The Bombay High Court's Nagpur Bench has held that police authorities cannot bypass the mandatory safeguards laid down under the Bharatiya Nagarik Suraksha Sanhita (BNSS) while conducting searches during investigation. The Court ruled that the search of a woman's residence and the seizure of her mobile phone were carried out in violation of statutory procedure and infringed her constitutional right to privacy under Article 21.
Background of the Case
The petition was filed by Khushbu and her husband, Iddrish Khan, alleging repeated harassment by police officers investigating Crime No. 26/2026 registered at Khapa Police Station for offences under the Maharashtra Motor Vehicles Rules, 1989 and the Bharatiya Nyaya Sanhita (BNS). The petitioners claimed that although the husband was not named in the FIR, police repeatedly visited their residence, entered the house without lawful authority, questioned the woman in the absence of a lady police constable, and seized her mobile phone without preparing a seizure memo or following the procedure prescribed under the BNSS.
The State denied the allegations, contending that the visits were part of a lawful investigation and that the mobile phone had been seized in accordance with law before being sent for forensic examination.
Court's Observations
After examining the case diary and the statutory framework, the Division Bench found that the investigating agency had failed to comply with the mandatory requirements under Section 185 of the BNSS governing searches without a warrant.
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The Court noted that there was no record showing the investigating officer had documented reasons for believing that an immediate search was necessary or that obtaining a search warrant would have caused undue delay. It also found no contemporaneous record demonstrating compliance with other procedural safeguards required under the law.
The Bench further observed that the seizure of the woman's mobile phone also violated Section 105 of the BNSS. According to the Court, there was no seizure panchnama, no acknowledgment issued to the petitioner, no evidence of independent witnesses during the seizure, and no material showing compliance with the statutory procedure.
Quoting the importance of constitutional protections, the Bench observed:
“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.”
The Court further observed:
“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.”
Referring to its earlier decision in Dnyaneshwar v. State of Maharashtra, the Court reiterated that the safeguards governing police searches are mandatory and cannot be ignored merely because an investigation is underway.
Decision
Allowing the writ petition, the Bombay High Court declared that the search conducted at the petitioners' residence and the seizure of petitioner No. 1's mobile phone were not carried out in accordance with Sections 185 and 105 of the BNSS and were therefore unsustainable in law.
The Court directed the authorities to return the seized mobile phone if it was no longer required for any pending investigation or judicial proceedings. It also ordered the State Government to pay ₹10,000 as compensation to petitioner No. 1 within two months, while granting liberty to recover the amount from the concerned police officers after fixing responsibility in accordance with law.
The Court further directed that if the compensation is not paid within the stipulated period, it shall carry interest at the rate of 8% per annum until realization.
Case Details
Case Title: Khushbu and Another v. State of Maharashtra and Another
Case Number: Criminal Writ Petition No. 128 of 2026
Judges: Justice Urmila Joshi Phalke and Justice Nivedita P. Mehta
Decision Date: 3 July 2026
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