Indian criminal law is constantly evolving to meet modern needs and technological advancements. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is a significant step in this evolution, consolidating and modernizing criminal laws. Section 336 of the BNSS introduces a pivotal change regarding the use of evidence from public servants, experts, and investigating officers.

This section aims to address the practical difficulties of ensuring these key witnesses appear in court, especially when they are transferred, retired, deceased, untraceable, incapacitated, or their appearance would cause excessive delays. By introducing the concept of a "successor officer/expert," Section 336 is designed to streamline the evidentiary process while maintaining fairness.

Before the BNSS, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (CrPC), governed the admissibility of reports and documents prepared by public servants, experts, and investigating officers. While these laws established the basic principles, they often created practical obstacles in ensuring the original authors of crucial evidence were physically present in court.

Government officials are routinely transferred, and retirement, death, or incapacitation are inevitable. Requiring the original author to appear in court could result in significant delays and logistical issues, potentially impeding timely justice.

Section 336 provides a practical solution. It states that if a document or report prepared by a public servant, scientific expert, medical officer, or investigating officer is to be used as evidence, and the original author is:

1. transferred, retired, or deceased; or
2. cannot be found or is incapable of testifying; or
3. securing their presence would cause delay,

The court must secure the presence of the successor officer/expert currently holding that position to provide evidence on the document or report.

This represents a significant shift from strictly requiring the original author to testify. It acknowledges the institutional nature of these roles. The successor in the same position is considered competent to testify on the document's contents and preparation process. This is based on the understanding that these documents are typically prepared as part of an official duty, following established protocols. The successor, by holding the same position, is expected to be familiar with these protocols and the general work involved.

The inclusion of "scientific expert" and "medical officer" is particularly important. In criminal investigations, reports from forensic scientists, ballistic experts, chemical analysts, and medical professionals are often critical. The transfer or unavailability of these experts could significantly delay trials. Section 336 empowers the court to examine their successors, preserving the evidentiary value of these expert opinions.

Similarly, the explicit inclusion of "investigating officer" is crucial. The investigating officer's evidence and reports are fundamental to most criminal prosecutions. Transfers of investigating officers during a trial are common. Requiring the transferred officer to appear in court can be inconvenient and cause delays. Section 336 allows the successor investigating officer, currently in charge, to testify on the investigation and reports.

However, the application of Section 336 requires careful consideration. The court's discretion is vital. The phrase "the Court shall secure the presence of successor officer" suggests a mandatory obligation once the specified conditions are met. However, the court must ensure the successor is sufficiently familiar with the processes and protocols to provide meaningful testimony.

Crucially, the accused's right to a fair trial and cross-examination remains paramount. While Section 336 allows examining a successor, it doesn't prevent the accused from seeking the original author's testimony if there are specific reasons to believe it is essential for a just outcome. The court must balance trial efficiency with protecting the accused's rights.

Another important point is the scope of the successor's testimony. While they can testify on the document and its preparation, they may not have direct knowledge of the original author's personal observations or findings. In these cases, the court may need to rely on the document itself as primary evidence, with the successor authenticating it and explaining the process.

Section 336 of the BNSS is a progressive step towards addressing practical challenges in presenting evidence in criminal trials. It acknowledges administrative realities, human limitations, and the need to avoid unnecessary delays. By allowing the court to examine successor public servants, experts, and officers, the BNSS aims to ensure crucial documentary evidence is readily available without undue hardship or delays.

When a successor officer is not appointed:
When a successor officer is not appointed to fill a vacant post under Section 336 of the BNSS, the court encounters difficulties in obtaining testimony concerning documents or reports created by the original officer. This can cause delays in the trial and impede the presentation of vital evidence. In such situations, the court would likely need to use its inherent authority to mandate the appointment of a replacement or find other ways to authenticate the document's contents, all while protecting the defendant's right to a fair trial.

Conclusion:
Successful implementation depends on the court's judicious discretion and a clear understanding of the limitations of a successor's testimony. The courts must ensure the examination provides sufficient clarity and doesn't prejudice the accused's right to a fair trial, including effective cross-examination. As the BNSS is enforced and Section 336 applied, judicial decisions will further clarify its scope, shaping a new paradigm for the admissibility of evidence from key public functionaries in the Indian legal system, ultimately contributing to more efficient and effective justice.

Reference:

• The True Crime File, Kim Daly.
   

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565