Implications of changes proposed under the BNSS

 

Implications of changes proposed under the BNSS

a. Search and Seizure Considering the risk of manipulation of evidence and possibility of misuse of police power, the mandatory inclusion of audio-video recording in search and seizure proceedings is a laudable addition proposed. This requirement under Cl.105 extends to all search and seizure procedures, under Chapter VII and Cl.185. However, the scope of Cl.105 is restricted to the search of a place, and appears to exclude the search of a person and seizure of articles from their person. A clear limitation of Cl.105 is that provisions related to search of place of arrest (Cl.44) and search of a person arrested (Cl.49) are clearly excluded from the mandatory requirement of audio-video recording under Cl.105. Since Cl.105 pertains to the process of ‘search of a place or taking possession of any property, article or thing’ under the provisions specifi ed, it should include the search of a person suspected of concealing relevant articles, under Cl.103(3) (under Chapter VII). Nevertheless, Cl.105 signifi cantly extends the scope of audio-video recording during search and seizure, to include the process of preparing a list of seized items and the signature of witnesses. Transparency in search and seizure proceedings, in this manner, has the potential to deter against fabrication of evidence and subversion of the safeguard requiring the presence of independent witnesses to these proceedings. 58 Shafhi Mohammad v. State of Himachal Pradesh SLP (Crl.) Nos. 2302 of 2017, 9431/2011 and 9631-9634/2012, Supreme Court, order dated 30.02.2018 <https://main.sci.gov.in/supremecourt/2017/6212/6212_2017_Order_30-Jan-2018.pdf>, last accessed on 20.10.2023; Shafhi Mohammad v. State of Himachal Pradesh Petition(s) for Special Leave to Appeal (Crl.) No(s).2302/2017, Supreme Court, order dated 18.11.2021, <https://main.sci.gov.in/supremecourt/2017/6212/6212_2017_32_30_31408_Order_18-Nov-2021 .pdf>, last accessed on 20.10.2023. Cl.105 also requires that this audio-video recording be submitted before the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of fi rst class ‘without delay’. Under Cl.103, which provides the procedure for conducting search and seizure, (6) and (7) clearly provides that the occupant of place searched/person searched be provided a copy of the seizure memo. However, an important aspect to be noted is that there is no clear provision in the BNSS that entitles the concerned persons, including the accused, access to the audio-video recordings. b. Other Investigation Cl.176(3)’s requirement for videography of the process of collection of forensic evidence is another move towards greater transparency and accountability in evidence gathering, and a safeguard against irregularities and manipulation.59 Cl.176(1) also provides an option of audio-video recording of any statement made during police investigation. The scope of this proviso is wide enough to include disclosure statements of accused before the police, besides the statements of other witnesses (audio-video recording for which is already permitted under s.161 CrPC, retained in Cl.180 BNSS). This is an important safeguard to deter against torture and coercion of the accused during custodial interrogations. However, a crucial limitation is that this is not a mandatory requirement. Further, it is unclear whether the scope of Cl.105 is broad enough to include audio-video recording of the subsequent process of recovery evidence, which is most susceptible to irregularities and fabrication. Considering the fact that investigating agencies rely heavily on recovery evidence, mandatory audio-video recording of the process of collection of this evidence would be an important inclusion in the bill. The BNSS, however, misses the opportunity to introduce the requirement for audio-video recording of other crucial processes during investigation like spot inspection (with the exception of Cl.176(3)), inquest proceedings or post mortem of the deceased. The BNSS does not strengthen existing provisions for audio-video recording under the CrPC. For instance, audio-video recording of statements by witnesses to police continues to be optional under Cl.180. Only test identification proceedings involving witnesses with physical or mental disabilities are required to be recorded 59 Refer to section on Forensic Expert Evidence, Page 57 for complete analysis of this provision and its implications. This note is limited to the videography requirement. through audio-video means, under Cl.54, and other identifi cation proceedings remain excluded from this requirement. Consistent with the CrPC, the BNSS retains the mandatory requirement for videography of police statements, and audio-video recording of statements before the magistrate for certain vulnerable victims with physical or mental disabilities, under Cls.173(1) and 183(6) respectively. c. Confessions and Statements before the Magistrate The BNSS completely omits the existing safeguard for audio-video recording of statements and confessions before the magistrate.60 Audio-video recording of statements before the magistrate was an important safeguard to protect the rights of witnesses, particularly victims of sexual assault. It prevents the loss of evidence due to threat or coercion, which may lead to witnesses withdrawing their statements or turning hostile. With this omission in the BNSS, the protection of audio-video recording of statements before the magistrate is only available to certain victims under Cl.183(6), but not provided to other witnesses. The audio-video recording of the confession along with the presence of a lawyer, is an important safeguard against false confessions. Before recording any confession, a magistrate is required to ascertain its voluntariness and ensure that the accused is free from police duress, as per prescribed procedures. The provision for audio-video recording of confessions is an additional means through which the voluntariness of the confession can be confirmed, through an assessment of the physical condition, body language and manner of speaking of the accused. The BNSS misses the opportunity to strengthen the existing protection under s.164 CrPC, by making it mandatory, and expanding its scope to include audio-video recording of all the procedural safeguards essential to confi rm the voluntariness of the accused’s confession. Instead, this omission completely deprives the accused of an important safeguard existing in the law. d. Access to Audio-Video Recording during Investigation The signifi cance of audio-video recording as a safeguard during investigation is only possible if access to these recordings are provided to the witnesses/victim-informants, but also to the accused. This would enable them to 60 Cl.183 BNSS. substantiate their claims regarding the non-compliance of any procedural safeguards by the police during the investigation. The language of Cl.230 under the BNSS may be broad enough to include audio-video recording. Cl.230 requires the accused and victim (if represented by a lawyer) to be supplied with the police report and all necessary documents, including statements and confessions. The provision does not explicitly mention supply of audio-video recordings. However, the term ‘document’ is wide enough to include digital and electronic records.62 Further, Cl.230, expands the existing s.207 CrPC, to also explicitly include supply of documents in electronic form, and permits the Magistrate to furnish copies of any documents considered to be ‘voluminous’ through electronic means, in addition to the provision for allowing them to inspect this record from the court either personally or through an advocate. Nevertheless, in the absence of explicit mandate for supply of audio-video recording, access to these documents by the accused and victim may be largely dependent on the discretion of the Magistrate or police.