Law & Policy
From Such Date as May Be Notified: The Forensic Duty the Sanhita Wrote Without a Start Date
20 October 2026 · 19 min read
A code of criminal procedure can require an act. It cannot create the thing the act needs. Parliament can tell an officer in charge of a police station to send a report, to arrest, to seize, to record a statement, and the officer can do each of those with nothing but the authority of the section and his own presence. A laboratory is not like that. An instruction to collect forensic evidence from a crime scene assumes a person trained to collect it, within reach of the scene, available on the day. Where that person exists, the instruction is a procedural requirement. Where he does not, the instruction is a building programme written in the imperative.
The Bharatiya Nagarik Suraksha Sanhita, 2023 confronts this problem in one sub-section, and the way it is drafted repays close reading.
The Sub-Section
Section 176 is headed "Procedure for investigation". Sub-sections (1) and (2) carry forward the familiar scheme: on reason to suspect a cognizable offence the officer sends a report to the Magistrate and proceeds in person or deputes a subordinate to the spot, subject to two provisos that let him stay away where information is given against a named person and the case is not of a serious nature, or where there is no sufficient ground for entering on an investigation at all, and subject to a duty to state his reasons in his report when he relies on either. Sub-section (3) has no counterpart in the Code of Criminal Procedure, 1973, and it reads:
On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crime 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 forensic 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.
Four things are being done at once. A trigger is fixed: receipt of information about an offence punishable with seven years or more. A duty is imposed on the officer in charge of a police station: cause the forensic expert to visit, and collect. A second duty is imposed in the same breath: cause videography of the process. And the whole of it is postponed to a date the State Government will notify.
The difficulties are not in any one of the four. They are in the joints.
The Five Years, and the Date They Run From
The postponement is the first thing a reader notices and the easiest to misread. The sub-section does not say that the duty begins when the Sanhita begins. It says the officer shall, "from such date, as may be notified within a period of five years by the State Government in this regard", cause the expert to visit. The operative date is a State notification. The five years is a limit on the State's freedom to delay naming it.
This is an unusual way for the Sanhita to speak. The Sanhita came into force on 1st July 2024, by notification issued under section 1(3), with a single exception relating to an entry in the First Schedule. Every other duty in it began that day. There is one other provision that works off a State notification of a date — section 341(3), which allows a State Government to extend the legal aid provisions of section 341(1) and (2) to classes of trials before courts other than Courts of Session "as from such date as may be specified in the notification" — but that is a power to extend a provision already in force to a wider field. Section 176(3) is the only place where a duty the Sanhita itself imposes does not commence with the Sanhita, and waits instead on the State.
The sub-section does not say when the five years start. There is no anchoring phrase — not "from the commencement of this Sanhita", not "from the date of commencement of this section", not "from the date of publication". The natural construction is that a period constraining a power conferred by the Sanhita runs from the day the Sanhita began to operate, and that is almost certainly what was intended. It is not what is stated, and nothing in the words forecloses the alternative reading that the five years run from whenever the State first turns its mind to the subject, which would empty the limit of content.
This matters less for the arithmetic than for what the drafting reveals. A provision that fixes an outer limit on a government's delay, and then omits the one fact needed to compute it, was written as an assurance rather than as a deadline. The difference between a period that binds and a period that reassures shows up in exactly this way: the binding kind always says when it starts.
There is a second omission of the same family. Nothing says what happens if the five years pass with no notification. The duty is expressed as commencing "from such date, as may be notified". If no date is notified, there is no date, and the officer's obligation never attaches. The State's failure to act does not put it in breach of anything a court is directed to enforce; it means that in that State, for that offence, the sub-section has not begun. A provision drafted this way cannot be violated by inaction. It can only be left unstarted.
A Threshold Fixed Before the Investigation
The trigger is "receipt of every information relating to the commission of an offence which is made punishable for seven years or more". The classification is made at the moment information is received, by reference to the punishment prescribed for the offence the information discloses.
That is the earliest possible moment, and deliberately so. The point of the sub-section is to get an expert to the scene before the scene is lost, which means the decision has to be taken before anyone knows what the offence really is. The cost is that the trigger depends on a characterisation the officer makes on the strength of an untested allegation. An information that presents a death as murder crosses the threshold; the same facts recorded as a death by negligence do not. The sub-section attaches an obligation it reserves for serious crime to the label the first entry in the station records happens to carry.
The Sanhita uses the seven-year line elsewhere, and reading those uses together shows what the number is doing. Section 173(3) permits an officer, with the prior permission of an officer not below the rank of Deputy Superintendent of Police and on a consideration of the nature and gravity of the offence, to conduct a preliminary enquiry of up to fourteen days before investigating — but only where the cognizable offence is "made punishable for three years or more but less than seven years". Section 20(8) makes the Deputy Director of Prosecution the officer who examines and scrutinises the police report and monitors cases "punishable for seven years or more, but less than ten years". Seven years is therefore the point at which the Sanhita stops allowing the police a discretion to look before investigating, and starts requiring them to collect. The two brackets meet exactly, which suggests the number was chosen with the scheme in view rather than borrowed.
One drafting difference is harder to explain. Section 173(3) says "any cognizable offence". Section 176(3) says only "an offence". Sub-section (3) sits inside a section whose first sub-section is confined to offences the officer is empowered under section 175 to investigate, and the forensic duty is plainly meant for cognizable cases; the surrounding structure supplies the limitation that the words do not. But where a sub-section in the immediately preceding section uses the qualifier and this one drops it, the omission is at least available to be argued.
The Proviso, and What "Not Available" Means
The proviso is the sub-section's answer to the problem of facilities that do not exist. Where "forensic 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".
Three features of it deserve attention.
First, availability is assessed offence by offence, not State by State. The proviso speaks of a facility "not available in respect of any such offence" and of development "in respect of that matter". This is a realistic way to draft, because forensic capacity is not a single thing: a State may have a chemical examiner and no digital forensics unit, or a serologist and no ballistics capability. But it means the sub-section does not commence in a State all at once. It commences for each category of offence as the capacity for that category arrives, so the single question — must the expert attend this scene — can be answered differently for two offences in the same district on the same day. What any particular notification says is a question of fact in each State, and nothing in the Sanhita requires the States to reach the same answers or to reach them together.
Second, the cure is a notification, not a facility. What the State Government must do where capacity is missing is "notify the utilisation of such facility of any other State". The obligation is discharged by directing officers to another State's laboratory. The proviso does not address the practical consequence of that direction — that a scene in one State is to be attended, or its material examined, by an establishment answerable to another — and says nothing about cost, about priority between the two States' own cases, or about the time the arrangement adds to an investigation the Sanhita elsewhere requires to be completed without unnecessary delay. Of all the places in the Sanhita where a provision depends on two governments coordinating, this is the one that most clearly needs machinery, and it supplies the least.
Third, the proviso has no outer limit. The main part of the sub-section gives the State five years to notify a date. The proviso's interim arrangement runs "until the facility in respect of that matter is developed or made in the State", and nothing says when that must be. The sub-section therefore contains two periods of opposite character: a limit of five years on naming the start date, and no limit at all on how long the substitute arrangement may continue. The deadline is attached to the paperwork and not to the capacity.
The Expert the Sanhita Does Not Define
The duty is to "cause the forensic expert to visit the crime scene". The definite article is doing work that nothing in the Sanhita supports. "The forensic expert" has not been mentioned before; no earlier provision introduces such a person; and the expression appears nowhere else in the Sanhita. Nor does "forensic facility", the subject of the proviso. Section 2(1) defines twenty-six expressions, in clauses (a) to (z); neither of these is among them.
The omission is visible because the Sanhita identifies forensic officers with precision wherever it has a reason to. Section 329 lists the Government scientific experts whose reports may be used as evidence without the expert being called, and the list includes "the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory", alongside the Chemical Examiner, the Director of the Finger Print Bureau, the Chief Controller of Explosives, the Serologist to the Government, and any other scientific expert the Central or State Government notifies. Section 328 does comparable work for reports of officers of a Mint, a Note Printing Press, a Forensic Department or a Division of a Forensic Science Laboratory.
So the Sanhita has a worked-out vocabulary for forensic personnel, used in the chapter on evidence, and does not use it in the one place where it directs a particular person to attend a particular place. Whether the person who must attend is an officer within section 329(4)(e), or a technician from a mobile unit, or anyone a State chooses to describe as a forensic expert, is left to the State notification and to the rules. For a defence objection that the person who attended was not competent to attend, the Sanhita supplies no standard to argue against.
A Recording the Sanhita Does Not Send Anywhere
The second half of the duty is to "cause videography of the process on mobile phone or any other electronic device". What makes it worth isolating is not that the Sanhita requires a recording — it requires recordings constantly — but what it does with this one.
The Sanhita defines "audio-video electronic" means in section 2(1)(a), widely: the use of any communication device for video conferencing, for recording processes of identification, search and seizure or evidence, for transmitting electronic communication, and for such other purposes and by such other means as the State Government may provide by rules. That defined expression is then used throughout — for identification, for the recording of a victim's statement, for statements before a Magistrate, for the evidence of public servants, for appearance on remand, for the examination of witnesses. Section 176(3) does not use it. It uses "videography", a word the Sanhita nowhere defines. The cognate forms appear twice more: section 173(1)(b) requires that the recording of information given by a disabled victim of certain offences "shall be videographed", and section 497(3) requires a court to cause the photograph and, if necessary, the videograph of property produced before it to be taken. The clause (a) definition is open-ended enough, through its reference to rules, to be capable of covering crime-scene collection; the enumerated purposes do not mention it.
The more consequential difference is what becomes of the recording. The Sanhita twice tells the reader what to do with a recording it has required. Section 105 requires that the process of conducting a search or taking possession of property, including the preparation and signing of the seizure list, "shall be recorded through any audio-video electronic means preferably mobile phone", and then provides that "the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class". Section 497(4) provides that the statement of property and "the photograph or the videography taken under sub-section (3) shall be used as evidence in any inquiry, trial or other proceeding under the Sanhita". One recording is given a destination; the other is given an evidentiary character.
Section 176(3) does neither. It requires the videography and stops. No provision directs that it be forwarded to a Magistrate, and section 193, which prescribes what the police report on completion of investigation must contain, does not ask for it. Section 193(3)(i) enumerates the particulars the report must state — down to whether the medical examination report of the woman has been attached in the specified sexual offences, and the sequence of custody in the case of an electronic device — and says nothing about whether the forensic expert attended, or whether the collection was recorded. Under section 193(6)(a) the officer forwards to the Magistrate the documents "on which the prosecution proposes to rely". A recording of how the collection was done therefore reaches the court if the prosecution decides to rely on it, and otherwise remains where it was made.
The purpose of requiring such a recording can only be to let someone later see how the collection was done, and the person most likely to want to see it is the accused. Section 105 understood that the value of a recording lies in its reaching a judicial officer promptly. Section 176(3), drafted in the same Sanhita for a step of the same kind, leaves it in the hands of the investigator.
What Follows If the Visit Does Not Happen
The sub-section attaches no consequence to its own breach. What a court does when a seven-year offence was investigated without the forensic visit the section required is therefore answered, if at all, by the general law.
Section 511 is the Sanhita's saving provision. No finding, sentence or order passed by a court of competent jurisdiction is to be reversed or altered on account of any error, omission or irregularity "in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Sanhita", unless in the opinion of that court a failure of justice has in fact been occasioned. Whether an omission during investigation falls within those words is a question of construction. The enumerated items are instruments and judicial steps, which suggests a narrower field. But section 2(1)(l) defines "investigation" to include "all the proceedings under this Sanhita for the collection of evidence", which brings investigation within the phrase "other proceedings under this Sanhita" on the definition's own terms. The better view is that section 511 reaches it.
Sub-section (2) of section 511 then directs the court, in deciding whether a failure of justice has occurred, to have regard to "whether the objection could and should have been raised at an earlier stage in the proceedings". That test fits an objection to a charge or a summons, where the party was present and could have spoken. It fits an omission at a crime scene badly. The accused was not there when the expert was not called, and the earliest stage at which he can discover that the expert was never called is when he reads the papers supplied to him.
The position outside the Sanhita is long settled and points the same way. In H.N. Rishbud and Inder Singh v. State of Delhi, AIR 1955 SC 196, the Supreme Court held that although the investigation provisions there in question were mandatory, an illegality in the investigation does not affect the competence or jurisdiction of the court to try the case; where cognizance has been taken on a police report, what follows is not to be set aside unless the illegality is shown to have caused a miscarriage of justice, and a plea taken early enough may be answered by directing a reinvestigation rather than by disturbing the trial. In C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, the Court dealt with an investigation it accepted was seriously defective and held that the defect did not by itself conclude the matter: the obligation of the court is to examine the prosecution evidence apart from the lapses and to decide whether, so examined, it is reliable.
Read with section 511, this means the omission of a step the Sanhita expresses in mandatory terms is a question of prejudice, to be established case by case on the record. That is a defensible rule of general application. Applied to this sub-section it produces a particular result: the step the Sanhita newly requires, in the cases it treats as most serious, is enforced only by the possibility of persuading a trial court after the fact that its absence mattered.
The Last Asymmetry
One point appears only when the sub-section is read with the chapter on evidence.
Suppose the notification has issued, the facility exists, the expert attends, and the material is examined. The report that results is governed by section 329(1), under which a document purporting to be the report of a Government scientific expert "may be used as evidence in any inquiry, trial or other proceeding under this Sanhita" without the expert being called. Section 329(2) lets the court summon him if it thinks fit, and section 329(3) allows him, if summoned and unable to attend, to depute a responsible officer conversant with the facts. And the second proviso to section 330 provides that "no expert shall be called to appear before the Court unless the report of such expert is disputed by any of the parties to the trial".
The scheme is coherent on its own terms: expert time is scarce, and an undisputed report should not require a witness. But the combination is worth stating plainly. The Sanhita has made forensic attendance compulsory at the scene of every serious offence, and has arranged the trial so that the product of that attendance enters the record without a witness unless it is disputed, and so that the expert cannot be called unless it is. The step the sub-section requires in every serious case is also the one the trial is most likely to receive without a witness. What weight a forensic report carries will therefore turn largely on whether the defence disputes it, and under section 330(1) the parties are called on to admit or deny the genuineness of the documents supplied to them no later than thirty days after supply, subject to the court's discretion to relax that limit for reasons recorded. The election is made on the papers, before any cross-examination, and ordinarily before the recording that would show how the collection was done has been seen by anybody.
Conclusion
Section 176(3) distributes three things and keeps them apart. The duty is on the officer in charge of the police station. The condition on which the duty exists is with the State Government, which notifies the date and, where capacity is missing, notifies the use of another State's facility for as long as it takes. The consequence of the duty not being performed is with nobody: it is left to the general law of prejudice, which will supply an answer in an individual case and cannot supply a standard.
That distribution is neither accidental nor concealed. A legislature that requires forensic attendance at every serious crime scene in the country, knowing that laboratories are unevenly distributed, has two honest options. It can commence the duty and accept that it will be breached. Or it can say that the duty will begin when the capacity does, and give itself a period in which to build. Section 176(3) takes the second course. What it does not do is say so in terms, and the cost of not saying so is a sub-section that reads like an obligation and operates like an undertaking — with a five-year limit on the paperwork, no limit on the capacity, and no date from which to count the five years.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.