Police cannot summon an accused to hand over her phone, Kerala HC rules, quashing BNSS notice
Justice Jobin Sebastian held that Section 94 of the BNSS cannot be used to compel an accused to produce a mobile phone said to hold incriminating material, because that would violate the protection against self-incrimination in Article 20(3).
A Malappuram police officer sent an accused woman a written notice to produce her mobile phone. On 10 November 2026 the Kerala High Court quashed it, holding that the police cannot use Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to compel an accused to hand over a phone said to hold incriminating material.
Justice Jobin Sebastian rested the ruling on Article 20(3) of the Constitution and on a line of Supreme Court and Kerala High Court decisions. The order does not decide whether the police may seize the phone by a lawful search.
A defamation case and a phone notice
The petitioner is the sole accused in Crime No. 133/2026 of Manjeri Police Station, Malappuram. The case is registered under Sections 79 and 356(2) of the Bharatiya Nyaya Sanhita.
The prosecution alleged that on 17 and 30 November 2025 she sent voice messages on WhatsApp to relatives of the complainant. The messages, it said, contained highly defamatory remarks against the complainant and outraged her modesty.
On 12 February 2026 a Sub Inspector of Police issued Annexure A2, a notice directing the petitioner to produce her mobile phone for the investigation. She asked the High Court, in Crl.MC No. 1943 of 2026, to quash it.
Three views on one notice
Her counsel, Mr Sarath Babu Kottakkal, argued that the notice violates the guarantee against self-incrimination under Article 20(3).
Smt Megha K. Xavier, Senior Public Prosecutor, said that directing an accused to produce a phone infringes no fundamental right and is not testimonial compulsion.
She relied on Section 94 of the BNSS, which lets an officer in charge of a police station require production of any document or electronic communication, including communication devices, that he considers necessary or desirable for an investigation.
Mr K.K. Dheerendrakrishnan, the amicus curiae, said that a Section 94 summons for a phone would be testimonial compulsion, especially where the prosecution says the phone holds incriminating material. If the phone is needed, he said, the police can search and seize it in accordance with law instead.
The question for the court
Justice Sebastian first described Section 94(1). It empowers a court or an officer in charge of a police station to require production of a document or other thing for investigation, inquiry or trial. That power, he said, is subject to Article 20(3), under which no person accused of an offence can be compelled to be a witness against himself.
He framed the question as follows:
“whether the accused can be directed to produce his mobile phone allegedly used for the commission of the offence by issuing a summons or written order under Section 94 of the BNSS, which corresponds to Section 91 of the Cr.P.C.” (para 8)
Physical evidence is not testimony
The court began with State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808). That decision separated testimonial evidence from physical or medical evidence. Obtaining the second kind does not engage the bar on testimonial compulsion.
A direction to undergo a potency test, give a voice sample or furnish fingerprints is therefore not testimonial compulsion and does not by itself violate Article 20(3). That is the starting point the prosecution relied on.
Shyamlal: an accused is outside Section 94
Next came State of Gujarat v. Shyamlal Mohanlal Choksi (AIR 1965 SC 1251), which asked whether an accused can be directed to produce documents under Section 94(1) of the old Code. The majority held that, on its true construction, the provision does not apply to an accused.
The court said the Supreme Court looked at the scheme of the Code, the consequences of ignoring a production order and the constitutional protection. It concluded that the legislature did not mean to include an accused in the provision.
Justice Sebastian reproduced paragraphs 17 to 19 of that judgment. They say a refusal to produce a thing on the ground of Article 20(3) would be a reasonable excuse for non-production, and that whether the guarantee is infringed depends on the nature of the document ordered.
The same passage also says the protection operates against proceedings in court and does not apply to orders made by a police officer during investigation. The Kerala judgment does not discuss that sentence separately.
Search warrants are different
The court then cited V.S. Kuttan Pillai v. Ramakrishnan ((1980) 1 SCC 264), which applied Shyamlal to Section 91(1) of the old Code. A summons to produce a document or thing cannot be issued to a person accused of an offence.
Kuttan Pillai also drew a line between compelling an accused to produce documents and obtaining them through a lawful search. A search warrant under Section 93 stands on a different footing, and the bar on compelled production does not invalidate the independent powers of search and seizure.
Kerala decisions on the same line
A Division Bench in Gopalakrishnan Nayanar v. Sasidharan Nambiar (1996 KHC 21) held that a person against whom a complaint alleges an offence is an accused even before the inquiry under Section 202 is complete. A Section 91 order could not be issued against such a person.
In Kurian v. Joseph (2021 (2) KHC 124), the High Court held that a complainant could not use Section 91(1) to make the accused produce an original sale deed. It noted that a general search warrant under Section 93(1)(c) could be sought instead.
In Rajesh T.K. v. State of Kerala (2023 KHC OnLine 9993), the court examined Section 91 notices issued to accused persons. It held that the word “person” in the section does not cover an accused for the purpose of compelling production, and that doing so would be contrary to the Supreme Court’s reading and to the constitutional protection.
The phone: where the court drew the line
From these decisions Justice Sebastian concluded in paragraph 15 that Section 94(1) of the BNSS, which corresponds to Section 91(1) of the old Code, cannot be used to compel an accused to produce documents or things that would incriminate him, for investigation, inquiry or trial.
He said the principles in Shyamlal and Kuttan Pillai have been consistently followed in Kerala and continue to govern Section 94 of the BNSS. He accepted that producing a physical object does not always amount to testimonial compulsion.
The phone, however, was different where the police allege it holds incriminating material. In his words, in paragraph 16:
“such compulsion would violate the protection guaranteed under Article 20(3)” (para 16)
The investigating agency, he concluded, cannot compel the accused to produce the phone by invoking Section 94 of the BNSS.
Order
The Crl.MC was allowed on 10 November 2026, after it came up for admission on 4 November. Annexure A2, the notice of 12 February 2026 issued by the Sub Inspector of Police, Manjeri Police Station, Malappuram, stands quashed.
The court gave no direction on seizure of the phone by search, and made no finding on the allegations against the petitioner. The order records the amicus’s submission that the police can search and seize the phone under law if it is needed.