Kerala High Court Clarifies BNSS Rules on Remote Testimony and Magistrate Powers

In a series of significant rulings interpreting the new Bharatiya Nagarika Suraksha Sanhita (BNSS), 2023, the Kerala High Court has delivered two key judgments that refine the boundaries of criminal procedure. The decisions address the use of technology for recording an accused's statement and delineate the jurisdictional limits of Executive Magistrates in matters of public peace, setting crucial precedents for the application of the new criminal code.

One ruling champions a technology-forward approach, permitting accused individuals exempted from personal appearance to provide their statements remotely. The other serves as a crucial check on magisterial power, preventing the misuse of public order provisions for settling private disputes.

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Embracing Digital Justice: Remote Statements Under Section 351 BNSS

In a landmark decision in Rameshan v State of Kerala , Justice C S Dias has affirmed that an accused person, particularly one residing abroad and exempted from personal appearance, can answer questions under Section 351 of the BNSS through either a written statement or a video link. This judgment significantly modernizes a critical stage of the criminal trial process, aligning it with contemporary technological capabilities and the principles of access to justice.

Background of the Case

The petitioner, an individual employed abroad, was facing trial under Section 55(g) of the Kerala Abkari Act. Given his overseas employment, the Trial Court had granted him a permanent exemption from personal appearance. However, when the time came for the examination of the accused under Section 351 BNSS (the successor to the widely-known Section 313 of the Criminal Procedure Code, 1973), a procedural roadblock emerged. The Trial Court dismissed the petitioner's application to allow his counsel to answer questions on his behalf, effectively requiring his physical presence despite the prior exemption.

Challenging this order, the petitioner argued that forcing him to return to India solely for this purpose would cause undue hardship and contradict the spirit of the exemption already granted.

High Court's Progressive Interpretation

Justice C S Dias, allowing the petition, conducted a meticulous analysis of the BNSS and relevant procedural rules. The Court's reasoning was anchored in the explicit provisions of the new Sanhita and the existing technological framework in Kerala's judiciary.

A key provision relied upon was Section 351(5) of the BNSS, which empowers the court to accept a written statement filed by the accused as sufficient compliance with the questioning requirement. This subsection, the Court noted, provides a clear statutory alternative to in-person examination.

Furthermore, the judgment drew strength from established Supreme Court precedents, including Basavaraj R. Patil v. State of Karnataka (2000) and Keya Mukherjee v. Magma Leasing Ltd. (2008). These cases, decided under the old CrPC, had already established that physical presence during questioning could be dispensed with in cases of genuine hardship, laying down a foundation for a more flexible and humane approach.

The Court highlighted the synergy between the BNSS and Kerala's forward-looking procedural rules, specifically the Electronic Video Linkage Rules for Courts (Kerala), 2021, and the Electronic Filing Rules for Courts (Kerala), 2021. These rules explicitly authorize courts to use video linkage facilities at all stages of a judicial proceeding, including the recording of an accused's statement.

In a particularly insightful observation, the Court stated, “The confluence of Section 351 BNSS with the Linkage and Filing Rules embodies the progressive legislative and judicial policy to integrate technology to enhance access to justice.”

This holistic reading led the Court to conclude that there was no legal impediment to allowing the petitioner to participate remotely. The final order directed the petitioner to adopt either of the two methods: submit a written statement as per Section 351(5) BNSS or have his answers recorded via video linkage in accordance with the state's electronic evidence rules.

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Curbing Misuse of Power: Executive Magistrates and Public Order

In a separate but equally important ruling in M V Nithamol v State of Kerala , Justice V G Arun has circumscribed the powers of Executive Magistrates under Chapter IX of the BNSS, holding that provisions meant to secure public peace cannot be invoked in disputes of a purely private nature.

Context of the Dispute

The case arose from an order issued by the Sub-Divisional Magistrate of Muvattupuzha, initiating proceedings against the petitioner under Sections 126, 130, and 132 of the BNSS. These sections collectively empower an Executive Magistrate to require an individual to execute a bond for keeping the peace. The basis for initiating these proceedings was the pendency of two criminal cases against the petitioner for cheating (Section 420 IPC) and criminal breach of trust (Section 406 IPC).

The petitioner challenged the Magistrate's summons, arguing that the underlying criminal allegations were private disputes between individuals and did not pose any threat to public peace or tranquility. It was contended that the Magistrate was misusing preventive provisions to interfere in a private matter.

High Court's Rebuke and Clarification

Justice V G Arun sided with the petitioner, quashing the Magistrate's order. The judgment emphasized that the powers vested in Executive Magistrates under Chapter IX of the BNSS are extraordinary and must be exercised strictly for their intended purpose: the maintenance of public order and tranquility.

The Court scrutinized the Magistrate's order and found it procedurally and substantively flawed. Critically, the order failed to explain how the alleged private offences of cheating and breach of trust could escalate into a breach of public peace. The Court noted:

“The offences alleged against the petitioner, which is the reason for initiating the proceedings, are breach of trust and cheating. Being so, the Executive Magistrate is duty bound to state as to how the commission of those offences, which are more in the nature of private dispute, can result in breach of peace or the tranquility in the locality being disturbed.”

The Court found that the Magistrate's order lacked any such reasoning and also failed to set forth the "substance of the information received," a mandatory procedural requirement under Section 126 of the BNSS. This procedural lapse, combined with the misapplication of jurisdiction to a private matter, rendered the entire proceeding unlawful.

The ruling serves as a vital safeguard, ensuring that the state's preventive machinery is not weaponized in civil or private criminal disputes to harass individuals. It reinforces the principle that there must be a clear and demonstrable link between an individual's actions and a potential disruption of public peace before such drastic powers can be invoked.

Implications for the Legal Landscape

These two judgments from the Kerala High Court offer crucial early guidance on the interpretation of the BNSS. The Rameshan decision is a welcome step towards integrating technology into the courtroom, offering practical solutions that benefit accused individuals facing genuine logistical challenges without compromising the integrity of the trial. For legal practitioners, it opens up a clear pathway to argue for remote participation for clients who are overseas, infirm, or otherwise unable to appear in person.

Conversely, the M V Nithamol decision acts as a bulwark against the overreach of executive power. It signals to lower magistracy that the provisions of Chapter IX of the BNSS are not a tool for adjudicating private grievances and that strict adherence to both procedural requirements and the core purpose of the law is non-negotiable. This is a critical check and balance that will be closely watched as the new criminal laws are implemented across the country. Together, these rulings paint a picture of a judiciary that is both forward-looking in its embrace of technology and steadfast in its role as a guardian against the arbitrary exercise of state power.