Mumbai, July 13: Police entering a woman's bedroom without adherence to the statutory safeguard is a serious invasion of privacy and dignity, the Bombay High Court has held.
The court noted that an illegal late-night search of a woman’s bedroom and seizure of her mobile phone without following the law infringed her fundamental rights.
A bench of Justices Urmila Joshi Phalke and Nivedita Mehta directed the Maharashtra government to pay the woman Rs10,000 as compensation, with liberty to recover the amount from the erring police officers after fixing responsibility.
The court declared illegal the search conducted at the residence of a Nagpur couple and the seizure of the wife’s mobile phone by Khapa police during the investigation of a road accident case. The court directed the State to pay Rs10,000 as compensation to the woman and permitted it to recover the amount from the erring police officers after fixing responsibility.
The petition was filed by Khushbu Khan and her husband Iddrish Khan, who alleged that police repeatedly visited their house in January and February this year while investigating a road accident involving an unidentified driver. They claimed the husband was not named in the FIR, yet officers entered their house without notice, questioned Khushbu in the absence of a woman constable and took away her mobile phone without preparing a seizure panchnama or issuing any receipt.
The State denied the allegations and argued that the visits were necessary for the investigation. It maintained that the phone was lawfully seized and sent for forensic examination.
After examining the case diary and records, however, the HC found that the investigating officer had failed to comply with the mandatory safeguards under Sections 185 and 105 of the BNSS.
“The power to conduct a search without obtaining a search warrant is not an unfettered power,” the bench said. It added that the statutory requirements under Section 185 “are mandatory in nature and admit of strict compliance.”
The court noted that there was no material to show the investigating officer had recorded reasons justifying an urgent search, nor was there any contemporaneous record of the search. It also found no seizure panchnama, acknowledgment, independent witnesses or electronic recording of the seizure as required under law.
“Entry into the residential premises of a citizen, more particularly into the bedroom occupied by a woman, without adherence to the statutory safeguards… constitutes a serious invasion of the petitioner’s privacy and dignity,” the bench observed.
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Holding that the search and seizure violated both the BNSS and Article 21 of the Constitution, the court ordered the return of the woman’s mobile phone if it was no longer required for investigation and directed the State to pay compensation within two months.
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