Bombay High Court: In a petition against the illegal search and seizure of mobile phone without following the prescribed procedure and documentation under the Nagarik Suraksha Sanhita, 2023 (BNSS), the Division Bench of Urmila Joshi Phalke and Justice Nivedita P. Mehta, JJ., held that the search and the consequential seizure of the mobile phone of petitioner were “illegal and in violation of the statutory provisions as well as the constitutional guarantee under Article 21 of the Constitution”.
The Court observed that,
“The investigating agency is expected to act strictly within the bounds of law, and the object of investigation cannot legitimise an otherwise illegal search or seizure.”
Background
The present case arose from an FIR registered at Police Station Khapa in connection with a hit-and-run case for offences punishable under Rule 134, Maharashtra Motor Vehicles Rules, 1989 and Sections 281 and 125(a), Nyaya Sanhita, 2023 (BNS).
The petitioners stated that Petitioner 2, the husband of Petitioner 1, had not been named as an accused in the FIR. Nevertheless, Respondent 1 had repeatedly visited their residence in connection with the investigation.
The petitioners alleged that the police personnel had repeatedly visited their residence without producing any warrant or other lawful authority and had interrogated Petitioner 1 in the absence of her husband and without the presence of a woman police constable. They further alleged that the enquiry had been conducted in a coercive and intimidating manner, causing severe mental distress and fear.
The petitioners further alleged that the police personnel had entered the bedroom of Petitioner 1 and taken possession of her mobile phone for 2 days without issuing any receipt or preparing a seizure memo, and without complying with the prescribed procedure under the BNSS. Petitioner 1 had immediately submitted a complaint to Respondent 2 regarding the alleged illegal acts; however, according to the petitioners, no action had been taken thereon.
Thereafter, Respondent 1 issued a notice under Section 35(3) BNSS directing Petitioner 2 to appear before the investigating officer in connection with the FIR. As Petitioner 2 was stated to be out of town during the relevant period, the petitioners alleged that the local police as well as the Local Crime Branch had repeatedly visited their residence during the day and late at night and had harassed Petitioner 1.
The petitioners further stated that, although the offences registered were bailable in nature, Petitioner 2 had filed an application before the Judicial Magistrate First Class, Saoner, seeking permission to surrender in connection with the hit-and-run case. The Magistrate observed that Petitioner 2 had not been named in the FIR, which had been registered against an unknown driver, and that the mere issuance of a notice under Section 35(3) BNSS would not, by itself, render him an accused while the investigation was still in progress. Consequently, the application seeking permission to surrender was rejected.
According to the petitioners, notwithstanding the said order, Respondent 1 had continued to visit the residence of Petitioner 1 and harass her and her family members. Aggrieved thereby, the petitioners filed the present writ petition, relying upon CCTV footage and alleging inaction on the part of Respondent 2 despite repeated complaints.
Issues
Whether the action of the investigating agency was in conformity with the procedure prescribed under the BNSS; and whether the statutory as well as constitutional safeguards relied upon by the petitioners have been infringed due to the alleged non-compliance?
Findings and Analysis
At the outset, the Court deemed it appropriate to refer to the provisions of Section 185 BNSS, since the principal controversy relates to the legality of the alleged search conducted at the residential premises of the petitioners and the seizure of the mobile phone of Petitioner 1 during the course of investigation.
The Court observed that “a plain reading of the aforesaid provision makes it evident that, where a search is to be conducted during the course of investigation without obtaining a search warrant from the Magistrate, the officer in charge of the police station is required to strictly comply with the conditions stipulated under Section 185 BNSS”.
The Court noted that the power to conduct a search without obtaining a search warrant is not an unfettered power.
The Court observed that the object of Section 185 BNSS, is to empower the investigating agency to conduct a search in urgent situations where it has reasonable grounds to believe that material necessary for the investigation may be found at a particular place and obtaining a search warrant from the Magistrate would cause undue delay and prejudice the investigation. At the same time, the Court noted that the legislature had incorporated procedural safeguards to ensure that this extraordinary power was exercised fairly, transparently and in accordance with law.
The Court stated that the investigating officer must record, in writing, the grounds for such belief and the reasons requiring an immediate search before conducting the search. The Court held that this requirement was not a mere formality but an important safeguard, and that the requirements under Section 185 BNSS were mandatory and required strict compliance.
Non-compliance with Section 185 BNSS
The Court stated that there was a clear non-compliance with the statutory requirements prescribed under Section 185 BNSS.
The Court observed that no material had been placed on record to show that, before conducting the search, the investigating officer had recorded in writing the grounds for believing that an immediate search was necessary or that obtaining a search warrant would cause undue delay. The Court noted that the case diary did not disclose any reasons regarding the urgency of the search or the likelihood of concealment or destruction of material relevant to the investigation. It also found that the general case diary entries did not contain any contemporaneous record of the search or the steps taken after its completion, as required under Section 185 BNSS.
The Court further observed that the allegation that the police had entered the bedroom of Petitioner 1 and forcibly taken possession of her mobile phone, in the absence of a woman police constable and without following the statutory procedure, constituted a serious intrusion into her privacy. The Court reiterated that the right to privacy, being an integral facet of the right to life and personal liberty under Article 21 of the Constitution, could be infringed only in accordance with the procedure established by law. The Court held that the respondents’ explanation that the search had been conducted in connection with the investigation did not justify departure from the mandatory safeguards prescribed under the BNSS, which were intended to ensure fairness, accountability and transparency in the investigative process.
The Court held that its decision in Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949, interpreting provisions pari materia to Section 185 BNSS, squarely governed the controversy in the present case. Referring to the said decision, the Court noted that it had been held that the power of search, being arbitrary in nature, was circumscribed by mandatory statutory safeguards which required strict compliance. The Court further noted that Dnyaneshwar had held that, before entering a house, the investigating officer was required to record in writing the articles sought to be searched for and the grounds for believing that such articles would be found at the place to be searched. It also noted that the said safeguards applied equally to investigations under general, special and local laws and could not be bypassed.
Non-compliance with Section 105 BNSS
The Court further held that, apart from the non-compliance with Section 185 BNSS, the seizure of Petitioner 1’s mobile phone also failed to satisfy the mandatory requirements of Section 105 BNSS. The Court observed that the provision contemplated preparation of a contemporaneous seizure memo in the presence of independent witnesses, issuance of an acknowledgement to the person from whose possession the property was seized, maintenance of proper documentation of the seized property, and recording of the seizure proceedings through electronic means wherever mandated. The Court noted that these safeguards were intended to preserve the sanctity of the investigation and protect citizens against arbitrary deprivation of property.
Applying the aforesaid requirements to the facts of the case, the Court found that no contemporaneous seizure panchnama had been prepared, no acknowledgement or receipt had been issued to Petitioner 1, and no material had been placed on record to show that independent panch witnesses had been associated with the seizure or that the seizure proceedings had been electronically recorded. The Court held that the explanation subsequently offered by the respondents could not cure the initial illegality in the absence of contemporaneous records demonstrating due compliance with the statutory procedure.
Illegality of search and seizure
The Court held that the cumulative effect of the non-compliance with Sections 185 and 105 BNSS unmistakably established that the search of the residential premises and the seizure of Petitioner 1’s mobile phone had not been carried out in accordance with the procedure established by law.
The Court observed that entry into the residential premises, particularly the bedroom occupied by Petitioner 1, without adherence to the statutory safeguards and the forcible seizure of her mobile phone constituted a serious invasion of her right to privacy and dignity under Article 21 of the Constitution. The Court held that the respondents’ explanation that the search had been undertaken in connection with the investigation could not justify departure from the mandatory safeguards enacted by the legislature, and that the object of investigation could not legitimise an otherwise illegal search or seizure.
“The investigating agency is expected to act strictly within the bounds of law, and the object of investigation cannot legitimise an otherwise illegal search or seizure.”
Reiterating that Dnyaneshwar squarely applied to the facts of the case, the Court concluded that the search conducted by Respondent 1 and the consequential seizure of Petitioner 1’s mobile phone were illegal and violative of the statutory provisions as well as Article 21 of the Constitution.
Relief
Having regard to the facts and circumstances of the case, the Court held that the petitioners were entitled to compensation in exercise of its public law jurisdiction. The Court observed that, although monetary compensation could not fully redress the invasion of privacy and dignity suffered by Petitioner 1, it would provide some measure of solace for the violation of her constitutional rights and serve as a reminder that investigative powers must be exercised strictly in accordance with law and not arbitrarily.
Decision
The Court accordingly allowed the writ petition, and:
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Declared that the search conducted at the petitioners’ residence and the consequential seizure of Petitioner 1’s mobile phone in connection with the said FIR were not carried out in accordance with Sections 185 and 105 BNSS and were, therefore, unsustainable in law.
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Directed the respondents to return Petitioner 1’s mobile phone forthwith, if it was no longer required in connection with any pending investigation or judicial proceedings in accordance with law.
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Directed the State Government to pay ₹10,000 as compensation to Petitioner 1 within 2 months, while granting liberty to the State Government to recover the amount from the police officer(s) concerned after fixing responsibility in accordance with law.
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Directed that, in the event of default in payment within the stipulated period, the compensation would carry interest at the rate of 8 per cent per annum from the date it became due until its realisation.
[Khushbu v. State of Maharashtra, Criminal Writ Petition No. 128 of 2026, decided on 3-7-2026]
*Judgment authored by Justice Nivedita P. Mehta.
Advocates who appeared in this case:
For the petitioner: S.I. Ghatte, Advocate
For the respondent: P.C. Bawankule, APP
