These are two questions with two different answers, and they get conflated constantly. Seizure of the device is well provided for. Compelled disclosure of what is inside your head is not.
The seizure
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 a police officer may seize any property which is alleged or suspected to have been stolen, or which is found under circumstances that create suspicion of the commission of an offence, and must forthwith report the seizure to the magistrate having jurisdiction. Where the seizure follows a search by an investigating officer, the search provisions apply: grounds recorded in the case diary beforehand, independent local witnesses, a signed list of things seized with the places where they were found, a copy of that list delivered to the occupant, and audio-video recording of the search and seizure process which is to be forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.
There is one requirement specific to devices that is worth knowing. When the investigation is complete and the police report is forwarded to the magistrate, the report has to state, among other things, the sequence of custody in the case of an electronic device. That is a statutory hook for the chain of custody question, and it is often the most productive line of enquiry where the contents of a phone are disputed. On the evidence side, the Bharatiya Sakshya Adhiniyam, 2023 sets out the conditions on which the output of a computer or communication device is admissible, and those conditions are worth reading before anyone assumes that whatever is extracted from a handset simply goes in.
Make, model, colour, IMEI number or numbers, the phone number of the SIM in it, whether the device was on or off when taken, whether it was placed in a sealed cover and what the seal reads, and the names of the witnesses. If a hash value or a mirror image is taken, ask for that to be recorded too. A memo that says only "one mobile phone" is a memo that will be argued about for years.
The password
Here the position has to be stated with care, because it is not settled. Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. In 2010 the Supreme Court held, in a case from Karnataka on narcoanalysis, polygraph examination and brain mapping, that no individual should be forcibly subjected to those techniques, whether in the context of a criminal investigation or otherwise, and that doing so would be an unwarranted intrusion into personal liberty. On the other side of the line, the Supreme Court held as long ago as 1961 that giving a specimen signature, handwriting or a thumb impression is not testimonial compulsion and so is not hit by Article 20(3). The Sanhita reflects that distinction: a Magistrate of the first class may order a person, including an accused, to give specimen signatures, finger impressions, handwriting or a voice sample, ordinarily only where the person has at some time been arrested in connection with the investigation, though the Magistrate may for reasons recorded in writing order it without arrest.
A password is not in that list. It is also not obviously the same kind of thing as a fingerprint, because disclosing it involves communicating the contents of your mind. Different High Courts have approached compelled disclosure of passwords and biometric unlocking differently, and no provision of the Sanhita names it. Anyone who tells you the answer is settled either way is overstating the position. What follows practically is that you should not simply hand over a password on demand, nor refuse in a way that creates a fresh problem. Say that you wish to take legal advice, ask for the request to be put in writing, and note it.
What to do
- Get the seizure memo and read it. Add the device details in your own hand if they are missing, and keep your copy.
- Ask for a mirror image or a copy of your own data. Businesses and professionals should ask early, because the device may be retained for a long time.
- Do not wipe or reset anything. Destroying material once an investigation is on foot creates a fresh and much easier case against you, and it also destroys what may exonerate you.
- Ask about the seal. Whether the device was sealed at the time of seizure, and in whose presence, is the question the chain of custody argument turns on.
- Apply for return where the retention is not necessary. The magistrate has the power to deal with custody of seized property, and our guide on how seized property is released in Karnataka shows the shape of that application in the commonest example.
If you are the complainant rather than the suspect
The picture reverses in a fraud or an online offence, where the phone is the evidence of what was done to you. There the priority is preserving the material and filing correctly, and our guide on how to report a cyber crime in India sets out the channels. Where a device seizure is part of a case you say is false, our note on the remedies open to a person falsely accused deals with the case as a whole rather than the device alone.