Search & seizure of an accused while in police custody — legal article on BNSS Sec 105 & 185 and BSA 2023, with recent Kerala HC / SC decisions

 Search & seizure of an accused while in police custody — legal article on BNSS Sec 105 & 185 and BSA 2023, with recent Kerala HC / SC decisions

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By: Advocate Salil Kumar P. (Kozhikode) Ph : 8075113965

Date: 24 November 2025

Introduction — why does this matter ?

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) introduce important procedural and evidentiary changes to how searches and seizures are to be carried out and used as evidence. Two BNSS provisions — Section 105 (recording of search & seizure via audio-video means) and Section 185 (detailed regime for police searches) — are especially material where the police search an accused person who is already in custody, or seize material from an arrested person’s person, lodgings or possessions during custody. These provisions, read with BSA’s rules on admissibility and authentication, create mandatory safeguards and fresh grounds to challenge procedural non-compliance.

Text & plain-language reading of the key provisions : 

Section 105 BNSS — mandatory audio-video recording of search & seizure

Section 105 mandates that the entire process of conducting a search of a place or taking possession of any property/article/thing under the Chapter (or under Section 185) — including preparation of the list (mahazar) and signatures by witnesses — “shall be recorded through any audio-video electronic means (preferably mobile phone)”, and that the police officer shall without delay forward that recording to the District Magistrate / Sub-Divisional Magistrate / Judicial Magistrate of the first class. In short: video/audio documentation is mandatory and must be forwarded to the magistrate promptly.

Section 185 BNSS — search by police officer (exigency / incidental searches)

Section 185 (the BNSS counterpart of earlier CrPC exigency/search provisions) regulates searches by officers in charge and investigating officers, sets out the conditions when warrantless searches are permitted (reasonable grounds, recording of reasons, presence of witnesses, etc.), and contains a specific proviso that such searches shall be recorded through audio-video electronic means and copies sent (within the period the statute prescribes) to the magistrate empowered to take cognizance. This reinforces Section 105 and ties the exigency search to the recording requirement.

The Bharatiya Sakshya Adhiniyam, 2023 governs admissibility, relevance and proof. While BSA does not itself prescribe how searches must be done, it governs how search/seizure evidence is proved and admitted. In practice, non-compliance with BNSS recording provisions can affect the weight and sometimes the admissibility of seizure evidence under BSA rules (chain of custody, authenticity, best evidence, and the court’s discretion to exclude unfairly obtained material).

Practical legal effects when the accused is searched while in custody : 

Mandatory recording — threshold question : 

If police search an accused in custody (body search, seizure from belongings or cell), Section 105/185 requires the search and seizure process to be audio-video recorded and forwarded to the magistrate. Failure to record (or to forward promptly) is a mandatory procedural lapse that directly undermines the prosecution’s contemporaneous records.

Chain of custody / best evidence: 

BSA requires reliable proof of how evidence was seized and handled. A video recording is now part of the best evidence. Absence of video, or defective video (truncated, tampered, not played at trial, no transcript), weakens the chain of custody and may lead courts to exclude or discount the seized materials.

Judicial oversight & forwarding to Magistrate : 

The statutory duty to forward the recording to the Magistrate without delay creates an additional transparency step — the magistrate receives contemporaneous material that can prevent subsequent tampering or after-the-fact justification by police. This step is often decisive in bail and custody-related proceedings.

Special Acts / prior inconsistent rules: 

Where a special statute provides for search/seizure procedure that previously referenced CrPC, BNSS now applies by virtue of the general replacement; and courts have held that Section 105 applies to searches under special enactments unless the special Act expressly overrides BNSS. Practitioners should check whether a special Act has inconsistent procedural language.

Remedies and relief : 

Remedies for non-compliance include suppression/exclusion of the seized material, acquittal if the prosecution’s case collapses, direction for retrial (if prejudice established), or orders to preserve recordings and forensic audit where tampering is suspected. The extent of remedy depends on whether prejudice to the accused's right to fair trial is shown.

Controlling precedents — latest Kerala High Court & Supreme Court decisions : 

1. D.K. Basu v. State of West Bengal (1997) — foundational principles on custodial safety, prompt information to relatives, witness presence, and other safeguards. Courts repeatedly rely on D.K. Basu when assessing custodial fairness and police practices. (Landmark guidelines remain relevant when read with BNSS mandatory recording).

2. Suresh v. State of Kerala (Kerala High Court, 24 July 2025) — Kerala High Court emphasised mandatory audio-visual documentation for crime-scene/search processes under BNSS and directed strict compliance with BNSS recording provisions and forensic SOPs. The Court held that where statutory recording is feasible, non-recording raises serious doubts on prosecution evidence and on procedural regularity. This is an authoritative state-level decision reinforcing Section 105’s mandatory character.

3. Shahina v. State of Kerala (Kerala High Court, 4 July 2025) — the High Court examined contemporaneous records (seizure mahazar, arrest memo) and stressed the importance of accurate, contemporaneous documentation; the judgment illustrates the Court’s approach to scrutinising seizure records in custody cases and the evidentiary significance of properly made mahazars and their formalities.

Selected recent High Court / appellate rulings (2024–2025) — several High Courts have either excluded or strongly discounted prosecution evidence where BNSS recording requirements were not complied with, or where the recording existed but was not preserved, played, or properly authenticated at trial. 

Supreme Court — evolving stance (post-BNSS era) — the Supreme Court’s long-standing custodial safeguards (including D.K. Basu) provides the constitutional underpinning. In 2024–2025 the Supreme Court and various benches have reiterated that recording and contemporaneous reasons for warrantless searches are essential for legality (courts have emphasised the need to record reasons, witness presence and adherence to statutory safeguards when exigent searches are done). Where statutory recording is required by BNSS, higher courts are increasingly treating the requirement as mandatory and relevant to admissibility. 

How courts are treating non-compliance — trends & examples : 

Non-recording → evidence weakened or excluded: Trial Courts / High Courts have in multiple matters (including NDPS cases) held that failure to record seizures as per BNSS undermines prosecution’s best evidence and has resulted in acquittals or orders to re-open factual findings.

Where recording exists but poorly handled: Courts have ordered forensic preservation, directed that video be played in court, and required witness-by-witness explanation to remove ambiguity. In some instances appellate courts have ordered retrial or re-examination where the video was not properly adduced at trial.

Magistrate role: Courts treat the magistrate’s receipt of the forwarded recording as an important safeguard — a magistrate who receives contemporaneous recording holds material that controls later disputes about tampering or authenticity.

Practical drafting & litigation tips for defence counsel : 

On arrest / custody / search — file immediate applications to preserve recordings and to direct the police to forward copies to the magistrate (if not done) and to produce originals. Seek preservation orders under the court’s inherent powers.

Challenge chain of custody — obtain full seizure mahazar, seizure memo, panchnama, names & addresses of independent witnesses, and ask for metadata for the audio-video file to test authenticity.

If no recording exists — move to exclude evidence seized in that operation or argue for acquittal where the seizure was the core of the prosecution’s case (support with recent high court rulings where lack of recording led to exclusion).

If recording exists but not produced at trial — insist the court play the original recording in court, call forensic experts to establish continuity and check for editing, and cross-examine investigating officers on why forwarding requirement was not complied with.

Use BSA principles — rely on BSA doctrines (authentication, best evidence, relevance) to attack the prosecution’s inability to prove the provenance of seized items without the statutorily-mandated recording.

Practical tips for police / prosecution compliance (to avoid evidence being excluded) : 

Ensure every search/seizure (including searches of accused in custody) is audio-video recorded end-to-end on a functioning device; prepare and sign the seizure list in front of witnesses while recording continues; forward the recording without delay to the magistrate and obtain/make note of forwarding receipts.

Conclusion : 

BNSS Sec 105 and 185 transform search/seizure law by making audio-video recording and magistrate notification mandatory safeguards. For searches of an accused while in custody, compliance is not a mere technicality: courts (including the Kerala High Court) have treated compliance as central to the prosecution’s case. BSA’s evidence rules further empower defence challenges where BNSS procedures are not followed. Defence counsel should attack seizures lacking statutory recording; prosecutors and investigators must adopt stringent recording, forwarding and preservation practices to keep evidence admissible.

Confession to a police officer — Proviso to Section 23, Bharatiya Sakshya Adhiniyam (BSA) 2023

Confession to a police officer — Proviso to Section 23, Bharatiya Sakshya Adhiniyam (BSA) 2023

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(By Advocate Salil Kumar P.,Kozhikode, Ph : 8075113965)

Introduction — what the proviso says and why it matters ?

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) continues the long-standing rule that confessions made to police officers are not to be proved against an accused. The BSA preserves the legislative caution that confessions under police influence are unreliable and prone to coercion; but, as before under the Indian Evidence Act, there exists an exception (the proviso equivalent of old Section 27 IEA) that admits so much of the accused’s information as distinctly relates to a fact thereby discovered. The practical result: pure confessions to police remain inadmissible, but disclosure statements which lead to discovery of facts or objects may — to a limited and strictly defined extent — be proved in evidence.

Textual position :

BSA  Sec 23(1) — “No confession made to a police officer shall be proved as against a person accused of any offence.”

The proviso (the BSA counterpart of IEA  Sec 27) permits proof of that portion of information given by an accused in police custody which relates distinctly to the fact discovered (place/object/knowledge) — but no more.

The legal test — circumstances in which the proviso admits evidence :

Supreme Court jurisprudence has repeatedly framed the admissibility under the proviso in narrow, tripartite terms. The prosecution must prove, on the basis of reliable evidence, each of the following ingredients:

Custody / source: the information must have been given by the person when he was in the custody of a police officer (i.e., the proviso historically applies where the accused is in police custody.

Causal link to discovery: the information must have led to the discovery of a fact — for example, the place where an object was hidden or the thing recovered. The discovery must be a direct consequence of the information.

Distinct relation / limited extent: only so much of the information as “relates distinctly” to the discovered fact is admissible. The admissible portion must be proved (recorded or shown by witness evidence) and must not be used to import the rest of the confession or inculpatory narrative. The proviso is strictly one of limited admissibility.

These three elements are repeatedly emphasized by the Supreme Court as the constitutional/legal safeguard that prevents the proviso swallowing the bar against police confessions.

Important Supreme Court decisions  :

Below are the principal Supreme Court decisions that shape the interpretation of the proviso (IEA  Sec 27 → BSA Sec 23 proviso). Each entry gives the legal point most often applied.

1. Delhi Administration v. Bal Krishan & Ors., (1972) 4 SCC 659 — clarified that the proviso to Section 27 is an exception to the general ban and must be read narrowly; only information that distinctly relates to the fact discovered is admissible.

2. Udai Bhan v. State of U.P., AIR 1962 SC 1116 — explained that “discovery of a fact” includes the object found, the place from which it was produced and the accused’s knowledge of its existence; but the information admitted must be the precise information that led to the discovery.

3. Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828 — emphasised that the admissible material is limited to that which has a direct nexus with the discovery and cannot be expanded to import more of the accused’s statement.

4. Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45 — reaffirmed the “distinct relation” principle and warned against using Section-27 statements to furnish general confessional content; the Court insisted that exact information recorded should be produced and proved.

Recent Supreme Court clarifications (2024–2025) — the Court has reiterated that (a) recovery must be shown to be the direct outcome of the statement; (b) the portion relied upon must be proved (recorded statement or witness testimony); and (c) inadmissible parts of a statement (confessional material not directly relating to discovery) cannot be incorporated in evidence or chief examination to bolster the prosecution. Several recent SCC benches and reported judgments have emphasised the doctrine of confirmation by subsequent events but cautioned against treating recovery itself as ipso facto proof of guilt.

Important Kerala High Court decisions :

Kerala High Court has applied the same strict tests in several decisions — the common themes are (i) strict proof of the statement and of the recovery, (ii) requirement of independent corroboration, and (iii) rejection of reliance on ambiguous or incompletely proved disclosure statements.

1. Joseph v. State of Kerala (Kerala HC — reported positions, discussed in HC rulings) — the High Court has in earlier decisions (and subsequent citations) held that the words “discovery of fact” refer principally to the place and the object and that evidentiary reliance on a Section-27 style disclosure must be tested for directness and distinctness. (Kerala HC authority often cited in local benches on the contours of discovery evidence.)

2. Jithesh v. State of Kerala (Kerala HC, judgment PDF in HC archive, 2020) — the Court analysed recovery evidence and reiterated that proof of recovery at the instance of the accused must stand up to scrutiny; mechanical recitals in seizure memos prepared at the police station are insufficient unless eyewitnesses truly testify to the accused’s disclosure and the subsequent discovery.

3. Santhakumari v. State of Kerala (Kerala HC — June 2025) — the High Court reviewed recovery evidence and observed that where recoveries are not satisfactorily proved to be at the accused’s instance, the court must treat such recovery evidence with caution; incomplete proof may weaken the prosecution’s case and lead to acquittal or remand. (This and similar Kerala HC decisions illustrate the Court’s insistence on strict proof of the disclosure → discovery chain.)

Practical note from Kerala HC jurisprudence: when panch witnesses or seizure mahasser  are prepared at the police station and those witnesses admit signing documents without reading or that the seizure memos were prepared away from the spot, Kerala benches have often treated the recovery evidence as suspect unless corroborated.

When courts have refused to apply the proviso — giving the accused the benefit of doubt

Courts will refuse to admit or rely upon the disclosure/recovery evidence under the proviso (and consequently give the accused benefit of doubt) in the following recurring situations:

Failure to prove the exact information: where the prosecution does not produce the exact words/information given by the accused (or fails to call the panch witnesses who were allegedly present), courts have held the retrieval not proved under the proviso. The Supreme Court has insisted that the exact information must be proved — not a paraphrase by investigating officers.

Absence or unreliability of panch witnesses: if the panch witnesses do not corroborate that the disclosure was made in their presence, or they concede they signed documents at police prompting, courts treat the recovery as doubtful. Kerala HC decisions (and recent SC pronouncements) have set aside recoveries when panch evidence is weak.

Discovery not distinctly linked to the information: Courts have rejected attempts to import confessional content by contending the discovery “flowed” from the statement when, in truth, the link is tenuous or the admitted portion does not distinctly relate to the object/place. The Supreme Court has repeatedly said that only that portion which distinctly relates to the fact discovered is admissible — nothing more. Where the prosecution tries to use the admitted portion to fill gaps in proof of guilt, courts have refused and given the accused the benefit of doubt.

Recovery shown to be fabricated or afterthought: in several Supreme Court and Kerala HC rulings, when recovery memos or seizure documents appeared fabricated or prepared later at the police station, judges have doubted the genuineness of the disclosure → recovery chain and accordingly set aside convictions or acquittals. (See example: Boby v. State of Kerala — higher court analysis that trial and High Court reliance on alleged recovery was erroneous where record showed fabrication/doubt.)

Practical checklist for litigators (how to attack / defend disclosure evidence under BSA §23 proviso)

For defence counsel (to attack prosecution reliance):

Demand proof of the exact information given by the accused (call for the memorandum; test panch witnesses).

Test whether recovery memos were prepared on the spot or later in the station; cross-examine panches about signatures, reading of memos and presence at the discovery.

Show absence of independent corroboration tying the accused to the discovered fact (place, object, or knowledge).

For prosecution (to shore up reliance):

Record and produce the exact disclosure and the witnesses who saw the disclosure and the subsequent discovery.

Ensure seizure memos are prepared at the spot, with clear signatures and contemporaneous entries; produce witnesses who can testify to the chain from disclosure to discovery.

Short conclusion (normative and doctrinal)

The BSA §23 proviso preserves the narrow, protective exception that the old IEA §27 embodied — limited, careful admissibility of only those words/information which distinctly caused discovery of a fact. The Supreme Court and Kerala High Court jurisprudence together insist that the proviso be applied cautiously: the prosecution must strictly prove the custody-statement-to-discovery chain and nothing more. Failure to do so frequently leads courts to exclude the evidence and to give the accused the benefit of doubt.

Selected key authorities :

1. Supreme Court cases :

Delhi Admn. v. Bal Krishan & Ors., (1972) 4 SCC 659.

Udai Bhan v. State of U.P., AIR 1962 SC 1116.

Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828.

Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45.

Recent Supreme Court judgments clarifying limits to Section 27 (discovery/confession) — e.g. Crl. Appeal No.70 of 2025 (judgment discussing the threefold test and confirming narrow scope).

2. Kerala High Court cases :

Joseph v. State of Kerala, (Kerala HC — decisions discussing scope of “discovery of fact” and proof required).

Jithesh v. State of Kerala (Kerala HC — judgment analysing recovery evidence and requirements of witnesses/seizure memos).

Santhakumari v. State of Kerala, Kerala HC (June 2025) — recent HC decision underscoring caution when recoveries are not satisfactorily proved.

Supreme Court Verdict on the Role of Governor in State Legislature

 Supreme Court Verdict on the Role of the Governor in State Legislature.

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By :  Advocate SALIL KUMAR.P, Kozhikode, Ph : 8075113965

Introduction :

The constitutional scheme of India envisages for each State a Legislature comprising the Governor and the House or Houses of the Legislature. Under Article 200 of the Constitution, when a Bill passed by the State legislature is presented to the Governor, he has certain options: assent, withhold assent, reserve it for the President’s consideration, or return it (in the case of non-Money Bills) for reconsideration by the legislature. Similarly, under Article 201, when a Bill is reserved for the President’s consideration, the President may assent, withhold assent, or address it in the manner provided.

Recently the President of India, in exercise of the advisory jurisdiction under Article 143(1) of the Constitution, referred fourteen (14) questions to the Supreme Court relating to the interpretation of Articles 200 and 201, including whether the Governor/President could be subjected to judicially‐imposed timelines, whether so-called “deemed assent” applies, and whether the discretionary function is justiciable. The SC has now given its opinion.

The verdict is important for federalism, for the role of the Governor in state legislative process, and for the interface between executive discretion and judicial review.

Brief of the Verdict :

Here is a brief summary of the key findings of the Court:

The reference was made under Article 143(1) of the Constitution: on 13 May 2025 the President referred 14 questions to the Supreme Court concerning Articles 200 and 201.

On Article 200 (Governor and State Bills):

The Court clarifies that when a Bill is presented to the Governor under Article 200, the Governor has three constitutionally permissible options (not four): (i) assent; (ii) withhold assent (and in that event return the Bill to the Legislature for reconsideration, except for Money Bills); (iii) reserve the Bill for the President’s consideration.

The first provision to Article 200, which requires the Governor to return a Bill (except a Money Bill) if he withholds assent, is not a fourth option, but a qualification/limitation of the “withhold assent” option.

The Governor is not entirely bound by the aid and advice of the Council of Ministers when exercising his functions under Article 200. While the general rule under Article 163 is that the Governor acts on aid and advice, the Court emphasised that where Article 200 gives him an option (e.g., reserving for President) he exercises discretion.

The Governor cannot simply hold on to a Bill indefinitely or adopt a “pocket veto”. Prolonged and unexplained inaction is susceptible to judicial scrutiny: the Court may issue a limited mandamus directing him to act within a reasonable period without examining the merits of his decision.

On Article 201 (President’s assent to state reserved Bills):

The President’s functions under Article 201 are not amenable to merits review; i.e., courts cannot revisit the wisdom of the President’s decision.

The Court held that in the absence of a constitutional time-frame, the Court cannot impose timelines on the President for acting under Article 201, just as it cannot for the Governor under Art 200. 

On timelines & “deemed assent” : 

The Constitution uses the phrase “as soon as possible” in the first provision of Article 200 (return of Bill). The absence of any time limit in the text means that the Court cannot itself prescribe rigid timelines for the Governor or President to act.

The concept of “deemed assent” (i.e., the Bill becoming law by operation of time) is alien to Articles 200 & 201; the Court rejected the idea that the law comes into force without the Governor's assent.

On justiciability & Article 361 : 

Although Article 361 grants personal immunity to the Governor and President from answerability in court for their acts in official capacity, it does not render their offices wholly immune from judicial scrutiny when there is prolonged inaction or mala fides. The Governor’s/President’s functions under Articles 200/201 are not entirely beyond review.

On federalism & Legislature-Executive dialogue : 

The Court emphasised that the role of the Governor in the legislative process must function within the federal scheme and cooperative federalism: the Governor cannot undermine the State Legislature’s autonomy by unreasonably withholding assent or reserving Bills for the President without good reasoning.

On previously laid down judgments : 

The Court noted that it was giving advisory opinion under Article 143, and not sitting in appeal over previous judgments. Thus, existing precedents remain in force unless specifically overruled.

Articles 200 & 201 – Text, Scope and Interpretation : 

Article 200

Article 200 of the Constitution (Chapter III of Part VI: “The State Legislature”) states:

“When a Bill (other than a Money Bill) is passed by the Legislature of a State, the Governor shall declare either that he assents to the Bill, or that he withholds assent thereto, or that he reserves the Bill for the consideration of the President. … Provided that in the case of a Bill which has been passed by the Legislature of the State after reconsideration in the Legislature in accordance with the message of the Governor under this article, the Governor shall not withhold assent thereto.” (emphasis supplied)

Second proviso: “… whenever it appears to the Governor that the Bill — (i) would, if it became law, so derogate from the powers of the High Court as to endanger the position of that Court; or (ii) is one which the Governor is required to reserve for the consideration of the President under sub-clause (ii) of clause (a) of article 254 … he shall reserve the Bill for the consideration of the President.”

Key points of interpretation from the Court:

The verbs “assents”, “withholds assent” and “reserves” respectively mark the three distinct options.

The first proviso (which uses the phrase “the Governor shall not withhold assent…”) is not creating a separate “fourth” option; it mandates that if the legislature has reconsidered a Bill following the Governor’s message, then the Governor must give assent (i.e., cannot again withhold).

The second proviso delineates a situation where the Governor must reserve the Bill for the President when it “would … derogate from the powers of the High Court”. That is an instance where discretion is explicitly contemplated.

Scientific Affairs

The phrase “as soon as possible” in the first proviso requires promptness, but not a fixed timetable enforceable by the text.

Article 201

Article 201 provides:

“When the President has, by proclamation under clause (1) of article 356, or clause (1) of article 365, assumed to himself the functions of the Legislature of a State, then any Bill reserved for the consideration of the President under clause (a) of article 200 … the President may assent to the Bill, withhold assent thereto, or remit the Bill to the Legislature of the State for reconsideration. …”

Key interpretative points:

The President’s options are similarly limited; there is no express time-limit for the President’s decision.

The Court held that the President is not required to refer each reserved Bill to the Supreme Court under Article 143; only in exceptional or unclear cases may such a reference be made.

Precedents and Historical Context : 

Historical background

Under the Government of India Act, 1935, certain residuary and discretionary powers were vested in the Governor (and earlier the Governor-General) in colonial times. The framers of the Indian Constitution aimed to adapt and modulate these powers in the democratic federal scheme. The design of Article 200 reflects this transition from a colonial model to one where the Governor acts largely on ministerial aid and advice, except in specified situations.

The principle of cooperative federalism under the Indian Constitution emphasises that State Legislatures are not subordinate to the Governor in the exercise of ordinary legislative power. The Governor is part of the legislature, but is the nominal head, and must act within the constitutional framework.

Key judicial precedents : ,

Samsher Singh v. State of Punjab (1974) 2 SCC 831: A seven-judge bench held that the phrase “in his discretion” is omitted in Article 200 (unlike Section 75 of the 1935 Act) and therefore the Governor’s power is not wholly unfettered but must be exercised in accordance with the Constitution. One of the few exceptions where discretionary power to reserve for the President is explicitly allowed (derogation of High Court).

of assent; fixed timelines were laid down in that decision (though this later referral has modified the timelines’ enforceability).

These precedents help frame the context in which the recent reference was decided.

Detailed Analysis of the Court’s Findings

Constitutional Options of the Governor under Article 200

The Court noted that three options stand out: assent, withhold (with return), or reserve for President. The first provision ensures that if the Bill is re-passed following the Governor’s message, assent must be given. The Court stressed that allowing the Governor to simply withhold assent indefinitely—without returning the Bill—would conflict with the federal structure and the role of the Legislature.

It emphasised that the Governor must adopt a “dialogic process” with the legislature: if he withholds assent, he must send a message with his reasons, and the legislature must reconsider. This reflects cooperative federalism.

Discretion vs. Aid & Advice : 

Ordinarily, under Article 163(1), the Governor shall act on the aid and advice of the Council of Ministers. However, for Article 200, the Court held that the Governor enjoys a limited discretion when choosing among the options provided. The Court reasoned that if the Governor were strictly bound by the advice of the Ministers, then returning a Bill (which the Ministers themselves passed) would never happen. Hence the constitutional text (first & second provisos) implies discretion.

Nevertheless, that discretion is not unlimited. The Court underlined that the exceptions where the Governor acts independently are limited to the situations explicitly contemplated by Article 200 (for e.g., bills derogating from High Court powers) or other constitutional exceptions.

Timelines, Deemed Assent & Inaction : 

A major issue was whether the Court can prescribe timelines for the Governor/President to act. The Court said the Constitution does not prescribe any fixed timeframe for the Governor under Article 200 (except the phrase “as soon as possible” in the proviso). Similarly, no timeline for the President under Article 201. Consequently the Court held it would not be appropriate for the judiciary to unilaterally impose deadlines or a concept of “deemed assent”.

However, the Court held that prolonged, unexplained inaction by a Governor may lead to judicial intervention by way of limited mandamus — the Court may direct the Governor to act, but not decide what decision should be taken.

On “deemed assent”, the Court clarified that there is no room for a Bill to become law without the Governor’s (or President’s) assent under Articles 200/201; such a reading would undermine the constitutional scheme.

Justiciability & Article 361 : 

The Court reaffirmed that the merits of the Governor’s (or President’s) decision under Articles 200/201 are not subject to judicial review in terms of “was this the correct decision?” However, the Court held that the decision (or inaction) is justiciable in the narrow sense if there is prolonged, unexplained delay or mala fides. Article 361 protects the Governor’s personal immunity, but it does not give an absolute immunity to his office in the constitutional scheme.

Role of the President under Article 201 & Advisory Jurisdiction : 

The Court clarified that when a Bill is reserved for the President under Article 201, the President has the options mentioned; decisions by the President are likewise not subject to merits review. The President cannot be required to refer an issue to the SC under Article 143 every time; his subjective satisfaction is sufficient.

On the Court’s own role, it emphasised that in handling a Presidential Reference under Article 143, it is acting in an advisory capacity and not as an appellate body revisiting or overruling prior decisions.

Federalism and Dialogue : 

The Court emphasised that the Governor is not a mere “rubber stamp” but must act in good faith within the constitutional scheme. Simultaneously, the Governor cannot become a “road‐block” for legislation passed by the State Legislature; tranquillity in the legislative process is essential for federalism. The dialogic process between Governor and legislature is therefore central.

Implications & Key Take-aways : 

Governor’s discretion is real but constrained – The Governor can choose between the three options under Article 200, but cannot withhold assent indefinitely without returning the Bill for reconsideration (except in case of Money Bills).

No absolute veto/pocket veto – The verdict effectively prohibits a “pocket veto” where a Governor neither gives assent nor returns the Bill, leaving it in limbo.

No fixed judicially-imposed timelines – While the Court declines to set rigid timelines, it leaves open that in unusual circumstances it may issue a mandamus if the Governor sits endlessly on the Bill.

Role of President remains largely unchanged – Under Article 201, the President’s discretion survives; decisions are not subject to merits review.

Federal balance upheld – The legislature’s supremacy in its domain is reaffirmed; the Governor’s role must align with cooperative federalism and not undermine state autonomy.

Room for litigation remains – If a Governor acts arbitrarily, mala fide, or delays without explanation, the Courts may step in. This provides a check on the executive.

No “deemed assent” – A Bill will not become law merely by passage of time; the Governor’s assent remains constitutionally essential.

For State governments and advocates – This decision encourages State Legislatures to engage proactively with the Governor and avoid protracted stalemate; from a litigation standpoint, advice that delay by the Governor can be challenged, but merits of his decision cannot (save limited exceptions).

Citations of Key Questions Answered : 

Below are some of the questions (from the Presidential Reference) and how the Court answered them:

Q1: “What are the constitutional options before a Governor when a Bill is presented under Article 200?”

Answer: Assent; Withhold (and return) except in Money Bills; Reserve for President.

Live Law

Q2: “Is the Governor bound by the aid & advice of the Council of Ministers while exercising all the options under Article 200?”

Answer: Normally yes, but in the specific domain of Article 200 the Governor exercises limited discretion; he is not bound in the sense that he cannot act beyond advice if the text allows him a distinct power.

Q3: “Is the exercise of constitutional discretion by the Governor under Article 200 justiciable?”

Answer: The merits are not justiciable, but in case of prolonged, unexplained inaction (or mala fides) the function is justiciable to the extent of directing the Governor to act within reasonable time.

Q5: “In the absence of a constitutionally prescribed timeline, can timelines be imposed through judicial orders for the Governor under Article 200?”

Answer: No, rigid timelines cannot be judicially imposed, but inaction can invite limited remedy.

Q10: “Can the exercise of constitutional powers under Articles 200/201 be substituted under Article 142 of the Constitution?”

Answer: No; the Court held that it cannot use Article 142 to impose deemed assent or override constitutional scheme for assent.

Impact on Kerala & Practical Considerations : 

State government bills in Kerala passed by the Legislative Assembly when submitted to the Governor must be dealt with within a reasonable time; prolonged inaction by the Governor may now be challenged.

The Governor’s office must maintain a proper record of reasons where it withholds assent or reserves a Bill, to justify its exercise of discretion.

From the perspective of constitutional litigation in Kerala, the Court has made clear the remedy is not to challenge the merits of the Governor’s decision (except in narrow cases), but to challenge inaction.

For State legislative counsel, the decision emphasises the importance of engaging in a healthy “dialogue” with the Governor’s secretariat once a Bill is passed; returning a Bill under the first proviso is part of the process, not an adversarial act.

The decision also sends a signal to political actors: a Governor cannot indefinitely delay assent as a political tool without risking judicial oversight.

Conclusion

The Supreme Court’s advisory opinion offers clarity on the constitutional role of the Governor (and by extension the President) in the assent-to-Bills process under Articles 200 and 201. It balances the Governor’s discretion with the doctrine of cooperative federalism and emphasises legislative primacy at the State level. While avoiding fixed timelines, the Court preserves judicial oversight over unreasonable delays and reinforces that the legislative process cannot be stymied by executive inaction.

For practitioners and scholars alike, this decision provides a refined roadmap: the Governor must act, the legislature must engage, the judiciary must ensure that the process moves—but none of the three can assume absolute dominance.

CENSORSHIP OF THE FILM "HAAL" AND LEGAL ISSUES

CENSORSHIP OF THE FILM "HAAL" AND LEGAL ISSUES 

BY :

SALIL KUMAR.P

ADVOCATE

KOZHIKODE -673001

Cinematograph Act, 1952, Section 5B of the Act lays down “principles for guidance in certifying films”:

“(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.” .

Thus the statutory regime explicitly recognises that films may be restricted on grounds of decency or morality, public order, incitement to offence, etc.

The Act further empowers the certifying authorities (via the Central Board of Film Certification or regional boards) to require excisions/modifications before certification (see Sections 5B(2) and 5C). 

Constitution of India — Articles 19(1)(a) and 19(2)

Article 19(1)(a) guarantees the freedom of speech and expression.

Article 19(2) provides that this right is subject to reasonable restrictions in the interests of, inter alia, the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, or incitement to an offence.

Consequently, the legal regime for film‐certification must align with these constitutional bounds. The KHC in the Haal matter referred to exactly this interplay: restrictions must fall under the grounds enumerated in Article 19(2).

Test of “incitement to violence or offence”

A subset of the “public order” ground under Article 19(2) deals with materials which may incite violence, communal disharmony, hatred, etc. Indian jurisprudence has held that the state cannot suppress speech merely because some might react with violence (the “heckler’s veto” doctrine) — rather there must be a proximate connection between the speech and the danger of public order or offence. See e.g. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574. 

Standard of decency/morality/obscenity

In the context of content alleged to be indecent or immoral, Indian courts have developed tests for obscenity, sex, indecency etc. One key standard is laid down in Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257 — the Supreme Court rejected the old Hicklin test of obscenity and adopted a “community standards” test, i.e., the test of what would be acceptable to an average person rather than to a hypersensitive minority. 

Application in the Haal case and relevant jurisprudence

Facts as reported

In the Haal matter, the KHC (Justice V. G. Arun) observed that a scene depicting a Christian girl wearing a Muslim attire (burqa/abayah) in a dance sequence “cannot be termed as indecent, immoral or capable of inciting violence.”

The film makers challenged the excisions / modifications suggested by CBFC. The KHC set aside many of the CBFC’s modifications, noting that the board had approached the film through an overly cautious lens and not as an ordinary viewer would. The Indian Express+1

KHC’s reasoning

The KHC emphasised that the state’s power to restrict the film’s exhibition is confined to the grounds under Article 19(2) (decency/morality/public order etc). The Indian Express+1

The court said that the impugned sequence in Haal did not cross the threshold of “incitement to violence or offence,” nor did it amount to indecency or immorality when viewed in context.

The court further held that allegations of religious offence (Christian vs Muslim attire sequence) required a careful balancing of artistic freedom (Article 19(1)(a)) and the prescribed restrictions — and that mere possibility of causing offence to a small religious group is not sufficient to restrict the film.

The KHC pointed to established precedent that a film must be judged by “an ordinary prudent viewer” and not by an ultra-sensitive or hypersensitive standard. The Indian Express+1

Relevant precedents

K. A. Abbas v. Union of India (1970) 2 SCC 780

The Supreme Court recognised that films are a legitimate medium of expression under Article 19(1)(a). The certifying authority cannot act arbitrarily. The Act’s Section 5B criteria (as above) were explained. 

The Court held that film censorship should not be used merely to placate “oversensitive” sections of society.

Anand Patwardhan v. Union of India (2006) 8 SCC 433

Although a documentary, the Court held that freedom to convey perception through film is protected and the state cannot deny exhibition merely because some sections may find it objectionable. 

It emphasised the need to evaluate the film in its entirety, and whether it has redeeming social/artistic value.

Aveek Sarkar v. State of West Bengal (2014)

As noted above, the Court clarified that sex, nudity or depiction of attire per se does not make content obscene or indecent. Judgment emphasises contemporary community standards, context, and effect on viewer. Law Web

Ramesh S/O Chotalal Dalal v. Union of India (1988) 2 SCC 217

Dealing with film certification, the Supreme Court held that mere possibility of demonstration or violence cannot be ground for prior restraint unless there is a clear and present danger to public order. Utkal University

How the present observation aligns

The Haal decision mirrors the principle that mere depiction of a Christian girl in Muslim attire does not automatically equate to indecency, immorality or incitement. The KHC rightly directs that the scene must be evaluated in context, in entirety, and from the viewpoint of an ordinary viewer.

The court’s approach is undoubtedly consistent with the precedents: artistic freedom is protected; restrictions must fall within Article 19(2) grounds; the effect on public order must be proximate; decency/morality standards cannot be governed by hypersensitivity.

The decision underscores the balancing act between the certifying authority and the right to free expression of filmmakers. The KHC has reminded CBFC that the test is not whether some might be offended, but whether the film transgresses statutory/constitutional thresholds of decency, morality or incitement.

Points to watch / implications for practice

For filmmakers (and counsel advising them): The Haal ruling reinforces that certification challenges can succeed if the objections raised by CBFC are not grounded in one of the enumerated Article 19(2) grounds or if the effect is speculative. The “ordinary viewer” standard is key.

For certifying authorities: The decision is a caution against over-sensitive application of guidelines. The authority must articulate the specific ground (e.g., incitement to violence, threat to public order, gross obscenity beyond community standards) rather than generic moral disapproval.

For litigators: This case may be cited in future film certification disputes in Kerala (and possibly elsewhere) to argue that dress, attire attempts or depiction of cross-clothing, or scenes involving religious minorities, do not per se warrant cuts unless there is substantive evidence of harm or offence per the statutory/constitutional test.

For screening policy: The KHC’s remark that CBFC had not viewed the film from the vantage point of an ordinary person but rather of an “oversensitive” respondent is instructive — in future certification decisions, the spectator standard may become more explicitly articulated in affidavits/objections.

For religion/communal sensitivity concerns: While films dealing with religious or inter-faith themes often trigger objections, the ruling emphasises that the existence of sensitivity alone does not permit pre-emptive censorship — the key question remains whether the film threatens public order or transgresses decency/morality standards in a way recognised by law.

Conclusion

The Kerala High Court’s observation in the Haal case is grounded in a sound legal framework: statutory provision (Cinematograph Act 1952: Section 5B), constitutional protections (Articles 19(1)(a) & 19(2)), and established Supreme Court jurisprudence (e.g., K.A. Abbas, Anand Patwardhan, Aveek Sarkar). The court has reaffirmed that artistic freedom includes the right to depict cross-cultural attire/dance sequences and that censorship must withstand the rigorous test of whether it is justified under the enumerated grounds — not whether it merely causes discomfort to some segment of society.

A man (trans man),s Right to seek permission to cryopreserve his eggs and the verdict ?

 

A man (trans man),s  Right to seek permission to cryopreserve his eggs and the verdict ?

1. Facts & statutory background

Facts

In the case titled Hari Devageeth v. Union of India (WP(C) No. 5306/2025), a 28-year-old individual, assigned female at birth and self-identifying as a man (trans man), has petitioned the Kerala High Court seeking permission to cryopreserve his eggs before undergoing gender-affirming surgery. According to the news report, the petitioner has already undergone breast removal in 2023 but not yet full sex reassignment. He argues that transgender men can become pregnant and thus preservation of eggs is part of his reproductive autonomy. 

The Union Government (via counter-affidavit) takes the position that the ART Act only permits assisted reproductive technology services for (i) a “commissioning couple” (defined in the Act as a married man and woman) or (ii) a single woman; and explicitly does not extend eligibility to single men, transgender persons, or trans men seeking cryopreservation. The affidavit also points out that once the petitioner undergoes hysterectomy/ovary removal, he cannot personally use the cryopreserved eggs, and that the alternate avenue (surrogacy) is also statutorily barred to transgender persons under the Surrogacy ( Regulation) Act, 2021. The government emphasises that Parliament, via the Standing Committee report, consciously excluded transgender and LGBTQIA+ persons after deliberations, citing child- welfare, Indian social structure and parentage issues.

Statutory framework – ART Act, 2021

Key provisions of the ART Act relevant to the issue include:

The Act regulates assisted reproductive technologies (ART) clinics and banks.

“Commissioning couple” is defined under Section 2(1)(j) as “a legally married man and woman” who intend to have a child through ART, or “a woman who intends to have a child by using her gamete and the gamete of the man who intends to be the father of the child and where such woman is living as wife of that man”.

Single woman (i.e., a woman alone) is eligible under the Act.

The Act does not expressly mention transgender persons or trans men as a separate category of eligible commissioning entity.

The Act requires registration of clinics, traceability of gametes/embryos, safeguards for child welfare, counselling, informed consent, etc.

Cryopreservation of oocytes/gametes is covered as part of services offered by ART banks/clinics under the Act.

Thus, on its face, the statutory scheme contemplates two classes only: married heterosexual couples, and single women. Trans men or transgender persons are not referenced. The government’s position is that the legislative exclusion is deliberate. The petition raises constitutional challenges.

2. Legal issues posed

The petition throws up multiple intersectional issues:

Right to reproductive autonomy: Does the petitioner’s right to preserve his eggs before gender-affirming surgery flow from the fundamental right to life and personal liberty (Article 21) and right to health (Article 21) under the Constitution of India? If so, can the state deny such preservation on the basis of legislative exclusion?

Equality and non-discrimination (Article 14 and Article 15): Does the exclusion of transgender persons or trans men from eligibility under the ART Act amount to discrimination on the basis of gender identity or sex? Are transgender persons a “protected class” under Article 15?

Statutory interpretation of the ART Act: Does the wording of the Act permit interpretation to include transgender persons (especially trans men), or is the legislative exclusion explicit (or implied)? How should the definition of “commissioning couple” or “single woman” be interpreted in light of the law on transgender rights?

Parentage, welfare of child and policy considerations: What are the welfare considerations stated by the government (child welfare, Indian social structure, legal parentage issues)? How have courts treated such policy arguments when constitutional rights are engaged?

Intersection with the Transgender Persons (Protection of Rights) Act, 2019 (TPA 2019): Does the TPA 2019 and its rules (2020) obligate the state to ensure non-discrimination and equal access to healthcare, including reproductive healthcare, for transgender persons? Is denial of ART services a contravention of the protections under TPA 2019?

Precedential landscape: What do the past judgments of the Supreme Court and High Courts say about transgender rights (especially parenthood, ART access) and reproductive technology laws (if any)? How do they guide the KHC?

Thus, the legal stakes are high: access to reproductive technology, identity rights, gender justice, statutory interpretation, and constitutional safeguards all converge.

3. Government’s stand & the Kerala High Court’s intervention

Government’s stand

The Union Government, through its affidavit, asserts that Parliament after expert deliberations deliberately restricted eligibility under the ART Act to “commissioning couple” (married man and woman) and single women. The exclusion of transgender persons and single men (including trans men) is deliberate. Live Law

The government further contends the petitioner’s locus is doubtful, noting his gender identity card records “male” (and not transgender). Live Law

It argues that if the petitioner undergoes hysterectomy/ovary removal he cannot personally use the cryopreserved gametes; and in any case trans persons are precluded from surrogacy under the Surrogacy Act. Live Law

The government treats the question of extending ART services to transgender persons as a policy matter best left to Parliament/experts rather than courts interfering. Live Law

It invokes the 2018 decision of Navtej Singh Jhajj v. Union of India and companion LGBTQ-rights cases (via the “Supriyo” reference) to buttress that the right to marriage/adoption for queer couples is not yet available, and thereby supports exclusion of trans persons in ART and surrogacy. Live Law

Kerala High Court’s involvement

The KHC has admitted the petition (WP(C) No. 5306/2025) and will now examine the constitutional claim and statutory interpretation issue raised by the petitioner. The High Court now has to consider whether the petitioner is entitled to access egg cryopreservation under the ART Act despite the government’s stand. The reported news piece does not yet indicate final judgment, but raises deep questions. Live Law

Of immediate importance: the High Court will need to weigh legislative exclusion against fundamental rights and interpret the ART Act in light of the Transgender Persons (Protection of Rights) Act, 2019 (“TPA 2019”). The court will also assess whether exclusion of transgender persons rationally relates to legitimate state aim (child welfare, parentage) or is unconstitutional discrimination.

4. Relevant jurisprudence

Here are key judgments and legal authorities which will likely inform the High Court’s analysis:

Transgender rights and constitutional equality

National Legal Services Authority v. Union of India (2014) 5 SCC 438: A landmark ruling recognising that transgender persons have the right to self-identify their gender; discrimination on the basis of gender identity violates Articles 14, 15, 19 and 21. The Court held that transgender persons are socially and educationally backward and entitled to reservation and affirmative action.

Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India (2017) 10 SCC 1: Right to privacy is a fundamental right, which extends to gender identity, sexual orientation and personal autonomy (including decisions about one’s body).

Evidentiary Value of Circumstantial Evidence in Murder Trials: A Comparative Study under the Bharatiya Sakshya Adhiniyam, 2023 and the Indian Evidence Act, 1872

Evidentiary Value of Circumstantial Evidence in Murder Trials: A Comparative Study under the Bharatiya Sakshya Adhiniyam, 2023 and the Indian Evidence Act, 1872

By :

SALIL KUMAR.P

ADVOCATE

E. No. K/136/1999

KOZHIKODE-673001

Abstract

Circumstantial evidence has always played a decisive role in murder trials in India. While direct eyewitness testimony is often unavailable, courts have repeatedly held that a conviction can rest solely on circumstantial evidence — but only if the circumstances form a complete, unbroken chain pointing unmistakably to the guilt of the accused. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) retains the foundational principles established under the Indian Evidence Act, 1872 but codifies them with clearer structure and statutory coherence. This article analyses the evidentiary standards governing circumstantial evidence in murder cases, compares the old and new statutory frameworks, and examines key Supreme Court and Kerala High Court precedents. It emphasizes the cardinal rule: if any link in the chain of circumstances is broken, the benefit must go to the accused, not the prosecution.

I. Introduction

Murder cases often unfold in secrecy, with no eyewitnesses and only indirect traces leading to the perpetrator. Courts therefore rely heavily on circumstantial evidence, which requires careful judicial scrutiny. Indian criminal jurisprudence has long recognised that circumstantial evidence can, in appropriate cases, be more reliable than direct testimony. However, because circumstantial evidence is inherently inferential, it is subject to stricter judicial safeguards.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) — which has replaced the Indian Evidence Act, 1872 — retains the doctrinal structure of relevancy and admissibility, while reorganising and modernizing certain provisions. The judicially developed principles on circumstantial evidence continue to operate fully under the BSA.

II. Circumstantial Evidence under the BSA 2023: Core Principles

The following judicially established principles are fully recognised under the BSA:

1. Indirect Proof

Circumstantial evidence is indirect; it does not directly prove guilt but allows the court to draw logical inferences from established facts.

2. Fully Established Facts

Every circumstance relied upon must be proven by the prosecution beyond reasonable doubt. Suspicion, however strong, cannot replace proof.

3. Inference of Guilt

The established facts must be consistent only with the hypothesis that the accused is guilty.

4. Complete Chain of Circumstances

The chain must be continuous, unbroken, and lead to one inevitable conclusion — that the accused and none else committed the offence.

5. Exclusion of Every Hypothesis of Innocence

If any reasonable theory of innocence exists, the accused must be given the benefit of doubt.

6. Sole Basis for Conviction

Conviction can rest solely on circumstantial evidence, but only when all the above principles are satisfied.

These principles, developed under the Evidence Act through precedent, apply identically under the BSA because the concept and legal essence of circumstantial evidence is preserved.

III. Comparison: Indian Evidence Act, 1872 vs. BSA 2023

Issue Indian Evidence Act, 1872 Bharatiya Sakshya Adhiniyam, 2023 Effect on Circumstantial Evidence

Structure Fragmented, colonial-era drafting Modernized, reorganized Easier interpretation, but substance identical

Definition of Relevant Facts Sections 5–55 Chapter II (Relevancy of Facts) Continuity of principles

Conduct Sec. 8 Sec. 8 BSA Same relevance in forming links of chain

Motive, Preparation Sec. 8 Sec. 8 & 10 BSA Unchanged significance

Confessions Secs. 24–30 Secs. 21–27 BSA No substantive changes affecting circumstantial evidence

Facts forming part of same transaction Sec. 6 Sec. 6 BSA “Res gestae” remains key in creating the chain

Linking facts through digital evidence Not expressly structured Chapter on Electronic Evidence expanded Stronger clarity on digital circumstantial links

Burden of Proof Secs. 101–106 Secs. 103–109 BSA Substance preserved

Conclusion of Comparison

There is no dilution or expansion of the classical principles on circumstantial evidence in the BSA. Instead, the BSA preserves the principles while offering clearer categorization and enhanced provisions on electronic evidence, which has become crucial in modern murder cases.

IV. Supreme Court Jurisprudence on Circumstantial Evidence

1. Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116

This is the constitutionally foundational judgment laying down the five golden principles (“Panchsheel”) of circumstantial evidence:

Each circumstance must be firmly established

Circumstances must be consistent only with guilt

Circumstances must be of a conclusive nature

They must exclude every hypothesis except guilt

There must be a complete chain

These principles continue unchanged under the BSA.

2. Hanumant Govind Nargundkar v. State of M.P. (1952 SCR 1091)

The Court emphasised that inference cannot be drawn on mere suspicion. Facts must point “unerringly” to the accused.

3. Navaneethakrishnan v. State (2018) 16 SCC 161

The Court acquitted the accused because the prosecution relied on speculative links. The case reiterates that “missing links” cannot be bridged by conjectures.

4. Ramanand @ Nandlal v. State of Himachal Pradesh (2020) 13 SCC 166

The Supreme Court held that motive, last-seen theory, and recovery of weapon are not enough unless supported by an unbroken chain.

5. Jose alias Pappachan v. State of Kerala (2016) 10 SCC 519

The Court stressed the need for strong proof of each circumstance and acquitted because the chain was incomplete.

6. Pattu Rajan v. State of Tamil Nadu (2019) 6 SCC 620

Circumstantial evidence must be tested against constitutional standards of fairness and presumption of innocence.

V. Kerala High Court Decisions on Circumstantial Evidence

1. Beena v. State of Kerala, 2020 (Kerala HC)

The Court reiterated that unless the circumstances form a complete chain, conviction is not sustainable. The accused was acquitted because the scientific evidence did not conclusively connect him to the crime.

2. State of Kerala v. Rajendran, 2019

The High Court held that last-seen evidence must be corroborated with other circumstances; otherwise it is unsafe to convict.

3. Sivadasan v. State of Kerala, 2017

Recovery of the weapon under Section 27 (now Section 23 BSA) does not by itself complete the chain.

4. Moidu v. State of Kerala, 2015

The Court emphasized that motive alone cannot establish guilt in a circumstantial case.

5. Kasi v. State of Kerala, 2021

DNA and fingerprint evidence must satisfy chain-of-custody requirements; otherwise its evidentiary value collapses.

VI. Broken Chain of Circumstances: Benefit Must Go to the Accused

Both the Supreme Court and Kerala High Court have repeatedly held:

 If the chain of circumstances is incomplete or broken at any point, the accused is entitled to acquittal.

This principle flows from:

• The presumption of innocence

• The burden on prosecution to prove guilt beyond reasonable doubt

• Article 21 of the Constitution

• BSA Sections 103–109 (burden of proof framework)

Courts made it clear that any missing link cannot be filled by:

Moral conviction of the judge

Suspicion, conjecture, or surmise

Hostile witness inferences

Mere strong motive

Recovery of weapon unsupported by forensic proof

Thus, circumstantial evidence must pass a higher threshold: every link must be proven. A single broken link collapses the entire chain.

VII. Application of BSA 2023 in Modern Murder Trials

Under the BSA, modern circumstantial evidence increasingly includes:

• CCTV footage

• Call detail records

• IP logs and digital forensic trails

• GPS and mobile tower location

• Digital footprints (emails, chats, social media activity)

These fall under the reorganized sections on electronic records, but the standard of proof remains:

“A complete, coherent, and unbroken chain.”

If the digital chain is broken — such as poor chain-of-custody, missing timestamps, unverified metadata — the prosecution case collapses.

VIII. Conclusion

Circumstantial evidence continues to occupy a central role in murder trials in India. The Bharatiya Sakshya Adhiniyam, 2023 has not altered the substantive standards applied to such evidence; it has merely reorganized the statutory structure and strengthened digital evidence provisions. The judicially evolved principles — especially those in Sharad Birdhichand Sarda — remain constitutional cornerstones.

Ultimately, courts must guard against the risk of wrongful conviction. Therefore, the rule remains unshakeable:

If any link in the chain of circumstantial evidence is broken, the benefit must go to the accused — never to the prosecution.

This safeguard protects the presumption of innocence and ensures that convictions in circumstantial murder cases rest only on firm, unerring, and complete proof.