Bombay HC: Objectionable Words Written In E-Mail Or On Social Media Can Be Penalized U/S 509 of IPC For Insulting Woman's Modesty

 Later, legislature found that a woman must be protected

not only from physical aggressions made in the course of

outraging her modesty, but she should also be shielded from

various other acts which do not involve even a touch. Legislature

was quite aware that a woman’s modesty can be insulted or

outraged in various ways. A mere word, a wink, a touch or even

a look would suffice to insult the modesty of a Woman. Physical

advances may not be necessary in all cases. Everything depends

on the intention of the mischief-maker and the manner in which

he conveys his intentions. It is evident that legislature intended

that any aggression into a woman’s modesty whether by any

word, deed, touch or look need be curbed and deterred. {Para 18}

19. That is why even a verbal attack on a woman, a gesture

and other acts stated in Section 509 I.P.C. were brought under

the said Section. It is clear from a reading of Section 509 I.P.C.

that by introducing the said provision, legislature intended that

any sort of aggression into a woman’s modesty whether by any

word, deed or act should be deterred, as evident from the title to

the Section itself. Thus, the acts which are done intending to

insult the modesty of a woman which may not necessarily involve

even any physical advances are also brought within the sweep of

a separate provision viz., Section 509 I.P.C.

20. In such circumstances, can it be for a moment presumed

that the legislature intended that a person who writes a letter to

a woman with the intention to insult her modesty should go

unpunished? If such a person, instead of uttering the insulting

words, puts in writing all what he determines to utter against a

woman and sends it to her, intending to insult her modesty, will

any Court be justified in holding that the legislature expected such person to escape safely? was it the intention of the legislature that such a culprit must go unhurt only because he used his pen and not his tongue, to insult the victim? After suffering all the trauma, when a woman comes before Court with the best proof for the assault or violence made on her modesty by producing the letter, can the Court refuse to look into the same on the ground that the legislature never intended to bring cases involving writings within the purview of Section 509 I.P.C.?

21. I find it extremely difficult to reach a conclusion which

will defeat the very object of Section 509 I.P.C. There can be

little doubt that the legislature would not have intended that a

person who insults the modesty of a woman by his writings must

be kept out of the province of Section 509 I.P.C. In a country like

India, legislature would not have ever intended that a person

who expresses his attitude or intention to insult modesty of a

woman by sending a letter should be absolved from criminal

liability. I am of view that the very object of the provision will be

defeated if a contrary view is taken. Thus, while interpreting the

meaning of the relevant expression in Section 509 I.P.C. in the

light of the relevant rules of interpretation, I find that ‘writing of

letter’ to a woman, intending to insult her modesty can be

construed as ‘making a gesture’ under Section 509 I.P.C. I feel

quite confident to hold that Indian legislature’s intention will not

be contrary to what I have already concluded.”

The transmission by the Petitioner of the offensive e-mails to her and other residents in the society demonstrates clear intent of the Petitioner to insultthe Respondent No. 2. As we have already discussed hereinabove that, no matter that the offensive material was transmitted through electronic media, it would still be ensconced in the interpretation of the words ‘utter’ and ‘gesture’ and ‘exhibit’. Alternatively, it intrudes on the Respondent No. 2’s privacy.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3480 OF 2011

WITH

INTERIM APPLICATION NO. 2355 OF 2023

IN

CRIMINAL WRIT PETITION NO. 3480 OF 2011

Joseph Paul de Sousa, Vs  The State 

CORAM: A. S. GADKARI AND

DR. NEELA GOKHALE, JJ.

 PRONOUNCED ON: 21st  AUGUST 2024.

 JUDGMENT ( Per Dr. Neela Gokhale, J. ) :

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Whether service of scanned copy of arbitral award by email is valid service of signed copy of award so as to start limitation for filing an application U/S 34 of Arbitration Act?

When scanned signed copy of order dated 07th March, 2018 was received by petitioner by email dated 22nd May, 2018 and scanned signed copy of Addendum to Award dated 17th May, 2018 was received by the petitioner on 17th May, 2018 itself, the same was valid delivery in terms of Section 31(5) of the Arbitration Act. The law has to keep its pace in tandem with the developing technology. When service by email is an accepted mode of service, then sending scanned signed copy of the award/order of the Arbitral Tribunal to the parties would be a valid delivery as envisaged under Section 31(5) of the Arbitration Act. {Para 47}

48. A Division Bench of this Court in the case of Delhi Urban Shelter Improvement Board Vs. Lakhvinder Singh MANU/DE/1290/2017 has held that the expression 'signed copy' in Section 31(5) of the Arbitration Act indicates the legislative intent that a copy authenticated by the Arbitrator is served on each party. It was held that authenticity of correspondence in the technologically advanced times of today does not necessarily pertain to only signatures in writing, and it would be adverse to read the expression 'signed copy' of the award/order in a restrictive manner so as to connote a copy bearing the original signatures of the Arbitrator in his hand writing. Thus, it was held as follows:

"15. The reference to the case of ARK Builders Private Limited (supra) where there was a dispute as to the delivery of a copy of the award by the arbitrator, by the Appellant would be inapplicable since, in the present case, the delivery of the copy of the award is not in contention. The only question is whether the copy of the impugned award, delivered to DUSIB by the arbitrator was a signed copy. 

16. As observed by the Single Judge, the expression 'signed copy' in Section 31(5) clearly indicates the legislative intent that a copy authenticated by the arbitrator is served on each party. The purpose of enacting the said provision is clearly to ensure that the parties receiving the award are in a position to act on the same. Emphasizing on this legislative intent, the Single Judge elaborated on how the authenticity of correspondence in the technologically advanced times of today does not necessarily pertain to only signatures in writing, and it would be adverse to read the expression "signed copy of the award" in a restrictive manner as to connote a copy bearing the original signatures of the arbitrator in his handwriting. 

49. Considering the aforesaid, it is clear that valid delivery of the Addendum to Award dated 17th May, 2018 and order dated 07th March, 2018 took place respectively on 17th May, 2018 and 22nd May, 2018 in terms of Section 31(5) of the Arbitration Act. Thus, the period of limitation for filing of petition under Section 34 of the Arbitration Act in the present case commenced on 22nd May, 2018. Thus, the limitation period for filing the present petition was till 22nd August, 2018.

 IN THE HIGH COURT OF DELHI

O.M.P. (Comm.) 377/2018

Decided On: 23.08.2023

Ministry Of Youth Affairs And Sports, Dept. of Ports, Govt. of India Vs. ERNST and Young Pvt. Ltd. (Now Known As ERNST and Young LLP) and Ors.

Hon'ble Judges/Coram:

Mini Pushkarna, J.

Citation:  MANU/DE/5541/2023.

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Whether the court can infer that there was contract on the basis of exchange of Emails?

 I agree with the Plaintiff's Counsel submission relying on the case of Jyotsna Valia (supra) that a written contract need not always be a contract signed by both parties and may consist of correspondence exchanged between the parties without signature. In the present case the authenticity or veracity or truth of its contents of the emails exchanged between the parties are not in dispute. Thus the contentions of the Defendant with regard to no agreement between the parties to extend time upto 31st March 2020 is repelled as misconceived.{Para 30}

 IN THE HIGH COURT OF BOMBAY

Interim Application No. 655 of 2023 in Commercial Summary Suit No. 75 of 2021 and Summons for Judgment No. 65 of 2021 in Commercial Summary Suit No. 75 of 2021

Decided On: 20.09.2023

Play Games 24X7 Pvt. Ltd. Vs. Loran Leasing And Infotech Pvt. Ltd.

Hon'ble Judges/Coram:

Kamal Khata, J.

Citation: MANU/MH/3838/2023.

Read full Judgment here: Click here.

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Whether there is a valid service of notice under Income tax Act if notice is sent on secondary Email ID?

 In the present case on 7th January 2021 the petitioner had filed its Return of Income for AY 2020 -21 and the email id mentioned therein was loktax2016@rediffmail.com therefore the AO ought to have considered this email as provided u/r 127(1)(b)(i) email address available in the income tax return furnished by the addressee to which the communication relates which would be the primary email id or (ii) i.e. email address available in the last income tax return furnished by the addressee. In our view the AO clearly erred in issuing a notice on the secondary email address when there was a primary email address given by the petitioner. It is common knowledge that a secondary email address has to be used as an alternative or in such circumstances when the authority is unable to effect service of any communication on the primary address. There is no prudence in issuing an email on the secondary email address. In our view the AO ought to have sent the notice u/s. 148 to both the primary address and the email address mentioned in the last Return of Income filed to preempt a jurisdictional error on account of valid service; there was neither any cost to it or any prejudice to any party for sending it on more than one email in a given circumstance as in the present case. We see no wrong with the petitioner's refusal to participate in a proceeding vitiated by valid service of notice. This Court in the case of Mrs. Chitra Supekar vs. ITO in Writ Petition No. 15580 of 2022 has held that it was imperative for the AO to have checked if there was a change of address before initiating a proceeding; and that a valid service of notice under section 148 is a condition precedent lest it would be a jurisdictional error.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 1983 of 2022, 3037 of 2022 and 3042 of 2022

Assessment Year: 2015-2016;2016-2017;2017-2018

Lok Developers  Vs. Deputy Commissioner of Income tax Circle 24(1) and Ors.

Hon'ble Judges/Coram:

Dhiraj Singh Thakur and Kamal Khata, JJ.

Author: Kamal Khata, J.

Citation: MANU/MH/0524/2023.

Decided On: 15.02.2023.

Citation: 2023 Lawweb (Bom HC ) 18.

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Questions and answers on law Part 55

Q 1:- Whether Judgment passed by supreme court can be challenged before civil court? If it can be challenged under which provision?

Ans: As per S 44 of The evidence Act, if said judgment was obtained from Supreme court by fraud.

Central Government Act

Section 44 in The Indian Evidence Act, 1872

44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.—Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Q 2 :- Under Which provision of CPC ,The court can issue summons by Email?

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Karnataka HC Guidelines to police for Search Of Smartphones, Laptops, Electronic Gadgets, Email Accounts of accused

17.4. Pending such formulation, it would be required that the following minimum  guidelines are implemented:

17.5. In the case of a personal computer or a laptop:

17.5.1. When carrying out a search of the premises, as regards any electronic equipment, Smartphone or e-mail account, the search team to be accompanied by a qualified Forensic Examiner.

17.5.2. When carrying out a search of the premises, the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person, like a properly qualified forensic examiner.

 17.5.3. At the time of search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc., are captured in such photograph/s.

17.5.4. The front and back of the computer and/or the laptop while connected to all the peripherals to be taken.

17.5.5. A diagram should be prepared showing the manner in which the computer and/or the laptop is connected.

17.5.6. If the computer or laptop is in the power-off mode, the same should not be powered on.

17.5.7. If the computer is powered on and the screen is blank, the mouse could be WP No.11759/2020 moved and as and when the image appears on the screen, the photograph of the screen to be taken.

17.5.8. If the computer is powered on, the investigating officer should not power off the computer. As far as possible, the investigating officer to secure the services of a computer forensic examiner to download the data available in the volatile memory i.e., RAM since the said data would be lost on the powering down of the computer or laptop.

17.5.9. If the computer is switched on and connected to a network, the investigating officer to secure the services of a forensic examiner to  capture the volatile net work data like IP address, actual net work connections, net work logs, etc., 17.5.10. The MAC address also to be identified and secured.

17.5.11. In the unlikely event of the Forensic examiner not being available, then unplug the computer, pack the computer and the wires in separate faraday covers after labeling them. 17.5.12. In case of a laptop if the removal of the power cord does not shut down the laptop to locate and remove the battery. 17.5.13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said WP No.11759/2020 laptop since most of the laptops, nowadays have wireless communication enabled even when the laptop is in the stand by mode.

17.6. Seizure of networked devices: Apart from the above steps taken as regards seizure of the computer, laptop, etc., if the said equipment is connected to a network:

17.6.1. To ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, if so to seize the remote storage devices as also the shared network devices.

17.6.2. To seize the wireless access points, routers, modems, and any equipment connected to such access points,  routers, modems which may some times be hidden.

17.6.3. To ascertain if any unsecured wireless network can be accessed from the location. If so identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices. 17.6.4. To ascertain who is maintaining the network and to identify who is running the network - get all the details relating to the operations of the network and role of the equipment to be seized from such network manager.

17.6.5. To obtain from the network manager, network logs of the machine to be searched and/or seized so as to  ascertain the access made by the said machine of the net work.

17.7. Mobile devices:Mobile devices would mean an include smartphone, mobile phone, tablets GPS units, etc., during the course of seizure of any of the mobile devices, apart from the steps taken in respect of a computer and/or laptop, the following additional steps to be taken:

17.7.1. Prevent the device from communicating to network and/or receiving any wireless communication either through wifi or mobile data by packing the same in a faraday bag.

17.7.2. Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could  be lost.

17.7.3. Look for slim-slots remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag.

17.7.4. If the device is in power-off mode, the battery could also be removed and kept separately.

17.7.5. If the device is powered on, then put it in an aeroplane mode in android device or airplane mode in a IOS device.

17.8. In all the cases above, the seized equipment should be kept as far as possible in a dust- free environment and temperature controlled. 17.9. While conducting the search, the investigating officer to seize any electronic  storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives etc., located on the premises, label and pack them separately in a faraday bag.

17.10. The computers, storage media, laptop, etc., to be kept away from magnets, radio transmitters, police radios etc., since they could have an adverse impact on the data in the said devices.

17.11. To carry out a search of the premises to obtain instructions manuals, documentation, etc., as also to ascertain if a password is written down somewhere since many a time person owning equipment would have written the password in a book, writing pad or the like at the said location.

 17.12. The entire process and procedure followed to be documented in writing from the time of entry of the investigation/search team into the premises until they exit.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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What are the powers of the court or police about the search and seizure of a smartphone, computer, server or any other electronic item or equipment?

  9. ANSWER POINT No.1: Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?

 The Investigating Officer, during the course of an investigation, could always issue any direction and/or make a request to the accused or other persons connected with the matter to furnish information, to provide material objects or the like. These directions are routine in any investigation. Thus, during the course of the investigation, the Investigating Officer could always request and/or direct the accused to furnish the password, passcode or Biometrics, enabling the opening of the smartphone and/or email account. It is up to the accused to accede to the said request and or directions. If the accused were to provide such a password, passcode or Biometrics, the Investigating Officer could make use of the same and gain an access to the same.

10. ANSWER TO POINT NO.3: Can a Court issue a suomoto order to the accused to furnish a password, passcode or Biometrics?

10.1.The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. The gathering of information and/or evidence, mode and methodology of investigation is in the exfacie domain of the Investigating Officer.

10.2. The court by itself cannot suo moto order for furnishing of the password, passcode or Biometrics. The Court is not part of the investigation. The Court can only act on an application being filed by either of the parties.

11. ANSWER TO POINT NO.4: In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?

11.1. In the event of the accused not providing the password, passcode or Biometrics, the Investigating Officer can approach the Court seeking for necessary directions to the accused to provide the same and/or carry out a search of the smartphone or any electronic equipment.

11.2. The Investigating Officer could approach the concerned Court seeking for issuance of a search warrant to carry out a search of the smartphone and/or electronic equipment.

12. ANSWER TO QUESTION NO.5: What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?

 12.1. The requirement for a search of a smartphone and/or electronic instrument could arise under two circumstances. 12.1.1. Emergent circumstances 12.1.2. During the regular ordinary course of the investigation 12.2. It is in light of these two circumstances that the nature and methodology of a search would have to be considered.

12.3. The Cr.P.C. provides a framework for carrying out a search of any premises or the like. There is no particular or different framework provided for the purposes of search of a smartphone or electronic equipment, computer, server etc. Thus, it is the framework under Cr.P.C. and to some extent under the Information Technology Act, which would have to be made applicable to searches of these kinds.

12.4. Chapter VII of Cr.P.C. provides for search, seizure, production etc. Section 91 of Cr.P.C. enables any Court or any officer in charge of a police station to issue summons or order to the person in whose possession or power such a document or thing are believed to be requiring him to attend and produce it at the time and place indicated in the said summon or order.

12.5. Section 92 of Cr.P.C. provides the power to the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court to require the postal or telegraph authority for the purposes of investigation, enquiry or trial  to order the postal or telegraph authority to deliver the document, parcel or thing in the custody of postal or telegraph authority. Similarly, the Commissioner of Police or District Superintendent of Police may require the postal or telegraph authority to cause search, detain the document or parcel and produce the same before the Court. I t is pertinent to mention here that the correspondence email etc., would be covered under the Telegraph Authority.

12.6. Section 93 of the Cr.P.C. provides powers to the Court to issue a search warrant 12.6.1. On a person not willing to produce a document or a thing as directed under Section 91 of Cr.P.C., or 12.6.2. Where the document or thing is not known to be in possession of any  person or 12.6.3. Where the Court considers that for the purpose of any enquiry, trial or other proceedings, a general search or inspection would serve the purpose.

12.7. In terms of Section 93 (2) of Cr.P.C., the Court could also restrict the search to a specific place, a specific time or a specific purpose.

12.8. Section 94 of Cr.P.C. confers power on certain Courts to search places suspected to contain stolen property, objectionable article, forged documents, counterfeit material, obscene objects, instruments or materials used for the production of any item under Section 94 (2) of Cr.P.C., and to take such action as may be required in terms of Section 94(1) of Cr.P.C., thereof.

 12.9. In terms of Section 100 of Cr.P.C., in the event of any place being closed, any person residing in or being in charge of such place shall on demand of the officer or other person executing the warrant and on the production of the warrant allowing free ingress thereto. As also afford all reasonable facilities for a search therein. In the event of any person suspected to be concealing any article, a search of such person could also be made subject to however restrictions that a search of any woman could be made by a woman. 12.10. During the process of search in terms of Section 102 of Cr.P.C., any particular item could be seized by a person conducting a search on fulfilling certain criteria.

 In view of the above, the said Chapter VII provides several powers to the Police or Magistrates, which could include the power to search and seize a smartphone, computer, server or any other electronic item or equipment.

12.12. A search and seizure of a smartphone can also be permitted in terms of the above provisions as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a closed place can be searched by the persons searching directing any person incharge of a place to open the same and provide all facility. It is in the background of the above provisions that the aspect of search of a smartphone or electronic equipment, including an e-mail account will have to be considered.

 Search and Seizure in Emergent circumstances 12.13. It may happen that there may arise certain emergencies or exigencies for a search of a smartphone or electronic equipment to be carried out like if the data is going to be immediately destroyed, there is a danger of equipment itself being destroyed, the possibility of the equipment 

not being available, etc. 12.14. In terms of Section 102 of Cr.P.C., if there are any emergency circumstances, the Police Officer could seize the equipment; if there is any suspicion that either the object has been stolen or which create suspicion of commission of any offence.

12.15. The second aspect as regards of suspicion of  any commission of any offence is wide enough to cover a plethora of situation. Thus, in an emergent situation, the Police Officer could seize the electronic equipment. 12.16. In emergent circumstances, it cannot be expected of the Investigating officer to rush to a court of Law to obtain a warrant, such a requirement would amount to negating their powers and impinging on their functions. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled. 12.17. There must exist reasonable grounds for believing that it is necessary for carrying out  a search of the Smartphone or Electronic Equipment with expediency and that if such a search is not conducted immediately, the conduct of the offence may be expedited and/or the evidence thereof be lost. 12.18. In such a scenario, there must be a recording in writing made by the Investigating officer, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer of the emergent nature of the search has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled, a search without a warrant would be without jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on  the right to privacy of such a person. 12.19. In terms of Section 165 of Cr.P.C., if the investigating officer during the course of investigation has reasonable grounds for believing that anything required for the purpose of investigation would be found in a place within the limits of his police station of which he is incharge of or attached to, he may without delay after recording in writing the grounds for belief and specifying in writing as far as possible, the thing for which search is to be made, search any place within his limits of jurisdiction. However, the copies of any record made to conduct such a search would have to be sent to the Magistrate empowered to take cognizance of an offence and a record of the same. Though a search without reasons and without following the procedure may be illegal, the illegality of the search would not make any seizure made during the search inadmissible as held by the Hon'ble Apex Court in the case of Dr.Pratap Singh vs. Director of Enforcement Foreign Exchange Regulation and others reported in (1985) 3 SCC 72. However, the Courts would have to be cautious while dealing with the evidence collected in such an illegal search.

Search and Seizure during the regular ordinary course of the investigation 12.20. If the search is required to be carried out in a normal and regular course of an investigation, in that situation, the investigator or investigating agency would have sufficient time to plan out the manner of carrying out such a search as there being no emergency or immediate requirement of carrying out such search.

12.21. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the accused or any other person to produce any particular document or equipment as stated above. If not so produced, a search warrant could be sought for from the Court of law. Be that as it may without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for issuance of a search warrant under Section 93 of Cr. P.C. Once a search warrant is issued and received by the accused or any other person it would be the obligation of such person to permit the search and/or to provide document or thing called upon.

12.22. While issuing a search warrant, the concerned Court would have to indicate as to what smart phone, electronic equipment or email account is to be searched. The role of the same in the crime, the nature of search to be done, place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party. So as to preserve the privacy of the concerned. 12.23. The provisions referred to and mentioned deals with search and seizure. Electronic equipment occupies a slightly different position, in that it is not only the seizure of the phone and equipment, but once it is seized, the said equipment is required to be opened more often than not such equipment  are locked by password, passcode or biometrically. Thus, for the purpose of opening and/or accessing the data on the said equipment, it would be required for the accused or person in charge of the said equipment to provide a password, passcode or open the same using the biometrics. 12.24. As mentioned above, in terms of Section 100 of Cr.PC., a person in charge of a closed place is also required to permit such search and, in fact, facilitate such search.

12.25. Applying the said principle to a smartphone, electronic equipment or an email account, it would but be required for the accused or a person in charge of electronic equipment to provide the password, passcode or biometrics to open the Smartphone, computer  equipment or email account.

12.26. It is these aspects which have to be considered in the present circumstances. Section 69(1) of the IT Act empowers the specified officers to pass orders compelling the decryption of any information, generated, transmitted, received or stored in a computer resource which would also include a smartphone.

12.27. When the said authority is satisfied that it is necessary for the purpose of any investigation into any offence, however, an officer, before ordering such decryption, is required to record in writing the reasons for calling upon for such decryption and inform the person of the possibility of prosecution if he does not comply with a request.

12.28. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion, and the same should not result in harassment of innocent persons. When a search is made with a warrant, the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made the safeguards enshrined under the Cr. P.C.

12.29. As observed above, the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive,are enumerated  hereunder:

12.29.1. A lady officer is required to be present if the accused is a lady or if the equipment is located in a place where there are ladies present.

12.29.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.

12.29.3. The officers before starting the search are required to disclose their identity  by showing their identity cards to the owner of the premises.

12.29.4. Search     should     be     made   in   the

        presence        of   two  

  independent   and

respected witnesses of the locality. 12.29.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.

12.29.6. After examination of the seized goods or things by the authority, the same to be sent for any technical/forensic examination within a period of 72 hours thereof.

12.29.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.

12.29.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under  acknowledgement.

13. ANSWER TO QUESTION NO.6:Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?

13.1. Since, as stated above, a smartphone can contain humongous data, which could also be incriminatory insofar as the person owning the said electronic equipment, including the smartphone, is concerned and it is in this background, we have to consider the providing of a password, passcode or biometrics and whether making available, this incriminatory material would amount to giving of testimony and or a statement in terms of Section 161 of Cr.P.C.

13.2. On a notice being issued under Section 160 of Cr.P.C., any witness could be examined by the police, the witness could be the accused himself.

13.3. Such a statement needs to be reduced to in writing wherein such person is required to answer all questions relating to such case, other than the questions, the answer to which would have the tendency to expose him to a criminal charge or a penalty or forfeiture. That being a right to protection of self-incrimination as enshrined under Article 20 of the Constitution of India.

13.4. Though Mr Tigadi, learned counsel for the Respondent contended that the disclosure of password is in the nature of giving specimen signatures or handwriting and therefore a direction could be issued under Section 311-A of the Cr. P.C, I'm of the considered opinion  that the providing of a password, passcode or biometrics is more than that, and a direction cannot be issued in that manner.

13.5. In the event of password, passcode or Biometrics being provided and the Investigating Officer gaining access to the said smartphone and/or electronic equipment or email account, the data so gathered would have to be treated as any other document and/or object secured during the course of investigating like in the case of securing a murder weapon. The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused. The data gathered would have to be proved during the course of the trial as done in any other matter.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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Whether court directing accused to give password of his social media account will violate his right to privacy?

 15. ANSWER TO QUESTION NO.8:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics? 15.1. This aspect is to be considered in light of the principles propounded by the Hon'ble Apex Court in Justice Puttaswamy's case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict  compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account. 15.2. Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like. 15.3. The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a  smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data. 15.4. Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence. 15.5. The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy's case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by  passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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Whether court directing accused to give password of his social media account amounts self-incrimination or testimonial compulsion?

 14. ANSWER TO POINT NO.7:Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion? 

14.1. As regards the contention that providing of the password/pass code will amount to testimonial compulsion, I am of the considered opinion that there is no testimony which is given by the accused by providing the said password, passcode or biometrics by which the document is being accessed by the Investigating officer.

14.2. The XI Judge Bench of the Apex Court in Kathi Kalu Oghad's case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial  compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of Law by following the applicable Rules of evidence.

14.3. Merely because any document is present or available on the smartphone and or the e- mail account would not by itself establish the guilt or innocence of an accused. Both the prosecution, as also the accused/defence would be required to prove the said document or data by other evidence also.

14.4. If the submission of Mr.Hasmath Pasha, learned Senior counsel would be accepted, the same would result in a chaotic situation: 14.4.1. No blood samples can be taken; 14.4.2. no sample for DNA analysis could be taken;

14.4.3. no handwriting samples can be taken; 14.4.4. no other body sample for the purpose of DNA analysis could be taken 14.4.5. No search of a house or office could be undertaken.

14.4.6. The data of a laptop or computer or server cannot be accessed by the Investigating officer.

14.4.7. offences like cyber crime could never be investigated.

 14.4.8. Offences like pornography, child pornography which are more often than not, on the internet, could not be investigated.

14.5. A direction to provide a password, passcode, biometrics would not amount to testimonial compulsion. It is only in the nature of a direction to produce a document. Mere providing access to a smartphone or e-mail account would not amount to self- incrimination since it is for the investigating agency to prove its allegation by cogent material evidence.

14.6. The data available on a smartphone or e-mail account would also have to be proved by the investigating agency in accordance with Law. Mere providing of password, passcode or  biometrics would not amount to answering any question put forward by the Investigating Officer, and as such, it would not amount to a violation of Section 151(2) of the Cr.P.C. 14.7. As contended by Sri.Veranna Tigadi, learned counsel providing of the password, passcode, pin, biometrics is akin to finger printing and/or taking imprints of the shoes, soles and or taking sample of the clothes, biological samples, chemical samples, etc, same cannot amount to forced testimony on part of the accused. On the examination of the data in the telephone/mobile and or on the computer, etc, prosecution would have to prove the same by cogent evidence. 14.8. By providing of password, passcode or biometrics, there is no oral statement or a  written statement being made by the accused like the Petitioner herein, therefore it can not be said to be testimonial compulsion.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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When the court can permit the investigating officer to hack into the smartphone and/or email account of the accused?

 ANSWER TO POINT NO.9:What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?{Para 16}

 16.1. Though not argued or contended this Court would also have to take into consideration the possibility of the accused not co- operating inspite of above directions having been issued and/or providing apassword, passcode which is incorrect.

16.2. In the event of the accused not co-operating and not providing necessary password, passcode adverse inference could be drawn subject to the prosecution pointing out the nature of such adverse inference which could be drawn.

16.3. The second situation is even more dangerous inasmuch as the accused may provide a wrong password or passcode and or provide biometrics of a wrong person, and sometimes by way of the usage of such wrong password,  passcode or biometrics for more times than one, the device could either get locked and/or the data on the said device and the e-mail account could be wiped out automatically because a wrong password, passcode or biometrics has been used multiple times. The Investigating agency therefore has to be aware of and careful of this possibility. 16.4. The accused in such a situation is therefore required to be given only one chance to provide the proper password, passcode or biometrics to open the smartphone and e- mail account.

16.5. In both the above situations, the Investigating Agency would also be at liberty to engage such specialised agency as may be required in order crack the password,  passcode or biometrics so as to have access to the smartphone and or the e-mail id. The accused cannot thereafter contest the methodology used by the Investigating Agency to access the information on the smartphone or e-mail account since the accused having been given an opportunity to co-operate and provide the password, passcode, or biometrics, has refused to co- operate and do so, 16.6. The rules of electronic device would apply to any data if sought to be made use of by the Investigating agency in a Court of Law. The Investigating agency would be at liberty to clone the smartphone and or hard disk of the smartphone, as also any data available on any cloud service to which the smartphone is connected to and make use of the same during the course of investigation and/or trial.

16.7. Similarly the Investigating agency would be at liberty to block the access to the e-mail accounts once opened by changing the password so that no one else apart from the designated officers would have access to the said smartphone, computer equipment or e- mail accounts. The data available on the said e-mail account could be downloaded and preserved, as also made use of by the Investigating agency for the investigation. 16.8. Thus the procedure that would have to be followed would be as under:

16.9. It would be required for the prosecution to approach the Court to seek a search warrant to search the smartphone and or e-mail  account. Once a search warrant is issued, it is upto the Petitioner- accused to provide the password, passcode, biometrics etc., 16.10. The investigating agency could also serve a notice on the accused indicating that in the event of the accused not furnishing the said password, passcode, biometrics etc., an adverse inference would be drawn against the accused as regards the aspects notified in the said notice. The accused can then,in order to avoid the adverse inference from being drawn, furnish the password, passcode or biometrics to the Investigating authorities. 16.11. In the event of the accused or any other person not providing the password, passcode or biometrics, on an application made by the prosecution, the court could direct the service  provider viz., manufacturer of the smartphone and/or e-mail service provider, to open or unlock the smartphone and/or email account to enable access to the said smartphone and/or email account. 16.12. In the event of the manufacturer and the service provider not facilitating the opening of the smartphone, email account or computer equipment, then the Court on an application being filed in that regard permit the Investigating Officer to hack into the smartphone and/or email account. 16.13. The investigating agency would be empowered to engage the services of such persons as may be required to hack into the smartphone and or e-mail account and make use of the data available therein, which would  be akin to breaking open a lock or door of the premises when the accused were to refuse to co-operate with the Investigating officer and open the door of locked premises. 16.14. In the event of the investigating agency is unsuccessful in hacking into the smartphone and or the e-mail account and during the course of such a procedure, if the data on the smartphone and or the e-mail account being destroyed then, the Investigating agency/prosecution would be free to rely upon the notice by which the accused was warned of adverse inference being drawn.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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What is the duty of investigating officer if he comes across confidential information of the accused during the course of the investigation?

 ANSWER TO QUESTION NO.8:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics? 15.1. This aspect is to be considered in light of the principles propounded by the Hon'ble Apex Court in Justice Puttaswamy's case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict  compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account. 15.2. Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like. 15.3. The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a  smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data. 15.4. Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence. 15.5. The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy's case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by  passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.{Para 15}

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021

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Supreme Court: Service of Summons may be effected by e-mail, FAX, instant messaging services, such as WhatsApp, Telegram, etc

I.A. No. 48461/2020- Service of all notices, summons

and exchange of pleadings

Service of notices, summons and exchange of

pleadings/documents, is a requirement of virtually

every legal proceeding. Service of notices, summons

and pleadings etc. have not been possible during the

period of lockdown because this involves visits to

post offices, courier companies or physical delivery

of notices, summons and pleadings. We, therefore,

consider it appropriate to direct that such

services of all the above may be effected by e-mail,

FAX, commonly used instant messaging services, such

as WhatsApp, Telegram, Signal etc. However, if a

party intends to effect service by means of said

instant messaging services, we direct that in

addition thereto, the party must also effect service

of the same document/documents by e-mail,

simultaneously on the same date.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

SUO MOTO WRIT PETITION (C) NO. 3/2020

IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 

VERSUS

Respondent(s)

IA No. 48672/2020 - APPROPRIATE ORDERS/DIRECTIONS

IA No. 48375/2020 - CLARIFICATION/DIRECTION

IA No. 48461/2020 - CLARIFICATION/DIRECTION

IA No. 48673/2020 - EXEMPTION FROM FILING AFFIDAVIT

IA No. 48374/2020 - INTERVENTION APPLICATION

IA No. 48416/2020 - INTERVENTION APPLICATION

IA No. 48408/2020 - INTERVENTION APPLICATION

IA No. 48671/2020 - INTERVENTION/IMPLEADMENT)

Date : 10-07-2020 These applications were called on

for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE R. SUBHASH REDDY

HON'BLE MR. JUSTICE A.S. BOPANNA

UPON hearing the counsel the Court made the following

O R D E R

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Whether court can permit production of certificate U/S 65B of Evidence Act at subsequent stage?

Anwar P.V. (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C. or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65B.

Emails are downloaded and computer output, in the form of paper prints, are taken every day. These emails may become relevant and important electronic evidence, subsequently. It is difficult to conceive and accept that the emails would be inadmissible, if the official i.e. the person who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65B.

IN THE HIGH COURT OF DELHI

Crl. A. 711/2014

Decided On: 24.11.2015

 Kundan Singh  Vs. The State

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How to prove Email sent by accused in Criminal prosecution?

Electronic Mails

62. We will now turn to the electronic mails which the prosecution has relied on. It has sought to prove this evidence by relying on the testimonies of PW 132, the expert from the West Bengal Electronics Ltd. (Webel), PW 118, the wireless operator and the I.O. According to these witnesses, Akib Ali disclosed his e-mail identities and passwords in their presence in the computer room at Bhabani Bhawan (the C.I.D. headquarters). They claim to have downloaded these e-mails from Akib Ali's e-mail account. The e-mails were then printed in their presence. All these printed e-mails have been signed by the aforesaid witnesses. It has been noted on these e-mails that Akib Ali refused to endorse the printed copies of the mails. Under Section 88A of the Evidence Act the Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed in the computer for transmission. However, the Court cannot draw any presumption about the person who sent the message. The term 'originator' has been defined in the Information and Technology Act, 2000 under Section 2(za) as a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary. Thus on analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Section 27 of the Evidence Act. PWs 118 and 132 have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the emails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.

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What are material prerequisites for proof of email evidence?

What falls for adjudication in the present case is whether on the basis of the aforesaid emails, the defendant No. 1 can be said to be having the written consent of the defendants No. 3 & 4 to transfer or agree to transfer the aforesaid second floor flat.

18. However before discussing the contents of the emails it may be stated that as per Section 65B of The Indian Evidence Act, 1872, for such emails to be proved, it has to be proved/established that the computer during the relevant period was in the lawful control of the person proving the email; that information was regularly fed into the computer in the ordinary course of the activities; that the computer was operating properly and the contents printed on paper are derived from the information fed into the computer in the ordinary course of activities and a certificate identifying the electronic record has to be proved. Most of the emails aforesaid are stated to be exchanged by the defendants No. 3&4 with the son of the defendant No. 1 who has however not been produced in evidence. The plaintiff No. 1 in his affidavit by way of examination-in-chief has also not satisfied the aforesaid conditions of Section 65B of the Act. The emails on which reliance is placed to plead written consent of the defendants No. 3&4 cannot thus be said to be proved.

19. However even if the said emails were to be held to be proved, in my view the same do not constitute written consent of the defendants No. 3&4 to the defendant No. 1 agreeing to transfer the share of the defendants No. 3 & 4 in the second floor flat, within the meaning of the Memorandum of Family Settlement/Agreement dated 17th March, 1998 supra for the following reasons;

(a). There is no email of prior to the date of Agreement to Sell.

(b). There is no statement that the email address with which the said emails had been exchanged are that of the defendants No. 3 & 4.

(c). The defendant No. 1 or his son with whom the emails are stated to have been exchanged by the defendants No. 3 & 4 have not been examined as witnesses.

(d). What is conveyed by the son of the defendant No. 1 to the defendant No. 3 in the email Exhibit PW-1/8 dated 12th December, 2006 is that he was going ahead with the sale when as aforesaid the Agreement to Sell had already been executed prior thereto.

(e). There is no evidence as to who is Raje Chacha, referred to in the emails.

(f). There is nothing to show that the e-mails purported to have been sent by the defendant No. 1 or his son were delivered to the defendants No. 3 & 4.

(g). Even in the email dated 1st October, 2007, what is purported to be conveyed to the defendant No. 3 is that the Aggarwal Chemist from the Hauz Khas Market (plaintiff No. 1) was interested to buy and option was given to the defendant No. 3 to keep the front terrace. The language thereof is indicative of nothing having been finally decided tilt then, when as aforesaid the Agreement of which specific performance is claimed is of a date prior thereto.

(h). The email Exhibit PW-1/10 dated 17th January, 2007 purportedly from the defendant No. 3 is only of forwarding the certain documents and does not confirm consent to sell. 

IN THE HIGH COURT OF DELHI

CS (OS) 86/2009

Decided On: 24.01.2013

Babu Ram Aggarwal Vs.  Krishan Kumar Bhatnagar and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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