Unlocking Evidence

The Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as “the BNSS”), 2023, represents a significant overhaul in our country’s criminal justice system, streamlining and modernizing various procedures to enhance the efficiency and effectiveness of law enforcement and judicial processes.

Among its many provisions, the BNSS outlines detailed processes to compel the production of documents, electronic records, and other materials essential for legal inquiries, investigations, and trials. These procedures ensure that crucial evidence can be obtained lawfully and systematically, balancing the needs of justice with the protection of individual rights.

 What is a summons to produce a document or other thing?

A summons to produce a document or other thing is an order issued by a court or a police officer, asking a person to provide a document, electronic communication, or any other item, in whose possession or power such document or thing is believed to be and that thing/document is needed for an investigation, inquiry or trial.

 Can a person comply with the summons to produce documents or another thing without attending personally?

Yes, a person can comply with such summons by causing the document or thing to be produced without having to attend personally.

 What was held in Parmeshwari Devi v. State?

In Parmeshwari Devi v. State, (1977) 1 SCC 169, it was held that a party summoned to produce documents disclaiming possession, who is not a party to proceedings, cannot be forced to appear in court, made to state an oath and be subjected to cross-examination by the court or the counsel.

 What happens if a court needs a document in the custody of a postal authority?

A District Magistrate, Chief Judicial Magistrate, Court of Session, or High Court can require the postal authority to deliver the document, parcel, or thing to a designated person.

 Can other officers also request documents from the postal authority?

Yes, other Magistrates, Commissioners of Police, or District Superintendents of Police can request the postal authority to search for and detain the document, parcel, or thing pending a higher authority’s order.

 When can a search-warrant be issued?

A search-warrant can be issued if a court believes:

• A person will not produce the document or thing required.
• The document or thing is not known to be in anyone’s possession.
• A general search or inspection is needed for an inquiry, trial, or proceeding.

 Can a search-warrant be specific to a particular place?

Yes, the court can specify the place or part of the place to be searched in the warrant.

 Can any Magistrate issue a warrant to search items in postal custody?

No, only a District Magistrate or Chief Judicial Magistrate can issue such a warrant.

 Who can authorize a search for stolen property or objectionable articles?

A District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class, can authorize a search based on information and inquiry.

 What are considered objectionable articles?

Objectionable articles include:

• Counterfeit coins and currency notes
• Forged documents
• False seals
• Obscene objects
• Instruments or materials used for producing such items.

 When can the State Government declare publications forfeited?

If a publication contains matter punishable under the Bharatiya Nyaya Sanhita, 2023, the State Government can declare it forfeited by notification.

 What happens after a publication is declared forfeited?

Police officers can seize copies of the publication, and Magistrates can authorize searches for the publication.

 Who can challenge a declaration of forfeiture?

A person with an interest in the publication can apply to the High Court within 2 months of such declaration to set aside the forfeiture, arguing that the publication did not contain the objectionable matter.

 How is the application decided by the High Court?

The application is heard by a Special Bench of three judges (or all judges if the High Court has fewer than three). The High Court will set aside the forfeiture if it finds no objectionable matter.

 Who can issue a search-warrant for wrongfully confined persons?

A District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class, can issue a search-warrant if they believe that a person is wrongfully confined.

 What happens after such a search?

The person found during the search is taken before a Magistrate who will decide the proper course of action.

What can a Magistrate do upon receiving a complaint about the abduction of a woman or female child?

The Magistrate can order the immediate restoration of the woman to her liberty or the female child to her lawful guardian and can use necessary force to enforce this order.

 What must a person in charge of a closed place do during a search?

They must allow free entry and provide reasonable facilities for the search upon demand and presentation of the warrant.

 Can people in the place be searched?

Yes, people reasonably suspected of concealing an item can be searched, and if it is a woman, the search must be conducted by another woman, with strict regard to decency.

 Who must witness the search?

Two or more independent and respectable local residents must witness the search, and a list of seized items must be prepared by the officer executing the warrant and signed by the witnesses.

 What happens to things found during a search outside the court’s jurisdiction?

The items and a list must be taken to the court that issued the warrant, or if nearer, to the local Magistrate, who will then authorize their transfer to the issuing court.

 How should searches and seizures be recorded?The entire process, including the list of seized items, must be recorded using audio-video means, preferably a mobile phone, and forwarded to the appropriate Magistrate.

 What can a police officer seize?

A police officer can seize property suspected to be stolen or related to an offence.

 What must the officer do after seizing the property?

The officer must report the seizure to the Magistrate and, if necessary, give custody of the property to a responsible person with a bond to produce it in court.

 What if the property is subject to speedy decay?

It may be auctioned immediately under the Superintendent of Police’s orders if its value is less than 500 rupees and no rightful owner is known or present.

 What was held in Teesta Atul Setalvad v. State of Gujarat?

In Teesta Atul Setalvad v. State of Gujarat, (2018) 2 SCC 372, it was held that a bank account need not be only of accused but can be any account creating suspicion about commission of offence.

 What was held in State of Maharashtra v. Tapas D. Neogy?

In State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685, it was held that a police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence.

 When can property be attached during an investigation?

A police officer can apply for attachment if they believe the property is derived from criminal activity or an offence, with the approval of a senior officer.

 What process follows the application for attachment?

The court issues a notice to the person holding the property to show cause why it should not be attached, and after hearing the case, the court may order the attachment.

Can the court order an interim attachment without notice?

Yes, if giving notice would defeat the purpose, the court can order an interim attachment or seizure ex parte.

 What happens to the attached property?

If found to be proceeds of crime, the District Magistrate will distribute it to affected persons, and any surplus is forfeited to the government.

 Can a Magistrate order a search to be conducted in their presence?

Yes, any Magistrate can direct a search to be conducted in their presence.

 Can a court impound documents or things produced before it?

Yes, the court can impound any document or thing produced before it.

 How are summons and warrants served or executed outside the local jurisdiction?

They can be sent to the presiding officer of the court in another state or area in India, or to an appropriate authority in a country with which India has arrangements for criminal matters.

 How are summons and warrants from outside jurisdictions handled?

They are treated as if issued by a local Magistrate, and warrants are executed and returned accordingly.

The processes to compel the production of things under the BNSS reflect a comprehensive approach to evidence gathering in India’s criminal justice system. By detailing clear and structured mechanisms, the BNSS facilitates the effective administration of justice while upholding the principles of fairness and due process.

These provisions underscore the importance of robust legal frameworks in addressing contemporary challenges in law enforcement, ensuring that the pursuit of justice remains both diligent and equitable. As India continues to evolve its legal landscape, the BNSS stands as a testament to the country’s commitment to a balanced and just legal system.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

 The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.