"BNSS Series:Provisions Relating To Production Of Documents And Summoning Of Witnesses''

Chapter VII of the new CrPC, i.e., BNSS governs the procedure relating to ‘Production of Documents and Summoning of Witnesses. Earlier, the same chapter of its predecessor was responsible to deal with the procedure for the same. While both legal frameworks share common objectives, BNSS provides more detailed and specific procedures, especially in the context of attachment and distribution of proceeds of crime. CrPC, being a broader criminal procedural law, contains more general provisions without the detailed mechanisms found in BNSS.

Section 94 BNSS:-

This section outlines the authority of a court or a police officer to request the production of documents, electronic communications, or other items for the purpose of an investigation, inquiry, trial, or legal proceeding. The court can issue a summons, while an officer can issue a written order, requiring the person believed to have such documents or items to attend and produce them at a specified time and place. If someone is asked to produce a document, they can fulfill the requirement by providing the document itself instead of appearing in person. Certain exceptions are noted, including provisions of other laws and exemptions for items in the custody of postal authorities.

In CrPC, a similar provision is found in Section 91. Both sections empower the court to issue summons or orders for the production of documents or things necessary for an investigation or legal proceeding. The CrPC is more comprehensive, encompassing a broader range of situations. Let’s compare the section with Section 91 of CrPC:-

Section 105 BNSS:-

This section outlines the procedure for conducting a search and seizure with the help of audio-video electronic means (preferably mobile phones) to record the entire process. This includes documenting the list of seized items during the search and the recorded material must be promptly sent to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class by the police officer involved. The goal is to ensure transparency and accountability in the execution of search and seizure activities.

This section aligns with the general principles of the CrPC, particularly Section 100. Both emphasize the importance of maintaining records of search and seizure processes, but BNSS specifies the use of audio-video electronic means, including mobile phones. Comparing to Section 100 of CrPC:-

In summary, both sections share commonalities in warrant requirements, the recording of proceedings, and involvement of witnesses. However, they differ in reporting authority, scope, and the emphasis on electronic recording in the latter provision.

Section 107 BNSS:

Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023, deals with the attachment, forfeiture, or restoration of property related to criminal activities. When a police officer during an investigation believes that certain property is connected to criminal activities, they can request approval from the Superintendent of Police or Commissioner of Police to apply to the Court or Magistrate for the attachment of that property.

If the Court or Magistrate, after considering evidence, finds that the properties are proceeds of crime, they can issue a notice to the person associated with the property, giving them 14 days to show cause why attachment should not occur. If the person fails to respond, the Court or Magistrate may proceed to pass an ex parte order of attachment.

In situations where issuing notice may defeat the purpose of attachment, the Court or Magistrate can pass an interim ex parte order for the attachment or seizure, which remains in force until a final order is made.

If, after considering explanations and giving an opportunity to be heard, the Court or Magistrate determines that the attached properties are indeed proceeds of crime, they instruct the District Magistrate to distribute these proceeds to those affected by the crime in a fair manner. If no claimants are identified or there is a surplus after satisfying claims, the proceeds of crime are forfeited to the Government. The District Magistrate is responsible for distributing the proceeds within sixty days of receiving the order.

In the CrPC, analogous provision can be found in Section 102 which grants the police the authority to seize property during an investigation. Unlike BNSS, CrPC does not explicitly outline a process for rating distribution of proceeds of crime to affected individuals. Let’s draw a table of comparison between Section 107 of BNSS and Section 102 of CrPC.

Comparison Between Section 165 CrPC And Section 185 BNSS In The Context Of Search And Seizure of Property

SIMILARITIES BETWEEN SECTION 165 CrPC AND SECTION 185 BNSS:-

1.         Warrantless Searches:-

• Both sections empower law enforcement to conduct searches without a warrant based on reasonable grounds.
•  Aim to facilitate swift actions in situations where obtaining a warrant may cause undue delay.

2.         Recording Grounds for Belief:-

• Both sections require the recording of the grounds for belief that prompt a search.
• This recording ensures transparency and establishes a documented basis for the search.

3.         Documentation and Reporting:-

• Both sections emphasize the importance of proper documentation related to the search.
•  Reporting the search to the relevant authority is a common requirement, ensuring oversight and accountability.

4.         Forwarding Records:-

• Both sections mandate the forwarding of records related to the search to the nearest Magistrate.
•  This practice ensures that the judiciary is informed about the actions taken by law enforcement.

DIFFERENCE BETWEEN SECTION 165 CrPC AND SECTION 185 BNSS:-

In summary, while Section 165 of CrPC and Section 185 of BNSS share commonalities in terms of warrantless searches, documentation, and reporting, BNSS Section 185 introduces notable differences by allowing the delegation of searches, providing flexibility in search procedures, adapting to technological advancements, and addressing the utilization of forensic facilities from other states when necessary.