Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Allahabad High Court: While considering an application filed by the applicant-accused seeking bail in case under Sections 305(2) and 317(2) of the Bharatiya Nyaya Sanhita 2023 (‘BNS’) during the pendency of the trial, a Single Judge Bench of Arun Kumar Singh Deshwal, J., held that the fact that the police did not videograph the recovery of 40 motor cycles from the accused persons showed not only the negligence but also arbitrariness on the part of police which created doubt over the prosecution story regarding the recovery of seized articles.
The Court directed the Director General of Police (‘DGP’) to issue detailed SOP for live recording of audio, video of the search or recovery of any article as well as uploading and downloading the same on and from the E-Sakshya portal
Background
In the present case, the accused was not named in the FIR, however, subsequently based on information, he along with four other co-accused persons were arrested and from their joint possession, 40 motor cycles were also shown to be recovered, though, there was no private witness or videography of the aforesaid recovery.
The accused stated that since two other co-accused persons released on bail by the Coordinate Bench of the High Court, he was also entitled to be released on bail on the ground of parity.
Analysis and Decision
The Court noted the overcrowded jails and heavy pendency of criminal cases before the Trial Courts, nature of offence, evidence, and complicity of the accused and held that the accused was entitled to be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the Court concerned.
Further, the Court stated that it was clear from the record of present case that despite it being mandatory under Section 105 of the Bharatiya Nagarik Suraksha Sanhita 2023 (‘BNSS’), the police had not conducted any videography of the recovery of motor cycles from the applicant or preparation of list of seized motor cycles. Additionly, uploading the video on the portal of E-Sakshya is also necessary, but the police did not comply with the aforesaid provision of BNSS. The Court stated that it showed not only the negligence but arbitrariness on the part of police which created doubt over the prosecution story regarding the recovery of seized articles.
The Court perused Rules 18(1) and 18(2) of the Uttar Pradesh Bharatiya Nagarik Suraksha Rules 2024 (‘UP BNS Rules’) and stated that it was clear that video recording of the search or seizure process should be made part of case diary and same should be sent to the Magistrate within 48 hours. Further, the Court highlighted the DGP Circular wherein audio-video recording of conducting search or taking possession of any property was made mandatory, however, detailed SOP as required by Rule 18(5) of the UP BNS Rules was issued by the Director General of Police in coordination with National Crime Records Bureau (‘NCRB’).
The Court stressed that it had come across number of cases where independent witness could not be found regarding recovery of any article and even then audio video recording through E-Sakshya portal or other audio, video electronic means was not conducted by the police which gave benefit to the criminals during bail as well as trial.
Thus, the Court directed the DGP of Uttar Pradesh to issue detailed SOP for mandatorily conducting audio video recording of search, seizure or possession of property or other incriminating material including the preparation of list of articles or property seized as well as signature of witnesses on E-Sakshya portal and uploading the same or through other audio, video electronic means including mobile phone of police officers on duty. The Court further directed the DGP to issue directions regarding the disciplinary proceeding that would be attracted upon failing to comply with the mandatory requirement of Section 105 of the BNSS and Rule 18 of the UP BNS Rules.
The Court stated that disciplinary proceeding against the police officers concerned would on one hand, save innocent persons from false implication by showing false recovery of property or articles and on the other hand, prepare foolproof evidence against the criminals for hearing the bail application as well as during trial.
[Shadab v. State of UP, 2026 SCC OnLine All 5, decided on 5-1-2026]
Advocates who appeared in this case:
For the Applicant: Asheesh Kumar Tiwari
For the Opposite Party: G.A.