Processes to Compel Production of Things — Summons to Produce, Search Warrants

Chapter VII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Sections 94 to 110 BNSS, corresponding broadly to Chapter VII of the Code of Criminal Procedure, 1973 (CrPC), Sections 91 to 105 — collects the powers by which a Court or a police officer compels the production of a document or thing, and the related powers by which a place is searched and a thing is seized. The chapter has been substantially recast in the Sanhita. Section 105 BNSS — a fresh provision with no counterpart in the 1973 Code — makes the audio-video recording of every search and seizure operation mandatory; the recording must be forwarded to the Magistrate without delay. Sections 107 to 111 BNSS — also new — empower the Court to order attachment, and ultimately forfeiture, of proceeds of crime. Both are innovations the careful magistrate must understand cold.

The constitutional context of the chapter sits on Article 20(3), the right against self-incrimination, which the Supreme Court in State of Gujarat v. Shyamlal, AIR 1965 SC 1251, held to bar the issue of a summons to an accused for production of incriminating documents in his custody. The chapter also sits on Article 21, which the Supreme Court has used to read into search-and-seizure law a discipline of reasonableness, recorded grounds and proportionality. The BNSS innovations — audio-video recording, proceeds-of-crime attachment — are the latest layer in a long doctrinal accumulation. For the broader procedural sequence, read this chapter alongside the chapter on police investigation powers and the rest of the CrPC and BNSS notes.

Section 94 BNSS — summons to produce document or thing

Section 94(1) BNSS (previously Section 91(1) CrPC) empowers any Court or any officer in charge of a police station to issue a summons or written order to a person in whose possession or power any document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated. The provision is general; it applies at any stage of investigation, inquiry, trial or other proceeding. Section 94(2) BNSS provides that production may be by causing the document to be produced, without personal attendance.

Section 94(3) BNSS preserves the long-standing exclusions. The provision does not apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal authority — those are governed by Section 95 BNSS. Nor does it override the privileges in the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — formerly Sections 123 and 124 of the Indian Evidence Act, 1872 — relating to State affairs and official communications, or the special regime under the Bankers' Books Evidence Act, 1891. The Court issuing a Section 94 summons must, before doing so, satisfy itself prima facie that the document is in the possession of the person to be summoned and that production is necessary or desirable for the purposes of the proceeding. The Supreme Court's discipline in Om Prakash v. Central Bureau of Investigation, AIR 2000 SC 2335, and in Kuttan v. Ramakrishnan, AIR 1980 SC 185, on the reasoned exercise of this discretion, applies with equal force to Section 94 BNSS.

The provision cannot be used against the accused himself. The Constitution Bench in State of Gujarat v. Shyamlal held that the word "person" in Section 91 CrPC excludes an accused person from compelled production of incriminating documents, by reason of Article 20(3). The Court's order under Section 94 BNSS therefore cannot run against the accused for documents that contain his own statements. It can run against the accused only for documents not containing his statements — for instance, third-party documents in his possession — or for documents merely showing his signature or thumb-impression. The Supreme Court has repeated the discipline in a long line of cases, including State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, on Article 20(3) and the limits of compulsion.

Section 95 BNSS — postal and telegraph custody

Section 95 BNSS (previously Section 92 CrPC) governs documents and things in the custody of the postal or telegraph authority. The High Court of a State, the District Magistrate, or the Court of Session — but not a lower Court, except in pressing necessity — may direct the postal authority to deliver up such documents. The power is fenced because the postal route is a privileged channel; the privilege gives way only on a reasoned order of a senior judicial officer. The BNSS preserves the architecture, with one drafting modernisation — the older reference to telegraph is supplemented by a recognition that electronic communication, where relevant, is itself within the scope of the provision read with Section 2(1)(i) BNSS.

Section 96 BNSS — when search warrant may be issued

Section 96 BNSS (previously Section 93 CrPC) is the warehouse of the search-warrant power. A search warrant may be issued by any Court — including an Executive Magistrate or a Judicial Magistrate while acting administratively — in three categories of case. The first is where the Court has reason to believe that the person to whom a Section 94 summons or order has been or might be addressed will not produce the document or thing required. The second is where the Court does not know who is in possession of the document or thing; a general search warrant may then be issued. The third is where the Court considers that a general search or inspection of premises is necessary for the purposes of the proceeding.

The Court must, before issuing a warrant, record the reason for its belief. The High Court of Bombay in State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 — though decided in the context of seizure of bank accounts under the predecessor provision — laid down the discipline of reasoned recording that applies to Section 96 BNSS. A general search warrant under Section 96(b) BNSS is the most intrusive of the three categories and must be confined to cases where the Court genuinely cannot identify the place of the document; a routine resort to the general warrant for police convenience is liable to be quashed.

Sections 97 to 99 BNSS — special-context search powers

Sections 97 to 99 BNSS deal with three special contexts. Section 97 BNSS (previously Section 94 CrPC) empowers the District Magistrate or Sub-divisional Magistrate to authorise a search of any place suspected to contain stolen property, forged documents, false weights, or instruments for the manufacture of obscene articles. Section 98 BNSS (previously Section 95 CrPC) deals with the forfeiture of publications declared by the State Government to be punishable under specified BNS provisions; it allows the State Government to declare every copy of the publication to be forfeited and to issue a search warrant for any place where the publication may reasonably be suspected to be. Section 99 BNSS (previously Section 96 CrPC) is the corollary — it allows any person aggrieved by a Section 98 forfeiture order to apply to the High Court for setting it aside, and the High Court hears the matter as a Special Bench of three judges.

Sections 100 and 101 BNSS — confined persons and abducted females

Section 100 BNSS (previously Section 97 CrPC) empowers any District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class who has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, to issue a search warrant. The provision is the statutory machinery for redressal in cases of unlawful confinement and overlaps with the High Court's habeas corpus jurisdiction; the Section 100 BNSS route is faster and is often used by the Magistracy in trafficking and dowry-related confinement cases. Section 101 BNSS (previously Section 98 CrPC) is the parallel provision for the compulsory restoration of an abducted female under eighteen years of age, and of a wife or female child unlawfully detained for unlawful purposes.

Sections 102 to 104 BNSS — search procedure

Sections 102 to 104 BNSS govern the manner in which a search is to be conducted. Section 103 BNSS (previously Section 100 CrPC) is the most important. Whenever any place liable to search or inspection is closed, the occupant or any person on his behalf is bound, on demand, to allow free ingress and afford reasonable facilities for search. If ingress cannot be obtained, the officer may break open any outer or inner door of the place. Before making a search, the officer must call upon two or more independent and respectable inhabitants of the locality to attend and witness the search. The search is to be made in their presence; a list of all things seized in the course of the search is to be prepared, signed by the witnesses; the occupant is to be permitted to attend during the search and a copy of the seizure list, signed by the witnesses, is to be delivered to him.

The Supreme Court in State of Rajasthan v. Rehman, AIR 1960 SC 210, and again in Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822, has held that a violation of the Section 100 CrPC (now Section 103 BNSS) procedure — particularly the requirement of independent witnesses — does not by itself vitiate the trial; the irregularity goes to weight, not admissibility. But where the irregularity casts a serious doubt on the genuineness of the seizure, the Court will weigh the recovery evidence with caution. The 2008 Amendment Act introduced a sub-section requiring video-graphic recording of certain searches; the BNSS in Section 105 BNSS now goes much further.

Section 105 BNSS — mandatory audio-video recording of search

Section 105 BNSS is the central BNSS innovation in this chapter. Every search and seizure made under the Sanhita shall be recorded by audio-video electronic means — preferably on a mobile phone — and the recording shall be forwarded to the Magistrate without delay. The provision applies to every search; the rare exceptions where recording is genuinely impossible are to be the subject of recorded reasons explaining the inability. The provision is a clean break from the 1973 Code, which made video-recording optional and conditional on the availability of equipment.

The doctrinal purpose of Section 105 BNSS is to address the perennial complaint that recoveries are stage-managed. The recording is to be made in the presence of the witnesses required under Section 103 BNSS; the recording, the seizure memo and the witnesses' signatures together form the evidentiary triad on which the recovery rests. The chapter on audio-video recording of search and seizure takes the new mandate forward and sets out the practical dos-and-don'ts. The careful trial Court will not accept a recovery whose audio-video recording is missing without a reasoned explanation in the case diary; the careful defence counsel will not let pass a recovery without insisting on the production of the recording.

Section 106 BNSS — police seizure of property

Section 106 BNSS (previously Section 102 CrPC) empowers any police officer to seize any property that may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. The seized property is to be reported forthwith to the Magistrate having jurisdiction. The Supreme Court in State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685, settled the contested question whether a bank account is "property" within Section 102 CrPC; the Court held that it is, and a police officer may seize a bank account by directing the bank to hold the account inoperable. The position carries forward into Section 106 BNSS; the chapter on disposal of property seized takes up what happens to the seized property thereafter.

Sections 107 to 111 BNSS — attachment and forfeiture of proceeds of crime

Sections 107 to 111 BNSS — the second BNSS innovation — empower the Court, on the report of the police officer making an investigation, to order the attachment of any property which is the proceeds of any criminal activity. The procedure mirrors the regime under the Prevention of Money Laundering Act, 2002, but is now generalised across the entire criminal-procedure code. Section 107 BNSS empowers the Court to issue a notice to the person likely to be affected by the attachment. Section 108 BNSS empowers the Court to order interim attachment pending hearing. Section 109 BNSS provides for the hearing on the attachment order. Section 110 BNSS provides for the forfeiture of the property to the Government on conclusion of the hearing if the Court is satisfied that the property is in fact the proceeds of crime. Section 111 BNSS provides for the disposal of forfeited property and for restoration to claimants who establish a legitimate interest.

The provision generalises a power that earlier lived only in special statutes — PMLA, NDPS, the Benami Act and the like. After the BNSS, every cognizable offence carries the potential for proceeds-of-crime attachment if the investigation throws up a property trail. The doctrinal architecture borrows heavily from Vijay Madanlal Choudhary v. Union of India, (2022) — the constitutional challenge to the PMLA — which validated the proceeds-of-crime attachment regime as a measure of preventive justice. The discipline that emerges from Vijay Madanlal applies to Sections 107 to 111 BNSS: the attachment must be based on reasoned satisfaction; the affected person must be heard; the property must be shown to be traceable to the criminal activity. The provisions are taken up in detail in the chapter on attachment and forfeiture of proceeds of crime.

The constitutional overlay — Article 20(3) and Article 21

The chapter sits on two distinct constitutional lines. Article 20(3) — the right against self-incrimination — bars the issue of a Section 94 summons against the accused for documents that contain his own incriminating statements. The Supreme Court has read this rule into the procedural code consistently, from Shyamlal through Kathi Kalu Oghad to Selvi v. State of Karnataka, (2010) 7 SCC 263. A search warrant against the accused under Section 96(a) BNSS is, accordingly, not available where the document is known to be in his possession; a search incident to investigation under Section 185 BNSS (previously Section 165 CrPC) and a general warrant under Section 96(b) BNSS are different machinery and are not affected by the rule.

Article 21 — the right to life and personal liberty — has been read by the Supreme Court to embrace privacy, after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The privacy doctrine has begun to feed back into search-and-seizure jurisprudence, requiring search warrants to be issued on reasoned satisfaction and against narrowly defined targets. Section 105 BNSS — by mandating audio-video recording — operates as a procedural safeguard that complements the constitutional discipline; the recording creates a contemporaneous record against which the search's compliance with Section 103 BNSS can be tested.

For the post-search sequence — the seizure list, the entry in the case diary, the production of seized material before the Magistrate, the use of the seized material at trial — the reader should turn to the chapters on police investigation under Section 175 BNSS and disposal of seized property under Sections 497 to 502 BNSS. For the wider context — including the new BNSS preventive provisions on attachment of proceeds of crime — the chapter on attachment of proceeds of crime and the chapter on audio-video recording mandate take the doctrine forward. The relationship between the search-and-seizure block and the broader procedural code is also worth tracing — through the chapters on arrest of persons and FIR and Zero FIR — because the moment of the search is rarely an isolated event; it is usually one step in a broader investigative sequence triggered by an FIR and concluded by a charge-sheet.

Why this chapter matters in practice

The search-and-seizure power is the most intrusive routine power that the criminal-justice system exercises. It enters private space, takes private property, and uses what it finds against the person searched. The chapter is therefore the locus of the most intense procedural discipline in the Sanhita. The summons-to-produce route is the milder alternative; the search-warrant route is the next step; the search incident to investigation under Section 185 BNSS is the most invasive. At each step, the recorded grounds, the independent witnesses, the seizure list and now the audio-video recording form the evidentiary chain on which the Court will later test the admissibility and weight of what was found. A search that breaks the chain is not necessarily inadmissible — but it is inevitably suspect. The BNSS makes the chain harder to break, and easier to inspect, than the 1973 Code.

The exam angle

For the candidate, the chapter rewards careful study of three pivot points. The first is the Article 20(3) bar on Section 94 BNSS process against the accused — a recurring MCQ banker. The fact-pattern almost always presents an accused in custody being asked to produce a document; the answer turns on whether the document contains his own statement (in which case the bar applies) or merely shows his signature or thumb-impression (in which case it does not). The Constitution Bench in Shyamlal and the eleven-judge Bench in Kathi Kalu Oghad are both essential reading.

The second pivot is the Section 105 BNSS audio-video recording mandate. The cases that will arise immediately under the BNSS will turn on what counts as adequate recording, what justifies an exception, and what the consequence of non-recording is. The early answers are likely to follow the line of Rehman and Radha Kishan — non-recording goes to weight, not admissibility — but the architecture of Section 105 BNSS is more demanding than the older optional regime, and the trial Court will be expected to insist on the recording or recorded reasons for its absence.

The third pivot is the Sections 107 to 111 BNSS proceeds-of-crime regime. The candidate must hold both the BNSS architecture and the parallel PMLA regime in mind, because Vijay Madanlal Choudhary applies to both. The discipline is identical: reasoned satisfaction, hearing of the affected person, demonstrated traceability of the property to the criminal activity. The chapter on attachment elaborates the practical machinery; the doctrinal architecture is what this chapter sets up.

Frequently asked questions

What is new about Section 105 BNSS — the audio-video recording mandate for searches?

Section 105 BNSS — a fresh provision with no counterpart in the 1973 Code — requires every search and seizure made under the Sanhita to be recorded by audio-video electronic means, preferably on a mobile phone, and the recording to be forwarded to the Magistrate without delay. The provision applies to every search; the rare exceptions where recording is genuinely impossible are to be supported by recorded reasons. The doctrinal purpose is to address the perennial complaint that recoveries are stage-managed; the recording is the contemporaneous evidence against which compliance with the Section 103 BNSS procedure can be tested.

Can a Court issue a Section 94 BNSS summons to an accused for production of incriminating documents?

No. The Constitution Bench in State of Gujarat v. Shyamlal, AIR 1965 SC 1251, held that the word 'person' in Section 91 CrPC excludes an accused person from compelled production of incriminating documents, by reason of Article 20(3). The same reading applies to Section 94 BNSS. The Court can, however, summon an accused to produce documents not containing his own statements — for instance, third-party documents in his possession — or documents merely showing his signature or thumb-impression. The discipline has been repeated by the Supreme Court in Kathi Kalu Oghad and refined in Selvi v. State of Karnataka, (2010) 7 SCC 263.

What are the three categories under which a search warrant may be issued under Section 96 BNSS?

Section 96 BNSS recognises three categories. First, where the Court has reason to believe that a Section 94 summons or order is unlikely to be obeyed, a warrant may be issued for the document or thing. Second, where the Court does not know who is in possession of the document or thing, a general warrant may be issued. Third, where the Court considers that a general search or inspection of premises is necessary for the purposes of the proceeding. The Court must record the reason for its belief; a routine resort to the general warrant for police convenience is liable to be quashed.

How does Section 103 BNSS regulate the conduct of a search?

Section 103 BNSS requires the officer making a search to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search, to make the search in their presence, to prepare a list of all things seized signed by the witnesses, and to deliver a copy of the seizure list to the occupant. The Supreme Court in State of Rajasthan v. Rehman and Radha Kishan v. State of Uttar Pradesh has held that violations of the procedure go to weight rather than admissibility — but where the violation casts serious doubt on the genuineness of the seizure, the recovery evidence is weighed with caution. With Section 105 BNSS now mandating audio-video recording, the evidentiary discipline is sharper than before.

What is the new BNSS power to attach proceeds of crime under Sections 107 to 111?

Sections 107 to 111 BNSS — fresh provisions in the Sanhita — empower the Court, on the report of the investigating police officer, to attach and ultimately forfeit any property which is the proceeds of any criminal activity. The procedure mirrors the regime under the Prevention of Money Laundering Act but is now generalised across all cognizable offences. After interim attachment, a hearing is held; if the Court is satisfied that the property is traceable to the criminal activity, it is forfeited to the Government. The discipline laid down by the Supreme Court in Vijay Madanlal Choudhary v. Union of India (2022) — reasoned satisfaction, hearing of the affected person, traceability to the criminal activity — applies.

Can the police seize a bank account under Section 106 BNSS?

Yes. The Supreme Court in State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685, held that a bank account is 'property' within the meaning of Section 102 CrPC (now Section 106 BNSS), and a police officer may seize a bank account by directing the bank to hold the account inoperable. The seizure must be reported forthwith to the Magistrate having jurisdiction. Where the police seek to attach the account as proceeds of crime — rather than merely seize for investigation — the dedicated Sections 107 to 111 BNSS regime is now the appropriate route.