The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaces the colonial-era Code of Criminal Procedure, 1973 (CrPC) as part of India’s broader criminal law reform. Among its many changes, the BNSS redefines and re-regulates the power of the police to conduct searches of persons and premises. The purpose is twofold: to enable effective criminal investigations and to safeguard the rights of individuals against arbitrary or excessive intrusion.
Legal Basis for Search Powers under BNSS
The authority of police officers to carry out searches under the BNSS is primarily governed by Chapter XIII of the statute. The provisions draw a careful distinction between searches with a warrant and those that may be conducted without judicial authorisation.
1. Search by Police Officer (Section 185 BNSS)
Section 185 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 outlines the legal procedure that allows police officers to search without a warrant under specific conditions.
1. Authority to Conduct Search Without Warrant
Sub-section (1) empowers the officer in charge of a police station or any investigating officer to search without a warrant if they have reasonable grounds to believe that certain evidence essential for an investigation may be found in a particular place within their jurisdiction.
The officer must also be of the opinion that the evidence cannot be obtained without undue delay. Crucially, the officer must record in writing the reasons for his belief in the case diary, along with a description of the item(s) to be searched.
2. Mandatory Recording of the Search
Sub-section (2) mandates that such a search, whenever conducted, must be recorded via audio-video electronic means, preferably using a mobile phone. This adds a level of transparency and ensures proper documentation of the search procedure.
3. Delegation of Search
Subsection (3) provides a provision that allows an officer to delegate the task of searching if they are unable to do so personally and no competent officer is present. The reasons for this delegation must also be recorded in writing, and a written order must be given to the subordinate specifying the place and the items to be searched.
4. Application of General Search Provisions
Sub-section (4) states that the general provisions related to search warrants and procedures under Section 103 of the BNSS will also apply to searches made under this section, to the extent applicable. This ensures procedural consistency and safeguards.
5. Magistrate’s Oversight and Copy to Owner
Sub-section (5) requires that copies of records made under sub-sections (1) and (3) be sent to the nearest Magistrate who is empowered to take cognizance of the offence. This must be done within 48 hours. Moreover, the owner or occupier of the place searched has the right to obtain a free copy of the record from the Magistrate on application.
2. Searches With Warrant (Section 96)
Section 96 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a court to issue a search warrant in certain situations. If the court believes that a person who has been or could be summoned under Section 94, or requisitioned under Section 95(1), will not produce the required document or item, or if the court is unsure who holds the item, it may order a search. Additionally, when a general search or inspection is necessary to serve the interests of an inquiry, trial, or other legal proceeding, the court may issue such a warrant.
The warrant may specify the exact location to be searched, limiting the search to that area alone. However, only a District Magistrate or Chief Judicial Magistrate is authorised to issue a warrant for the search of documents, parcels, or items held by a postal authority.
Search of Premises Suspected to Contain Stolen or Objectionable Items (Section 97)
Under Section 97 of the Bharatiya Nagarik Suraksha Sanhita, 2023, if a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class believes—based on credible information and inquiry—that a place is being used to store or sell stolen property or objectionable articles (such as counterfeit coins, forged documents, obscene objects, or tools used to create them), they may issue a warrant authorising a senior police officer to enter and search the premises.
The officer is empowered to seize suspicious items, detain individuals involved, and bring them before a Magistrate or secure the items until further legal action.
Forfeiture of Objectionable Publications and Search Warrants (Section 98)
Section 98 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the State Government to declare forfeiture of any newspaper, book, or document that contains material punishable under Sections 152, 196, 197, 294, 295, or 299 of the Bharatiya Nyaya Sanhita. Upon issuing a notification with stated reasons, the government can forfeit all such copies, allowing police to seize them anywhere in India. A
Magistrate may also issue a warrant authorising a sub-inspector or higher-ranking officer to search any premises where such material is or is suspected to be stored. Terms like “newspaper” and “book” follow definitions in the Press and Registration of Books Act, 1867, and “document” includes images or visual representations. Actions under this section can only be challenged as per Section 99.
Challenging Forfeiture of Publications (Section 99)
Under Section 99 of the Bharatiya Nagarik Suraksha Sanhita, 2023, any person with an interest in a newspaper, book, or document declared forfeited under Section 98 may apply to the High Court within two months to set aside the declaration. The application must assert that the publication did not contain any punishable content as defined in Section 98(1).
A Special Bench hears the case of three judges (or all judges if the High Court has fewer than three). The court may consider copies of the publication as evidence. If the High Court finds no objectionable material, it will set aside the forfeiture. In case of a split decision, the majority view prevails.
Search for Wrongfully Confined Persons (Section 100)
Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class to issue a search warrant if there is reason to believe that someone is being unlawfully confined. The authorised officer may conduct a search to locate the person, and if found, must immediately present them before a Magistrate, who will then pass appropriate orders based on the circumstances.
General Provisions Relating to Searches under BNSS (Sections 102–104):
- Applicability of Other Provisions: Sections 32, 72, 74, 76, 79, 80, and 81 apply to searches made under Sections 96 to 100.
- Access to Premises: Persons in charge of a place must allow entry and facilitate the search upon being shown the warrant. If access is denied, the officer may use force as per Section 44(2).
- Search of Persons: If someone is suspected of concealing items, they may be searched. A woman can only be searched by another woman, respecting decency.
- Witnesses to Search: At least two independent and respectable local residents must witness the search. They are not required to attend court unless specifically summoned.
- Search List and Copies: A list of seized items must be prepared and signed by witnesses. A copy must be given to the person searched or the premises’ occupant.
- Non-Compliance Punishable: Refusal to witness a search without valid reason amounts to an offence under Section 222 of the Bharatiya Nyaya Sanhita.
- Jurisdiction for Seized Items: If search occurs outside the issuing court’s jurisdiction, seized items and their list must be presented to the nearest Magistrate, who may forward them to the issuing court.
Summary of Key Provisions (Sections 105–110 BNSS):
- Video Recording of Searches (Section 105): All searches and seizures under this Chapter or Section 185 must be audio-video recorded (preferably via mobile phone), and the footage must be promptly sent to the concerned Magistrate.
- Seizure of Suspected Property (Section 106): Police may seize stolen or suspicious property. The seizure must be reported to the Station Officer and Magistrate. Perishable items below ₹500 in value may be auctioned under police orders.
- Attachment of Proceeds of Crime (Section 107): Police may seek court approval to attach property believed to be derived from criminal activity. A show-cause notice is issued, and after hearing, the court may confirm the attachment and direct the District Magistrate to distribute the proceeds among affected persons. Unclaimed or surplus proceeds are forfeited to the government.
- Search in Magistrate’s Presence (Section 108): Any Magistrate may direct and oversee a search personally for places they are authorised to issue search warrants for.
- Court’s Power to Impound (Section 109): Courts have the authority to impound any document or item produced before them during proceedings under the BNSS.
- Cross-Jurisdictional Summons/Warrants (Section 110): Courts can issue and receive summons or warrants across Indian states and even foreign countries (contracting States) where bilateral arrangements exist. Procedures ensure legal cooperation, and items recovered in searches must be routed through the notified authorities.
These provisions aim to ensure transparency, protect rights, and facilitate cross-border and inter-state enforcement in criminal matters.
Important Case Laws
[1] Prakash Cotton Mills Pvt. Ltd. v. B.N. Rangwani, Bombay High Court (1970)
In this case, the petitioners challenged the legality of searches and seizures conducted by Excise Authorities under the Central Excises and Salt Act, 1944, alleging violation of statutory safeguards, including Section 165 of the Criminal Procedure Code [Section 185 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)]. The authorities had seized goods and documents on suspicion of excise duty evasion through bogus concerns.
The Court upheld the legality of the seizure, holding that relevant provisions of the Sea Customs Act, 1878 (later substituted by the Customs Act, 1962) were validly applied via notifications under Section 12 of the Excise Act. It ruled that even if procedural irregularities occurred, the seizure was not invalid, and illegal searches do not necessarily warrant the return of seized goods. The petition was dismissed.
[2] Fedders Lloyd Corporation (P.) Ltd. v. B.A. Lakshminarayana Swami & Anr. (1969)
Delhi High Court dealt with the legality of searches and seizures conducted by the CBI under Section 165 CrPC (Section 185 BNSS) at the office and factory premises of five sister firms of the Punj family. The petitioners claimed procedural violations, including failure to record reasons and delay in informing the Magistrate. The Court held that Section 165 is directory, not mandatory, and substantial compliance suffices.
While the factory search was upheld as valid, the office search was deemed irregular due to delayed compliance with Section 165(5). Still, the Court declined to order the return of seized items as the investigation was ongoing and no mala fides were proven.
Conclusion
The Bharatiya Nagarik Suraksha Sanhita, 2023, marks a significant evolution in criminal procedural law in India. Its provisions on police search powers are designed to ensure that the criminal justice system remains robust, responsive, and fair. By blending investigative efficacy with civil liberties, the BNSS introduces a more accountable and transparent search regime.
At the heart of these reforms is the recognition that liberty and security must co-exist — and that the exercise of state power must always be justified, recorded, and subject to scrutiny.
References
[1] Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
[2] Code of Criminal Procedure, 1973
[3] Prakash Cotton Mills Pvt. Ltd. v. B.N. Rangwani, (1971)73 BOMLR 200
[4] State of Punjab v. Baldev Singh, Appeal (Crl.) 396 of 1990
[5] Justice CK Takwani, Criminal Procedure (4th Edition: 2015)