BNSS heralds transformative era in criminal justice, encourages transparency: Delhi HC

The HC said this legislative “enhancement” is designed to ensure a more transparent and accountable approach to investigation. It added that BNSS promotes a system that is not only transparent and accountable, but also “fundamentally aligned with the principles of fairness and justice”.

The HC made the observations while granting bail to a man arrested by the Delhi Police on allegations that he used to supply ‘charas’ (marijuana) in Delhi after procuring it from Himachal Pradesh. The trial court had dismissed the man’s bail plea after which he had moved the HC.

The man had argued that even though the “purported recovery happened in a public place”, there were no independent witnesses. He had also argued that even though he was apprehended during the day, and seizure of the contraband was made based on “secret information”, police officials did not endeavour to arrange for videography of the raid and recovery of the contraband from him.

On this, the HC observed that the raiding party was successfully able to reach the spot and lay a trap to apprehend the man, however, it was peculiar that the investigating agency was “unable to associate even a single public witness in the same time, especially since the applicant was apprehended at a crowded place”.

“In such circumstances, prima facie, the non-joinder of independent witnesses by the prosecution is a frailty in the prosecution’s case,” the court added.

On the question of non videography of the raid, the HC said almost everyone carries a mobile phone compatible with videography these days and it is open for the prosecution to furnish reasons to justify the absence of videography and photography in a case.

It, however, said that while the mere absence of videography and photography of the recovery does not nullify the prosecution’s case, however, it can in some circumstances, “be sufficient to create doubt” about the “veracity” of the prosecution’s case.

It also said while it was not the prosecution’s case that the police team was not carrying any instrument (mobile phone) at the time of the raid, at this stage, the HC said, the benefit cannot be denied to the man.

“This Court has come across a number of cases where the investigating authority has done photography and videography of the recovery. It is peculiar that the investigating authorities, understanding the importance of such additional evidence, make efforts to belie allegations of false implication and endorse the recovery of contraband by photography and videography in some cases, but fail to undertake any steps to do the same in other cases. Even if the explanation tendered by the prosecution for nonjoinder of independent witnesses is to be believed, it is more peculiar that despite the same, evidently, no effort to photograph or videotape the recovery has been made by the prosecution in the present case to endorse the credibility of the recovery,” the court said.

The HC granted bail to the man after observing that he had made out a “prima facie” case on grounds of absence of independent witnesses and prolonged delay in the trial. (reporter: Malavika Prasad

edited by Nikitha Phyllis)