Recording Of Search And Seizure Through Audio-Video Electronic Means Under Section 105 Of The BNSS
Modern perspectives in criminal investigation, by the integration of scientific and electronic techniques with traditional criminal investigation methods, ensure not only efficiency in the investigation but also transparency and accountability in that process.The Supreme Court, over the last few years, has consistently laid emphasis on the need and necessity of presenting scientific...
Modern perspectives in criminal investigation, by the integration of scientific and electronic techniques with traditional criminal investigation methods, ensure not only efficiency in the investigation but also transparency and accountability in that process.
The Supreme Court, over the last few years, has consistently laid emphasis on the need and necessity of presenting scientific and electronic evidence by the prosecution to establish the guilt of the accused. Advancement of information technology means that, scientific temper in the individual and at the institutional level has to pervade the methods of investigation. With the increasing impact of technology in everyday life, the production of electronic evidence has become essential to establish the guilt of the accused.1 As early as in the year 2009, the Apex Court had occasion to emphasise the need to make use of advanced information technology in the investigation of cases.2
The Delhi High Court, dealing with the evidence of seizure produced by the prosecution in a case under the NDPS Act, had observed that, with so many technological advances where satellite imagery to the smallest degree of precision of any location in the world is available, the police could no longer be excused for not improving its methods of gathering and presenting evidence.3
In the case of Shafhi Mohammad v. State of Himachal Pradesh,4 the Supreme Court had agreed with the report of the Committee constituted by the Ministry of Home Affairs (MHA) regarding the use of videography in police investigation and accepted the action plan prepared by the MHA and issued a slew of directions for its implementation.
Provisions in the BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS') provides for the use of technology and forensic sciences in the investigation of crime (vide the Statement of Objects and Reasons). The BNSS has introduced many provisions enabling the use of technology at various stages of a criminal proceeding. Apart from the provisions which specifically mandate the use of technology for certain procedures, Section 530 of the BNSS generally enables
holding of all trials, inquires and proceedings in electronic mode, by use of electronic communication or use of audio-video electronic means.
Recently, in Rollymol v. State of Kerala,5 a Division Bench of the High Court of Kerala, has pointed out the emphasis given in the BNSS on the use of modern technology in the investigations conducted by the police. The High Court has observed as follows:
“The Bharatiya Nagarik Suraksha Sanhita, 2023, has taken a commendable step by introducing the use of technology at all stages of the criminal justice process, from crime registration to the conclusion of the trial. The primary objective of these transformative changes is to expedite trials and bring transparency to the investigation process. The integration of technology and forensic science into investigations is a pivotal development aimed at modernizing the criminal justice system and harnessing the strengths of modern scientific methodologies. Such measures will not only ensure greater accountability in police investigations but also improve the quality of evidence, thereby safeguarding the rights of both the accused and the victims”.
The Madhya Pradesh High Court has observed that the BNSS has introduced and recognised the use of information and communication technology in investigation and trial. The High Court has pointed out that the BNSS has the potential to revolutionise the
collection of evidence and also its presentation during the criminal trial.6
Section 105 of the BNSS
Search and seizure are essential steps in the armoury of an investigator in the investigation of a criminal case.7 Section 105 is a new provision introduced in the BNSS and it mandates the use of technology in the collection of evidence, while conducting search and seizure.
Section 105 of the BNSS reads as follows:
“105. The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably mobile phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class”.
The use of the word “shall” in the provision indicates that, it is mandatory to record the process of conducting search of a place or taking possession of any property, article or thing, through any audio-
video electronic means. It is also mandatory to forward such recording to the Magistrate concerned.
Scope of the provision
On a careful scrutiny of the provision contained in Section 105 of the BNSS, it can be found that it is applicable to two procedures,
(i) the process of conducting search of a place under Chapter VII or under Section 185 or (ii) taking possession of any property, article or thing under Chapter VII or under Section 185.
Search of a place is specifically provided under Section 97 in Chapter VII of the BNSS. A general search under Section 96 or search for a wrongfully confined person under Section 100 in Chapter VII of the BNSS may also, sometimes, happen to come within the purview of the search of a place.
Section 105 of the BNSS would also apply to taking possession of any property, article or thing under any of the provisions in Chapter VII or pursuant to a search made under any provision in that Chapter.
The provision also applies to search of a place or taking possession of any property, article or thing made under Section 185 of the BNSS. In fact, the proviso to Section 185(2) of the BNSS specifically provides that search conducted under that section shall
be recorded through audio-video electronic means preferably by mobile phone.
Section 105 of the BNSS also indicates that, the entire process of search and seizure, including preparation of the search list and signing of it by witnesses, shall be recorded through audio-video electronic means.
Recording shall be forwarded to the Magistrate
Section 105 of the BNSS also mandates that the police officer shall, without delay, forward the recording to the Magistrate concerned. However, compliance with this requirement would depend upon the technological facility and infrastructure available in the Magistrate's Court concerned.
Application of the provision to special statutes
Section 2(1)(l) of the BNSS defines investigation. The Explanation provided to Section 2(1)(l) of the BNSS states that, where any of the provisions of a special Act are inconsistent with the provisions of the BNSS, the provisions of the special Act shall prevail.
However, if any special statute provides that the procedure for investigation or procedure for search and seizure has to be complied
with according to the Code, in view of the replacement of the Code by the BNSS, the search and seizure under that special statute shall be made in compliance with the provision contained under Section 105 of the BNSS. The Patna High Court has taken this view in a case,8 by holding as follows:
“It transpires to this Court that according to Sections 82-82 of the Bihar Prohibition and Excise Act, 2016, the provisions of arrest, search, and seizure have to be complied with according to the Code of Criminal Procedure. The said Code of Criminal Procedure is now repealed by virtue of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023) and particularly in the light of Notification No. 2654 dated 16th of July, 2024 made in the Gazette of India, provision of Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is applicable in the present case”.
In this context, it is to be noted that, in pursuance of Section 8 of the General Clauses Act, 1897 the Central Government has issued Notification dated 16th July, 2024 (S.O.2790 (E) of the Ministry of Law and Justice), stating that where any reference of the Code of Criminal Procedure, 1973 (2 of 1974) or any provisions thereof is made in any— (a) Act made by Parliament; or (b) Act made by the Legislature of any State; (c) Ordinance; (d) Regulations made under Article 240 of the Constitution; (e) President's order; (f) rules, regulations, order or notification made under any Act, Ordinance or
Regulation, for the time being in force, such reference shall be read as the reference of the BNSS and the corresponding provisions of such law shall be construed accordingly.
Conclusion
No doubt, Section 105 of the BNSS will ensure transparency in the process of conducting search and seizure. The provision would help to protect the rights of the accused as well as the victims. However, the effective implementation of the provision depends on the availability of necessary technological facilities and infrastructure in the courts for the receipt and storage of electronic evidence. As observed by the Madhya Pradesh High Court,9 it is incumbent upon the State Governments and the Union Government to provide necessary infrastructure (hardware, software and connectivity) for efficient and timely implementation of the mandate of the new laws.
There is also the need to impart adequate training to the investigating officers to make them familiar with advanced technology and its use in investigation. That is not the end of the matter. There is also the need to properly present the scientific and electronic evidence in the court as legally admissible evidence. It is
necessary to impart adequate training to the investigating officers in that regard also.
In this context, it is relevant to note that, the Parliamentary Standing Committee on Home Affairs, in its report (Report No.247) had observed that, while the increased utilization of technology offers numerous advantages, it also creates opportunities for manipulation and misuse and that the collection and storage of electronic evidence raise concerns about data security and the possibility of unauthorized access or breaches. The Committee, therefore, had recommended that the adoption of electronic means for communication and trials should proceed only after the establishment of robust safeguards to ensure the secure usage and authentication of electronically available data so that it would protect the integrity of the justice system and ensure that justice is administered fairly and accurately.
Author is Former Judge, High Court of Kerala. Views Are Personal.
- Tomaso Bruno v. State of U.P: (2015) 7 SCC 178:: 2015 Cri LJ 1690.
- Karnail Singh v. State of Haryana: (2009) 8 SCC 539:: 2009 Cri LJ 4299.
- Ram Prakash v. State : 2014 SCC OnLine Del 6936.
- (2018) 5 SCC 311.
- 2024 SCC OnLine Ker 7305.
- Jigar @ Jikar v. State of Madhya Pradesh: 2024:MPHC-IND:28092.
- Karnail Singh v. State of Haryana: (2009) 8 SCC 539 :: 2009 Cri LJ 4299.
- Shashi Yadav v. State of Bihar: Order dated 12.11.2024 of the Patna Court in Criminal Miscellaneous No.75839 of 2024.
- Jigar @ Jikar v. State of Madhya Pradesh: 2024:MPHC-IND:28092