Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Search Warrant and Summons to Produce Compared: Sections 94 and 96 of the BNSS, 2023, and Article 20(3)
There are two ways of getting a document or a thing before a criminal court. The court may require a person to produce it, under section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Or it may authorise a search of the place where it is believed to be, under section 96. The choice between them looks like a question of convenience and is in fact a question of constitutional law, because Article 20(3) makes one of them unavailable against an accused and leaves the other untouched.
The reason lies in what each process asks of the person. A summons to produce requires him to act: to search his own papers, identify the document, and hand it over. A search warrant requires him to do nothing at all; the officer enters and searches, and the accused neither selects nor produces anything. The first is compulsion to furnish evidence; the second is not. That single distinction governs the whole of this topic.
Figure 1: The two processes compared
1. Summons to Produce: Section 94
Section 94, BNSS 2023 (1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed — (a) to affect the provisions of sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023, or the Bankers’ Books Evidence Act, 1891; or (b) to apply to a letter, postcard, or other document or any parcel or thing in the custody of the postal authority. |
1.1 The elements
- Who may issue. A Court issues a summons; an officer in charge of a police station issues a written order. The two instruments are different in name and identical in effect.
- The test. Production must be necessary or desirable for the purposes of an investigation, inquiry, trial or other proceeding. The standard is lower than necessity alone, and the section does not require the issuing authority to record reasons.
- To whom. The person in whose possession or power the document or thing is believed to be. “Power” is wider than possession and covers a person who can require another to hand it over.
- What is required. He may be required to attend and produce, or merely to produce. Where he is required merely to produce, sub-section (2) permits him to comply by causing it to be produced rather than attending personally.
1.2 What the Sanhita added
Section 91 of the Code of Criminal Procedure spoke of “any document or other thing”. Section 94 adds, expressly, “electronic communication, including communication devices, which is likely to contain digital evidence”. The addition puts beyond argument that the section reaches a mobile phone, a laptop, a storage device or a server, and it does so by reference to the likelihood of containing digital evidence rather than by reference to any particular device.
The width of that language is its most significant feature. A modern communication device contains the whole of a person’s private life, and an order to produce one is not comparable to an order to produce a ledger. The Sanhita does not, in terms, confine the order to particular material within the device, or require the issuing authority to specify what is sought, and the protection of the person from whom production is sought lies in the general constitutional standard rather than in the section.
1.3 The three exclusions in sub-section (3)
Exclusion | What it protects |
|---|---|
Sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023 | The privileged-communication provisions, which protect professional communications between an advocate and his client, and confidential communications with a legal adviser. A summons under section 94 cannot be used to compel production of what the law of evidence protects |
The Bankers’ Books Evidence Act, 1891 | That Act permits entries in bankers’ books to be proved by certified copy and restricts the compulsory production of the books themselves. Section 94 does not override it |
Anything in the custody of a postal authority | A letter, postcard, other document, parcel or thing in the custody of the postal authority is outside section 94 altogether. Section 95 deals with it separately, and confines the power to require delivery to a District Magistrate, Chief Judicial Magistrate, Court of Session or High Court |
2. Search Warrant: Section 96
Section 96, BNSS 2023: when a search warrant may be issued (1) Where — (a) any Court has reason to believe that a person to whom a summons or order under section 94, or a requisition under section 95(1), has been or might be addressed, will not or would not produce the document or thing as required; or (b) where such document or thing is not known to the Court to be in the possession of any person; or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Sanhita will be served by a general search or inspection, it may issue a search warrant; and the person to whom such warrant is directed may search or inspect in accordance with it and the provisions hereinafter contained. (2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend. (3) Nothing herein contained shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal authority. |
2.1 The three grounds
The three grounds in sub-section (1) are alternatives, and they cover different situations. Clause (a) is the case of anticipated or actual non-compliance: the court has reason to believe that a person will not produce, or would not produce, what a summons under section 94 requires. Clause (b) is the case where the thing cannot be traced to any particular person, so that no summons can be addressed to anyone. Clause (c) is the case of a general search or inspection, where what is sought is not a known document but whatever a search of the place may disclose.
Clause (c) is the widest and the one that requires the most care. A general search is not a fishing expedition authorised at large; the court must consider that the purposes of the proceeding will be served by it, and sub-section (2) permits the court to confine the warrant to a particular place or part of a place. Where the material sought can be identified, the warrant should be confined, and a warrant that authorises a search of everything belonging to a person without any limitation invites the objection that the court did not apply its mind at all.
2.2 How the warrant is executed
Section 102 applies the provisions of sections 32, 72, 74, 76, 79, 80 and 81 to all search warrants, so far as may be. A search warrant is therefore in writing, signed and sealed; it remains in force until cancelled or executed; it is ordinarily directed to police officers; it may be executed at any place in India; and where it is executed outside the jurisdiction the endorsement machinery applies.
Section 103 then governs the conduct of the search: free ingress, two or more independent and respectable inhabitants of the locality to attend and witness, a list of things seized signed by them, the occupant permitted to attend and given a copy, and a woman searched only by another woman with strict regard to decency. Section 105, which is new, requires the search and seizure to be recorded through audio-video electronic means and the recording to be forwarded to a Magistrate without delay.
3. Article 20(3): Why the Two Are Treated Differently
Figure 2: The constitutional line between the two processes
📖 State of Gujarat v. Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 Facts: A summons was issued to an accused person in a prosecution under the Prevention of Corruption Act requiring him to produce his account books. He objected that compelling him to produce documents in his own possession amounted to compelling him to be a witness against himself contrary to Article 20(3), and the question referred was whether section 94 of the Code of Criminal Procedure, 1898, the predecessor of the present provision, applies to an accused person at all. Held: The Supreme Court held that the section, on its true construction, does not apply to an accused person. Examining the scheme of the Code, the Court held that it could not have been intended that a court or a police officer should be able to command an accused to produce material against himself, and that reading the section as applying to him would place him in the position of being compelled to furnish evidence. The Court therefore construed the section as not extending to an accused, and did not need to decide the constitutional question in terms. The prosecution’s remedy in such a case, the Court observed, is a search warrant. Ratio: A summons or written order to produce cannot be addressed to an accused person. The section does not apply to him, and where the material is in his possession the proper process is a search warrant. |
📖 V.S. Kuttan Pillai v. Ramakrishnan, (1980) 1 SCC 264 Facts: A search warrant was issued for the search of premises occupied by the accused in a private complaint. It was contended that a search of premises in the occupation of an accused, and the seizure of documents found there, compels him to furnish evidence against himself and therefore violates Article 20(3), and reliance was placed on the decision that a summons to produce cannot be addressed to him. Held: The Supreme Court rejected the contention. It held that a search of premises occupied by an accused without his participation does not compel him to do anything and therefore does not offend Article 20(3). The distinction from a summons to produce is that in the latter case the accused is required to act: he must search out and hand over the document, which is a positive volitional act furnishing evidence against himself. In a search he is a passive observer; the officer acts, and nothing is extracted from the accused’s own volition. The Court held that a search warrant may therefore issue for the search of premises in the occupation of the accused, and that the safeguards on the manner of search are what protect him. Ratio: A search of premises occupied by the accused does not violate Article 20(3), because he is not required to do anything. The constitutional objection attaches to compelled production, not to a search. |
3.1 The line the two decisions draw
Situation | Position under Article 20(3) |
|---|---|
The accused is summoned under section 94 to produce a document | Not permitted. The section does not apply to an accused person: Shyamlal Mohanlal Choksi |
A third party is summoned under section 94 to produce a document | Permitted. Article 20(3) protects only a person accused of an offence, and a witness or stranger may be required to produce |
The premises occupied by the accused are searched under a warrant | Permitted. He is required to do nothing and is a passive observer: V.S. Kuttan Pillai |
The accused is required to open a lock or point out a place during a search | A more difficult case. Where his participation is compelled and is itself communicative, the objection may arise; where the officer acts, it does not |
A specimen is taken from the accused for comparison | Permitted. A fingerprint, handwriting or voice sample conveys no personal knowledge and is not testimony |
A confession or answer is extracted from the accused | Not permitted. It communicates what he knows, and that is testimonial compulsion |
⚠ The practical consequence for an investigating agency Where the material sought is in the possession of the accused, the agency cannot obtain it by a summons or written order under section 94. It must obtain a search warrant under section 96, or in an appropriate case act under the search powers in Chapter XIII. Where the material is in the possession of a third party — a bank, an employer, a service provider, a co-accused not yet arrayed — a summons under section 94 is available and is the ordinary course. The distinction has become more consequential with the express extension of section 94 to communication devices likely to contain digital evidence. An order to an accused to produce his mobile phone is an order the section does not authorise; a warrant to search his premises and seize it is. |
4. Choosing Between the Two
The material is… | The appropriate process |
|---|---|
In the possession of a co-operative third party | Summons under section 94. The least intrusive process, and sub-section (2) permits compliance without personal attendance |
In the possession of a third party expected not to comply | Search warrant under section 96(1)(a). The court must have reason to believe that he will not or would not produce |
In the possession of the accused | Search warrant. A summons is not available against him |
Not traceable to any particular person | Search warrant under section 96(1)(b) |
Unknown, and a general search of a place is required | Search warrant under section 96(1)(c), which the court may confine to a particular place or part under sub-section (2) |
In the custody of a postal authority | Neither. Section 95 applies, and only a District Magistrate, Chief Judicial Magistrate, Court of Session or High Court may require delivery. A Magistrate other than a District Magistrate or CJM cannot grant even a search warrant for it: section 96(3) |
Protected by professional privilege, or in bankers’ books | Neither compels it. Section 94(3) expressly preserves the privilege provisions of the Bharatiya Sakshya Adhiniyam and the Bankers’ Books Evidence Act |
Stolen property, forged documents or counterfeit coin | Section 97, a special search power exercisable by a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class |
5. Key Takeaways
The position stated shortly 1. Section 94 permits a Court to issue a summons, or an officer in charge of a police station 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. 2. The Sanhita expressly extends the section to electronic communication, including communication devices, likely to contain digital evidence. 3. Section 94(2): a person required merely to produce is deemed to comply if he causes the thing to be produced instead of attending personally. 4. Section 94(3) excludes three things: the privilege provisions of the Bharatiya Sakshya Adhiniyam, the Bankers’ Books Evidence Act, and anything in the custody of a postal authority, which section 95 governs. 5. Section 96 permits a search warrant on three grounds: anticipated non-compliance with a summons; the thing not being known to be in anyone’s possession; or a general search or inspection serving the purposes of the proceeding. 6. Section 96(2) permits the court to confine the warrant to a particular place or part; section 96(3) reserves a warrant for anything in postal custody to a District Magistrate or Chief Judicial Magistrate. 7. A summons to produce cannot be addressed to an accused person: the section does not apply to him, and the prosecution’s remedy is a search warrant: Shyamlal Mohanlal Choksi. 8. A search of premises occupied by the accused does not violate Article 20(3), because he is required to do nothing and is a passive observer: V.S. Kuttan Pillai. 9. The distinction is between a process that requires the person to act and one that authorises the State to act upon a place. That is the whole of the difference. 10. The distinction has grown in importance now that section 94 reaches communication devices: an order to the accused to produce his phone is not authorised, but a warrant to search his premises and seize it is. |
6. Frequently Asked Questions
What is the difference between a summons to produce and a search warrant?
A summons under section 94 is addressed to a person and requires him to produce a document or thing. A search warrant under section 96 is addressed to the officer executing it and authorises a search of a place and the seizure of what is found. The first requires the person to act; the second requires him to do nothing.
Can an accused be summoned to produce a document?
No. The Supreme Court held in State of Gujarat v. Shyamlal Mohanlal Choksi that the section does not apply to an accused person, and that where the material is in his possession the proper process is a search warrant.
Does searching an accused person’s house violate Article 20(3)?
No. In V.S. Kuttan Pillai v. Ramakrishnan the Supreme Court held that a search of premises occupied by the accused compels him to do nothing; he is a passive observer while the officer acts, and there is therefore no compulsion to be a witness against himself.
Can the police order a person to produce his mobile phone?
An officer in charge of a police station may issue a written order under section 94 to a person in whose possession or power the device is, the section now expressly covering electronic communication and communication devices likely to contain digital evidence. But the section does not apply to an accused person, and against him the process is a search warrant or the search powers of Chapter XIII.
When can a search warrant be issued under section 96?
Where the court has reason to believe that a person to whom a summons has been or might be addressed will not or would not produce the thing; 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.
Can a summons under section 94 be issued for a letter in the post?
No. Section 94(3)(b) excludes anything in the custody of a postal authority. Section 95 governs it, and only a District Magistrate, Chief Judicial Magistrate, Court of Session or High Court may require delivery; a Magistrate other than a District Magistrate or Chief Judicial Magistrate cannot even grant a search warrant for it.
Related Topics
- Production of Documents and Search: Sections 94 to 110, BNSS
- Processes to Compel Appearance: Chapter VI, Sections 63 to 93
- Rights of an Arrested Person under the BNSS, 2023
- Electronic Communication under the BNSS, 2023
- Audio-Video Electronic Means under the BNSS, 2023
- BNS, BNSS and BSA: Their Interrelationship