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Digital Search Warrant

In Criminal justice system, the Crime scene investigation is considered to be one of the most crucial steps. The search and seizure are the part of investigation conducted by the Investigating agencies. However, such actions could be done only through the warrant issued by Magistrate or proper authority. As the use of electronic device in modern era has become necessity of every individual, it equally important to understand its pros and cons.

With the enactment of Information technology Act, 2000 the electronic records have been provided with legal sanction and as such is admissible in the court of law. This very change in society has empowered Courts to issues Warrant to search and seize the digital devices such as laptops, computer resources and so on. These devices can be used to commit crime and on the other hand it is a tool to catch the ultimate perpetrator of the said crime.

Although no express provisions have been inserted in Code of Criminal procedure but still the Court has wide power to issue any kind of warrant to search the digital evidence and has been brought as a separate kind of evidence under Indian Evidence Act which is at par with the traditional kind of search warrant. The Search warrant for these digital devices have led to facilitation of trial in criminal proceedings in India and at the same time it is important to understand that is should be used for the purpose it has been brought in the legal system.

The advancement of Information and Communication technology has brought transformation in the manner of everyday communication and transaction with other people around us. These transactions and stored and recorded. These data are constantly made available for the individual and corporations through digital devices. The digital accessories have become of the most essential need of individual and is prevailing in every society. In this era, almost every offence has an electronic element involved and be it mobile, computer, laptops, these are used to carry out offence. The provisions under CrPC and Indian Evidence Act have provided specific mechanism for procurement of digital evidence i.e., Digital warrant.

  • To study the conceptual understanding of Digital warrant.
  • To analyze the concept of warrant and digital warrant under Indian legal regime.
  • To elaborate the types and execution of digital warrant.
  • To study various judicial pronouncements related to Digital warrant and admissibility of digital evidence in modern era.
Literature Review Bhatnagar Mohan Anurag and Shekhawat Manvendra, in their article, "The Nuances of Search and Seizure of Electronic Evidence: What Are the Components Involved" has highlighted the legal stages for Search and Seizure of Digital Evidence. The Article is quite explanatory about the approach of India in making any digital evidence as a part of judicial system. Vijayaraghavan Raja, in his article, "Collection, Preservation & Appreciation of Electronic Evidence" has discussed about digital evidence, significance of digital evidence, Incidents of search and seizure of computer devices through the mechanism of digital warrant.

The Article is different from other literature as it deals specifically with the digital evidence and how seizure is done of digital evidence. Karia D Tejas, in his Paper, "Digital Evidence: An Indian Perspective" has dealt with provisions pertaining to Digital Evidence and laws relating to admissibility of those evidences under Indian legal system. The author has also stressed upon the aspects of digital search warrant and how it has paved way to bring more transparent and effective way to do justice.

The Paper is significant when it comes with the relation of digital evidence and search warrant issued by Magistrate. Research Methodology The whole research is doctrinal or non-empirical. It is analytical and descriptive in nature. The present research is done on the basis of primary and secondary sources. The relevant materials with respect to primary sources are taken from laws and judgments by the Supreme Court and High Courts.

Whereas the secondary data has been derived from articles, research paper, books, and online sources. Scope of Study The study covers the ambit of digital warrant along with conventional type of warrant under CrPC. The scope is limited only within the arena of digital warrant and legal intricacies relating to it. Significance of Study The instant study is significant in understanding the legal scenario with respect to digital warrant.

Research Question
  • Whether there are trends in Indian law related to digital warrants?
  • Whether the concept of a digital warrant differs from the conventional type of warrant?
  • Whether there are any different stages to conducting a search and seizure of digital evidence?


Analysis on the concept of warrant

Conceptual Understanding of Warrant:

A warrant under the Code of Criminal Procedure is an order being issued by the Court of Magistrate. It is a particular kind of authorization through the said order directed to Police or other authority in order to empower them to search an area or premise, arrest any person and so on. The Court can ensure the appearance of accused before the Court by three ways i.e., summon, detention or arrest and lastly, the proclamation and attachment. To ensure that the accused is to be detained or arrested, a warrant is issued by a Magistrate. The provisions relating to warrant of arrest has been provided under Sec. 70-81 of Code of Criminal Procedure.

Aim of Warrant:

A Warrant of arrest can be issued by Magistrate as a precautionary measure wherein the accused to be present before the court. This is due to the reason that it would not be in favor of public interest that accused be allowed to move freely who has been alleged to have been committed cognizable offence or has been serving conviction in jail or is a habitual offender. Although the Code of Criminal Procedure permits an individual to be arrested even without the requirement of warrant by the Court in some exceptional matters, such an individual cannot remain in custody for more than twenty-four hours from the period of arrest.

Pre-requisites of a Warrant:

According to Sec. 70 of the CrPC, the following are the essential requirement to be fulfilled in a warrant:
  1. The warrant issued by the court should be in written form.
  2. The Warrant should be signed by the Magistrate.
  3. The seal of the Court must be embossed in the warrant.
Under CrPC, the following particulars should be mentioned in a warrant:
  1. It must mention the name of arrestee and other relevant information prior to the arrest.
  2. It must specify the offence for which subject of arrest is made.
  3. The rights of the arrested person must be expressly mentioned.
  4. The warrant should also be mentioned about the fact that detained person will be freed subject to condition that sign a bail bond and thereafter provide security.

Types of Warrant:

There are mainly four types of warrants issued by the Courts:
  1. Arrest Warrant: Such kind of warrant is issued by a Magistrate or judge and is signed and verified accompanied by the document proving reasonable cause that person or individual specified in the warrant has committed the alleged offence. Arrest warrant is a kind of warrant in written form and has been issued by official empowering the authority to arrest and take the custody of an individual.
  2. Search Warrant: It is a warrant issued with an aim to search a particular location seeking proof of a particular warrant.
  3. Bench Warrant: Bench warrant is an alternative to the arrest warrant. This kind of warrant is issued by the court when defendant fails to appear before the Court as per the scheduled hearing.
  4. Execution Warrant: It is an order which permits the execution of a death penalty against an individual. The location and time of execution are mentioned in the execution warrant, which have similar functions as that of arrest warrant except that the outcome intended is having lethal force rather than an arrest.

Execution of Warrant:

Section 72 of CrPC provides for the warrant and its execution which states that "a warrant may be directed to either a police officer or to any individual." Further, Section 74 of the Code mentions that a warrant which is directed to any Police official can be even executed by some other Police subject to a condition that the name of the other Police shall be endorsed by the officer so directed to execute at first instance.

Execution of warrant beyond local jurisdiction:
As per Section 78 of the Code, when a warrant is required to be executed beyond the local area then, such warrant won't be given to Police officer and rather it will be directed to Commissioner of Police or District Superintendent of Police (DSP), or Executive Magistrate within whose local area the said warrant is to be executed. Here, the concerned authority mentioned here may further endorse the name of Police who will then conduct the unction to execute warrant.

Overview On The Digital Search Warrant:
  1. Meaning of Digital Warrant:
    In this techno-advanced era, almost all the offence committed by offender has a digital or electronic element involved, be it a mobile phones or computer or even a SD card. In order to carry out offence, laptops, mobile phones, computers or other electronic gadgets are used and it can further be helpful in assisting the Police agencies in determining the offender's identity who are indulged in the said offence. Due to influence of technology upon the modern society along with proliferation of computers and storing of data in digitalized format, reforms were required in the legislations in order to incorporate the provisions of digital evidence.[5]
  2. Significance of digital evidence:
    In this modern digital era, the activities by people leave digital traces such as activity logs, file fragments, metadata etc., which has value in finding out the origin of a documents or electronic record. These records are essential for legal purposes in elucidating the transactions of the parties indulged in a criminal case. The mass use of electronic resource has led to generation of humungous data.

    As such, this has led to an expectation within every process of investigation for requirement to identify the e-evidence. If these electronic evidence or records are identified, collected and analyzed in best possible way then these records can prove significant in the outcome of civil or criminal investigation. These investigations can be further completed with the help of warrant issued by Magistrate and this warrant is known as digital warrant.
  3. Legal Mechanism for Search and Seizure of Digital Evidence:
    The Sec. 93[6] of the Code of Criminal Procedure imposes duty upon Magistrate to issue a search warrant for "any thing or document" and also to search in the premise for the purpose of investigation. Further, Section 100 of the Code states that in order to search a premises which is already being searched then a prior approval in the form of warrant is necessary. Other provisions pertaining to warrant includes Section 51[7] and 165[8] which provide for search without need of warrant.

    The Information Technology Act, 2000 (also known as IT Act) was made by the Indian Parliament for inserting provisions for digital evidence to the Indian Law. There have been several amendments to the Evidence Act. With this respect Section 3 expressly mentions about evidence which includes electronic or digital evidence. In this section, it is provided that "Electronic record" is a kind of documentary evidence.

    In the matter of State of Maharashtra v. Dr. Praful B. Desai, it was held that "evidence recorded by way of video-conferencing is valid and legal action as provided and interpreted under Sec. 273 of the Code. Further, it was observed that now Apex Court permits video conferencing as a mode to examine the witness before the Court. According to Section 273, evidence has to be taken when the accused is present. However, physical presence is not crucial and mere presence which is constructive in nature would be sufficient. The ruling in this matter has been followed in other cases as well such as Amitabh Bagchi v. Ena Bagchi[9]. Similarly, in the case of Bodala Murali Krishna v. Bodala Prathima[10], it was concluded that necessary precautions should be adopted to find out the identification of witness and accuracy of such equipment utilized for the purpose of video conferencing.

    In the case of Jagjit Singh v. State of Haryana[11], the Supreme Court held that "Admissibility of transcript of interviews taken from new channels like Haryana News of Punjab Today channel, Zee News, Aaj Tak channels as electronic evidence is allowed and Court can pass digital warrant to bring those evidence before them."

    In the case of Yusufalli Esmail Nagree v. State of Maharashtra[12], the Apex Court permitted the admission of conversation which was recorded in magnetic tape between an accused and an individual who wanted to give bribe to him. It was held by the Court that "tape-records are a very accurate mechanism to store and reproduce sounds later on."

    Further in the matter of NCT of Delhi v. Navjot Sandhu[13], an appeal was filed against the conviction after the attack on Parliament in the year 2001. This case was regarding the proof and admissibility of the records telephone calls in mobile. While dealing the appeal against the accused, an argument was made on the side of accused that parties cannot rely upon the mobile telephone call records due to the reason that prosecution failed to bring the certificate required under Sec. 65B (4) of the Indian Evidence Act. However, the Apex Court was of the view that "a cross-examination of witness who was well acquainted with the functioning of computer devices were considered to be sufficient to prove the call records"

    In all the above cases, it can be inferred that digital evidence are admissible before the Court and a warrant can be issued under Section 93 to produce such documents and things including digital evidence for the purpose of eliciting the real facts and proving the case.
  4. Digital Warrant with respect to Search, Seizure & Investigation of Electronic or Digital Evidence:
    In traditional setting, a particular substance is stored in physical form which can be stored in material form such as data printed on bills such as report, bills, manuscript and so on. These data are more vulnerable to harm by way of corporeal method like robbery, theft, etc., however in today's technology driven society where the records are stored electronically and are faster and cheaper are even more vulnerable to the malicious activities by the offenders. These digital records are considered to be one of the most emerging kinds of evidence or document which can be presented before the court and a warrant for search and seizure of these digital evidence can be required by Court by way of digital warrant. The digital warrant is a modern means to achieve justice in criminal matters.
  5. Measures to be taken while conducting Search through Digital warrant:
    In case the Investigating Officer has received any credible information related to computer or electronic device in a premise which could be one of main evidence of the case, then the said officer can call forensics experts to examine the electronic evidence while conducting the search.
  6. Stages for Search and Seizure through Digital warrant:
    1. Relying upon Technical Experts: While executing digital warrant, the officers should be cautious in searching a computer device or data stored in any electronic device as these are sensitive information which can be destroyed or deleted easily. The experts or specialists can indulge into search and seizure and also can interrogate after proper.[14]
    2. Preparation/Identification: The concerned authority should firstly recognize the incident. The digital search warrant should be then issued by the Court for proper search of a place with proper authorization.
    3. Search & Seizure: After issue of digital warrant, the authority along with experts should recognize the digital evidence which would be helpful for their case to prove it. The digital evidence such as computer, laptop, etc., should be then collected by authorities.
    4. Preservation: Since digital evidence are volatile in nature and can be easily tampered therefore it becomes crucial to secure the evidence and also to safeguard the evidence's integrity.
    5. Examination: Authority can make duplicate of evidence after examining it.
    6. Analysis: The experts are required to analyze the data and draw conclusions.
    7. Reporting: The expert will lastly summarize and translate the data and explain the outcome of analysis before the court when digital warrant is issued by court to appear and render their opinion and facts pertaining to digital evidence.
  7. Recent Judicial Pronouncements by Indian Judiciary on Digital Warrant and Evidence:
    In the case of State of Punjab v. Amritsar Beverages Ltd.[15], a digital warrant was issued under Section 14 of the Punjab General Sales Tax Act 1948, which empowered the Sales Tax Department to search and seize the computer hard disk. Section 14 states that Commissioner may require the production of document, book o account with respect to the business.

Guidelines with respect to search & seizure of digital evidence:
In a recent case of PIL- W Foundation for Media Professionals v. Union of India and Ors., a petition was filed by an association of journalists on framing the guidelines in details on search & seizure of digital evidence[16]. The Bench Pointed out that due to lack of regulation with respect to power of Police in conducting searching and seizing of digital evidence, the police indulge themselves in dubious practice like asking individuals without any credible information and reasonable suspicion, to grant access to the digital devices, sharing confidential information received with 3rd person or governmental institutions. All these practices infringe the constitutional right of incrimination of an accused and more importantly their right to privacy is also violated.

The Court gave following ratio and guidelines:
  1. In today's modern society, digital devices have become an extension of self. But, when it is the matter of search and seizure, the legal provisions existing in the present scenario, either in CrPC, 1973 or under several special legislations are not sufficient to ensure that law enforcement organizations exercise their functions in a way which is in compliance with the right to privacy.
  2. The law enforcement agencies are obliged to obtain a digital warrant prior to the searching of those devices. The warrant taken shouldn't be general in nature and should provide the information which officials expect to find through the said digital devices along with sufficient reason for such an expectation. Further, in case the search is conducted without a warrant then it would be deemed as unconstitutional.
  3. Every application for a digital warrant should showcase to the Magistrate that it satisfies the proportionality standards provided under Article 21 of the Indian Constitution. The test should prove two essentials: firstly, obtaining evidence is not possible by other mechanisms, and secondly, the interest of the state justifies the highest degree of contravention of privacy.
  4. The directions should be rendered to law enforcement organizations to ensure that information received through those digital evidences should not be leaked and can be deleted only when it is not required for further investigation. Moreover, the details shouldn't be shared by these agencies with other government organizations.
  5. The Court said that the government should refer to the international standards with matters concerning digital search and seizure warrants.

As we increase our dependency on the digital advancement, the courts seem to be confronted even more with issues pertaining to this technology. The laws have also adapted as per the change in society. Prior to coming of internet, the Court used to work in traditional manner. But after the advent of internet, the need to legally sanction the electronic record was felt and therefore these electronic devices are now admissible as evidence at par with traditional form of evidence.

The Courts nowadays are frequently using their power to search and seize the digital evidence which could be helpful for the criminal proceeding and finding the truth. With the merits of digital warrant, there arises some issues too. There are possibilities that investigating agencies may misuse their power in their process to investigate the digital device. Further, there can be chances of privacy violation when it comes to search and seizure of digital evidence.

There is no proper legislation regarding the digital search warrant which becomes problematic in safeguarding the rights of accused as well as victim. With an appropriate standard and guidelines in this regard, the process of search and seizure of digital devices by way of digital warrant can be very beneficial in future prospects which should be taken care of for proper justice to the parties.

  1. Guneet Singh Bagga, 'Securing the attendance of a person under the Code of Criminal Procedure, 1973' (IPLEADERS, 16 November 2021) <> accessed 3 April 2023
  2. 'What is a Warrant in CrPC? (REST THE CASE, 13 August 2022) <> accessed 3 April 2023
  3. A Namika, 'What is summon and warrant, it's procedure' (Legal Service India) <> accessed 4 April 2023
  4. 'Types of warrant', accessed 5 April, 2023
  5. Anurag Mohan Bhatnagar and Manvendra Shekhawat, 'The Nuances of Search and Seizure of Electronic Evidence: What Are the Components Involved?' (The Criminal Law Blog, 15 May 2020) accessed 3 April 2023.
  6. Code of Criminal Procedure 1973, s 93- When search warrant may be issued.
  7. Code of Criminal Procedure 1973, s 51- Search of arrested person.
  8. Code of Criminal Procedure 1973, s 165- Search by police officer.
  9. AIR [2005] Cal 11
  10. [2007] (2) ALD 72.
  11. Writ Petition (civil) 287 of 2004
  12. [1968] AIR 147
  13. (2005) 11 SCC 600.
  14. Tushar Panhalkar, 'Planning the Search and Seizure of investigation' <> accessed 6 April 2023
  15. [2006] 7 SCC 607
  16. Rintu Mariam Biju, 'Guidelines on Seizure of Digital Devices: Supreme Court Issues Notice on Foundation For Media Professional's Petition' (Live Law, 19 October 2022) <> accessed 7 April, 2023

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