What if you woke up one morning to find the cops at your door because someone had used your cell phone and had been involved in illegal activity? This is an alarming – but much more common situation in India than people think. As mobile phones become an integral part of our lives, they can also become important evidence in a murder case — and the owner of the registered phone can suddenly be suspected of the crime. So, is there a possibility of getting jailed for someone else using your mobile phone in a crime or not? The answer is, no automatically, but there is a possibility of being questioned, detained, and even arrested in some cases within the first part of an investigation. This suspicion becomes a conviction depends on the evidence, the intent you are accused of, and the strength of your rights assertion. This blog explores the legal landscape of such situations in India and details what each and every citizen should be aware of.

How Your Phone Can Connect You to a Crime

Digital evidence has been a key tool in modern criminal investigations. Call records, message logs, GPS data, application activity and the SIM card’s registration indicate that the phone is the registered owner’s primary user. During an investigation, if the police get call detail records (CDRs) from the telecom operators, the number of the incoming call is directly linked to the subscriber who has subscribed to the service provider.2 The registered owner of the SIM Card is uniquely identified by the KYC (Know Your Customer) process as prescribed by Telecom Regulatory Authority of India (TRAI). The line of inquiry initially flows to you if the SIM is registered in your name, and if someone else is using it to send threatening messages, to coordinate fraud or to communicate between the planning of a crime. This is exactly what a criminal defense lawyer India is often called on to sort out: the innocent owner of the phone and the actual perpetrator.

The Legal Framework: What Indian Law Says

The Bharatiya Nyaya Sanhita, 2023 (BNS) and Criminal Liability

Much like the IPC, under the BNS, which in effect on 1 july 2024 criminal liability does not

attach automatically, but rather, the prosecution must prove both the mens rea (guilty mind) and the actus reus (guilty act). Possession of the cell phone used in the crime does not prove either element. But the BNS makes noteworthy provisions with respect to organised crime and criminal
conspiracy. An ‘organised crime’ is defined broadly under Section 111 and cyber-crime carried out on behalf of a crime syndicate is included. Even if there is a slight circumstantial indication that you helped in any way — intentionally or not — in the commission of the crime, investigators might try to invoke these rules.

The Information Technology Act, 2000

The Information Technology Act, 2000 (IT Act) is the key legislation in India regarding cybercrimes. Hacking into the computer network, introducing viruses and stealing data are punishable under Cheating by personation, violation of privacy and penalties for identity theft are also available for under the IT Act (sections 66D, 66E and 66C, respectively). Most importantly, the pivotal judgment in Sharat Babu Digumarti v. Government of NCT of Delhi laid down another significant principle: vicarious liability can’t be automatically attributed to an individual whose platform or device was used to enable the commission of the crime, even if the accused is not the owner of the platform or the device. Though the ruling was made in the context of a business platform, it was a rule that could be persuasive to users of individual phones too.

Phone Seizure Powers Under the BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) supersedes the Code of Criminal Procedure, 1973, and provides the police with the authority to seize mobile phones. To prevent arbitrary confiscation, under BNSS there has to be an audio-visual electronic record of the search and seizure
process, including a mobile telephone. Moreover, the Supreme Court of India, in Justice K.S. Puttaswamy v. Union of India, which decided that privacy is a fundamental right under Article 21 of the Constitution, held that access to data held on the phone must be either with consent or on the basis of a judicial warrant.

When Can You Actually Be Arrested?

But whether you could be held responsible for someone using your phone in a crime is anotherquestion — what was learnt of your knowledge and intentions. Generally, there are three main scenarios to take into account:

 You were not aware: You didn’t know you had lent or had your phone stolen. In this situation, you should not be in danger of being convicted of a crime, although you will probably be put on the police grid and your device may be confiscated.

 You knew about the crime but you did not commit it: This is a more serious option. You may not want to tell anyone about your phone use, but if it was used to facilitate a crime, it’s possible that you could be charged with abetment under Chapter IV of the BNS.

 If you gave your phone to someone who knows it would be used for a criminal purpose, you could be charged with serious offenses, such as abetment and criminal conspiracy.

Indian courts have always ruled that the accused’s criminal act must be proven beyond doubt. Ownership of a device used in a crime only establishes a rebuttable presumption—it does not create an absolute one.

Case Study: A False Criminal Implication Case Note

Illustrative Case: Rajan T. v. State (Composite Analysis of Reported Cyber-Fraud Investigations)

The following false criminal implication case note is a composite illustration drawn from patterns in reported Indian cybercrime cases, presented to demonstrate how innocent phone owners get entangled in criminal investigations and the legal remedies available to them.

Background

A 38 year-old small-business owner, Rajan, had rented his second SIM-registered cellphone to his former employee Prakash, while his handset was being repaired for ten days. But Rajan was not aware Prakash was coordinating a UPI fraud scheme for victim elderly people in three states using
the device. The Cyber Crime Cell followed up its digital footprints and the Cyber Crime Cell CDRs and transaction logs led them to Rajan’s registered mobile number.

The Investigation

Police raided the house of Rajan under Section 35(3) of the BNSS, which ordered him to report to the police station for questioning. In another case, his phone (again, a different phone) was retrieved by the police under Section 105 of the BNSS, with a signed seizure memo in hand. At one time, Rajan told the police that he had lent the gadget but had no knowledge of any cheating going on. He could not, however, provide Prakash’s contact details or provide any evidence of the lending arrangement.

Arrest and Bail

As the offences under the IT Act which are relevant for the fraud are cognizable, officially Rajan was at risk of getting arrested and formal charge was to be framed against him as he was detained overnight and was being questioned. His family got in touch with an Indian criminal defence firm
that focused on cybercrime defense. On the same day, the lawyer filed an anticipatory bail application with the Sessions Court, arguing that there was a total absence of digital evidence against Rajan in any fraudulent transaction, the presence of WhatsApp messages sent by Prakash on his
cellphone, and the doctrine laid down in the Puttaswamy case that phone data could not be used as evidence without proper certification under Section 65B of the Bharatiya Sakshya Adhiniyam, 2023.

Resolution

A bail was granted in anticipation within 48 hours. The information on the device that Rajan had given to Prakash revealed that the login credentials, UPI accounts and OTPs used in the fraud were linked to accounts which he had never registered or used. Prakash was then identified and arrested. The police came up with a final charge sheet, which had Prakash as the sole accused. Rajan’s case highlights three important points: Firstly, owning a phone does not necessarily make you a criminal; secondly, it is important to quickly show absence of mens rea; and thirdly, involvement of a competent defence counsel can be a decisive factor between freedom and wrongful detention

Your Rights If You Are Questioned or Arrested

In addition to the statutory right under the BNSS, an arrested person has the right to:

 Do not incriminate yourself: Do not say anything that could incriminate you.

 The right against self-incrimination is guaranteed by Article 20(3) of the Constitution.

 Don’t unlock your phone without judicial permission: If you’re not accused or arrested, you’re legally not required to unlock your phone for police viewing.

 Spea to a lawyer right away: You can always talk to a lawyer at any point in the proceedings.

 Documentation: Always ask for a copy of the seizure memo if your phone or something is taken.

Practical Preventive Measures

Prevention is better than litigation at any time. The following steps will minimize the chances of your phone being used in a crime by another person:

 Never lend your phone to acquaintances without documentation: Remember, an acceptance to send a quick WhatsApp message confirming the arrangement for lending would be proof.

 Apply screen locks and app locks: This restricts access to what any unauthorised user can access.

 Immediately report a lost or stolen phone: Report to the police and notify the telecom company to block the lost card. This leaves a time-stamped record that helps to free you from later usage.

 Check registrations of SIMs in your name: Check through the TRAI portal or the Department of Telecommunications’ TAFCOP portal to find out if there are any SIMs registered in your name.

Conclusion

Under Indian criminal law, it is not the crime of owning, but it is the intent and the action that matters. Just because your phone was used to commit a crime, doesn’t mean you are guilty. The prosecution must prove that you actually did the act, actively did the act, or were a member of a
criminal conspiracy. But this investigative process can be quite intrusive and can include activity such as phone confiscation, questioning and even temporary detention. When you’re caught in such a situation, the first thing you need to do is to find a good lawyer, save all the relevant paperwork on how the phone was passed, and assert your constitutional rights. As the digital world continues to change in India, evidence gathered from mobile phones will increasingly play a crucial role in the investigation of crime, posing an increased risk to innocent mobile phone owners who may be targeted for crimes they did not commit. The first and best defence is knowing your rights.