Audio-Video Recording of Search and Seizure — BNSS Innovation

Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — for which there is no counterpart in the Code of Criminal Procedure, 1973 (CrPC) — converts every police search and seizure into a documented digital event. The process of conducting a search of a place or taking possession of any property, article or thing under Chapter VII BNSS or under Section 185 BNSS, including the preparation of the list of all things seized and the signing of that list by witnesses, shall be recorded through any audio-video electronic means, preferably a mobile phone. The recording is to be forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. The provision is small in word-count and large in consequence. The CrPC had nothing of the kind. It now sits at the heart of the BNSS reform package.

The architecture of the reform is a cluster, not a single section. Section 105 BNSS sets the audio-video mandate for the search itself. The new proviso to Section 185(2) BNSS extends the mandate to police searches under that section. Section 176(3) BNSS makes forensic-expert visits mandatory for offences punishable with seven years or more. Sections 254, 265, 266 and 308 BNSS authorise audio-video evidence at trial. Section 183 BNSS allows audio-video recording of statements of vulnerable witnesses. Read together, the reforms convert the procedural floor of the Code of Criminal Procedure and BNSS from a paper-based regime into a digitally documented one.

The problem the BNSS is solving

The CrPC's procedural answer to the question 'how do we know what was seized, and from where' rested on three documents. The search warrant under Section 93 CrPC. The panchnama signed by independent witnesses under Section 100 CrPC. The seizure memo prepared by the investigating officer. Together they were meant to authenticate what the police had taken and where. In practice, the system failed in three ways. Independent witnesses were often hard to find or had been pre-arranged. The panchnama was sometimes signed in advance and filled in later. The seizure memo, prepared at the police station hours after the operation, did not always match the actual recovery. The Supreme Court in Sunder Singh v. State of U.P., AIR 1956 SC 411, and many subsequent decisions, refused to acquit on technical defects in the search but repeatedly recorded its disquiet about the working integrity of the panchnama.

The Court tried to fill the gap by directing videography of crime scenes in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801, observing that the absence of contemporaneous recording was a serious problem in the criminal justice system. The 2018 directions did not have the force of statute, and the residual remedy lay in the High Court's inherent jurisdiction. Section 105 BNSS now does. The provision converts the Court's working preference into a binding statutory mandate that travels with every search.

Section 105 BNSS — text and scope

Section 105 BNSS reads: '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.' Six elements deserve close reading.

1. Mandatory, not directory. The provision uses 'shall be recorded'. The Code does not make audio-video recording optional or contingent on availability of equipment. The investigating officer is statutorily bound to record.
2. Whole process, not just seizure. The recording covers 'the process of conducting search', not merely the act of seizure. The entry into the premises, the search of rooms, the discovery of the article, the preparation of the list, and the signing by witnesses — every stage is to be recorded as a continuous chain.
3. Mobile phone preferred. The provision expressly authorises a mobile phone as the recording instrument. The investigating officer need not wait for a forensic videography unit; the routine smartphone in his pocket is sufficient. The text avoids the tactical objection that recording was not feasible because no specialised equipment was available.
4. Coverage of Chapter VII and Section 185. Chapter VII BNSS covers processes to compel the production of things — including search warrants under Section 96 BNSS (previously Section 93 CrPC), persons in charge of closed places under Section 103 BNSS (previously Section 100 CrPC), and Magistrate-presence searches under Section 108 BNSS (previously Section 103 CrPC). Section 185 BNSS covers police searches without warrant during investigation. Section 105 BNSS applies to every search under either head.
5. Forwarding without delay. The recording must be forwarded to the District Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first class without delay. The judicial repository — not the police station — is the place where the recording is preserved. The BNSS does not specify the technical mode of forwarding, but the scheme expects the recording to be lodged with the court within hours of the search.
6. No prejudice clause. The provision does not, on its text, declare a search non-recorded to be invalid. The legal consequence of non-recording will have to develop through case law — but the Section 461 CrPC / Section 507 BNSS architecture on irregularities suggests that a serious breach, where a substantive search-and-seizure protection has been compromised, will be treated as illegality, not mere irregularity.

The provision sits alongside the substantive law in the chapter on processes to compel production of things — summons to produce, search warrants. Section 105 does not replace Section 96 BNSS; it documents Section 96 BNSS. The substantive procedural protections — the warrant, the named officer, the named place, the witnesses — continue to operate. The audio-video recording is the working partner, not the substitute.

Section 185(2) Proviso — search by police officer

Section 185 BNSS — the BNSS counterpart of Section 165 CrPC — authorises a police officer making an investigation to conduct a search if he has reasonable grounds to believe that a thing necessary for the investigation may be found in a place. The CrPC's procedural protection rested on a recorded reasons-in-writing requirement and the witness-signed panchnama. The BNSS adds two operative additions.

The newly added proviso to Section 185(2) mandates the recording of search conducted under that section through audio-video electronic means. The mandate is the same as Section 105 BNSS — preferably a mobile phone, forwarded to the Magistrate. Sub-section (5) of Section 185 BNSS adds: copies of the record made under sub-section (1) or sub-section (3) shall forthwith, but not later than forty-eight hours, be sent to the Magistrate. The forty-eight-hour outer limit gives the police officer a window to forward the search documentation, but the period is fixed — beyond which the Magistrate has no record of the search at all.

Section 103 BNSS — closed-place search

Section 103 BNSS reproduces Section 100 CrPC on the procedure for searches of closed places. The person in charge of the place must allow the police free ingress; the search must be conducted in the presence of two or more independent and respectable inhabitants of the locality; the panchnama must list all things seized and must be signed by the witnesses. With Section 105 BNSS now operative, the panchnama discipline is supplemented by an audio-video record. The Supreme Court's working principles from State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, on the dual safeguards of independent witnesses and contemporaneous documentation, retain force — but they now apply against a tighter procedural backdrop.

Section 176(3) BNSS — forensic experts at the scene

Section 176(3) BNSS — added without a CrPC counterpart — makes the visit of a forensic expert to the scene of crime mandatory for offences punishable with imprisonment for seven years or more. The expert is required to collect forensic evidence at the scene and to cause the recording of the process by audio-video electronic means, preferably a mobile phone. The provision works alongside Section 105 BNSS — every grave offence now produces both a documented search and a documented forensic collection. The aspirations of State of H.P. v. Lekh Raj, (2000) 1 SCC 247, on the value of forensic evidence in serious offences, are now operationalised by statute. The provision is the substantive companion of the chapter on forensic investigation in serious offences.

Section 183 BNSS — audio-video for vulnerable witnesses

Section 183 BNSS — the BNSS counterpart of Section 164 CrPC on recording confessions and statements before a Magistrate — adds a fourth proviso to sub-section (6)(a) authorising the recording of the statement of a temporarily or permanently mentally or physically disabled person through audio-video electronic means. The proviso preserves the privacy and dignity of vulnerable witnesses while ensuring that the recording itself is contemporaneous. Section 183 also adds two related provisos: statements of women victims are to be recorded by a woman Magistrate as far as practicable, and recording of witness statements is mandatory for offences punishable with imprisonment for ten years or more, life imprisonment, or death. The audio-video recording is part of the wider witness-statement reform, which also feeds into the initiation of proceedings when the recorded statement is later used in cognizance.

Sections 254, 265, 266 and 308 BNSS — audio-video evidence at trial

The audio-video discipline does not stop at investigation. Four trial-stage provisions extend it.

1. Section 308 BNSS. Evidence in trial must be taken in the presence of the accused or, where his personal attendance is dispensed with, in the presence of his advocate. The BNSS adds: 'through audio-video electronic means at the designated place to be notified by the State Government'. Witness depositions, expert testimony, and cross-examination may now be conducted at a State-notified electronic facility, with the accused, the witness and the court connected by audio-video link.
2. Section 254 BNSS. In warrant trials before a Magistrate, evidence of a witness may now be recorded by audio-video electronic means. The deposition of a police officer or public servant may be taken through audio-video means under sub-section (2) — a critical operational saving where the officer is on duty in another district.
3. Section 265 BNSS. In Sessions trials, evidence of a witness may be recorded by audio-video electronic means at the designated place to be notified by the State Government. The provision sits alongside the chapter on the framing of charge and the broader Sessions-trial procedure.
4. Section 266 BNSS. In Sessions trials, examination of defence witnesses may also be done by audio-video electronic means at the designated place. The BNSS thus extends the audio-video authorisation to both prosecution and defence evidence — preserving the procedural symmetry that Best Bakery (Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158) recognised as essential to fair trial.

The chain-of-evidence problem and the Anvar / Arjun line

The audio-video reform is meaningless if the recording itself cannot be admitted in evidence. Here the BNSS works in tandem with the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872. Section 63 BSA — the BSA counterpart of Section 65B IEA — governs the admissibility of electronic records. The Supreme Court's working principles in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, on the necessity of a Section 65B certificate, continue to apply under Section 63 BSA. The audio-video recording made under Section 105 BNSS will, when produced as evidence, require a Section 63 BSA certificate from the person operating the device — typically the investigating officer or a designated technical officer at the police station.

The chain of custody is equally critical. Section 193(3)(i) BNSS — see the chapter on Zero FIR, e-FIR and BNSS timelines — now requires the chargesheet to contain 'the sequence of custody in the case of electronic devices'. The audio-video file's chain — from the recording phone, to the upload server, to the Magistrate's repository, to the trial exhibit — must be documented. Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, on CCTV evidence, made the working point: electronic records that have been altered, tampered with or whose chain is broken cannot be admitted on the State's bare ipse dixit.

The non-cooperation problem — and the Section 105 BNSS answer

One foreseeable objection is the witness who does not consent to being recorded. Section 105 BNSS does not require the consent of the witness or of the person whose premises are being searched — the provision authorises the police officer to record the search, not to seek permission. The witness's signature on the seizure list, however, remains a separate substantive requirement under Section 103 BNSS. Where the witness consents to sign but objects to being filmed, the police officer's audio-video record may capture the room and the panchnama document without focusing on the witness; the substantive panchnama protection continues to operate. Where the resident of the premises objects to the recording itself, the law-and-order overlay of Section 64 BNSS (formerly Section 41 CrPC) on cooperation with police functions applies — refusal to allow the recording where the law mandates it is itself an obstruction.

BNSS innovations — what changed

The BNSS innovations in this cluster are dense. Six concrete reforms deserve memorising.

1. Section 105 BNSS — entirely new. Audio-video recording of every search and seizure, preferably on a mobile phone, with the file forwarded to a Magistrate.
2. Section 185(2) Proviso — new. Police searches without warrant must also be recorded; copies of the search record must reach the Magistrate within forty-eight hours.
3. Section 176(3) BNSS — new. Forensic-expert visit to the scene of crime is mandatory for offences punishable with seven years or more.
4. Section 183 BNSS — vulnerable-witness recording. Audio-video recording for statements of physically or mentally disabled persons, and for statements in offences punishable with ten years or more.
5. Sections 254, 265, 266 and 308 BNSS — audio-video evidence. Trial evidence may be recorded by audio-video means at State-notified facilities.
6. Section 308 BNSS — accused presence requirement. Evidence may be taken with the accused present 'through audio-video electronic means at the designated place to be notified by the State Government'.

Comparative table — CrPC ⇔ BNSS

Subject	CrPC, 1973	BNSS, 2023	Change
Audio-video recording of search	—	Section 105	Newly added — mandatory recording on mobile phone, forwarded to Magistrate
Police search without warrant	Section 165	Section 185	New proviso to Section 185(2) mandates audio-video recording; sub-section (5) sets a forty-eight-hour outer limit for forwarding to Magistrate
Forensic expert at scene	—	Section 176(3)	Newly added — mandatory for offences punishable with seven years or more
Recording of confessions and statements	Section 164	Section 183	Audio-video for vulnerable witnesses; mandatory for ten-year-plus offences; woman Magistrate for woman victims
Evidence in presence of accused	Section 273	Section 308	Audio-video at State-notified facility
Evidence in warrant trial	Section 231	Section 254	Audio-video for any witness; especially police officers and public servants
Evidence in Sessions trial — prosecution	Section 242	Section 265	Audio-video at State-notified facility
Evidence in Sessions trial — defence	Section 243	Section 266	Audio-video at State-notified facility

Exam-pointer pitfalls

Six recurring distinctions drive the MCQ design in this BNSS-innovation chapter. They are reliable scoring opportunities — and reliable traps when memorised in haste.

1. Section 105 BNSS is mandatory, not directory. 'Shall be recorded'. The recording is not contingent on availability of equipment — the provision expressly authorises a mobile phone.
2. Whole process — entry, search, seizure, list, signing. The recording covers every stage from entry to the witness signing the seizure list. A recording that begins at the seizure stage is incomplete and may not satisfy the section.
3. Forty-eight hours under Section 185(5) BNSS. Police-search records must be forwarded to the Magistrate within forty-eight hours. The window is fixed; delays beyond it raise a chain-of-custody question.
4. Forensic mandate is offence-band specific. Section 176(3) BNSS requires forensic-expert visit only for offences punishable with seven years or more. Below that threshold, the provision does not bite.
5. Section 63 BSA certificate is required. The audio-video recording is an electronic record; its admissibility at trial requires a certificate under Section 63 BSA (previously Section 65B IEA), per the Anvar and Arjun Panditrao principles. The Section 105 BNSS recording does not waive that evidentiary safeguard.
6. State-notified place for audio-video evidence. Sections 265, 266 and 308 BNSS authorise audio-video evidence 'at the designated place to be notified by the State Government'. Where the State has not yet notified, the audio-video mode is not available — a State-by-State variation matters here. The cushion of the High Court's inherent jurisdiction under Section 528 BNSS remains available where notification gaps cause prejudice.

The reform converts the police search from a narrative reconstructed at the police station hours after the event into a contemporaneous digital event. It converts the forensic visit from a discretionary practice into a statutory mandate for grave offences. It converts the trial evidence from a paper deposition into an audio-video record where convenience or witness vulnerability requires. The discipline runs alongside the police investigation powers and feeds into the judgment at trial close. The companion reforms in e-FIR and BNSS timelines, in the disposal-of-property regime, and in the Forms and Schedule architecture mean that the Code is being made digital end-to-end. The reform also has an indirect operational consequence on the Magistrate's working life. The repository of audio-video files at the District Magistrate's office grows with every search; the Magistrate must now have a digital infrastructure to receive, store and produce these files when called for at trial. The institutional readiness — secure servers, retrieval indexes, hash-verified archiving — has to keep pace with the substantive provision. Where it does not, the prosecution's evidentiary case will become harder to prove, not easier; the Section 63 BSA certificate cannot be issued for a file whose chain has been lost in the Magistrate's custody. The reform's working success thus depends on infrastructure that the BNSS itself does not directly provide for, but on which its evidentiary integrity rests. The exam asks the student to know the rank requirements, the offence bands, and the forwarding deadlines. The court asks the police, the Magistrate and the trial court to operate the architecture in working order, day after day.

Frequently asked questions

Is audio-video recording under Section 105 BNSS mandatory or directory?

Mandatory. The provision uses 'shall be recorded'. The Code does not make audio-video recording contingent on availability of equipment — it expressly authorises a mobile phone as the recording instrument. The investigating officer is statutorily bound to record the entire process of search and seizure, from entry to the signing of the panchnama. Where a search has been conducted without recording, the consequence will be tested under the Section 461 CrPC / Section 507 BNSS architecture — a serious breach that compromises the substantive search-and-seizure protection is illegality, not mere irregularity. The BNSS does not, on its text, declare a non-recorded search invalid, but the substantive consequence is likely to follow.

Where must the audio-video recording be sent after the search?

The recording must be forwarded without delay to the District Magistrate, the Sub-divisional Magistrate, or the Judicial Magistrate of the first class. The judicial repository — not the police station — is the place where the recording is preserved. For police searches without warrant under Section 185 BNSS, sub-section (5) sets an outer limit of forty-eight hours for the search record to be forwarded to the Magistrate. The forwarding is not optional and the deadline is not advisory.

When is a forensic expert's visit to the scene mandatory under Section 176(3) BNSS?

For offences punishable with imprisonment for seven years or more. Section 176(3) BNSS — added without a CrPC counterpart — requires the visit. The expert is required to collect forensic evidence at the scene and to cause the process to be recorded through audio-video electronic means, preferably a mobile phone. The provision does not apply to offences punishable below seven years. For middle-band offences (three to seven years), the discretion of the investigating officer continues to apply, with the audio-video search record under Section 105 BNSS as the operative documentation.

Is the Section 65B / Section 63 BSA certificate still required for an audio-video recording made under Section 105 BNSS?

Yes. The audio-video recording is an electronic record within the meaning of Section 63 BSA (previously Section 65B IEA). Its admissibility at trial requires a certificate under Section 63 BSA, in line with the Supreme Court's principles in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1. The certificate is typically issued by the investigating officer who operated the recording device or by a designated technical officer. Section 105 BNSS does not waive the evidentiary safeguard — the chain of custody under Section 193(3)(i) BNSS and the Section 63 BSA certificate operate together.

Can witnesses object to being recorded during a search?

Section 105 BNSS does not require the consent of the witness or of the person whose premises are being searched. The provision authorises the police officer to record the search, not to seek permission. The witness's signature on the seizure list under Section 103 BNSS, however, remains a separate substantive requirement. Where the witness consents to sign but objects to being filmed, the police officer's recording may capture the room and the panchnama document without focusing on the witness — the substantive panchnama protection continues to operate. Where the resident of the premises objects to the recording itself, refusal to allow the mandatory documentation is itself an obstruction of police functions.

What is the difference between Section 105 BNSS and Section 185(2) Proviso BNSS?

Both mandate audio-video recording of police searches. Section 105 BNSS is the chapter-level mandate — it covers every search under Chapter VII BNSS (warrant searches, closed-place searches, Magistrate-presence searches) and also extends to Section 185 BNSS searches. Section 185(2) Proviso is the section-specific mandate for police searches without warrant during investigation. The two provisions overlap and reinforce each other. Section 185(5) BNSS adds the forty-eight-hour deadline for forwarding the record of a Section 185 search to the Magistrate — a deadline that is specific to police-without-warrant searches and that does not appear in Section 105 itself.