Seizure of Digital Devices by Another Agency Negates Need for Custodial Interrogation in Cyber-Obscenity Cases: Delhi High Court’s Anticipatory Bail Ruling in Ajaz Khan v. State (NCT of Delhi)

Introduction

This commentary examines the Delhi High Court’s order granting anticipatory bail to actor and social media influencer, Ajaz Khan, in FIR No. 41/2025 registered at Cyber Police Station, Delhi under Section 79 of the Bharatiya Nyaya Sanhita, 2023 (BNS) (formerly Section 509 IPC) and Section 67 of the Information Technology Act, 2000. The FIR emanated from a reaction video posted by the petitioner allegedly containing sexually explicit and offensive remarks targeting the complainant (mother of YouTuber Harsh Beniwal) and her daughter, following a parody video uploaded by her son.

The petition was moved under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (inherent powers of the High Court) read with Section 438 CrPC for anticipatory bail. The State opposed the petition citing non-compliance with Section 35(3) BNSS notices (akin to the earlier Section 41A CrPC notice to appear), alleged habituality, and the petitioner’s influence over witnesses. The central question before the Court was whether custodial interrogation was necessary, particularly given that the petitioner’s digital devices had already been seized by the Mumbai Police in another case.

The Court granted anticipatory bail with conditions, emphasizing the “bail not jail” doctrine, the limited maximum sentence involved, and the absence of necessity for custodial interrogation when the principal digital evidence is already secured by another investigating agency. The judgment also contains a significant cautionary note on responsible use of social media by public figures, balancing free speech with the dignity of individuals.

Summary of the Judgment

• The Court noted that the petitioner had already surrendered his iPhone and iPad to the Borivali Police (Mumbai) pursuant to an interim protection order of the Bombay High Court in another matter. Thus, the devices were in police custody and not recoverable from him in the Delhi case.
• Given that the prosecution case rested primarily on the petitioner’s video recorded on those devices, the Court held that custodial interrogation was not required for their recovery or examination.
• The Court emphasized:
  • Arrest must not be mechanical or automatic;
  • “Bail not jail” remains the guiding principle, particularly where maximum punishment is three years (as under BNS s.79 and IT Act s.67);
  • No material suggested flight risk; and
  • The petitioner offered to cooperate and provide voice samples.
• Anticipatory bail was granted subject to conditions: cooperation with investigation; no intimidation of witnesses; disclosure and updating of mobile numbers and address; surrender of passport; provision of voice sample when required; and surrender of the mobile phone to Delhi Police as and when received back from Bombay Police.
• In an obiter dictum, the Court cautioned social media users—especially influencers with large audiences—about the porous nature of online content and the need to exercise Article 19(1)(a) freedoms within the reasonable restrictions under Article 19(2), respecting the dignity of individuals.

Detailed Analysis

1) Precedents Cited

The order does not cite specific precedents by name. Nevertheless, its reasoning aligns with settled bail jurisprudence and procedural safeguards that have evolved through landmark decisions. While not explicitly relied upon by the Court in this case, the following authorities illuminate the legal landscape:

• Gurbaksh Singh Sibbia v. State of Punjab: Established the broad, discretionary and protective scope of anticipatory bail, discouraging narrow literalism and underscoring the importance of personal liberty.
• Sushila Aggarwal v. State (NCT of Delhi) (Constitution Bench): Clarified that anticipatory bail need not be time-bound by default and that its grant must turn on factors like the nature of accusation, antecedents, and risk of tampering, not a presumption of custodial necessity.
• Arnesh Kumar v. State of Bihar: Directed that arrests for offences punishable up to seven years should not be routine; police must assess the necessity of arrest and prefer notices of appearance (now reflected in BNSS Section 35(3)).
• Satender Kumar Antil v. CBI: Reinforced the graded approach to arrest and bail, requiring adherence to process and non-custodial measures where feasible.
• Siddharth v. State of U.P.: Held that arrest is not mandatory during investigation if the accused cooperates and custodial interrogation/recovery is not required.
• Ritesh Sinha v. State of U.P.: Upheld the power of courts to direct taking of voice samples—reflected here in the condition that the petitioner provide voice samples to the investigating agency/FSL.
• Shreya Singhal v. Union of India and Subramanian Swamy v. Union of India: Though arising in distinct contexts, these decisions frame the broader balancing between free speech and reputational/dignitary interests—principles echoed in the Court’s cautionary observations about social media speech and dignity.

Note: The above cases are discussed to contextualize the judgment’s reasoning. They were not cited in the text of the order.

2) The Court’s Legal Reasoning

a) Necessity of Custodial Interrogation vs. Secured Digital Evidence

The decisive factor was that the petitioner’s devices (primary repositories of the alleged offending content) had already been surrendered to and were in the custody of the Borivali Police in another investigation. Since the prosecution case turns on the video recorded and disseminated from those devices, there was no recovery to be effected from the petitioner in this FIR. The Court therefore found no demonstrated necessity for custodial interrogation, which is a central consideration in anticipatory bail adjudication.

b) Arrest Not Mechanical; “Bail Not Jail”

The Court stressed that arrest should not be “mechanical/automatic,” particularly in cases where custodial interrogation is unnecessary and the accused is not a flight risk. This is consistent with the modern approach that emphasizes necessity and proportionality of arrest, encouraging investigative agencies to rely on non-custodial measures when adequate to secure cooperation and evidence.

c) Nature and Gravity of Offences

The invoked provisions carry a maximum sentence of three years (BNS s.79 and IT Act s.67 for first conviction). Recognizing that the offences, while socially serious, do not carry severe statutory maxima, the Court weighed in favor of liberty in the absence of aggravating factors necessitating custody.

d) Non-Compliance with BNSS Section 35(3) Notice: Contextual Assessment

The State pressed non-compliance with appearance notices as indicative of evasion. The petitioner responded that his father’s medical emergency and his simultaneous obligations under a Bombay High Court order (including surrender of devices) explained the delay, and that he communicated with the IO by email seeking rescheduling. The Court did not treat the non-appearance as disqualifying, given:

• Evidence central to the case (devices) was already secured with another police force;
• The petitioner undertook to cooperate and furnish voice samples; and
• There was no material suggesting abscondence or active obstruction.

In effect, the judgment reinforces that non-appearance notices under Section 35(3) BNSS should be viewed through the prism of necessity and actual prejudice to investigation, not as a per se bar to anticipatory bail.

e) Risk Assessment: Flight Risk and Tampering

The Court found no material on record indicating a flight risk. Concerns about witness intimidation were mitigated by tailored bail conditions prohibiting contact or threats and by the nature of the evidence—primarily digital content already in State possession.

f) Conditions Tailored to Digital Investigations

The conditions—cooperation, voice sample provision, disclosure/synchronization of contact details and address updates, passport surrender, and future surrender of the phone upon return from Mumbai Police—are calibrated to ensure the investigation proceeds without impediment, while preserving the petitioner’s liberty.

g) Obiter on Responsible Speech by Influencers

“The freedom of ‘speech’ and ‘expression’... must be exercised within the bounds of the reasonable restrictions... When the speech crosses the line into insult, humiliation or incitement, it collides with the right to dignity... The free speech should therefore not trample on the dignity and vice versa.”

The Court’s observations, while not determinative of guilt, articulate a normative standard for social media conduct, reflecting the constitutional balance between Article 19(1)(a) and Article 19(2). For influencers with massive reach, the line between satire and actionable insult/obscenity becomes operationally significant; disclaimers do not immunize content that falls within penal prohibitions.

3) What This Decision Establishes (Ratio and Practical Rule)

• In cyber-obscenity/insult cases hinging on the accused’s digital devices, where those devices are already seized by another police agency, custodial interrogation is ordinarily unwarranted absent additional grounds.
• Non-compliance with appearance notices under BNSS Section 35(3) is not, by itself, a conclusive ground to deny anticipatory bail if the accused demonstrates willingness to cooperate and critical evidence is secured.
• Arrest must be a measure of necessity, not reflex, particularly where offences carry a maximum of three years and the accused is not a flight risk and cannot tamper with evidence.
• Courts may impose digital-investigation-specific conditions (voice samples, device surrender when retrieved from another agency) to safeguard the investigation while respecting liberty.

Impact and Implications

A) For Future Bail Jurisprudence in Cyber Offences

The judgment provides a clear template: when principal digital evidence is already in State custody, courts should be slow to authorize custodial arrest merely to “recover” what is not with the accused. Investigators should instead pursue inter-agency coordination to access, mirror, and forensically analyze devices already seized elsewhere.

B) On BNSS Section 35(3) Practice

The order implicitly endorses a purposive application of Section 35(3) BNSS (notice of appearance). While non-compliance is serious, it must be correlated to investigative prejudice. Good-faith communication, documented reasons (e.g., overlapping court directions, medical exigencies), and demonstrated cooperation can mitigate the adverse inference.

C) For Social Media Influencers and Digital Speech

The Court’s caution underscores that:

• Parody/satire disclaimers do not shield content that independently violates penal laws (e.g., obscenity, insulting the modesty of a woman).
• Influencers’ wider reach amplifies potential harm and re-publication, aggravating consequences for victims and weighing in the court’s assessment of social impact.

D) Inter-Agency Coordination

The ruling implicitly promotes comity among police forces: where a device is seized by one force, the investigating agency in another case should leverage statutory mechanisms for information-sharing and forensic access, rather than resort to custodial arrest of the accused purely to obtain devices.

E) Transitional References (BNSS and CrPC)

The petition invoked Section 482 BNSS (inherent powers) read with Section 438 CrPC for anticipatory bail, reflecting overlap in references during the transition from CrPC to BNSS. Substantively, the High Court’s jurisdiction to entertain anticipatory bail remained unaffected. The key takeaway is the Court’s principled approach rather than the formal cross-citation.

Complex Concepts Simplified

• Anticipatory Bail: Pre-arrest bail protecting an individual from arrest, granted when the court is satisfied that custody is unnecessary and liberty can be preserved through conditions.
• BNSS vs. CrPC: BNSS 2023 replaces the CrPC 1973. Several provisions are renumbered and revised. Section 35(3) BNSS incorporates the notice of appearance regime earlier found in Section 41A CrPC.
• BNS vs. IPC: The BNS 2023 replaces the IPC 1860. Section 79 BNS corresponds to insulting the modesty of a woman (earlier Section 509 IPC).
• Section 67 IT Act: Penalizes publishing or transmitting obscene material in electronic form (first conviction up to three years and fine). It is distinct from defamation; “digital defamation” is not a statutory term.
• Custodial Interrogation: Questioning an accused while in custody. Courts assess whether custody is genuinely required for recovery, confrontation, or preventing tampering, as opposed to being punitive.
• Voice Sample: Forensic voice comparison requires a sample; courts can direct an accused to provide it to assist authentication of recorded content. Refusal can have adverse consequences.
• Obiter Dictum vs. Ratio Decidendi: Obiter are persuasive observations not essential to the decision (e.g., social media caution); the ratio is the binding legal principle underpinning the outcome (e.g., no custodial necessity where devices are already seized).
• “Bail Not Jail”: A guiding principle emphasizing liberty; detention before trial must be justified by specific needs (risk of flight, tampering, or necessity of custodial interrogation).

Strengths and Nuances of the Ruling

• Rights-Sensitive and Evidence-Focused: The Court correctly centers the analysis on the necessity of custody in light of the secured digital evidence, preventing arrest from becoming an investigative shortcut.
• Conditioning Liberty to Protect Investigation: Passport surrender, voice samples, and device handover when retrieved strike a fair balance between the accused’s liberty and investigative needs.
• Handling of Non-Compliance: By acknowledging communications and overlapping court directives, the Court resists a formalistic approach to notice non-compliance, instead asking whether the investigation is genuinely impeded.
• Social Media Guidance: Though obiter, the dignity-focused caution is timely and sets a tone for policing online abuse without chilling legitimate speech.

Possible Points of Future Debate

• Charge Calibration under IT Act: Where allegations involve “sexually explicit” content, investigators sometimes consider Section 67A (sexually explicit acts) in addition to Section 67. That calibration is fact-intensive and may evolve with forensic analysis.
• Service of BNSS 35(3) Notice: The petitioner argued initial notice was served on his father, not him. While not dispositive here, future cases may scrutinize service rigor and constructive notice standards.
• Influencer Status as a Factor: Courts may increasingly grapple with whether a large following heightens potential harm and thus weighs against bail, or is sufficiently addressed by restrictive conditions.

Conclusion

The Delhi High Court’s decision in Ajaz Khan v. State (NCT of Delhi) meaningfully refines anticipatory bail practice in cyber-offence investigations. It crystallizes a pragmatic rule: when primary digital evidence is already seized by another agency, custodial interrogation is ordinarily unnecessary, and arrest must not be reflexive. The Court applies the “bail not jail” principle with rigor, tailoring conditions to the realities of digital forensics (voice samples, device surrender upon return) and safeguarding the investigation without undermining liberty.

Equally notable is the Court’s dignitarian message for the digital age: constitutional speech freedoms must be exercised with care, especially by influencers with outsized reach. The judgment thus both safeguards core criminal procedure values and speaks to the ethical responsibilities of online actors. Going forward, it will likely be cited for its clear stance on non-custodial investigation in technology-driven offences and for its nuanced understanding of how online content can magnify harm even after deletion.

Disclaimer: This commentary is based solely on the text of the judgment as provided. It is intended for informational purposes and should not be treated as legal advice.