27 April 2015

Police: Extent of Investigatory Powers

Authored by Deepti Narayanan

India, although touted as the world's largest democracy, happens to espouse values and rights on a slightly different priority basis in comparison to what is often considered to be the world's largest democracy - namely, United States of America. For instance, the right to freedom of speech and expression is so highly valued in United States of America that a citizen is considered to be well within their rights to even burn their national flag. It is merely considered an expression of their emotions/beliefs towards the country. Don't try this in India, because while we do have the right to freely speak and express ourselves, there are certain limitations placed on this right of ours. Not only are these restrictions kept in place for reasons such as security of the state, but also another scenario in which you might feel your right to freedom of speech or expression under scrutiny is when a manifestation of that very right to freedom of speech of expression comes under the purview or ambit of a police investigation. 

S. 91 of the Code of Criminal Procedure is considered to be a highly powerful or omnipotent section when it comes to the scope of power that it bestows to police investigations. The section gives a policeman in charge of a station or Court the power and authority to legitimately summon a document or any thing, from any person or corporation within the country that is required to further an investigation, trial or other proceeding. The phrase 'document or other thing' is, as you can imagine, a pretty vague and ambiguous phrase, which can be twisted a little too easily by the other authorities to give them a lot of flexibility in what they are allowed to demand for. In today's day and age, millions of us maintain online portals, journals, blogs or any other means of expression. There have been recent instances where there have been summons for material on the Internet that is beyond the scope of S. 91 of the CrPC, and it is crucial that you acquaint yourself with the scope and ambit of powers that the authorities are allowed to exercise over any material on the Internet.

Check the nature of the offence
If, as the owner/manager/author of any material on the Internet you are ever asked to hand over data in furtherance of an investigation, make sure to determine what type of offence the police or court is investigating. If the offence is non-cognizable, the police officer involved requires permission from a Magistrate. One example of a non-cognizable offence is defamation. A quick Google search will help you determine whether an offence is cognizable or not, and if it is on-cognizable, make sure that the policeman has the requisite permission from a Magistrate Court.

Nexus with offence is necessary
Pay close attention to the nature and content of the documents and/or material being requested and the nature of the offence. The documents or material of any kind can only be summoned by the police or court under Section 91 if the concerned documents or materials are deemed to be relevant to the alleged offence that is under investigation, and that could be used as evidence to support the prosecution. Not only should the documents or materials have some connection and relevance to the alleged offence, but also it should be likely to amount to evidence for the prosecution of such an offence. 

Control over the content
The purpose of S. 91 is to facilitate the investigations by policemen of various alleged crimes, by giving them to authority to demand access to what might be relevant material. What the section is definitely not, is the authority to censor any document or work. This means that under no circumstances can this section be used as an excuse to delete, remove or block any content whatsoever. The only way you can be instructed to remove or delete content is under S.69A of the Information Technology Act, 2000 in accordance with procedures laid down under Information Technology (Procedures and safeguards for blocking for access of Information by Public) Rules, 2009 or by an order from a competent court.

There are many provisions in Indian procedural law that allow specific powers to police and other authorities. While it is certainly easier to glean a basic understanding of your rights and duties in broader circumstances, it is equally important to have a clear understanding of what you can or cannot do in very specific, day to day situations, as these are after all the situations you might find yourself in if confronted by the law. It would be extremely difficult to ensure that you enjoy and utilise all the rights that you are entitled to appropriately while simultaneously complying with the obligations that you are duty bound to fulfill by law if you are not aware of precisely what your rights and obligations are.

1. S. 91, Code of Criminal Procedure, 1973

2. 5 Bom LR 980 (982)

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