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AUDIO-VIDEO RECORDING: LEGAL RIGHT OR NOT? A WAY TO PREVENT CUSTODIAL DEATHS

INTRODUCTION

Audio and video recording of police interrogations has been a topic of debate and discussion in recent years. Some argue that recording interrogations can provide a record of what occurred during the questioning and help ensure that the rights of the person being questioned are protected. Additionally, recordings can be used as evidence in court and can provide transparency in the criminal justice system. Power of interrogation of the Police is given under Section 161 of CrPC[1], in which the people have the responsibility to speak the truth except in cases where there are chances that they can get trapped in criminal cases or have to pay a fine. Statements made under this sub-section may also be recorded by audio-video electronic means. It is a provision inserted in CrPC through an amendment in 2009[2]; the need for this amendment was the growing incidence of torture, custodial Deaths, and violation of Human Rights. Thus, to prevent the violation of Article 21, an amendment was inserted. Law commission report 152 in 1994 said that if the police officer under whom the custodial death or any other kind of Injury happened, then that police officer will be liable for that and proving innocence will be the liability of that police officer. In 2016, a new provision 114(b) in the Indian Evidence Act[3] was added through an amendment, which says that if any injury or death occurred at the time of Police Investigation, then the prosecution will assume that the police officer had caused that death or injury.

Benefits of Audio Video Recording of statements

The intent behind introducing a proviso to Section 161 (3) was to prevent influence, fabrication, introduction, and exchange of statements made by the witnesses. Apart from this, there are also a variety of benefits.

Firstly, it provides a reliable and accurate record of what was said, which can be helpful in legal proceedings or other disputes. Secondly, it can be used to preserve important information that might otherwise be forgotten or misremembered. Thirdly it can be used to document the progress of therapy sessions or meetings and can be used as a reference for future conversations. Fourthly, it can be used to train AI models to recognise speech and understand its context. Fifth and most important, it can be used to prevent custodial deaths.

WHAT IS CUSTODIAL DEATH AND ITS STATUS IN INDIA?

Custodial Death is the death that happens to a person who is either under trial or has already been convicted of a crime. It can occur mainly while a person is in police custody, judicial custody or in the custody of the army or a paramilitary force. Custodial death is not a new concept, especially in India, where the offence of Custodial death has been carried out since India was colonised. In India, custodial deaths are investigated by the state police, and in some cases, by the Central Bureau of Investigation (CBI). However, there have been concerns about the independence and impartiality of these investigations, and the conviction rate for custodial deaths is low. The National Human Rights Commission (NHRC) of India has also raised concerns about the high number of custodial deaths in the country and has called for measures to be taken to prevent such deaths and hold those responsible accountable. The Indian government has also taken some steps to address the issue of custodial deaths. For example, the Indian government has passed laws such as the Prevention of Torture Bill 2010, which criminalises torture by public servants and compensates the victims of torture. Despite these efforts, however, the problem of custodial deaths in India remains a significant one. According to the Indian Annual Report[4] on Torture 2020, there were 1,569 deaths in judicial custody across the country. Gujarat and Uttar Pradesh recorded the highest custodial deaths, with 11 each.

WHAT SUPREME SAID ABOUT THAT: CASE LAWS

The legal status of audio and video recording of police interrogations varies by jurisdiction. In some countries, states, or cities, it is mandatory for the police to record all interrogations, while in others, it is not required but allowed, and in some places, it is not permitted. In the United States, no federal law requires police to record interrogations, and the decision to do so is typically left up to individual states and municipalities. Some states, such as Alaska, Minnesota, and Wisconsin, have laws mandating the recording of interrogations, while others have no such laws. In some jurisdictions, the courts have ruled that the failure to record an interrogation may violate a suspect’s rights, but this varies depending on the case’s specific circumstances. Let’s now examine what the Supreme Court of India said about it.

  1. K.Basu Vs. State of West Bengal & Ors[5]

This case came on 18 December 1996, in which Supreme Court gave directions on the arrested person’s rights to prevent human rights violations. In this case, an application was made to set up State Human Rights Commission and install CCTV cameras in states with no human rights commission, like Delhi, Arunachal Pradesh, Meghalaya, Tripura, Nagaland, and Mizoram. Almost 26 years have crossed, but these states do not have human rights commission.

Apart from installing CCTV cameras, an appeal was made for the appointment of a body of non-officials whose job will be to make surprise visits to the police station from time to time to see if any human rights violation is happening. Almost all the states agree to this order of SC in which the court gave the directions for the installation of CCTV cameras, especially in the police stations where human rights violation cases have been come and ordered[6] the installation of CCTV cameras in all the police stations of India in one year or a maximum in two years. However, it didn’t happen to date.

  1. Shafhi Mohammad v. State of Himachal Pradesh[7]

In this case, an appeal was made for the videography of the crime scene, like where the murder happened, the instruments of murder or any other offence were hidden. However, the court found that our investigation industry still needs to prepare for such a step. However, still, it realised that the time had come for such advancement during police interrogation and therefore directed the Ministry of Home Affairs to set up a Central Oversight Body to implement an action plan related to the use of videography in the crime scene while conducting the investigation. The court, while considering the directions issued in D.K. Basu Vs. State of West Bengal & Others held that there was a need to give further orders so that in every State, an oversight mechanism be created whereby an independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. This Court further directed the COB to issue appropriate directions on a timely basis to ensure that the use of videography during investigation becomes a reality in the upcoming year, the first phase of which be implemented by 15.07.2018. There is an urgent need to introduce crime scene videography at least at some places as per need and priority determined by the COB.

  1. Paramvir Singh Saini v. Baljit Singh & Baljit Singh & Ors[8]

In this case, an appeal was made to record audio and video during police interrogation under section 161 of CrPC[9]. In this case, all states of India were made a party to it by the Supreme Court and discussed the abovementioned issues. The Supreme court wanted more than the status of installing CCTV cameras and asked the states to make an action plan in six weeks and give a concrete answer. The court further said that installation would be done in every police station and almost every corner of the police station. The CCTV cameras should also have a night vision facility whose recording should be kept for nearly one and a half years. SHO will be responsible for all that, and no excuse will be taken. For example, they should use solar panels or windmills and install CCTV cameras if the electricity supply is not present at any particular place. Supreme Court further held that installing CCTV cameras would be done not only in the Police station but also in all central government agencies, whether it is CBI, NIA, ED, NCB, or the Department of revenue intelligence.

CONCLUSION

The conclusion of this article can be said that whenever a police station calls any person for interrogation, then that person will have the right to ask for audio-video recordings and this right is given by Article 21 of the constitution[10], Section 161 of CrPC proviso, Supreme Court rulings and by Human Rights Convention’s International Declaration. Also, if any place does not have the CCTV camera recording feature, then that person will have the right to ask for recording in a 360-degree manner through a mobile phone using a tripod stand and even have the right to ask for the recording of that footage.

Author(s) Name: – Arjun Maheshwari (Dr. Ram Manohar Lohiya National Law University)

References:

[1] Code of Criminal Procedure, 1973, s.161

[2] Code of Criminal Procedure (Amendment) Act, 2008,

[3] Indian Evidence (Amendment) act, 2016

[4] Admin, National Campaign Against Torture and Nations, U. (2021) India torture report 2020: Increase in custodial deaths despite COVID-19 Lockdown, at least one suicide every week due to torture in police custody, National Campaign Against Torture. Available at: http://www.uncat.org/press-release/india-torture-report-2020-increase-in-custodial-deaths-despite-covid-19-lockdown-at-least-one-suicide-every-week-due-to-torture-in-police-custody/ (Accessed: January 22, 2023).

[5] MANU/SC/0379/1995

[6] Chandani (2021) Installation of CCTV cameras at investigating authority offices, TaxGuru. Available at: https://taxguru.in/corporate-law/installation-cctv-cameras-investigating-authority-offices.html (Accessed: January 22, 2023).

[7] MANU/SC/0058/2018 

[8] MANU/SC/0908/2020

[9] Ibid 1

[10] Constitution of India, art.21