The Journalist's Cell Phone Cannot Be Seized Without Due Process

The Journalist’s Cell Phone Cannot Be Seized Without Due Process Because It May Contain Criminal Activity Information: Kerala High Court

On Monday, the Kerala High Court severely reprimanded the State police for confiscating a journalist’s mobile phone without following the legal procedure.Justice P.V. Kunhikrishnan noted that if the seizure of a journalist’s mobile phone is necessary in connection with a criminal investigation, there are procedures to be followed.

The petitioner, senior correspondent at “Mangalam Daily” G. Visakhan, claimed that police personnel searched his home and questioned him about Shajan Skaria, the editor and publisher of YouTube channel “Marunadan Malayali.” Afterward, his mobile phone was also confiscated.The petitioner states that mobile phone is his sole source of livelihood as a journalist.

“The Journalists are part of fourth state. The Journalist may be getting several information in their mobile phones. But which news is to be telecasted and published is to be decided by Journalist taking into consideration the information received. Telecasting every information even if it is hearsay is not journalism. Simply because, the Journalist has got some information about the crime, the mobile phone cannot be seized, without following the procedure contemplated in Cr.P.C. There is allegation in this case to the effect that the petitioner and even his family members are harassed. That can’t be allowed,” Justice Kunhikrishnan observed.

The petitioner argues that if the search conducted by the respondent-police authorities fell within the scope of Section 156 CrPC (Police Officers Powers to Investigate Cognizable Cases), it falls within the rider of Section 41A CrPC (Notice of Appearance Before the Police Officer) and that the police officer’s liberty was thus subject to Section 41A. The petitioner argued that in the present instance, the said provision was not followed by the respondents.

So in the backdrops of the above factual matrix and the legal proposition, it is evident that the so-called search conducted by the respondents 5 to 7 (Superintendent of Police, SHO. Elamakkara and SHO, Pathanamthitta) at the instance of respondents 3 and 4 (Commissioner of Police and Assistant Commissioner of Police, respectively) is per se illegal and for which the respondents herein are severally and collectively responsible and answerable in the eyes of law,” the plea states.

The petitioner further states that he is not an accused in the crime involving Skaria and that till date no incriminating piece of evidence had been dug out by the investigative agency to link him to the s crime.

The petitioner also asserted that sharing news items is a common practise among journalists, but he added that he had not been compensated by Skaria for doing so recently, and that other sources were also sharing news with him. “However, such contact and nexus is not a reasonable basis to suspect any person/journalist of committing any crime or sharing criminal intent with the accused journalist,” the defence argues.

On these grounds, the petitioner petitioned the court for an order prohibiting him from being harassed or having his home searched, as well as an order directing state authorities to take appropriate action against the police officers responsible for the illegal search.

The Court has ordered the Pathanamthitta Station House Officer to file a statement regarding the circumstances under which the petitioner’s mobile phone was seized.The matter has been continued to July 21, 2023 for further consideration.

Advocates B. Jayasurya and Mini V.A. appeared on behalf of the petitioner.

Case Title: G. Vishakan v. State of Kerala & Ors.

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