Delhi HC: Mere Celebration Of Bail On Social Media No Ground For Cancellation Without Threat To Complainant

The argument that respondent No. 2 or his associates celebrated their release on bail by uploading the videos and status messages on social media platform cannot be the ground for cancellation of bail without there being any specific threat or intimidation extended to the petitioner. Some screenshots posted on the social media have been placed on record (Annexure 9 & 10), but it is not getting visible from the said screen-shots as to whether they have been posted by respondent No. 2 with a view to intimidate the complainant. The bail of respondent No. 2 cannot be cancelled merely because one of the co-accused was witnessed in front of the residence of petitioner on 12.06.2025.{Para 8}

9. Admittedly, no complaint has been made to the police regarding any  threats having been extended by respondent No. 2. In the absence of any complaint being made to the police, the allegations of threat are not substantiated. Therefore, that being so, there is no material on record to substantiate the allegations of threats extended by respondent No. 2. The Court thus finds no justified reason for cancellation of bail of respondent No. 2.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5698/2025

ZAFEER ALAM  Vs  STATE NCT OF DELHI AND ANR

CORAM:

HON'BLE MR. JUSTICE RAVINDER DUDEJA

Dated:  19.08.2025

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How to prove electronic evidence including WhatsApp posts, CCTV footage, digital camera photographs, and digital pictures under Bharatiya Sakshya Adhiniyam?

 The digital transformation of Indian society has fundamentally altered the evidentiary landscape in judicial proceedings, requiring courts to adapt their evaluation frameworks to accommodate the complexities of electronic evidence authentication. The Bharatiya Sakshya Adhiniyam 2023 represents a paradigmatic shift in how Indian courts approach the admissibility and proof of electronic documents, moving beyond the colonial-era constraints of the Indian Evidence Act 1872 to establish a comprehensive framework specifically designed for the digital age. This transformation has particular significance for courts dealing with increasingly prevalent forms of electronic evidence, including WhatsApp communications, CCTV footage, digital camera photographs, and various forms of digital pictures that have become central to modern litigation. The judicial system's approach to these digital records requires a nuanced understanding of both legal requirements and technological realities, as courts must balance procedural rigor with practical considerations to ensure that justice is not compromised by overly technical requirements.

Evolution of Electronic Evidence Framework: IEA 1872 vs BSA 2023

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Bombay HC: Accused intimidating public servant by threatening to defame him on social media site as well as engineering artificial protest falls with scope of criminal force as used in S 353 of IPC.

Mr. Thobde contends that, the allegations in the F.I.R. do not make out any case for trial and that they are inherently improbable. He submitted that, ingredients of the offences as alleged are not even prima facie made out against the Petitioner. He further argues that, raising grievances in a democratic manner by protesting against illegal action or inaction of public servant does not amount to any offence. He raises a strange ground that, the Petitioner has only acted in furtherance of fundamental right bestowed upon him and hence he urges us to quash the F.I.R. as it is sheer harassment to the Petitioner to undergo the rigors of the trial. {Para 5}

8. The present case is suggestive of an emerging trend by persons such as the Petitioner herein, who with the aid of modern-day technologies devise a modus operandi to commit such offence. Hiding behind the screen of social media, irresponsible acts are done which have the propensity to effectively intimidate and cause a person to do acts which they would not otherwise lawfully do. All this while maintaining a veil of deniability of the act. The threat to use social media sites as a platform to intimidate and threat given by the petitioner and his accomplice is real enough to scare the complainant albeit a public servant ignoring their demands only at the risk of being defamed or facing an engineered protest.

9. Section 353 of the I.P.C. makes use of criminal force to any person being a public servant in the execution of his duty or with intent to prevent or deter him from discharging his duties, an offence. The act of the Petitioner in intimidating the complainant by threatening to defame him on social media site as well as engineering artificial protest also falls within the scope and ambit of the word 'criminal force' used in the Section. Threats of using social media site to intimate is a manifestation of the intention of the Petitioner to abuse modern day technology by 'virtually' using criminal force on the complainant. The ulterior motive is to deter him from discharging his public duty. In such circumstances 'criminal force' must not be restricted to only include physical force, but must bring within its ambit 'virtual force'. Section 353 cannot be interpreted in a narrow or parochial manner and a myopic view cannot be taken of the same. Such acts do not merely threaten the victims of crime but also defeats the very purpose of the criminal justice system. As in the case at hand, a public servant is at his tether's end to find a resolution to the constant threats and demands of money by the Petitioner. Finally, he found courage enough to approach the police who set up the trap to ensnare the Petitioner.

10. It is most unfortunate that, a public servant has been threatened and intimidated by defamatory material being circulated on social media to lower his reputation in the eyes of the right-thinking members of the society. A Tehsildar in a district is a respected public officer and is expected to discharge important functions in revenue matters. He is required to command obedience from the public at large visiting his office. If the repute of his office is lowered in the environment over which he has jurisdiction, there is a probability of chaos and disruption in the discharge of his duties. The threat of spreading false narrative by way of engineered protests in present times is bound to be quite a scary proposition for a public servant such as the complainant. The intent of the Petitioner in giving the threats and cause concern to the complainant would easily amount to an obstruction of a public servant from carrying out his public duties, particularly when the threats are coupled with aggressive and menacing acts on the part of the Petitioner and his accomplice. The F.I.R. also reveals the threat given by the Petitioner of organizing a protest during the Legislative Assembly Session in Nagpur which gives the entire act of the Petitioner a political color. This is reason enough for the complainant to be disconcerted and place him in fear of injury to his person and reputation. These acts are deprecated and need to be discouraged at their very inception, justifying prosecution.

10.1. We have recorded our above observations in detail only to bring to the fore the dangers of public servants being intimated while discharging their public duty. Public faith in public servants cannot be allowed to erode. Such acts must be viewed seriously.

11. In view of the aforenoted facts, we are of the considered opinion that, the F.I.R. prima facie discloses ingredients of the offences as alleged. We are thus not inclined to allow the Petition.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 276 of 2024

Decided On: 01.07.2024

Ajit Prabhakar Kulkarni Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Gadkari and Dr. Neela Kedar Gokhale, JJ.

Author: Dr. Neela Kedar Gokhale, J.

Citation:  MANU/MH/4381/2024.

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What is the Difference Between Mass Media and Social Media like Facebook, twitter etc?

 Facebook, Twitter, and LinkedIn are primarily classified as social media platforms rather than traditional mass media. Here’s a detailed explanation of their classification and characteristics in relation to mass media:

Definition and Distinction

- Mass Media: Traditionally, mass media refers to communication technologies that disseminate information to a large audience simultaneously. This includes newspapers, television, radio, and magazines. Mass media typically involves one-way communication where the audience is passive and receives information without direct interaction.

- Social Media: In contrast, social media encompasses platforms that enable users to create, share, and interact with content. This includes Facebook, Twitter, LinkedIn, Instagram, and others. Social media allows for two-way communication where users can engage with content creators and other users through comments, shares, likes, and discussions.

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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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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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Whether Investigating Agency Can Retain Username/Password Of Accused Person's Social Media Platform?

The Facebook and Youtube accounts are important aspects of the Petitioner's business to carry out his day-to-day business, the Respondent-police cannot on the ground of investigation block the same as as to come in the way of Petitioner carrying out his day-to-day business. For the purpose of investigation only the integrity of the data is required to be preserved and that can be so done by downloading the relevant content from the Facebook and Youtube account of the Petitioner in the presence of the Petitioner after conducting a proper mahazar with W.P.No.11169 of 2020 the help of qualified technical persons. On such downloading, the data downloaded can be kept in safe custody for the purpose of investigation. 13.9. I answer point no. (iv) by holding that an investigating agency can not retain the user name and password of social media/digital platform like Facebook and YouTube pending investigation, the investigation agency can download the data required from such account and thereafter has to give back the changed credentials to the person who owns the said social media. The Respondents are therefore directed to handover new login credentials of W.P.No.11169 of 2020 the Facebook and Youtube account of the Petitioner within seven days from the date of receipt of certified copy of the order.

Karnataka High Court

Rakesh Shetty vs State Of Karnataka on 5 November, 2020

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Questions and answers on law part 16

Q. 1:-Whether Tender contract comes under commercial dispute under Commercial Courts Act?

Ans:  Commercial Courts Act

2. Definitions.—(1) In this Act, unless the context otherwise requires,—(c) “commercial dispute” means a dispute arising out of—

(vi) construction and infrastructure contracts, including tenders;

Q. 2 :- Whether civil revision is tenable if court fails to award costs while deciding suit?

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Orissa HC recognizes Right To Be Forgotten: Allowing Videos/Photos Of Rape Victims To Remain On Social Media Is Violative Of Their Fundamental Right To Privacy

 

The Hon’ble Supreme

Court of India in the case of K.S. Puttaswamy v. Union of

India (supra) held that purpose limitation is integral for

executive projects involving data collection – unless prior

permission is provided, third parties cannot be provided access

to personal data.See Para 166 of K.S. Puttaswamy Judgment

This principle is embodied in S.5 of the yet to-

be-implemented Personal Data Protection Bill, 2019.

Purpose Limitation enhances transparency in data processing

and helps examine the proportionality of the mechanism used

to collect data for a specific purpose. Moreover, it prevents the

emergence of permanent data ‘architectures’ based on

interlinking databases without consent. In the present case

the proposition of purpose limitation is not applicable as the

question of seeking consent does not arise at all. No person

much less a woman would want to create and display gray

shades of her character. In most of the cases, like the present

one, the women are the victims. It is their right to enforce the

right to be forgotten as a right in rem. Capturing the images

and videos with consent of the woman cannot justify the

misuse of such content once the relation between the victim

and accused gets strained as it happened in the present case.

If the right to be forgotten is not recognized in matters like the

present one, any accused will surreptitiously outrage the

modesty of the woman and misuse the same in the cyber

space unhindered. Undoubtedly, such an act will be contrary

to the larger interest of the protection of the woman against

exploitation and blackmailing, as has happened in the present

case. The sloganeering of “betibachao” and women safety

concerns will be trampled.

14. Section 27 of the draft Personal Data Protection Bill, 2018

contains the right to be forgotten. Under Section 27, a data

principal (an individual) has the right to prevent continuing

disclosure of personal data by a data fiduciary. The aforesaid

provision which falls under Chapter VI (Data Principal Rights)

of the Bill, distinctly carves out the "right to be forgotten" in no

uncertain terms. In terms of this provision, every data

principal shall have the right to restrict or prevent continuing

disclosure of personal data (relating to such data principal) by

any data fiduciary if such disclosure meets any one of the

following three conditions, namely if the disclosure of personal

data:

(i) has served the purpose for which it was made or is no

longer necessary; or (ii) was made on the basis of the data

principal's consent and such consent has since been

withdrawn; or (iii) was made contrary to the provisions of the

bill or any other law in force.

In addition to this, Section 10 of the Bill provides that a

data fiduciary shall retain personal data only as long as may

be reasonably necessary to satisfy the purpose for which it is

processed. Further, it imposes an obligation on every data

fiduciary to undertake periodic reviews in order to determine

whether it is necessary to retain the personal data in its

possession. If it is not necessary for personal data to be

retained by a data fiduciary, then such personal data must be

deleted in a manner as may be specified.

15. In the instant case, prima facie, it appears that the

petitioner has not only committed forcible sexual intercourse

with the victim girl, but has also deviously recorded the

intimate sojourn and uploaded the same on a fake Facebook

account. Statement recorded under Section 161 of Cr. P.C. of

the victim girl is also clearly in sync with FIR version.

Considering the heinousness of the crime, the petitioner does

not deserve any consideration for bail at this stage. However,

this Court is of the view that Indian Criminal Justice system is

more of a sentence oriented system with little emphasis on

the disgorgement of victim’s loss and suffering, although the

impact of crime on the victim may vary significantly for

person(s) and case(s)-- for some the impact of crime is short

and intense, for others the impact is long-lasting. Regardless,

many victims find the criminal justice system complex,

confusing and intimidating. Many do not know where to turn

for help. As in the instant case, the rights of the victim to get

those uploaded photos/videos erased from Facebook server

still remain unaddressed for want of appropriate legislation.

However, allowing such objectionable photos and videos to

remain on a social media platform, without the consent of a

woman, is a direct affront on a woman’s modesty and, more

importantly, her right to privacy. In such cases, either the

victim herself or the prosecution may, if so advised, seek

appropriate orders to protect the victim’s fundamental right to

privacy, by seeking appropriate orders to have such offensive

posts erased from the public platform, irrespective of the

ongoing criminal process.

HIGH COURT OF ORISSA: CUTTACK

BLAPL No.4592 OF 2020

(In the matter of an application under Section 439,

Criminal Procedure Code, 1973)

Subhranshu Rout @ Gugul  Vs  State of Odisha 

PRESENT

 SHRI JUSTICE S.K. PANIGRAHI

 Date of judgment: 23.11.2020

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