Section 91 CrPC vs Section 94 BNSS — Summons to Produce Documents

In India, Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 91 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. It expressly extends the power to compel production to electronic communication and communication devices likely to contain digital evidence, and lets police issue the written order in electronic form.

At a glance

A summons to produce is a procedural power, so no punishment or First Schedule classification applies.

What changed

• Expanded — what can be demanded (Section 94(1)): "the production of any document or other thing" becomes "the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing". Section 2(1)(i) BNSS defines "electronic communication" as written, verbal, pictorial or video content transmitted between persons or devices "by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera".
• Expanded — form of the police order (Section 94(1)): "such officer a written order" becomes "such officer may, by a written order, either in physical form or in electronic form, require the person". The court still acts by summons.
• Minor edit — Section 94(1): "under this Code" becomes "under this Sanhita".
• Minor edit — Section 94(2): "a document or other thing" becomes "a document, or other thing". The rule is unchanged.
• Minor edit — Section 94(3)(a): "sections 123 and 124 of the Indian Evidence Act, 1872" becomes "sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023". The two BSA sections carry the same text as the IEA sections they replace — evidence from unpublished official records on affairs of State needs the head of department's permission (s.129), and a public officer is not compelled to disclose communications made in official confidence where public interest would suffer (s.130). The Bankers' Books Evidence Act, 1891 saving is unchanged.
• Narrowed wording — Section 94(3)(b): "a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority" becomes "a letter, postcard, or other document or any parcel or thing in the custody of the postal authority". Section 95 BNSS (formerly Section 92 CrPC, "letters and telegrams") likewise now deals with the postal authority only.

Statutory text (relevant extract)

Extract, Section 91(1) CrPC (repealed from 1 July 2024):

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

Extract, Section 94(1) BNSS:

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order.

How it works — the steps

1. Who may issue. Any court, by summons; or an officer in charge of a police station, by written order in physical or electronic form (Section 94(1)).
2. The test. Production must be "necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding" under the BNSS, by or before that court or officer. The word "may" makes it a discretion.
3. The addressee. The person "in whose possession or power" the document or thing "is believed to be". On the words of the section, possession or power, not ownership, is the test.
4. What is demanded. A document, an electronic communication, a communication device likely to contain digital evidence, or any other thing (Section 94(1)).
5. How to comply. Attend and produce, or simply produce, at the time and place stated. A person required merely to produce complies by causing production through someone else (Section 94(2)).
6. What is outside the section. Section 94 does not affect the privileges in Sections 129 and 130 BSA or the Bankers' Books Evidence Act, 1891, and does not apply to postal articles in the custody of the postal authority (Section 94(3)); those go through Section 95.

What this means in practice

For the person served (including a company, bank or service provider)

• Check who issued it: a court summons or a written order from an officer in charge of a police station. An electronic-form order is valid on the words of Section 94(1).
• Produce what is in your possession or power; you may send it through an authorised person (Section 94(2)). Where the item is a device, keep a record of its condition and what was handed over — the section itself does not prescribe the handover record.
• If the document is an official record on affairs of State, an official communication, or a bankers' book, raise the Section 94(3)(a) saving.

For the accused and defence advocate

• At the charge stage, the court ordinarily considers only the police record; the accused ordinarily cannot invoke Section 91 to seek production of defence documents (Debendra Nath Padhi), unless material of sterling quality withheld by the investigator has a crucial bearing on the charge (Nitya Dharmananda).
• At the defence stage, apply under Section 256(3) (Sessions trial) or Section 266(2) (warrant case) BNSS: the court "shall" issue process unless the application is for vexation, delay or defeating the ends of justice, recorded in writing (Sarla Gupta).
• At a PMLA bail hearing governed by Section 45(1)(ii), Sarla Gupta allows a Section 91 CrPC / Section 94 BNSS application for documents not relied on by the ED, subject to an objection that disclosure may prejudice a pending investigation.

For advocates

• A police direction to produce a client's document or digital device must be complied with by production before the jurisdictional court, not the investigating officer (In Re: Summoning Advocates).

Judgments that still matter

State of Orissa v. Debendra Nath Padhi — Supreme Court, 29 November 2004. A three-Judge Bench (judgment by Y.K. Sabharwal J.) held that at the time of framing charge or taking cognizance the accused "has no right to produce any material". On Section 91 CrPC, it held that necessity or desirability "would have to be seen with reference to the stage when a prayer is made", that the accused's entitlement "would ordinarily not come till the stage of defence", that the section "does not confer any right on the accused to produce document in his possession to prove his defence", and that the law "does not permit a roving or fishing inquiry". The text in our record shows no paragraph numbers. Section 94(1) BNSS repeats "necessary or desirable" and the stages, so, on a reading of the text, the reasoning carries over.

Nitya Dharmananda @ K. Lenin & Anr. v. Gopal Sheelum Reddy @ Nithya Bhaktananda & Anr. — Supreme Court, 7 December 2017. Adarsh Kumar Goel and U.U. Lalit JJ. held that at the charge stage "the accused cannot ordinarily invoke Section 91", but the court is "not debarred from exercising its power" if satisfied that material withheld from the chargesheet "has crucial bearing on the issue of framing of charge" (para 6), or is "of sterling quality" (para 9). It set aside a High Court order that had summoned the entire investigation material at the accused's request (para 10).

Sarla Gupta & Another v. Directorate of Enforcement — Supreme Court, 7 May 2025. A three-Judge Bench (Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih JJ.; judgment by Oka J.) read Section 91 CrPC with its BNSS counterpart. It read Debendra Nath Padhi as laying down "no absolute prohibition" on an accused applying before the defence stage, the entitlement ordinarily arising only at that stage (para 33). It contrasted the discretionary "may" in Section 91 with the mandatory "shall" in Sections 233(3) and 243(2) CrPC (now Sections 256(3) and 266(2) BNSS), describing the defence-stage right as "on a much higher pedestal" (para 44). In PMLA bail hearings under Section 45(1)(ii), it held the accused may invoke "Section 91 of the CrPC (Section 94 of the BNSS)" for documents not relied on by the ED, subject to an objection that disclosure may prejudice a pending investigation (paras 52, 54, 55).

Satender Kumar Antil v. Central Bureau of Investigation & Anr., [2025] 7 S.C.R. 1858 (2025 INSC 909) — 16 July 2025. M.M. Sundresh and N. Kotiswar Singh JJ., holding that a notice of appearance under Section 35 BNSS cannot be served electronically, contrasted the provisions where the BNSS does provide for electronic communication by the investigating agency: "Section 94 deals with issuance of summons, in an electronic form, to produce a document" (para 42), and such procedures have no bearing on liberty (paras 40-42). The electronic-form production order is therefore a deliberate feature of Section 94, distinct from the Section 35 notice.

In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues, 2025 INSC 1275 — 31 October 2025. B.R. Gavai CJI, K. Vinod Chandran and N.V. Anjaria JJ. (judgment by Vinod Chandran J.) noted that Section 94 BNSS lets a court or officer in charge of a police station require production "in the physical form or in electronic form", and that Section 94(3) protects documents under Sections 129 and 130 BSA "but does not afford such protection to Section 132" (para 54). It directed that an officer's summons to an advocate to produce documents "can only be for production before Court" (para 58), and that a digital device directed to be produced under Section 94 be produced before the jurisdictional court, which hears objections and opens it only in the presence of the party and the advocate (para 67, directions 2.1 and 3 to 3.3).

Which law applies to your case

Section 531(2)(a) BNSS provides that any inquiry, trial or investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a production order in a proceeding pending on that date is governed by Section 91 CrPC, and one in a proceeding begun on or after it by Section 94 BNSS. The express reference to devices and electronic-form orders is found only in Section 94. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 91 CrPC? Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 91 CrPC. A court may issue a summons, and an officer in charge of a police station may issue a written order, requiring the person believed to possess a document or thing to attend and produce it, or to produce it, where its production is necessary or desirable for an investigation, inquiry, trial or other proceeding.

Does Section 94 BNSS cover mobile phones and digital devices? Yes, expressly. Section 94(1) BNSS covers 'any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing'. Section 91 CrPC spoke only of 'any document or other thing'. Section 2(1)(i) BNSS defines electronic communication to include content transmitted by a telephone, mobile phone, computer, camera, or any other electronic device or electronic form specified by Central Government notification.

Can the police send a Section 94 order by email or WhatsApp? Section 94(1) BNSS allows the officer in charge of a police station to require production 'by a written order, either in physical form or in electronic form'; Section 91 CrPC referred only to 'a written order'. In Satender Kumar Antil v. CBI, [2025] 7 S.C.R. 1858, the Supreme Court contrasted this with a Section 35 notice, which cannot be served electronically. The section names no platform; on a reading of its words, what counts is that the order is a written order in electronic form.

Do I have to go in person to produce the document? No. Under Section 94(2) BNSS, as under Section 91(2) CrPC, a person required merely to produce a document or thing complies if he causes it to be produced instead of attending personally.

Can an accused use Section 94 BNSS to get documents at the charge stage? Ordinarily not. In State of Orissa v. Debendra Nath Padhi (29 November 2004), the Supreme Court held that an accused cannot invoke Section 91 CrPC at the charge stage to show innocence, because only the police record is considered then. In Nitya Dharmananda v. Gopal Sheelum Reddy (7 December 2017), it added that the court may summon withheld material of sterling quality with a crucial bearing on the charge.

How is Section 94 different from the accused's right at the defence stage? Section 94 BNSS is discretionary ('may'). At the defence stage, Sections 256(3) and 266(2) BNSS (formerly 233(3) and 243(2) CrPC) say the court 'shall' issue process for production unless the application is for vexation, delay or defeating the ends of justice. In Sarla Gupta v. Directorate of Enforcement (7 May 2025), the Supreme Court held that the defence-stage right stands on a higher pedestal than Section 91 CrPC.

Can the police ask an advocate to produce a client's documents or phone? In In Re: Summoning Advocates (2025 INSC 1275), the Supreme Court held that document production is not covered by the Section 132 BSA privilege, but a Section 94 BNSS direction to an advocate must be complied with by production before the jurisdictional court, not the investigating officer. The court decides objections, and a digital device is opened only in the presence of the party and the advocate.

Which documents are protected from a Section 94 summons? Section 94(3) BNSS says the section does not affect Sections 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023 (unpublished official records on affairs of State; official communications) or the Bankers' Books Evidence Act, 1891, and does not apply to letters, postcards, documents, parcels or things in the custody of the postal authority, which Section 95 BNSS governs.

Related

• Supply of documents to the accused: CrPC 207 vs BNSS 230
• Discharge: CrPC 227 and 239 vs BNSS 250 and 262
• Police search of your home and videography
• Summons on WhatsApp or email — electronic service
• WhatsApp chats, emails and screenshots as evidence
• CrPC to BNSS master table
• Sections 121–132 IEA vs Sections 127–137 BSA — Privileged Communications and Witness Privileges

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(i), 94, 95, 256(3), 266(2) and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 91, 92, 233(3) and 243(2).
• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 129 and 130. Indian Evidence Act, 1872: Sections 123 and 124.
• Judgments read in full text: State of Orissa v. Debendra Nath Padhi (Diary_20164-2000_Judgment.md); Nitya Dharmananda v. Gopal Sheelum Reddy (Diary_33518-2016_Judgment.md); Sarla Gupta v. Directorate of Enforcement (Diary_31507-2019_Judgment.md); Satender Kumar Antil v. CBI (2025_7_1858_1878_EN.md); In Re: Summoning Advocates (Diary_35619-2025_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.