Electronic recording of search and seizure processes is mandatory now

To make investigations more transparent and accountable, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced Section 105 and Section 185. They mandate that the police have to record the entire process of conducting a search or seizing property using electronic means.

In this Weekly, we list down what has changed in the process of conducting search and seizure since the new laws. 

What has changed in the Searches and Seizures process under the new laws?

Section 105 of BNSS deals with search and seizure in case of cognizable offences while section 185 of BNSS deals with search and seizure related to non-cognizable offences. Sections 105 and 185 of the BNSS have modified the earlier Sections 93 and 165 respectively of the Criminal Procedure Code, 1973 (CrPC) by mandating that every place that is searched or every property that is seized as a part of an investigation shall be recorded using audio-video means, preferably a cell phone. It also states that the officer shall forward this recording to the District Magistrate, Sub-Divisional Magistrate, or a Judicial Magistrate of the First Class without delay. The police officer should also prepare a list of items that are seized and have it signed by an eye witness. 

This complements another new legal provision, section 61 of the Bharatiya Sakshya Adhinyam, 2023 (BSA) which legally recognises that electronic records can be admitted before a court of law as valid evidence. Before this, electronic records were not accepted as evidence, except when the Court decided otherwise. 

What are some of the key highlights of the new laws?

The new laws transform how search and seizure are conducted by including the following provisions : 

1. Mandatory Videography:
   • Investigating officers must use audio-video means to record every search or seizure (with or without a warrant) preferably through a cell phone.
   • This includes recording the preparation of the list of seized items and obtaining signatures of witnesses.
2. Timeframe for Submission:
   • Searches without a warrant: Officers must forward the recordings to the District Magistrate, Sub-divisional Magistrate, or a Judicial Magistrate of the First Class without delay.
   • Searches with a warrant: Officers must submit the recordings to the Magistrate within 48 hours.

For example, a law enforcement officer conducts a search of a suspect’s residence based on a warrant. Throughout the search, officers record the entire process, including the seizure of evidence, preparation of the list of seized items, and obtaining witness signatures, using a mobile phone. After completing the search, the officers promptly forward the recording to the District Magistrate promptly for review. This will be held as valid evidence in this case. 

3. Non-compliance

Section 105 states that electronic recording is mandatory subject to the availability of the required technological facilities. In Firoz Hira Manik vs. State of U.P. (2024), the Supreme Court dismissed the evidence presented without any recording and re-emphasised on the mandatory nature of the electronic recording. 

What are the conditions to be followed for producing electronic evidence?

Section 63 of the BSA lists down the following conditions that must be followed during electronic recording of evidences : 

1. The computer or electronic device used to admit as evidence must be in regular use for the purpose of creating, storing or processing information;
2. The device must be in regular use for input of general information 
3. The use of the device must be regular during the period of time relevant to the evidence
4. The relevant evidence must be reproduced and derived from the device as a part of ordinary activities on the device and not through any specialised process. 
5. The evidence must be supported by a certificate of authenticity by the owner of the device as well as an external expert.