S.179(1) BNSS | Police Cannot Compel Presence Of 'Any Person' Acquainted With Case As Matter Of Right: Andhra Pradesh High Court

Section 179(1) authorises a Police Officer to secure the presence of “any person” subject to two conditions—- (1) if such person appears to be acquainted with the facts and circumstances of the case, and, (2) if such person resides within the limits of his own Police Station or any adjoining station. However, the first proviso to Section 179(1) prescribes exceptions to the above-mentioned power and exempts a—- (i) male person under the age of 15 years or above the age of 60 years, (ii) woman irrespective of the age, (iii) mentally or physically disabled person, and (iv) person with acute illness. Further, under the second proviso, if such a person is willing to attend at the police station, he/she may be permitted so to do

Explaining the application of the first proviso, Justice Venkata Jyothirmai Pratapa observed–

“The proviso, referred to supra, makes it clear that the Police Officer can issue an order in writing to them by virtue of the power under Section 179(1) of BNSS, but he cannot secure their presence before him as a matter of right. Meaning thereby, the said persons have no legal obligation to appear before him in obedience to the notice under Section 179(1) of BNSS, in the light of the exceptions. Such being the case, the Police Officer can examine such person at his residence. If any person receiving notice falls into one of the categories mentioned above, he is not bound to attend before the Police Officer. His failure to attend would not lead to any legal action. The object of this proviso appears to be, such persons, being vulnerable, cannot be troubled by the Police Officer in the name of investigation.”

"The first qualifying proviso though is giving exception to some individuals, it does not take away the power of the Police Officer for issuing the notice under Section 179(1) of BNSS. The said persons are at liberty to express their view either to attend the Police Station or giving their statement at their residence. Doubtless to say that, the language employed under Section 179(1) of BNSS regarding “within the limit of his own Police Station or any adjoining station” restricts the power of the Police Officer to issue such notice under Section 179(1) of BNSS to the person who is not residing within the limits of his own Police Station or any adjoining station. Section 179(1) of BNSS is not empowering the Police Officer with unlimited jurisdiction to issue such notice to any person, who is residing far away.” the Single Judge added.

Facts:

The Court was dealing with a writ petition where the petitioner, who was residing in Noida, was issued notice under Section 179 and was requested to appear before the Investigating Officer (Respondent 2) at Vijayawada, in relation to a crime registered for offences under Sections 420, 409 read with 120-B of IPC. Notably, the petitioner was not an accused in the said crime. Thereafter, he again received a notice to appear before the S.I.T office at Vijayawada. The petitioner had thus attended before the IO twice in obedience of the notices served on him.

Through the writ petition, the petitioner argued that he was residing in Noida and was aged 65 years, and thus, the IO has no authority to mandatorily secure his presence at Vijayawada under Section 179. The petitioner also submitted that he was suffering from serious health issues and was advised not to travel or sit for a longtime. However, the petitioner submitted that he was willing to be examined at his own residence with prior intimation or at any neutral place in Noida.

On the contrary, the State argued that the provisos appended the Section 179(1) enable the IO to issue an order in writing to secure the presence of “any person” beyond his jurisdiction. However, such a person is authorised to express his unwillingness to attend.

Thus, the Court had to determine whether an Investigating Officer can issue an order in writing under Section 179(1) of BNSS to secure the attendance of any person acquainted with the facts of the case, who is not residing within the limits of his Police Station or any adjoining station.

Court's Findings:

At the outset the Court observed that the power of a Police Officer to secure presence of “any person” under Section 179 is not untrammelled and is restricted to “any person” residing within the limits of his own Police Station or adjoining station.

In context of the present case, the Court observed,

“… the argument of the learned Senior Counsel that issuance of notice under Section 179(1) of BNSS to the Petitioner, is subject to the willingness of the Petitioner by the aid of second proviso, holds no water, as the question of willingness does not arise due to lack of power on the Police Officer making investigation to issue notice to such person, who is not residing within the limits of his Police Station or adjoining station.”

Noting that the notice issued under Section 179 is without jurisdiction, the Court stated,

“The reason being, the governing provision i.e., Section 179(1) of BNSS itself in categorical terms excludes the jurisdiction of the Police Officer to issue such an order in writing. Then, the application of qualifying provisos to the circumstances which are specifically excluded in the governing clause, does not arise. The qualifying provisos emphasize the procedure need to be followed for the persons falling under the scope of Section 179(1) of BNSS. That being the case, the qualifying proviso Nos.1 and 2 do not come to the rescue of the Police Officer to sustain such notice.”

The Court thus concluded that a Police Officer has no power to issue notice under Section 179(1) to any person who is not residing within the limits of his own station or any adjoining station. However, the same does not preclude him from making an investigation to examine such a person by approaching him at his place.

Accordingly, the Court disposed of the petition while extending liberty to the IO to examine the petitioner at his residence in the presence of an advocate, who can sit 10-15 feet away from the petitioner and record his statement through electronic means.

Case Details:

Case Number: WRIT PETITION NO: 22577/2025

Case Title: V D MOORTHY v. THE STATE OF AP and others

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