Interesting Criminal Law Nuggets from the Online Gaming Ban

With the world's largest, albeit not most deliberative, democracy having decided to pass more laws by way of the famous ancient Greek and Roman tradition of simply 'shouting' in the past session of Parliament, a new law is soon making way to the statute book. This is the 'Promotion and Regulation of Online Gaming' Act [The Bill can be accessed here]. The new law divides online gaming as a sector consisting of three categories — online money games, online social games, and e-sports — and it metes out differing treatment to each of these categories. It aims to regulate 'e-sports' and 'online social games', and prohibit 'online money games'.

The money involved in the sector, and the fact that a major company from the sector was the shirt sponsor of the Indian Cricket Team, has meant that it has attracted far more discussion than most laws get. The theme of these conversations is largely about whether it is good 'policy' to ban things, etc. — stuff that is not really the domain of this Blog. More interesting is the looming federalism battle on sports at large, as a result of not only this law but the National Sports Governance Act (another law passed in this session). By these two laws, the union government is staking a much greater claim than historically recognised in the regulation of sport. One wonders whether, and for how long, the states will stay quiet. 

And, of course, the most interesting will be how the big players in this giant sector go about engaging in that most famous of Indian entrepreneurial sports — regulatory capture. The Online Gaming Act proposes to create a new regulator which will, seemingly, have some wriggle room on applying the law to the facts of each game, and decide which games are beyond the pale. In other words, the law is only the first step in what is going to be a much longer dance between the government and this sector. 

In all this, what made the new law of interest for this Blog was its interplay with criminal law. The bright and gold lettering of Section 9 with jail time and fines of up to 1 Crore, and most importantly the ominous, and entirely expected move in Section 10 to confer upon police powers to arrest anyone found breaking the law without warrant, has meant that most big players have temporarily ceased operations but no word about the small ones. Law school teachers should take note and add this as an example in their classes on the principles behind criminal law-making and explaining the deterrence theory, which has long suggested that deterrence does not work in general, but certainly deters the more thinking kind of person. The slide can be updated when regulatory capture in the sector is complete to show that deterrence only works till the thinking kind of person has found a way around the locked front door to enter from the back. 

The new law gives not only to the professors, but also the practitioners here. Criminal lawyers should take note of Section 16 which, according to me, has introduced a massive shift in how the law on arrest, search, seizure, has worked thus far. I've extracted it below and emphasised on the relevant parts:

16. (1) Notwithstanding anything contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, any officer authorised under section 15 may enter any place, whether physical or digital, and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. 

(2) Where any person is arrested under sub-section (1) by an officer other than a police officer as referred to in sub-section (1), such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station. 

(3) The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest made under this section. 

Explanation.—For the purposes of this section, “any place” shall include any premises, building, vehicle, computer resource, virtual digital space, electronic records or electronic storage device and the officer may, if necessary, gain access to such computer resource, virtual digital space, electronic records or electronic storage device by overriding any access control or security code, where such code thereof is not available

Before you ask, the significant change for me is not the enticing prospect of arresting digital avatars from the metaverse. Rather, its about the search and seizure power For the first time the text of the law has gone and specifically recognised that the virtual / digital plane is a different manifestation of space than the physical one. This is hugely significant, and let me explain how and why. 

Thus far, the general criminal procedure law codified in CRPC 1973 and the new BNSS 2023 recognised the ability to seize items including electronic devices, but did not contain any language to deal with what comes next — i.e., searching inside a device. The text of the provisions conferring power to search were still operating on the physical, tangible plane, and talking about searching places. Absence of any clear legal regime for opening and searching devices meant that there was a basis to challenge the police forcing you to open your phone and trawling through its contents. Mind you, it didn't matter much given the obvious imbalance between nice legal argument and the brute force of a baton, but at least there was a case to be made. With Section 16, this gap in the law is being fixed, by conferring a clear and unambiguous legal basis for police invasion of digital devices. 

Having such a clear and unambiguous recognition of duality between the physical and the digital realm in this special law creates a problem for the general law of search powers, where the language is still rooted to purely physical spaces. One could perhaps argue, by using Section 16, that the general power on search cannot permit invasion of digital devices in the manner that police currently engage in with remarkable alacrity. 

Bye bye legal argument? Well, perhaps not. 

Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna

(This post connects to a primer available on SSRN which deals with these issues, which is available here)

Earlier this month, a Single Judge Bench of the Karnataka High Court delivered the judgment in Virendra Khanna v. State of Karnataka and Anr. [W.P. No. 11759/2020 (Decided on 12.03.2021)]. The decision is likely to prove the first in a series of cases in the near future, in which courts grapple with issues posed to criminal investigations by mobile phones and similar digital devices. These issues require courts to not only consider the scope of constitutional protections but also interpret existing provisions of the Criminal Procedure Code 1973 ["Cr.P.C."] and Information Technology Act 2000 ["IT Act"]. 

In this post, I argue that the conclusions arrived at in Virendra Khanna — in respect of the applicability of the fundamental right against self-incrimination, of the Cr.P.C. search and seizure provisions, and of the fundamental right to privacy, all in context of accessing digital devices — are incorrect. The interpretation that is endorsed by the High Court is also deeply problematic, as in the face of advancing technology, it seeks to restrict rather than enhance the contours of our constitutional rights to equip individuals with the means to protect themselves against unlawful incursions into enjoyment of one's personal liberty by state agencies. The post does not engage with the guidelines provided by the Court, or its reiteration of the law laid down in Selvi [(2010) 7 SCC 263] that compelled administration of a polygraph test was is illegal.

The Facts and Issues Before the Court

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his mobile phone was allegedly important to advance the investigation into offences. In September 2020, the police went before the trial court asking for court orders to direct the Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner had refused to cooperate. The court duly passed this direction and it appears the Petitioner complied. Then, the police moved another application before the trial court, this time asking for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email passwords, as it appeared that the Petitioner had been lying about the same during investigation. The court allowed this application as well and directed the polygraph tests be conducted — orders which, according to the Petitioner, were passed without ever giving him an opportunity to be heard and without considering if he had indeed consented to undergoing such tests. The Petitioner challenged this order and the consequent direction to undergo a polygraph test.

Following the judgment in Selvi, no court can direct any accused person to undergo polygraph tests unless such person consented to the same, and if seen from that perspective Virendra Khanna was an open-and-shut case requiring that the order be set aside. But the High Court was more indulgent with the legal issues placed before it and considered questions that lay beneath the surface as well. Out of these, I focus on the following three points taken up in the judgment:

• What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
• What is the interplay between Article 20(3) and directions issued to an accused person for unlocking a digital device? 
• What are the legal limits, if any, upon law enforcement agencies while they "explore" the contents of a digital device for investigation purposes?

Issue 1: The Relevant Legal Regime 

The High Court first considered whether there was any legal basis to root the actions of police officers in accessing a digital device for purposes of investigation. It observed that an officer could always ask an accused to open the device, but to direct compliance required some basis in law. This legal basis was found in the existing search and seizure regime of the Cr.P.C., concluding that the regime — which it admitted only applied to a "place" — was also applicable for accessing a digital device. Accordingly, the police would have to apply for search warrants to access a phone under Sections 93 / 94 of the Cr.P.C., and in emergent circumstances they could dispense with this requirement and act under Section 165 Cr.P.C. The obligations of the accused would be the same in both scenarios, i.e. assist in providing access to any locked space as provided by Section 100 Cr.P.C. 

Extending the existing search and seizure regimes from the realm of physical space to that of electronic / digital space is a path that many countries are taking. Erecting a need for judicial supervision by requiring search warrants to be sought before digital devices can be accessed helps redress the imbalance of power in such situations and also helps to keep law enforcement activity tailored to the needs of investigation and avoid roving inquiries into personal data. Viewed in the abstract, then, the choice of the Court does not seem problematic at all but a pragmatic solution. 

The problems only arise when we move beyond the realm of abstraction into practice. The Indian search and seizure regime does not mandatorily require search warrants; instead, police liberally use their powers under the "emergent circumstances" exception to conduct searches. The result is a situation where privacy is at the mercy of police. This is not to say that the search warrant regime itself, when invoked, supplies the necessary bulwark. The Cr.P.C. 1973 adopted wholesale the search regime that was present in the old British codes, the avowed purpose of which was to maximise scope of interference with personal liberty and not to safeguard it. Under this antiquated regime, general warrants allowing a roving search at a place are the rule, and a court may "if it thinks fit" restrict the scope of this search expedition.  

As noted above, this regime was designed to maximise state interests. Importing this regime in 1973 was a dubious decision. Applying it in 2021 to digital devices which are nothing short of portable vaults full of sensitive personal data, is a disastrous one. 

Issue 2: The Right against Self-Incrimination and Unlocking Mobile Phones

The High Court held that compelling a person to give up a password and / or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the "testimonial compulsion" which Article 20(3) sought to protect. As a result, adverse inferences could be drawn if a person refused to comply with court orders. This analysis was coupled with portraying disaster if the view was taken to its logical consequence, which according to court: 

"would result in a chaotic situation: no blood sample could be taken; no sample for DNA analysis could be taken; no handwriting samples can be taken; no other body sample for the purpose of DNA analysis could be taken; no search of a house or office could be undertaken; the data of a laptop or computer or server cannot be accessed by the investigating officer; offences like cyber crime could never be investigated; offences like pornography, child pornography which are more often than not, on the internet, could not be investigated."

Both these conclusions of the High Court are, unfortunately, incorrect. The legal position is misstated, and the approach on the factual aspects is deeply misguided and troubling.

The High Court called upon the "testimonial compulsion" concept in its reasoning and concluded that the furnishing of a password / biometrics was not of this nature, but was akin to "physical evidence". This binary logic was engrafted upon Article 20(3) by the Supreme Court in Kathi Kalu Oghad [AIR 1961 SC 1808], according to which there is a kind of material called "physical evidence" which falls outside the scope of the protection and persons can be compelled to furnish it. This includes blood samples, hair samples, or even asking an accused to wear specific clothing. Then, there is "testimonial compulsion" which is the material Article 20(3) covers, which traditionally makes one think of confessions. What is the basis behind this distinction? "Physical evidence" is only relevant for purposes of comparison and so by itself it is not incriminating — police take the sample to compare it with other material. "Testimonial compulsion" is incriminating by itself, and conveys to the police information that is the direct product of testimony. The key then is whether the testimonial act — be it speaking, or making gestures — conveys information that can help furnish a link in the chain of evidence, by its own merit.

Is giving the password / biometrics really not conveying any information? Is it of no value as testimony by itself? Surely, the answer is no. At its most basic formulation, the testimonial value in having an accused person unlock the phone lies in the many inferences that can be drawn from this act. Not only does it lend support to the inference that the accused owns the phone, but also to the inference that the accused was in control of its contents. And where the contents of this device are what are potentially incriminatory, surely this is as obvious a link in the chain of evidence as any. 

On a more specific point, while the Court relied upon Kathi Kalu Oghad, it seemingly ignored the decision in Shyamlal Mohanlal Choksi [AIR 1965 SC 1251]. Otherwise, the High Court could not have observed that giving a password is not testimonial compulsion because "it is only in the nature of a direction to produce a document." After all, Shyamlal specifically held that a direction of this nature could not be issued to an accused person as it would run contrary to Article 20(3).    

Since the High Court was incorrect in comparing the giving of a password with giving of bodily samples and the like, it is already obvious that the "heavens will fall" approach to the consequences of concluding an Article 20(3) violation are an exaggeration unfounded in the law. But let's ignore that for a minute, and take up the assertion on its face value. What it reveals is a troubling state of affairs where the High Court assumes that cooperation by an accused is necessary to secure any or all of these obviously legitimate investigative aims. This cannot be further from the truth and, in fact, the Court itself alludes to this when at a later point in the decision it recommends that police proceed to "hack" a device to gain access where the accused refuses to cooperate. What is troubling here is that this kind of piggybacking upon an accused to secure investigations is what a protection against self-incrimination, in its myriad forms, was designed to reduce. Technological advances have made it more possible for police to do their job independently and have helped to usher in a situation where investigations are not subject to the sweet will of an accused, and at the same time are free of any potential taints of accused persons being assaulted to secure information. It is unfortunate that the High Court endorsed a view which still sought to place the accused as the focal point of a police investigation, without appreciating the well-established perils of this approach.  

Issue 3: The Right to Privacy

The High Court in Virendra Khanna was keenly aware of the potential invasion of one's privacy at stake considering how much data is found on our digital devices. It acknowledged that once police gain access to a device, even if for a specific reason, that often enables full-blown access to all aspects to a person's life. After heading in this direction, the High Court simply noted that the use of any such data during the course of investigations would not amount to a violation of the right to privacy, as it was protected under the exceptions carved out. At the same time, the High Court observed that unlawful disclosures of this material with third parties could certainly amount to an actionable wrong.

With all due respect, the High Court's analysis of the privacy issues barely scratched the surface and, in effect, simply placed the cart before the horse. Yes, a criminal investigation can certainly require invasions of the right to privacy that are otherwise prohibited, but to confer a blanket protection over all all kinds of activities that may be done under the pretext of an investigation effectively extinguishes the fundamental right altogether. Let's take an example. The police allege that an accused spoke to other conspirators over email and this correspondence is evidence to show the existence of an agreement to commit a crime. This is as genuine a law enforcement need as can be justifying going inside an email account and one's private chats. 

According to Virendra Khanna, when faced with this situation a court should support untrammelled access for police agencies to the email account. Such an approach is hardly the only way out and actually asks courts to forsake their responsibility of crafting a proportionate intrusion to best safeguard law enforcement interests without sacrificing one's privacy altogether. Rather than confer a carte blanche upon the police, an approach which took privacy seriously — the respect a fundamental right deserves — would have a court consider if the police could demonstrate with reasonable particularity what they hoped to find or if it was just a hunch and, importantly, create a time-limit so that the individual is not forever beholden to police snooping through her inbox. 

The seemingly benign way in which the High Court viewed potential breaches of the right to privacy can be seen not only from how it viewed state interests as an unquestionable concept, but also in how it failed to address what remedies may lie in the event of a breach. As mentioned above, the High Court did note that disclosures to third parties were possible and could constitute a breach, but it neither offered nor suggested a remedy to the aggrieved accused in this regard. What's worse, the High Court in its support for getting search warrants endorsed the regular position that the fruits of an illegal search could still be admissible as evidence. It failed to engage with the small but significant line of recent cases where another High Court took strong exception to searches being conducted without following procedures, noted that this amounted to a breach of the right to privacy, and excluded material gathered pursuant to search from being considered as evidence. 

Conclusion: Setting Back the Clock, by Some Measure

On its face, the petition in Virendra Khanna offered a straightforward issue — administering polygraph test without consent. The High Court looked past this simplicity to address the underlying legal questions which are becoming critical in their relevance to law enforcement needs and ordinary life. That it chose to do so and contributed to the discourse by offering clear answers to some questions was a welcome move. The problem is that the answers themselves are severely wanting, either proceeding on an incorrect legal basis or drawing exaggerated hypothetical conclusions. 

How this judgment is treated by the other benches in the Karnataka High Court, the state police, as well as other courts, will be interesting to see. 

Guest Post: Admissibility of Evidence and Validity of Trial vis-a-vis Illegal Search

(This is a guest post by Chaaru Gupta)

Search and seizure is a significant part of an investigation for gathering evidence and is outlined in the Criminal Procedure Code, 1973 (hereinafter “the Code”). The power given to the investigating agencies is a double-edged sword that can be used to infringe upon the Fundamental Rights of the citizens guaranteed by the Part III of the Constitution. However, time and again the search procedure has been interpreted to be ‘directory’ instead of ‘mandatory’ except under the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act). This post attempts to discuss the effect of illegal search on the admissibility of evidence and validity of the trial, and a need to rethink the effects.

Some Procedural Requirements for Searches

Given the extensive nature of the search procedure, there are numerous steps at which errors or omissions can be made. There are different legal consequences for every error or omission. I discuss two of these provisions: search conducted without proper authority and a search conducted in absence of independent witnesses.

Although not necessary, the Code does provide for a warrants-based approach for carrying out a search. However, search warrants cannot be issued by every Magistrate. Section 94 of the Code empowers only certain Magistrates to issue a search warrant and these are District Magistrates, Sub-divisional Magistrates, and Magistrates of the first class. Where the search is made in pursuance of a warrant issued by a Magistrate and the concerned Magistrate was not empowered to issue such a warrant, it shall be considered an irregularity and it will not vitiate proceedings.

Section 100 of the Code requires the presence of at least two independent and respectable witnesses during the search. The provision uses a ‘shall’ which usually means mandatory instead of discretionary. However, in the case of Mohan Singh v. International Airport Authority of India, the Supreme Court (hereinafter “the SC”) held that interpretation should be done in light of the intention of the legislature, and therefore, the word ‘shall’ can be construed to be directory or mandatory depending on the provision and its interpretation. Courts in India have construed the presence of independent witnesses to be directory instead of mandatory, which doesn’t seem to reflect the intention of the legislature while drafting the provision.

It has been held that the absence of independent witnesses during the search does not affect the prosecution case and merely requires a court to adopt greater care while scrutinising evidence. In case the evidence submitted is found acceptable, it would be an erroneous proposition to find the arguments of the prosecution unacceptable solely on this ground. This implies that the obligation to take witnesses is not absolute and it does not vitiate the seizure.

Admissibility of Evidence and Illegal Search

The position of law in India with respect to the effect of illegal search on the admissibility of evidence is very similar to the position of law in India concerning the effect of illegal search on the validity of the trial. In cases under the NDPS Act, the exclusionary rule is applied and in cases under the Code, the inclusionary rule is applied.

However, this position is worrisome on many levels as illegal search and seizure vis-a-vis admissibility of evidence under the Code poses a number of problems including its being antithetical to the spirit of the Constitution (1), its leading to miscarriage of justice (2) and its having at stake the integrity and honour of the judicial system (3).

Antithetical to the Spirit of the Constitution

The current position of law leads to a breach of the right to privacy of the suspect. In K.S. Puttaswamy v. Union of India (hereinafter “Puttuswamy”) the SC recognised the right to privacy as a fundamental right. It forms an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedom guaranteed by Part-III of the Constitution. The right to privacy is an inalienable right that includes freedom from interference. An illegal search violates the right to personal liberty of a person and is thus unconstitutional. In fact, Dr. Ambedkar considered the right to be secured against illegal and unreasonable searches “very important so far as personal liberty is concerned” but due to political reasons, the same was not incorporated in the Constitution. A similar argument was presented before a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation). It was argued that admitting evidence obtained by illegal search and seizure was antithetical to the “spirit of the Constitution”. The SC held that the criterion for admissibility is relevance and there was no express or implied prohibition in the Constitution against admitting evidence obtained by an illegal search.

However, there are two issues with this decision that need to be discussed. Firstly, the SC was misled to believe that there needed to be a specific prohibition against the inclusionary rule in the Constitution. It needs to be noted that the exclusionary rule is distinct from the rights guaranteed under the Constitution. The rule operates as “judicially created remedy to safeguard the constitutional rights.” Therefore, there is neither an express right to exclusionary rule, nor a specific prohibition against inclusionary. Secondly, the SC relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test. However, it needs to be noted that Puttaswamy overrules, directly or indirectly, each of these cases as far as these aspects are concerned.

Miscarriage of Justice

The inclusionary rule can lead to a miscarriage of justice. Section 465 of the Code provides that there shall be no direct bearing of an irregularity or illegality in the investigation unless it leads to failure of justice. However, a search by an officer not empowered to conduct the search or a search in absence of independent witnesses is far from being a “mere irregularity” and consequently, should be considered a miscarriage of justice and thus be quashed. As pointed out earlier, it comes at the cost of the fundamental rights of the citizens and thus, cannot be just. The ends do not justify the means and injustice cannot lead to justice. The absence of witnesses has the potential to allow the search team to be arbitrary which is inconsistent with the rule of law. It may provide a faster way to conduct the procedure but at the cost of the liberty of the citizens.

Integrity and Honour of the Judicial System

The choice between exclusionary and inclusionary rule has the integrity and honour of the judicial system at stake. The judicial system will be brought to disrepute in case of condonation of the arbitrary and illegal conduct of the investigating authorities. At the same time, excluding important and concrete evidence due to a minor irregularity in the procedure can also jeopardise the reputation of the judicial system. This implies that there is a need to strike a balance between the two rules as both can lead to extremely inflexible situations.

One aspect to be considered under fair trial can be the legality of search and seizure conducted during the investigation. The position with respect to the effect of illegal search on the validity of trial is similar to the effect of illegal search on the admissibility of evidence. Non-compliance with the provisions like the presence of independent witnesses is a mere irregularity and does not vitiate the trial. This position may vary from case to case, for instance, if an irregularity affects the trial to the prejudice of the accused, the accused would be entitled to acquittal as this affects an aspect of fair trial which is the presumption of innocence. Irregularities in general merely act as a direction to the court to adopt greater caution while examining the evidence during the trial. However, the same is not the case with search in violation of the NDPS Act.

NDPS Specific Searches and Vitiating Trials as a Remedy

The courts in India are divided on the effect of illegal search on the validity of trial under the NDPS Act. Though the SC through a landmark decision in the case of Balbir Singh v. State of Punjab (hereinafter “Balbir”) cleared the position of law by holding that illegal search and seizure or illegal arrest under the NDPS Act vitiates the trial, the position is still not settled.

In Balbir, the SC did not take into consideration any precedent which held that illegal search does not vitiate the trial altogether. The circumstance which can lead to the vitiation of the trial is the procedural lapse which vitally affects the trial to the prejudice of the accused and is irreversible. In this case, the accused would be entitled to be acquitted. This position has been followed by the courts for a long time and rightfully so. The following factors need to be considered while deciding the same.

Opportunity Cost

Vitiation of the trial itself in case of illegal search under the Code or the NDPS Act comes at a huge opportunity cost. In case the trial is vitiated because of an illegal search, the opportunity cost is the benefit that would have been driven by its continuation by a number of beneficiaries. The beneficiaries would include all the stakeholders in that particular case such as the victim, the police, the counsels, and most importantly, the criminal justice system. The benefits which are forgone by vitiating a trial are far more than the benefits which are driven by vitiating it due to violation of search procedure. It needs to be understood that our judicial system, with its increasing number of pending cases, does not afford this high an opportunity cost. The interest of the stakeholders needs to be kept into consideration while deciding the case. Furthermore, vitiation of a trial should be the last resort in case of an illegal search.

In case of an illegal search, the Magistrate has other alternatives before the Court vitiates the trial. The first is that the Magistrate in case of illegal investigation can order further investigation or re-investigation. In Kishan Lal v. Dharmendra Bafna, the Court held “An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.” However, in case of reinvestigation or de novo investigation, the SC in Vinay Tyagi v. Irshad Ali held that neither the investigating agency nor the Magistrate has any power to order or conduct fresh or de novo investigation since their jurisdiction and powers are limited within the Code. However, the Code doesn’t place any limitation to the exercise of power by the High Courts under Section 482 of the Code and the SC under Article 142 of the Constitution of India. In addition to this, the writ jurisdiction of the SC and High Court under Article 32 and 226 of the Constitution respectively makes it competent to direct reinvestigation to ensure justice or to prevent the abuse of any process of the Court.

Conclusion: Need to Strike Balance

The criteria for striking a balance between the two rules can be (1) the nature of the crime, (2) the degree of necessity to compromise the rights of the suspect, (3) the reputation of the judicial system, and (4) whether the violation of rights was ‘wilful’. Sufficient judicial discretion should be granted to the Magistrate, coupled with proper and strict guidelines for the investigating authorities. There should be no endorsement of unfair conduct of the investigating authorities. At the same time, flexibility should be provided to the methods adopted by the investigating authorities considering the nature of the crime and surrounding circumstances.

It can be said that the position of law, with respect to the effect of non-compliance with the rules of search procedure, needs to be settled for the better. The fundamental rights of citizens are inalienable and cannot be compromised under any circumstances. With respect to the effect on the validity of the trial, the decision in Balbir is unreasonable and fails to acknowledge the various other means to which the court can resort in order to right the wrong, before vitiating the trial itself. The interests of various stakeholders of the judicial system need to be acknowledged, accepted, and balanced.