Under which circumstances second application U/S 97 of CRPC is maintainable?

If the Court ultimately holds that keeping of

the child in the manner alleged in the subsequent

application, in fact amounts to illegal confinement, then

the same cannot be restricted to any particular date.

Therefore, in particular, looking at the statutory intent

behind enactment of Section 97 of Cr.P.C. it can be safely

held that in the peculiar facts and circumstances of the

present case, the filing of the subsequent application

cannot be treated as barred by law. Moreover, as has been

argued by Mr. Pattanayak, there is no concept of res

judicata in criminal jurisprudence. From the facts

narrated hereinbefore, it is evident that there is dispute

between the petitioner and her husband and that their 2

and ½ years child (at the relevant time) was alleged taken

away forcibly by opposite party no.3 and the petitioner

was not allowed to meet her child. Further, the child is

said to be kept confined to a room and there is also some

danger to its life. Now, whether the allegation as above is

correct and/or whether this would amount to wrongful

confinement of the child would depend on the facts and

circumstances of the case but it would suffice to say that

if the allegations leveled by the petitioner are accepted on

their face value, the possibility of such offence having

been/being committed cannot entirely be ruled out.

Reference to Section 340 of IPC would be apposite at this

stage which reads as follows:

“340. Wrongful confinement.—Whoever

wrongfully restrains any person in such a

manner as to prevent that person from

proceedings beyond certain circumscribing

limits, is said “wrongfully to confine” that

person.”

It all depends on the facts and circumstances of the case.

To such extent therefore, this Court is of the considered

view that the second application filed under Section 97 of

Cr.P.C. by the petitioner was maintainable. {Para 5}

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 196 of 2022

Amrita Ray  Vs State of Odisha and Others

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 7th February, 2023

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What procedure must police follow while executing a search warrant beyond the jurisdiction of the court issuing it?

  When we turn back to Section 101, we find that the procedure contained therein must mandatorily be followed while dealing with the seizure of the articles found in execution of the search warrant, when it is under Section 78 or 79. It must also be mandatorily followed, when it is done under Section 105, though in exceptional cases, a departure from Section 101 procedure is permissible.{Para 34}

35. Section 101 is an omnipotent provision, it being the only of it's kind which deals with disposal of things found in the search, whether under Section 78 or Section 79 or Section 105 and so it has universal application to all searches made by resorting to any of the three modes of the execution of warrants, barring the power of the Magistrate to depart from it in a rare case under Section 105. Language of Section 101 has an imperative character. This is evident from the use of an expression indicative of a mandate therein. The mandate is expressed in words “such things, together with the list of same prepared under the provisions hereinafter contained, shall be immediately taken before the Court”. Uses of the modal verb “shall” here signifies nothing but command of the legislature which must be followed. The command is that the things found in the search must be taken before the Court issuing the warrant but, if such Court is situated farther than the Court within whose local jurisdiction the things are found, the things are required to be taken before such nearer Court. When the things are produced before the nearest Magistrate having jurisdiction over the place searched, along with list of the articles found, such Magistrate is required to make an order authorizing the things to be taken to the Court issuing the warrant, unless he finds a good cause to the contrary.

36. Such procedure prescribed in Section 101 has a purpose behind it. When the Court issuing the warrant is situated at a distant place, considerable time may be required for the officer to produce the things seized before the Court issuing it. Sometimes heavy expenses for transportation of such things may have to be incurred, sometimes seized articles being valuable may be at the risk of being tampered with or forcibly taken away by somebody, sometimes a need may arise for giving back the custody of the seized articles to the person on his executing a bond undertaking to produce the property before the Court as and when required, sometimes there may be also a need for providing for faster transportation of the seized articles to the Court issuing the warrant, sometimes goods being perishable, a command for issuing appropriate directions for their preservation may arise and sometimes seizure of wrong articles, police excesses, and misuse of powers may take place. Such contingencies can only be taken care of adequately by taking the things to the nearest Magistrate and therefore, there is a mandate for taking the things found in the search before the nearest Magistrate. This is the purpose which is sought to be achieved by the prescription contained in Section 101 that whenever it is not possible for an officer to take the things found in the search to the Court issuing the warrant, on account of that Court being situated at a distance farther than the Court within whose jurisdiction the search warrant is executed, the officer must produce the seized articles before such nearest Magistrate. It is also with this object in mind that a discretion has been given to the Magistrate to not authorize taking of the things to the Court issuing the warrant whenever he finds good cause to the contrary. But, we must add here that any refusal to give such authorisation must be by way of an exception, only when there is good cause to do so, and that reasons in writing must be recorded for such refusal. Reason being that when there is a discretion, it always comes with it's own compunction, the compunction of being fair and reasonable. Reasons recorded in writing serve as a barometer to test the parameters of reasonableness, fairness and transparency in exercise of the discretion. of course, in such a case also, disagreeing with the argument of learned counsel for the petitioners, there would be no need for the Magistrate to issue notice to the person from whose custody the articles are seized and give him an opportunity of hearing. There is nothing in Section 101 which indicates giving of such an opportunity of hearing to such person. However, the Magistrate is required to apply his mind to the contents of the search-warrant, list of seized articles and other relevant facts and decide the question of grant of permission or otherwise for the things to be taken before the Magistrate issuing the warrant.

37. In Section 105(2)(d)(ii), it is laid down that where a search warrant has been executed, things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by Section 101. According to the learned counsel for respondent Nos. 1 and 5, the use of the words “so far as possible” clearly indicate that whenever Section 105 mode is adopted for execution of a search warrant, it is not necessary that in every case the procedure prescribed in Section 101 as regards production of seized articles before the nearest Magistrate must be followed and that in fit cases, instead of doing so the things seized could be directly produced before the Court issuing the warrant, no matter at what distance the Court is situated from the place where the search warrant is executed. 

38. We are of the view that learned counsel for respondent Nos. 1 and 5 are right in their submission that ordinarily Section 101 procedure should be followed while executing the search warrant in accordance with the procedure prescribed by Section 105, but in exceptional cases, such procedure, in so far as it relates to producing the seized articles before the nearest Magistrate, can be dispensed with by the concerned Court depending on the fact situation of each case. The reason being that Section 105 procedure is a Court monitored mode of execution of the search warrant which is not so in case of the modes referred to any Sections 78 and 79. When the Court having jurisdiction over the place being subjected to search takes upon itself the job of execution of the search warrant, it may, in fit cases, permit the officer executing the search warrant to take the seized articles directly to the Court issuing the warrant instead of the nearest Court by prescribing certain conditions in order to prevent misuse of the power by the executing officer. Such Court is presumed in law to possess the necessary power and means to ensure proper execution of the warrant and prevent abuse of process of law while the officer takes away the things found for their being produced directly before the Court issuing the warrant. Such means not having been possessed by the officer causing the warrant to be executed or executing the warrant under Sections 78 and 79, the officer executing the warrant would have to mandatorily follow the procedure prescribed by Section 101 of Cr.P.C.

39. In view of above, we are of the view that Section 101, procedure governing the disposal of things found in search beyond jurisdiction is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. We further find that when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.

In the High Court of Bombay(Nagpur Bench)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Angel Click,  Vs State of Karnataka, 

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Whether search and seizure of articles will become illegal if police fail to follow S 101 of CRPC while executing search warrant beyond the court's jurisdiction issuing it?

 Seized articles constitute important piece of evidence and, therefore, the effort must be to ensure that no doubt is left at any stage of the whole process of search, seizure and production of the articles before the trial Court for the purpose of proving the prosecution case against the accused. In order to minimize the possibility of creating any doubt in the whole process, the legislature has, in Section 101, mandated a particular procedure to be followed. If this mandate is not followed, the piece of evidence formed by the seized articles would become vulnerable. Doubt would be expressed about the genuineness and authenticity of the whole process and it would be very difficult for the prosecution to protect the evidence from such attack. On the other hand, if all the procedural requirements as given under Section 101 are followed it would be very difficult for the accused to contend that seizure of articles cannot be believed as there was possibility of articles being tampered with or wrong articles being seized and so on and so forth.

{Para 42}

43. The procedure laid down in Section 101, with it's object explained earlier could be seen as the mandate of law prescribed to prevent miscarriage of justice, and so it has to be followed, except in a rare case discussed earlier. 

44. It follows then that there is wisdom in obeying the command of law of procedure as contained in Section 101 rather than to say that it is for the officer executing the warrant to decide in his discretion, to follow or not to follow the procedure prescribed by Section 101 of the Cr.P.C. If the interpretation made by learned counsel for respondent Nos. 1 and 5 about the discretionary and optional nature of procedure prescribed in Section 101 to the extent it requires seized articles to be produced before the nearest Magistrate is accepted, it may lead to subverting rather than sub-serving the cause of substantive justice. It is for this reason that we say, at the cost of repetition, that there are certain situations which call for harmonising the two principles of law, the procedure is handmaiden of substantive justice and mandate of law to do a thing in a particular manner alone, with each other. As such, we find that whenever the search warrant is executed by taking recourse to the modes prescribed in Sections 78 and 79, the procedure prescribed by Section 101 of the Cr.P.C. must be mandatorily followed, and that it must also be followed when the warrant is executed through the route of Section 105 of the Cr.P.C., except in a rare case, in view of the provisions made in Section 105(2)(d)(ii) of the Cr.P.C., which we have already discussed.

45. Having understood the law governing the subject of the execution of search warrant that now we have to examine the correctness or the otherwise of the procedure adopted by Gangavathi Court in issuing the warrant and getting it executed at Nagpur. It is an admitted fact that the warrant which was to be executed at two places situated within the territorial jurisdiction of Nagpur Court was not forwarded to the Nagpur Court having the jurisdiction, as prescribed under Section 105 or to any authority having the jurisdiction as prescribed under Section 78 and the warrant was directed to police officer of police station Gangavathi for executing the same at Nagpur and it appears that this was done by resorting to the mode given under Section 79 of the Cr.P.C. The police officer, on his part, obtained the authorization of the officer in-charge of the jurisdictional police station and executed the search warrant at two places situated in Nagpur district. This was as per the procedure laid down under Section 79 of the Cr.P.C. But, thereafter, it is seen that the procedure governing disposal of things found in the search as prescribed by Section 101 was not followed by the police officer who executed the warrant. We have already found that procedure contained in Section 101 of the Cr.P.C., in so far as it relates to Sections 78 and 79, is mandatory and no exception to it and no departure from it are permitted. Karnataka police do have an explanation in this regard like the resistance put up by the locals and the fear of the locals forcibly taking away the rice bags which made the officer to directly take the seized rice bags before Gangavathi Court. Such justification will be of no help to Gangavathi police when we find that there is no escape from the rigor of procedure prescribed in Section 101 in respect of two modes of execution of warrant given under Sections 78 and 79 of the Cr.P.C. As stated earlier, the mode adopted here for execution of the search warrant was as given in Section 79 and not Section 105. Therefore, any violation of procedure prescribed by Section 101, which indeed has taken place in the present case, would vitiate the whole search and seizure operation and that would mean that the seizure of the rice bags made by Karnataka police in the present case is illegal.

46. In the circumstances, we are of the view that this petition deserves to be partly allowed and accordingly it is allowed in terms of prayer clause (I).

47. It is declared that the seizure of the rice bags (6140 rice bags of Heritage brand made from godown of petitioner No. 1 and 999 rice bags of Heritage brand made from the godown of petitioner No. 2 situated within Nagpur district) is illegal.

 In the High Court of Bombay(Nagpur Bench)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Angel Click,  Vs State of Karnataka, 

Criminal Writ Petition No. 39 of 2021

Decided on May 7, 2021, 

Citation: 2021 SCC OnLine Bom 682

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Whether Magistrate can issue a search warrant U/S 97 Cr.P. C. to search for the person confined outside the territorial jurisdiction of said Court?

 Secondly, respondent No. 1 along with respondent No. 2 was residing at village Bhadgaon, District Jalgaon, Maharashtra and, therefore, the SDM, Burhanpur had no jurisdiction to issue any search warrant out of the territory of State of Madhya Pradesh, hence the proceedings initiated before the SDM, Burhanpur was without any jurisdiction.

Madhya Pradesh High Court

Gajendra vs Smt. Jayshree on 3 November, 2015

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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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Bom HC: Conduct of search of house by police in violation of provisions of CRPC amounts to breach of right to privacy

 In the case reported as State v. Rehman (AIR

1960 SC 210) it is laid down by the Apex Court that as

search is a process exceedingly arbitrary in character,

stringent statutory conditions are imposed on the exercise

of the power. The provision of section 165 of the Cr.P.C. is

enacted to enable police to take search when there is

urgency and when it is not permissible to follow lengthy

process, securing search warrant from Magistrate. In the

case of Rehman (cited supra) the Apex Court has laid

down that as the provision of section 165(1) of the Cr.P.C.

is mandatory in nature, it should be strictly followed.

Thus, before entering a house, investigating officer has to

specify in writing the things for which search is to be

made and also the ground of his belief that such things

would be found in the house which is to be searched. In

view of the wording of the provision it can be said that

the provision is not restricted to search of what is stolen

or believed to be stolen and it permits the police officer to

make search for anything necessary for the purposes of

investigation into any offence. Thus, on one hand the

provision enables police to take search of the house for

investigation of any crime, on the other, it becomes

mandatory for police to record reasons as the first step

before entering the house.

16) Sub section (2) of section 165 of the Cr.P.C.

shows that police officer taking action should be either

police officer in charge of the police station or the

investigating officer. It can be said that in cases of

urgency, the investigating officer may depute his

subordinate but in view of the provision of section 165(1)

of the Cr.P.C. such deputation must be in writing. That is

also made clear in section 165(3) of the Cr.P.C.

17) The provision of section 165 of the Cr.P.C.

shows that it applies to searches when offence is

committed under general Act like Indian Penal Code, or

special Acts or also local Acts provided that the conditions

given in section 165 of the Cr.P.C. are satisfied. This Court

has gone through the provisions of the Arms Act 1959 as

the respondents have come with the defence that there

was specific secret information against the petitioner that

he was in possession of firearm illegally. There is nothing

in the Arms Act and the Rules framed under that Act to

enable police to take such search by ignoring the

provision of section 165 of the Cr.P.C. This Court has also

gone through the provisions of the Maharashtra Police Act

to ascertain the powers of police officer and this Act also

does not show that police can bypass the provision of

section 165 of the Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Criminal Writ Petition No.25 of 2019

Dnyaneshwar s/o Kachru Todmal,  Vs  The State of Maharashtra,

Coram: T.V. NALAWADE &

S.M. GAVHANE, JJ.

Judgment pronounced on : 29 November, 2019

JUDGMENT (Per T.V. Nalawade, J.):

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