Bombay High Court Reinforces Limits on Police Search Powers regarding residential Home and seizure of mobile of accused

1. Rule. Rule made returnable forthwith. Heard finally,

by consent of the learned counsel appearing for the respective

parties.

2. The petitioners have invoked the writ jurisdiction of

this Court seeking a direction to the respondent-police

authorities not to harass, threaten or intimidate the petitioners

or their family members except strictly in accordance with the

procedure established by law in connection with Crime

No.26/2026 registered at Police Station Khapa for the offences

punishable under Rule 134 of the Maharashtra Motor Vehicles

Rules, 1989 and Sections 281 and 125(a) of the Bharatiya

Nyaya Sanhita, 2023 (for short, “the BNS”). The petitioners

further seek a declaration that the alleged action of respondent

No.1 in forcibly entering their residential premises, harassing

the women members of the family without issuance of any

notice, and illegally seizing and retaining the mobile phone of

petitioner No.1 for two days without following the procedure

prescribed under Section 105 of the Bharatiya Nagarik

Suraksha Sanhita, 2023 (for short, “the BNSS”), is illegal,

arbitrary, unconstitutional and violative of Articles 14 and 21 of

the Constitution of India. A further direction is sought requiring

the respondents to strictly adhere to the procedure prescribed

under the BNSS while investigating bailable offences, including

compliance with the statutory requirement of issuance of notice

and conducting a lawful investigation without resorting to

coercive or extra-legal measures. The remaining prayers are

consequential and ancillary in nature.

3. Briefly stated, the facts giving rise to the present

petition are that Crime No.26/2026 came to be registered on

24.01.2026 at Police Station Khapa for the offences punishable

under Rule 134 of the Maharashtra Motor Vehicles Rules, 1989

and Sections 281 and 125(a) of the BNS. According to the First

Information Report lodged by one Sachin Deepak Kalamkar,

resident of Khapa, on 24.01.2026 at about 2.30 p.m. he

received information that one Ashish Sheshrao Nile met with

an accident near the Kanhan River, in the vicinity of Paradkar’s

field. The informant stated that a silver-coloured four-wheeler

collided with motorcycle bearing registration No.MH-40-BV-

0670, which was being driven by Ashish Nile, resulting in

injuries to his head, hand and leg. It is further alleged that the

driver of the four-wheeler fled from the spot immediately after

the accident.

4. It is the case of the petitioners that petitioner No.2,

who is the husband of petitioner No.1, is not named as an

accused in the aforesaid crime. Nevertheless, according to the

petitioners, respondent No.1 repeatedly visited their residence

situated at Ward No.4, Sillewada, in connection with the

investigation of the said crime.

5. The petitioners contend that on 25.01.2026 at

about 11.30 p.m., police personnel visited their residence when

petitioner No.1 was alone and made enquiries regarding the

aforesaid crime. It is further alleged that on 31.01.2026 at

about 5.00 p.m., officers attached to Police Station Khapa again

visited the residence and interrogated petitioner No.1 despite

being informed that her husband was not present. According to

the petitioners, on both occasions the police personnel entered

the residential premises without producing any warrant,

written authorisation, notice under the BNSS or any other

lawful order. It is further alleged that no lady police constable

5 CRI.WP 128-2026-J.odt

accompanied the police personnel, though petitioner No.1 was

questioned inside her residence.

6. According to the petitioners, the enquiry was

conducted in a coercive and intimidating manner, causing

severe mental distress and fear. It is further alleged that the

police personnel entered the bedroom of petitioner No.1 and

took possession of her mobile phone. The petitioners asserts

that no seizure panchnama was prepared, no independent

panch witnesses were called, no procedure prescribed under

the BNSS was followed and no acknowledgment or receipt of

the seized mobile phone was issued. It is their further case that

the mobile phone remained in the custody of the police for two

days without any contemporaneous documentation and

evidentiary compliance with prescribed procedure under

BNNS. Petitioner No.1 immediately submitted a complaint to

respondent No.2 regarding the alleged illegal acts; however,

according to the petitioners, no action has been taken thereon.

7. It is further the case of the petitioners that

thereafter respondent No.1 issued a notice under Section 35(3)

6 CRI.WP 128-2026-J.odt

of the BNSS directing petitioner No.2 to appear before the

Investigating Officer in connection with Crime No.26/2026. As

petitioner No.2 was stated to be out of town during the

relevant period, the police allegedly continued to visit the

residence of the petitioners and harass petitioner No.1. It is

alleged that the officers attached to the local police as well as

the Local Crime Branch repeatedly visited their residence

during the day as well as late at night. On 03.02.2026,

petitioner No.1 submitted a representation to respondent No.2

enclosing CCTV footage allegedly depicting the aforesaid acts

of the police personnel.

8. The petitioners further contend that although the

offences registered are bailable in nature, petitioner No.2 filed

an application before the learned Judicial Magistrate First

Class, Saoner, seeking permission to surrender in connection

with Crime No.26/2026. Notice of the said application was

issued to respondent No.1; however, no reply was filed. By

order dated 04.02.2026, the learned Magistrate observed that

the name of petitioner No.2 did not find place in the First

Information Report, which had been registered against an

7 CRI.WP 128-2026-J.odt

unknown driver, and that mere issuance of a notice under

Section 35(3) of the BNSS would not, by itself, render

petitioner No.2 an accused when the investigation was still in

progress. Consequently, the application seeking permission to

surrender came to be rejected. According to the petitioners,

notwithstanding the said order, respondent No.1 continued to

visit the residence of petitioner No.1 and harass her and her

family members. Placing reliance upon the CCTV footage and

alleging inaction on the part of respondent No.2 despite

repeated complaints, the petitioners have approached this

Court by way of the present writ petition.

9. Learned counsel for the petitioners submits that it is

well settled that a woman is ordinarily required to be examined

at her residence and that such examination must be conducted

in a manner consistent with her dignity and the safeguards

recognised by law. It is urged that the respondent No.1-police

personnel entered the house of the petitioners, proceeded into

the bedroom and interrogated petitioner No.1 in the absence of

a lady police constable. It is further submitted that the mobile

phone of petitioner No.1 was taken possession of without

8 CRI.WP 128-2026-J.odt

following the procedure prescribed under Section 105 of the

BNSS. According to the petitioners, no seizure panchnama was

drawn, no independent panch witnesses were associated, no

acknowledgment or receipt of seizure was issued and no

videography of the seizure was undertaken. It is, therefore,

contended that the retention of the mobile phone for two days

without following the mandatory procedure prescribed under

the BNSS constitutes a clear violation of the statutory

provisions as well as the constitutional safeguards available to

the petitioners.

10. In support of the aforesaid submissions, learned counsel

for the petitioners has placed reliance upon the decision in

Dnyaneshwar v. State of Maharashtra, reported in 2019 SCC

OnLine Bom 4949.

11. Per contra, learned Additional Public Prosecutor

appearing for the respondents submit that on 25.01.2026 at

about 11.30 p.m., the Investigating Officer visited the residence

of the petitioners in connection with the investigation of Crime

No.26/2026. The visit was undertaken solely for the purpose of

9 CRI.WP 128-2026-J.odt

investigation and petitioner No.1 was requested to inform

petitioner No.2 to remain present before the Investigating

Officer, as he had failed to do so despite earlier instructions.

During the visit, the in-laws of petitioner No.1 were also

present in the house and, therefore, the allegation that

petitioner No.1 was alone is factually incorrect. According to

the respondents, repeated visits to the residence of the

petitioners were necessitated solely for the purpose of

investigation.

12. It is further submitted that the Investigating Officer

attempted to conduct a panchnama in respect of the Digital

Video Recorder (DVR) installed at the residence of the

petitioners; however, the DVR had allegedly been removed by

the petitioners with a view to suppress material evidence and

to lend support to the allegations made in the complaint

addressed to respondent No.2. It is further contended that the

mobile phone in question was produced by the mother-in-law

of petitioner No.1, namely Shahida Khan Mansoor Khan, and

was thereafter seized in accordance with law. Further, the said

mobile phone has been forwarded for forensic examination and

10 CRI.WP 128-2026-J.odt

that the report is awaited. Learned APP, while tendering the

case diary across the bar for the perusal of the Court, submits

that the investigating agency has complied with the procedure

prescribed under Section 185 of the BNSS relating to search,

production and seizure. It is, therefore, contended that the

allegations levelled against the investigating officers are wholly

incorrect and devoid of merit.

13. We have heard Mr. Siddhant Ghatte, learned

counsel for the petitioners, and Ms. P C. Bawankule, learned

APP for the State and have perused the material placed on

record. The controversy in the present petition essentially

centres around the legality of the search allegedly conducted at

the residence of the petitioners and the seizure of the mobile

phone of petitioner No.1 during the course of investigation. It

is, therefore, necessary to examine whether the action of the

investigating agency was in conformity with the procedure

prescribed under the Bharatiya Nagarik Suraksha Sanhita,

2023 and whether the statutory as well as constitutional

safeguards relied upon by the petitioners stand infringed, for

the alleged non-compliance.

11 CRI.WP 128-2026-J.odt

14. Before adverting to the rival contentions, it would

be apposite to refer to the provisions of Section 185 of the

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

No.1 during the course of investigation. Section 185 of the

BNSS, which empowers a police officer to conduct a search

during investigation in emergent circumstances subject to the

conditions prescribed therein, reads thus:

“ 185. Search by police officer :

(1) Whenever an officer in charge of a police station

or a police officer making an investigation has

reasonable grounds for believing that anything

necessary for the purposes of an investigation into any

offence which he is authorised to investigate may be

found in any place within the limits of the police

station of which he is in charge, or to which he is

attached, and that such thing cannot in his opinion be

otherwise obtained without undue delay, such officer

may, after recording in writing the grounds of his belief

in the case-diary and specifying in such writing, so far

as possible, the thing for which search is to be made,

search, or cause search to be made, for such thing in

any place within the limits of such station.

(2) A police officer proceeding under sub-section (1),

shall, if practicable, conduct the search in person.

Provided that the search conducted under this section

shall be recorded through audio-video electronic

means preferably by mobile phone.

12 CRI.WP 128-2026-J.odt

(3) If he is unable to conduct the search in person,

and there is no other person competent to make the

search present at the time, he may, after recording in

writing his reasons for so doing, require any officer

subordinate to him to make the search, and he shall

deliver to such subordinate officer an order in writing,

specifying the place to be searched, and so far as

possible, the thing for which search is to be made; and

such subordinate officer may thereupon search for

such thing in such place.

(4) The provisions of this Sanhita as to searchwarrants

and the general provisions as to searches

contained in section 103 shall, so far as may be, apply

to a search made under this section.

(5) Copies of any record made under sub-section (1)

or sub-section (3) shall forthwith, but not later than

forty-eight hours, be sent to the nearest Magistrate

empowered to take cognizance of the offence, and the

owner or occupier of the place searched shall, on

application, be furnished, free of cost, with a copy of

the same by the Magistrate.”

15. 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 of the BNSS. The essential requirements of

the provision are as follows:

(a) During the course of investigation, where the officer in

charge of a police station has reasonable grounds to believe

13 CRI.WP 128-2026-J.odt

that anything necessary for the purpose of investigation may be

found in any place within the limits of the police station under

his charge, and that such thing cannot otherwise be obtained

without undue delay, he may conduct or cause a search to be

conducted only after recording in writing the grounds of such

belief in the case diary and specifying, as far as practicable, the

article or thing for which the search is to be made;

(b) The provision further mandates that, as far as practicable,

the search shall be conducted personally by the investigating

officer. It also requires that every search conducted under the

said provision shall be recorded through audio-video electronic

means, preferably by using a mobile phone;

(c) Where the investigating officer is, for reasons to be

recorded in writing, unable to conduct the search personally

and no other competent officer is available at the relevant time,

he may authorise a subordinate officer to conduct the search by

issuing a written order specifying the place to be searched and,

as far as possible, the article or thing for which the search is to

be made;

(d) The provision further requires that copies of all records

prepared under Section 185 shall be forwarded to the

14 CRI.WP 128-2026-J.odt

jurisdictional Magistrate forthwith and, in any event, not later

than forty-eight hours from the conduct of the search.

16. The power to conduct a search without obtaining a

search warrant is not an unfettered power. The object

underlying Section 185 of the BNSS is to empower the

investigating agency to conduct a search in emergent

circumstances only where he has reasonable grounds to believe

that anything necessary for the purposes of investigation may

be found at a particular place and obtaining a search warrant

from the Magistrate may occasion undue delay and thereby

prejudice the investigation. At the same time, the legislature

has incorporated procedural safeguards to ensure that such

extraordinary power is exercised fairly, transparently and in

accordance with law. The grounds of such belief and the

reasons necessitating an immediate search must be recorded in

writing before the search is undertaken. The requirement of

recording reasons is not an empty formality but constitutes an

important safeguard. The requirements engrafted under

Section 185 are, therefore, mandatory in nature and admit of

strict compliance.

15 CRI.WP 128-2026-J.odt

17. In the present case, we find that there has been a

clear non-compliance with the statutory requirements

prescribed under Section 185 of the BNSS. Admittedly, there is

no material placed on record to indicate that, before

conducting the search, the investigating officer recorded in

writing the grounds of his belief that the search was

immediately necessary or that the articles sought could not

otherwise be obtained without undue delay. Equally, there is no

material in the case diary produced before this Court to

demonstrate that the investigating officer had recorded any

satisfactory reason regarding the urgency necessitating the

search or the likelihood of concealment or destruction of

material relevant to the investigation. The general case diary

entries also do not disclose any contemporaneous record

regarding the conduct of the search or the steps taken upon its

completion, as contemplated under Section 185 of the BNSS.

18. That apart, the allegation that the police personnel

entered the bedroom of petitioner No.1 and forcibly took

possession of her mobile phone, in the absence of a lady police

16 CRI.WP 128-2026-J.odt

constable and without adhering to the statutory procedure,

constitutes a serious intrusion into the privacy of the petitioner

No.1. The right to privacy, being an integral facet of the right to

life and personal liberty guaranteed under Article 21 of the

Constitution of India, cannot be infringed except in accordance

with the procedure established by law. The explanation offered

by the respondents that the search was undertaken in

connection with the investigation of Crime No.26/2026 does

not, by itself, justify departure from the mandatory safeguards

prescribed under the BNSS. The procedural requirements

enacted by the legislature are intended to ensure fairness,

accountability and transparency in the investigative process,

and cannot be dispensed with on the mere plea of

investigation. In our considered view, the decision of this Court

in Dnyaneshwar v. State of Maharashtra (supra) squarely

governs the controversy involved in the present case. The

relevant observations contained in paragraphs 15, 16 and 17

thereof are reproduced hereinbelow:

“15) In the case reported as State v. Rehman (AIR

1960 SC 210) it is laid down by the Apex Court that

as search is a process exceedingly arbitrary in

character, stringent statutory conditions are imposed

on the exercise of the power. The provision of section

17 CRI.WP 128-2026-J.odt

165 of the Cr.P.C. is enacted to enable police to take

search when there is urgency and when it is not

permissible to follow lengthy process, securing search

warrant from Magistrate. In the case of Rehman (cited

supra) the Apex Court has laid down that as the

provision of section 165(1) of the Cr.P.C. is mandatory

in nature, it should be strictly followed. Thus, before

entering a house, investigating oficer has to specify in

writing the things for which search is to be made and

also the ground of his belief that such things would be

found in the house which is to be searched. In view of

the wording of the provision it can be said that the

provision is not restricted to search of what is stolen

or believed to be stolen and it permits the police oficer

to make search for anything necessary for the

purposes of investigation into any ofence. Thus, on

one hand the provision enables police to take search

of the house for investigation of any crime, on the

other, it becomes mandatory for police to record

reasons as the frst step before entering the house.

16) Sub section (2) of section 165 of the Cr.P.C. shows

that police oficer taking action should be either police

oficer in charge of the police station or the

investigating oficer. It can be said that in cases of

urgency, the investigating oficer may depute his

subordinate but in view of the provision of section

165(1) of the Cr.P.C. such deputation must be in

writing. That is also made clear in section 165(3) of

the Cr.P.C.

17) The provision of section 165 of the Cr.P.C. shows

that it applies to searches when offence is committed

under general Act like Indian Penal Code, or special

Acts or also local Acts provided that the conditions

given in section 165 of the Cr.P.C. are satisfied. This

Court has gone through the provisions of the Arms Act

1959 as the respondents have come with the defence

that there was specifc secret information against the

petitioner that he was in possession of frearm illegally.

There is nothing in the Arms Act and the Rules framed

under that Act to enable police to take such search by

ignoring the provision of section 165 of the Cr.P.C.

18 CRI.WP 128-2026-J.odt

This Court has also gone through the provisions of the

Maharashtra Police Act to ascertain the powers of

police officer and this Act also does not show that

police can bypass the provision of section 165 of the

Cr.P.C.”

19. Apart from the non-compliance with Section 185 of

the BNSS, the seizure of the mobile phone of petitioner No.1

also does not satisfy the mandatory requirements prescribed

under Section 105 of the BNSS. The said provision

contemplates that where any property is seized during

investigation, the seizure must be effected in accordance with

the procedure prescribed by law by preparing a

contemporaneous seizure memo in the presence of

independent witnesses, furnishing an acknowledgment to the

person from whose possession the property is seized,

maintaining proper documentation of the seized article and

ensuring transparency in the process of seizure, including

recording the proceedings through electronic means wherever

mandated. The statutory safeguards are intended to preserve

the sanctity of the investigation and to protect citizens against

arbitrary deprivation of their property.

19 CRI.WP 128-2026-J.odt

20. In the present case, the respondents have failed to

place any material on record demonstrating compliance with

the aforesaid statutory requirements. There is no

contemporaneous seizure panchnama evidencing the seizure of

the mobile phone from petitioner No.1. No acknowledgment or

receipt of seizure was issued. There is no material to indicate

that independent panch witnesses were associated with the

seizure or that the seizure proceedings were electronically

recorded as contemplated by law. The explanation

subsequently sought to be offered by the respondents cannot

cure the initial illegality in the absence of contemporaneous

records demonstrating due compliance with the statutory

procedure.

21. The cumulative effect of the non-compliance with

Sections 185 and 105 of the BNSS unmistakably establishes

that the search of the residential premises and the seizure of

the mobile phone were not carried out in accordance with the

procedure established by law. The action of the respondentpolice

personnel, therefore, cannot receive the imprimatur of

this Court.

22. The right to privacy has now been recognised as an

inseparable facet of the right to life and personal liberty

guaranteed under Article 21 of the Constitution of India. Entry

into the residential premises of a citizen, more particularly into

the bedroom occupied by a woman, without adherence to the

statutory safeguards and the forcible seizure of her mobile

phone without following the procedure prescribed under the

BNSS, constitute a serious invasion of the petitioner’s privacy

and dignity. The explanation offered by the respondents that

the search was undertaken in connection with the investigation

of Crime No.26/2026 cannot justify a departure from the

mandatory safeguards enacted by the legislature. 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.

23. The decision of this Court in Dnyaneshwar v. State

of Maharashtra (supra), interpreting the provisions pari

materia to Section 185 of the BNSS, squarely applies to the

facts of the present case. We are, therefore, satisfied that the

search conducted by respondent No.1 and the consequential

seizure of the mobile phone of petitioner No.1, were illegal and

in violation of the statutory provisions as well as the

constitutional guarantee under Article 21 of the Constitution of

India.

24. In the facts and circumstances of the case, we are of

the considered opinion that the petitioner is entitled to

compensation in exercise of the public law jurisdiction of this

Court. Although monetary compensation cannot fully redress

the invasion of privacy and dignity suffered by petitioner No.1,

it would provide some measure of solace for the violation of

her constitutional rights and would also serve as a reminder

that investigative powers must be exercised strictly in

accordance with law and not arbitrarily. Accordingly, the

following order is passed:

ORDER

(i) The writ petition is allowed.

(ii) It is hereby declared that the search conducted at the

residential premises of the petitioners and the consequential

seizure of the mobile phone of petitioner No.1 in connection

with Crime No. 26/2026, registered at Police Station Khapa

were not carried out in accordance with the procedure

prescribed under Sections 185 and 105 of the BNSS, and are,

therefore, unsustainable in law.

(iii) The respondents shall return the mobile phone seized from

petitioner No.1 forthwith, if the same is no longer required in

accordance with law in connection with any pending

investigation or judicial proceedings.

(iv) The State Government shall pay compensation of

Rs.10,000/- (Rupees Ten Thousand only) to petitioner No.1

within a period of two months from the date of this judgment.

It shall be open to the State Government to recover the said

amount from the concerned police officer(s), after fixing

responsibility upon them in accordance with law.

(v) In the event the compensation is not paid within the

aforesaid period, the amount shall carry interest at the rate of

8% per annum from the date it became due until its actual

realization.

Rule is made absolute in the aforesaid terms. There shall

be no order as to costs.

(NIVEDITA P. MEHTA,J.) (URMILA JOSHI PHALKE, J.)