(3) notification first. Record every Chapter VII and s.185 search, including the seizure list and witnesses signing it, and forward the recording "without delay" to one of the three Magistrates named in s.105. Record the grounds of belief for a s.185 search in the case-diary. A s.51 examination can be requested by any police officer, but only for an arrested person. Specimens under s.349 need a Magistrate's order — apply to a Magistrate of the first class, and if the person has not been arrested, ask for the order under the second proviso.

Prosecutors. Serve the forensic reports early. A report not disputed within the s.330 window may be read without calling the expert. If the defence disputes it, be ready to call the expert or a deputed officer under s.329(3). Plan a s.63(4) BSA certificate for each video.

Defence advocates. Ask for the s.105 recording and the date it reached the Magistrate. A search with no recording is a departure from a "shall" provision; s.105 does not itself state the consequence, so the argument is one of weight and reliability. For a s.349 order, check the Magistrate's class, the recorded satisfaction and, for an unarrested person, the written reasons. Dispute an expert report in writing within thirty days if you want the expert examined (s.330(1)).

Accused persons and witnesses. A s.349 order can be made against "any person", but only for the four listed specimens; blood or DNA material is a s.51 matter, limited to arrested persons.

Victims. A rape victim's statement may be recorded on video (s.176(1)); for a disabled victim of the listed offences, recording of the information and of the Magistrate's statement is mandatory (ss.173(1), 183(6)).

Judgments that still matter

No Supreme Court judgment construing ss.105, 176(3) or 349 BNSS is cited here. The three judgments below were decided under the CrPC and Article 20(3). Their bearing on the BNSS is stated as a reading of the text.

The State of Bombay v. Kathi Kalu Oghad, [1962] 3 S.C.R. 10 (1961 INSC 229), 4 August 1961, eleven judges. The majority opinion of B.P. Sinha C.J. concluded that "Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'" (conclusion (4)). It reasoned that such specimens "are only materials for comparison". S.K. Das, Sarkar and Das Gupta JJ. agreed with the answer in a separate opinion delivered by Das Gupta J. Bearing on s.349: the specimens s.311A covered, and the finger impressions s.349 adds, are the kind this decision treats as outside Article 20(3).

Smt. Selvi v. State of Karnataka, [2010] 5 S.C.R. 381, three judges (K.G. Balakrishnan C.J.I., R.V. Raveendran and J.M. Panchal JJ.; opinion delivered by Balakrishnan C.J.I.). The Court read "and such other tests" in the CrPC Explanation to ss.53, 53A and 54 as confined "to include only those tests which involve the examination of physical evidence" (para 149). It said "the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context" (para 188). It held that "no individual should be forcibly subjected to" narcoanalysis, polygraph or brain electrical activation profile tests (para 223). Bearing on s.51: the BNSS Explanation repeats the words the Court construed, so on a reading this construction carries over.

Ritesh Sinha v. State of Uttar Pradesh, [2019] 10 S.C.R. 1006 (2019 INSC 855), 2 August 2019, three judges (Ranjan Gogoi C.J.I., Deepak Gupta and Sanjiv Khanna JJ.; judgment delivered by Gogoi C.J.I.). The Court recorded that the Article 20(3) question on voice samples had been answered in the negative following Kathi Kalu Oghad (paras 6, 9). It found that no CrPC provision specifically empowered a Magistrate to direct a voice sample (para 12). It held that "until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament", a Judicial Magistrate must be conceded that power, conferred under Article 142 (para 25). Bearing on s.349: the section now names "voice sample" expressly. On a reading, that is the kind of explicit provision para 25 contemplated.

Which law applies to your case

The BNSS came into force on 1 July 2024 (S.O. 848(E), 23 February 2024). Under s.531(2)(a) BNSS, an investigation, inquiry or trial pending immediately before that date is continued under the CrPC "as if this Sanhita had not come into force". On a reading, ss.105, 176(3) and 349 therefore do not govern such an investigation; s.311A CrPC and the power recognised in Ritesh Sinha would. For investigations begun on or after 1 July 2024, s.176(3) still applies only from the State's notified date. See which law applies to an offence before 1 July 2024.

Frequently Asked Questions

Is a forensic expert visit mandatory in every criminal case under the BNSS?

No. Section 176(3) BNSS applies only on information of an offence "made punishable for seven years or more", and only from the date the State Government notifies. Where it applies, the officer in charge of the police station shall cause the forensic expert to visit the crime scene and cause videography of the process. Offences below that threshold are outside the sub-section.

When does Section 176(3) BNSS start applying in a State?

Section 176(3) applies "from such date, as may be notified within a period of five years by the State Government in this regard". The Sanhita does not say from what date the five years run, so no fixed deadline can be read from it. Whether a particular State has notified its date has to be checked in that State's own Gazette; this guide has not verified any State notification.

Can a Magistrate order a voice sample without arresting the person?

Yes, under the second proviso to Section 349 BNSS, if the Magistrate records reasons in writing. Otherwise the first proviso applies: no order may be made unless the person has at some time been arrested in connection with the investigation or proceeding. Only a Magistrate of the first class can make a Section 349 order, and it covers specimen signatures, finger impressions, handwriting and voice sample.

Can police take blood or DNA samples under Section 349 BNSS?

No. Section 349 does not mention blood or DNA. Examination of blood, blood stains, semen, swabs in sexual offences, sputum, sweat, hair samples and finger nail clippings, including DNA profiling, falls under the Explanation to Section 51 BNSS, which applies to a person arrested on a charge of an offence and is carried out by a registered medical practitioner at the request of any police officer.

Must police searches now be video-recorded?

Yes, for the searches the two provisions cover. Section 105 BNSS requires the process of a search or seizure under Chapter VII or under Section 185, including preparing and signing the seizure list, to be recorded through audio-video electronic means, and the recording to be forwarded without delay to a District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. The proviso to Section 185(2) separately requires a search by a police officer under that section to be recorded. Section 165 CrPC contained no such requirement.

Did the CrPC already allow audio-video recording in investigations?

Yes, in several places. Act 5 of 2009 inserted a proviso to Section 161(3) and substituted the provisos to Section 164(1), allowing police statements and confessions or statements before a Magistrate to be recorded by audio-video electronic means, and Act 13 of 2013 required videography in specified cases involving disabled persons. BNSS Sections 180(3) and 183(1) carry the two 2009 provisos over in the same words, still as options ("may").

Does compelling a specimen or sample violate Article 20(3) of the Constitution?

Not for specimens of the kind Section 349 lists, on the Supreme Court's reasoning. In Kathi Kalu Oghad (1961) an eleven-judge Bench held that giving finger impressions or specimen writing is not being compelled "to be a witness", and in Ritesh Sinha (2019) the three-judge Bench recorded that the Article 20(3) question on voice samples had been answered in the negative following that decision. Selvi ([2010] 5 S.C.R. 381) held that narcoanalysis, polygraph and brain-mapping tests cannot be forcibly administered.

Does a forensic expert have to testify for the report to be used?

Not necessarily. Under Section 329(1) BNSS a report of a listed Government scientific expert "may be used as evidence", and the Court may summon the expert under Section 329(2). Section 330(1) requires the parties to admit or deny documents within thirty days of supply, and its second proviso says no expert shall be called to appear unless the report is disputed by a party to the trial.

Related

• Section 176(3) BNSS — mandatory forensic investigation
• Section 311A CrPC vs Section 349 BNSS — specimens and voice samples
• Police search of your home — videography under BNSS and CrPC
• Section 164 CrPC vs Section 183 BNSS — confessions and statements
• Section 45 IEA vs BSA — expert opinion
• Offence before 1 July 2024 — which law applies
• Section 165 CrPC vs Section 185 BNSS — Search by Police Officer
• Section 53 CrPC vs Section 51 BNSS — Medical Examination of the Accused (CrPC 53, 53A, 54)
• Sections 291–294 CrPC vs Sections 326–330 BNSS — Medical Depositions, Expert Reports and Formal Proof of Documents

Sources

Acts and sections read (primary text):

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250884): ss.2(1)(a), 51, 54, 105, 173(1), 176, 180(3), 183(1) and (6), 185(1)–(2), 329, 330, 349, 497(3)–(4), 531(2); commencement footnote to s.1 in the official text.
• Bharatiya Nyaya Sanhita, 2023 (Gazette, CG-DL-E-25122023-250883): ss.64(1), 103(1).
• Bharatiya Sakshya Adhiniyam, 2023 (Gazette, CG-DL-E-25122023-250882): s.63(4).
• Code of Criminal Procedure, 1973 (original-PDF text, with amendment footnotes): ss.53, 54A, 154(1), 157, 161(3), 164(1) and (5A), 165, 275(1), 293, 294, 311A.
• Constitution of India: Article 20(3).

Judgments read (Supreme Court, full text in the Veritect judgment corpus):

• The State of Bombay v. Kathi Kalu Oghad, [1962] 3 S.C.R. 10 — 1962_3_10_48_EN.md
• Smt. Selvi v. State of Karnataka, [2010] 5 S.C.R. 381 — 2010_5_381_594_EN.md
• Ritesh Sinha v. State of Uttar Pradesh, [2019] 10 S.C.R. 1006 — 2019_10_1006_1022_EN.md

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.