Clauses 176 & 183 of BNSS

 

Clauses 176 & 183 of BNSS

Clause 176 - Procedure for Investigation

(1)       If, from information received or otherwise, an offi cer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 175 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate offi cers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that— (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the offi cer in charge of a police station need not proceed in person or depute a subordinate offi cer to make an investigation on the spot; (b) if it appears to the offi cer in charge of a police station that there is no suffi cient ground for entering on an investigation, he shall not investigate the case: Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police offi cer in the presence of her parents or guardian or near relatives or social worker of the locality: Provided also that statement made under this sub-section may also be recorded through any audio-video electronic means preferably cell phone.  (2) In each of the cases mentioned in clauses (a) and (b) of the fi rst proviso to sub-section (1), the offi cer in charge of the police station shall state in his report the reasons for not fully complying with the requirements of that sub-section by him, and, forward the daily diary report fortnightly to the Magistrate and in the case mentioned in clause (b) of the said proviso, the offi cer shall also forthwith notify to the informant, if any, in such manner as may be prescribed. (3) On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the offi cer in charge of a police station shall, from such date, as may be notifi ed within a period of fi ve years by the State Government in this regard, cause the forensics expert to visit the crimes scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device: Provided that where forensics facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that matter is developed or made in the State, notify the utilisation of such facility of any other State.

 Clause 183 - Recording of confessions and statements (1) Any Judicial Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police offi cer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.  (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 316 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:— "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate." (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Judicial Magistrate, best fi tted to the circumstances of the case; and the Judicial Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) (a) In cases punishable under section 66, section 67, section 68, section 70, section 71, section 73, section 74, section 75, section 76, section 77, sub-section (1) or sub-section (2) of section 74, or section 78 of the Bhartiya Nyaya Sanhita, 2023, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner specifi ed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that such statement shall, as far as practicable, be recorded by a woman Judicial Magistrate and in her absence by a male Judicial Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or imprisonment for life or with death, the Judicial Magistrate shall record the statement of the witness brought before him by the police offi cer: Provided also that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:  Provided also that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means preferably cell phone. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specifi ed in section 142 of the Bhartiya Sakshya Adhiniyam, 2023 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. (7) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.