The Allahabad High Court has granted bail to an accused arrested for alleged theft, citing the police’s failure to conduct mandatory videography of the recovery of stolen items as required under Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The Court observed that non-compliance with the mandatory provision creates doubt over the prosecution’s story and directed the Director General of Police (DGP), Uttar Pradesh, to issue a detailed Standard Operating Procedure (SOP) to ensure strict adherence to the law.
Background
The case involves the applicant, Shadab, who sought bail in Case Crime No. 185 of 2024, registered under Sections 305(2) and 317(2) of the Bharatiya Nyaya Sanhita (BNS) at Police Station Mansoorpur, District Muzaffar Nagar. The prosecution alleged that acting on information, the police arrested the applicant along with four other co-accused persons. From their joint possession, 40 motorcycles were allegedly recovered. The applicant has been languishing in jail since April 16, 2025.
Arguments
Counsel for the applicant, Sri Asheesh Kumar Tiwari, submitted that the applicant was not named in the First Information Report (FIR). The primary contention raised was regarding the procedure of recovery. The counsel argued that although 40 motorcycles were shown to be recovered, “there was no private witness or videography of the aforesaid recovery.”
The applicant’s counsel emphasized that videography of recovery is compulsory under Section 105 of the BNSS. He argued that the absence of such evidence “creates doubt over the entire prosecution story.” Furthermore, the counsel submitted that co-accused Shoeb and Owais had already been released on bail by a coordinate Bench of the Court, and the applicant was entitled to bail on the ground of parity. Regarding the applicant’s criminal history of six cases, it was argued that these were “planted against the applicant subsequent to the recovery of the present case.”
Learned A.G.A., Sri Rakesh Kumar Mishra, appearing for the State, “vehemently opposed the prayer for bail but could not dispute the aforesaid facts” regarding the absence of videography.
Court’s Analysis
Justice Arun Kumar Singh Deshwal, presiding over the bench, perused the record and noted that the police had failed to conduct any videography of the recovery of motorcycles or the preparation of the seizure list.
The Court observed:
“This fact shows not only the negligence but arbitrariness on the part of police which creates doubt over the prosecution story regarding the recovery of seized articles.”
The Court referred to Section 105 of the BNSS, which mandates that the process of conducting a search or taking possession of any property “shall be recorded through any audio-video electronic means preferably mobile phone.” The Court also relied on Rule 18 of the Uttar Pradesh Bharatiya Nagarik Suraksha Rules, 2024, which stipulates that such recording “shall mandatorily be done through E-Sakshya App.”
Highlighting the systemic issue, the Court remarked:
“This court came 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 gives benefit to the criminals during bail as well as trial.”
Decision
The High Court allowed the bail application, directing the release of Shadab on his furnishing a personal bond and two sureties.
In addition to granting bail, the Court issued strict directions to the Director General of Police, U.P., Lucknow. The Court ordered the DGP to “issue detailed SOP as required by Rules 18(5) of the Uttar Pradesh Bharatiya Nagarik Suraksha Rules, 2024” for mandatorily conducting audio-video recording of search and seizure on the E-Sakshya portal.
Significantly, the Court directed that instructions be issued that:
“failing to comply mandatory requirement of Section 105 of BNSS read with Rule 18 of the the Uttar Pradesh Bharatiya Nagarik Suraksha Rules, 2024 may attract disciplinary proceeding against the concerned police officer.”
The Court concluded that strict compliance is necessary so that “on the one hand it would save innocent persons from false implication by showing false recovery of property or articles and on the other hand to prepare foolproof evidence against the criminals.”
Case Details:
- Case Title: Shadab Vs. State of U.P.
- Case Number: Criminal Misc. Bail Application No. 40989 of 2025
- Citation: 2026:AHC:260
- Bench: Justice Arun Kumar Singh Deshwal
