Author : Jaya Falod
College: ICFAI University
Abstract
The recent and rapid digitization of the entire Indian justice and regulatory system has created an unintended consequence which is an insidious form of cyberspace extortion popularly known as “digital arrests.” This article is an examination of the jurisprudential dilemma that is digital arrest scams. While the concept has yet to achieve statutory recognition under criminal law in India, transnational crime syndicates have successfully leveraged the mimicking of state authority to unlawfully place individuals in a virtual panopticon. I provide a dissection of the procedural mandates of the Bharatiya Nagrik Suraksha Sanhita (BNSS) alongside the penal provisions of the Bharatiya Nyaya Sanhita (BNS) to expose the systemic chasm between physical custody and coercive digital deprivation, as well as how coercive digital deprivation constitutes a direct violation of the right to personal liberty and procedural due process as mandated by Article 21 of the Constitution of India. The paper also discusses recent judicial developments such as the Supreme Court’s sui motu actions against the use of forged judicial documents, and associated evidentiary issues under Section 63 of the Bharatiya Sakshya Adhiniyam (BSA) with respect to multi-layered “mule accounts” and non-authenticated electronic records. The ultimate recommendation following my analysis will be to enact as a separate offence within the BNS, a distinct offence for digital coercion to restore constitutional guarantees to virtual space.
To the Point
The principal legal issue with a “digital arrest” is its attempt at legally faking away (or simulating) physical confinement through a digital means, an entirely foreign and
contradictory concept in relation to the law of Indian criminal law.
Statutory Non-existence of Virtual Arrest: Under Section 43 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), an arrest may only be attempted via actions undertaken against the actual (physical) body of the person to be arrested, (or by way of physical coercion) unless the person submits themselves voluntarily to custody in the form of their words or deeds. A video conferencing (using either Skype, WhatsApp, Zoom, etc.) has no lawful capacity under the law to effect a valid arrest or create a valid legal custody relationship.
A Direct Attack on Constitutional Rights: Fraudsters creating an unmonitored video surveillance environment (esssentially where a victim sits continuously under live surveillance with threats of immediate consequences from a legal perspective) create psychological coercion (confinement) against victims and deprive the person of autonomy to act freely, which is directly in violation of Article 21 of the Constitution of India, which provides that no person can be deprived of their life and liberty without following the prescribed laws.
Use of Legal Jargon
Suo Motu Cognizance – The Ability of a Superior Court to Commence An Action By Its Own Motion Without A Formal Application to It. The Supreme Court of India Used Suo Motu Cognizance to Investigate Multi-State/Regional Digital Arrest Syndicates in India.
Colorable Exercise of Power – The Appearance of Providing a Legal Right or Authority in Which There is No Real Authority to Provide Such A Right/Authority Exists. (Colorable Authority – Examples of Excellent Fraudsters using Colorable Authority: Individuals who Lose Assets/Property In Precinct/Community, Police Criminologists; Etc. Fraudsters create simulated police environments Using Fake Uniforms and Faked Police Backgrounds).
Actus Reus and Mens Rea – The Physical Conduct of Digital Impersonation, Forgery, And Extortion (Actus Reus) and The Mental State Of Intending to Gain Wrongfully (Mens Rea).
Virtual Panopticon – The Psychological Mindset of Being Kept Completely Imprisoned/Contained Through Continuous Video Surveillance. The Victim Believes He/She is Being Watched All Of the Time (e.g., there are cameras watching).
Layering – Financial Laundering Techniques Using “Stolen Money” to Create A New Financial Record by Rapidly Splitting Stolen Money with A Sequence through a Series of 3rd Party Accounts (Mule Accounts).
Verify Electronic Records – A complete verification (proof-of-identity) of a record through a process defined in the Bharatiya Sakshya Adhiniyam (BSA) that records electronic records to confirm that the digital document is not altered, thus exposing unverified PDF documents to be illegal, as they are commonly used by fraudsters.
Case Laws
1 In Re: Victims of Digital Arrest Related to Forged Documents (Suo Motu W.P. (Crl.) No. 3/2025, SC)
The Supreme Court took cognizance of illegal acts of creating fake arrest warrants and court orders in this case and stated that it was a “direct assault on the dignity and majesty of the judiciary.” It also ordered the Central Bureau of Investigation (CBI) to initiate a countrywide investigation and directed the Reserve Bank of India (RBI) and IT authorities to create quick systems for freezing unauthorised accounts.
2. Satender Kumar Antil v. Central Bureau of Investigation (2025 INSC 909)
Antil v The apex court has ruled that notices issued by authorities cannot be delivered through electronic means such as WhatsApp.
3. Justice K.S. Puttaswamy (Retd.) v. Union of India ((2017) 10 SCC 1)
The judgment of the Supreme Court in this case was a historic nine judges bench ruling which recognized the Right to Privacy as a basic human right under Article 21. In digital theft cases, instances of forcing an individual to carry out uninterrupted and involuntary video monitoring and obtaining his finances through mental coercion amount to great and open invasion of personal autonomy and mental privacy of a person.
The Proof
Electronic Record Verification: It has been established that coercion can be concluded based on authentic electronic records (including video calls on Skype, WhatsApp messages, and fictitious VoIP records) under the provisions of Section 63 of the Acts relating to Evidence in India, on the basis of credible statutory electronic certifications.
Financial Tracking of Mule Accounts: The transfer of money (under the guise of “deposit money”) is proved using bank accounts, and the prosecutor correlates the transactions of the victims with the up-to-date logs from the National Cyber Crime Reporting Portal (1930) to trace the movement of the funds from the fake “mule accounts.”
Proof of Complete Restraint: In order to prove the requirement of illegal confinement despite the absence of physical confinement, the prosecution relies on records of continuous hours of video conversations.
Conclusion
According to the analysis, “Digital arrest” should be seen as a violation of human dignity that enables mental isolation through imitation of state power. This subject does not matter in this context as “Digital arrest” is not recognized as valid by the Bharatiya Nagarik Suraksha Sanhita (BNSS) because real arrest implies physical custodianship and following the traditional process of arrest. Although chemical provisions from Bharatiya Nyaya Sanhina (BNS) legislation that refers to impersonation (Article 204), extortion (Article 308), or organized crime statistics (Article 111) can punish all parts of the crime, the existing way of applying common criminal laws in such cases does not address the specific nature of mental imprisoning by such groups of criminals.
The key aspect of successful preparation of legislation in India is transforming realization of laws from only reactive punishment into creation of “Digital Due Process”. To achieve a balance between real world law and virtual law, it is important to include the offense of Digital Coercion by Impersonation of State Authority in BNS legislation as well as provide legislative institutions with the right to use reliable authentication means, such as verification of court orders.
FAQs
Q1. Are “Digital Arrests” covered by BNSS provisions?
Answer: No. No provisions are made in Bharatiya Nagrik Suraksha Sanhita (BNSS) regarding virtual speed arrests and other digital arrests. Under Section 43 BNSS, it is stated that physical arrest means actual confinement of an offender or by presenting their will; legalization of arrest cannot be done with the help of video apps or via phone call.
Q2. Are the Law Enforcement bodies entitled to issue arrests warrants or summons through WhatsApp or Skype?
Answer: No. The Supreme Court of India has ruled it in the case of Satender Kumar Antil v. CBI, that all of the notice issued by the law enforcement agency shall be through the proper legal channels. Using unrecognized means for spreading the messages is of no consequence.
Q3. What significance does Section 63 of the Bharatiya Sakshya Adhiniyam (BSA) hold in these fraud-related scenarios?
Ans. Section 63 of the BSA provides the norms of accepting electronic records as evidence in courts of law. In instances pertaining to digital crimes, it lays down the different evidentiary standards that are required to validate different types of digital footprints, including spoofed VoIP logs, messaging applications including WhatsApp, and electronic bank receipts among others, without jeopardizing the digital chain of custody.
