Bombay HC Nagpur Bench Awards Compensation for Police Entering Woman's Bedroom, Seizing Mobile Phone Without BNSS Compliance
The Bombay High Court's Nagpur Bench found police had entered a woman's bedroom and seized her mobile phone without following mandatory safeguards under Sections 185 and 105 of the BNSS, violating Article 21. The State must pay Rs 10,000 in compensation within two months.
A Division Bench of the Bombay High Court at Nagpur, comprising Justice Urmila Joshi Phalke and Justice Nivedita P. Mehta, has declared that the search of a woman's residential premises and the seizure of her mobile phone by personnel attached to Police Station Khapa, Saoner, were carried out in breach of the Bharatiya Nagarik Suraksha Sanhita, 2023 and in violation of Article 21 of the Constitution. The Court directed the State of Maharashtra to pay compensation of Rs 10,000 to the petitioner within two months, with liberty to recover the amount from the responsible police officer or officers after fixing accountability. The judgment, pronounced on 3 July 2026 in Criminal Writ Petition No. 128/2026, also directed the return of the seized mobile phone if it is no longer required for any pending investigation or judicial proceedings.
The Accident, the FIR, and the Uninvited Police Visits
The sequence began on 24 January 2026, when Crime No. 26/2026 was registered at Police Station Khapa. The First Information Report, filed by one Sachin Deepak Kalamkar, alleged that a silver-coloured four-wheeler had collided with a motorcycle bearing registration No. MH-40-BV-0670 near the Kanhan River in the vicinity of Paradkar's field. The motorcycle rider, Ashish Sheshrao Nile, sustained injuries to his head, hand and leg. The driver of the four-wheeler fled the scene. The FIR registered offences under Rule 134 of the Maharashtra Motor Vehicles Rules, 1989 and Sections 281 and 125(a) of the Bharatiya Nyaya Sanhita, 2023.
Petitioner No. 2, Iddrish Khan, is the husband of petitioner No. 1, Khushbu Khan. He was not named as an accused in the FIR, which had been registered against an unknown driver. Nonetheless, police from Khapa began visiting the couple's residence at Ward No. 4, Sillewada, Saoner, in connection with the investigation.
On 25 January 2026 at about 11.30 p.m., police visited the residence when Khushbu was alone. On 31 January 2026 at about 5.00 p.m., officers returned and interrogated her again despite being told her husband was absent. On both occasions, the petitioners alleged, no warrant, written authorisation, or notice under the BNSS was produced. No lady police constable accompanied the personnel, although Khushbu was questioned inside her home.
The petitioners further alleged that police entered the bedroom, took possession of Khushbu's mobile phone, prepared no seizure panchnama, called no independent panch witnesses, issued no acknowledgment or receipt, and undertook no videography. The phone remained in police custody for two days. Khushbu promptly lodged a complaint with Respondent No. 2, the Superintendent of Police, Nagpur (Rural). On 3 February 2026, she submitted a further representation enclosing CCTV footage of the visits. No action followed.
Subsequently, police issued a notice under Section 35(3) of the BNSS directing Iddrish to appear before the Investigating Officer. He was stated to be out of town. Police continued to visit the residence, including officers from the Local Crime Branch, at various hours including late at night. Iddrish filed an application before the Judicial Magistrate First Class, Saoner, seeking permission to surrender. By order dated 4 February 2026, the Magistrate rejected that application, observing that his name did not appear in the FIR, which had been registered against an unknown driver, and that a notice under Section 35(3) of the BNSS did not by itself render him an accused while the investigation remained in progress.
The Statutory Framework: What Sections 185 and 105 of the BNSS Actually Require
The central legal issue was whether the search and seizure complied with Section 185 of the BNSS, which governs searches by police officers during investigation without a search warrant, and Section 105 of the BNSS, which prescribes the procedure for seizing property.
The Bench set out the requirements of Section 185 in detail. Before entering any premises without a warrant, the officer in charge must record in writing, in the case diary, the grounds for believing that the article sought may be found at that location and that obtaining it through other means would occasion undue delay. The search must, as far as practicable, be conducted personally by the investigating officer. Critically, the provision mandates that every search be recorded through audio-video electronic means, preferably by mobile phone. If the investigating officer cannot conduct the search personally, he must record reasons in writing and issue a written order to a subordinate specifying the place and the article to be searched for. Copies of all records must be forwarded to the jurisdictional Magistrate within forty-eight hours.
The Bench stated that the power to search without a warrant is not an unfettered one. The legislature incorporated these safeguards to ensure the extraordinary power is exercised fairly, transparently and in conformity with law. The recording of grounds and reasons before the search commences is not a mere formality. The requirements of Section 185, the Bench held, are mandatory and admit of strict compliance.
On the seizure side, Section 105 of the BNSS contemplates preparation of a contemporaneous seizure memo in the presence of independent witnesses, furnishing of an acknowledgment to the person from whom the property is taken, proper documentation, and electronic recording of proceedings wherever mandated.
How the Bench Reasoned Through the State's Defence
The State's Additional Public Prosecutor offered several explanations. She submitted that the 11.30 p.m. visit on 25 January was for investigation purposes and that Khushbu's in-laws were also present, making the claim that she was alone factually incorrect. She contended the repeated visits were necessitated by the investigation. On the mobile phone, she submitted that the device had been produced voluntarily by Khushbu's mother-in-law, Shahida Khan Mansoor Khan, and had been seized in accordance with law under Section 185 of the BNSS. She also tendered the case diary for the Court's perusal and stated the phone had been sent for forensic examination, with the report awaited. The respondents also alleged that the DVR installed at the residence had been removed by the petitioners to suppress evidence and lend credibility to the complaints.
The Bench was not persuaded. Examining the case diary, the Court found no material indicating that the investigating officer had recorded, before the search, any written grounds for believing the search was immediately necessary or that the articles sought could not otherwise be obtained without undue delay. The case diary entries contained no contemporaneous record of the search or the steps taken after it, as Section 185 requires. The explanation that the search was for investigation purposes did not, the Bench held, substitute for mandatory statutory compliance.
On the seizure, the Court found no contemporaneous seizure panchnama, no acknowledgment or receipt issued to Khushbu, no material showing independent panch witnesses were associated, and no evidence of electronic recording of the seizure proceedings. The subsequent explanation offered by the State could not cure the initial illegality in the absence of contemporaneous records.
The Bench relied on Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949, which had interpreted Section 165 of the Code of Criminal Procedure — the provision pari materia to Section 185 of the BNSS — as mandatory and requiring strict compliance. In that decision, this Court had drawn on the Supreme Court's ruling in State v. Rehman (AIR 1960 SC 210), which characterised search as “a process exceedingly arbitrary in character” and held that stringent statutory conditions must be followed. The Bombay HC had held in Dnyaneshwar that recording reasons is the first mandatory step before entering any premises, and that no investigation objective can justify bypassing that requirement.
Privacy, Dignity, and the Bedroom Intrusion
Beyond procedural non-compliance, the Bench addressed the constitutional dimension directly. The right to privacy, it observed, is an inseparable facet of the right to life and personal liberty under Article 21. Entry into the residential premises of a citizen — particularly into the bedroom of a woman — without adherence to statutory safeguards, and the forcible seizure of her mobile phone without following prescribed procedure, constitute a serious invasion of privacy and dignity. The fact that the search was linked to a legitimate criminal investigation did not justify departure from the mandatory safeguards. The investigating agency, the Bench held, must act strictly within the bounds of law; the object of investigation cannot legitimise an otherwise illegal search or seizure.
The allegation that police entered Khushbu's bedroom without a lady constable present received particular attention in the Court's assessment of the gravity of the violation.
Having found breaches of both Sections 185 and 105 of the BNSS and a violation of Article 21, the Bench concluded that the search and seizure were unsustainable in law and that they could not receive the imprimatur of the Court.
Order
The Criminal Writ Petition was allowed. The Division Bench passed the following specific directions:
The search conducted at the petitioners' residential premises and the seizure of Khushbu's mobile phone in connection with Crime No. 26/2026 registered at Police Station Khapa were declared to have been carried out in breach of Sections 185 and 105 of the BNSS and, therefore, unsustainable in law.
The respondents were directed to return the mobile phone forthwith if it is no longer required for any pending investigation or judicial proceedings.
The State Government was directed to pay compensation of Rs 10,000 to petitioner No. 1, Khushbu Khan, within two months from the date of the judgment. The State was given liberty to recover that amount from the concerned police officer or officers after fixing responsibility in accordance with law.
In the event the compensation is not paid within two months, it shall carry interest at 8% per annum from the date it became due until actual realisation.
Rule was made absolute in the above terms. No order as to costs.