By — Dhuha
Abstract
Organised crime leads to a very different challenge when it comes to collecting evidence for prosecution. Organised criminal activity has a lot of mitigating factors such as digital communication, financial transactions and networks of individuals rather than just a single identifiable crime scene. Organised crime is defined under section 111 of the Bharatiya Nyaya Sanhita. However its prosecution is guided by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which lays down the procedure of collection and preservation of evidence while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) lays down the rules for its admissibility in court. This article examines whether these three laws together operate as a coherent framework for the prosecution of organised crime two years after their implementation. The paper argues that even though the new framework of laws recognises the changing and evolving nature of organised crime, the effectiveness of this framework will depend on whether the technological advances in investigation are matched by reliable evidentiary safeguards and institutional capacity.
Introduction
Organised crime is very different from ordinary criminal activities. Organised crime operates through a network of individuals who are connected by encrypted communication, financial transactions, shell business, digital devices and continuing unlawful activity. The issue that arises is that it has to be proved that acts which might seem disconnected are linked together as part of an organised criminal enterprise. The question therefore is whether India’s reformed criminal justice system actually converts the fragmented pieces into legal proof?
The BNS introduced Section 111, which for the first time in the central criminal code, which is applicable pan India, defined and punished organised crime. It defined organised crime as a continuing unlawful activity which is carried out by an individual or group who act as a part of an organised crime syndicate and through the use of violence, intimidation, coercion or other unlawful means obtains direct or indirect material or financial benefits or to promote insurgency. However Section 111 does not mean that every group offence would be punished as organised crime. The prosecution has to establish the statutory requirements of continuing unlawful activity and the accused’s connection with an organised crime syndicate. It represents a bigger problem in terms of evidence since not only does one have to prove the offence, but the prosecution needs to link each of these individual actions to an organization and demonstrate how they constitute organized crime.
But just defining organised crime is not enough. The prosecution also has to establish that the accused has acted as a part of an organised crime syndicate and that the act was a part of a continuing unlawful enterprise which was connected with a common objective of deriving a material or financial benefit. In order to establish all these elements, the prosecution has to reconstruct the relationships, communication patterns, financial flows and organisational hierarchies. The investigators try to put a picture together by using encrypted chats, call details, GPS location, bank transfers and forensic examination of electronic devices. These factors are used so as to link the suspects together who may never have been seen at the crime scene together.
Proving the Network
It is at this point where the three new criminal laws start functioning together as an integrated framework. The BNS explains what must be proved, the BNSS governs how the investigators may lawfully obtain the evidence through searches, seizures, forensic examinations and digital investigation techniques while the BSA determines what evidence is sufficiently reliable and legally admissible in the court so as to establish guilt. A problem at one stage might thus affect the prosecution at the next stage. A failure to preserve evidence under the BNSS might affect the reliability of that evidence under the BSA, and questions about attribution under the BSA might make it impossible to prove the elements of Section 111.
Collecting the Pieces
The BNSS expanded the use of electronic communication in investigation, recognised electronic modes for various procedural steps and placed greater emphasis on technology-enabled searches, seizures and forensic examinations. It also mandated forensic investigation for offences which are punishable with seven years or more. Thus in the case of organised crimes where most of the evidence is usually across electronic devices, financial systems and digital platforms the shift in the approach of BNSS makes it very convenient to try and piece together the various fragmented pieces of evidence. For example, Section 94 BNSS authorizes the production of documents and electronic communication devices that would be containing the digital evidence, while Section 105 necessitates audio-video recording of searches and seizures. Section 176(3) further obligates forensic examination and videography of particular offenses. The BNSS therefore improves the State’s ability to collect digital and forensic material. But quantity of evidence does not mean it is a good proof.
For example, in case of organised crime a single mobile phone might contain encrypted chats, location history, photos, videos, payment history and other contacts. If we look at these things individually, they might not establish guilt. However collectively they show the structure of the organised criminal enterprise. In the same way, bank statements, digital wallets and online transactions may not directly prove that an offence has been committed, but they can together establish the links between the individuals by tracing the movement of the illegal proceeds and thus demonstrate the continuity of criminal activity. The BNSS thus equips the investigators with the procedural tools to collect the evidence which is generated through organised crime.
Can Digital Evidence Survive Court?
However this evidence has to be admitted in court and this is where the BSA comes in. Just because digital evidence exists it does not mean that they are admissible in the court. The courts have to be satisfied that the material is authentic, untampered and can be linked to the accused as digital evidence is vulnerable to manipulation. A screenshot might be edited, a message might be forwarded or a device might be shared by multiple users. Even financial records may show transfer of funds without revealing the purpose behind the transaction. Even location data can place an individual near a crime scene without establishing participation in the criminal activity. Sections 61 to 63 of the BSA provide the foundation for the creation of electronic documents, while Section 63 provides the provisions for their admissibility Thus the prosecution has to do more than just producing electronic records, it also has to establish the reliability of these records through a secure chain of custody, forensic examination and corroborative evidence. The chain of custody is very important as at every stage from the seizure of an electronic device to the extraction of the data for forensic analysis and presentation before the court there is a need to preserve the integrity of evidence. A procedural lapse at any point might end up casting doubt on the entire evidentiary chain.
Has Technology Solved the Problem?
However, two years down the line from the beginning of its application, the issue now is not whether or not these laws allow for more extensive use of technology. The issue is whether the investigators and the courts themselves have the ability to implement the use of this technology without compromising the evidentiary value of the evidence. This is particularly important for Section 111 because the prosecution needs to establish connections between individuals and activities, rather than just merely proving an isolated offence.
The conclusion arrived at is that India’s criminal justice system has shifted towards a technology-driven mode of investigation. The government has introduced platforms such as e-Sakshya and e-Forensic and has expanded training on the new criminal laws. However, mere use of technology cannot address evidentiary issues. There is a need to ensure that investigators understand how to preserve the device, conduct extraction, maintain chain of custody and make a link between the digital evidence and the accused person. In cases of organised crimes, where multiple digital evidence is required to prove a syndicate, any problem in a stage could create problems in the entire investigation process.
Conclusion
In essence, the difficulty posed by organised crime under the new criminal legislation is no longer just the identification of criminal activity, but rather the reconstruction of the network of relationships among isolated activities to constitute organised criminality. The BNS is the substance, the BNSS provides the mechanisms through which the evidence can be collected and preserved, and the BSA establishes whether or not the evidence is capable of surviving judicial scrutiny. Two years down the road, the system has certainly become more sensitive to the digital character of organised criminality, but its effectiveness will depend on how well technological investigation is complemented by authentication, preservation and capacity.
About the Author
Dhuha Mir is a third year B.A. LL.B student studying at OP Jindal Global University and she is interested in women’s rights, contract law, sports and international law.
Image link: https://www.fbi.gov/image-repository/transnational-organized-crime.jpg/@@images/image
