POWER OF POLICE TO SUMMON DOCUMENT OR THINGS DURING INVESTIGATION IN BNSS 2023

 

Section 91 of Cr.P.C. contained the provisions for production of document or things. The provision has been reproduced as Section 94 of Bhartiya Nagarik Suraksha Sanhita 2023.

Section 94 of the BNSS provides that:-

 (1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita  by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order.

Earlier in section 91 Cr.P.C. the officer-in-charge or the court was empowered to issue order or summon to any person  to produce any document or thing necessary for investigation, inquiry, trial or other proceeding under Cr.P.C. Section 94 BNSS now empowers the officer-in-charge of police station and the court to issue order or summons to any person to produce any document or thing or electronic communication including the communication devices which is likely to contain digital evidence if such document or thing or electronic communication or communication device is necessary for investigation etc.

So as per the definition of electronic communication in  section 2(i) of BNSS a person may be asked to produce any  written, verbal, pictorial information or video content transmitted or transferred (whether from one person to another or from one device to another or from a person to a device or from a device to a person) by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form.

Further he can also be asked to produce communication devices which is likely to contain digital evidence .

Hence , phone call records, e mail, facebook posts, messages, whatsapp messages, text messages, pictorial messages, GIFs,  uploaded or downloaded files, attachment , inbox messages, messages generated by machines, instagram messages or anything which is covered in the definition of electronic communication  can be asked under section 94 BNSS. Production of devices likely to contain digital evidence for example computers, laptops, cell phones, tablets, etc .can also be asked under this section.

The definition is illustrative not exhaustive and definition can be expended any time by Central Government by issuing a notification.

However the section 94 BNSS is not applicable to any letter, parcel  or document in the custody of postal authorities.

Section does not affect the provisions of section 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023 or the Bankers' Books Evidence Act, 1891.

In State Of Bombay Vs Kathi Kalu Oghad   Air 1961 Sc 1808 Supreme Court held that provisions of section 91 does not apply to accused person.

In case of  State Of Orissa Vs Debendra Nath Padhi, Crl App 497/2001 decided On 29-11-2004 SC held that accused can also use the provision of 91 Cr.P.C. when he enters in his defence.

Intentional  omission to produce a document, electronic communication , communication device or any other thing as required by this section is punishable under section 210 of BNS 2023.