Section 158 of BNSS, 2023 — Power of Magistrate to Direct Local Investigation and Examination of an Expert

Introduction

Section 158 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Magistrate to obtain factual or technical assistance during an inquiry under Section 156 or Section 157.

The Magistrate may either direct a local investigation to be conducted by a suitable person or summon and examine an expert. The provision enables the Magistrate to obtain relevant information before deciding the matter.

Meaning of Section 158

Section 158 gives the Magistrate two specific powers:

1. To direct a local investigation by such person as the Magistrate thinks fit.
2. To summon and examine an expert.

These powers can be exercised for the purposes of an inquiry under Section 156 or Section 157 of the BNSS.

Statutory Provision

Section 158 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides:

158. Power of Magistrate to direct local investigation and examination of an expert. — The Magistrate may, for the purposes of an inquiry under section 156 or section 157—

(a) direct a local investigation to be made by such person as he thinks fit; or
(b) summon and examine an expert.

Object and Purpose

The purpose of Section 158 is to assist the Magistrate in effectively conducting the inquiry.

A local investigation may help the Magistrate understand the physical or factual circumstances of a particular place. Similarly, an expert may be examined where specialised knowledge is required.

The provision therefore gives the Magistrate flexibility to obtain additional factual or technical assistance when necessary for the inquiry.

Nature of the Power

The power under Section 158 is discretionary.

The section uses the expression “may”, which means that the Magistrate is not required to order a local investigation or summon an expert in every case.

The Magistrate may exercise the power when the circumstances of the inquiry make such assistance necessary or useful.

Essential Elements

1. Inquiry under Section 156 or Section 157

The power under Section 158 can be exercised for the purposes of an inquiry under Section 156 or Section 157.

It is therefore connected with the specific statutory proceedings contemplated by those provisions.

2. Direction for Local Investigation

The Magistrate may direct a local investigation to be made by such person as he thinks fit.

The Magistrate has discretion to select a suitable person for conducting the local investigation.

3. Summoning and Examination of an Expert

The Magistrate may summon an expert and examine the expert where specialised knowledge is relevant to the inquiry.

4. Discretion of the Magistrate

The Magistrate is not bound to exercise either power in every case.

The decision depends upon the circumstances and requirements of the particular inquiry.

Local Investigation

A local investigation involves obtaining information concerning the relevant place or physical circumstances connected with the inquiry.

For example, where an inquiry concerns an alleged nuisance and the physical condition of a particular location is relevant, the Magistrate may direct a suitable person to conduct a local investigation.

The procedure relating to the local investigation is further dealt with under Section 159 BNSS.

Examination of an Expert

Section 158 also permits the Magistrate to summon and examine an expert.

This may be useful where the matter before the Magistrate involves specialised technical or scientific knowledge.

The expert’s role is to assist the Magistrate in understanding matters requiring specialised knowledge.

Section 159(3) further provides that where the Magistrate summons and examines an expert under Section 158, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

Procedure under Section 159

Section 159 is closely connected with Section 158.

Where the Magistrate directs a local investigation, Section 159 provides that the Magistrate may:

• furnish the person conducting the investigation with written instructions necessary for guidance;
• declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid;
• permit the report of the person conducting the investigation to be read as evidence in the case.

Where an expert is summoned and examined, the Magistrate may direct by whom the costs of the summoning and examination shall be paid.

Evidentiary Value of the Local Investigation Report

Section 159(2) provides that the report of the person conducting the local investigation may be read as evidence in the case.

Therefore, Section 158 creates the power to direct the local investigation, while Section 159 deals with the treatment of the resulting report.

Powers of the Magistrate

Under Section 158, the Magistrate may:

• direct a local investigation;
• select a person to conduct the local investigation;
• summon an expert;
• examine the expert.

Under Section 159, the Magistrate may also:

• provide written instructions to the person conducting the local investigation;
• determine responsibility for the expenses of the local investigation;
• allow the local investigation report to be read as evidence;
• determine responsibility for the costs of summoning and examining an expert.

Important Distinctions

Local Investigation and Expert Examination

A local investigation is primarily concerned with obtaining factual information about a place or physical circumstances.

An expert examination is concerned with obtaining assistance on matters requiring specialised knowledge.

Investigation and Inquiry

The power under Section 158 is exercised during an inquiry under Section 156 or Section 157.

It should not be confused with a police investigation into the commission of an offence.

Section 158 and Section 159

Section 158 provides the Magistrate with the power to direct local investigation or summon and examine an expert.

Section 159 provides the connected procedural framework concerning written instructions, expenses, the local investigation report and the costs of expert examination.

BNSS and CrPC

Section 158 BNSS corresponds to Section 139 of the Code of Criminal Procedure, 1973.

The substance of the provision has substantially continued under the BNSS.

Under the CrPC, Section 139 empowered the Magistrate, for the purposes of an inquiry under Sections 137 or 138, to direct a local investigation or summon and examine an expert.

Under the BNSS, the corresponding provision is Section 158, and the cross-references have been updated to Sections 156 and 157.

The principal change is therefore the renumbering and corresponding updating of the statutory references.

Relationship with Section 159 BNSS

Section 159 is the immediate procedural companion to Section 158.

When a local investigation is ordered, Section 159 permits the Magistrate to provide written instructions and determine responsibility for the necessary expenses.

The report of the local investigator may also be read as evidence.

When an expert is summoned and examined, the Magistrate may determine who shall bear the costs of the summoning and examination.

Example

Suppose a Magistrate is conducting an inquiry concerning an alleged public nuisance and the factual issue depends upon the physical circumstances of a particular location.

The Magistrate may direct a suitable person to conduct a local investigation.

If the issue instead requires specialised technical knowledge, the Magistrate may summon and examine an appropriate expert.

The information obtained can assist the Magistrate in conducting and deciding the inquiry.

Important BNSS Provisions

• Section 152: Conditional order for removal of nuisance.
• Section 156: Procedure where existence of public right is denied.
• Section 157: Procedure where the person against whom the order is made appears to show cause.
• Section 158: Power of Magistrate to direct local investigation and examination of an expert.
• Section 159: Power of Magistrate to furnish written instructions and related matters.
• Section 160: Procedure on order being made absolute and consequences of disobedience.

Topic at a Glance

• Topic: Power of Magistrate to Direct Local Investigation and Examination of an Expert
• BNSS Section: Section 158
• Nature: Discretionary procedural power
• Purpose: To assist the Magistrate during an inquiry
• Applicable inquiry: Inquiry under Section 156 or Section 157
• Local investigation: May be conducted by such person as the Magistrate thinks fit
• Expert: May be summoned and examined
• Related provision: Section 159
• CrPC counterpart: Section 139 CrPC
• Important evidentiary point: Local investigation report may be read as evidence under Section 159(2)

Common Confusions

Does Section 158 authorise a police investigation?

No.

Section 158 concerns a local investigation directed by the Magistrate or the summoning and examination of an expert during the specified statutory inquiry. It is not a general provision authorising a police investigation.

Is the Magistrate required to order a local investigation?

No.

The power is discretionary. The Magistrate may order a local investigation where it is considered appropriate for the purposes of the inquiry.

Can the Magistrate summon an expert?

Yes.

Section 158 expressly permits the Magistrate to summon and examine an expert.

Can the report of the local investigator be read as evidence?

Yes.

Under Section 159(2), the report of the person conducting the local investigation may be read as evidence in the case.

Who decides who will conduct the local investigation?

The Magistrate may direct the investigation to be conducted by such person as the Magistrate thinks fit.

Quick Revision

• Section 158 BNSS deals with the power of the Magistrate to direct local investigation and examine an expert.
• The power is exercised for an inquiry under Section 156 or Section 157.
• The Magistrate may direct a local investigation by such person as he thinks fit.
• The Magistrate may summon and examine an expert.
• The power is discretionary.
• Section 159 supplements Section 158.
• The Magistrate may give written instructions to the local investigator.
• The Magistrate may determine responsibility for the expenses of the local investigation.
• The local investigation report may be read as evidence under Section 159(2).
• The Magistrate may determine who shall pay the costs of summoning and examining an expert.
• Section 158 BNSS corresponds substantially to Section 139 CrPC.
• The BNSS updates the corresponding cross-references from Sections 137 and 138 CrPC to Sections 156 and 157 BNSS.

ALSO READ: Section 157 – Procedure where person against whom order is made under section 152 appears to show-cause

Conclusion

Section 158 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides the Magistrate with two important procedural powers during an inquiry under Sections 156 and 157: directing a local investigation and summoning and examining an expert.

The provision enables the Magistrate to obtain factual or specialised assistance where necessary. Read with Section 159, it also provides a framework concerning instructions, expenses and the evidentiary use of the local investigation report.