Section 105 BNSS: Mandatory Audiovisual Recording of Search and Seizure

In today's digital age, transparency in law enforcement is more critical than ever. Searches and seizures by police can profoundly impact individuals' rights, making procedural safeguards essential. A common query arises: 105 BNSS RECORDING OF SEARCH AND SEIZURE. This provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—which replaced the CrPC—mandates audiovisual recording to ensure accountability. This blog explores the legal mandate, rationale, implications, and best practices, drawing from statutory text and judicial insights.

Note: This is general information based on legal provisions and cases. It is not specific legal advice. Consult a qualified lawyer for your situation.

Understanding Section 105 BNSS: The Core Mandate

Section 105 of the BNSS explicitly requires that the entire process of conducting a search or seizure, including the preparation of the seizure list and signing of witnesses, shall be recorded through any audio-video electronic means preferably mobile phone2025 0 Supreme(Ker) 2268. This makes audiovisual (AV) recording a non-negotiable step, shifting from optional to mandatory documentation.

Key elements include:- Preferred Method: Mobile phones or other audio-video electronic devices for ease and accessibility.- Scope: Covers the full process—from entry to seizure list preparation and witness signatures.- Forwarding Obligation: The recording must be sent without delay to the District Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first class 2025 0 Supreme(Ker) 2268.

This provision promotes transparency, prevents tampering, and protects both citizens and officers from false claims.

Why Is AV Recording Mandatory? Purpose and Rationale

The rationale behind Section 105 BNSS is rooted in upholding Article 21 of the Constitution of India, which guarantees life and personal liberty through fair procedures. The provision creates a mandatory duty for police to audiovisually record the entire process of conducting a search of any place or person and of seizing any property or evidence therein2025 0 Supreme(Ker) 2268.

Benefits include:- Transparency and Accountability: Visual proof deters misconduct like evidence planting.- Evidence Preservation: Recordings serve as contemporaneous evidence in court.- Protection for Officers: Shields against fabricated allegations of abuse.

Judicial precedents reinforce this. Recording reasons and maintaining transparency are essential to uphold individual rights during searches and seizures1998 0 Supreme(Cal) 74 1965 0 Supreme(SC) 346.

Step-by-Step Process Under Section 105 BNSS

1. Initiate Recording: Start AV capture before entering premises or person.
2. Conduct Search/Seizure: Document all actions, including witness involvement.
3. Prepare Seizure List: Record list preparation and signatures on video.
4. Forward Promptly: Transmit to Magistrate immediately to avoid challenges.

Failure at any step can render the search and seizure illegal, potentially excluding evidence 1965 0 Supreme(SC) 346.

Legal Implications of Non-Compliance

Courts take non-compliance seriously. Non-compliance can lead to the quashing of proceedings or exclusion of evidence, as AV recording is a substantive requirement 2025 0 Supreme(Ker) 2268.

Related cases highlight risks:- In a hooch tragedy prosecution under Bihar Prohibition and Excise Act, seizure lists prepared by informant in themselves cannot be treated to be proof of their contents. Witnesses were unreliable, no independent witnesses examined, leading to acquittal due to procedural lapses like delayed FIR and missing FSL reports supplied under CrPC Section 207 2022 0 Supreme(Pat) 788.- NDPS Act cases stress proper search: Investigation includes even search and seizure, with empowered officers required to follow protocols. Delays in sampling or weight discrepancies are trial issues but underscore procedural rigor 2021 0 Supreme(Raj) 196 2021 0 Supreme(Raj) 204 2020 8 Supreme 19.- Arms Act conviction overturned: Prosecution failed to prove the seizure of the firearm from the accused, as witnesses couldn't identify, and key officers weren't examined

Islamul Haque @ Aslam VS State of West Bengal

These illustrate how procedural flaws, absent AV proof, invite acquittals and prejudice fair trials under Article 21.

Exceptions and Practical Challenges

BNSS does not outline explicit exceptions, positioning recording as the default. Practical issues like technical failures may arise, but deviations require justification. Officers should document any issues contemporaneously.

In NDPS contexts, petitioner cannot be extended benefit of bail on the ground that reduction in weight of the contraband seized was noticed at the time of certification by the Magistrate under Section 52A, showing courts scrutinize but defer tampering claims to trial—AV recordings could preempt such disputes 2021 0 Supreme(Raj) 196.

Judicial Perspectives on Fairness and Transparency

Courts emphasize right to fair investigation and trial under Article 21. Testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses his testimony cannot be relied upon2020 8 Supreme 19. However, AV mandates reduce reliance on oral testimony.

Trial Judges cannot resort to heuristics... They have duty to protect rights of accused2022 0 Supreme(Pat) 788, reinforcing procedural adherence.

Recommendations for Compliance

• For Law Enforcement: Equip officers with devices; train on BNSS protocols; forward recordings instantly.
• For Judicial Scrutiny: Verify recording presence and quality in admissibility assessments.
• For Citizens: Request to see recordings if involved; challenge non-compliance legally.

Any failure to record or forward recordings should be considered a procedural lapse that may invalidate the search or seizure2025 0 Supreme(Ker) 2268.

Key Takeaways

• Section 105 BNSS mandates AV recording of searches/seizures via mobile/other means, forwarded promptly to Magistrates.
• Ensures transparency, aligns with Article 21, prevents disputes.
• Non-compliance risks evidence exclusion and acquittals, as seen in NDPS, Arms, and prohibition cases.
• Prioritize compliance for robust legal processes.

In conclusion, Section 105 of the BNSS mandates that all searches and seizures be audiovisually recorded using electronic means, preferably mobile phones, and that these recordings be forwarded to a Magistrate without delay. This is crucial for justice. Stay informed—transparency protects all.

References:1. 2025 0 Supreme(Ker) 2268: Statutory mandate under Section 105 BNSS.2. 1998 0 Supreme(Cal) 74: Recording reasons in searches.3. 1965 0 Supreme(SC) 346: Validity of compliant searches.4. 2022 0 Supreme(Pat) 788: Procedural lapses in seizure proof.5. 2021 0 Supreme(Raj) 196, 2021 0 Supreme(Raj) 204, 2020 8 Supreme 19: NDPS search protocols.6.

Islamul Haque @ Aslam VS State of West Bengal