Law and You >Procedural Laws > BNSS > Search Warrants: Processes to Compel the Production Of Things
The law regarding processes to compel the production of documents and other movable property is laid down in Sections 94 to95 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Such processes are of two kinds, viz., a summons and a search warrant. A search warrant under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is a written order issued by a court authorizing law enforcement officers to search a particular place and seize specific evidence relevant to an investigation. The primary objective is to obtain evidence related to a crime while adhering to legal safeguards. In this article we shall discuss provisions related to search warrants under the BNSS.
Need of Search Warrants:
- Legality and Accountability: Search warrants provide a legal mechanism for searching private property, ensuring that law enforcement does not infringe upon individual rights arbitrarily. It ensures that searches are conducted with judicial oversight.
- Protection against Unlawful Searches: The requirement of obtaining a search warrant from a court protects individuals against illegal or unjustified searches, serving as a safeguard for privacy and property rights.
- Assistance in Investigation: Search warrants facilitate the lawful collection of evidence, assisting the investigation and judicial process by allowing access to places or items that could be relevant to the crime.
- Transparency and Fairness: The process of executing a search warrant, including the requirement for witnesses, ensures transparency, reducing the risk of misconduct or abuse during searches.
When Search-Warrant may be Issued? (S. 96 BNSS)
According to Section 96(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 where—
(a) any Court has reason to believe that a person to whom a summons order under section 94 or a requisition under sub-section (1) of section 95 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition; or
(b) such document or thing is not known to the Court to be in the possession of any person; or
(c) 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 therewith and the provisions hereinafter contained.
According to Section 96(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.
According to Section 96(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 nothing contained in this section 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.
This section gives wide powers to magistrate but in exercising them they have to use their discretion judicially. To issue such a search warrant is a grave step and such powers should not be exercised without fully appreciating the gravity of the step. It is therefore of paramount importance to confine the issue of search warrant, whether of general nature or a particular nature, to the strict requirements of law.
The section provides for two kinds of searches, particular and general. A ‘general search’ means a search not in respect of specific documents or things which the officer considers necessary or desirable for the purpose of investigation in hand but a roving inquiry for the purpose of discovering documents or things which might involve persons in criminal liability.
We can say that the section contemplates three alternative conditions under which a search warrant can be issued, namely:-
- If Court has reason to believe that a person to whom a summons or order given under Ss. 94 or 95(1) of BNSS will not or would not produce the documents or things as required by such summons or requisition,
- where such document or things in the possession of any person and also not known to the Court, or
- where the Court considers that general search and inspection is required for purposes of any inquiry, trial or other proceeding under this Code,
The warrant must:
- Be in writing
- Contain all the matters that the law requires it to be stated therein.
The search warrant is directed to a person. He may search or inspect in accordance therewith and the provisions hereinafter contained.
- The Court should specify in the warrant the particular place and till what part to which search and also inspection extends. The person charged with the execution of such warrant, then search or inspect as specified.
- Any Magistrate other than a District Magistrate or Chief Judicial Magistrate is authorized to grant a warrant to search for document, parcel or other thing which is in custody of the postal or telegraph authority.
In V. S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185 case, the Supreme Court held procedural validity of search warrants, in which it was held that a search for the premises occupied by the accused did not in any way force him to provide evidence against himself and was thus not in violation of Article 20(3) of the Indian Constitution.
Search of Place Suspected to Contain Stolen Property, Forged Documents, etc. (S. 97 BNSS):
According to Section 97(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 if a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable—
(a) to enter, with such assistance as may be required, such place;
(b) to search the same in the manner specified in the warrant;
(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies;
(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety;
(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.
According to Section 97(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the objectionable articles to which this section applies are—
(a) counterfeit coin;
(b) pieces of metal made in contravention of the Coinage Act, 2011 (11 of 2011), or brought into India in contravention of any notification for the time being in force issued under section 11 of the Customs Act, 1962 (52 of 1962);
(c) counterfeit currency note; counterfeit stamps;
(d) forged documents;
(e) false seals;
(f) obscene objects referred to in section 294 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023);
(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).
The essential requirements of the section is that there must be some allegation or information which the magistrate believes that a particular place is used for the deposit or sale of stolen property or for manufacture of forged documents, false seals, counterfeit stamps etc. before a magistrate acts under this section he must have information and may make some enquiry though the nature, scope and character of such inquiry is not defined.
Section 97 has nothing to do with the rights of the parties, under this section the only question to be considered is whether the property in respect of which a search warrant is sought to be issued is prima facie a stolen property or there are good grounds to believe that it is a stolen property.
According to Section 97 of The Bharatiya Nagarik Suraksha Sanhita, 2023 if a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information received and also after such inquiry has reason to believe that any place used :
- for the deposit or
- sale of stolen property, or
- for the deposit, sale or production of any objectionable article, or
- for the deposit of any such objectionable article.
The Magistrate may by warrant authorize any police officer above the rank of a constable to:
- To enter such place with assistance as required,
- To search the place in the manner specified in the warrant,
- To take possession of any property or article therein found which he reasonably suspects as stolen property or also objectionable article,
- To convey such property or article before a Magistrate or guard the same on the spot until the offender presented before a Magistrate, or otherwise to dispose of it in some place of safely,
- To take into custody and also present before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.
The objectionable articles to which this section applies are-
- counterfeit coin;
- pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);
- counterfeit currency note; counterfeit stamps;
- forged documents; • false seals; • obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);
- instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f) the Section 97(2) of BNSS.
In Roop Chand v. the State of Haryana, 1999 (1) C.L.R on 16 December, 2014 case, the Court reiterated that it is a well-settled law concept that the Investigating Agency should assist independent witnesses when contraband articles are seized while they are available, and their inability to do so in such a situation casts a cloud of doubt on the prosecution case. But if none of them is ready to be a witness to the search conducted or are not available, the Police may issue an order to them in writing to do the same. If any person refuses to be a witness without giving a reasonable cause, such person shall be deemed to have committed an offence under Section 187 of IPC (S. 222 of BNS).
Power to Declare Certain Publications Forfeited and to Issue Search-Warrants for Same (S. 98 BNSS):
According to Section 98(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 where—
(a) any newspaper, or book; or
(b) any document,
wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 152 or section 196 or section 197 or section 294 or section 295 or section 299 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue, or any such book or other document may be or may be reasonably suspected to be.
According to Section 98(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 in this section and in section 99,—
(a) “newspaper” and “book” have the same meanings as in the Press and Registration of Books Act, 1867 (25 of 1867);
(b) “document” includes any painting, drawing or photograph, or other visible representation.
According to Section 98(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 no order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 99.
As per Section 98 of The Bharatiya Nagarik Suraksha Sanhita, 2023 if State government is of opinion that any newspaper, or book or any document, wherever printed whose publication does contain matters which are punishable under section 152 (Act endangering sovereignty, unity and integrity of India)or section 196 (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts) or section 197 (Imoutation, assertions, prejudicial, to national integration) or section 294 (Sale, etc. of obscene books, etc.) or section 295 (Sale, etc. obscene object to child) or section 299 ((deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) then State government can forfeit such matters by issuing notification stating the grounds to declare every copy of issue of newspaper and every copy of such book or other document. And as result any Police Officer can seize the same wherever it is found in India and Magistrate can authorize through a warrant any police officer not below the rank of sub-inspector to enter and search those premises where any copy of such issue or any such book or other document can be found or is reasonably suspected to be found.
As per Section 98(3) of BNSS no action or order can be passed under this section or can be questioned in any Court otherwise in accordance with the provisions of Section 99.
In Anand Chintamani Dighe v. State of Maharashtra, 2002(1) BOM CR 57 case, the State Government seized a notice for the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I am Nathuram Godse speaking) including Gujarati translation for reasons that the publication of the said book will disturb public tranquillity, encourage disharmony or feelings of enmity, hatred or ill-will among different groups or communities.
Application to High Court to Set Aside Declaration of Forfeiture (S. 99 BNSS):
According to Section 99(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 98, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 98.
According to Section 99(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.
According to Section 99(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 on the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.
According to Section 99(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of section 98, set aside the declaration of forfeiture.
According to Section 99(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.
According to Section 99 of The Bharatiya Nagarik Suraksha Sanhita, 2023 any person can file an application in High Court who is having any interest in any newspaper, book or other document regarding which declaration of forfeiture has been made under Section 98 to set aside such declaration on a ground that it does not contain any matter as per sub-section (1) of section 95. Time period is of two months from the date of publication of such declaration in Official Gazette.
Procedure for Setting Aside Such Declaration:
- Every such application shall be heard by High Court consisting three or more judges, and will be determined by Special bench of High Court composing three judges and where High Court consists less than three judges then such Special bench shall be composed of all the judges of that High Court.
- During hearing of such application reference must be made by any newspaper, any copy of such newspaper to give as an evidence in aid to prove nature or tendency of the words, signs or visible representations which are there in newspaper against whom declaration of forfeiture was made.
- The High Court shall set aside the order if it is not satisfied that the issue of newspaper or the book or other document does contain such matter mentioned under sub-section (1) of section 95 in respect of which application was made.
- When there is difference on opinion among the Judges of Special bench, then decision shall be done with majority opinion of those Judges.
Search for Persons Wrongfully Confined (S. 100 BNSS):
According to Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023 if any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
The search warrant under this section may be issued by a district magistrate, a sub divisional magistrate, a metropolitan magistrate and a judicial magistrate but when the person in respect of whom a search warrant has been issued is found, he shall be produced before a magistrate.
In Ashok Thadani v. Ramesh K Advani, 1982 CrLJ 1446(1450) A.P (DB) case, the Court held that the magistrate is not empowered to issue search warrants under this section on the mere allegations made in the affidavit filed along with the petition before him. The expression ‘reason to believe’ implies a belief in the judicial mind, arrived at after consideration of the available material with a sense of responsibility and effort of mind without ignoring as far as possible the other side of the controversy.
Power to Compel Restoration of Abducted Females (S. 101 BNSS):
According to Section 101 of the Bharatiya Nagarik Suraksha Sanhita, 2023 upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary
This section is intended to give immediate relief to a female, above or below 18 years, who is in unlawful detention for an unlawful purpose. It aims at summary disposal of an application. A protracted inquiry in such matters would defeat the very object for which this section has been enacted.
Here again a magistrate before the exercise of power under this section must be satisfied that there is detention against the will of those who are legally entitled to the custody of the minor girl and the purpose of the detention is also unlawful. Both unlawful detention and unlawful purpose must be proved, if either is not established, the magistrate has no jurisdiction to pass order under the aforesaid section. It may also be noted that in proceedings under this section, the magistrate has no jurisdiction to decide the civil rights of the parties.
Conclusion:
A search warrant can be issued under Section 96 of BNSS if a court believes that a person summoned to produce a document or thing will not do so or the document or thing is not known to be in possession of any person or a general search of a place is necessary to locate the document or object. If the court has reasonable grounds to believe that such a search is necessary for investigating a crime or for trial, it can issue a warrant. Under Section 97 of BNSS a search warrant can be issued if there is reasonable suspicion that a place contains stolen property, forged documents, or other illicit items involved in a crime. Under Section 100 of BNSS Courts can issue a search warrant to search and rescue individuals who are believed to be wrongfully confined .Search warrants under the BNSS play a critical role in balancing the needs of law enforcement with the protection of individual rights. By requiring judicial oversight and adherence to strict procedures, search warrants ensure that evidence is obtained lawfully, transparently, and fairly, supporting the integrity of the investigation and the legal process.