A legal examination of arrest procedures, due process, and the myth of online detention
In recent months, a disturbing trend has emerged across India where individuals receive phone calls or video calls claiming to be from police or investigative agencies. The caller informs them that they are “under digital arrest” or placed under “virtual custody” and are instructed not to disconnect the call. In many cases, the person is threatened with immediate legal consequences unless they comply with instructions, which often include transferring money or sharing sensitive documents.
This phenomenon raises an important legal question: does Indian law recognise the concept of digital arrest or virtual custody? The answer, both legally and constitutionally, is a clear no.
Under Indian criminal jurisprudence, arrest is a serious interference with personal liberty and can only be carried out strictly in accordance with law. The procedure for arrest is governed by the Criminal Procedure Code, 1973 (now replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023), which leaves no scope for any form of online or virtual detention.
Section 41 of the CrPC (corresponding to Section 35 of the BNSS) authorises a police officer to arrest a person only by physically restraining or touching the body of the accused, unless the person voluntarily submits to custody. The very language of the statute makes it clear that arrest requires physical control or presence. A video call, WhatsApp message, or email cannot amount to arrest in the eyes of law.
The constitutional safeguards under Article 22 of the Constitution of India further strengthen this position. A person who is arrested must be informed of the grounds of arrest and produced before a Magistrate within twenty-four hours. These safeguards are non-negotiable and form the backbone of personal liberty in India. A so-called “digital arrest” satisfies neither requirement and is therefore unconstitutional.
The Supreme Court has repeatedly emphasised that arrest is not a routine procedure and must be exercised with caution. In the landmark judgment of D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Court laid down mandatory guidelines to be followed during arrest, including preparation of an arrest memo, presence of witnesses, intimation to family members, and medical examination of the accused. These safeguards exist to prevent abuse of power and custodial excesses. Any form of virtual or online custody completely bypasses these safeguards and is therefore illegal.
It is also important to understand that even when the police wish to call a person for questioning, the law provides a specific mechanism. Section 160 of the CrPC (now Section 179 of the BNSS) allows the police to issue a written notice requiring a person to appear before them. Such notice must mention the details of the case, the authority issuing it, and the place of appearance. Informal communications through phone calls, messaging applications, or video conferencing platforms do not qualify as lawful summons or notices.
Fraudsters often attempt to justify their actions by invoking the Information Technology Act, 2000, claiming that the alleged offence is cyber-related. While the IT Act does define various cyber offences, it does not dilute or override the procedural safeguards of arrest under criminal law. Even for offences under the IT Act, the process of arrest, detention, and investigation must comply with the CrPC or BNSS. There is no provision under the IT Act that authorises online detention or virtual custody.
Indian courts have consistently protected personal liberty against procedural shortcuts. The Delhi High Court, in Court on Its Own Motion v. State (2021), reiterated that liberty cannot be curtailed without due process of law and that any informal or coercive methods adopted by authorities are impermissible. This principle applies with even greater force when private individuals impersonate law enforcement agencies.
International legal systems also do not recognise the concept of digital arrest. In the United Kingdom, the Police and Criminal Evidence Act, 1984 mandates physical arrest and custody procedures. In the United States, the Fourth Amendment requires physical seizure or submission to authority based on probable cause, as clarified in California v. Hodari D., 499 U.S. 621 (1991). Virtual detention or online custody would be considered unconstitutional coercion in these jurisdictions as well.
The danger of the so-called digital arrest lies in its psychological impact. The fear of police authority, combined with unfamiliarity with legal procedures, often forces individuals into compliance. However, the legal position remains simple: if a person is free to disconnect a call, they are not under arrest. No lawful custody can exist without physical control and judicial oversight.
In conclusion, digital arrest and virtual custody have no legal recognition under Indian law. Any attempt to restrain a person’s liberty through online means is illegal, unconstitutional, and often part of a criminal scam. Personal liberty cannot be suspended through a screen, and due process cannot be replaced by video calls or messaging applications. Awareness of this legal reality is the strongest defence against such abuses.