Mandatory Videography of Search and Seizure

Section 105, BNSS 2023

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 three requirements work together

The grounds of belief recorded in writing before the search (section 185) — which answers the objection that the search was a fishing expedition.

The process recorded as it happens (section 105) — which answers the objection that the article was planted, or that the list was prepared elsewhere and the witnesses signed a blank.

And the recording forwarded to a Magistrate afterwards (section 105) — which answers the objection that the recording produced in court is not the recording that was made.

Each addresses a different objection, and an officer who complies with all three leaves very little to argue about. Conversely, an officer who complies with none of them has to explain three separate failures.

📖 Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822

Facts: A search was conducted in which the requirements of the Code governing searches were not fully observed, and articles recovered in the course of it were relied on at the trial. It was contended that the irregularity rendered the search illegal and the recovery inadmissible.

Held: The Supreme Court held that so far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal, the seizure of the articles is not vitiated. The Court held that where the provisions governing a search are contravened, the search could be resisted by the person whose premises are sought to be searched, and the person might be able to challenge the search in other proceedings; but the articles seized do not become inadmissible in evidence merely because the search was irregular or even illegal. What the irregularity does is to affect the weight to be attached to the evidence of the recovery: the Court held that it may be a good ground for examining the evidence of the search with caution, and that the court should then scrutinise it with greater care than it would otherwise apply. It declined to hold that an irregular search destroyed the evidentiary value of what was found.

Ratio: An illegal or irregular search does not vitiate the seizure, and the articles seized do not become inadmissible. But the irregularity is a good ground for examining the evidence of the recovery with caution and greater care.

📖 Dr. Pratap Singh v. Director of Enforcement, (1985) 3 SCC 72

Facts: A search was conducted under a special statute which required the search to be carried out so far as may be in accordance with the provisions of the Code of Criminal Procedure governing searches, and it was contended that the failure to observe those provisions rendered the search and everything flowing from it invalid.

Held: The Supreme Court held that where a special statute requires a search to be conducted in accordance with the provisions of the Code so far as may be, those provisions are attracted and the officer conducting the search is bound to observe them — including the requirement of recording in writing the grounds of his belief and of specifying the thing for which the search is to be made. The Court held that these requirements are substantive safeguards and not mere formalities: recording the grounds before the search confines the officer to the purpose he has stated, and permits a court afterwards to see whether the search went beyond it. But the Court held, following the settled position, that a failure to comply does not by itself render inadmissible the material recovered: it exposes the officer to the consequences of acting irregularly and requires the court to scrutinise the recovery with care, but the evidence remains before the court to be weighed.

Ratio: Where a statute requires a search to follow the Code, its safeguards — recording the grounds of belief and specifying the thing sought — are substantive and must be observed. But non-compliance does not make the material inadmissible; it requires the recovery to be scrutinised with care.

⚠ The practical position is a sliding scale

Full compliance — grounds recorded, process videographed, recording forwarded to the Magistrate the same day — makes the recovery very difficult to attack.

Partial compliance invites scrutiny, and the missing element usually becomes the focus of the cross-examination.

Total non-compliance, with no explanation, may leave a recovery which the court declines to act upon at all — not because the evidence is inadmissible, but because it is unsafe to rely on.

And the objection should be taken at the trial, where the officer can be asked about it and the failure can still be explained. Section 511(2) requires the court to have regard to whether the objection could and should have been raised at an earlier stage.

The position stated shortly

1. Section 105: the process of search and of taking possession, including the preparation of the list of things seized and its signing by witnesses, shall be recorded through any audio-video electronic means, preferably a mobile phone.

2. The recording shall be forwarded without delay to a District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

3. Placing it in judicial custody at once prevents it from being edited, lost or produced selectively.

4. Section 185: an officer conducting a search shall record in writing the grounds of his belief and specify the thing sought; copies shall be sent forthwith to the Magistrate; and the owner or occupier may obtain a copy free of cost.

5. The three requirements answer three different objections — that the search was a fishing expedition, that the article was planted, and that the recording produced is not the one made.

6. An illegal or irregular search does not vitiate the seizure, and the articles do not become inadmissible: Radha Kishan.

7. But the irregularity is a good ground for examining the evidence of the recovery with caution and greater care.

8. The safeguards of recording the grounds and specifying the thing are substantive, not formalities — they confine the officer to his stated purpose: Dr. Pratap Singh.

9. Under the Sanhita a failure to record is harder to explain, the means being a mobile phone; and the absence of a required recording is itself a circumstance the defence may rely on.

10. The failure of justice test in sections 510 and 511 still applies, and the court shall have regard to whether the objection could and should have been raised earlier.