Videography of Search and Seizure Under Section 105 BNSS
Meaning, Procedure, Mandatory Requirements, Legal Effect of Non-Compliance and Important Case Laws
Introduction
Search and seizure constitute one of the most important stages of a criminal investigation. During a search, police officers may enter premises, inspect a place, locate evidence and take possession of property believed to be connected with an offence.
Such powers are necessary for effective criminal investigation, but they are also capable of seriously affecting an individual's privacy, property and liberty.
For this reason, criminal procedure law traditionally imposes safeguards governing the manner in which searches and seizures are conducted.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973, introduced an important technology-based safeguard through Section 105.
Section 105 requires the search and seizure process to be recorded through audio-video electronic means, preferably by mobile phone.
The recording requirement is significant because it can provide an objective contemporaneous record of what actually occurred during the search.
Instead of a court having to depend exclusively upon oral testimony regarding where an article was recovered, who was present, when the seizure list was prepared and whether witnesses actually signed it at the scene, an audio-video recording may provide independent electronic evidence of the process.
This article explains Section 105 BNSS in detail, including:
- the meaning of Section 105;
- what must be videographed;
- who must make the recording;
- where the recording must be sent;
- the relationship between Sections 103, 105 and 185 BNSS;
- the evidentiary significance of the recording;
- the consequences of failure to videograph a search;
- important recent High Court decisions; and
- the practical importance of Section 105 for accused persons, investigating officers and lawyers.
What Is Section 105 of BNSS?
Section 105 is titled "Recording of search and seizure through audio-video electronic means."
In substance, the provision requires the process of conducting a search of a place or taking possession of property, article or thing under the relevant Chapter or under Section 185 to be recorded through audio-video electronic means.
The provision expressly includes:
- the process of conducting the search;
- taking possession of property, article or thing;
- preparation of the list of articles seized during the search; and
- signing of that list by witnesses.
The recording is preferably to be made using a mobile phone.
After making the recording, the police officer must forward it without delay to one of the Magistrates specified in Section 105.
The statutory scheme does not contemplate merely recording the seized articles after the police return to the police station. The provision concerns recording the process of search and seizure itself, including preparation and signing of the seizure list.
Why Was Section 105 Introduced?
The principal objective behind videography is to increase transparency, reliability and accountability during search and seizure operations.
Disputes concerning recovery of evidence are common in criminal trials.
An accused may allege that:
- the recovered article was planted;
- the recovery did not take place at the alleged location;
- independent witnesses were not actually present;
- the seizure memo was prepared later at the police station;
- the signatures of witnesses were obtained subsequently;
- the police entered premises without following statutory safeguards; or
- the description of the search given in court does not reflect what actually happened.
Videography can reduce disputes of this nature by creating an electronic record contemporaneously with the search.
Section 105 Is a Major Change from the CrPC
The Code of Criminal Procedure, 1973 contained safeguards relating to searches, including requirements concerning independent witnesses and preparation of seizure lists.
However, the CrPC did not contain a general statutory requirement equivalent to Section 105 requiring audio-video recording of the search and seizure process.
The BNSS therefore introduces a substantial procedural development.
| CrPC, 1973 | BNSS, 2023 |
|---|---|
| Search safeguards primarily depended upon documentation and witnesses. | Traditional safeguards continue, with an additional audio-video recording requirement. |
| No general provision equivalent to Section 105. | Section 105 expressly provides for audio-video recording. |
| Disputes often depended heavily on oral testimony. | Electronic recording may provide additional contemporaneous evidence. |
When Did Section 105 Become Applicable?
The BNSS came into force on 1 July 2024.
Accordingly, the new procedural regime applies subject to the commencement and saving provisions contained in the Sanhita.
Section 531 of the BNSS contains repeal and savings provisions relevant to proceedings and investigations that were already pending when the new law came into force.
Therefore, when dealing with a search occurring around the transition from CrPC to BNSS, lawyers should determine which procedural law actually governs the investigation.
Meaning of "Audio-Video Electronic Means"
Section 2(1)(a) BNSS defines audio-video electronic means broadly.
The definition includes the use of communication devices for processes such as:
- video conferencing;
- recording processes of identification;
- search and seizure;
- recording evidence;
- transmission of electronic communication; and
- other purposes prescribed under the Sanhita.
This definition makes it clear that the BNSS deliberately incorporates digital technology into criminal procedure.
Is a Mobile Phone Mandatory?
No particular mobile phone model or dedicated camera is mandated by Section 105.
The statutory language refers to recording through audio-video electronic means and states that a mobile phone is the preferred means.
Accordingly, the legal requirement is principally concerned with ensuring that the process is properly recorded, rather than insisting upon one specific type of recording device.
What Exactly Must Be Recorded Under Section 105?
Section 105 is broader than simply filming the final recovered property.
The statutory language identifies several stages that form part of the recording obligation.
The actual process of searching the relevant place should form part of the recording.
Where an article, property or thing is found and taken into possession, that process falls within the provision.
The preparation of the list of things seized during the search is expressly included.
The signing of the seizure list by witnesses is also expressly required to form part of the recorded process.
Why Is Recording the Entire Process Important?
Suppose the police search a house and recover a weapon from a cupboard.
If the police only record a video of the weapon lying on a table after the search is over, that recording does not necessarily establish:
- where the weapon was originally found;
- who opened the cupboard;
- who was present when it was recovered;
- whether independent witnesses witnessed the recovery;
- when the seizure list was prepared; or
- whether witnesses signed it at the location.
This illustrates why Section 105 refers to the process rather than merely the final seized object.
To Whom Must the Recording Be Forwarded?
After the search and seizure recording is made, the police officer is required to forward it without delay to any of the authorities specified in Section 105:
- District Magistrate;
- Sub-divisional Magistrate; or
- Judicial Magistrate of the first class.
The requirement to forward the recording creates an additional institutional safeguard because the electronic record does not remain exclusively with the investigating police personnel.
What Does "Without Delay" Mean?
Section 105 uses the expression "without delay" but does not prescribe a specific number of hours within the section itself.
This should be contrasted with certain other BNSS provisions that prescribe specific periods for particular acts.
Accordingly, the recording should be forwarded promptly, and any substantial unexplained delay may become relevant when the authenticity or integrity of the recording is questioned.
Relationship Between Section 103 and Section 105 BNSS
Section 105 should not be read in isolation.
Section 103 contains general procedural safeguards concerning searches.
Among other things, Section 103 provides for respectable inhabitants of the locality to be called to attend and witness the search, subject to the statutory framework.
The search is conducted in their presence, and a list of things seized and the places where they are respectively found is prepared and signed by the witnesses.
Section 105 adds an electronic safeguard to this process.
| Section 103 | Section 105 |
|---|---|
| Deals with persons witnessing the search. | Requires audio-video recording of the process. |
| Provides for preparation of seizure list. | Requires preparation of that list to be recorded. |
| Witnesses sign the list. | Signing of the list must form part of the recording. |
| Provides traditional procedural safeguards. | Adds a technological safeguard. |
Does Videography Replace Independent Witnesses?
No.
The audio-video recording requirement should not ordinarily be understood as eliminating other safeguards prescribed by the BNSS.
Videography and independent witnesses serve related but distinct purposes.
The presence of witnesses provides human corroboration, whereas videography creates an electronic record.
Accordingly, compliance with Section 105 should not be treated as a substitute for compliance with Section 103 where Section 103 applies.
Section 105 and Section 185 BNSS
Section 185 is another particularly important provision for understanding videography.
It concerns a search by a police officer during investigation in circumstances specified by that section.
Section 105 expressly refers to searches under Section 185.
Further, Section 185 itself contains an audio-video recording requirement for the search.
Therefore, where police officers conduct an investigative search under Section 185, compliance with the applicable recording requirements becomes especially significant.
Additional Safeguards Under Section 185
Section 185 contains important safeguards relating to searches during investigation.
Depending upon the circumstances, these include recording the grounds for believing that the required thing may be found at a particular place and following the procedural requirements prescribed by the section.
Copies of the relevant records are also required to be sent to the competent Magistrate within the statutory period.
Accordingly, a lawyer examining the legality of a search should not stop at Section 105. Sections 103 and 185, as applicable, should also be examined.
Section 105 and Section 106 BNSS
Section 106 deals with the power of a police officer to seize certain property.
A police officer may, subject to the statutory conditions, seize property alleged or suspected to have been stolen or found in circumstances creating suspicion of the commission of an offence.
Since Section 105 refers to taking possession of property, articles or things under the relevant Chapter, Section 106 may become relevant when analysing the recording requirement in relation to seizure of property.
Example of a Properly Recorded Search
Consider the following hypothetical example.
Police are investigating a jewellery theft. During investigation, they lawfully search a flat and allegedly recover stolen jewellery from a cupboard.
A properly documented process may involve:
- compliance with the applicable legal requirements before the search;
- presence of required witnesses;
- audio-video recording of the search process;
- recording the discovery of the jewellery;
- recording the police taking possession of it;
- preparation of the seizure list;
- recording witnesses signing the seizure list;
- proper preservation of the electronic recording; and
- forwarding the recording to the appropriate Magistrate without delay.
Such a recording may later become highly relevant if the accused alleges that the jewellery was planted or that the seizure memo was prepared subsequently.
Is Videography Under Section 105 Mandatory?
The language of Section 105 uses the word "shall" in relation to recording the search and seizure process.
It also provides that the police officer shall forward the recording to the specified Magistrate without delay.
Accordingly, the statutory provision is framed as a duty rather than merely an optional investigative practice.
Recent High Court proceedings have also treated compliance with the recording requirement as a matter of considerable importance.
What Happens If Police Do Not Record the Search?
This is presently one of the most important legal questions concerning Section 105.
Section 105 creates the recording obligation, but it does not expressly state that every recovery made during an unrecorded search becomes automatically inadmissible.
Therefore, several distinct legal questions may arise:
- Was the search itself lawful?
- Was Section 105 applicable to that search?
- Was there complete or partial non-compliance?
- Were independent witnesses present?
- Was a valid seizure memo prepared?
- Is there other reliable evidence supporting the recovery?
- Does the omission affect the credibility of the prosecution's recovery story?
- At what stage is the issue being considered: bail, trial, appeal or constitutional writ proceedings?
Recent judicial decisions demonstrate that the legal consequence can depend considerably on these circumstances.
Does Absence of Videography Automatically Make Evidence Inadmissible?
There is an important distinction between:
(a) illegality or irregularity in obtaining evidence; and
(b) admissibility of that evidence at trial.
Indian criminal jurisprudence has historically not adopted an absolute rule that every piece of relevant evidence becomes inadmissible merely because it was obtained through an illegal or irregular search.
Two older Supreme Court decisions remain important in understanding this principle:
- Radha Kishan v. State of Uttar Pradesh; and
- Pooran Mal v. Director of Inspection (Investigation).
However, the absence of an audio-video recording that the present statute expressly requires can still become highly relevant when the court assesses the reliability and weight of the alleged recovery.
Radha Kishan v. State of Uttar Pradesh
Principle: The Supreme Court considered the consequences of an illegal search and explained, in the context of the law then applicable, that illegality of the search did not by itself necessarily vitiate the seizure. However, the court could scrutinise the evidence concerning the seizure carefully.
This principle is important in the modern Section 105 discussion because it demonstrates the distinction between procedural illegality and evidentiary admissibility.
Pooran Mal v. Director of Inspection
Principle: The Supreme Court considered whether evidence obtained through an illegal search must necessarily be excluded. The judgment is frequently cited for the proposition that relevance remains central to admissibility unless the Constitution or applicable law expressly or by necessary implication requires exclusion.
Therefore, Section 105 should not casually be interpreted as creating an automatic exclusionary rule where the statutory text itself does not expressly provide one.
Shadab v. State of Uttar Pradesh, 2026
A particularly important recent decision is Shadab v. State of Uttar Pradesh, decided by the Allahabad High Court in January 2026.
The Court considered the absence of videography of the alleged recovery and preparation of the seizure list while dealing with bail.
The absence of the recording required under Section 105 was treated as a factor creating doubt regarding the prosecution's recovery story in the circumstances of the case.
The decision is particularly useful for understanding how Section 105 non-compliance can affect a court's assessment at the bail stage.
However, a bail decision should not automatically be read as finally determining the admissibility of evidence at trial.
Ashish v. State, Delhi High Court, 2025
The Delhi High Court considered issues concerning absence of videography in Ashish v. State.
The Court's approach is significant because it indicates that absence of videography does not necessarily, by itself, destroy the seizure where other credible evidence supports the prosecution case.
The case also arose in a factual and transitional context that requires attention when applying Section 105.
Accordingly, the date of the search and the applicable procedural law must always be checked.
Khushbu v. State of Maharashtra, 2026
The Bombay High Court's decision in Khushbu v. State of Maharashtra is another significant recent development.
The case involved entry into a home and seizure of a mobile phone in circumstances where multiple procedural safeguards were allegedly not followed.
The Court considered requirements under Section 185 and the importance of safeguards surrounding a search of private premises.
The Bombay High Court awarded compensation in the circumstances before it after finding serious non-compliance with procedural safeguards concerning the search and seizure.
The judgment demonstrates that failure to comply with statutory safeguards can have consequences beyond the question whether a particular object is ultimately admissible at a criminal trial.
Naseeb Ahmad v. State of Uttar Pradesh, 2026
The Lucknow Bench of the Allahabad High Court again dealt with implementation of audio-video recording requirements in Naseeb Ahmad v. State of Uttar Pradesh in August 2026.
The proceedings highlighted practical concerns surrounding implementation of the statutory mandate and the mechanisms adopted by the State for recording searches and seizures.
The case demonstrates that Section 105 is not merely a theoretical provision. Courts are increasingly examining whether police authorities are actually implementing the statutory requirement.
Different Consequences at Different Stages
The legal effect of missing videography should be analysed according to the stage of the criminal proceeding.
| Stage | Possible Relevance of Missing Recording |
|---|---|
| Bail | The absence of mandatory recording may be relied upon to question the credibility of the alleged recovery, depending upon the facts. |
| Trial | The court may scrutinise the evidence concerning recovery carefully and consider the absence of the statutory recording while evaluating reliability. |
| Appeal | Non-compliance may be considered together with the entire evidentiary record and findings of the trial court. |
| Writ Proceedings | Serious unlawful intrusion or violation of procedural safeguards may potentially give rise to constitutional remedies depending upon the facts. |
| Departmental Action | Unjustified failure to comply with mandatory procedural requirements may also raise questions of departmental accountability. |
Can an Accused Demand the Search Video?
A Section 105 recording can become an important part of the defence where the prosecution relies upon a disputed recovery.
The BNSS contains provisions governing supply of police reports and other documents to the accused.
Because the Section 105 recording is forwarded to the Magistrate during investigation, a defence lawyer dealing with a disputed recovery should specifically identify the recording and consider seeking appropriate access or a copy through the court in accordance with the applicable procedural provisions.
This can be particularly important where:
- the prosecution alleges recovery of weapons;
- narcotic substances are allegedly recovered;
- stolen property is recovered;
- electronic devices are seized;
- documents are taken from a residence or office;
- the accused disputes the location of recovery; or
- the defence alleges planting or fabrication of evidence.
Section 105 and Electronic Evidence
The recording created under Section 105 is itself electronic material.
Therefore, when such recording is relied upon in judicial proceedings, the rules governing electronic records under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) become relevant.
Section 63 BSA contains important provisions concerning admissibility of electronic records.
Consequently, two separate questions can arise:
- Did the police comply with Section 105 BNSS by making the recording?
- Has the electronic recording been properly produced and proved before the court in accordance with the law of evidence?
Compliance with the first requirement does not eliminate the need to comply with applicable evidentiary requirements.
Importance of Metadata and Integrity
Although Section 105 principally mandates recording and forwarding, the practical evidentiary value of a recording depends upon its authenticity and integrity.
Questions may arise concerning:
- date and time of recording;
- location;
- continuity of recording;
- whether portions have been deleted;
- whether editing occurred;
- identity of the device used;
- storage and transfer of the file;
- chain of custody; and
- electronic evidence certification.
Proper digital evidence management is therefore essential if Section 105 is to achieve its intended purpose.
Use of eSakshya
The Government has developed technological infrastructure, including the eSakshya system, to facilitate electronic recording and management of evidence under the new criminal laws.
Implementation practices can differ across States and Union Territories depending upon applicable rules, administrative directions and technological arrangements.
Police officers should therefore comply not only with the BNSS but also with valid rules, standing orders and operating procedures applicable in their jurisdiction.
Section 105 and NDPS Searches
The relationship between Section 105 BNSS and searches under the Narcotic Drugs and Psychotropic Substances Act, 1985 can be particularly important.
NDPS prosecutions frequently depend heavily upon recovery of contraband.
The NDPS Act itself contains specialised safeguards relating to searches and seizures, including provisions such as Sections 42, 43 and 50.
Section 51 of the NDPS Act also makes the general criminal procedure relating to warrants, arrests, searches and seizures applicable insofar as it is not inconsistent with the NDPS Act.
Accordingly, the applicability and effect of Section 105 in a particular NDPS matter should be examined together with:
- the nature of the search;
- the officer conducting it;
- the specific NDPS provision invoked;
- the date of the investigation;
- the BNSS savings provisions; and
- relevant judicial decisions.
Search of a Person vs Search of a Place
The language of Section 105 should be read carefully.
It refers expressly to the process of conducting a search of a place or taking possession of property, article or thing under the specified provisions.
Different BNSS provisions govern different kinds of searches, including searches connected with arrested persons.
Therefore, lawyers should not mechanically invoke Section 105 without first identifying the statutory provision under which the particular search or seizure was conducted.
Search of a House and Right to Privacy
A search of a person's home has particularly serious implications for privacy.
The constitutional right to privacy recognised by the Supreme Court does not mean that every police search is prohibited.
Lawful searches remain permissible.
However, statutory safeguards governing entry, search, seizure, documentation and recording become especially important where State authorities enter private premises.
The requirement of audio-video recording can therefore operate as an accountability mechanism protecting both citizens and honest investigating officers.
How Section 105 Protects the Accused
Section 105 can protect an accused or person whose premises are searched by providing objective evidence regarding:
- the actual location of recovery;
- the manner of search;
- persons present during the search;
- articles actually seized;
- condition of the premises;
- preparation of the seizure list; and
- participation of witnesses.
If an accused later alleges planting of evidence, the recording can become highly relevant.
How Section 105 Protects Police Officers
The provision should not be viewed exclusively as a restriction on police powers.
Videography can also protect investigating officers against false allegations.
If a person later alleges that officers planted an article, damaged property, improperly behaved during the search or fabricated a seizure memo, a properly preserved video can provide objective evidence regarding what actually occurred.
Therefore, faithful compliance with Section 105 can strengthen legitimate investigations.
Advantages of Videography of Search and Seizure
| Advantage | Explanation |
|---|---|
| Transparency | Creates a visual record of police action. |
| Accountability | Helps determine whether statutory procedure was followed. |
| Evidence Integrity | May reduce allegations of planting or substitution. |
| Witness Verification | Can show whether witnesses were actually present. |
| Accused Protection | Provides material for challenging an allegedly false recovery. |
| Police Protection | Can rebut unfounded allegations against investigating officers. |
| Judicial Assistance | Provides courts with additional material for assessing a disputed recovery. |
Practical Challenges in Implementing Section 105
Although the objective is clear, practical implementation can raise difficulties.
Possible challenges include:
- poor internet connectivity;
- device storage limitations;
- technical failure;
- lack of training;
- data preservation;
- privacy of unrelated persons;
- sensitive material appearing in recordings;
- secure transfer to the Magistrate;
- chain-of-custody issues;
- authentication at trial; and
- uniform implementation across different States.
These challenges explain why proper technological infrastructure, police training and clear operating procedures are important.
Can Police Simply Say the Camera Was Not Working?
A genuine technical failure and deliberate non-compliance are not necessarily the same thing.
However, where the statute imposes a recording duty, an unexplained assertion that a device was unavailable or malfunctioning may be examined critically by the court, particularly if the alleged recovery is disputed.
Relevant questions could include:
- Was any attempt made to use another device?
- Was the technical problem contemporaneously recorded?
- Were senior officers informed?
- Were other statutory safeguards strictly followed?
- Is there independent corroboration?
- Why was the failure not documented?
The ultimate effect will depend upon the circumstances of the individual case.
Can a Search Be Recorded After the Recovery?
A recording made only after the substantive search has concluded cannot fully recreate the process that Section 105 seeks to document.
For example, showing seized property to a camera at a police station does not independently establish the place or manner in which that property was discovered.
The statutory emphasis upon the process of conducting the search, taking possession, preparing the list and obtaining witness signatures indicates the importance of contemporaneous recording.
What Should Defence Lawyers Check?
Where a criminal prosecution depends upon a search and seizure conducted after the BNSS became applicable, defence counsel should consider examining:
- the date and time of search;
- the legal provision authorising the search;
- whether Section 105 applied;
- whether audio-video recording exists;
- whether the entire relevant process was recorded;
- whether independent witnesses were present;
- whether preparation of the seizure list was recorded;
- whether signing by witnesses was recorded;
- whether the recording was forwarded to the Magistrate;
- when it was forwarded;
- whether metadata supports authenticity;
- whether the prosecution has preserved the original electronic record;
- whether applicable BSA requirements have been satisfied; and
- whether any unexplained gap exists in the chain of custody.
What Should Investigating Officers Ensure?
Investigating officers should treat Section 105 as an integral part of the search procedure rather than an optional administrative formality.
They should ensure that:
- recording begins at the appropriate stage;
- the relevant search process is captured;
- recovery and taking possession are documented;
- preparation of the seizure list is captured;
- witness signatures are recorded;
- the original electronic file is preserved;
- the file is not edited or manipulated;
- applicable chain-of-custody requirements are followed;
- the recording is promptly forwarded to the appropriate Magistrate; and
- applicable State rules and SOPs are complied with.
Section 105 BNSS vs Section 176(3) BNSS
Students should distinguish Section 105 from Section 176(3).
| Section 105 | Section 176(3) |
|---|---|
| Concerns audio-video recording of specified search and seizure processes. | Concerns forensic investigation in offences punishable with seven years or more. |
| Focuses upon search, seizure, seizure list and witness signatures. | Includes forensic expert visit and videography of the process at the crime scene in applicable cases. |
| Relevant to search and seizure procedure. | Relevant to forensic investigation of serious offences. |
Both provisions demonstrate the BNSS's broader emphasis on technology and scientific investigation.
Section 105 BNSS vs Old CrPC Safeguards
The change can be understood simply:
BNSS approach: Traditional procedural safeguards + written documentation + witnesses + audio-video electronic recording in cases covered by Section 105.
The objective is to create a more verifiable record of police investigative action.
Important Sections Connected with Section 105
| Provision | Subject |
|---|---|
| Section 2(1)(a) BNSS | Audio-video electronic means |
| Section 103 BNSS | Persons in charge of closed place to allow search and general search safeguards |
| Section 105 BNSS | Recording of search and seizure through audio-video electronic means |
| Section 106 BNSS | Power of police officer to seize certain property |
| Section 176(3) BNSS | Forensic investigation and videography in specified serious offences |
| Section 185 BNSS | Search by police officer during investigation |
| Section 193 BNSS | Police report on completion of investigation |
| Section 230 BNSS | Supply of police report and other documents to accused |
| Section 531 BNSS | Repeal and savings |
| Section 63 BSA | Special provisions relating to electronic records |
Important Case Laws at a Glance
| Case | Importance |
|---|---|
| Radha Kishan v. State of U.P. | Important older Supreme Court authority concerning the effect of an illegal search on seizure evidence. |
| Pooran Mal v. Director of Inspection | Important Supreme Court authority on admissibility of relevant evidence obtained through an allegedly illegal search. |
| Shafhi Mohammad v. State of Himachal Pradesh | Important in the development of videography and electronic methods in criminal investigation. |
| Ashish v. State | Delhi High Court decision relevant to absence of videography and the evidentiary assessment of seizure. |
| Shadab v. State of U.P. | Allahabad High Court considered missing videography while evaluating the credibility of alleged recovery at bail stage. |
| Khushbu v. State of Maharashtra | Bombay High Court considered serious non-compliance with statutory search safeguards and awarded compensation in the facts before it. |
| Naseeb Ahmad v. State of U.P. | Allahabad High Court proceedings concerning implementation of audio-video recording requirements. |
Frequently Asked Questions
Section 105 requires specified search and seizure processes to be recorded through audio-video electronic means, preferably by mobile phone, and requires the police officer to forward the recording to the specified Magistrate without delay.
Section 105 uses mandatory language by stating that the relevant process "shall" be recorded. The legal consequence of a failure to record, however, depends upon the circumstances and stage of the proceeding.
The provision requires audio-video electronic recording and states that a mobile phone is preferred. It does not make one particular device the exclusive permissible method.
The provision covers the search process or taking possession of property and expressly includes preparation of the list of seized things and signing of that list by witnesses.
The police officer must forward the recording without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.
No. Section 105 should be read together with the other statutory safeguards applicable to the search, including Section 103 where relevant.
Not necessarily. Section 105 does not expressly create an automatic exclusionary rule. Courts may nevertheless consider non-compliance when assessing the reliability and weight of the alleged recovery.
It may be relevant depending upon the facts. The Allahabad High Court in Shadab v. State of U.P. considered absence of the required recording as a factor creating doubt concerning the alleged recovery at the bail stage.
Yes. Section 105 expressly refers to Section 185, and Section 185 also contains an audio-video recording requirement for searches conducted under that provision.
Where the recording is relevant to the prosecution's alleged recovery, the accused may seek appropriate access through the competent court in accordance with the BNSS and applicable procedural rules.
Yes. When relied upon in judicial proceedings, the applicable provisions of the Bharatiya Sakshya Adhiniyam, 2023 concerning electronic records become relevant.
The applicability of the BNSS to investigations around its commencement date must be determined with reference to Section 531 and the particular procedural history of the case. Investigations already pending immediately before commencement are subject to the statutory savings provisions.
A later video merely displaying seized property does not fully record the search-and-seizure process contemplated by Section 105, particularly the actual search, taking possession, preparation of the seizure list and witness signatures.
It can provide objective electronic material to help courts determine whether an alleged recovery occurred in the manner claimed by the investigating agency.
Depending upon the facts, applicable State rules, judicial directions and administrative framework, unjustified non-compliance with statutory duties may raise questions of departmental or other legal accountability.
Short Notes for Law Students
Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides for recording of search and seizure through audio-video electronic means. It requires the process of conducting a search of a place or taking possession of property, article or thing under the relevant Chapter or Section 185, including preparation of the seizure list and signing thereof by witnesses, to be recorded through audio-video electronic means, preferably a mobile phone. The police officer must forward the recording without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. The provision aims to increase transparency, accountability and reliability of search and seizure proceedings.
Five-Mark Answer: Section 105 BNSS
Section 105 BNSS introduces an important technological safeguard in criminal investigation. It mandates audio-video electronic recording of the process of conducting a search of a place or taking possession of property, article or thing under the relevant Chapter or Section 185.
The recording must include preparation of the list of seized articles and signing of that list by witnesses. A mobile phone is identified as the preferred means of recording.
The police officer must forward the recording without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.
The provision promotes transparency and assists courts in assessing the authenticity of disputed recoveries. It also protects citizens against fabrication while protecting police officers against false allegations.
Difference Between Section 105 BNSS and Traditional Search Procedure
| Point | Traditional Safeguard | Section 105 Addition |
|---|---|---|
| Witnesses | Independent witnesses may be required. | Their signing of the seizure list is recorded. |
| Seizure List | Written list is prepared. | Preparation itself forms part of the recording requirement. |
| Recovery | Established through witnesses and documents. | Audio-video material provides additional evidence. |
| Accountability | Primarily documentary. | Electronic record improves verifiability. |
| Judicial Review | Court examines oral and documentary evidence. | Court may additionally examine contemporaneous electronic material. |
Conclusion
Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 represents an important transformation in Indian criminal procedure.
By requiring audio-video recording of specified search and seizure processes, Parliament has introduced a technological safeguard into an area of criminal investigation where disputes concerning recovery, planting of evidence and procedural irregularities have historically been common.
The provision is important not merely because a camera must be switched on. Its language expressly extends to the process of search, taking possession of property, preparation of the seizure list and signing of the list by witnesses.
The police officer must thereafter forward the recording to the specified Magistrate without delay.
At the same time, failure to comply with Section 105 should not automatically be equated with an absolute rule that every seized article becomes inadmissible. Section 105 does not expressly prescribe such a consequence.
Recent High Court decisions demonstrate that non-compliance can nevertheless be highly significant. Depending upon the facts, it may affect the credibility of the alleged recovery at the bail stage, lead to closer scrutiny of evidence at trial, support challenges to unlawful police action or result in other legal and departmental consequences.
For law students and practitioners, Section 105 should therefore be studied together with Sections 103, 106, 176, 185, 193, 230 and 531 BNSS, the electronic-evidence provisions of the Bharatiya Sakshya Adhiniyam, 2023, and the relevant judicial decisions.
As courts continue to interpret the new criminal laws, jurisprudence concerning the precise consequences of non-compliance with Section 105 is likely to develop further.
Section 105 BNSS – Key Takeaways
- Search and seizure must be recorded through audio-video electronic means where Section 105 applies.
- A mobile phone is the preferred recording device, not necessarily the exclusive device.
- The actual search process should be recorded.
- Taking possession of the seized property forms part of the process.
- Preparation of the seizure list must be captured.
- Signing of the list by witnesses must also be captured.
- The recording must be forwarded to the specified Magistrate without delay.
- Videography does not replace other applicable statutory safeguards.
- Failure to record does not automatically establish that all seized evidence is inadmissible.
- Non-compliance can nevertheless materially affect judicial assessment of a disputed recovery.
Official Legal Resources
India Code – Bharatiya Nagarik Suraksha Sanhita, 2023:
Visit India Code
Ministry of Home Affairs:
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