This article on ‘Phone Search by Police without Warrant: Know Your Rights’ was written by Toya Sen, an intern at Legal Upanishad.
The Police are the very first authority we go to when a crime or wrong has been done against us, this is done by registering an FIR (First Information Report). The Police have the responsibility of maintaining the public peace and order. The Police Act of 1861 is an important law that highlights the duties and powers a police officer can exercise. The Preamble to this Act states, “It is expedient to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime”. Thus, another way to define a ‘Police’ is to say, a Police is an instrument whose aim is to prevent and detect crimes taking place in the country.
We are all aware of the fact that police have the authority to search our private property in case of suspicion of wrong, but do the police have the power to go through our phones? Mobile phones are a fairly new concept in society. Nowadays, all of our private data are stored in our hand devices. This begs the question in our minds whether an officer can search our phones without a warrant or not. This article attempts to answer this question.
Warrant: Meaning and Concept
As per the National Crime Investigation Bureau, a warrant is defined as a written document issued by the court to a police officer to arrest and make an appearance in front of the court of law or search the premises of an offender for a particular thing. A warrant gives official permission to an officer to commit an act that would have been illegal when performed by a layman. For example, entering a person’s house to search would be an offense of trespass and violating the fundamental right of privacy of a person, but police having a search warrant would be able to commit such an act.
Under Criminal Law, Section 2 defines a case that requires a warrant as an offense that can be punishable by a term exceeding 2 years, imprisonment of life, and the death penalty. Under Civil Law, Section 32 states that a court may issue a warrant against the accused if the accused fails to appear in front of the court after being summoned. A warrant does not have territorial boundaries in India, it can be executed at any place without any restrictions.
Types of Warrant:
In India, two types of warrants can be issued in criminal cases:
- Arrest Warrant
- Search Warrant
An arrest warrant is issued by a judicial magistrate to a police officer or any other authority to arrest a person and take them into custody. It is issued when there is a reasonable belief that a person has committed a crime and has a high chance to abscond. This is further divided into two types: Bailable and Non-bailable.
A search warrant is issued by a court to a police officer, authorizing the said officer to search for a person, the house of the accused, their premises, vehicles, or other belongings that are in the possession of the accused. This is done to confiscate any suspicious thing which might have been used while committing an offense and may be used as a piece of evidence. Section 93, 94, 95, and 97 of the Criminal Procedure Code, 1973 mainly deals with the provisions related to search warrant.
- Section 93 of the Act: deals with the circumstances as to when a search warrant can be issued.
- Section 94 of the Act: deals with the procedure required for the search of places that might have stolen property, forged documents, etc.
Kalinga Tubes Ltd and Ors v. D. Suri:
In the above-mentioned case, the court held that the police officer who has been authorized to search, should take precautions and care while searching and refrain from abusing their power and authority.
Power of Police under Indian Laws
The Code of Criminal Procedure, 1973 (CrPc) confers important powers on police officers. The power to investigate, search, and arrest are some of the powers mentioned in the law. The powers relating to the search and seizure of property are outlined in Section 102 of the Code of Criminal Procedure.
As per this section, any police officer can seize the property that is known or has been suspected to have been stolen or found under instances that raise suspicion of a crime being committed. When an officer seizes property, they are required to report the said seizure to their senior officer, if they are a subordinate to that officer then they have to report it to the magistrate with jurisdiction.
In certain situations, the police may perform a search without a warrant. For example, if they suspect that you have hidden illegal items like narcotics in your house or office, they can search without a warrant. However, in a shared house, they can search shared areas without a warrant but cannot search your private belongings if you are not present. Additionally, the police have the authority to search a towed or confiscated car without permission.
It’s important to note that while the police have these powers, they should exercise them within the limits prescribed by law. Violations of individual rights by the police can and should be challenged through legal means.
Misuse of Power by Police
While the powers that have been outlined above are designed to enable police to carry out their duties effectively, there is always the scope of it being misused or abusing these powers. This may be done in:
- Illegal searches and seizures: A police officer may conduct searches or seize property without reasonable grounds or without following proper orders. They may use their authority to target individuals or groups based on personal bias, discrimination, or harassment rather than legitimate law enforcement reasons.
- Fabrication of evidence: In some cases, police officers may plant or manipulate evidence to implicate innocent individuals or strengthen a case against someone they suspect to be guilty. This can include the planting of drugs, weapons, or other incriminating items.
- Coercion and intimidation: Police officers may use their position of authority to intimidate or coerce individuals into providing self-incriminating statements or confessions. This can involve tactics such as threats, physical abuse, psychological manipulation, or prolonged detention without due process.
- Violation of privacy rights: While certain circumstances allow for searches without a warrant, police officers may use this as an opportunity to invade individuals’ privacy beyond what is necessary for legitimate law enforcement purposes. They may conduct searches in areas or for items not covered by the law, infringing on the privacy rights of individuals.
- Failure to follow legal procedures: Police officers may disregard legal procedures and due process rights when exercising their powers. This can include failing to inform individuals of their rights, conducting searches without proper documentation or authorization, or failing to report seizures to the appropriate authorities as required by law.
Phone Search by Police without warrant: A violation of the right to privacy?
The right to privacy is an important fundamental right of every individual in our country. Protected under Article 21 of the Indian Constitution, it is one of the rights which can be exercised in various forms be it in our homes or simply through our mobile phones. Police might breach this right when they need to investigate and extract data that establish a lead against the accused. This can be done in two instances.
- Searching the device: When an officer seizes your phone, they are allowed to access your data on the device. However, there needs to be a procedure to ensure the authenticity of the data. This is done through a cryptographic tool called ‘hashing.’ Hashing generates a unique value based on the data, and any changes to the data will result in a different hash value. By comparing hash values, it can be determined if the data has been tampered with. Ideally, the police should clone the data on the device to another system and generate a hash of that system to preserve the integrity of the original data. Unfortunately, there have been instances where police officers have violated this process.
- Compelling the accused to provide credentials: A police officer may ask the accused for the passcode to unlock their device, but it is ultimately up to the accused whether they want to provide this information or not. Various judicial interpretations have been set in place in case the accused refuses to give his biometrics. To legally compel the accused to share their credentials, a search warrant under Section 93 may be issued.
Smartphones are considered to be an important instrument in this day and age. We all have become extremely dependent on our phones entrusting all our data to them. Similarly, phones have become an important source of evidence to police. The law based on this topic is quite one-sided and more laws and guidelines need to be set in force to answer the question that is, whether the power of seizing our phones constitutes to violation of our fundamental rights or not.
- “Know your Right if you Arrested by NIB”, National Crime Investigation Bureau, available at : https://www.ncib.in/know_your_right.php#:~:text=It%20is%20a%20written%20order,shall%20show%20him%20the%20warrant (last visited on 4 July 2023)
- Ritika Sharma, “Who is police? What are powers & duties of police?”, Law Times Journal, 27 December 2019, available at: https://lawtimesjournal.in/who-is-police-what-are-powers-duties-of-police/ (last visited on 4 July 2023)
- “Summons And Warrant – Meaning, Types, Modes And Differences”, Law Corner, 25 November 2020, available at: https://lawcorner.in/summons-and-warrant-meaning-types-modes-and-differences/ (last visited on 4 July 2023)