In this blog, we briefly discuss the concept of digital arrest, the provisions under the Bharatiya Nyaya Sanhita, 2023, applicable in case of digital arrest and the growing awareness against steps and steps taken to mitigate the same.
The advent of technology has revolutionized the manner in which people interact, conduct business and access services. However, this shift has also led to an alarming rise in cybercrimes, including the phenomenon of “digital arrests”. Such scams exploit individuals’ fears and unfamiliarity with legal processes, causing significant distress and financial loss. In this article, we aim to shed light upon the rising cases of fake digital arrests in India, the measures adopted by the Government in tandem with the Apex Court and other High Courts to curb this menace as also to elucidate the interplay with the new criminal laws.
Understanding Digital Arrest
Digital arrest is a cybercrime involving scammers posing as law enforcement officials (for instance, as officials from Reserve Bank of India, Central Bureau of Investigation or Directorate of Enforcement, etc.) and falsely accusing the victim of committing a crime. These scammers often attempt to isolate the victim and subsequently leverage the threat of fictitious consequences, such as arrest or imprisonment, to extort significant sums of money or part with personal information to prevent supposed legal action.
These scams use tactics such as spoofed phone numbers, emails, and fake websites mimicking legitimate institutions. According to the Indian Cybercrime Coordination Centre, Ministry of Home Affairs (“IC4”), there have been multiple case reports of people having lost around INR 120.30 crore due to digital arrest scams, in the first quarter of 2024 alone.[1] As the statistics burgeon, it has become increasingly evident that these are not merely isolated incidents but rather part of a larger pattern of cybercriminal activity, posing a substantial threat to individuals and society at large.
Legal Frameworks Addressing Digital Arrests
Currently, “digital arrest” is not an offence specifically recognised under the Bharatiya Nyaya Sanhita, 2023 (“BNS”) or Information Technology Act, 2000 (“IT Act”); however, various provisions of the BNS and IT Act come into play when such acts are committed.
The facets of a digital arrest involve using technology to impersonate an authority and, under the guise of threat and intimidation, manipulating victims into sharing sensitive information and handing over other valuable property.
Accordingly, a person committing a “digital arrest” may be charged with, inter alia, the following offences:
- impersonating a public servant[2] (subject to imprisonment for six months to three years, along with a fine) under the BNS;
- cheating[3] (subject to imprisonment of up to seven years and a fine) under the BNS;
- extortion[6] (subject to imprisonment for up to ten years and may incur a fine) under the BNS; and
- identity theft[7] (subject to a penalty of up to three years in jail and a fine of up to INR 1 lakh) under the IT Act.
Prompted by the alarming rise in digital arrests in India, the Rajasthan High Court has taken suo moto cognizance of the issue.[8] Justice Anoop Kumar Dhand has reiterated that there is no concept of “digital arrest” under the Bharatiya Nagrik Suraksha Sanhita, 2023 (“BNSS”). The High Court has also directed the Government to raise awareness and the Reserve Bank of India to take steps to halt payments made to such fraudsters. The judgment emphasises that citizens must be educated about lawful arrest procedures, including their rights during such processes, as there is currently no legal provision allowing law enforcement to conduct arrests via online communication.
The BNSS allows for the electronic service of summons under Section 63; however, each such summon must be encrypted, bear the image and seal of the Court, and bear a digital signature. The BNSS outlines due process for making an arrest under various circumstances, each of which necessitate physical detention. The arresting police officer is also responsible for ensuring accurate, visible identification and must prepare an arrest memo at the time of arrest.
Additionally, a notice under Section 35(3) of the BNSS directs individuals suspected of committing a cognizable offence to appear before the police for requisite questioning, if their arrest is not mandated in accordance with Section 35(1) of the BNSS.
Aiming to establish uniformity in the procedural framework, a division bench of the Supreme Court[9] has recently passed directions, inter alia reaffirming the guidelines passed in Satender Kumar Antil v. CBI and Another[10] and Rakesh Kumar v. Vijayanta Arya (DCP) and Others.[11] The Supreme Court has held that while Section 63 of the BNSS provides using electronic means to serve summons, notices for appearance of a person under Section 35(3) of the BNSS or Section 41A of the Code of Criminal Procedure, 1973 (“CrPC”), cannot be served through electronic means.
The said judgment further clarifies that notices potentially leading to arrest should be served traditionally in strict compliance with the manner provided under the BNSS. It also passed directions restricting the use of WhatsApp by police officials to send notice under Section 160 or 175 of the CrPC (now, Section 179 or 195 of the BNSS) to summon the witness or other persons during investigation.
Proactive Measures by the Government
The Government of India has proactively implemented measures to combat digital arrests and enhance public safety. As on December 10, 2024, the IC4 had blocked more than 1700 Skype IDs and 59,000 WhatsApp accounts.[12]
The Government has started various campaigns and issued a press release to alert the public about cybercriminals impersonating law enforcement agencies for blackmail and digital arrests.[13]
The Government, in collaboration with telecom service providers, has developed a system to block incoming international spoofed calls that appear to originate from Indian numbers. As of mid-November 2024, over 669,000 SIM cards and 132,000 IMEIs have been blocked.
Additionally, the Citizen Financial Cyber Fraud Reporting and Management System has enabled immediate reporting of financial frauds, saving over INR 3,431 crore from fraudulent attempts. Various state agencies have provided guidance and conducted training sessions to enhance the capabilities of personnel responsible for responding to cybercrime incidents.
Gaps in Current Legislation
Lack of Specific Legislation
Several strides are being taken to strengthen the mechanism to tackle digital arrests in a comprehensive and coordinated manner, but the existing Indian legal framework lacks provisions related to digital arrests. This has created a gap in addressing the rise of cybercrimes. To effectively combat this trend, the law must be expanded to formally recognise digital arrests, enhance due process protections for individuals involved in digital offenses, and provide comprehensive training for law enforcement on cybercrime investigations to promote coordinated efforts between various government agencies. Such expansion is crucial for adapting the legal system to the complexities of the digital age and safeguarding citizens against emerging threats.
Cross-Border Cooperation
Additionally, the cross-border nature of digital arrests poses significant challenges, as cybercriminals often exploit jurisdictional discrepancies to evade prosecution by operating from countries with lenient laws. This complexity necessitates enhanced international cooperation, including standardised protocols for data-sharing and extradition agreements, ensuring that offenders are pursued effectively, regardless of their location. International cooperation and effort are required to harmonise legal frameworks and facilitate swift action against cybercrime globally.
Concluding Remarks
The rise of fake digital arrests in India presents a significant challenge. While existing legal frameworks provide some recourse, they are not fully equipped to tackle the sophisticated and international nature of these scams. A comprehensive approach involving enhanced legislation, international cooperation, law enforcement resources, and public education is essential to combat this growing threat effectively. Legal measures must be backed by large-scale public awareness and digital literacy to help the public recognise and combat the menace of digital arrests.
As this issue continues to evolve alongside technological advancements, it is imperative that all stakeholders remain vigilant and responsive in their efforts to protect the society from these insidious threats.
For further information, please contact:
Ankoosh Mehta, Partner, Cyril Amarchand Mangaldas
ankoosh.mehta@cyrilshroff.com
[1] https://indianexpress.com/article/india/indians-lost-rs-120-crore-in-digital-arrest-frauds-in-january-april-2024-9641952/.
[2] Section 204 of BNS.
[3] Section 318 of BNS.
[4] Section 336 of BNS.
[5] Section 336(3) of BNS.
[6] Section 308 of BNS.
[7] Section 66(C) and Section 66(D) of IT Act.
[8] In Re: In the matter of tackling the issue of ‘Digital Arrest Scams’, Cyber Crimes and saving the innocent people from losing their money and lives, Rajasthan High Court (2025).
[9] Satender Kumar Antil v. CBI, Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP (Crl) No. 5191/2021.
[10] (2022) 10 SCC 51.
[11] 2021 SCC OnLine Del 5629.
[12] PIB Delhi, Digital Arrest Scam (December 10, 2024), https://pib.gov.in/PressReleasePage.aspx?PRID=2082761.
[13] Supra note 1.
