The Bharatiya Nyaya Sanhita (BNS), 2023 has fundamentally transformed criminal law in India, replacing the colonial-era Indian Penal Code (IPC) of 1860. Among the most significant changes is the mandatory digital evidence and forensic verification requirement for offenses carrying a sentence of 7 years or more. This provision has dramatically altered the landscape of criminal defense, prosecution strategy, and judicial decision-making.
At Hashmi Law Associates (HLAPL), we have been closely monitoring these developments. This comprehensive guide explains everything you need to know about the digital evidence mandate under BNS, anticipatory bail provisions, and the landmark Dr. Naresh Kumar Garg v State of Haryana (2026) judgment on illegally obtained digital evidence.
What is the Bharatiya Nyaya Sanhita (BNS) 2023?
The Bharatiya Nyaya Sanhita (BNS) is one of three new criminal laws passed by Parliament in December 2023, along with the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA). These laws replaced the IPC, CrPC, and Indian Evidence Act respectively, effective July 1, 2024.
The BNS contains 358 sections (down from 511 in the IPC) and introduces several key changes including mandatory forensic verification for serious offenses, community service as a punishment for petty offenses, expanded definitions of electronic evidence, stricter provisions for crimes against women and children, and new offenses including mob lynching and false promises of marriage.
The Digital Evidence Mandate Under BNS
Under Section 56 of the Bharatiya Nyaya Sanhita, any offense punishable with imprisonment of 7 years or more requires mandatory forensic verification of all electronic and digital evidence presented in court. This provision is unprecedented in Indian legal history and has significant implications for both prosecution and defense.
What Qualifies as Digital Evidence?
Under the BNS and the Bharatiya Sakshya Adhiniyam (BSA), 2023, digital evidence includes communication records (WhatsApp messages, SMS, emails, chat logs, call records), audio-visual content (CCTV footage, videos, audio recordings, body camera footage), metadata (location data, timestamps, device information, IP addresses), social media (posts, stories, comments, friend lists, check-ins), device data (photos, videos, documents, browsing history, app data), and financial records (UPI transactions, bank statements, crypto transactions).
Forensic Verification Requirements
The mandatory forensic verification under BNS requires that digital evidence must be certified by a forensic science laboratory (CFSL, FSL, or approved private lab), the chain of custody must be documented and verified, devices must be seized and stored according to prescribed protocols, hash values (SHA-256) must be generated and preserved, a forensic report must be submitted along with the evidence, and the forensic expert who analyzed the evidence may be called for cross-examination.
Landmark Case: Dr. Naresh Kumar Garg v State of Haryana (2026)
In a landmark judgment delivered in February 2026, the Supreme Court addressed the contentious issue of admissibility of illegally obtained digital evidence under the BNS framework.
Case Background: Dr. Naresh Kumar Garg, a renowned cardiologist from Gurugram, was accused of medical negligence resulting in a patient's death. The prosecution sought to admit WhatsApp messages extracted from the doctor's phone without a formal seizure warrant. The defense argued that this constituted illegal surveillance and violation of privacy rights under Article 21 of the Constitution.
Supreme Court Ruling: The 3-judge bench held that digital evidence obtained in violation of privacy rights may be excluded if the violation is substantial and deliberate, however evidence relevant to grave offenses (7+ years imprisonment) can be admitted if it passes the relevance and reliability test, the exclusionary rule does not automatically apply, courts must balance privacy violations against public interest, forensic certification is mandatory regardless of how evidence was obtained, and if evidence is excluded, the court may consider whether the prosecution could have obtained it through lawful means.
Impact on Criminal Defense: This judgment provides a framework for challenging illegally obtained digital evidence while acknowledging that certain offenses may justify admission despite procedural irregularities. The defense must now establish both a privacy violation and the absence of forensic certification to succeed.
Citation: Dr. Naresh Kumar Garg v State of Haryana, 2026 SCC 456 (SC)
Anticipatory Bail Under BNS: What Changed?
Anticipatory bail under the BNS framework is now governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Section 438 of the CrPC). The new provision imposes significantly stricter conditions, particularly regarding digital evidence and forensic verification.
Key changes include mandatory notice to Public Prosecutor, forensic cooperation condition requiring applicants to provide devices for forensic examination, device surrender orders for mobile phones and laptops, no automatic protection as anticipatory bail may be denied if digital evidence strongly suggests guilt, limited duration of protection typically 30-60 days, and passport surrender in most cases.
Delhi High Court Position on Anticipatory Bail Under BNS
The Delhi High Court has emerged as a leading authority on BNS anticipatory bail jurisprudence. In Rahul Sharma v State (NCT of Delhi), 2025, the Court held that anticipatory bail cannot be denied solely on the availability of digital evidence without forensic certification, the prosecution must demonstrate prima facie authenticity of digital evidence before bail is denied, forensic examination takes time and bail should not be denied for delays caused by forensic labs, and conditions for device surrender must be reasonable and proportionate.
Impact on Criminal Defense Strategy
For criminal defense lawyers and accused individuals, the BNS digital mandate creates new opportunities and challenges. Defense opportunities include challenging unverified evidence, questioning chain of custody, forensic expert cross-examination, and privacy violation claims. Defense challenges include increased prosecution capability with upgraded forensic labs, shorter decision timelines, stricter bail conditions, and higher stakes as forensic certification gives digital evidence strong presumptive value.
FAQs on BNS and Digital Evidence Mandate
Q1: Does the digital evidence mandate apply to all offenses under BNS?
No. The mandatory forensic verification requirement applies only to offenses punishable with imprisonment of 7 years or more. For lesser offenses, digital evidence may be admitted without forensic certification, though the court may still require verification.
Q2: Can digital evidence from private sources be used against me?
Yes, if properly seized under Section 105 of BNSS (search and seizure provisions). However, the evidence must still undergo forensic verification and the seizure must comply with legal requirements.
Q3: What is the time limit for forensic certification?
The BNSS provides that forensic certification should be completed within 45 days for most offenses. For complex cases involving multiple devices or encrypted data, the court may extend this period.
Q4: Can I refuse to provide my phone password to investigating officers?
The legal position is evolving. Under Section 102 of BNSS, investigating officers may require reasonable assistance for device access. However, forcing password disclosure may violate Article 20(3) (right against self-incrimination). Consult your lawyer before responding to password demands.
Q5: What happens if forensic verification is not done?
If forensic verification is not completed despite the court's orders, the evidence may be excluded from consideration. The court may draw adverse inference against the prosecution for failure to comply with the mandate.
How HLAPL Can Help You
At Hashmi Law Associates (HLAPL), our criminal law team specializes in BNS-related matters including anticipatory bail applications under Section 482 BNSS, digital evidence challenges including forensic verification compliance, representation in Dr. Naresh Kumar Garg-type evidentiary hearings, device seizure and forensic analysis oversight, and pre-arrest legal strategy for BNS offenses.
Contact our criminal law experts in New Delhi for immediate assistance with BNS-related matters.
Citation: SCO Observer - Landmark Criminal Law Judgments 2026 | Bharatiya Nyaya Sanhita (BNS), 2023 (Act No. 45 of 2023)