Nothing in the Sanhita says a seized device must be kept until the trial ends. What keeps phones and laptops in a malkhana for years is that nobody applies for them. The application is short and the law behind it is now more helpful than it used to be.
The provision that governs the wait
Section 497(1) provides that when property is produced before any Criminal Court or the Magistrate empowered to take cognizance during any investigation, inquiry or trial, the Court or the Magistrate may make such order as it thinks fit for the proper custody of that property pending the conclusion of the investigation, inquiry or trial. The Explanation defines property to include any property or document produced before the Court or in its custody, and any property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence. A phone taken in an investigation falls squarely inside that.
What is new is the timetable the Sanhita then imposes on the court itself. Under Section 497(2) the Court or Magistrate shall, within fourteen days of the production of the property, prepare a statement of the property describing it in the form the State Government prescribes by rules. Under Section 497(3) it shall cause a photograph and if necessary a videograph of the property to be taken. Section 497(4) says that statement and that photograph or videography shall be used as evidence in any inquiry, trial or other proceeding under the Sanhita. And Section 497(5) requires the Court, within thirty days after the statement has been prepared and the photograph or videography taken, to order the disposal, destruction, confiscation or delivery of the property.
Where the seizure was never produced in court
Many seizures are reported to the Magistrate under the Sanhita and the article then sits at the station. Section 503(1) covers exactly that situation. Whenever the seizure of property by a police officer is reported to a Magistrate and the property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting its disposal or its delivery to the person entitled to possession. Section 503(2) says that if the person entitled is known, the Magistrate may order delivery on such conditions as he thinks fit. So the correct application depends on where the article is, and getting that wrong is the commonest reason a first application is returned.
| Stage | Provision | What the court can order |
|---|---|---|
| Article produced in court during investigation, inquiry or trial | Section 497 BNSS | Proper custody pending conclusion, and disposal or delivery after the statement and photograph are taken |
| Seizure reported to the Magistrate, article not produced in court | Section 503 BNSS | Delivery to the person entitled to possession, on conditions |
| Investigation, inquiry or trial concluded | Section 498 BNSS | Destruction, confiscation or delivery, with or without a bond to restore |
| Aggrieved by the order of disposal | Section 500 BNSS | Appeal to the court to which appeals ordinarily lie from convictions by that court |
The evidence point that usually wins the application
Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 65B of the Evidence Act, makes information contained in an electronic record and produced by a computer or any communication device admissible as a document without further proof or production of the original, if the conditions in the section are satisfied. Section 63(4) requires a certificate to be submitted along with the electronic record at each instance where it is submitted for admission, identifying the record, describing how it was produced and dealing with those conditions, signed by the person in charge of the device or of the relevant activities and by an expert, in the form set out in the Schedule.
Read that against Section 193(3), which lists what the police report must state on completion of the investigation and now expressly includes the sequence of custody in the case of an electronic device. Put together, the prosecution's case on the contents of your phone rests on a properly hashed image, a documented chain of custody and a Section 63 certificate. It does not rest on the handset staying in a steel cupboard in Bengaluru. That is the argument to make, and it is the one investigating officers find hardest to answer.
What the application should offer the court
- A copy of the seizure memo, or an averment about what it omitted, with the make, model, IMEI and serial numbers as far as you can state them
- Consent to a forensic image being taken first, with the hash value recorded in the order, at your cost if the court so directs
- An undertaking not to format, reset, sell, transfer or part with the device, and to produce it whenever the court directs
- A bond, with or without surety, of the kind Section 498(2) contemplates for delivery of property
- Proof of ownership, meaning the purchase invoice, the warranty record or the connection details for the SIM
- A short statement of prejudice, meaning what the device holds that you actually need, such as accounts, professional files or medical records
The password question is separate, and it is unsettled
Whether you can be compelled to hand over a password or to unlock a device with a fingerprint or a face is a genuinely open question in India, and anybody who tells you it is settled either way is overstating it. Article 20(3) protects a person accused of an offence from being compelled to be a witness against himself, and a password sits uncomfortably between a specimen signature, which the courts have long treated as outside that protection, and a communication of the contents of the mind, which is inside it. Different High Courts have gone different ways and no provision of the Sanhita names it. We have dealt with it separately in our answer on whether the police can seize your phone and demand your password, and the practical advice there holds: ask for the demand in writing, say you wish to take legal advice, and do not refuse in a manner that creates a new problem.
A realistic word on timing
Interim custody applications are not decided the same week. The court usually calls for the objections of the investigating officer, and where the device has gone to a forensic laboratory the article is not physically available until it comes back, which by itself can take months. What you can control is filing early, framing the application under the correct provision, and offering the court terms that make an order easy to write. The pattern is the same one that governs vehicle release, which our guide on getting a seized vehicle released in Karnataka sets out in the commonest example. If you are the complainant rather than the suspect and the device is the proof of what was done to you, the priority is preservation and correct filing, and our guide on how to report a cyber crime in India sets out those channels.