Delhi lawyers seek changes in BNSS over LG’s witness VC order

Bar association members said while regular appearances and bail arguments should be held through VC, evidence should not be recorded by any of the witnesses from any place other than the court.

Amid protest against the Delhi Police’s recent order allowing formal police witnesses to appear through video conferencing, bar leaders have now demanded amendment of four sections of Bharatiya Nagarik Suraksha Sanhita (BNSS), calling them “contentious”.

Bar leaders have now demanded amendment of four sections of Bharatiya Nagarik Suraksha Sanhita (BNSS), calling them “contentious”. (Getty Images/iStockphoto)

These sections include Section 530 — all trial and proceedings may be held in electronic mode to expedite the case; Section 308 — evidence must be recorded in the presence of the accused, also through audio-video electronic means at designated places notified by the state government; sections 265 and 266 which allow for evidence of prosecution and defence witnesses to be recorded through audio-video electronic means. Lawyers claimed the last two sections have the possibility of tilting the trial towards the prosecution’s favour

Further, bar association members said while regular appearances and bail arguments should be held through VC, evidence should not be recorded by any of the witnesses from any place other than the court.

Advocate Tarun Rana, additional secretary general of co-ordination committee of All District Courts Bar Association, told HT, “Firstly, we were assured by the Union Home Ministry that all police witnesses, be it formal or material, would have to depose in person before court but the recent police order lacks clarity.”

Advocate Nagendra Kumar, convenor of the committee, explained, “In all of these sections, the words relating to allowing proceedings through the electronic mode has been kept very open-ended and at any point can be used against the defence and is being used currently through the LG’s notification…when the law (BNSS) came into force in 2023, inadequate discussions were held on these sections and these need to be reviewed again.”

The advocate said that the categorisation of witnesses into formal and material, would be unfair. “Often, a material witness, such as a head constable who had accompanied an investigating officer (IO) — a material witness — might contradict the facts of the case which acts in the defence’s favour…how can this be done through VC from a police station where chances of manipulation are at an all-time high,” Kumar said.

To be sure, a formal witness in a trial is the officer who wrote or signed off the FIR based on the complainant’s statements, the officer who accompanied the IO or the malkhana-in-charge. A material witness is the IO, who investigates the case and prepares the chargesheet, or the officer who recovers the weapons from the crime scene and prepares the seizure copy.

In an order issued by the Delhi police commissioner on Thursday, it had been stated that only formal witnesses may be permitted to be examined through video-conferencing and the examination of material witnesses may continue to be conducted through physical mode, pending further orders among various stakeholders.

The order stressed that this would ensure that while the objective of expedited proceedings and reducing delays is met, the sanctity and efficacy of the examination of crucial witnesses will also be maintained. The order further stated that in the event of a request from the defence counsel for examination of a formal police witness in person, the same may be considered by the presiding judge based on the merits of the case.

The police order comes almost a week after district court lawyers called off a strike against a notification passed on August 13, for setting up videoconferencing facilities in all police stations of Delhi for deposition of police personnel through videoconferencing.

Lawyers contended that the notification disrupted the fair process of trials and gave police an advantage of manipulating evidence.

Following chakka jams across six district courts of Delhi and proceedings adjourned for almost a week, the strike was called off following an assurance from the Union Home Ministry on elaborate discussions with all stakeholders and an order issued by the Delhi Police, temporarily staying the operation of the notification. Bar leaders also met Union home minister Amit Shah on Tuesday regarding the same.