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. {Para 22}.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION No. 128/2026
Khushbu W/o. Iddrish Khan VS. State of Maharashtra,
CORAM: URMILA JOSHI PHALKE AND
NIVEDITA P. MEHTA, JJ.
JUDGMENT (PER : Nivedita P. Mehta, J.) :
Dated: 03.07.2026
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.)
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