Electronic Trials and Proceedings — BNSS Section 530 (New Provision)

In India, Section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) lets all trials, inquiries and proceedings under the Sanhita be held in electronic mode, from summons to appeals. The Code of Criminal Procedure, 1973 (CrPC) had no general equivalent, only stage-specific audio-video provisions, chiefly those inserted or substituted by Act 5 of 2009.

At a glance

What changed

• Section 530 — New. A general enabling provision. All trials, "inquires" [sic] and proceedings under the Sanhita, including (i) issuance, service and execution of summons and warrant, (ii) examination of complainant and witnesses, (iii) recording of evidence in inquiries and trials, and (iv) "all appellate proceedings or any other proceeding", may be held in electronic mode. There is no proviso and no rule-making power in the section.
• Definition of "audio-video electronic means", s.2(1)(a) — New. It "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". It also covers other purposes and means that the State Government may provide by rules. The CrPC had no such definition.
• Definition of "electronic communication", s.2(1)(i) — New. Written, verbal, pictorial or video content transmitted by an electronic device, including a telephone, mobile phone, computer or camera, or a form notified by the Central Government.
• Police statements, s.180(3) proviso (s.161(3) proviso) — Identical. "…may also be recorded by audio-video electronic means".
• Confessions and statements before a Magistrate, s.183(1) proviso (s.164(1) proviso) — Identical. Audio-video recording "in the presence of the advocate of the person accused of an offence".
• Remand, s.187(4) (s.167(2)(b)) — Minor edit. Judicial custody may be extended on production "through the audio-video electronic means" in place of "through the medium of electronic video linkage". Police custody still requires production in person.
• Evidence in presence of accused, s.308 (s.273) — Expanded. "in the presence of his pleader" becomes "in the presence of his advocate including through audio-video electronic means at the designated place to be notified by the State Government". The Explanation's cross-reference moves from Chapter VIII to Chapter IX.
• Warrant-case evidence, s.310(1) proviso (s.275(1) proviso) — Identical.
• Trial in absence of accused, s.355 (s.317) — Expanded. A new Explanation: "personal attendance of the accused includes attendance through audio-video electronic means". "Pleader" becomes "advocate".
• Other audio-video provisions with no central CrPC counterpart — New. These cover:
  • charge read and explained to an accused present physically or by audio-video (s.251(2));
  • Sessions evidence by audio-video, and public servants' depositions (s.254(1) proviso, (2));
  • examination of the accused on a discharge application (s.262(2));
  • warrant-trial witness examination at a notified designated place (ss.265(3), 266(2) provisos);
  • successor public servants' or experts' depositions (s.336);
  • trial in absentia recordings (s.356(5));
  • an accused in custody hearing the judgment (s.392(5));
  • appearance in public-nuisance orders (s.154(b));
  • electronic summons and service (ss.63(ii), 64(2) proviso, 70(3)).

Statutory text (relevant extract)

Section 530 BNSS (full): "All trials, inquires [sic] and proceedings under this Sanhita, including— (i) issuance, service and execution of summons and warrant; (ii) examination of complainant and witnesses; (iii) recording of evidence in inquiries and trials; and (iv) 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."

Section 275(1) CrPC, proviso (inserted by Act 5 of 2009, s.20, w.e.f. 31-12-2009): "Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence." Section 310(1) BNSS repeats it.

Section 167(2)(b) CrPC (extract, substituted by Act 5 of 2009, s.14): "…the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage".

How it works — the steps

1. Is it a proceeding "under this Sanhita"? Section 530 reaches only trials, inquiries and proceedings under the BNSS. It says nothing about proceedings under other laws.
2. Which stage? The four clauses follow the word "including". On a reading, they illustrate rather than exhaust the proceedings covered, and clause (iv) adds "any other proceeding".
3. Which mode? Either "electronic communication" (s.2(1)(i)) or "audio-video electronic means" (s.2(1)(a)). The latter includes video conferencing and other means the State Government may add by rules.
4. Who decides? The section uses "may" and names no decision-maker. It gives neither the accused nor the prosecution a right to insist on either mode, and does not exclude one; the text leaves the question open.
5. Check the stage-specific provision. Where a specific section attaches a condition, it is in the text: an advocate's presence for audio-video confessions (s.183(1) proviso); a designated place notified by the State Government for evidence under ss.265(3), 266(2) and 308; production in person for police custody (s.187(4)). On a reading, s.530's general permission does not displace those conditions, but no judgment on the point was read for this page.
6. The record. Section 2(1)(e)(i) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) treats "all statements including statements given electronically" that the Court permits or requires as oral evidence.

What this means in practice

For the accused and defence counsel. Presence by video is presence for several purposes: evidence (s.308), trial in absence (s.355 Explanation), charge (s.251(2)) and judgment (s.392(5)). Cross-examination must still be effective. Praful B. Desai (paras 19, 22 and 24) grounded the validity of video evidence in the accused's and pleader's ability to see, hear and cross-examine the witness. If that ability fails in a given hearing, raise it on the record at once. A confession recorded by audio-video under s.183(1) requires the accused's advocate to be present.

For victims and vulnerable witnesses. Section 308's proviso (repeating the s.273 CrPC proviso inserted by Act 13 of 2013) lets the court prevent a woman under eighteen alleged to have been subjected to rape or another sexual offence from being confronted by the accused, while preserving cross-examination. Sakshi (para 34) had earlier directed screens or similar arrangements in child sexual abuse and rape trials under the CrPC.

For investigating officers. Several BNSS provisions require recording rather than merely allowing it: search and seizure "shall be recorded through any audio-video electronic means" (s.105; s.185(2) proviso). A disabled witness's statement before a Magistrate "shall be recorded through audio-video electronic means" (s.183(6)(a)). These are separate from s.530, which is permissive.

For advocates and court staff. Summons may be issued in electronic form (s.63(ii)) and served electronically as State rules provide (s.64(2) proviso), and are then deemed duly served (s.70(3)). Where ss.265, 266 or 308 refer to a "designated place to be notified by the State Government", check the State's notification before relying on remote evidence. This page did not verify which States have notified one.

Judgments that still matter

The two judgments below construed the CrPC. Section 308 BNSS keeps the s.273 rule and now names audio-video means, so on a reading of the text their reasoning remains relevant.

State of Maharashtra v. Dr. Praful B. Desai, [2003] 3 S.C.R. 244 (2003 INSC 202), 1 April 2003. S.N. Variava and B.N. Agrawal JJ.; judgment by Variava J. The question was "whether in a criminal trial, evidence can be recorded by video conferencing" (para 3). The Bombay High Court had said no, reading s.273. The Supreme Court held that s.273 "contemplates constructive presence", so "actual physical presence is not a must". It also held that evidence under the Evidence Act includes electronic records, which "would include videoconferencing" (para 12). Para 19 holds that "so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused". It added that such recording is "procedure established by law". Para 20 allows a commission under s.284 CrPC to record evidence by video conferencing. Paras 22 and 24 set conditions for a witness abroad. An officer is to ensure that no other person is in the witness's room and that the witness is not "coached/tutored/prompted". The accused and counsel are to be present with full opportunity to cross-examine, and the State bears the cost. The appeals were allowed (para 25). Paragraph numbers are from the Court's own copy of the judgment.

Sakshi v. Union of India, [2004] Supp. 2 S.C.R. 723 (2004 INSC 383), 26 May 2004. Rajendra Babu CJ and G.P. Mathur J.; judgment by Mathur J. Para 31 reads s.273 as requiring evidence in the presence of the accused, but not that the accused "should have full view of the victim or the witnesses". It cites Praful B. Desai for the permissibility of video conferencing. Para 34 directed that, in trials of child sexual abuse or rape, three safeguards apply. A screen or similar arrangement may shield the victim or witnesses from the accused. Cross-examination questions relating directly to the incident are to be given in writing to the presiding officer. The victim is to be allowed sufficient breaks. Bearing on BNSS: the no-confrontation proviso for women under eighteen, added to s.273 CrPC by Act 13 of 2013, is repeated in s.308 BNSS.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before the BNSS came into force is disposed of under the CrPC "as if this Sanhita had not come into force". On a reading, such a pending trial continues under the CrPC's stage-specific provisions, read with Praful B. Desai. Proceedings begun on or after 1 July 2024 fall under s.530 and the BNSS provisions above. The CrPC text read for this page also prints State amendments that used electronic video linkage before the BNSS. For s.167, these were Gujarat Act 31 of 2003, Delhi Act 4 of 2004, West Bengal Act 20 of 2004, Maharashtra Act 8 of 2005, Chhattisgarh Act 13 of 2006, Madhya Pradesh Act 2 of 2008 and Orissa Act 16 of 2009. Chhattisgarh Act 13 of 2006 also amended ss.228, 240 and 251. Gujarat Act 31 of 2017 amended ss.273, 278, 281, 291 and 317. Their status was not checked. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Does Section 530 BNSS make online criminal trials compulsory? No. Section 530 BNSS says trials, inquiries and proceedings "may be held in electronic mode". The word is permissive. The section does not say who decides whether a particular hearing is electronic and lays down no conditions of its own, so stage-specific provisions such as Sections 187(4), 308 and 355 remain the place to look for conditions.

Which proceedings does Section 530 cover? Section 530 BNSS covers "All trials, inquires [sic] and proceedings under this Sanhita", including 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". On a reading of the word "including", the four clauses are examples, not a closed list.

Is evidence recorded by video conferencing valid in a criminal trial? Under the CrPC, the Supreme Court held in State of Maharashtra v. Dr. Praful B. Desai ([2003] 3 S.C.R. 244, para 19) that evidence recorded by video conferencing in the presence of the accused or his pleader meets Section 273 CrPC. Section 308 BNSS now says expressly that evidence may be taken in the advocate's presence "including through audio-video electronic means".

Can the accused attend court by video instead of in person? Several BNSS provisions allow it. The Explanation to Section 355 treats attendance through audio-video electronic means as personal attendance, and Section 392(5) lets an accused in custody hear the judgment that way. Under Section 187(4), judicial custody may be extended on video production, but police custody still requires production in person.

What did the old CrPC provide for video proceedings? The central CrPC text had stage-specific provisions only. Act 5 of 2009 (w.e.f. 31-12-2009) provided audio-video recording of police statements (Section 161(3) proviso), of confessions and statements before a Magistrate (Section 164(1) proviso) and of warrant-case evidence (Section 275(1) proviso), and extension of judicial custody through electronic video linkage (Section 167(2)(b)). Act 13 of 2013 added videography for disabled persons in identification (Section 54A proviso), information to the police (Section 154(1) proviso) and statements under Section 164(5A)(a). Gujarat Act 31 of 2017 added Electronic Video Linkage wording to Sections 273, 278, 281, 291 and 317 for Gujarat.

Can a court summons be served electronically under the BNSS? Yes. Section 63(ii) BNSS allows a summons in encrypted or other electronic form bearing the court's seal image or digital signature, and the proviso to Section 64(2) allows service by electronic communication in the form and manner the State Government provides by rules. Section 70(3) treats summons served by electronic communication under Sections 64 to 71 as duly served.

What protects a witness who testifies by video from being coached? Section 530 BNSS itself lays down no safeguards. In Praful B. Desai (paras 22 and 24) the Supreme Court required an officer at the witness's end to ensure no one else was in the room and the witness was not coached, with the accused and counsel present and able to cross-examine. Sections 265(3) and 266(2) BNSS tie video examination in warrant trials to a designated place notified by the State Government.

Related

• Witness and accused by video conferencing — BNSS vs CrPC
• Summons on WhatsApp, email and electronic service
• Section 167 CrPC vs Section 187 BNSS — remand and default bail
• Section 164 CrPC vs Section 183 BNSS — confessions and statements
• Audio-video evidence — Section 311A page
• Offence before 1 July 2024 — which law applies
• Sections 272–283 CrPC vs Sections 307–318 BNSS — Mode of Taking and Recording Evidence

Sources

• Acts and sections read: BNSS 2023 ss.2(1)(a), 2(1)(i), 54, 63, 64, 70, 105, 154, 176, 180, 183, 185, 187, 251, 254, 262, 265, 266, 308, 310, 336, 355, 356, 392, 530, 531 (Gazette CG-DL-E-25122023-250884); BSA 2023 s.2(1)(e) (Gazette CG-DL-E-25122023-250882); CrPC 1973 ss.161, 164, 167, 273, 275, 278, 281, 291, 317 with footnotes and State amendment notes (original India Code text).
• Judgments read (Veritect judgment corpus, full text): State of Maharashtra v. Dr. Praful B. Desai (2003_3_244_265_EN.md; paragraph numbers from Diary_14648-2001_Judgment.md); Sakshi v. Union of India (S_2004_2_723_758_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.