Source: High Court of Delhi 

Why in News? 

A bench of Justice Amit Mahajan held that by virtue of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) the practice of photography and videography has now been made mandatory. 

• The Supreme Court held this in the case of Bantu v. State Govt of NCT of Delhi.

What is the Background of Bantu v. State Govt NCT of Delhi Case? 

• The case of prosecution is that the concerned police officer received information that the applicant used to supply ‘charas’ in Delhi after procuring from Himachal Pradesh. 
• A raid was conducted, and the applicant was apprehended. 
• A notice under Section 50 of Narcotic Drugs Psychotropic Substances Act, 1985 (NDPS) was served upon the accused. 
• It is alleged that during search one bag of charas was recovered from the possession of applicant. 
• The present application was filed under Section 439 of Criminal Procedure Code, 1973 (CrPC) seeking grant of regular bail. 
• The Learned Trial Court dismissed the regular bail application and hence the present application. 
• Case of the Prosecution: 
  • It was the case of the applicant that the word ‘nearest’ was missing in the notice served to the applicant under Section 50 of NDPS Act. 
  • The applicant stated that there was non-examination of independent witnesses. 
  • The applicant also stated that the police failed to conduct videography or photography of the search.

What were the Court’s Observations? 

• The Court did not accept the first contention and held not mentioning the word ‘nearest’ at the time of informing the suspect of his right to be searched before the the Gazetted Officer or a Magistrate does not in any manner takes away the safeguard. 
• With respect to non-examination of independent witnesses the Court cited several judgements. 
  • The Court concluded that while reliable testimonies of police officials can form the basis of conviction, lack of corroboration from independent witnesses cast a duty on the Court to exercise caution.  
• Finally, on the last contention the Court held that mere absence of videography and photography of the recovery does not nullify the case of the prosecution but the same can create doubt as to veracity of the prosecution case. 
• The Court also observed that the legislature has now passed the BNSS where the practice of videography and photography is now mandatory. 
  • Photography and videography are universally accepted as the best practices for better erudition and appreciation of the evidence 
  •  The same ensures that the prosecution is able to better document the recovery during the investigation. 
  • BNSS stipulates that the proceedings of search and seizure shall be recorded through any audio – video means preferably through a mobile phone. 
• The Court also observed that there has been a prolonged delay in the trial of the applicant. 
• Hence, the Court finally granted bail to the applicant.  

Bail under Section 439 of CrPC 

• Section 439 of CrPC provides for special powers of High Court or Court of Session to grant bail. 
• Sub-section (1) provides a High Court or Court of Session may direct - 
  • That any person accused of an offence and in custody, be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; 
  • that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : 
  • Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.  
  • Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. 
  • Sub-section (1A) provides that the presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code. 
  • Sub-section (2) provides that a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.  
  • The same is provided under Section 483 of BNSS. 

What are the Provisions for Search and Seizure under CrPC? 

• Section 100 of CrPC provides provisions relating to persons in charge of a closed place to allow search. 
• This provision finds place in BNSS under Section 103. 
  • Sub-section (1) provides whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. 
  • Sub-section (2) provides that if ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. 
  • Sub-section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. 
  • Sub-section (4) provides that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. 
  • Sub-section (5) provides that the search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. 
  • Sub-section (6) provides that the occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. 
  • Sub-section (7) provides that when any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. 
  • Sub-section (8) provides that any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code, 1860. 
• Section 165 of CrPC provides for search by police officer. 
  • Sub-section (1) provides that Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. 
  • Sub-section (2) provides that a police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. 
  • Sub-section (3) provides that If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. 
  • Sub-section (4) provides that The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section. 
  • Sub-section (5) provides that copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. 

Comparison between Section 165 of CrPC and Section 185 of BNSS? 

• The comparative analysis of the two provisions is as follows: 

What are the Provisions with Regards to Audio-video Electronic Means for Investigation and Trial Under BNSS? 

Section 105 of BNSS provides that the ‘recording of search and seizure through audio-video electronic means’ as well as the list of the seized items must be forwarded to the authorities. It provides: 

• 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 proviso to Section 183 of BNSS (which provides for recording of confession) contains the word ‘may’ making it optional for the magistrate to record confessions and statements by audio-video electronic means. 
• Section 176(3) of BNSS introduces a mandate for collection of forensic evidence in all offences punishable by seven years or more and the videography of the process on mobile phone or any other electronic device. 
• There is a provision for audio video recording of the statement of witnesses to police under Section 180 of BNSS but the option remains open on the part of police official. 
• The provision for audio video recording of test identification parade has been made under Section 54 of BNSS. 
• The use of audio-video means to communicate and explain charges to the accused person, is introduced by Section 251(2) of BNSS. 
• Section 254 of BNSS allows for the use of audio-video electronic means in Sessions cases for the deposition of evidence or statements of witnesses, police officers, public servants, or experts.   
• Sections 265 and 266 of BNSS allow the examination of a witness through audio-video electronic means at the designated place to be notified by the State Government. 
• Section 308 of BNSS empowers the examination of the accused through electronic means, specifically utilizing audio-video conferencing (VC) facilities accessible in any place designated by the State Government. the State Government. 
• Section 336 of BNSS allows the use of audio-video means for the deposition of a public servant.