Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Production of Documents and Search under the BNSS, 2023: Chapter VII, Sections 94 to 110, Search Warrants, Section 103, and Audio-Video Recording under Section 105
Chapter VII of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with things rather than persons. Where Chapter VI compels a person to appear, Chapter VII compels a document or an article to be produced, and where production cannot be secured, authorises a search. Its seventeen sections run from section 94 to section 110, and two of them have no counterpart in the Code of Criminal Procedure, 1973: section 105, which requires every search and seizure to be recorded by audio-video electronic means, and section 107, which brings the attachment of the proceeds of crime into ordinary criminal procedure.
The chapter is where the criminal process meets the home. A search is the most intrusive thing the State routinely does to a person who has not been convicted of anything, and the safeguards in section 103 are the whole of the protection the statute provides. The constitutional standard that sits behind them is the right to privacy, which the Supreme Court has held to be a fundamental right protected by Article 21.
Figure 1: Chapter VII at a glance
1. Production Without a Search: Sections 94 and 95
Section 94 permits a Court to issue a summons, or an officer in charge of a police station to issue a written order, to a person in whose possession or power a document or thing is believed to be, requiring him to attend and produce it or merely to produce it, where production is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding.
The Sanhita has widened the subject-matter. Section 91 of the CrPC spoke of “any document or other thing”; section 94 adds, in terms, “electronic communication, including communication devices, which is likely to contain digital evidence”. A mobile phone, a laptop, a storage device or a server is therefore expressly within the section, and the test is the likelihood of containing digital evidence rather than any particular description of the device.
Three things are outside section 94 altogether, by sub-section (3): the privileged-communication provisions of the Bharatiya Sakshya Adhiniyam, 2023, which protect professional communications with a legal adviser; the Bankers’ Books Evidence Act, 1891; and anything in the custody of a postal authority. The last is governed by section 95, under which a District Magistrate, Chief Judicial Magistrate, Court of Session or High Court may require the postal authority to deliver a document, parcel or thing, and any other Magistrate, Commissioner or Superintendent of Police may require it to be detained pending the order of one of those authorities.
⚠ Section 94 cannot be used against an accused The Supreme Court has held that the section, on its true construction, does not apply to an accused person. A summons or written order requiring an accused to produce a document compels him to search out and hand over material against himself, which is a positive volitional act, and the section is not to be read as authorising it. The prosecution’s remedy where the material is in the possession of the accused is a search warrant under section 96, or the search powers in Chapter XIII. A search compels him to do nothing and therefore does not offend Article 20(3). The point has become more consequential with the extension of section 94 to communication devices. An order to an accused to hand over his phone is not authorised by the section; a warrant to search his premises and seize it is. |
2. The Search Warrants
Provision | Subject | Who may issue, and on what ground |
|---|---|---|
Section 96 | The general search warrant | Any Court, where it has reason to believe that a person to whom a summons under section 94 has been or might be addressed will not or would not produce; or where the thing is not known to be in the possession of any person; or where the Court considers that the purposes of the proceeding will be served by a general search or inspection. The Court may confine the warrant to a particular place or part. Only a District Magistrate or Chief Judicial Magistrate may grant one for anything in postal custody |
Section 97 | Search of a place suspected to contain stolen property | A District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, on information and after such inquiry as he thinks necessary, where he has reason to believe that a place is used for the deposit or sale of stolen property, or for the deposit, sale or production of objectionable articles such as counterfeit coin, forged documents, false seals, obscene objects and the instruments for making them. The warrant authorises the officer to enter, search, take possession, convey the articles before a Magistrate, and take into custody the persons found there |
Section 98 | Search for forfeited publications | Where the State Government declares by notification that every copy of a newspaper, book or document containing matter punishable under the specified sections of the Bharatiya Nyaya Sanhita is forfeited, any Magistrate may issue a warrant authorising a police officer not below the rank of Sub-Inspector to enter upon and search any premises where the copies may be or may be reasonably suspected to be |
Section 100 | Search for persons wrongfully confined | A District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, where he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. The person confined is to be immediately taken before a Magistrate, who makes such order as in the circumstances seems proper |
Section 101 | Restoration of an abducted woman or female child | On complaint on oath of the abduction or unlawful detention of a woman, or a female child below eighteen years, for an unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for immediate restoration to her husband, parent, guardian or other person having lawful charge, and may compel compliance by force |
Section 99 supplies the check on section 98. Any person having an interest in a newspaper, book or document declared forfeited may, within two months from the date of publication of the notification, apply to the High Court to set aside the declaration on the ground that the issue or document did not contain the matter alleged. The application is to be heard and determined by a Special Bench of the High Court composed of three Judges, or in a High Court consisting of fewer than three Judges, by all the Judges. A forfeiture of a publication is therefore not left to the executive to justify at its own convenience; it is testable in a superior court by a bench of unusual composition, and within a short period.
3. How a Search Must Be Conducted: Section 103
Figure 2: The six requirements of a lawful search
Section 103, BNSS 2023: the essentials (1) The person residing in or in charge of a closed place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress and afford all reasonable facilities for a search. (2) Where ingress into such place cannot be obtained, the officer may proceed in the manner provided by section 44 for effecting an arrest. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched; and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness, to attend and witness the search, and may issue an order in writing to them to do so. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared and signed by such witnesses. (6) The occupant of the place searched, or some person on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list signed by the witnesses shall be delivered to him. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy shall be delivered to him. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search when called upon by a written order commits an offence under the Bharatiya Nyaya Sanhita, 2023. |
3.1 Why the safeguards are structured as they are
- The witnesses must be independent and respectable inhabitants of the locality. Both adjectives do work. A witness brought along by the police, or an employee of the raiding party, is not independent, and a search witnessed only by such persons is open to the objection that the safeguard was formal. The requirement that they be of the locality exists so that they are persons known to the neighbourhood and capable of being traced and examined.
- Two or more. A single witness is not enough, and the requirement is for a minimum and not a maximum.
- The list records the places in which things were found, not merely what was seized. That is the material on which a later dispute about planting or about the location of an article is resolved.
- The occupant is permitted to attend and is given a copy. A search conducted in the absence of the occupant, with no copy of the list given to him, leaves him with no means of contesting what is later said to have been found.
- A woman is searched only by a woman, with strict regard to decency, and a separate list of what was taken from a person searched is given to him.
3.2 Section 105: recording the search
Section 105, BNSS 2023 Any search or seizure made under the provisions of this Chapter shall be recorded through any audio-video electronic means, preferably mobile phone, and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. |
The section has no counterpart in the CrPC and is among the most consequential additions the Sanhita has made. The words are mandatory: a search or seizure under the Chapter shall be recorded, and the recording shall be forwarded without delay to a Magistrate. It is directed at the single most persistent evidentiary contest in Indian criminal trials, which is the challenge to a recovery on the footing that the article was planted or that the seizure witnesses were not independent. A contemporaneous recording forwarded to a judicial officer is a stronger answer to that challenge than the testimony of panch witnesses, and its absence is likely to become a standard ground of cross-examination.
Two questions the section leaves open are worth noticing. It does not state the consequence of non-compliance, which will therefore be governed by Chapter XXXVII and the test of failure of justice. And it says nothing about the custody, integrity or admissibility of the recording, which are matters for the Bharatiya Sakshya Adhiniyam, including the certificate required for an electronic record produced in secondary form. A recording lawfully made and lawfully forwarded may still be unusable at trial if those conditions were not attended to at the time.
4. Seizure and What Follows
Provision | Content |
|---|---|
Section 104 | Things found in a search beyond jurisdiction. Where a search is made under section 102 beyond the local jurisdiction of the Court issuing the warrant, and anything is found, the list prepared under section 103 shall be immediately sent to the Court issuing the warrant; and where the place searched is nearer to the Magistrate having jurisdiction there than to the issuing Court, the list and the things shall be sent to that Magistrate, unless the distance is less than thirty kilometres |
Section 106 | Police seizure. Any police officer may seize any property which may be alleged or suspected to have been stolen, or which is found under circumstances which create suspicion of the commission of an offence. A subordinate officer reports the seizure to the officer in charge; every officer so acting reports it to the Magistrate having jurisdiction and, where the property cannot conveniently be transported, may give it into the custody of a person on a bond to produce it. Where the property is subject to speedy and natural decay, or its value is less than ten thousand rupees, and the owner is unknown or absent, it may be sold by auction under the orders of the Superintendent of Police |
Section 107 | Attachment, forfeiture or restoration of the proceeds of crime. Where a police officer has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of an offence, he may with the approval of the Superintendent or Commissioner of Police make an application to the Court for the attachment of such property. The Court issues a notice to show cause within fourteen days, may attach the property, and on being satisfied may order forfeiture and distribution of the proceeds to the persons affected. This section is new |
Section 108 | Search in the presence of a Magistrate. Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant |
Section 109 | Power to impound. Any Court may, if it thinks fit, impound any document or thing produced before it under the Sanhita |
Section 110 | Reciprocal arrangements regarding processes. Provision for the service and execution of summons and warrants in a contracting State, and for their receipt from such a State, through the Central Government |
Section 107 deserves emphasis. Until the Sanhita, the attachment and forfeiture of the proceeds of crime were available only under the special statutes, principally the Prevention of Money-laundering Act, 2002 and the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 107 brings the machinery into the ordinary criminal law, applicable to any offence, on the application of a police officer with the approval of a Superintendent or Commissioner, with a show-cause notice, a judicial order of attachment, and provision for forfeiture and for distribution to the persons affected by the crime. It is one of the most substantial additions the Sanhita has made anywhere.
5. The Consequence of an Illegal Search
📖 State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669 Facts: Gold of foreign origin was recovered in a search of the respondent’s premises. The search was said to have been conducted in breach of the requirements of the Code relating to searches, and it was contended that the recovery was therefore inadmissible and that the conviction founded on it could not stand. Held: The Supreme Court held that even if the search were illegal, it would not affect the validity of the seizure and of the further investigation, nor the admissibility of the evidence as to the articles recovered. The illegality of a search does not vitiate the evidence collected during it; the court may, where the search is shown to have been irregular, be cautious in evaluating that evidence, but it does not exclude it. The Court restored the conviction, holding that the recovery had been established. Ratio: A defect in the conduct of a search does not render what was recovered inadmissible. It goes to the weight the court attaches to the evidence of the recovery, and requires the court to scrutinise that evidence with greater care. |
The proposition is settled and is frequently misstated in argument. Indian law contains no general rule excluding evidence obtained unlawfully, as some other systems do. What follows from an irregular search is therefore not exclusion but caution: the court examines the evidence of the recovery with greater care, and where the safeguards in section 103 were not observed, the prosecution has no answer to the suggestion that the recovery was not what it is said to have been. The practical effect of the safeguards is thus evidentiary rather than exclusionary, and section 105 strengthens the position considerably by supplying a contemporaneous record.
5.1 The constitutional backdrop
📖 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (Bench of nine Judges) Facts: The question referred to a Bench of nine Judges was whether the Constitution guarantees a fundamental right to privacy, earlier decisions of larger Benches having been read as holding that it does not. Held: The Court held unanimously that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, the home, and informational privacy. Like other fundamental rights it is not absolute, and an invasion of it must satisfy a threefold requirement: there must be a law; the restriction must pursue a legitimate State aim; and the means adopted must be proportionate to the object sought to be achieved. Ratio: A search of a home or of a person’s data is an invasion of a constitutionally protected right, and it must be authorised by law, directed at a legitimate aim, and proportionate. The statutory safeguards are the means by which the last requirement is satisfied. |
⚠ What the privacy decision means for this Chapter The Sanhita supplies the law, and the prevention and investigation of crime is a legitimate State aim. The contested question in any given case is proportionality. That is why section 96(2) permits a court to confine a warrant to a particular place or part, and why a warrant for a general search must be justified by the court’s consideration that the purposes of the proceeding require it. A warrant that authorises a search at large, where the material sought could have been identified, is vulnerable on proportionality grounds even though it is authorised by the section. The question is sharpest for digital devices. Section 94 now reaches a communication device likely to contain digital evidence, and such a device contains the whole of a person’s private life. Whether a seizure that gives the State access to everything on a phone is proportionate to an investigation into a particular offence, and what limits should attach to the examination of the contents, is the live question in this area, and the Sanhita does not answer it. |
6. Key Takeaways
The position stated shortly 1. Chapter VII contains seventeen sections, 94 to 110, corresponding to sections 91 to 105 of the CrPC. Two are new: section 105 on the audio-video recording of every search and seizure, and section 107 on the attachment and forfeiture of the proceeds of crime. 2. Section 94 permits a Court to summon, or an officer in charge of a police station to order in writing, the production of a document or thing, now expressly including electronic communication and communication devices likely to contain digital evidence. It does not apply to an accused person. 3. Section 94(3) preserves the privilege provisions of the Bharatiya Sakshya Adhiniyam and the Bankers’ Books Evidence Act, and excludes anything in postal custody, which section 95 governs. 4. Section 96 permits a search warrant on three grounds: anticipated non-compliance; the thing not being known to be in anyone’s possession; or a general search serving the purposes of the proceeding. The Court may confine it to a particular place or part. 5. Sections 97, 98, 100 and 101 are special search powers: stolen property and objectionable articles; forfeited publications, with an application to a three-Judge Bench of the High Court within two months under section 99; persons wrongfully confined; and the restoration of an abducted woman or female child. 6. Section 103 requires free ingress, two or more independent and respectable inhabitants of the locality to attend and witness, a list of things seized and of the places in which they were found signed by them, the occupant permitted to attend and given a copy, and a woman searched only by a woman. 7. Section 105 is new and mandatory: every search and seizure under the Chapter shall be recorded by audio-video electronic means, preferably a mobile phone, and the recording forwarded without delay to a Magistrate. 8. Section 106 permits a police officer to seize property alleged or suspected to be stolen or found in suspicious circumstances, with a report to the Magistrate, and permits sale by auction where the property is perishable or worth less than ten thousand rupees. 9. Section 107 brings the attachment and forfeiture of the proceeds of crime into ordinary criminal procedure for the first time, on the application of a police officer with the approval of a Superintendent or Commissioner and on a judicial order after a show-cause notice. 10. An illegal search does not make the recovery inadmissible; it requires the court to scrutinise the evidence of the recovery with greater care: Natwarlal Damodardas Soni. The constitutional standard is proportionality, privacy being a fundamental right under Article 21: Puttaswamy. |
7. Frequently Asked Questions
What does Chapter VII of the BNSS cover?
Sections 94 to 110, dealing with processes to compel the production of documents and other things: the summons to produce, search warrants of several kinds, the manner in which a search must be conducted, the seizure of property, the attachment of the proceeds of crime, and reciprocal arrangements regarding processes.
How many witnesses must be present at a search?
Two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if none there is available or willing: section 103(4). The search is made in their presence and they sign the list of things seized.
Must a search be video recorded under the BNSS?
Yes. Section 105 requires any search or seizure under the Chapter to be recorded through audio-video electronic means, preferably a mobile phone, and the police officer to forward the recording without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. The provision is new.
Is evidence recovered in an illegal search inadmissible?
No. Indian law contains no general rule excluding unlawfully obtained evidence. An irregularity in the search does not affect the admissibility of what was recovered, but the court will scrutinise the evidence of the recovery with greater care: State of Maharashtra v. Natwarlal Damodardas Soni.
Can a woman be searched during a search of premises?
Yes, where she is reasonably suspected of concealing an article about her person, but the search shall be made by another woman with strict regard to decency: section 103(3). A list of the things taken from her must be prepared and a copy delivered to her.
What is section 107 of the BNSS?
A new provision permitting a police officer, with the approval of the Superintendent or Commissioner of Police, to apply to the Court for the attachment of property he has reason to believe is derived directly or indirectly from criminal activity. The Court issues a show-cause notice returnable in fourteen days, may attach the property, and on being satisfied may order its forfeiture and the distribution of the proceeds to the persons affected by the crime.
Related Topics
- Search Warrant and Summons to Produce Compared
- Processes to Compel Appearance: Chapter VI, Sections 63 to 93
- Audio-Video Electronic Means under the BNSS, 2023
- Search and Seizure by the Police: Sections 185 and 186, BNSS
- Attachment of the Proceeds of Crime: Section 107, BNSS
- Electronic Communication under the BNSS, 2023