Introduction:
The High Court of Jammu & Kashmir and Ladakh has clarified that Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which provides for audio-video recording of the process of search and seizure, does not create an independent right in favour of an accused to demand continuous audio-video recording of every question asked and every answer given during custodial interrogation.
Justice Sanjay Parihar held that the provision is specifically concerned with the recording of search and seizure proceedings falling within its statutory scope. It cannot be interpreted as imposing a general obligation upon investigating agencies to continuously record every stage of an accused person’s interrogation. The Court also clarified that this interpretation does not dilute the obligation of investigating agencies to comply with Section 105 wherever applicable or with the directions issued by the Supreme Court concerning CCTV surveillance in police stations.
The Court was dealing with a petition filed by an accused in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner challenged an order of the Trial Court rejecting his application under Section 175(3) of the BNSS. Through that application, he had sought directions requiring the investigating agency to audio-visually record his custodial interrogation, preserve relevant CCTV footage and comply with Section 105 of the BNSS in the event of any search or seizure.
The petitioner apprehended that the police might fabricate a recovery of contraband or obtain an incriminating disclosure through coercive interrogation. He alleged that he had been taken into custody on October 20, 2026, in the presence of his wife and other family members, but that the police had subsequently shown his arrest as having taken place on October 21, 2026. He further claimed that the police had attempted to attribute a recovery of contraband to him but refrained from doing so after his family members objected.
The Trial Court declined to grant the requested directions. It reasoned that Section 105 did not require the continuous recording of every interrogation and that an accused could not compel the investigating agency to adopt a particular method of collecting evidence merely by alleging false implication or expressing apprehension about the investigation.
The dispute required the High Court to examine the scope of Section 105 of the BNSS, the extent of judicial interference permissible during an ongoing investigation and the relationship between statutory safeguards and the constitutional protections available to an arrested person.
Section 105 provides for the audio-video recording of the process of search and seizure, including the preparation of the list of seized articles and the signatures of witnesses. It is intended to strengthen transparency and accountability in investigative procedures falling within its ambit. However, the question before the High Court was whether this provision could also be used to demand continuous recording of custodial questioning, even when no search or seizure was taking place.
The Court also considered the significance of the Supreme Court’s decision in Paramvir Singh Saini v. Baljit Singh and Others (2021), which laid down directions concerning the installation and functioning of CCTV cameras in police stations and other investigating agencies. The petitioner sought to rely on the broader objective of transparency underlying these safeguards. The High Court, however, distinguished the institutional requirement of CCTV surveillance from an individual right to insist upon a separate recording of every interrogation.
While dismissing the petition, the High Court emphasised that the investigating agency’s discretion is not unlimited and remains subject to judicial scrutiny. An accused cannot dictate the manner in which an investigation must be conducted, but the police must act within constitutional and statutory boundaries. The Court also made it clear that allegations of non-cooperation or evasion of investigation do not deprive an accused of the protections available under law.
The decision therefore draws an important distinction between the safeguards that the law expressly provides and additional investigative procedures that an accused may seek as a matter of individual protection. It recognises the importance of transparency in criminal investigations without expanding the language of Section 105 beyond its statutory purpose.
Arguments of the Parties:
The petitioner challenged the Trial Court’s refusal to direct audio-video recording of his custodial interrogation and preservation of CCTV footage. His principal contention was that an investigating officer is under a duty to conduct an investigation that is fair, impartial and objective. According to him, where an accused raises a specific apprehension that evidence may be fabricated or that coercive methods may be used during interrogation, the Court should not refuse protective directions merely because the investigation is ordinarily within the domain of the police.
The petitioner alleged that he had been apprehended on October 20, 2026, in the presence of his wife and family members. He claimed that the police attempted to attribute a recovery of contraband to him but abandoned the attempt after his relatives raised objections. He further alleged that, despite his apprehension on that date, the police records reflected his arrest as having taken place on October 21, 2026.
On the basis of these allegations, the petitioner expressed apprehension that the investigating agency might fabricate a recovery or procure an incriminating disclosure through coercive means. He therefore sought continuous audio-video recording of his interrogation so that the proceedings could be objectively documented and any subsequent dispute regarding the manner of questioning could be examined on the basis of an electronic record.
The petitioner also requested preservation of CCTV footage that might have captured his alleged apprehension. He relied upon the statutory safeguards under Section 105 of the BNSS and the broader requirement of transparency in police functioning. His position was that the Court should ensure that the investigation remained within lawful limits, particularly when he had raised a specific allegation concerning the circumstances of his custody.
The application before the Trial Court had been filed under Section 175(3) of the BNSS, which provides a mechanism for seeking an order from the Magistrate concerning investigation. The petitioner sought to invoke this provision to obtain directions that would safeguard the integrity of the investigation and prevent the possible creation or suppression of evidence.
The respondents, on the other hand, opposed the petition and maintained that the investigation was being conducted in accordance with law. The investigating agency’s position was that the petitioner could not require the police to conduct an investigation in a particular manner merely because he apprehended that unlawful methods might be adopted.
The background of the investigation was also relevant to the State’s position. The FIR had been registered after information was received regarding the transportation of narcotic substances in commercial quantities. A police party intercepted a vehicle and allegedly recovered 540 grams of heroin from one accused and 424 grams from another. During the investigation, those accused allegedly disclosed that the contraband had been supplied by another person, who was subsequently arrested.
A charge-sheet was presented against the accused persons initially apprehended. According to the investigating agency, a notice under Section 67 of the NDPS Act had been issued to the petitioner, but he did not associate himself with the investigation. He was subsequently arrested on October 21, 2026.
The Station House Officer thereafter approached the competent Court under Section 193(9) of the BNSS seeking permission to conduct further investigation into the petitioner’s alleged involvement. That request was allowed. The investigating agency therefore maintained that the further investigation was being undertaken through the procedure recognised by law.
The Trial Court had also rejected the petitioner’s contention that Section 105 required continuous recording of custodial interrogation. It observed that the provision dealt with search and seizure and did not contemplate the recording of every question and answer during interrogation. The Trial Court further reasoned that an accused could not use an allegation of false implication or an asserted alibi to compel the investigating agency to collect evidence in a particular manner or require the Court to supervise the ordinary course of investigation.
The respondents’ position was thus that the petitioner had not established a sufficient legal basis for imposing a special recording arrangement upon the investigating agency. The High Court was required to determine whether the statutory provision or the circumstances alleged by the petitioner justified the additional safeguards sought.
Court’s Judgment:
Justice Sanjay Parihar dismissed the petition and upheld the Trial Court’s order, holding that Section 105 of the BNSS could not be treated as an independent source of an unconditional right to continuous audio-video recording of custodial interrogation.
The Court began by reiterating the settled principle that investigation of a cognizable offence ordinarily falls within the domain of the investigating agency. It is for the police to collect evidence, examine witnesses and determine the investigative steps required in accordance with law. Courts ordinarily do not substitute their own assessment for that of the investigating officer or direct the investigation to proceed in a particular manner merely because an accused prefers a different approach.
However, the Court also emphasised that investigative discretion is not absolute. The fact that the police are primarily responsible for conducting an investigation does not place their actions beyond judicial scrutiny. Investigating agencies remain bound by the Constitution and the applicable statutory framework. Their authority must be exercised fairly and lawfully, and judicial intervention remains available where there is a demonstrable violation of legal safeguards.
The Court therefore recognised two principles that must operate together. An accused cannot dictate the course or method of investigation, but is entitled to insist that the investigation does not violate constitutional guarantees or statutory protections. The petitioner’s apprehensions had to be examined against this legal framework rather than treated as sufficient, by themselves, to justify continuous judicial supervision.
The central issue concerned the interpretation of Section 105 of the BNSS. On examining the provision, the Court observed that its language was directed towards the process of search and seizure falling within its statutory ambit. It provides for audio-video recording of the process, including the preparation of the list of seized articles and the signatures of witnesses, through the prescribed electronic means.
The Court held that the provision did not expressly impose an obligation upon the investigating agency to continuously record every question put to an accused or every answer given during custodial interrogation. The statutory requirement relating to search and seizure could not be expanded into a general mandate governing all stages of police questioning.
In this regard, the Court made it clear that the petitioner could not invoke Section 105 as an independent source of an unconditional right to demand continuous audio-video recording of his interrogation. Such an interpretation would extend the provision beyond the subject matter addressed by its language.
At the same time, the Court expressly preserved the obligation of the investigating agency to comply with Section 105 whenever a search or seizure covered by the provision is undertaken. The decision did not give the police any discretion to disregard the statutory recording requirement in situations where it applies. The distinction was between compliance with an express statutory obligation and the creation of an additional obligation that the provision itself does not prescribe.
The Court next considered the petitioner’s reliance on the Supreme Court’s decision in Paramvir Singh Saini v. Baljit Singh and Others (2021). In that case, the Supreme Court issued directions concerning the installation and functioning of CCTV cameras in police stations and other investigative establishments. The directions were intended to strengthen institutional accountability and provide a safeguard against abuses during police functioning.
The High Court distinguished those directions from the specific relief sought by the petitioner. It observed that CCTV surveillance in police stations is an institutional safeguard designed to ensure transparency in police premises. It does not automatically create an individual entitlement to demand a separate, continuous and individually supervised audio-video recording of every stage of custodial interrogation.
The Court explained that the two safeguards operate in different contexts. The CCTV directions of the Supreme Court are binding institutional requirements, while the petitioner’s demand for continuous recording of every question and answer could not be treated as an automatic consequence of those directions without examining their actual scope and the circumstances of the case.
Consequently, the Court clarified that its interpretation of Section 105 did not release the investigating agency from its obligations concerning CCTV surveillance. The police remained bound to comply with the directions issued by the Supreme Court and could not use the dismissal of the petition as a justification to disregard those requirements.
The Court also examined the petitioner’s allegation that he had been apprehended on October 20, 2026, although the police records showed his arrest on October 21, 2026. The allegation that the police had attempted to plant contraband upon him was treated as serious. However, the Court noted that no independent material had been placed before it to substantiate the claim.
In particular, the petitioner had stated that his wife and other family members were present when the alleged incident occurred. Yet, no affidavit from his wife or any other family member who had purportedly witnessed the incident had been filed in support of the allegations.
The Court considered this absence of supporting material significant. It held that an apprehension expressed in a petition, without independent material supporting the alleged incident, could not by itself justify the imposition of a special regime of continuous judicial supervision over the interrogation.
This did not mean that an accused must remain without a remedy whenever the police violate legal safeguards. Rather, the Court required the petitioner to establish a sufficient factual basis before extraordinary directions could be issued to regulate the manner in which an ongoing investigation was conducted.
The Court also considered the procedural position arising from the further investigation. The petitioner had not been charge-sheeted along with the other accused persons in the initial police report. However, the Court observed that this circumstance did not, by itself, make further investigation into his alleged involvement impermissible.
In this context, the Court referred to Section 193(9) of the BNSS, which recognises the power of the investigating agency to undertake further investigation even after submission of a police report. The provision allows the investigation to continue where further material or circumstances require examination, subject to the statutory framework.
The fact that the petitioner had not initially been included in the charge-sheet could not therefore be treated as a legal bar against investigating his alleged involvement at a later stage. Since the competent Court had granted permission for further investigation on the request of the Station House Officer, the Court found no basis to conclude that the investigation was impermissible merely because it concerned a person who had not been charge-sheeted earlier.
Importantly, the High Court also clarified that the petitioner’s alleged failure to cooperate with the investigation or his alleged evasion of the process of law could not deprive him of constitutional and statutory protections. Even an accused who does not cooperate with the investigating agency continues to enjoy the safeguards available under law. The police cannot disregard those protections as a consequence of an accused person’s conduct.
The issue of CCTV footage preservation was considered separately. The petitioner had sought preservation of recordings that might have captured his alleged apprehension. However, the Court noted that the material before it did not establish whether CCTV cameras were installed at the particular location where the petitioner claimed to have been apprehended. Nor did the record establish whether any footage of the alleged incident had actually been recorded.
In the absence of such information, the Court declined to issue the broad directions sought by the petitioner. Nevertheless, it made an important clarification that dismissal of the application could not be understood as permitting the investigating agency to disregard its obligations concerning CCTV surveillance. The police could not destroy, suppress or overwrite relevant recordings in violation of applicable legal requirements.
The Court’s reasoning thus preserved the distinction between refusing an unsupported demand for continuous recording and permitting the investigating agency to act contrary to established safeguards. The former did not authorise the latter.
Ultimately, the High Court found no illegality, perversity or jurisdictional error in the Trial Court’s order warranting interference. It accordingly dismissed the petition and upheld the rejection of the application under Section 175(3) of the BNSS. The petitioner was, however, granted liberty to avail himself of such remedies as may be permissible in law if any specific violation of his constitutional or statutory rights occurred.
The ruling clarifies the limits of Section 105 of the BNSS without weakening the broader obligation to conduct investigations fairly. It establishes that statutory safeguards must be applied according to their actual scope and cannot be enlarged merely because an additional procedure may be desirable in a particular case.
At the same time, the decision reinforces that police discretion is subject to constitutional and judicial limits. An accused cannot demand that every interrogation be continuously recorded under Section 105, but the investigating agency must comply with the provision during searches and seizures covered by it, as well as with binding CCTV surveillance directions. The judgment therefore seeks to maintain a balance between the independence of criminal investigation and the protection of individual rights against unlawful investigative practices.