Accused Cannot Invoke S.105 BNSS As Unconditional Right To Demand Continuous Audio-Video Recording Of Interrogation: J&K&L High Court

The Court held that an accused cannot invoke the said provision as an independent source of an unconditional right to demand continuous audio-video recording of his interrogation. The Court thus dismissed a petition seeking such directions, while clarifying that the investigating agency remains bound to comply with Section 105 of the BNSS wherever applicable and with the directions of the Hon'ble Supreme Court concerning CCTV cameras in police stations.

The Court was hearing a petition filed by an accused in an FIR registered for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, challenging an order of the Trial Court whereby his application under Section 175(3) of the BNSS, seeking directions for audio-video recording of his custodial interrogation, preservation of CCTV footage, and compliance with Section 105 of the BNSS in the event of any search or seizure, came to be dismissed.

The petition was heard by Justice Sanjay Parihar, who observed,

“A plain reading of Section 105 makes it evident that the provision is directed towards the process of search and seizure falling within its statutory ambit. It does not, in terms, impose an independent obligation upon the investigating agency to continuously record every question put to an accused or every answer furnished by him during custodial interrogation.”

Background

The petitioner, who figures as an accused in FIR registered at Police Station Baramulla, alleged that he was taken into custody by the police in the presence of his wife and family members, and that the police attempted to attribute a recovery of contraband to him but refrained when his family members raised objections.

According to the petitioner, notwithstanding his apprehension on 20.10.2026, the police showed his arrest on 21.10.2026. Apprehending that the investigating agency might fabricate a recovery or procure an incriminating disclosure through coercive methods, he approached the Trial Court seeking directions for audio-video recording of his interrogation, preservation of CCTV footage, and enforcement of the safeguards under Section 105 of the BNSS.

The Trial Court declined the relief, observing that Section 105 of the BNSS does not contemplate continuous audio-video recording of every interrogation, and that an accused cannot, by asserting a plea of false implication or alibi, require the investigating agency to collect evidence in a particular manner or compel the Court to supervise the ordinary course of investigation.

The record revealed that the FIR was registered following information regarding the transportation of narcotic substances in commercial quantities. A police party intercepted a vehicle and allegedly recovered 540 grams of heroin from one accused and 424 grams from another. During investigation, the said accused disclosed that the contraband had been supplied by another person, who was subsequently arrested.

A charge-sheet was presented against the said accused, and according to the investigating agency, despite issuance of notice under Section 67 of the NDPS Act, the petitioner did not associate himself with the investigation. The petitioner was subsequently arrested on 21.10.2026, and the Station House Officer approached the competent Court under Section 193(9) of the BNSS seeking permission to undertake further investigation concerning the petitioner's alleged involvement, which was granted.

The petitioner contended that the duty of an investigating officer extends to conducting a fair, impartial, and objective investigation, and that where an accused raises a specific apprehension of fabrication of evidence or coercive interrogation, the Court ought not to decline protective directions. Per contra, the respondents maintained that the investigation was being conducted in accordance with law.

Court's Observation

The Court observed that the investigation of a cognizable offence is ordinarily within the domain of the investigating agency, and the Court does not ordinarily substitute its own assessment for that of the investigating officer. The Court, however, held,

“Equally well settled is the proposition that the discretion available to an investigating agency is neither absolute nor immune from judicial scrutiny.”

The Court held that an accused may not dictate the course of investigation but is entitled to insist that the investigation does not transgress the safeguards guaranteed by the Constitution and the applicable statutory provisions.

The Court noted that Section 193(9) of the BNSS recognizes the power of the investigating agency to undertake further investigation even after submission of a police report, and that the fact that the petitioner was not charge-sheeted along with the other accused did not, by itself, render further investigation concerning his alleged involvement impermissible.

On the principal contention concerning Section 105 of the BNSS, the Court held,

“The petitioner cannot invoke Section 105 of the BNSS as an independent source of an unconditional right to demand continuous audio-video recording of his interrogation. At the same time, the investigating agency cannot avoid compliance with the said provision in respect of any search or seizure to which it applies.”

The Court distinguished the directions issued by the Hon'ble Supreme Court in Paramvir Singh Saini v. Baljit Singh and others (2021) concerning CCTV surveillance in police stations from the claim of an accused to insist upon a separate, continuous, and individually supervised audio-video recording of every stage of interrogation. The Court held,

“The former is a binding institutional safeguard, whereas the latter cannot be claimed as an automatic consequence of the directions without regard to their scope and the circumstances of the case.”

The Court also noted that the petitioner had alleged that he was apprehended on 20.10.2026 and that the investigating agency attempted to plant contraband upon him, whereas the police record reflected his arrest on 21.10.2026. The Court observed that these allegations were serious, but that apart from the averments in the petition, no independent material had been brought to the notice of the Court to substantiate the allegation.

Observing that no affidavit of the wife or any other family member stated to have witnessed the alleged occurrence was placed on record, the Court held that the apprehension expressed by the petitioner, in the absence of supporting material, could not by itself constitute sufficient ground for imposing a special regime of continuous judicial supervision over his interrogation.

The Court further clarified that the alleged failure of the petitioner to cooperate with the investigation, or his alleged evasion of the process of law, did not diminish the constitutional and statutory protections available to him upon arrest.

On the preservation of CCTV footage, the Court observed that the record did not establish whether CCTV cameras were installed at the particular location where the petitioner claimed to have been apprehended, or whether any footage of that incident was actually recorded. The Court held that the dismissal of the petitioner's application could not be understood as authorizing the investigating agency to disregard its obligations concerning CCTV surveillance or to destroy, suppress, or overwrite relevant recordings.

Finding no illegality, perversity, or jurisdictional error in the order of the Trial Court, the Court dismissed the petition and upheld the orderof the trial court. However, the petitioner was granted liberty to avail himself of such remedies as may be permissible in law in the event of any specific violation of his constitutional or statutory rights.