CRIMINAL LAW – III PROJECT

“PRIVACY AND CRIMINAL PROCEDURE”

SUBMITTED BY: -

RITU KUMARI

NLS ID 2499

7TH TRIMESTER, 3RD YEAR

DATE OF SUBMISSION: 7.9.2020

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 CONTENTS
INDEX OF AUTHORITIES..............................................................................................................3

INTRODUCTION...........................................................................................................................4

RESEARCH METHODOLOGY........................................................................................................5

I. SEARCH AND SEIZURE UNDER THE CRPC, 1973.................................................................6

SEARCH WITH WARRANT.......................................................................................................6

WARRANTLESS SEARCH.........................................................................................................6

II. U.S. AND THE FOURTH AMENDMENT.......................................................................8

A PROGRESSIVE AND PROTECTIVE U.S. MODEL....................................................................8

THIRD-PARTY DOCTRINE AND ELECTRONIC DOCUMENTS.....................................................8

INDIAN JUDICIAL DEVELOPMENT.........................................................................................10

III. SEARCH AND SEIZURE OF ELECTRONIC DOCUMENTS UNDER INDIAN LAW..................11

THIRD-PARTY DOCTRINE.....................................................................................................11

INFORMATION TECHNOLOGY ACT, 2000 AND GAPS............................................................11

CONCLUSION.............................................................................................................................15

BIBLIOGRAPHY.........................................................................................................................16

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 INDEX OF AUTHORITIES
Statutes:

1) Constitution of India, 1949.

2) Criminal Procedure Code, 1973.
3) Indian Evidence Act, 1872.
4) Information Technology Act, 2000.
5) Information Technology (Directions for Interception, Monitoring and Decryption of
Information) Rules, 2009.
Cases: Puttuswamy: “an era of ubiquitous dataveillance, or the systematic monitoring of citizen's
communications or actions through the use of information technology” Informational privacy is a facet of the
right to privacy. The creation of such a regime requires a careful and sensitive balance between individual
interests and legitimate concerns of the State. Privacy is a limit on both government’s as well as private sector’s
powers. – mentions US v Jones

“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a
bank or phone company for a limited business purpose need not assume that this information will be released to
other persons for other purposes”

Foreseeability in the special context of secret measures of surveillance, such as the interception of
communications, cannot mean that an individual should be able to foresee when the authorities are likely to
intercept his communications so that he can adapt his conduct accordingly. However, especially where a power
vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to
have clear, detailed rules on interception of telephone conversations, especially as the technology available for
use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an
adequate indication as to the circumstances in which and the conditions on which public authorities are
empowered to resort to any such measures.

xx xx xx Since the implementation in practice of measures of secret surveillance of communications is not open
to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the
discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently,
the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of
its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference.”
140) The Court observed that the following minimum safeguards that should be set out in law in order to avoid
abuses of power for surveillance are: the nature of offences which may give rise to an interception order; a
definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone
tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be
taken when communicating the data to other parties; and the circumstances in which recordings may or must be
erased or destroyed.

1) A Shankar v State Rep. (2010) Criminal Original Petition No. 6628 (Mad).

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 2) District Registrar & Collector v Canara Bank (2005) 1 SCC 496 (SC).  very
important, first case to say that lack if framing of legislation leaves it open to an
abuse of privacy rights, then legislation is constitutionally problematic EVEN
THO its possibility is remote.

- In that 73 of the Stamp Act, that allowed - inter alia - the Collector to access records that
would normally be subject to the confidentiality relationship banker and customer, was
challenged. The Court made two very important observations: responding to the contention
that once one had voluntarily one's bank records to a third party, there was no privacy interest
them.  requirement of a reasonable suspicion before surveillance  anything without a
clear indication of a targeted search is unreasonable.

- "... the right to privacy deals with 'persons and not places', the documents or copies of
documents of the customer which are in [sic] Bank, must continue to remain confidential vis-
à-vis the person, even if they are no longer at the customer's house and have been voluntarily
sent to a Bank.... once that is so, then unless there is some probable or reasonable cause or
reasonable basis or material before the Collector for reaching an opinion that the documents
in the possession of the Bank tend to secure any duty or to prove or to lead to the discovery of
any fraud or omission in relation to any duty, the search or taking notes extracts therefore,
cannot be valid. The above safeguards must necessarily be read into the provision relating to
search and inspection and seizure so as to save it from any unconstitutional.

Comparison with Section 165 -

- "Secondly, the impugned provision in sec. 73 enabling the Collector to authorize 'any person'
whatsoever to inspect, to take notes or extracts from the papers in the public office suffers
from the vice of excessive delegation as there are no guidelines in the Act... under the garb of
the power conferred by Section 73 the person authorized may go on [sic] rampage searching
house after house. The possibility of any wild exercise of such power may be remote but then
on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled
out.
3) Dnyaneshwar v State of Maharashtra (2019) SCC 4949 (Bom).
4) Gobind v State of M.P. (1975) 2 SCC 148 (SC).  first to probably stress on the
importance of the right to privacy as a whole in a comprehensive manner
- Involved domiciliary visits to the house of a history-sheeter – Court found out that the
Regulations did have statutory backing to cause such an excessive level of search and seizure
operation.

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- Section 46(2)(c) of the Police Act, which allowed State Government to make notifications
giving effect to the provisions of the Act, one of which was the prevention of commission of
offences. The surveillance provisions in the impugned regulations, according to the Court,
were indeed for the purpose of preventing offences, since they were specifically aimed at
repeat offenders. To that extent, then, the Court found that there existed a valid 'law' for the
purposes of Articles 19 and 21.

- Regulation 855: - proper surveillance, not general to be restricted and targeted to those who
whether or not previously convicted whose conduct shows a determination to lead a life of
crime  list of people who are believed to be really dangerous criminals with substance 
District Superintendent is authorized to add names to this list based on information at his
disposal and history sheets

- Regulation 855, in our view, empowers surveillance only of persons against whom
reasonable materials exist to induce the opinion that they show a determination, to lead a life
of crime-crime in this context being confined to such as involve public peace or security only
and if they are dangerous security risks. Mere convictions in criminal cases where nothing
gravely imperiling safety of society cannot be regarded as warranting surveillance under
this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to
the clearest cases of danger to community security and not routine follow-up at the end of a
conviction or release from prison or at the whim of a police officer. 
5) Harbans Singh v State of Punjab (1978) CrLJ 1591 (P&H).
6) K.S. Puttuswamy v Union of India (2017) 10 SCC 1 (SC)
7) Katz v U.S. (1967) 389 U.S. 347  a person has a reasonable expectation of privacy
as opposed to simply protecting listed items of property  first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the expectation
be one that society is prepared to recognize as "reasonable." Thus a man's home is, for
most purposes, a place where he expects privacy, but objects, activities, or statements that
he exposes to the "plain view" of outsiders are not "protected" because no intention to
keep them to himself has been exhibited.
- Katz was involved in sports betting and had used a public telephone booth a number of times
for this business
- FBI had begun investigating his gambling activities, and was recording his conversations via
a covert listening device attached to the outside of the phone booth. After recording a number
of his phone calls, FBI agents arrested Katz and charged him with eight counts of knowingly
transmitting wagering information over telephone between U.S. states, which is a federal

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 crime  Katz's lawyer made a motion to have the court suppress the FBI's recordings as
evidence, arguing that because the FBI agents did not have a search warrant allowing them to
place their listening device, the recordings had been made in violation of the Fourth
Amendment and should be inadmissible per the exclusionary rule.
- CONVICTED by the trial court and court of Appeal – no physical penetration into the
telephone booth – BUT SUPREME COURT overturned this judgement.
- The Government has maintained with equal vigor that public telephone both wasn’t a
constitutionally protected area. But this effort to decide whether or not a given "area," viewed
in the abstract, is "constitutionally protected" deflects attention from the problem presented by
this case. For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth Amendment
protection. But what he seeks to preserve as private, even in an area accessible to the public,
may be constitutionally protected.
- The Government's activities in electronically listening to and recording the petitioner's words
violated the privacy on which he justifiably relied while using the telephone booth.
8) Kharak Singh v State of U.P. (1963) AIR 1295 (SC).

- State of U.P .6, the UP Police Regulations lance power upon certain " history sheeters " - that
is, necessarily convicted) of a crime. These surveillance powers eting of the suspect's house,
domiciliary visits at night, and associations, and reporting and verifying his movements.
lenged on Article 19(l)(d) (freedom of movement) and Article 21 personal liberty)

- It is also important to note one other thing: as a defence, it was argued by the State that the
police action was reasonable and in the maintaining public order precisely because it was a
targeted surveillance. The court ruled our violation of freedom of movement cuz the
petitioner didn’t know he was being tracked or picketed or followed – it was secret so it didn’t
bother him. But recognised the violation of personal liberty when there was intrusion into his
dwelling and knocking on door late at night  recognised as part of dignity.

- Court here said that we don’t follow anything like the fourth amendment but then used a U.S.
court precedence to say that an unauthorized intrusion into a person’s home and the
disturbance caused to him nearby was a violation of a common law right to him OF
ORDERED LIBERTY
9) Khet Singh v UOI (2002) AIR 1450 (SC).

- Search and seizure of sample with the respondent discovered to be opium

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- The appellant contended before the trial court that there was violation of Section 50 of the NDPS
Act as the search and seizure was not made in the presence of a Gazetted Officer or a Magistrate
and that the appellant was not told in advance that he had a right to demand that the search to be
effected shall be in the presence of a Magistrate or a Gazetted Officer. This plea was rejected on
the ground that search and checking was being conducted of the vehicles and it was during the
course of this general search that the appellant was found travelling with the opium and
hence Section 50 of the NDPS Act is not applicable and that the same would apply in the case of a
search on the person of the appellant. The same plea was raised before the High Court and was
rightly rejected.
- It is true that the search and seizure of contraband article is a serious aspect in the matter of
investigation related to offences under the NDPS Act.
- Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure, 1973
shall apply in respect of warrants, arrests, searches and seizure in so far as they are not
inconsistent with the provisions of the NDPS Act. Section 165 of the Code confers powers on the
police to search any place without search warrant. 'Place' has been defined in Section 2(p) of the
Code as one which includes house, building, tent, vehicle and vessel. Section 165 of the Code
empowers a police officer making an investigation to conduct search without a warrant if he has
reasonable grounds for believing that anything necessary for the purpose of an investigation into
any offence may be found and that he is of the opinion that undue delay may frustrate the object of
the search. 
- NCB instructions should be followed – its true seizure mahazar should be prepared at the spot in
acc w law, but many times its not possible due to the fast processing searches operations – so one
can prepare it later also by giving reasons – in this case it was made in the Customs office in
presence of the accused – no info of meddling with the contraband articles
- Law on the point is very clear that even if there is any sort of procedural illegality in conducting
the search and seizure, the evidence collected thereby will not become inadmissible and the Court
would consider all the circumstances and find out whether any serious prejudice had been caused
to the accused. If the search and seizure was in complete defiance of the law and procedure and
there was any possibility of the evidence collected likely to have been tampered with or
interpolated during the course of such search or seizure, then, it could be said that the evidence is
not liable to be admissible in evidence.
10) M.P. Chandra v Satish Chandra (1954) AIR 300 (SC).
- "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of
social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to
subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it, into a totally different fundamental right by some process of

strained construction

11) Mapp v Ohio (1961) 367 U.S. 643  court devised the exclusionary rule – all
evidence collected in violation of 4th amendment is inadmissible in court.

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12) Mohd. Hussain v State (Government of NCT) of Delhi (2012) 2 SCC 584.

13) Nardone v U.S. (1939) 308 U.S. 338.

section 605 of the Communications Act of 1934 reads as follows: [A]nd no person not being
authorized by the sender shall intercept any communication
- In a prosecution in a federal court, evidence procured by tapping wires in violation of the
Communications Act of 1934 is inadmissible. This applies not only to the intercepted
conversations themselves, but also, by implication, to evidence procured through the use of
knowledge gained from such conversations.
- issue was whether section 605 not only forbade the introduction of evidence obtained directly by
wiretapping, but also prohibited the admission of evidence procured through the use of knowledge
derived from the wiretapping. The Court upheld the latter interpretation.
- We are here dealing with specific prohibition of particular methods in obtaining evidence. The result of
the holding below is to reduce the scope of § 605 to exclusion of the exact words heard through
forbidden interceptions, allowing these interceptions every derivative use that they may serve.
- “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the court, but that it shall not be used at all – public
policy and ethical concern
14) Smith v Maryland (1979) 442 U.S. 735 -  the Supreme Court of the United States held that
the installation and use of a pen register was not a "search" within the 4th amendment so no warrant
required - The pen register was installed on telephone company property at the telephone
company's central offices - telephone numbers would be available to and recorded by the phone
company anyway.

- Since the defendant had disclosed the dialled numbers to the telephone company so that they could
connect his call, he could not reasonably expect that the numbers he dialled were private. The court did
not distinguish between disclosing the numbers to a human operator or just the automatic equipment
used by the telephone company.
- The Smith decision left pen registers completely outside constitutional protection. If there were to be
any legal basis for privacy protection of the information contained in a pen register, it would have to be
enacted by Congress as statutory privacy law.
- “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial”

15) State of Himachal Pradesh v Sukh Ram (2003) CrLJ 219 (HP).
- it was held by the Hon'ble Apex Court that assuming that the search was illegal when its in
contravention to s. 165, the seizure of the articles was not vitiated. It was further held that it may
be that because of the illegality of search, the Court may be inclined to examine carefully the
evidence regarding the seizure. But beyond this no further consequence ensues. It was also held
that failure to comply with the provisions regulating searches may cast doubt upon the bona fides

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 of the officers conducting the search, but when once the evidence has been believed, it is
obviously no defence to say that the evidence was obtained in an irregular manner. There is
nothing in law which makes such evidence inadmissible  non compliance of 165 isnt fatal
16) State of Punjab v Amritsar Beverages Ltd. (2006) 7 SCC 607 (SC).

17) State v Rehman (1960) AIR 210 (SC).

- The Deputy Superintendent of the Central Excise received information that one Sulled and his
son, Rehman had cultivated tobacco but had not paid the excise duty payable thereon. Him +
inspector, a sepoy and chowkidar etc went to his house for search of tobacco – when they told
him about it, he obstructed to it, gave the deputy officer injuries also in the resistance.
- Munsif magistrate said the search that was conducted was not in compliance with s. 165 – no
recording of reasons, the respondent’s physical resistance hence was also not a crime – so the
full case is open for a fresh inquiry altogether – hc followed although it clarified that the
jurisdiction to conduct search is derived from the statute not recording of reasons but it
remains an important step to render searches illegal
18) Timothy Ivory Carpenter v U.S (2018) 585 U.S. (SC).
19) U.S. v Miller (1976) 435 U.S. 425 (SC) - that bank records are not subject to protection
under the Fourth Amendment – Along with Smith v Maryland established the third party
doctrine.
- The Alcohol, Tobacco and Firearms Bureau (ATF) of the United States Treasury Department,
investigating the case, requested that local banks, holding Miller's accounts, provide all paperwork
of his bank transactions to date via a grand jury subpoena duces tecum, rather than a warrant; the
banks complied without notifying Miller. 
- Financial records basically gave corroborating evidence to the charges of conspiracy against him
and 4 others – his arguments of 4th amendment were rejected
- Powell for majority determined that the bank records were not the private papers of Miller, but
instead owned by the banks as part of its necessary business operations. Powell stated that there is
no expectation of privacy that a customer of a bank has when they do business through the bank,
as checks, deposit slips and other paperwork are elements of commercial transactions.
20) Weeks v U.S. (1914) 232 U.S. 383 - warrantless seizure of items from a private
residence constitutes a violation of the Fourth Amendment.[1] It also prevented local officers
from securing evidence by means prohibited under the federal exclusionary rule and giving it
to their federal colleagues.
- Weeks was convicted of using the mails for the purpose of transporting lottery tickets, in violation
of the Criminal Code. At the time of his arrest, police officers went to Weeks' house to search it. A
neighbor told them where to find the key. Officers entered the house of the defendant without a
search warrant and took possession of papers and articles, which were turned over to the US

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 marshals. The officers returned later on the same day with the marshal, still without a warrant, and
seized letters and envelopes that they found in the drawer of a chiffonier.
- Supreme Court overruled the conviction as search without warrant was illegal

PUCL v UOI – validity of Section 5(2) of Telegraph Act

"On the occurrence of any public emergency, or in the interest of public safety, the Central
Government or a State Government or any Officer specially authorised in this behalf by the Central
Govt, or a State Government may, if satisfied that it is neces- sary or expedient so to do in the interests
of the sovereignty integrity of India, the security of the State, friendly relations with foreign States or
public order or for preventing incitement to the commission of and offence, for reasons to be recorded
writing, by order, direct that any message clear of messages to or from any person or classes of
persons, relating to any par- ticular subject, brought for transmission by or transmitted received by any
telegraph, shall not be transmitted, or shall be intercepted or detailed, or shall be disclosed to the
Government making the order or an officer thereof mentioned

- Doesn’t authorize bulk surveillance, targeted surveillance, purpose of it when it was devised was
individual interception of individual telegraphic msgs for specific and short term purposes – when
talking of public safety, it cant be secretive and needs to be evidence to the reasonable person – must
refer to a specific situation of identifiable danger and nothing in abstract – cant just collect thinking that
it might be useful sometime in future

INTRODUCTION
The recognition of fundamental right to privacy in the 2017 landmark judgement of Justice
K.S. Puttuswamy v. Union of India transformed and challenged functionaries in civil and
criminal law. The relationship between Right to privacy and the Indian Criminal Procedure
has been in debate for long, and addressed in judgements as well as legislations. However,
since reform is needed, the novel fundamental right and a pending Personal Data Protection
Bill, 2019 has generated the need to re-examine different criminal procedural statutes that
confer power on government authorities to conduct search, seizure, inspection and collection
of documents from the perspective of individual privacy. These are essential parts of
investigation and criminal justice system and state power needs to be restricted for
maintenance of societal interest and security.

In this context, this paper seeks to examine the competing interests of; individuals, mainly
suspects and accused and the State during investigations. The paper has been divided into
three chapters. The first chapter very briefly revises some relevant provisions of the Criminal
Procedure Code, 1973 (CrPC) on search, seizure and its relevant requirements, to
comprehend the basic functional principles adopted by the legislature regarding the manner

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of police conduct. The second chapter briefly analyses privacy and investigation
jurisprudence and laws in the United States (U.S.). The CrPC provisions to inspect
analogously extends to electronic records as well within the meaning of ‘document’ under
Indian Evidence Act, 1872 (IEA) and in today’s technological world, it would not be wrong
to say that a large part of our lives is absorbed in the form of digital data. So, the third chapter
would lead the second chapter into the Information Technology Act, 2000 of India which
gives out procedural details and safeguards regulating digital evidence. This shall be done by
providing a comparative analysis between the two countries’ systems. Additionally, this
paper would also suggest some gaps in the Indian procedural laws that should be filled
through legislative reforms.

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 RESEARCH METHODOLOGY
AIM AND OBJECTIVE:

This paper aims to analyse Indian legislations; Criminal Procedural law and laws on Digital
Evidence pertaining to search and seizure vis a vis the fundamental right to privacy. The
objective is to examine the provisional framework specifically in comparison to the U.S.
model which is more evolved. A reconceptualization of the State’s duty and practice to
protect right to privacy in criminal procedure is important post the Puttuswamy judgement.

SCOPE AND LIMITATION:

The scope of this paper extends to a study of CrPC, 1973, Information Technology Act, 2000
(ITA), Fourth Amendment (U.S.), 1979 with respect to privacy. However, its limited to
analysing Indian and U.S. criminal jurisprudence and leading judgements to discern the
practical reality of criminal procedural performance, specifically under ITA and exploring the
loopholes in the legislation. The paper does not reiterate judgement ratios and provisions in
verbatim, instead directly applies them for analysis.

RESEARCH QUESTIONS:

1) What is the legislative intent behind search and seizure provisions under Criminal
Procedure Code with respect to privacy?
2) How has the U.S. model comprehended privacy during searches under Fourth
Amendment and through Court judgements? What are the positive and negatives of
their interpretation in the field of inspection and collection of digital evidence?
3) What does a comparative analysis between India’s and U.S.’s model convey about
India’s progress in criminal procedural law?
4) What are the reforms required under Indian procedure of search and seizure,
specifically for digital evidence?

SOURCES OF DATA:

The author has referred to both primary and secondary sources. Primary sources such as the
Constitution of India, Criminal Procedure Code, 1973 and relevant case laws. Secondary
sources such as commentaries and articles.

CITATION STYLE:

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The OSCOLA, 4th edition (2012) citation style has been used uniformly throughout the paper.

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 I. SEARCH AND SEIZURE UNDER THE CRPC, 1973
Search and seizure procedures are explicitly allowed and commonly practiced by authorities
under the various provisions of the Chapter VII, CrPC that lay general conditions to be
complied with. It can be conducted with and without warrants under Section 93 and 165 1
respectively implying the protection of State interests and exemptions under emergencies.
However, Section 93 is applicable in pursuance to compensate for Section 91 or 92(1) 2 which
necessitates production of documents important for inquiry, trial or other proceedings.
Whereas, Section 165 permits warrantless search for investigation under necessary criterion.

SEARCH WITH WARRANT

Section 93 regulates; specific search for specific documents under first two sub-clauses and
general search under third: “(1) when there is a reason to believe that a person to whom
summons order is issued for the production of a thing or document will not be complied with;
(2) where the court does not know if the document or thing is in the possession of any person;
(3) when a general search or inspection is necessary for investigation”3. Here “a person”
does not include accused to be summoned as such a proviso would then violate accused’s
fundamental right under Section 20(3) of the Constitution; right against self-incrimination, by
compulsion as opposed to passive submission.

The protection of privacy becomes discretionary here as this is the magistrate’s function to be
exercised on judicial inquiry only. The magistrate is required to record reasons for such
issuance in writing with an unbiased mind, failure of which can quash the warrant. 4 As per
this the standard to be met by the police for the issuance is ‘reason to believe’; reason(s)
convincing enough that warrant is necessary in the given factual circumstances. A mere cause
to suspect a person is not a reasonable justification.

WARRANTLESS SEARCH
Section 165 allows warrantless search on six strict contingencies5: If

 the search is necessary for investigation;

 the police officer is authorized to investigate that particular offence;

1
Code of Criminal Procedure 1973, s 93, 165.
2
ibid, s 91,92(1).
3
CrPC 1973, s 93.
4
Harbans Singh v State of Punjab (1978) CrLJ 1591 (P&H).
5
State v Rehman (1960) AIR 210 (SC).

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  there exist reasonable grounds for him to believe in existence of anything in that
specific place;  Section 26 defines reason to believe as sufficient cause and not
otherwise  Reason to believe’ is not synonymous w subjective satisfaction of officer,
there must be good faith grounds  these become relevant for privacy breach issues
 this is the last resort, and any other search method would cause undue delay; but lack
of time is not always a reasonable ground to go ahead without a warrant
 the grounds for belief are recorded in writing earlier;
 and the record specifies the item as far as possible.6

Puttuswamy;7 overruled M.P. Sharma v Satish Chandra8 that dismissed right to privacy’s
constitutionality in criminal law and upheld J. Subbarao’s dissent in Kharak Singh v State of
U.P.9 But with these conditional safeguarding, where the gap exists in relation to a person’s
private space being invaded for investigation is the protected admissibility of seized items as
evidence irrespective of privacy violation. This applies under both Section 93 and 165. A
privacy violation, despite being against the Constitution, and a warrant without reasonable
grounds, does not vitiate the trial. Evidence admissibility under the IEA is based only on
relevance, not source, therefore, absence of legality, either in search or warrant, renders the
procedure only irregular, admits evidence with relevance and does not raise privacy as an
issue in the court.10 This is same for a stranger or a suspect. Hence, not all procedural
safeguards are practically mandatory and non-abrogative.11 CrPC does not provide a legal
remedy against its non-compliance except for ‘gross illegality’12 such as absence of any
written records or prior communication when necessary, irrespective of performance
discharged within official duty.13 State becomes liable for ‘compensation’ here. Whereas,
procedural compliance under Section 197 is mandatory for public servants’ ‘prosecution’ if
the Court feels the duty discharge was reasonably connected to search act despite invading
privacy.14 So, illegal searches violate privacy but privacy does not decide illegality. This
legitimizes urgent avoidance of lengthy processes. Importance of privacy is well

6
CrPC 1973, s 165.
7
(2017) 10 SCC 1 (SC).
8
(1954) AIR 300 (SC).
9
(1963) AIR 1295 (SC).
10
Indian Evidence Act 1872, s 3, 17; Law Commission, Evidence Obtained Illegally or Improperly (Report No.
94, 1983).
11
Khet Singh v UOI (2002) AIR 1450 (SC).
12
State of Himachal Pradesh v Sukh Ram (2003) CrLJ 219 (HP).
13
Dnyaneshwar v State of Maharashtra (2019) SCC 4949 (Bom).
14
CrPC 1973, s 197.

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comprehended by courts however lack of legislation can hinder proper carriage of justice in
individual cases.

Section 165(3) – here the duty can be delegated by the investigation officer only after specifying the place or
thing that needs to be searched  scope of discretion kinda becomes limited – delegation only after recording
the reasons for it  but then there is no safeguard against it cuz as the ranks of officer gets lower and lower
tehre is greater chance of lack of awareness or concern for maintaining privacy of individuals or the proper
privacy protocols.

(5) Copies of any record made under sub-section (1) or sub-section (3)   (Includes search memo, mahazar,
indicating what are the things that have been seized) shall forthwith be sent to the nearest Magistrate
empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on
application, be furnished, free of cost, with a copy of the same by the Magistrate.

Whether there was such reason to believe and whether the officer empowered acted in a bona fide manner,
depends upon the facts and circumstances of the case and will have a breaking in appreciation of the evidence.

II. U.S. AND THE FOURTH AMENDMENT

A PROGRESSIVE AND PROTECTIVE U.S. MODEL
Indian and U.S. systems have both similarities and differences, but U.S. leads in providing
greater legislative protection to ‘reasonable expectation of privacy’ and checking on
unencumbered powers of searches. Fourth Amendment of the U.S. Constitution, 1979 states
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”15 U.S. mechanisms principally
blanket the Fourth Amendment to prevent illegal searches for evidence collection and are
robust in doing so through cooperative harmonious approaches between judiciary and
legislature. It has both pros and cons, and a comparison with India will show us how much
are we lacking or succeeding in our privacy framework.
With many similarities to with India, U.S. has subjective judicial discretion to decide whats
an unreasonable search. However, illegal procedures do render seized items inadmissible as
evidence in U.S. courts despite absence of provisions for it. U.S Supreme Court has
recognised an ‘exclusionary rule’ to protect privacy and ensure prior communication wherein
illegally obtained items are inadmissible as evidence.16 This includes both primary and
secondary or additional evidence; ‘the fruit of a poisonous true’17. Hence, the procedural
15
U.S. Constitution Amendment IV.
16
Weeks v U.S. (1914) 232 U.S. 383; Mapp v Ohio (1961) 367 U.S. 643.
17
Nardone v U.S. (1939) 308 U.S. 338.

16
illegality is based on a corrupt source of an authorized officer discharging duty. These two
significant principles have highly contributed in upholding U.S. constitution.

THIRD-PARTY DOCTRINE AND ELECTRONIC DOCUMENTS

U.S. criminal jurisprudential and legal development did begin at a very early stage, much
before India’s, but it has also experienced its own share of problematic cases and appeals.
Criminal procedures convey a lot about citizen-state relations and in the digital world its
constantly being redefined and renegotiated; how with courts as final adjudicators, civil
liberties and rights should be commuted against government police powers. We shall study
this in context to a recent judgement of Timothy Ivory Carpenter v U.S.18

Third-party doctrine refers to the rule against any claims of privacy when a user voluntarily
shares personal information virtually with a service provider, he assumes risk of unauthorized
disclosure to the states. It considers a provider’s duty to exercise free control over sharing
their customer’s data whenever required for police cooperation. In Timothy, police
warrantlessly accessed and tracked suspect’s location and movements through cell-site
location information (CSLI) technique on mobiles. The Court of Appeal upheld the state
conduct, and said there could be no privacy expectation as location information was
voluntarily shared by suspect when he bought the phone and SIM. Supreme Court overruled
this by stating that privacy rights are attached to persons, not properties,19 hence, not bound
by physical space. Suspect’s presence at the robbery site was unrelated as he was being
tracked even before being suspected for robbery. So, he could reasonably, legitimately expect
no violation of his private space, especially in warrantless operations without any ‘probable
cause.’20 Under Stored Communications Act, 1986 standard of obtaining ‘court order’ was
lower than ‘warrants’. U.S. allows seizing of electronic documents with a subpoena, rather
than warrants which increases consequences of privacy violations.21 However, the judgement
was given in constitutional public interest. Additionally, there were no special or urgent
circumstances offending State interests here.

The unwarranted convenient police use of CSLI implied magnifying threat not just against
suspects but ‘all’ citizens who use mobiles. It demonstrates how state could literally be the
same user of your own possession, use your entire digital history to recreate personal,
locational, movement, relational details and even falsely trick you. Police becomes potential
18
(2018) 585 U.S. (SC).
19
ibid; Katz v U.S. (1967) 389 U.S. 347.
20
U.S. Constitution Amendment IV.
21
Smith v Maryland (1979) 442 U.S. 735.

17
of grossly violating non-suspects’ lives in oblivion without recognising the perils of self-
endorsed coercion. When in fact, privacy expectations from state increases with electronic
documents not being under practical human control. Despite clarifying the non-mechanical
application of third-party doctrine, the doctrine was not overruled. The outcomes of this can
vary from case to case depending on their nature; contractual, terrorism, sedition etc. For
example, bank records and transactions are huge evidential source in aggravating criminal
cases, the degree of confidentiality and its acceptance can be different. Its also bank’s
business records22, but, at the same time how does one calculate the user voluntariness level
by demarcating services ‘deliberately entered into’ and ‘provided by default’.

Hence, even when Fourth Amendment remains inevitably important, U.S. needs to articulate
and detail its criminal procedural approaches towards different kinds of digital sources to
prevent arbitrariness.

INDIAN JUDICIAL HISTORY

M.P. Sharma was the first case to address and reject privacy right with respect to searches
and seizures for ensuring security and duly giving overriding powers to State.23 Its argument
of not amending or borrowing from America’s Fourth Amendment and keeping the
fundamental rights given by constitutional makers constant was declared problematic in
subsequent judgements.24 In Singh secret picketing of suspect’s houses, lifestyles movements
were upheld claiming that freedom of movement was not violated because the surveillance
was ‘secret’. Court endorsed ‘targeted surveillance’ which should be reasonable under
fundamental rights if its directed against specific individuals suspected on proper grounds of
(supposed) culpability, and imposing restrictions on them is the overwhelming need of the
hour to maintain public order. Even eleven years later, while American law progressed with
detecting privacy rights across several legislative forums apart from their Constitution,
Gobind v State of M.P.25 upheld telephone tapping as constitutional, being convinced mainly
because of discovery of guilty suspects. However, no law has fashioned this targeted
surveillance, leaving it entirely to officials to decide who can be targeted and how, who is
threatening and who is not. It allows open, independent interpretations of Article 19 and
reasonable restrictions under it in abstract without understanding Article 21’s personal liberty
essence. Judgements have definitely evolved but our laws have stuck to the Sharma, Gobind

22
U.S. v Miller (1976) 435 U.S. 425 (SC).
23
Sharma (n 8).
24
Singh (n 9).
25
(1975) 2 SCC 148 (SC).

18
and Singh’s archaic principles. ‘Compelling public interests’ is not a specified restriction
ground under Article 19, requiring a much stricter standard of judicial review of Article 21
violations. Whats needed is ‘narrow tailoring’ of laws to demonstrate particular desired goals
with ‘narrowest’ privacy violations and justified surveillances against anybody and
everybody.

III. SEARCH AND SEIZURE OF ELECTRONIC DOCUMENTS UNDER INDIAN LAW

THIRD-PARTY DOCTRINE
Unlike U.S., India rejected this doctrine in District Registrar & Collector v Canara Bank 26 in
view of the same principle; privacy rights attached to persons.27 It dealt with customers and
service providers like banks as places, so that despite locational shift of electronic documents,
privacy rights remain enshrined in persons. However, unlike Carpenter, Court did not discuss
the element of ‘voluntary disclosure and assumption of risk’ that might become relevant in
specific cases. Puttuswamy very correctly recognised right to privacy as part of dignity,
emphasising on ‘free informed consent’ for each disclosure and took a huge step forward. But
acknowledging voluntariness somewhere gets intertwined with legislative assurance of
choice being made with reasonable mind and without coercion.

We shall study how the statutory absence of criminal procedures, comprehensive of

individual voluntariness creates gaps in privacy protection under the Information Technology
Act.

INFORMATION TECHNOLOGY ACT, 2000 AND GAPS

The Information Technology Act, 2000 legislates interception and monitoring of digital
communication in India. It does not cover search and seizure procedure of electronic
evidence exhaustively but regulates its collection. However, from a multi-dimensional
perspective, it is not comprehensively sufficient to protect privacy. There is no Indian
provision like Fourth Amendment apart from Article 20(3), and until now its concept has not
been wholly read into our constitution. Being a special legislation, IT Act’s provisions does
prevail over CrPC on conflicts, however, the conducts need to be harmonious between both
legislations. This means that not many procedural safeguards of CrPC apply under IT Act.
26
(2005) 1 SCC 496 (SC).
27
Gobind (n 25).

19
Section 80 warrantlessly authorises police official of a Deputy Superintendent rank to enter
public spaces like hotels and shops for search and arrest of any suspected offender for
offences under ITA only.28 CrPC does not supplement this provision, and hence, safeguards
like those provided under Section 165; recording of reasons in writing, reasonable grounds of
belief or communication to nearest Magistrate and Section 100; warranted search of closed
places etc. do not apply. ITA Amendment, 2009 added procedural safeguards to very limited
provisions with broad standards.

Section 69 vests Central and State government with complete intercepting powers of any
information transacted through any computer source with mandatory recording of reasons in
writing.29 Exercise of it is subject to:

 “sovereignty of India;
 integrity of India;
 security of state;
 friendly relations with foreign states;
 public order for prevention of incitement of offence commission.”30

Section 69A permits Centre to block public access to digital information subject to same
conditions. These were added through 2009 Amendment for prevention of oppressive
procedures. But they are broad standards for courts to decide when does State’s act becomes
unreasonable. Procedural fairness and reasonability can be upheld with adequate checks and
balance only especially when criminal surveillance often turns political. For example,
individual freedom of speech and expression needs to be tested against compelling state
interests like national security wherein cautious, non-restrictive approach becomes
imperative. At the same time, something linear like constructive governmental dissent cannot
be understood as seditious. Otherwise dilution of entire protection framework for citizens
may invite mass surveillance, which would effectively amount to a perpetual state of search
and seizure of any person, and not just suspect or accused. In light of the 2018 Ministry of
Home Affair’s order authorizing several Government agencies with surveillance powers, this
is concern-worthy.31

28
Information Technology Act 2000, s 80.
29
ITA (Amendment) 2009, s 69.
30
ibid.
31
Jayant Sriram, ‘What Are the Surveillance Laws in India?’ (The Hindu, 18 December 2019)
https://www.thehindu.com/news/national/what-are-the-surveillance-laws-in-india/article29993602.ece accessed
on 20 August 2020.

20
Like the U.S., Indian law also lacks non-identified procedural distinction in search and
seizure of physical and electronic evidence. Both these categories of documents require
different collection methods for catering to different privacy standards. A procedure that may
infringe privacy by tracking vehicles through GPS for physical documents may not be
violative on digital ones. For example, hard disks acting as physical plus electronic
documents need to be subjected to a consonant but mixed set of safeguards.32 Simultaneously
investigating officials need to be trained more to expertise in electronic documents and its
transactions to devise creative, less-invading investigative methods.

In line with PUCL v UOI, only Home Secretaries issue interception orders and judicial
authorization is subsided for surveillance. 33 Despite the acknowledged impracticality of it,
India is the only democracy conducting free surveillance through Executive without judicial
supervision. The procedural safeguards are decently present for issuing these orders. Like,
restrictions on the Designated Officer, complaints entertained from prescribed authorities
only, involvement of data originator, Review Committee; acting as final arbiter on emergency
orders issued without due process, checking prejudices favouring government, maintaining
confidentiality, upholding a natural justice framework, securing fundamental individual rights
etc.34 But simultaneously, Section 69(4) and IT (Intermediate Guidelines) Rules, 2011 also
penalize with imprisonment and fine anyone including corporates, who do not assist
governmental agencies in tracking procedures as per Sub-clause (3) to subtly coerce
intermediaries into surrendering.35 Hence, privacy and confidentiality protection largely
depends on how impartially Review Committees function and its composition.

Government’s cooperative expectancy from data holding organisations is imbalanced. For

example, there is lack of statutory provision to adequately protect data received from
inconsiderate privacy invasions for State interests of the owner who involuntarily surrendered
information and on seizure deserves its preservation. There is no specific data protection
authority but Section 72 penalizes authorized officials who breach information confidentiality
within their duties without concerned person’s consent.36 Unlike under CrPC, sanctions are
not required for prosecution as per Section 197 here. 37 Its officers’ default duty as mens rea is
not required in these breaches, and so presence of trust or dishonesty towards innocents is
32
State of Punjab v Amritsar Beverages Ltd. (2006) 7 SCC 607 (SC).
33
(1997) 1 SCC 301 (SC).
34
IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009.
35
ITA 2000, s 69(3), (4); IT (Reasonable Security Practices and Procedural and Sensitive Personal Data or
Information) Rules 2011.
36
ibid, s 72.
37
A. Shankar v State Rep. (2010) Criminal Original Petition No. 6628 (Mad).

21
unrelated. Disclosure of seized electronic evidences require the due authority’s consent
handling that particular witness, accused, suspect or the case whose information it is.
However, this is extremely problematic when with authority’s consent, disclosure of sensitive
information about an accused, not yet proven to be guilty, is subjected to social persecution
and cruel media trials, something being currently witnessed in the Sushant Singh Rajput’s
Case. The accused online chats, bank records, bills, loans etc. everything has become public
before Court’s judgement. There is no penalization for such privacy breach of accused.
Concept of fair trials have been familiarised with triangulation of accused, victim and
society’s interest by the Supreme Court38 but ITA has not evolved to the extent of accounting
for these consequences and actually holding on to the ‘targeted surveillance’ as discussed
above.

38
Mohd. Hussain v State (Government of NCT) of Delhi (2012) 2 SCC 584.

22
 CONCLUSION
Criminal activities potentially seek out for as many hideouts as possible and digital world is
one of the most important ones given the ease of generation and destruction of data. The
legislative intent of criminal procedural law strictly confines to state purposes and rightly so
because crimes are against state and strict rules are required to intrude and access as much
electronic evidence as possible. Investigation’s ultimate object is preventing crimes and
preserving future security and private spheres in physical or digital world cannot be loosely
abandoned. There are adequate preliminary safeguards present but a slightly more articulation
is required to meaningfully uphold Puttuswamy judgement. U.S framework is more advanced
but has its own imperfections and backwardness too. On comparison its discerned that despite
ambiguities for arbitrariness in U.S. criminal procedures, unscrutinised Indian statutory
provisions allow far more State overreach by intruding privacy. India needs to develop
criminal procedural tests for levelling privacy expectations on both objective and subjective
levels-based on information’s nature and constitutional values. Separate adjudication of each
individual case will become more effective in overriding third-party doctrine and a rigid
control-oriented approach with proper reform and its execution. Lastly, legislative reform to
intelligently direct state officials to effectively conduct targeted surveillance only will go a
better way.

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 BIBLIOGRAPHY
Books:

1) Basu D, Commentary on the Constitution of India (LexisNexis 2000).

2) Ratanlal and Dhirajlal, The Code of Criminal Procedure (LexisNexis 2016).
3) Sarkar S, The Code of Criminal Procedure (LexisNexis 2018).

Articles:

1) Chaudhari N, Prasad S, Carpenter v. United States: State Surveillance and Citizen

Privacy (NALSAR Student Law Review 2019).
2) Bajpai A, Search & Seizure of Digital Evidences and Modifications of Digital
Evidence Challenges (National Journal of Cyber Security Law 2019).
3) Bhatia G, State Surveillance and The Right to Privacy in India: A Constitutional
Biography (NLSIR 2014).
4) Gill A, Jaiswal A, Data Surveillance: Need a Policy to Achieve Equilibrium between
State and Individual Interest (NIRMAULJ 2018).
5) Talukdar S, Privacy and its Protection in Informative Technological Compass in
India (NUJSLR 2019).
6) Chinmayi A, Paper-Thin Safeguards and Mass Surveillance in India (NLSIR 2014).

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