Investigation under BNSS 2023 Police Powers Confession Case Diary and Remand Procedure

Investigation under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) refers to the statutory process by which the police collect facts, evidence, and materials relating to the commission of an offence to ascertain whether an offence has been committed and who is responsible for it.

Under BNSS, investigation generally commences after the registration of information relating to a cognizable offence and includes all steps taken by the police such as:

• visiting the place of occurrence,
• collection of evidence,
• examination of witnesses,
• search and seizure,
• arrest of accused (if necessary), and
• submission of a police report to the Magistrate.

The object of investigation is to discover the truth and to place the relevant materials before the court so that justice may be done. BNSS strengthens this process by emphasizing time-bound investigation, use of technology, transparency, and protection of the rights of accused and victims, making the criminal justice system more efficient and accountable.

Definition

Section 2 (l) - "investigation" includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate on this behalf.

Powers of Police Officer during Investigation

1. To require attendance of persons acquainted with facts (Section 179)

A police officer conducting an investigation is empowered to require the attendance of any person who appears to be acquainted with the facts and circumstances of the case.

Jurisdictional Limit - The police officer may require attendance of a person within the limits of his own police station, or any adjoining police station. This prevents arbitrary summoning beyond territorial jurisdiction.

Mandatory Duty to Attend - Any person so required is bound to attend else he may face legal consequences.

Safeguards to Certain Individuals

The following persons cannot be required to attend at any place other than their residence:

• Male person below 15 years
• Male person above 60 years
• Woman
• Mentally or physically disabled person
• Person suffering from acute illness

(If such a person is willing to attend at the police station, he may be permitted to do so.)

2. Examination of Witnesses by Police (Section 180)

Authority to Examine

The following officers may examine witnesses orally:

• Any police officer making an investigation, or
• Any police officer of prescribed rank acting on requisition of the investigating officer

Nature of Examination - Examination is oral and applicable to any person supposed to be acquainted with the facts and circumstances of the case.

Duty of the Witness - Such person is legally bound to answer truthfully all questions relating to the case.

Exception :

A witness is not bound to answer questions which would expose him to a criminal charge, or subject him to penalty or forfeiture.

This reflects Right Against Self Incrimination guaranteed under Article 20(3) of the Constitution of India.

Recording of Statements

Police officer may reduce statements into writing and he shall make a separate and true record of the statement of each such person whose statement he records.

Use of statement reduced in writing during the course of investigation

Statements recorded by police shall not be signed by the person making them.

General Rule: Bar on use.

Such statements cannot be used at inquiry or trial for any purpose.

Exceptions :

• Contradiction of Witness - Such statement may be used for contradicting the person as to previous statements made in writing u/s 148 BSA.
• Re-Examination - If a contradiction is used, a relevant part of the statement may be used in re-examination, only to explain matters raised in cross-examination.
• Statement admissible as dying declaration - Section 26(a) BSA.
• Statements which lead to discovery of facts - Proviso to Section 23(2) BSA.

3. Search by Police officer (Section 185)

Whenever 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 authorised to investigate may be found in any place within the limits of the police station of which he is in charge search, or cause search to be made, for such thing in any place within the limits of such station.

For causing search in any place outside the limits of a Police Station, authorization by the officer in charge of such a station is necessary.

Confession before Magistrate during Investigation

A confession recorded before a Magistrate during investigation is a judicial confession, carrying high evidentiary value, provided it is voluntary and recorded by a Magistrate in strict compliance with statutory safeguards.

Who Can Record the Confession and When? [Section 183(1)]

Any Magistrate of the District where the offence is registered. Jurisdiction over the case is not mandatory. Confession can be recorded during investigation or at any time afterwards but before the commencement of the inquiry or trial.

Mode of Recording Confession

Must be recorded in the presence of the accused’s advocate. This strengthens transparency and voluntariness.

Mandatory Duties of Magistrate before Recording Confession [Section 183(2)]

Before recording confession, Magistrate must:

1. Explain clearly to the accused that he is not bound to make a confession and it may be used against him as evidence.
2. Satisfy himself that Confession is voluntary and there is no pressure, threat, or inducement.

Non-compliance - Confession becomes invalid

Refusal to Confess

If the accused states before recording that he is not willing to confess, the Magistrate shall not authorize police custody.

This provision protects the accused from forced confession after refusal.

Manner of Recording Confession

• Confession shall be recorded as per Section 316 BNSS (examination of accused)
• Confession must be in writing and signed by the accused.

Mandatory Memorandum by Magistrate

The Magistrate must append a certificate stating:

• Accused was informed of his rights
• Confession was voluntary
• Confession was read over and admitted as correct
• It contains a full and true account

Statements other than Confession [Section 183(5)]

Statements (non-confessional) may be recorded in a manner best suited to the case. Such statements carry greater evidentiary value than police statements.

Forwarding of Confession / Statement [Section 183 (7)]

The magistrate must forward the recorded confession or statement to the Magistrate conducting inquiry or trial.

Case Diary

A Case Diary is a confidential, contemporaneous record maintained by the investigating police officer, reflecting the day-to-day progress of investigation.

Purpose:

• To ensure transparency and accountability in police investigation
• To assist the Court in inquiry or trial
• To enable judicial supervision over investigation
• To refresh the memory of the investigating officer

Statutory Duty to Maintain Case Diary - (Section 192(1) BNSS)

Mandatory Particulars:

• Time when information reached the officer
• Time when investigation began and closed
• Places visited during investigation
• Circumstances ascertained through investigation
• Statements of witnesses recorded under Section 180 BNSS

Use of Case Diary :

• Any Criminal Court may call for police diaries of a case under inquiry or trial and use them only to aid inquiry or trial. The case diary is not substantive evidence.
• Important Limitation: Case diary cannot be used as evidence (It is an aid to judicial understanding, not proof of facts).
• The accused may rely on the case diary only in limited situations:rn
  • When an Investigating Officer uses it to refresh memory.
  • When the court uses it to contradict a Police Officer.

General Rule - The accused or his agent has no right to call for the case diary to inspect the case diary.

Procedure after the completion of investigation

No sufficient evidence found

If there is no sufficient evidence nor reasonable ground for suspicion, accused may be released, if in custody and police report will be submitted in the form of closure report before the Magistrate.

Sufficient evidence found

If there is sufficient evidence or reasonable ground for suspicion, police report will be submitted in the form of charge sheet under Section 193(3) before the Magistrate.

LAW RELATING TO REMAND

Remand refers to the authorisation of continued detention of an accused person by a Magistrate when investigation cannot be completed within 24 hours of arrest.

It is a judicial check on police power and ensures that personal liberty under Article 21 is not violated arbitrarily.

Maximum Period of Detention During Investigation (Section 187(3))

1. Offences punishable with death, life imprisonment, or ≥ 10 years - 90 days
2. All other offences - 60 days

Kinds of Custody

Police Custody - Police station, no prior permission required before interrogating the accused. Accused must be produced in person every time if further detention is sought.

Police Custody can be granted for only 15 days in total :

• During the initial 40 days if the Maximum Period of Detention During Investigation is 90 days
• During the initial 60 days if the Maximum Period of Detention During Investigation is 90 days.

Judicial Custody - Prison, prior permission required before interrogating the accused. Production may be In person, or Through audio-video electronic means.

Place of Detention of women accused below 18 years - Detention shall be in remand home, or recognised social institution.

When Remand Becomes Necessary

When a person is arrested and detained, and the investigation cannot be completed within 24 hours (Section 58), and there are reasonable grounds to believe the accusation is well-founded.

Duty of the Police Officer

Forward the accused to the nearest Magistrate

Who may Authorise Detention (Section 187(2))

• Any Magistrate may authorise detention irrespective of jurisdiction.
• If he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
• Restriction on power of 2nd class Magistrate - He cannot authorise police custody unless empowered by the High Court.

Remand by Executive Magistrate in Emergency (Section 187(6))

When a Judicial Magistrate is not available, Executive Magistrate can authorise detention up to 7 days only. After that, the accused must be released on bail or be produced before a Judicial Magistrate if further detention is sought.

Limitation on Investigation in Summons Cases (Section 187(9))

If investigation is not completed within 6 months from arrest, the Magistrate shall stop further investigation.

Exception - Police show special reasons. Continuation necessary in interest of justice

Power of Sessions Judge (Section 187(10))

Sessions Judge may Vacate order stopping investigation and direct further investigation.