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This question involves a situation where somebody might possibly be misusing a relative's mobile phone to discreetly engage in some questionable online activity.

Sharing of mobile devices is still common here in India and is quite the accepted practice in many offices and families.

A sim card registered to my friend A is currently used not by her, but other family members including her mother for various routine tasks including online shopping and email, and by her brother B who is the primary user, mainly for internet browsing and listening to music. His cousin C (father's brother's son) also "borrows" the phone regularly, which is impossible to refuse without offending close relatives in this joint family.

Cousin C is a college student who has recently fallen in with bad company and my friend B is now apprehensive that his cousin may be misusing the device to engage in some questionable online activities, being cunning enough to avoid directly exposing his own name, mobile number or email id. He might be doing this using either browsers or simple sms, which do not record which person is actually making use of the mobile device.

I have strongly advised B not to allow the cousin any further access to the phone, even at risk of unpleasantness within the family, but if his cousin had already infringed the law (strictly hypothetical, since we have no proof he has done so) will the responsibility fall upon my friend A solely for being the registered owner of the sim, or upon her brother B for being the primary user, when there is no other indication that either of them have actually participated in such an activity? Specifically, how can A and B defend themselves without blaming C when there is no conclusive evidence against any one of them being the guilty party?

Research done: I have tried to take advice from various websites devoted to questions on Indian law such as those listed in ask law india google search but found that most of them will only answer to an actual legal problem and refuse to allow such hypothetical or 'academic' questions, unlike Law Stack Exchange.

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  • I am an experienced user of Stack Exchange websites though I stopped using my accounts last year. I joined this site afresh specifically to ask this question which is the first time I am using Law.SE Answers specific to India will be useful but I also welcome insightful answers from users all over the world. Please also feel free to guide me regarding the proper way to frame a question on Law Stack Exchange.
    – sr smith
    Feb 5 '20 at 22:45
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Typically, there would be sufficient evidence in this situation to indict and investigate with formal legal process like arrest warrants, subpoenas and search warrants, all of the known users of the phone in the relevant time period and commence criminal proceedings against all of them based upon the improper use (although often charges would initially be brought only against the registered owner of the phone since authorities wouldn't be aware of any other users).

But, the burden of proof at trial would be on the prosecution to show beyond a reasonable doubt that the person charged is actually the person who used the phone improperly and if they could not meet this burden of proof as to one particular person, no one should be convicted.

There are some rare and isolated circumstances analogous to this, under either statutes or common law rules, where everyone could be convicted and individuals would have an affirmative defense of showing that they weren't involved that they would have to show (e.g. in the case of people who were initially part of a single criminal conspiracy, but one or more of those people disavowed the conspiracy's course of action in a legally sufficient way before the crime was completed). But, to my knowledge, there is no jurisdiction in India that has such a law in the case of improper conduct involving mobile phones.

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  • Thanks a lot for a detailed and very clear answer @ohwilleke. If I have understood it right, neither A nor B would have a criminal responsibility for any action of C simply by being owner and user of a sim card, which is good to know because mobile phones are often shared resources in India and there is no law as yet specifying limits of responsibility for the owner (unlike automobiles, for instance, where the registered owner shall have various degrees of liability for the actions of anybody they allow to drive their vehicle, and it is the owner's basic duty to ensure that no misuse occurs.)
    – sr smith
    Feb 7 '20 at 3:01
  • cyberlaws.net/cyber-law-books/mobile-law-in-india "The Indian Cyberlaw being the Information Technology Act, 2000 has been amended by the Information Technology (Amendment) Act, 2008 to provide for various new kinds of specific crimes that originate in the mobile ecosystem". However, "India needs mobile phone laws" link: ptlb.in/iips/?p=46 see also ptlb.in/iips/?p=45
    – sr smith
    Feb 7 '20 at 3:03
  • There are laws in some places that make the owner or the person in posession of something responsible for abuse. Most seriously if you leave a gun cabinet unlocked, or if you leave the keys in your car, and someone uses the gun or the car for a crime. It is conceivable but unlikely that a country makes you responsible not to allow your phone to be used if you suspect criminal activity, and possibly more so after previous criminal activity.
    – gnasher729
    Mar 8 '20 at 17:21

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