Notice under Section 94/179 BNSS cannot be issued to an accused; it is only applicable to witnesses.

O R D E R

Heard learned counsel for the petitioner and learned Government Pleader for Home appearing on behalf of respondent Nos.1 to 4 and perused the record. With the consent of learned counsel appearing for the parties, the Writ Petition is taken up for hearing and disposal at admission stage.

2. Shorn of unnecessary details, the case of the petitioner in brief is that though, a case vide Cr.No.109/2025 is registered against the petitioner herein by arraying him as Accused No.1 therein, the respondent authorities have issued notice dated 21-06-2025 under Section 94 /179 of Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ') calling upon him to appear before the 4^th respondent along with original unregistered Will deed made and executed by late Smt.Kousalya in his favour on 25-05-2022 as being illegal, arbitrary and also contrary to the decision of this Court dated 31-03-2021 in W.P.No.7333 of 2021, with a consequential direction to respondent Nos.3 and 4 to proceed with the investigation in Cr.No.109/2025 in fair and unbiased manner.

3. It is contended on behalf of the petitioner that the 4^th respondent by impugned notice has called upon the petitioner to produce the original unregistered Will deed to be used against him in connection with Cr.No.109/2025 wherein the petitioner is arrayed as Accused No.1.

4. Per contra, learned Government Pleader for Home submits that the petitioner herein is arrayed Accused No.1 in Cr.No.109/2025 and that the 4^th respondent authority, in the course of investigation, had inadvertently issued notice under Section 94 /179 BNSS to the petitioner instead of notice under Section 35 (3) of BNSS .

5. Learned Government Pleader for Home fairly submits that since, the petitioner herein is arrayed as Accused No.1 in the aforesaid crime, the respondent authorities ought to have issued notice under Section 35 (3) of BNSS and for the said reason, the impugned notice cannot be sustained.

6. I have taken note of respective contentions urged.

7. This Court in W.P.No.7333 of 2021 had held that notice under Section 94 /179 of BNSS can be issued to a witness and not to an accused.

8. Admittedly, the petitioner herein is arrayed as A-1 in Cr.No.109/2025, which is under investigation.

9. Since, the petitioner herein is arrayed as an accused, the respondent authorities ought to have issued notice under Section 35 (3) of BNSS calling upon the petitioner to produce the information/document for the authorities to conduct investigation and failure to produce such document/information, the authorities are required to take further action by drawing adverse inference against the petitioner, who is arrayed as an accused. The respondent authorities instead of undertaking the aforesaid course of action, however, chose to issue notice under Section 94 /179 of BNSS , which as held by a Coordinate Bench of this Court in W.P.No.7333/2021 is to be issued only to a witness. By the impugned notice, the respondent authorities are directing the petitioner to produce the incriminating evidence to be used against him, which is not permitted in law.

10. In view of above, this Court is of the view that the impugned notice dated 21-06-2025 issued to the petitioner under Section 94 /179 of BNSS cannot be sustained.

11. Accordingly, the Writ Petition is allowed and the impugned notice dated 21-06-2025 issued to the petitioner is set aside. However, the respondent authorities are at liberty to take further action of investigating into Cr.No.109/2025 in accordance with law.

12. Consequently, miscellaneous petitions, if any, pending shall stand closed. No order as to costs.