Electronic Trials and Proceedings Section 530

Section 530, BNSS 2023 — new

All trials, inquiries and proceedings under this Sanhita, including —

(i) the issuance, service and execution of summons and warrant;

(ii) examination of complainant and witnesses;

(iii) the 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.

📖 Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 (Constitution Bench)

Facts: The Supreme Court was required to consider whether it could transfer cases from one State to another in circumstances where the ordinary statutory power was unavailable, and in doing so examined the nature of access to justice and the means by which it may be secured.

Held: The Constitution Bench held that access to justice is a facet of the right guaranteed by Article 21, and is also an aspect of the right to equality under Article 14. The Court identified the four facets which make access to justice meaningful: the existence of an adjudicatory mechanism; that it must be reasonably accessible in terms of distance; that the process must be speedy; and that the litigant’s access must be affordable. The Court held that inconvenience of distance and expense can render a remedy illusory, and that measures which reduce them serve the constitutional guarantee rather than merely the convenience of parties. It observed that where attendance in person would impose a disproportionate burden, the use of available technological facilities — so that a party or a witness may participate without travelling — is a legitimate means of securing access, provided the integrity of the proceeding is preserved.

Ratio: Access to justice is a facet of Article 21 and of Article 14, and requires an adjudicatory mechanism that is reasonably accessible, speedy and affordable. Measures reducing the burden of distance and expense serve the constitutional guarantee.

📖 Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560

Facts: Very large numbers of complaint cases concerning dishonoured cheques were pending, and the Supreme Court considered what procedural measures could be adopted to secure their expeditious disposal consistently with the statute.

Held: The Supreme Court held that where the law permits, courts should adopt technology to secure the expeditious disposal of cases, and issued directions to that end. It held that service of summons may be effected by post, by email or by other electronic means where the particulars are available, and that courts should use the electronic modes available rather than adhere to physical service where it causes delay. It held that the evidence of a complainant may be given on affidavit and may be read in evidence, and that where the presence of an accused or a witness is not essential to the fairness of the proceeding, the court may permit appearance through counsel or by video conferencing, so that attendance does not itself become the obstacle to disposal. The Court emphasised that these are procedural facilities in aid of the trial, not departures from it, and that the fairness of the proceeding and the rights of the accused remain the controlling considerations — the object being to remove avoidable delay, not to abridge any right.

Ratio: Courts should adopt available technology to secure expeditious disposal — service of summons by post, email or other electronic means, evidence on affidavit, and appearance by video conferencing where presence is not essential. These are facilities in aid of the trial, the fairness of the proceeding remaining controlling.

⚠ The practical questions a court still has to decide

Whether the facility is adequate. Whether the accused can see and hear the witness, whether his advocate can confer with him, and whether documents can be put to the witness properly.

Whether the witness is alone and unprompted, and who is present at the remote location. This is why supervision of the remote end is ordinarily entrusted to a responsible officer, and why the court records who was present.

Whether the particular step requires presence. The examination of the accused under section 351 exists so that he may personally explain the circumstances appearing against him, and a court may properly decide that it should be conducted in person even though section 530 would permit otherwise.

And whether the record is complete. The proceeding must produce a record that satisfies the provisions on how evidence is taken, signed and authenticated — electronic conduct does not relax them.

The position stated shortly

1. Section 530 is new, and is the only new provision in Chapter XXXIX.

2. All trials, inquiries and proceedings under the Sanhita may be held in electronic mode, by electronic communication or audio-video electronic means.

3. It names four things: the issuance, service and execution of summons and warrants; the examination of complainant and witnesses; the recording of evidence; and all appellate proceedings or any other proceeding.

4. It converts a series of specific permissions under the Code of Criminal Procedure into a general authority, and removes the argument that a step may not be taken electronically because the statute does not say so.

5. It is the provision under which the Sanhita’s other electronic features operate — the electronic FIR (section 173), audio-video recording of a search (section 185), the victim’s statement (section 183(6)), and the examination of the accused (section 351).

6. Section 64(2) permits service of summons by electronic communication, an attested copy being evidence of service.

7. But the word is may. The section does not compel electronic proceedings, and gives no party a right to appear electronically.

8. It does not displace the provisions on how evidence is recorded, on the presence of the accused or his advocate, or on signature and authentication.

9. It does not dispense with the open court principle in section 366, nor alter the law governing the admissibility of electronic records, which the Bharatiya Sakshya Adhiniyam, 2023 supplies.

10. Access to justice is a facet of Article 21 and Article 14, and technology which reduces the burden of distance and expense serves that guarantee — provided the integrity and fairness of the proceeding are preserved: Anita Kushwaha; Meters and Instruments.