In this article, Akanksha Vidyarthi discusses the legality of private detective agencies in India.

Introduction

Private Detective Agencies conduct private investigations and inquiry in cases like divorce matters, insurance matters, criminal cases for the specific Individual or group. Presently, the Private Detective Agencies are not required to be registered or to have a licence in order to operate in India as there is no such law in order to regulate the activities of Private detective agencies and the private detectors hired by such agencies. However, bill to provide a system of licensing for such Agencies and to regulate their conduct has been introduced as Private Detective Agencies (Regulation) Bill, 2007 but is still pending in the parliament.

This Article discusses some frequently asked questions like whether Private Detective Agencies (PDA) is Legal in India, whether there is any limitation on their powers? Whether they can be held liable for violation of privacy of any person?

Are Private Investigating Agencies legal in India?

• In India, the Private Investigation agencies are Legal but there is no law to regulate the conduct of such agencies. Government hardly have any control over these agencies. They are free to operate in India without any restrictions because of absence any law to regulate them.
• The Private Detective Regulation Bill, 2007 is still pending in the Parliament. The proposed bill seeks to bring the Private detective Agencies within the scope of Legal ambit in order to prevent the Agencies to get involved in illegal Activities like terrorism, Naxalism etc.

Can I hire a Private Detective For Investigating any Matter?

Currently, the Private Detective Agencies in India and there is no Law to regulate their Conduct. Therefore, any person can hire a Private Detective for investigating any matter. But before hiring any Private Detective one should take following things into consideration-

• Make sure that Private Detective Agency is Licensed & Insured;
• Enquire about the Educational qualifications, training, experience of Private Detective;
• Enquire about the Character of Private Detective. Before revealing any personal information to him make sure that he will maintain the confidentiality;
• Make sure that the Private Detective has not been barred by the court in any case to investigate the matter;
• Before giving any amount of money to a private detective the person should enter into a written contract which is to be signed by both the parties

What is the Fee Structure of Private Detective Agencies in India?

The Fee Structure of Private Detective Agencies in India depends upon following Factors-

• The Location of Investigation;
• The Type of Service;
• The Time Frame
• Taking these Factors into Consideration the Average fee charged by these Agencies are-

How does a Private Detective Agencies work

The Private Detective Agencies work through the Private Detectives hired by them. The work of Private Detective Agencies can be classified into 2 categories-

1. Private Investigation – The Private Detectives conduct an investigation for particular Individual. They do not have the power to arrest or detain any person like the police. The Private Detectives conduct the Investigation by various highly advanced technological products like-

• Spy Camera and Transmitters;
• Private Investigation Software;
• Mobile surveillance software;
• Spy Microphone and Transmitters;
• GPS device to track the person, vehicle etc;
• Mobile phone Jammer;
• Microscope; hidden cameras
• Other Innovative Devices.

2. Private Security – No training is provided to the Private Securities in India. Some of the Main cases which generally comes within the ambit of Private Detective Agencies are-

• Matters Relating to Pre-Marital affairs;
• Matters Relating to pre and post-employment affairs;
• Matters Relating to Marital Disputes;
• Matters Relating to Kidnapping;
• Monitoring the Activities of Children.

Private Detective Agencies (Regulation) Bill, 2007

The Private Detective Agency (Regulation) Bill, 2007 is proposed to be introduced to regulated the conduct of such Agencies. Some of the Key points that are proposed in this Bill are-

1. Licensing – The Bill seeks to introduce the system of Licensing for all Private Detective Agencies that have been operating in India. It would be mandatory for such agencies to take the License from the Regulation Board which is established at Central or State level.
2. Qualification for Private Detectives – The Bill has proposed for the qualifications of Private Detectives hired by such Private Detective Agencies in India. The Qualification of Private Detectives are-

• They must be Citizen of India;
• They must have attained at least 21 years of age;
• Some Specified requirements regardings
• Physical Fitness;
• Training;
• Experience.

3. Register by Agency- The Bill provides for maintenance of a register by The Private Detective Agencies which shall contain following particulars-

• Address of-
• Private Detectives hired by the Agency;
• Their Staff Members;
• Their Clients,
• The Salary payable to the private Detectives and their Staff;
• The cases which are undertaken by them for their Clients.

4. Punishment for Private Detectives – The Bill provides the punishment for the Private Detective, hired by Private Detective Agencies. Where any Private detective violates any person’s Right to Privacy and personal freedom, then he shall be held liable and punishable with-

• Imprisonment;
• Fine.

5. Barred from Investigating the Matters related to State Affairs – The proposed bill limits the scope of Activity of Private detective Agencies to non-government sector, As they cannot investigate the matters relating to State Affairs or interfere with the Matters dealt by RAW, CBI that comes within the ambit of State Agencies.

Which Activities do not come within the Scope of Private Detective Agencies under the Proposed Bill, 2007

As per the New proposed Bill, 2007 the Private Detective Agencies cannot deal or investigate the following Matters-

• Matters Relating to Anti-Counterfeiting Security;
• Any kind of Marital Discords for which the complaint is pending before the police;
• Doing any Activity which infringes the Right to privacy of a person;
• Matters Relating to Technology;
• Matters Relating to Theft of Valuable Assets;
• Matters Relating to Environment;
• Matters Relating to Finance and Accounts;
• Matters Relating to forensic, Fingerprints analysis;
• Matters Relating to Insurance claims of government Companies;
• Matters Relating to Intellectual Property Rights;
• Matters that are pending in Courts;
• Matters Relating to Archeological Records;
• Matters Relating to White Collar Crimes.

How to file a Complaint against Private Detective Agencies in case of cheating

Where the person has hired a private detective for an investigation into the Matter and during the course of his business if he cheats that person, then the person can approach the police to file a complaint against such agency u/s 420 (Punishment for Cheating) of IPC.

Definition of Cheating

Cheating (Section 415) – Any person Fraudulently or Dishonestly-

• Induces any person to deliver any property; or
• Induces any person to Retain the property; or
• Induces any person to do or omit anything which he would not have done if he was not so deceived

Then the person is Liable for Cheating. Therefore if the Private Detective commits any of the following act, the complaint can be filed u/s 420 of IPC.

Does the Evidence found by a Private Detective have an Evidentiary Value in the Court of Law?

As the demand of hiring the private detective is increasing particularly, in

Some Sensitive and Sensational cases, the question which arises in the mind of People is whether the evidence found by Private Detective have any Evidentiary value in the court of law or not?

In General terms, the Evidence collected by the Private Detectives are admissible in the Court of Law. Such evidence help the judges in reaching a decision. But, the Evidence so gathered by the Private Detectives need to fulfill certain requirements-

1. The Private Detective Agency hiring such Private Detectives must be having Licence to operate in India;
2. The Evidence must have been legally obtained;
3. Such Evidence has been obtained without violating any procedure of Law.
4. It Should not violate the people’s right to Privacy.

In the case of P v. Mrs P & Mr R, It was held that in case of Adultery or Cruelty, the very high degree of probability of evidence is required. Therefore, while accepting the evidence of Private Detective due care and diligence must be shown by the Judges and parties.

In J. P. Gupta v. National Insurance Company Ltd. In this case, the vehicle of Appellant was insured with respondent, the trial court held that as the vehicle has not been used for domestic purpose, therefore the Insurance Company is not liable to pay compensation.

In an appeal to the High court, it was held that trial court has wrongly relied on the report of detective, and the detective has also not been examined before the trial court. Therefore, the evidence given by detective was held to be inadmissible.

What kind of Evidence can be Collected by Private Detectives?

The Private Detective plays an important role in resolving the cases. The Evidence found by Private Detective help both the judges in deciding the case and the lawyers in strengthening their client’s case with the help of that evidence, as highly technical equipment are used by them to collect such evidence. The Kinds of Evidence that can be collected by the Private Detectives are-

1. Testimonial Evidence – Evidence given by the witness under an oath before a court of law either in-

• Written; or
• Oral.

Therefore, where the Private detective observed or hear anything said by any person, it is admissible as a Testimonial Evidence.

2. Documentary Evidence – The Evidence in the form of Document found by a Private Detective either in the form of-

• Real;
• Original; or
• Hearsay

Are admissible in the court of law.

3. Physical Evidence – Real evidence that exists in the form of physical objects like Fingerprints. Such Physical evidence collected by Private Detectives can be validly produced before the court of law in the form of-

• Image; or
• Video; or
• Document

In Lingegowda Detective and Security Chamber (P) Limited Vs. Mysore Kirloskar Limited and Ors. It was held that detective services did not form part of the scheduled employment as detailed in the schedule of Minimum wages Act, 1948. Thus, there was no employee-employer relationship and no liability to pay minimum wage.

In Emperor Vs. Chaturbhuj Sahu, In this case, it was held that a detective who conspired with the wrongdoer for the disclosure and discovery of an offence, then his evidence cannot be taken into Consideration without collaboration.

Whether the Private Detective can be held liable for violation of privacy of a person under the Information Technology Act?

As discussed above, till now there is no specific law for Private Detective Agency to regulate their Conduct, but the question which arises is that if a Private Detective violates the privacy of a person, then whether there is any law under which he can be punished or there is no remedy for the victim?

So, Law never spare the violators. If a private detective violates the Right to Privacy of any person, then he can be held liable under the IT Act. The Private Detective would be held liable under the IT Act if he does any of the following Act-

• Downloading, copying, or stealing any data from Computer, Laptop or Mobile Phone;
• Introducing the virus in the Computer;
• Damaging the Computer or data stored in it;
• Disrupting the data;
• Denying the Access to such Data;
• Facilitating the access of unauthorized person to such data;
• Diminishing the value of Data;

Civil Liability – Where any Private detective breaches the Privacy of any person by doing any of these activities, then Civil Liability would be imposed on him to pay the compensation to the victim for damages caused.

Criminal Liability – Where any Private detective breaches the Privacy of any person by doing any of these act fraudulently or dishonestly then Criminal Liability would be imposed upon him and he would be liable for-

• Imprisonment which may extend to 3 years; or
• Fine which may extend to 5 lakhs; or
• Both

What to do when these agencies violates your right to privacy

The Right to Privacy has been recognized as a Fundamental right under Article 21 of the Constitution in various judgments. If a private detective violates the Right to Privacy of any person, the victim can file a writ under Article 32 before Supreme Court or under Article 226 of Constitution before High Court to enforce his fundamental rights.

In Kharak Singh v. The State of U.P, where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual.

In PUCL v. UOI, which is popularly known as the wiretapping case, the question before the court was whether wiretapping was an infringement of a citizen’s right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case.

Legal status of Private Detective Agencies in other jurisdictions

Conclusion

From the above discussion it can be Concluded that presently, there is no law to regulate the conduct the Private Detective Agencies because of which the limits of Private detective agencies and its Private detectives have not been defined, therefore it results into the number of fake Private detective Agencies. Because of lack of any law to regulate these agencies they are operating in India without License. Therefore, they have lost their credibility in the eyes of the general public as there is no set form of rules or regulation which can define their scope of power, functions etc.

These Private Detective Agencies can make a very fruitful contribution in our Legal System if some law is made to regulate their Activities. As they use innovative and advanced technology in conducting the investigation, therefore it can be of great help for the parties, lawyers, and judges in resolving the case. But because of the absence of any law, such Agencies more of being used are misused to a very great extent by fooling the innocent People.Therefore, the government should immediately pass the proposed Bill,2007 in order to regulate the conduct of these Agencies so that they can develop and can make some fruitful contribution to our Legal System.

References

1. In P v. Mrs P & Mr R,(1987) 89 BOMLR 588.
2. J.P. Gupta v. National Insurance Company Ltd, 2006ACJ652; 2004(3)MPHT 344; 2004(3)MPLJ 308.
3. Lingegowda Detective and Security Chamber (P) Limited Vs. Mysore Kirloskar Limited and Ors, AIR2006SC1967.
4. Emperor Vs. Chaturbhuj Sahu, (1911)ILR38Cal96.
5. Kharak Singh v State of U.P., AIR 1997 SC 568.
6. PUCL v. UOI, AIR 1997 SC 568.