Journalist's Mobile Phone Can't Be Seized Without Following Procedure Simply Because It Has Some Info About A Crime: Kerala High Court

The Kerala High Court on Monday came down heavily upon the State police for seizing the mobile phone of a journalist without following due procedure as contemplated in law. 

Justice P.V. Kunhikrishnan observed if the seizure of mobile phone of a journalist is necessary in connection with a criminal case, there are procedures to be followed for the same. 

The petitioner, G. Visakhan, a senior journalist at 'Mangalam Daily' averred that police officers conducted a search at his house and asked him about the editor and publisher of YouTube Channel Marunadan Malayali, Shajan Skaria. Thereafter his mobile phone was also seized. 

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 avers that if at all the search conducted by the respondent-police authorities came within the purview of Section 156 CrPC (Police Officers Powers to Investigate Cognizable Cases), it is within the rider of Section 41A CrPC (Notice of appearance before the Police Officer), and that the liberty of the police officer was thus subject to Section 41A. It was submitted by the petitioner that in the present case, the said provision was not adhered to 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 in the said crime. 

The petitioner further averred that it is a usual practice amongst journalists to share news items, but went on to add that recently, the petitioner had not received any remuneration from Skaria for sharing news, and that some other sources were sharing news with him. "However, such contact and nexus is not a reasonable ground to suspect any person/journalist for the commission of any offence or sharing criminal intention with the journalist, who is accused of an offence," the plea adds. 

It is on these grounds that the petitioner approached the Court seeking the issuance of a direction not to harass him or conduct any search in his house, and for the issuance of a direction to the State authorities to take appropriate action against the police officers for the illegal search that was conducted. 

The Court has directed the Station House Officer, Pathanamthitta, to file a statement in the matter regarding the circumstances under which the mobile phone of the petitioner was seized. 

The matter has been posted for further consideration on July 21, 2023. 

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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