Mobile Phones & Criminal Investigations in India

Abhinav Sekhri1

The Statutory Framework under which a Mobile Phone can be Seized

Policing is a state-level issue in India.2 However, investigatory powers of police officers

across India are regulated through a federal law: The ​Criminal Procedure Code, 1973
[“Cr.P.C.”].3 Among other things, the Cr.P.C. details how searches and seizures are to
be conducted for, ​inter alia​, the purposes of criminal investigations.4 Besides the power
to conduct a personal search upon arrest,5 these following provisions are of specific
relevance in our context:

● Section 91, Cr.P.C. — Confers concurrent powers upon police and magistrates
to compel any person to produce “​any document or other thing”​ that is “​necessary
or desirable​” for the purposes of “​any investigation, inquiry, trial or other proceeding
under this Code​”.
● Section 93, Cr.P.C. — Confers powers on a court to issue a search-warrant if (a)
it considers that a person will not produce a document / thing as directed under
Section 91, Cr.P.C., or; (b) where that document / thing is not known to be in the
possession of any person, or; (c) where “​the purposes of any inquiry, trial or other
proceeding under this Code will be served by a general search or inspection​”. Note,
that a Court can specify the particulars in a warrant, which would limit the
scope of search powers that are consequently vested upon officers.

1
Advocate, Delhi High Court. The author would like to acknowledge the comments and suggestions by
Ms. Sowjhanya Shankaran. All errors are mine.
2
Entry 2, List II, ​Seventh Schedule​ of the Constitution of India.
3
The Cr.P.C. is supplemented by “Manuals” or “Rules” followed by different police forces of each state.
These do not derogate from the federal law, but rather provide the nuts and bolts of how to exercise the
investigatory powers conferred by the Cr.P.C. ​See, e.g., ​The Punjab Police Rules 1934.
4
“Investigation” is defined under Section 2(h), Cr.P.C., as including “all proceedings under this Code for
the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf”.
5
Section 47, Cr.P.C authorises the search of a place entered by a person sought to be arrested, while
Section 51 and 52, Cr.P.C. authorize the search of an arrested person.

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 ● Section 94, Cr.P.C. — Confers powers to issue a warrant to authorise the
search of any place6 suspected to contain stolen property, forged documents,
etc. as mentioned in the section, and take certain actions in respect of the same.
● Section 165, Cr.P.C. ​— Confers power upon a police officer, the power to
conduct a warrantless search of a place if he has reasonable grounds for
believing that “​anything necessary for the purpose of an investigation into any
offence”​ may be found in such place and that such thing “​cannot be otherwise
obtained without undue delay”​ . In the exercise of this power, the police officer is
required to record in writing the grounds for such belief, and ​as far as possible​,
the thing for which search is to be made.
● Section 100, Cr.P.C. — Explains the procedure for searching closed places, and
the obligations upon persons residing in, or in charge of, such places.
● Section 102, Cr.P.C. — Confers powers upon police officers to seize property
“​alleged or suspected to have been stolen”​ or “​found under circumstances which
create suspicion of the commission of any offence”​ , and details the procedure
consequent to any such seizures.

It is clear, then, that the police have powers to go ahead and search / seize a mobile
phone, with or without a warrant (but in the latter case are required to record reasons
in writing for such search). Section 91, Cr.P.C. applies to “things”, and an order can be
passed directing a person to produce her mobile phone where police thinks it is
“necessary and desirable” for an investigation. It is also possible to imagine a mobile
phone being the target of a specific search-warrant under Section 93, Cr.P.C., or an
item that is seized during a general search authorised under that provision. And,
finally, are the seizure powers of Section 102, Cr.P.C., which do not need a prior
warrant, and empowers police to seize ​any ​item found in circumstances raising
suspicion of the commission of an offence.

6
“Place” is defined under Section 2(p), Cr.P.C., as including a house, building, tent, vehicle and vessel;

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The Limits of the Law

At this stage, let us elaborate upon the ​limits ​in the use of these provisions, which serve
as ways in which police powers can be checked:

● The police require serving a formal notice under Section 91, Cr.P.C. before
taking any action, so a person can refuse to hand over the device unless served
with a copy of this notice. Moreover, no such notice can be served upon persons
who are treated as “Accused” persons for an investigation, as the Supreme
Court held in ​Shyamlal Mohanlal Choksi [1965 (2) SCR 457] this to be contrary
to law.
● A valid search-warrant must be issued under Section 93, Cr.P.C., and it is a right
to see the search-warrant [Section 100]. Again, in respect of Accused persons, a
court can only issue ​general ​warrants and cannot issue a search-warrant which
is specific to certain items and will require active cooperation by an accused.
This was held by the Supreme Court in ​V.S. Kuttan Pillai​ ​[(1980) 1 SCC 264]
● In cases where there is urgency in conducting the search during the
investigation of an offence and a warrant cannot be procured from a
Magistrate, the police is permitted to conduct a search under Section 165,
Cr.P.C., but has to necessarily ​record reasons as the first step before entering
the house. The Supreme Court while interpreting Section 165, Cr.P.C, in ​State of
Rajasthan v. Rehman [1960 (1) SCR 1991] has held that “​as search is a process
exceedingly arbitrary in character, stringent statutory conditions are imposed on the
exercise of the power​”. Thus, in cases of warrantless search, one could raise the
issue of illegality of the search in cases where no reasons are recorded in
writing by the relevant police officer. However, it is important to note that such
illegal search does not taint any seizure that follows the search, so as to enable
the accused to claim return of the seized material. The Supreme Court in ​Pratap
Singh v. Directorate of Enforcement [(1985) 3 SCC 72] has held that courts must

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 be “cautious” while dealing with evidence collected in an illegal search,
however, it is expressly understood that the seizure remains legal.
● Section 102, Cr.P.C. confers broad powers of seizure, but there are two limits in
place here. The first is the threshold: Items must be “​found under circumstances
which create suspicion of the commission of any offence”​ . In many situations, it is
not possible to imagine that possessing a mobile phone ​per se ​raises suspicions
of an offence being committed, so the police must offer an explanation. Whilte
no notice is required to be provided under Section 102, Cr.P.C. prior to seizure,
the explanation for seizure can be found / hoped for in the memo supposed to
be deposited in court consequent to a seizure, as required by Section 102,
Cr.P.C. Thus, one can potentially litigate the issue if the police misrepresent the
facts surrounding a seizure.

Opening Up — The Questionable Legal Bases to Compel Unlocking a Phone

and Accessing its Contents

In a vast majority of cases, when the police are seizing a phone and ask the person to
unlock it, that person simply complies. But, there are obviously cases where this does
not happen, in which case law enforcement needs some legal basis to get the phone
unlocked. In comparison to the legal framework that allows for seizing a phone, we
find that the statutory basis for compelling a person to ​unlock ​the mobile phone is less
clear.

● From the above provisions — Sections 91, 93 etc. — besides a requirement in

Section 100, Cr.P.C. that persons who are “residing in, or in charge of” a ​place
must assist the police, there is nothing similar in respect of locked ​things t​ hat
might be sought for, or searched, or seized by the police.
● As seen in practice, the most common practice is for police to simply demand
passcodes during interrogation / questioning. The powers to examine witnesses

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 during investigations under ​Section 161, Cr.P.C. require that all persons
“​answer truly all questions”​ put by the officer, except those “​which would have a
tendency​” to expose the person to “​a criminal charge or to a penalty or forfeiture”​ .
The failure to answer questions is punishable under ​Section 179 of the Penal
Code​.
● In certain other cases, a notice of appearance under ​Section 41-A​, ​Cr.P.C. is
issued by police to accused persons whose arrest is not required. This notice
will insist on cooperating with the investigation, with non-cooperation carrying
a threat of arrest. Failure to provide a passcode to unlock a phone could easily
be construed as non-cooperation with the notice to invite a possible arrest.
● Provisions in some laws, such as ​Section 50 ​of the Prevention of Money
Laundering Act 2002​, go a step further and require persons to take an oath
prior to answering questions and they are “bound to state the truth” in response
to any questions. Non-compliance invites prosecution.
● In a particular case from Delhi, a trial court passed an order directing Accused
persons to furnish their passcodes and / or biometric ID to open mobile phones
that were seized during their personal search incident to arrest. This was done
on the basis of an application filed before the court which, notably, did not refer
to any legal provisions. The Trial Court located its powers under ​Section 5 of
the Identification of Prisoners Act, 1920​. However, this order has been stayed
vide ​orders of the High Court of Delhi, and that litigation remains pending.
● Another source of power, as seen in practice, has been through bail hearings. In
many cases, courts have been seen to impose a bail condition directing accused
persons to unlock all their digital devices — irrespective of whether the device
was locked by a passcode or through biometrics — as this is understood through
the lens of cooperating with the investigation.
● Besides these provisions, of specific importance is a provision of another
federal law. This is ​Section 69(1) of the Information Technology Act, 2000​. It
empowers specified officers to pass orders compelling the decryption of “​any

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 information generated, transmitted, received or stored in any computer resource​”, if
satisfied that “​it is necessary or expedient to do so … for investigation of any
offence​”. The officer must record reasons for the same, and non-compliance with
orders comes with potential prosecution.

Your Nosing Ends where My Rights Begin

The unclear legal bases to unlock a mobile phone still has a lot going for it to scare the
ordinary person into giving up all passcodes. And uncertainty is only compounded by
the fact that there is surprisingly still no court decision directly relevant to these
issues. Nevertheless, we argue that the law provides clear limits on the use of these
powers in respect of all persons:

● Any questioning under Section 161 requires a notice to be served under Section
160, Cr.P.C. As mentioned above, Section 161(2), Cr.P.C. requires all persons to
truthfully answer all questions ​except t​ hose “​which would have a tendency”​ to
expose the person to “​a criminal charge or to a penalty or forfeiture”.​ Further, the
police are also prohibited from using threats etc. to secure answers as per
Section 163, Cr.P.C. Therefore, a person has a legal basis to refuse to answer
questions about the phone if this requirement is met.
● Mobile phones are a trove of personal information, and compelling a person to
give access is a breach of the fundamental right to privacy as recognised under
Article 21. For any breach to be lawful, three requirements need to be met: (i)
the direction must have clear legal basis; (ii) the infringement must be
proportional to the state interests, and; (iii) the infringement should have a
legitimate aim [​K.S. Puttaswamy v
​ . ​Union of India​, (2017) 10 SCC 1 (Paras 310 &
325)]. Applying this, courts have held searches to be illegal where they fail to
meet the tests of proportionality and legitimate aim [​Dnyaneshwar v
​ . ​State of

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 Maharashtra,​ Crl. Writ Petition No. 25 of 2019 (Decided on 29.11.2019)
(Warrantless search)]7
● In this framework, a strong case can be made that unlimited access to a mobile
phone is a disproportionate infringement of privacy rights. Why should the
police have access to all my WhatsApp conversations on the basis of “a hunch”?
The criticism is stronger when the information sought is obtainable from
Third-Party Apps. The potential for misuse of the personal information
available on a mobile phone is grave and real, and necessitates strong checks on
police powers. As the U.S. Supreme Court recognised, the onset of new
technology cannot mean a situation where people have fewer rights for
protection from coercive state action [​Riley ​v. ​California​, 134 S. Ct. 2473, 2445,
2489 (2014); ​Carpenter v
​ . ​United States,​ 138 S. Ct. 2206, 2214 (2018)].

In respect of persons who are “accused of any offence”, i.e. by being formally named as
the accused in an FIR or other official document by law enforcement agencies, we
must also consider ​Article 20(3) of the Indian Constitution ​and how this limits the
scope of law enforcement agencies’ powers to compel unlocking a mobile phone:

● Article 20(3) is a right against compelled self-incrimination, but has been

judicially limited to protection against ​testimonial compulsion.​ This is a complex
idea, but at its essence allows law enforcement to forcefully take ​physical
evidence which is (i) related to immutable characteristics of a person, and (ii)
needs a ​comparison w
​ ith other facts to have any evidentiary value. So, police can

7
Courts in other jurisdictions have had opportunities to consider these issues. ​See,​ e.g.​, ​In the Matter of a
Search of a Residence in Oakland, California,​ [United States District Court, Northern District of California
(10.01.2019)] [Warrant included a request to compel “any person” located at premises to use her
fingerprint, iris etc. to unlock a device. The Search warrant was denied on both IV and V Amendment
grounds]; ​In re Application for a Search Warrant​, 236 F. Supp. 3d 1066 (2017) (U.S. District Court, N.D.
Illinois, Eastern Division) [Rejected the search warrant request to direct all persons present at premises
submit to giving their fingerprints for opening any digital devices, citing the IV and V Amendment]; See: ​R
v. Shergill​, 2019 ONCJ 54 [Denied an assistance request in relation to a search warrant, that sought
directions to compel accused to provide access to locked Blackberry device].

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 force you to give samples of fingerprints, handwriting, blood, hair, semen, DNA,
etc.
● Giving a passcode to the mobile phone would amount to giving “testimony” and
not merely “physical evidence” for the purposes of comparison or identification.
This is because the passcode qualifies as “personal knowledge” which the police
is not aware of [​State of Bombay v
​ . ​Kathi Kalu Oghad,​ AIR 1961 SC 1808 (Paras
4, 10-12); ​Selvi v
​ . ​State of Karnataka,​ (2010) 7 SCC 263 (Para 189)].8
● In the present context, fingerprints are functionally equivalent to the password
in light of the purpose, ​i.e. ​unlocking the mobile phone. The Supreme Court has
insisted that in such situations of functional equivalence, the physical nature of
the action cannot control application of Article 20(3) [​Selvi (​ Paras 147, 149,
184; In the context of BEAP and Lie Detector Tests].
● The police might admit that they have strong reasons to believe that the phone
contains incriminating evidence, and so the ​self-incriminating requirement would
be met by the accused giving a passcode. Even otherwise, giving the passcode
would be incriminating as it would furnish a “​link in the chain of evidence”​ , and at
the very least indicate that the accused has control and / or ownership of the
phone, and by extension, of its contents [​Selvi​ (Paras 145 & 153)].
● The giving of this passcode must be seen as compelled as the accused person
faces the threat of prosecution upon non-compliance with any orders, and / or
will potentially be taken into custody on a supposed violation of bail conditions.9

8
Courts in other jurisdictions have had opportunities to consider these issues. ​See,​ ​e.g.​, ​Commonwealth
v. Joseph Davis​, J-42-2019 (Supreme Court of Pennsylvania, decided on 20.11.2019) [Held that
compelling any person to disclose password violates V Amendment]; ​Commonwealth v. Dennis Jones​,
SJC-12564 (Mass. Supreme Judicial Court, 06.03.2019) [Held giving password is testimonial but allowed
search warrant with orders directing accused to give passcodes citing “Foregone Conclusion” exception].
9
In this regard, note that the Supreme Court in ​Nandini Satpathy [(1978) 2 SCC 424 (Para 58)] held that
the mere threat of a prosecution is not “compulsion”, but this position has seemingly been (arguably
correctly) modified in ​Selvi.​

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When the Police Come Around …

On paper, there is a lot that one can do to litigate the seizure of a mobile phone as well
as any subsequent directions compelling the person to unlock the same.
Unfortunately, it is unimaginably hard to translate much of this into practice as things
stand. There are many reasons for this, but chief among them are:

● Search and seizure law is still rooted in the avowed colonial mentality of
maximising state interests while depriving any semblance of protection to the
accused persons.10 This has meant that police continue to enjoy extremely
broad powers to search and seize objects without prior warrant or recorded
justification, with standards that are far too lenient to be of any importance.
The minimal level of judicial regulation that is in place can be very easily avoided
by police. In any event, decades’ worth of practice where courts have
historically been disengaged from regulating search and seizure powers have
only amplified the apathy to any possible regulatory role that magistrates might
serve.
● Indian law does not permit lawyers to be present during police questioning with
a witness / accused. At best, a lawyer may be permitted to watch proceedings
but still has no permission to assist the witness. Further, the questioning
exercise is not recorded in any manner. This thoroughly exacerbates the power
differential between the witness / accused and the police. Not only is the person
deprived of legal and emotional support during a harrowing experience, but a
person is also exposed to threats and abuse at the hands of police. The threats
which are, of course, very difficult to prove in the absence of any recordings or
independent witnesses. Ultimately, the rights designed to protect individuals
from compulsion during police questioning are rendered nugatory.

10
​See, e.g.,​ the references to the speech of the Lieutenant-Governor in ​Ahmed Mahomed Jackariah v.
Ahmed Mahomed,​ (1888) ILR 15 Cal 109.

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 ● Indian law follows a broad practice of ignoring any illegalities in the ​procedure ​by
which evidence was obtained — we have no problems in accepting the fruits of a
poisonous tree. There is, at best, only a fringe jurisprudence to support
exclusion of material secured by violating even fundamental rights.11 This
means that there are no real drawbacks to police engaging in potentially illegal
acts to “get the job done”, as opposed to conducting strenuous investigations
within the rules of procedure.

Greater focus on these aspects in the criminal process is needed to help realise the
array of available procedural rights in real-time. There are genuine avenues for
changing the ​status quo which require medium to long-term effort. For instance,
strategic litigation to usher in greater transparency about the goings-on inside a police
station, and this could either be achieved by demanding enforcement of existing rules
about recording the affairs at a police station or insisting upon access to legal counsel
during this part of the criminal process as well. A different and equally useful avenue
might be constant engagement at the magistrate-level. Not only does this help create a
record during the investigation and offer magistrates an opportunity to question the
police narrative, but it also helps the magistrates reassume their role as an oversight
body. A role that has been dormant for too long.

However, there are no short-term fixes to the problems with the law identified here,
and thus persons fearful of police seizure of mobile phones should be aware of the
power-differential and take suitable steps to insure themselves against the same.

11
​See​, ​e.g.,​ the discussion in ​Selvi which upheld the existing view that any recovery made on the basis of
a statement, made by an accused under duress, cannot be considered in evidence as the statement was
obtained contrary to Article 20(3).

10

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