Law and You >Procedural Laws > BNSS > Summons to Produce: 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.
Summons to Produce Document or Other Thing (S. 94 BNSS)
According to Section 94(1) of BNSS, 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 may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order.
According to Section 94(2) of BNSS, 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.
According to Section 94(3) of BNSS, nothing in this section shall be deemed—
(a) to affect sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023 or the Bankers’ Books Evidence Act, 1891 (13 of 1891); or
(b) to apply to a letter, postcard, or other document or any parcel or thing in the custody of the postal authority.
The purpose is to gather relevant evidence or material that can assist in discovering the truth and reaching a fair decision during judicial proceedings. The term ‘person’ mentioned in the Section does not include an accused person in trial. Note that, this section applies not only to documents but also to any other “thing” (physical evidence), such as electronic records, objects, or material evidence that might be relevant to the case. Court or the Officer must offer the person called a fair amount of time and a chance to comply with the request.
The absence of any exemptions in Section 91 for any particular sensitive items or documents (such as a diary) would indicate that privacy was not a top priority while this provision was being written. Alternatively, it is possible that the policy was intended to favour law enforcement authorities’ interests in security and investigation over personal values like privacy.
The section cannot be used arbitrarily. The document or the thing called must have a relation to or connection with the subject matter of the investigation, inquiry or trial and throw some light on the proceedings or some link in the claim of evidence. The most essential factor of an order under this section is a consideration by the court that the production of the documents concerned was desirable and necessary for the purpose of the trial.
In Ajay Mukherji v. The State of West Bengal, 1971 CRILJ 1329 case, directions given to the petitioner to produce accounts, receipts, vouchers, and minute books of congress meetings by the Chief Presidency Magistrate, Calcutta were quashed by the Calcutta High Court, as the case dealt with matters concerning defamation of Ajay Kumar Mukherji (the petitioner) under Section 501 and 502 of the Indian Penal Code (IPC),1860 and the production of said documents was deemed unnecessary by the consideration of the High Court.
In Lotan Bhoji Patil v. The State of Maharashtra, 1975 CRILJ1 577 case, the Bombay High Court observed that the court must be informed of the name of the person in whose possession or power the document is, or else the application for summons will not be entertained.
If a court or any officer in charge of a police station is of the opinion that the production of any document or other thing is necessary for the purposes of the investigation, inquiry, trial of the case or other proceeding before such Court or Officer, Such Court may issue summons, or such Officer a written order, under section 94 of BNSS to the person in whose possession such document or thing is believed to be, requiring him to attend and produce the same before the court at the time and place mentioned in the summons. Thus, It can be used by both courts and police officers. Courts issue summons, and police officers issue written orders to obtain such evidence during an investigation or trial.
Such person against whom summons or order is issued to produce thing is not under an obligation to attend personally. He may send the same through some other person. Section 94 of BNSS includes the production of digital data and other forms of electronic evidence possessed by intermediaries or other persons.
In Emperor v. Durga Prasad, (1923) ILR 45 ALL 223 case, the Court held that the requirement for a written order when a police officer exercises their authority under Section 91 CrPC (S. 94 BNSS) serves as a procedural protection. Courts have determined that in this situation, a verbal order or instruction given to someone to produce a document or item would not be sufficiently established.
It was recommended by the law commission of India in its 37th report that the provisions of Bankers Book Evidence Act 1891 was not overridden by the sections compelling the production of things or documents. Two provisions of this Act provides that in case of any legal proceedings where the bank is not a party, the officer of the bank cannot be called to produce any accounts or books of the bank except by the order of the court.
There are certain privileges and protections under other laws, like privileged communication (lawyer-client, medical confidentiality, etc.), that may exempt certain documents or materials from being summoned.
Significance of Section 94 BNSS:
- Aid to Investigation and Trial: It aids in ensuring that all relevant documents or materials are available for scrutiny, which is crucial for a fair trial. It assists in protecting and safeguarding evidence that, if not presented to the court or the police officer, could be misplaced, destroyed, or tampered with.
- Facilitates Justice: By empowering courts and police officers to call for the production of necessary evidence, it helps in uncovering facts and ensuring that justice is served. By making sure that no evidence is suppressed or disguised, it safeguards the rights and interests of all parties engaged in the case, including the state, the accused, the complainant, and the witness. It makes it possible for law enforcement authorities or the court to carefully review and evaluate the item or document submitted in order to determine its admissibility, legitimacy, and significance.
- Checks and Balances: It places a legal obligation on individuals or entities holding relevant documents or materials to produce them, thereby contributing to transparency in judicial and investigative processes. Because police officers and courts are required to adhere to specific protocols and precautions while issuing and carrying out summonses under Section 94 BNSS, it also acts as a check and balance on their authority.
Procedure as to Letters (S. 95 BNSS)
According to Section 95(1) of BNSS, if any document, parcel or thing in the custody of a postal authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Sanhita, such Magistrate or Court may require the postal authority to deliver the document, parcel or thing to such person as the Magistrate or Court directs.
According to Section 95(2) of BNSS, if any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the postal authority to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1).
This section provides for the production of documents, parcels or other things in the custody of the postal or telegraph authorities, which are exempted from the operation of section 91. In order to pass an order or issue a summons for the production of the documents or things, two conditions must be satisfied:-
- The production of the documents or things should be necessary or desirable for the purpose of investigation, inquiry or other proceedings,
- They must be under the custody of the postal or telegraph authority.
Therefore no order under this section could be passed in respect of a parcel, document or thing not in the custody of the postal or telegraph authority.
Conclusion:
In conclusion, Section 94 of the Bharatiya Nagarik Suraksha Sanhita, (BNSS) is a vital legal provision that empowers courts and investigating officers to summon relevant documents or objects necessary for investigation, inquiry, or trial. It ensures that essential evidence is available to assist in the pursuit of justice, making it a crucial part of the Indian legal framework. However, its use is subject to checks, requiring that only pertinent material be summoned, thus balancing the need for evidence with respect for individual rights and legal privileges. Ultimately, Section 94 serves as a powerful mechanism to promote transparency and fairness in criminal proceedings.