This article has been written by Bhuvnesh Manchanda, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution ( MAR-01-2023 ) and has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Chances are there that you might have heard about the seizure of computers and mobile phones of the five academicians of Jawaharlal Nehru University by the Police as electronic evidence. Also, you might have also heard about the seizure of mobile phones of some Bollywood personalities in Sushant Singh Rajput’s case. On a frequent basis, we see the seizure of personal electronic devices hereinafter referred to as “PED” of the accused by investigating agencies across the country. In some cases, investigating agencies seize and search the PED at the drop of a hat without it being relevant to the case. The primary objective of writing this article is to define the extent of the power of law enforcement agencies regarding the search and seizure of PED. If you want to know about the evidentiary value of electronic devices then you may also refer to this article on Ipleader’s website. This article discusses the concept of digital searches and general warrants through judicial lenses.
Statutes that entitle the investigating agencies to search and seize the PED of the accused
Section 165 (Power to Search)
Section 165 of the Code of Criminal Procedure (CrPC) gives the power to a police officer to search the accused’s electronic devices while making an investigation in case of reasonable grounds. Although the police are under the obligation to get a search warrant issued before conducting a search. But if the police officer making the investigation has reason to believe that evidence cannot be obtained without undue delay then such is permitted under the law, provided that the police officer has to record his reasons for the search in writing after the search.
Section 102 of Crpc (Power to Seize)
Section 102 of the CrPC gives the power to any police officer to seize any property which may be alleged to be stolen or found under circumstances that create suspicion of the commission of any offence.
Section 29 r/w Section 69 of the Information Technology Act, 2000
Sections 29 and 69 of the IT Act, 2000 grants absolute power to the Controller or any other person authorised by him to access any computer system, any apparatus, data or any other material connected with such system, to search for obtaining any information or data connected in or available to such computer system if the officer has reason to believe that there is some contravention under the chapter.
Section 3 and Section 5 of the Criminal Procedure (Identification) Act, 2022
The Delhi High Court has affirmed that Section 3 and Section 5 of the Criminal Procedure (Identification) Act, 2022 gives the power to police and magistrate to ask the accused to furnish his biometrics which includes fingerprints along with other biological samples.
Position of exercising vested powers
Various law enforcement agencies like police, IB, SEBI, CBI, RAW, NIA, etc enjoy explicit power of search and seizure under their concerned statutes. Today, the procedure for search and seizure for PED and other articles is not different in India, both fall under the same category. PEDs are treated the same as any other ‘property’ under the definition. However, the procedure for other articles and PED should not be the same, the approach for search and seizure should be different in the case of PED. The existing IT Rules seem to be more one-sided, favouring investigating agencies more. Even the Committee of Experts On A Data Protection Framework for India, which was headed by former Supreme Court Justice B.N Srikrishna recommended suggestions to improve the existing IT Rules. Although the bill was withdrawn due to criticism.
The US Supreme Court has laid down certain protective measures against the arbitrary seizure of electronic devices in the case of Riley vs State of California (2014). However, the case of search and seizure of PED is different in India. Law enforcement agencies power to search and seize anything is wide and mostly unchecked in India. One can agree that the investigating agencies enjoy as much power to seize and search your PED, as your wife or parents.
There is no dispute over the search of PED through forensics, it is within the rights of law enforcement agencies, and such is also affirmed through various precedents. The dispute is whether the investigating agencies can compel the accused to furnish his/her Passwords or biometrics. Which we shall discuss further in this article. Guidelines regarding the search and seizure of PED are yet to come.
The constitutional validity of PED
One may say that search and seizure of PED violate the Right to Privacy and the Right to livelihood both of which are fundamental rights. But no fundamental right is absolute in nature. Courts consider the search and seizure of PED as a reasonable restriction. The court in the judgment of State of Bombay v. Kathi Kalu Oghad (1961) has already held that the information collected from electronic devices comes under the purview of “testimonial fact”.
Further, the Delhi High Court interpreted the Selvi judgment related to self-incrimination in light of searching data of the PED in para 42 of its order as, when the password is demanded by the investigating agencies for the identification or comparison of already existing information/data, it is not violative of Article 20 (3) of the Constitution of India but when it is required or sought for the sole purpose of accessing data from the accused from his PED, then the accused is within his right to refuse to provide such password as such would be self-incrimination. Right now, the matter is pending before the Hon’ble Supreme Court.
Procedure for search and seizure of digital devices
As far as Section 102 of CrPC is concerned, police enjoy ample power to seize any electronic device if it relates to the investigation. The police can also seize the electronic device without a warrant provided that the officer must record the reasons in writing after the search.
The primary motive for the seizure of the electronic device by the investigating agencies is to extract the data for investigation which may provide them with some lead. There are two ways in which a police officer can search your PED: by seizing the PED and sending it to the forensic department and the second is by compelling the accused to give the password or biometric of his PED.
- First case (Searching the device itself)
The I.O. is within his rights to access the data of his electronic device which is seized from the accused. The only check and balance maintained while diagnosing your PED is the ‘hash’ process. Hash is generated using cryptographic tools. Hashing is used to check the authenticity of the data, whether it may have been tempered or not. Whenever someone makes a change in the PED then its hash value changes. One can know that there has been some modification or tampering in the data by knowing its hash value. Ideally, when a police officer seizes your phone or laptop, they are supposed to clone all the data in another system, which is called ‘image’, and then generate a hash of the system. Unfortunately, the police are often found to be violating this process left right and centre.
- Second Case (Compelling the accused to give his credentials of the PED)
A Police Officer may ask the accused about the passcode but it is up to the accused to share the password or not. If anyone resists giving his PED then an adverse inference can be drawn against the accused according to the Karnataka High Court whereas Delhi High Court has held that no adverse inference can be drawn if the accused denies furnishing his password. Though both the Hon’ble High Court agreed that investigating agencies can compel the accused for the biometrics. The disagreement between the High Courts is for the furnishing of the password. Only the Court can compel the accused to share the credentials of his PED with investigating agencies (Karnataka High Court). The investigating agency needs to approach the court and ask for a search warrant under Section 93 regarding the PED for its search. The court can legally compel the accused to share his passcode and provide biometrics from the accused.
Also, the court has to issue an order that will comprise of
1. What device is to be searched
2. The role of the device in the crime
3. That nature of the search to be done
4. The place where the search has to be done, interdict the persons who conducted the search from disclosing the material procured during the search to a third party.
Karnataka High Court
The Karnataka High Court has already issued guidelines regarding the search and seizure of PED in a criminal investigation. The Karnataka High Court has held that furnishing passwords or biometrics does not violate the right to privacy and information obtained from the PED during the investigation, it falls within the exception of the Puttaswamy judgment. Some highlights of the judgment are-The I.O. must obtain a search warrant in the regular course of the investigation.
In case of apprehension that the device can be destroyed or made unavailable then the I.O can search the PED without a search warrant, provided that he/she must record his reasons in writing. No distinction was made between biometrics and passwords, both were allowed to be furnished by the accused at the demand of the investigating agency. You can also see the detailed guidelines by visiting the following link.
Delhi High Court
In this case, a computer system was seized by the CBI from the custody of the accused and when it was sent to CFSL agencies, the data of the computer could not be obtained. Therefore, an application was filed before the Delhi HC seeking direction for the password from the accused.
The Prosecution has every right to seize and search the accused’s mobile for forensic examination, but the court said that the law with regard to seeking passwords is different. Section 79 (A) of the IT Act, 2000 provides for the establishment of laboratories to examine an electronic record. The laboratory then examines such devices. The IO is within his right to access the data of the PED which were seized from the accused with the help of the specialised agency at the risk of accuse loss of data. Although the hon’ble court held that giving of the password itself is not a ‘self-incriminating testimony’ in a practical point of view, but the accessing of the data from the device to be self-incriminating in nature and therefore unconstitutional.
A distinction was drawn between passwords and biometrics, both were considered separate. The Hon’ble Delhi High Court held that the investigating agency has no right to seek the passcode of the electronic device of the accused without his consent as it will be violative of Article 20 (3) of the Constitution of India and Section 161 (2) of CrPC. Also, no inference can be drawn if the accused does not give the password of his PED. Although the investigating agencies can ask for biometrics under CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022, it is within their right.
The Hon’ble Supreme Court has imposed costs on the union government for failing to file a counter-affidavit in a writ petition seeking guidelines for the seizure of personal electronic devices by the investigating agencies, as the guidelines provided by the union government were not in standard to international practices. The matter has been pending before the Supreme Court since then. A detailed guideline for the search and seizure of PED by law enforcement agencies is yet to come.
The statutes in India are actually posed at giving us safeguards, remedies, and rights so that we are not convicted improperly. To gather evidence law enforcement agencies are granted wide powers of searching and seizing the PED of the accused if the PED of the accused is somehow related to the investigation. The Doctrine of Fruit of the Poisonous Tree does not apply in India. That is why the present law and approach for search and seizure is more one-sided and more favourable towards law enforcement agencies. If law enforcement agencies want to seize your PED, then they can do so, it is within their power. But the question was, whether investigation agencies can make the accused furnish the password of his PED? The question still remains unanswered. There is ambiguity on this topic, as Karnataka High Court has held furnishing passwords and biometrics does not violate the Right to Privacy, whereas Delhi High Court has held that giving passwords amounts to a violation of the Right to Privacy without the consent of the accused and is self-incriminating in nature. The Hon’ble Supreme Court of India has asked for the guidelines regarding the search and seizure of PED to be in standards with foreign judgment from the Union Government. However, the matter is still pending before the Hon’ble Supreme Court of India.
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