The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces several reforms aimed at modernizing criminal law procedures. One of the significant changes is the abolition of the post of "Assistant Sessions Judge." This reform has sparked debates concerning its justifiability. At the same time, the BNSS introduces advanced provisions for transparency, particularly through the integration of technology in criminal investigations. A deeper examination of these provisions, especially Section 105, sheds light on the evolving nature of criminal law and its implications for justice delivery in India.
Technology in Criminal Investigation and Trial: A Modern Approach
One of the highlights of the BNSS, as observed by the Madhya Pradesh High Court, is the recognition of the use of Information and Communication Technology (ICT) in the investigation and trial process. The provision allows for the collection and presentation of evidence in a more transparent and reliable manner, enhancing the overall integrity of the legal process. The BNSS envisions a shift from traditional methods to a technologically advanced approach in criminal law, which includes mandatory electronic documentation of search and seizure processes.
Section 105 of the BNSS: Digitalization of Search and Seizure
Section 105 of the BNSS mandates that all search and seizure procedures, including the preparation of the search list and witness signatures, be recorded using electronic means. The provision explicitly states:
"The process of conducting search of a place or taking possession of any property, article or thing... 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."
This is a significant departure from the previous legal procedures under the Criminal Procedure Code (CrPC), which did not have such stringent requirements for recording search and seizure. In the CrPC, search and seizure were often carried out without mandatory video or audio recording, leading to potential doubts about the integrity of the process. By mandating electronic documentation, the BNSS aims to ensure that the entire process is transparent, making it harder for law enforcement officers to tamper with evidence or misrepresent facts.
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Comparison with the CrPC
Under the CrPC, searches were conducted under Sections 93 to 106, but there was no explicit requirement for electronic documentation. The focus was on written records, including the preparation of search lists and the involvement of witnesses, but there was no statutory mandate for recording these procedures through audio-video means. This often led to a lack of sufficient evidence to verify the authenticity of the search and seizure process.
Section 100 of the CrPC allowed for the search of premises, including for a wrongfully confined person, but again, the documentation was largely limited to written reports, which were susceptible to manipulation. In contrast, the BNSS shifts towards digital evidence, offering a more robust system for ensuring that these critical processes are fully documented and can be reviewed later if necessary.
Case: In Karnail Singh v. State of Haryana (2009), the Supreme Court underlined the importance of following proper procedures in search and seizure, emphasizing that failure to comply could lead to the evidence being inadmissible. However, the CrPC did not mandate electronic documentation, which could have provided clearer evidence of procedural compliance. This case reflects the need for the reforms introduced by the BNSS, which ensures that evidence from search and seizure procedures is preserved through electronic means, protecting both the accused's and the victim's rights.
The provision also applies when a search or seizure is conducted under Section 185 of the BNSS, which allows for searches related to national security or law and order. The requirement to record the entire process—including the preparation of search lists and witness signatures—ensures a higher level of transparency than was previously possible.
Case: In Jigar @ Jikar v. State of Madhya Pradesh (2024), the Madhya Pradesh High Court examined a case where the police were required to document their search and seizure actions electronically, as mandated by Section 105 of the BNSS. The court emphasized that such recordings played a crucial role in safeguarding the integrity of the investigation, ensuring that no discrepancies could arise regarding the conduct of the police officers involved.
Conclusion:
Section 105 of the BNSS is a significant step towards ensuring transparency and accountability in criminal investigations. The mandatory recording of search and seizure activities via electronic means ensures that evidence is securely documented, reducing the potential for misuse. However, the success of this reform depends heavily on the availability of technological infrastructure and training for law enforcement officers.
The abolition of the Assistant Sessions Judge post remains a controversial topic. While it aims to streamline judicial procedures, it also raises concerns about access to justice and the strain on the remaining judicial officers. As the BNSS continues to reshape the criminal justice landscape, the focus must be on ensuring that these changes do not compromise the fairness of the judicial process but instead enhance its efficiency and transparency
